Rabanal v. Rideshare Port Management
Filed 11/14/13 Rabanal v. Rideshare Port
Management CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE
FERDINAND RABANAL et al.,
Plaintiffs
and Appellants,
v.
RIDESHARE PORT
MANAGEMENT LLC, et al.,
Defendants
and Respondents.
B239708
(Los
Angeles County
Super. Ct.
Nos. BC432509 &
BC437620)
APPEAL from a judgment of the Superior
Court of
County,
Yvette M. Palazuelos, Judge. Affirmed.
Law
Offices of John J. Jackman and John J. Jackman for Plaintiffs and Appellants.
Epstein
Becker & Green, David Jacobs, William O. Stein and Rhea G. Mariano for
Defendants and Respondents.
INTRODUCTION
At issue in these two
consolidated actions is whether plaintiffs Jose Diaz and Ferdinand Rabanal
(collectively plaintiffs) are employees of, or independent contractors for,
defendant Rideshare Port Management LLC d/b/a Prime Time Shuttle (RPM), and
managing member Rattan Joea and his wife, Parminder Joea (collectively
defendants). Plaintiffs sued defendants
seeking to recover for various alleged violations of the wage and hour
laws. The trial court granted
defendants’ motions for summary judgment, ruling as a matter of law that
plaintiffs were not employees who would be entitled to the protection of the
wage and hour laws but independent contractors.
Plaintiffs appeal. We hold there
is no triable issue of material fact and so, as a
independent contractors. Plaintiffs
exercised control over the manner and means of the work. Although RPM set some standards of dress,
implemented to an extent a demerit system, and utilized a centralized dispatch
system, many aspects of the dress code and dispatch system were required by the
City of Los Angeles (the City) and the Public Utilities Commission (PUC) in
order for RPM to operate at Los Angeles International Airport (LAX) and the
evidence fails to show that the demerit system went beyond the right to ensure
satisfactory performance to the public.
Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
1.
The lawsuit
Rabanal and Diaz were van
drivers or “operators†whose work ordinarily consisted of transporting
passengers to and from their residences and various airports or cruise ship
terminals. Diaz covered mostly LAX and
cruise ships docked in San Pedro. Rabanal
mainly took passengers to and from LAX, but sometimes to other airports. Each worked for RPM for about a year,
although their tenure there did not overlap.
Rabanal and Diaz independently
commenced lawsuits against RPM and the Joeas alleging causes of action for
violations of the wage and hour laws.
They alleged defendants made illegal deductions from wages (Lab. Code, § 2802);
failed to pay wages for all regular hours worked; failed to pay overtime; failed
to provide meal breaks; failed to provide itemized statements (Lab. Code, §
226); violated Labor Code section 221; failed to compensate for all hours
worked (Lab. Code, § 1198); committed fraud to avoid compliance with the wage
and hour laws, and engaged in unfair business practices by violating the above
wage and hour laws (Bus. & Prof. Code, § 17200). Plaintiffs also sought
Defendants answered the
complaints by generally and specifically denying each allegation. RPM and the Joeas then moved for summary
judgment on the ground there were no disputes of material fact with the result
as a matter of law, Rabanal and Diaz were independent contractors and not
employees, thus vitiating all causes of action.
2.
The evidentiary showing in
defendants’ summary judgment motions
Reviewing the record
according to the applicable rules of review (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940), it shows
that state and local laws and regulations governed the manner in which RPM and
other entities transact business at airports and cruise ship terminals. RPM, who conducts business under the name “Prime
Time†and “Prime Time Shuttle,†is licensed by the PUC to operate as a
passenger stage corporation. RPM’s right to operate at LAX was
afforded by its concession agreement (concession agreement) with the City. Among other matters, the concession agreement
required that: shuttles and drivers have
identically colored clothing and markings to be readily identifiable as being
with the concessionaire; concessionaires maintain specified insurance; all
vehicles operating under RPM’s certificate display the name or trade name of
the carrier in sufficiently large letters to be readable; the concessionaire
maintain a centralized dispatch system and telephone number for the use by the
public.
Beginning in August 2005,
RPM contracted with Airport Transportation Associates, LLC (ATA) to receive
“transportation services,†i.e., operators.
ATA was a limited liability company comprised of operators. The ATA-RPM contract provided in
particular, “it is mutually understood and agreed that [ATA] is performing as
an independent contractor. [RPM] shall
neither have nor exercise any control or direction over the methods by which
[ATA], or personnel under his control, shall perform their work and functions. The sole interest and responsibility of [ATA]
shall be to assure that the services covered by this Agreement shall be
performed and rendered in a competent efficient and satisfactory manner and in
compliance with all . . . laws, rules and regulations.†ATA provided its operators with any procedures
and processes they would need in order to work under RPM’s trade name and to
comply with specific airport regulations.
