Thompson v. Oceanaire Homeowners Assn.

Filed 7/3/07 Thompson v. Oceanaire Homeowners Assn. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Rolf M. Treu, Judge. Affirmed.

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Mancini & Associates, Marcus A. Mancini and Christopher Barnes; Benedon & Serlin, Gerald M. Serlin and Douglas G. Benedon for Plaintiff and Appellant.

Ford & Harrison, Steven M. Kroll for Defendants and Respondents Oceanaire Homeowners Association, Todd Shields and Julio Gonzalez.

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Wayman F. Thompson was a security guard employed by Leedom Security Service, Inc. (Leedom).^[1] Leedom assigned Thompson to work at a condominium complex managed by the Oceanaire Homeowners Association (Oceanaire). Leedom terminated Thompson, who then sued Leedom, Oceanaire, and individuals associated with both entities for racial discrimination, harassment, retaliation, and wrongful discharge. The trial court granted summary judgment in favor of Oceanaire, its president, and one of its employees on the ground that Oceanaire was not Thompsons employer. We affirm.

BACKGROUND

Leedom is a California corporation that provides unarmed, uniformed private security guard services throughout California. In April 2000, Leedom contracted with Oceanaire to provide security services at the Oceanaire property. In September 2002, Leedom hired Thompson as a security officer and assigned him to work at the Oceanaire property. Thompson is African American.

Thompson alleges that certain Oceanaire employees racially harassed him while he was working at the Oceanaire property and that he was further harassed and ultimately fired in retaliation for reporting the original harassment. After filing complaints with the Department of Fair Employment and Housing and obtaining right-to-sue letters, Thompson filed suit against Oceanaire, its president (Todd Shields), and one of its maintenance workers (Julio Gonzalez), as well as against Leedom, its president, and several other individuals who are not parties to this appeal. Thompsons first amended complaint alleges claims for (1) racial harassment, discrimination, and retaliation in employment, in violation of the Fair Employment and Housing Act (FEHA), and (2) wrongful termination in violation of public policy.

Oceanaire, Shields, and Gonzalez (hereafter defendants) moved for summary judgment on the ground that they cannot be liable on any of Thompsons claims because Oceanaire was not Thompsons employer. The trial court granted the motion. The court stated that Thompsons response to defendants separate statement of undisputed material facts failed to comply with the Rules of Court, that defendants had supported their motion with admissible evidence showing that Oceanaire was not Thompsons employer, and that Thompson had failed to introduce evidence sufficient to create any material factual disputes. The court also sustained all of defendants objections to Thompsons evidence.

The court entered judgment on September 1, 2005. Thompson timely appealed. Because the judgment is final as to Oceanaire, Shields, and Gonzalez, it is appealable. (Tinsley v. Palo Alto Unified School Dist. (1979) 91 Cal.App.3d 871, 880.)

STANDARD OF REVIEW

Because Thompson appeals from the summary judgment entered against him, we independently examine the record in order to determine whether triable issues of fact exist to reinstate the action. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)

DISCUSSION

Thompson presents three arguments on appeal: (1) The trial court should have given Thompson an opportunity to cure the technical defects in his response to defendants separate statement; (2) the trial court abused its discretion when it sustained all of defendants objections to Thompsons evidence; and (3) Thompsons evidence was sufficient to create disputed issues of material fact as to whether Oceanaire was Thompsons employer. Assuming that the first two arguments are sound, Thompson still must prevail on the third in order to show prejudice. We conclude that Thompsons third argument fails, however, and we therefore affirm the judgment.

The FEHA . . . prohibits only an employer from engaging in improper discrimination. (Reno v. Baird (1998) 18 Cal.4th 640, 644, quoting Gov. Code,  12940, subd. (a); see also Vernon v. State of California (2004) 116 Cal.App.4th 114, 123.) The same requirement applies to the common law tort of wrongful termination in violation of public policyonly an employer may be held liable. (Jennings v. Marralle (1994) 8 Cal.4th 121, 130; see also Reno v. Baird, supra, 18 Cal.4th at pp. 663-664.)

