ESTRADA v. FEDEX GROUND PACKAGE SYSTEM

Filed 8/13/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

Story continued from Part I .

IV.

FedEx contends the attorneys fee award is manifestly improper, that it cannot be justified under Code of Civil Procedure section 1021.5, and that it must in any event be revisited in light of our reversal of the equitable orders in Estrada II.[1]We reject FedExs substantive challenges but agree that the amount cannot stand.

Section 1021.5 provides as relevant that [u]pon motion, a court may award attorneys fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.[2]

Estradas motion asked for $619,691 in costs and $6,789,325 for his attorneys fees, a total of $7,409,016 -- plus a 2.0 multiplier as compensation for delay and contingency, a total of $14,818,032. The trial court reduced the fee by 18 percent (finding the amount slightly bloated) but otherwise granted the motion (including the 2.0 multiplier) and gave Estrada a total of $12,373,875 for costs and fees, noting the risk inherent in a contingent fee, the financial burden of private enforcement, and the years of long, hard-fought and labor intensive litigation involving enforcement of an important right that conferred a significant benefit on a large class. FedEx contends the award is erroneous because Estrada was motivated primarily by his own financial interests, that any benefit to a larger class was incidental, that no significant benefit was conferred on the public or a larger class, and that the trial courts dual use of the same reasons to both calculate the fee and justify the multiplier created a windfall. We reject FedExs claim that fees were not recoverable in this case but agree that the amount must be reduced and that the same facts cannot be used to trigger the application of section 1021.5 and justify a multiplier.

A.

Estradas personal motivation does not diminish the fact that he pursued this public interest class action not only for himself but on behalf of a class comprised of FedExs past and present drivers and ultimately obtained awards for 209 drivers. (Beasley v. Wells Fargo Bank (1991) 235 Cal.App.3d 1407, 1414; Citizens Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d 213, 231; Braude v. Automobile Club of Southern Cal. (1986) 178 Cal.App.3d 994, 1005.) No more is required to satisfy the significant benefit, public interest, and large class of persons requirements of section 1021.5.

B.

But Estrada did not get everything he sought. In Estrada II, we reversed all the equitable orders, finding that Estrada lacked standing to pursue his claims for prospective equitable relief (a) because his relationship with FedEx ended before this lawsuit was filed, and (b) because the class certification order was expressly limited to the reimbursement issue. (Estrada II, typed opn., p. 2.) The equitable orders were a significant part of the litigation and the resulting judgment.

In Phase III of these proceedings, Estrada sought declaratory relief and a permanent injunction on behalf of all California single work area pick-up and delivery drivers who at any time since May 11, 1996 worked or currently work or in the future are employed to work under FedExs Operating Agreement. The trial court rejected FedExs defenses, finding among other things that it was necessary to address the equitable claims in light of the importance and recurring nature of the employment issues of the [drivers]. A permanent injunction issued, enjoining FedEx from (1) misclassifying drivers as independent contractors or participating in any agreement to misclassify them as independent contractors, and (2) violating or attempting to violate any provision of the California Labor Code, Industrial Welfare Commission Orders, or other state laws and regulations protecting the drivers as employees -- both in the present and for as long as FedEx retained the employment model or substantially similar employment model used by FedEx at the time of trial. We reversed all of the equitable orders, finding that Estrada lacked standing to seek prospective declaratory or injunctive relief and that the trial court thus lacked jurisdiction to grant such relief.

When we reversed the equitable orders in Estrada II, we disposed of all of the benefits Estrada had obtained in the third phase of trial. Although we agree that Estrada is still the prevailing party, the factual predicate for the trial courts award -- that Estrada won on all points, including the far-reaching injunctions -- is no longer valid. Estrada concedes as much, noting in his respondents brief that, under the short-lived injunctions, the benefits of the instant litigation [would have been] enjoyed by thousands of people who are not members of the class, including future [drivers] and employees, and that the equitable orders were [m]ore important to the trial court than the damages award because the injunctive and declaratory relief require[d] [FedEx] to treat all its current and future [drivers] as employees and thus provide[d] ongoing relief to a huge group of people.

The $12,373,875 award is excessive and cannot stand.

C.