Among the
services ATA provided its members was negotiated group automobile liability
insurance policies and cell phone rates. ATA also received payment for the operators’
services to RPM and made distributions to individual operators. ATA issued IRS K-1 forms to operators reflecting
their compensation for services provided and their membership
distribution. In 2009, ATA disbanded. RPM then entered into contracts with
individual operators for transportation services through owner-operator
sub-carrier agreements.
Procedurally, RPM’s dispatch
system, run by Red Vans Management Services, took reservations from passengers
and offered those passengers to drivers as fares. Dispatch informed each operator by telephone
or Blackberry of the passenger’s location and requested pickup time. Operators decided when to leave for the
pickup, the route to take to and from pickups, and whether to return to the
airport lot for another fare. Operators
were not required to communicate these plans with RPM. Operators were not assigned to, or restricted
to, any geographical area and did not need RPM’s approval for routes. Operators could decline to accept a fare that
dispatch offered.
Dispatch was not the only
source of fares. Operators could go to
an airport and drive “loops†around the terminals to pick up unscheduled
passengers who wanted rides but had not made prior reservations. In fact, Rabanal testified he made more money
picking up unscheduled passengers in the “loops†than he did by driving
passengers who had reserved through dispatch. Additionally, operators could solicit fares
from other transportation networks such as Expedia, Go Airport, and Shuttle
Fare. If an operator wanted to work at
an airport other than LAX, he or she had to apply to the airport for a permit
with that airport to pick up unscheduled passengers there.
Operators were paid by the
fare. They collected money from
passengers and submitted reconciliation statements to ATA’s accounting service or
to Red Vans Management Services who would deduct expenses, such as insurance
premiums or phone charges.
RPM did not set a weekly or
monthly schedule for operators. Operators
had no specific time to start or end work; they determined for themselves when
they wanted to work. An operator could
ask another driver to fill in for a fare that he or she had already accepted
from dispatch. Rabanal testified he
never reported to anyone on a daily basis other than to call dispatch to obtain
fare assignments.
3.
The Manual and the Uniform
Standard
In 2008, Diaz says he
received two documents, one entitled “Airport Transportation Association LLC
For Member Information Operations Manual For Doing Business With Prime Time
Shuttle†(Manual), and the other called “Prime Time Uniform Standard†(Uniform Standard). The authorship of the Manual and the Uniform
Standard is disputed, but the contents of those documents is not. The Manual provided the protocol drivers followed
to communicate with dispatch, the order in which fare opportunities were
offered to those drivers, and the related disciplinary procedures. To maintain the driver’s priority in line for
fares, the driver had to regularly inform dispatch of his or her status.
The Manual described
infraction levels and the related points assigned as the consequence for an
infraction. However, Rabanal testified
that the “points†system actually carried no punishment. Asked “[W]hat would happen if you got
points[?] . . . would you get punishment for it[?]†Rabanal
replied, “Nothing at all.â€
According to the Manual,
drivers signified their last run of the day with a drive to his or her “home
sector or an adjacent sector†by “going yellow.†Drivers could only “go yellow†after working 10
hours that day.
As explained, RPM’s
concession agreement with the City required that its drivers’ attire conform to
a “color scheme†in order not to “confuse the public,†a description of which
scheme was on file with the City. Accordingly,
the Uniform Standard that Diaz received regulated clothing and personal
appearance. It required black slacks,
shoes, socks, and belt, a red Prime Time polo or white dress shirt and Prime
Time tie, and optional Prime Time hat and jacket. It also required neatly groomed facial hair,
conservative earrings for women and none for men, no pony tails for men, hair
no longer than the collar, and no driver could wear a necklace or excessively visible
jewelry.
4. Rabanal
Rabanal held a permit from
the PUC to operate as a charter-party carrier.
He could provide services to other companies or to fares he cultivated
on his own. He began driving with RPM in
November 2008 and left in December 2009.
Before commencing work with RPM, Rabanal spent his own money on: a down-payment on the lease of a van and on
automobile insurance, maps and a GPS system, a Blackberry telephone for
communicating with dispatch, a three-day training seminar, and a uniform that
identified him with “Prime Time.â€
Rabanal could use his GPS,
telephone, and van for any purpose when not driving for RPM. Rabanal could have purchased the van from any
source, including a used car lot, as long as it had the required number of
seats. He kept his van at home.
When he started working,
Rabanal filled out and signed the “Airport Transportation Associates, LLC
Application for Membership†and an “Owner-Operator Sub-Carrier Agreementâ€
describing Rabanal’s business relationship with RPM as “non-exclusive,†and
Rabanal as an “independent owner-operator/driver†who was “under no obligation
to accept any dispatch request.†That
agreement also provided Rabanal would control his hours and insure his
van. Rabanal later made an “incident
report†to RPM in which he stated, “ ‘Please remember Im [
Rabanal recorded all his
fares on “daysheets†and kept the cash or credit card payments he received from
customers. Each week, he submitted his
accounting to RPM, who subtracted expenses, the cash payments he had already
received from passengers, and RPM’s share from his account. Rabanal then received his compensation. Rabanal received a 1099 form from RPM but no
W-2 form.