When an employerthe general employerlends an employee to another employer and relinquishes to a borrowing employer all right of control over the employees activities, a special employment relationship arises between the borrowing employer and the employee. (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492.) In addition, [f]acts demonstrating the existence of a special employment relationship do not necessarily preclude a finding that a particular employee also remained under the partial control of the original employer. Where general and special employers share control of an employees work, a dual employment arises, and both the general employer and the special employer may be treated as the employees employers for various purposes. (Id. at pp. 494-495.) The doctrine of general and special employers applies not only to respondeat superior (id. at pp. 492, 494-495) and workers compensation liability (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 202-203, 209), but also to employment discrimination claims (Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1182-1184).

The key to the existence of a special employment relationship is control. [W]here the servants of two employers are jointly engaged in a project of mutual interest, each employee ordinarily remains the servant of his own master and does not thereby become the special employee of the other. (Marsh v. Tilley Steel Co., supra, 26 Cal.3d at p. 493.) It is only where some measure of control over the employee is relinquished by the employees general employer to another entity that the other entity may become the employees special employer. (Brassinga v. City of Mountain View, supra, 66 Cal.App.4th at pp. 215-216.)

In addition to the alleged special employers control over the employee, there are a number of other factors relevant to deciding whether a special employment relationship existed. The existence of a special employment relationship may be supported by evidence that (1) the alleged special employer paid wages to the employee, (2) the alleged special employer had the power to discharge the employee, (3) the work performed by the employee was unskilled, (4) the work tools were provided by the alleged special employer, (5) the work was part of the alleged special employers regular business, (6) the employee expressly or impliedly consented to a special employment relationship, (7) the parties believed they were creating a special employment relationship, and (8) the alleged special employment period was lengthy. (Brassinga v. City of Mountain View, supra, 66 Cal.App.4th at p. 217.)

Thompson argues that he introduced substantial evidence that Oceanaire had the right to control and direct him, making it his special employer. In support of this argument, he cites evidence that, he claims, shows the following facts: (1) Oceanaire set the protocol establishing how security officers would interact with residents and guests[;] (2) Oceanaire employees trained Thompson, and identified the equipment at the Oceanaire [b]uilding with which Thompson needed to be familiar[;] (3) Thompson used walkie-talkies, monitors, and desks provided by Oceanaire[;] (4) [w]hile on duty, Thompson reported directly to Oceanaires [p]roperty [m]anager, [d]efendant[] Ramon Gonzales[,] and maintenance employee Julio Gonzale[z;] (5) [d]efendant Ramon Gonzales job description as the Oceanaire property manager included oversight of all Oceanaire contracts, including security[;] (6) [t]he uniform worn by Thompson adhered to Oceanaires specifications[;] and (7) Oceanaire retained the ability to terminate or recommend termination of any Leedom Security employee assigned to the Oceanaire [b]uilding. We examine each of these claims in turn.

1. Oceanaire set the protocol

In support of his claim that Oceanaire set the protocol establishing how security officers would interact with residents and guests[,] Thompson cites his own deposition testimony and that of Shields.

At his deposition, Thompson was asked, Did he ever give you any security officer training?^[2] Thompson replied, No, but as my employment at Oceanaire, Julio [i.e., an Oceanaire maintenance worker] did get involved with wanting to tell the security guards, you know, what to do as far as what they need to do and as far as their job duties. He further explained, And it was just certain things that he said to, you know, the security, even myself as far as, you know, proper way how to talk and things like that in a manner that actually didnt deal with security. But it was just talk about things.

That testimony does not show that Oceanaire set any protocol or otherwise exercised control over Thompson. It shows only that an Oceanaire employee got involved with wanting to tell the security guards certain things, but it does not make clear exactly what that employee did, whether he had authority to do it, or whether his instructions, if any, were followed. Rather, Thompson himself dismissively characterizes all of this conduct as just talk about things.

At his deposition, Shields was asked whether within the homeowners association there had been a determination as to how [Oceanaire] wished the security guards to interact with guests coming onto the property[.] He answered affirmatively, and when asked to elaborate, he explained: [W]e discussed common courtesy of what a guard is supposed to do with Leedom ahead of time. All of this was agreed ahead of time what their services were. When I took over, it was already in place. [] So the level of service of greeting people, saying Hello, you know, smiling, whatever, was all in placethe uniform.