In recalculating an appropriate fee award on remand, the trial court must determine anew whether any multiplier is appropriate in this case. The fee award sans multiplier ($5,567,246) exceeded the amount of the award to the entire class of plaintiffs (about $3 million before interest was added, about $5 million with prejudgment interest). By the time the trial court revisits this issue, the total monetary award to the plaintiffs will have increased for the reasons explained below with regard to the drivers cross-appeal, and the attorneys will have spent more time on this case both on appeal and on the post-appeal trial court proceedings. While the amount of the fee is ultimately a decision within the trial courts discretion (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132), the fee must above all else be reasonable and a multiplier, if used, must be based on facts other than those used to trigger the application of section 1021.5. (Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 626; and see Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322-323 [the starting point of every fee award must be a calculation of the attorney services in terms of the time spent on the case, and the exercise of the courts discretion in awarding fees must bear some reasonable relationship to the lodestar figure of time spent and hourly compensation].)[3]

Estradas Cross-Appeal

V.

Estrada raises five issues on his cross-appeal, four challenging the trial courts rulings vis--vis the damages proved during the Phase II trial, the fifth revisiting the dismissal orders that were the subject of Estrada I. We address these issues seriatim.

A.

The August 2, 2001 class certification order recites that [c]ommon questions of fact clearly predominate in this case. All members of the proposed class . . . incurred the below-listed similar expenses, delineated in the Operating Agreement and certified by the Court as susceptible to proof on a class basis, as a direct consequence of performing services for [FedEx] . . . . Ten categories of [e]xpenses the [Operating Agreement] requires were listed: (1) purchasing or leasing a vehicle for the purpose of performing pickup and delivery services; (2) operating the vehicle, including fuel, oil, tires, repairs, business taxes, cleaning, insurance, registration and tolls; (3) maintaining the vehicle in accordance with federal, state and local law; (4) marking the vehicle with logos, colors, numbers, marks and insignia; (5) licensing the vehicle; (6) paying into the Contractor Performance Escrow Account; (7) purchasing, renting and cleaning uniforms; (8) purchasing or otherwise securing communications equipment, including but not limited to scanners and other required equipment; (9) obtaining liability insurance; and (10) obtaining and keeping in force workers compensation insurance for themselves.

On September 8, 2004, the trial court limited reimbursement to items actually paid out by the drivers or deducted from their settlement checks, ruled that proof of the claimed expenses would be limited to receipts and personal records of the [drivers] . . . as well as records in the hands of [FedEx], and limited some of the categories of recoverable expenses.[4] Four of the courts rulings are challenged on the drivers cross-appeal.

1.

The trial court refused to permit proof of expenses by expert analysis and lay testimony about FedExs estimates of the drivers expenses, limiting the drivers proof to receipts and records. More specifically, the trial court ruled that sampling or statistical analysis [would] not suffice, as the amounts of monies that must be the subject of the accounting [would] be too disparate because of the economic differences in the California geographic area. . . . [] The [drivers] have the burden of proving areas of compensability by means limited to receipts and personal records . . . and [FedExs] records . . . . [] The [drivers] will present a package to the referee containing the above items as to each [driver]. Upon receipt of said package, [FedEx] can either stipulate as to the amounts sought or file documents or records controverting those amounts. We reject Estradas challenge to this ruling.

According to the drivers, they should have been permitted to offer expert analysis computing the [drivers] damages based on an economic model [that] used actual receipts produced by [the drivers] from around the state, together with expense estimates published in [a FedEx] recruiting booklet entitled, Becoming [a FedEx] Pickup and Delivery Contractor [because the booklet included] data in the form of weekly and annual expense estimates, and a spreadsheet showing the estimated costs for ten specific expense items projected over a ten-year period. The problem with this argument is that it is premised on a finding that the amounts due to the drivers were not susceptible of exact proof (Long Beach Drug Co. v. United Drug. Co.(1939) 13 Cal.2d 158, 174 [uncertain consequential damages]; Noble v. Tweedy (1949) 90 Cal.App.2d 738, 745 [future damages]; Suburban Mobile Homes, Inc. v. AMFAC Communities, Inc. (1980) 101 Cal.App.3d 532, 545 [lost profit damages]; DuBarry Internat. Inc. v. Southwest Forest Industries, Inc. (1991) 231 Cal.App.3d 552, 562 [damages for lost commissions]) -- an assumption directly contradicted by the record the drivers established in proving their damage claims. In short, estimates and educated guesses are allowed where damages cannot be proved. That was not this case.[5]

2.

Although the September 2004 order required proof by receipts and other personal records, Estradas lawyer -- claiming she had an agreement with FedExs lawyer -- prepared spreadsheets listing the drivers out-of-pocket expenses (such as gasoline and maintenance costs that were not deducted from the drivers checks) with Bates-stamp references to each supporting document, the idea being that FedExs lawyers would review the spreadsheets, determine which items were disputed, and request production of receipts for only the disputed items. After the deadline for the submission of evidence passed, FedEx objected to the spreadsheets as incompetent, contending there was no agreement to relieve the drivers of the court-ordered requirement to present all supporting documentation. The referee sustained the objection but found the drivers lawyers had honestly believed an agreement had existed, and therefore found that the drivers should be allowed to present proper proof -- and accepted 40,000 documents (all of which had been produced to FedEx during discovery) which, if allowed, would result in an award to the drivers of about $5.23 million for these expenses.

FedEx objected to the referees order. The trial court agreed with the referee that there had been no agreement,[6] found the drivers had offered incompetent evidence, and approved the referees decision to allow the drivers to reopen -- but only with regard to expenses provable by documents FedEx had produced during discovery, which necessarily excluded all of the drivers out-of-pocket expenses provable only by the drivers documents.

The trial courts reason for allowing the partial reopening -- so that FedEx would not obtain a windfall -- is entirely inconsistent with its order limiting the scope of the allowed reopening. Because the trial courts reasoning was correct (FedEx would indeed obtain a windfall if it was not required to reimburse the drivers for provable expenses that had been part of the case from the beginning, all of which were fully documented and produced to FedEx during discovery), the only possible conclusion is that the trial courts order is wrong and must be reversed. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1066.) However wrong Estradas lawyer might have been in believing she had an agreement with opposing counsel to use the spreadsheets without the related proof packets, her error caused absolutely no prejudice to FedEx.[7] Accordingly, the trial court must revisit this issue and conduct such further proceedings as are necessary to determine the amounts to be awarded to the drivers for these expenses.

3.

The trial court, relying on a January 1985 Interpretive Bulletin (Bulletin 84-7) issued by the Department of Industrial Relations, Division of Labor Standards Enforcement (DLSE), found the drivers were not entitled to reimbursement for expenses related to purchasing or leasing a vehicle for the purpose of performing pick up and delivery services because employers in the pick up and delivery industry in California can require as a condition of employment that their drivers, at their own expense, purchase or lease a truck to the employers specifications. Estrada contends the trial court should instead have relied on a January 2, 1997 DLSE Opinion Letter (No. 1997.01.02) opining that employees may not be required to purchase a $50,000 customized truck as a condition of employment. (Bell v. Farmers Ins. Exchange (2001) 87 Cal.App.4th 805, 815 [we do not defer to DLSE bulletins and opinion letters but may nevertheless consider them for what they are worth].)[8] We agree with the trial court.

(a)

Bulletin 84-7 was a response to a question about whether employers . . . may require mechanics or other employees to provide and maintain their own tools, regardless of the wages paid the employees, if it is customary in the industry for mechanics or other employees to do so. In response, the Labor Commissioner opined that if an employee is paid at least twice the minimum wage, such employee may, as a condition of employment, be required to provide and maintain his[] own hand tools and equipment customarily required by the trade or craft. In addition, the Labor Commissioner opined that [i]f an employee is paid at least twice the minimum wage, he[] may be required, as a condition of employment, to furnish his[] own tools, regardless of the custom or practice in the industry to the contrary.