That testimony does not show that Oceanaire itself exercised any control over Thompson. Rather, it shows that Oceanaire discussed with Leedom the kind of services it wanted Leedom to provide, including how Leedoms employees were to conduct themselves (e.g., say Hello and smile) at the Oceanaire property. Every client of Leedomor of any other employer, for that matterengages in such conduct, i.e., the client specifies the type of services or products it wants. If doing so were a manifestation of the kind of control that gives rise to a special employment relationship, then special employee status would be the rule, not the exception. The Supreme Court has explained, however, that the opposite is true: [E]ach employee ordinarily remains the servant of his own master and does not thereby become the special employee of the other. (Marsh v. Tilley Steel Co., supra, 26 Cal.3d at p. 493.)

2. Training and Identification of Equipment

In support of his claim that Oceanaire employees trained Thompson, and identified the equipment at the Oceanaire [b]uilding with which Thompson needed to be familiar[,] Thompson cites two pages of his own deposition testimony. On the first page he testified that the [o]nly training that I received from Oceanaire was actually what equipment that you need to know and work at Oceanaire as far as thein the front desk area, I guess plumbing in case of a fire, and that was it. When asked to elaborate, he added, Well, they wanted you to know the outline of the building. They wanted you to know in case a pipe burst or anything like that. They want to know in a situation how would you handle it and what pipes would you cut off. In case of a fire, what to do and basically that was it. When asked specifically who provided this training or information, Thompson said, Actually the post commander, whose name was Nash. Thompson later confirmed that Nash was a Leedom employee.^[3] So this testimony from Thompson does not in fact constitute evidence that Oceanaire trained him or identified the equipment he was to use.

The second cited page of Thompsons deposition is the page, discussed earlier, reflecting his testimony that an Oceanaire maintenance worker got involved with wanting to tell the security guards certain things. Again, that testimony proves nothing about Oceanaires control over Thompsons work.

3. Provision of Equipment

As support for his claim that Thompson used walkie-talkies, monitors, and desks provided by Oceanaire[,] Thompson cites deposition testimony from Leedoms president and from Shields. Leedoms president was asked, presumably concerning the security guards assigned to the Oceanaire property, Do they have walkie-talkies? He replied, If they did, they were something that the building may have already owned. A lot of times a building has a certain frequency and doesnt want us to provide a walkie-talkie. I would have to look at the contract. This testimony does not show that Thompson used a walkie-talkie, let alone a walkie-talkie provided by Oceanaire.

Shields was asked, And the security monitors, are those security monitors brought onto the premises by the security officer or are they already there? He replied, Theyre already there.

None of the cited testimony says anything about desks.

4. Reporting Directly to Oceanaire Employees

As support for his claim that [w]hile on duty, Thompson reported directly to Oceanaires [p]roperty [m]anager, [d]efendant[] Ramon Gonzales[,] and maintenance employee Julio Gonzale[z,] Thompson cites nine pages of deposition testimony, of which only two are relevant. One page contains Thompsons testimony that Oceanaires property manager told him Julio is the maintenance person; but, you know, I want you to also look at him as your boss. Thompson cites no other testimony that explains what this means. The other relevant page contains Thompsons testimony that when he started working at the Oceanaire site, the Oceanaire property manager was [his] supervisor, and that Leedoms president had told him so. Thompson cites no other testimony that explains what this means or reconciles it with Thompsons own testimony that Nash (a Leedom employee) was his supervisor when he started working at the Oceanaire site. None of the cited evidence proves Thompsons contention that he reported directly to the property manager or the maintenance worker.

5. Oversight of Contracts

As support for his claim that [d]efendant Ramon Gonzales job description as the Oceanaire property manager included oversight of all Oceanaire contracts, including security[,] Thompson cites Shields testimony that Oceanaires property managers duties included the oversight of all contracts with all independent outside vendors and to make sure that they complied with the terms of [the] contract. The evidence provides no support, however, for Thompsons claim that Oceanaire was his special employer. The evidence shows only that Oceanaire paid attention to its contracts to make sure they were properly performed. It does not show that Oceanaire exercised the requisite control over Thompson.