In that context, the Labor Commissioner was also asked whether an automobile or truck used in the course of employment by an employee . . . is a tool within the meaning of [section 2802]. The Commissioner answered that neither an automobile nor a truck is considered a tool within the meaning of [section 2802], and an applicant for employment may be required, as a condition of employment, to furnish his[] own automobile or truck to be used in the course of employment, regardless of the amount of wages paid. [] Under . . . [s]ection 2802, an employer who requires an employee to furnish his[] own car or truck to be used in the course of employment would be obligated to reimburse the employee for the costs necessarily incurred by the employee in using the car or truck in the course of employment. (Italics added.)

(b)

The January 2, 1997 Opinion Letter is a response to a question based on this situation: An employer hires a sales employee and requires him to purchase a customized truck for about $50,000.00, bearing the employers name, as a condition of employment. The employer then directs the employee to the vendor who sells the trucks and to a leasing company that will finance the truck. Finally, the employer directs the employee to an insurance company that will insure the truck. The question was whether section 450 prohibits the employer from requiring the employee to patronize specific and identifiable third persons.[9] As relevant, the Chief Counsel for Division of Labor Standards Enforcement replied:

California courts have determined that [section] 450 . . . promot[es] the right of a wage earner to all wages lawfully accrued to him. . . . [] Clearly, a condition of employment which requires the employee or applicant to make a $50,000.00 purchase of a vehicle which advertises the name of the employer and further requires that the vehicle be purchased from one vendor (or any number of vendors) chosen by the employer is violative of [section] 450. [] While your [question] does not [mention section 2802] I feel that it is imperative that you also consider [that statute]. . . . [] [Section 2802] may not be waived. (See . . .  2804.)^[[10]] Obviously, even if the practice you describe were not prohibited by the terms of [section] 450, the employer would be liable to the employee for the costs incurred by the employee under [section] 2802. [] Quite frankly, the scenario you paint is usually the type of arrangement made in franchise situations, but the requirement to purchase something of value may not be extended to employer-employee situations [and] is, in my opinion, clearly prohibited by California law. (Emphasis added, fn. omitted.)

The essence of Estradas argument is that, by implication, the 1997 Opinion Letter is a clarification of the Bulletin 84-7, and it is the 1997 Opinion Letter, not the Bulletin, that is factually similar to FedExs position vis--vis its drivers. The problem with this argument is that it fails to consider the DLSEs other relevant Opinion Letters.

(c)

According to the 2002 Update of the DLSE Enforcement Policies and Interpretations Manual ( 29.2.3.2, p. 29-2 (Revised), http://www.dir.ca.gov/dlse/ Manual-Instructions.htm [as of Aug. 6, 2007]), Bulletin 84-7 is still valid and has not been superseded by the 1997 opinion letter.[11] More particularly, IWC Order No. 9-2001, effective July 1, 2004, provides that in the transportation industry, [w]hen tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained by the employer, except that an employee whose wages are at least two . . . times the minimum wage . . . may be required to provide and maintain hand tools and equipment customarily required by the trade or craft. (Id., [] 9, p. 7.)[12] This 2004 statement by the IWC is entirely consistent with the DLSEs Bulletin 84-7, which provides that, because neither an automobile nor a truck is considered a tool within the meaning of [section 2802], . . . an applicant for employment may be required, as a condition of employment, to furnish his[] own automobile or truck to be used in the course of employment, regardless of the amount of wages paid. (Italics added.)

Other DLSE Opinion Letters presume it is proper for an employer to require an employee to provide his own car or truck for use on the job. Thus, a February 25, 1991 Opinion Letter (No. 1991.02.25-1) opines that when an employee uses his own automobile for his work, the employer must pay for the employees insurance premiums. An August 30, 1991 Opinion Letter (No. 1991.08.30) responds to an inquiry about employees in the trucking business who own their own trucks and states that the DLSEs enforcement policy requires that the employer agree to reimburse the employee for all the costs incurred by the employee in the operation of the equipment. An August 14, 1994 Opinion Letter (No. 1994.08.14) states that the reimbursement rates for an employees use of his own truck differs from the rate applicable to automobiles. An Opinion Letter dated November 5, 1998 (No. 1998.11.05) responds to a question about employees who regularly drive their personal vehicles for business purposes and discusses the employers obligation to pay insurance premiums for coverage above the legal minimum.