6. Thompsons Uniform

As support for his claim that [t]he uniform worn by Thompson adhered to Oceanaires specifications[,] Thompson cites deposition testimony from Shields. Shields was asked, To your knowledge, is there a reason why the security officers at the homeowners association wore jackets and ties, as opposed to a printed security officers uniform? He responded, Again, that was decided before I came. But it was because of the level of service, and the appearance that the owners or the board had decided prior to me getting there. [] . . . [W]e wanted a professional appearance. Thompson introduced no evidence controverting defendants evidence that Leedom provided Thompson with his uniform, namely, two ties, one white dress shirt, and one suit. Like the evidence concerning the protocol establishing how security officers would interact with residents and guests, Thompsons evidence concerning the uniform has no tendency to prove that Oceanaire was Thompsons special employer. It proves only that Oceanaire told Leedom how it wanted the guards to be dressed, and that Leedom complied with its clients request by providing its guards with appropriate uniforms.

7. The Ability to Terminate or Recommend Termination

As support for his claim that Oceanaire retained the ability to terminate or recommend termination of any Leedom Security employee assigned to the Oceanaire [b]uilding[,] Thompson cites six pages of his own deposition testimony. In the only relevant portion of the cited testimony, Thompson was asked, To your knowledge, did Ramon [i.e., Oceanaires property manager] have the authority to terminate your employment with Leedom Security? (Italics added.) He replied, To my knowledge, I think since the contract wasnt going so good, I figured, yes, he could. That testimony is not evidence that Oceanaire in fact had the ability to terminate Thompsons employment with Leedomit shows only that to Thompsons knowledge the property manager could do so. And Thompsons claim that Oceanaire retained the ability to . . . recommend termination of Leedoms employees is irrelevant (regardless of whether it is supported by evidence)anyone can recommend the termination of any employee.

When asked for the basis of his belief that the property manager could terminate his employment with Leedom, Thompson testified that Leedoms president had told him that the property manager was Thompsons supervisor. Again, Thompson cites no other testimony that explains what this means or reconciles it with Thompsons own testimony that Nash (a Leedom employee) was his supervisor when he started working at the Oceanaire site. Thompsons unexplained testimony that the property manager was his supervisor is not evidence that Oceanaire had the ability to terminate Thompsons employment. Not all supervisors have the power to terminate subordinates, and there is no evidence that Oceanaires property manager had that power over Thompson or over any other Leedom employee.

In substance, then, Thompsons evidence on these seven points comes to this: (1) The security monitors Thompson used were provided by Oceanaire; (2) Oceanaires property manager told Thompson that Julio is the maintenance person; but, you know, I want you to also look at him as your boss[;] and (3) Leedoms president told Thompson that Oceanaires property manager would be Thompsons supervisor at the Oceanaire site. This evidence is not sufficient to create a disputed issue of fact as to whether Oceanaire was Thompsons special employer, particularly when considered together with Thompsons own testimony that he was supervised at the Oceanaire site by a Leedom employee (Nash) until Thompson himself was promoted to supervisor. Oceanaire must be permitted to monitor the performance of the employees of service providers with which Oceanaire contracts, and Oceanaire must be able to do so without thereby becoming the special employer of those employees. Thompson has introduced no evidence that Oceanaire did anything more than what it necessarily has a right to dooversee (or supervise) the work of its contractors employees on Oceanaire property.

For all of these reasons, we conclude that Thompson failed to introduce sufficient evidence to create a disputed issue of fact as to whether Oceanaire was his special employer.

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.^*

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^[1] We will use Leedom to refer to both Leedom Security Service, Inc., and its successor, Sky Sports, Inc.

^[2] The identity of the person referred to as he is not revealed by the deposition excerpt in the record.

^[3] Thompson also testified that when Leedom promoted Thompson himself to the position of supervisor, he provided this kind of training to new guards.

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)