Implicit in all of these Opinion Letters is the assumption that it is perfectly lawful for an employer to require its employees to provide their own vehicles as a condition of employment, provided only that the employees must be reimbursed for the expenses thereby incurred. (And see Lane v. Industrial Accident Commission (1958) 164 Cal.App.2d 523.)

The only commentary we have found (none being cited by either party) supports our conclusion that an employer may require its employees to provide their own trucks: An applicant or employee may be required, as a condition of employment, to furnish his . . . own vehicle to be used in the course of employment. [Section] 2802 requires an employer to indemnify its employees for all necessary expenses or losses incurred in the course of his . . . duties. (Advising California Employers and Employees (Cont.Ed.Bar (2005) 5.89, p. 454.) In sum, aside from two tangential and conclusory sentences in one DLSE Opinion Letter, we have not found any authority for Estradas proposition that an employer cannot require an employee to provide his own truck as a condition of employment. To the contrary, the DLSEs other Opinion Letters, Bulletin 84-7, and the IWC Order all assume that an employer can in fact do just that. Accordingly, we conclude that FedEx need not reimburse the drivers for the cost of their trucks.

4.

The certification order and the September 8, 2004 order listed workers compensation insurance as a recoverable expense, notwithstanding that virtually all of the drivers carried work accident insurance (a form of insurance for self-employed workers). Although this technical error was discovered during discovery (in 2002), the drivers lawyers failed to clarify the point at that time and the trial court later refused to allow reimbursement for work accident insurance.[13] We agree with Estradas challenge to this ruling.

Although the drivers lawyers should have sought clarification instead of assuming that everyone understood that the drivers would be reimbursed for their work accident insurance premiums, the failure to do so does not justify a windfall to FedEx -- particularly since it caused the confusion by treating the drivers as independent contractors and was at all times fully aware of the ambiguity in the courts orders (the Operating Agreement itself obligates the drivers to obtain and keep in force at all times . . . work accident and/or workers compensation insurance . . .). (Rainer v. Community Memorial Hosp. (1971) 18 Cal.App.3d 240, 254; Trafton v. Youngblood (1968) 69 Cal.2d 17, 31; Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565; South Bay Building Enterprises, Inc. v. Riviera Lend-Lease, Inc. (1999) 72 Cal.App.4th 1111, 1124.) The drivers are entitled to reimbursement for their work accident insurance premiums.

B.

Estrada contends the trial court erred in using the class questionnaires as a litmus test to determine which of the 700 absent class members wished to participate rather than . . . determin[ing] which fit the class definition (thus making it a prohibited opt-in class action) and then dismissing all absent class members who did not fully participate in discovery. We disagree.

After the class certification order and after our decision in Estrada I, Hypertouch, Inc. v. Superior Court (2005) 128 Cal.App.4th 1527, 1543-1550, held that an opt-in procedure is not authorized by and conflicts with California class action rules. But Hypertouch does not support Estradas challenge to his certification order because, as Hypertouch notes, the existence of an ascertainable class is a precondition of class certification. (Id. at p. 1549.) In our case, discovery was necessary to determine whether in fact there was an ascertainable class and, if so, whether it was manageable. (Estrada I, supra, 125 Cal.App.4th at p. 983.) More to the point, Estradas current argument ignores the fact that class certification was granted on the accepted condition that discovery would define the class. When prospective class members failed to respond (or responded inadequately) to the court-approved discovery requests, the court could not determine whether they fit the class definition or had compensable damages. Under these circumstances, there was no error.

DISPOSITION

The judgment is reversed (1) insofar as it awards $12,373,875 to plaintiffs for their attorneys fees and costs and (2) insofar as it disallowed the expenses discussed in Parts V.A.2 and V.A.4 of this opinion; in all other respects, the judgment is affirmed and the cause is remanded to the trial court with directions to conduct such further proceedings as are necessary to determine the amounts to which the drivers are entitled for out-of-pocket expenses (Part V.A.2) and the amounts due for their work accident insurance premiums (Part V.A.4), and to thereafter determine the reasonable amount of fees and costs to be awarded (Part IV). Estrada is entitled to his costs of appeal.

CERTIFIED FOR PUBLICATION.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

______________________________________________________________________________

*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Subsequent references to section 1021.5 are to that section of the Code of Civil Procedure.

[2] In addition, subdivision (a) of section 2802 compels an employer to indemnify its employee for all necessary expenditures and losses incurred by the employee in direct consequence of the discharge of his or her duties. Subdivision (c) of section 2802 defines necessary expenditures or losses to include all reasonable costs, including but not limited to, attorneys fees incurred by the employee enforcing the rights granted by this section. Our conclusion that a fee award is justified under section 1021.5 makes it unnecessary to consider whether the section 2802 fee provision, which was enacted after this lawsuit was filed, applies in this case.

[3] The trial courts statement that it was not double counting does not change the fact that the reasons justifying any award at all and an award based on high hourly rates (to lawyers who took the case on a contingency basis) were the same as those used to justify the multiplier -- the benefit to the class, the risk taken, the lawyers skill, the excellent results.

[4] In the same order, the trial court found that expenses recoverable under section 2802 included those related to the operation of the vehicle (fuel, oil, tires, repairs, business taxes, cleaning, insurance, registration, and tolls), to maintaining the vehicle in accordance with federal, state and local law, to marking the vehicle, to licensing the vehicle, to purchasing, renting, and cleaning uniforms, to renting scanners, and to obtaining liability insurance. On its own motion, the trial court appointed a referee (Code Civ. Proc.,  639) to take evidence, perform an accounting as to the expenses and reimbursements claimed by the individual plaintiffs and class members, and to make recommendations to the court.

[5] Moreover, the notices sent to the putative class members told them quite plainly that they would be asked to document any expenses for which [they] claim[ed] reimbursement. (See Rose v. City of Hayward (1981) 126 Cal.App.3d 926, 934; and see Bell v. Farmers Ins. Exchange (2004) 115 Cal.App.4th 715, 749-753.)

[6] The trial courts credibility call is binding on this appeal (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479; In re Marriage of Mix (1975) 14 Cal.3d 604, 614) and is supported by the record. In addition to the trial courts requirements (actual receipts and documentation), the referee ordered the parties to present both calculation sheets and proof packets.

[7] If, as FedEx suggests, the trial courts ruling was in effect a sanction based on its belief that the use of the spreadsheets was an unauthorized tactic to get around the courts order with which [Estradas lawyer] disagreed, the result was nonetheless an abuse of discretion -- because the sanction, if thats what it was, should have been directed at counsel, not her clients.

[8] The DLSEs opinion letters may be found at http://www.dir.ca.gov/dlse/DLSE OpinionLetters.htm (as of Aug. 6, 2007).

[9] Section 450 provides: No employer . . . may compel or coerce any employee, or applicant for employment, to patronize his . . . employer, or any other person, in the purchase of any thing of value.

[10] Section 2804 provides: Any contract or agreement express or implied, made by any employee to waive the benefits of [the article including section 2802] or any part thereof is null and void.

[11] According to section 29.2.3.2 of the Manual, orders issued by the Industrial Welfare Commission (IWC) allow an employer to require that employees furnish hand tools and equipment if the hand tools and equipment are customarily required by the trade or craft. The DLSE has concluded that in the phrase hand tools and equipment, the word hand is an adjective which modifies both the word tools and the word equipment. As the Labor Commissioner opined in 1984, an automobile is not the type of equipment contemplated in the IWC Orders. (See Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 581 [the IWC is the state agency empowered to formulate regulations governing employment in California, and the DLSE is the state agency empowered to enforce Californias labor laws, including the IWCs orders].)

[12] The same order (at [] 2(P), p. 3) defines transportation industry to mean any industry, business, or establishment operated for the purpose of conveying persons or property from one place to another whether by rail, highway, air, or water, and all operations and services in connection therewith; and also includes storing or warehousing of goods or property, and the repairing, parking, rental, maintenance, or cleaning of vehicles.

[13] In response to an interrogatory asking for the amount deducted for workers compensation insurance, FedEx responded that there were no deductions for this item because it viewed each driver to be a self-employed person. In response to an order to provide a further response, FedEx explained that the parties resolved the ambiguity in the use of the term workers compensation insurance payments as [that term] is used in the [i]nterrogatory to be a reference to work accidentinsurance premiums.