Rabanal could decline fares
offered to him by dispatch. In
deposition, Rabanal was asked: “if you only wanted to work three days on a
given week, you could have chosen to work the three days, it’s just you
wouldn’t have made any money?†Rabanal
responded, “Yeah. And still owe [RPM]
the same amount.â€
Rabanal was not
automatically assigned fares, but first had to call dispatch to request an
assignment. Rabanal alleges that he was
once “locked out†from receiving fares from dispatch, meaning he would not
receive fares on his Blackberry. However,
he acknowledged that happened because he had not paid off all of the fees he
owed to RPM.
5. Diaz
Diaz contacted RPM to
inquire about business opportunities.
After deciding to drive with RPM, Diaz attended a three-day training course
based on policies documented by ATA. He
drove for RPM between June 2007 and November 2008. During that time, Diaz was a member of ATA. He filled out and signed the “Airport
Transportation Associates, LLC Acknowledgement / Declaration†which states, “I,
Jose Diaz, hereby acknowledge that I have been fully informed of the benefits
and responsibilities of membership in [ATA]. . . . [¶] . . . I
declare that I am a ‘member’ of [ATA].â€
Diaz also formed Harmony’s
Transportation, LLC and obtained a separate permit from the PUC to operate as a
charter-party carrier, which permit was not exclusive to RPM. He testified that he formed his company after
an RPM employee told him that doing so would allow him to add additional vans
and drivers and “generate more income†for him.
Diaz did not hire any additional drivers because he decided that “the
business wasn’t there.â€
Like Rabanal, Diaz
understood that he could decide how often and how many hours he wanted to work
and when. Diaz could choose to work only
three days in a week. Thus, Diaz could
decide how much money he would make.
Also like Rabanal, Diaz made investments in his equipment, such as GPS,
a Thomas Guide, a Blackberry telephone, and a van. After he stopped working for RPM, Diaz sold
his van.
Diaz testified that he was
locked out at least three times for refusing business. Once, he was locked out because he went to a
meeting about driving for an RPM competitor.
However, someone at RPM determined that the lockout had been a mistake. In one instance, dispatch assigned him a fare
to Ventura, which he refused, and so he was locked out.
6.
The trial court’s ruling
Based on this showing, the
trial court granted defendants’ summary judgment motions. The court first ruled that Rattan Joea was
not plaintiffs’ employer because Joea was an individual corporate agent acting
within the scope of his agency as the managing member of RPM. Rattan’s wife Parminder Joea had no role at
all in RPM. Turning to RPM’s motion, the
trial court ruled that there were no triable factual issues and so as a matter
of law, Rabanal and Diaz were independent contractors. The court reasoned that “[t]he most important
factor - the right to control the manner and means of accomplishing the result
desired - weighs almost entirely in [RPM’s] favor.†Finally, the court ruled that the undisputed
facts showed that RPM made no misrepresentations of fact with the result the
fraud cause of action failed. After the
trial court entered judgment in favor of all defendants, plaintiffs filed their
timely appeals.
CONTENTIONS
Plaintiffs
contend the trial court erred in granting summary judgment.
DISCUSSION
1.
A
motion for summary judgment is properly granted when there are no triable
issues of material fact and so the moving party is entitled to judgment as a
matter of law. (Code Civ. Proc., § 437c,
subd. (c).) A defendant moving for
summary judgment bears the burden of persuasion that one or more elements of
the cause of action cannot be established or there is a complete defense
thereto. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (
subds. (o) & (p)(2).)
On appeal from a judgment entered
after the grant of summary judgment, we review the trial court’s decision de
novo. (Aguilar, supra, 25
Cal.4th at p. 860.) In so doing, we
follow the same three-step analysis that the trial court applies. (Hawkins
v. Wilton, supra, 144 Cal.App.4th
at pp. 939-940.) First, we identify the
issues framed by the pleadings. Second,
we determine whether the moving party has established facts justifying judgment
in its favor as a matter of law. Third,
if the moving party has carried its initial burden, we determine whether the
opposing party has demonstrated the existence of a triable issue of fact that
is material to the cause of action. (
A triable issue of material fact exists if the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party
opposing the motion in accordance with the applicable standard of proof. (Aguilar,
at p. 850.) We consider all evidence
presented by the parties in connection with the motion -- except that which was
properly excluded -- (Merrill v. Navegar,
Inc. (2001) 26 Cal.4th 465, 476) by strictly construing the moving party’s
evidence and liberally construing the opposing party’s evidence (
1456, 1463), but we may not weigh the evidence or conflicting inferences. (Aguilar,
at p. 856; Code Civ. Proc., § 437c, subd. (c).)
2. The law
of employees versus independent contractors
The
sole issue raised by the pleadings is whether plaintiffs on the one hand are
independent contractors, or on the other hand are employees of RPM who would
thus be entitled to the protections of the wage and hour laws. “A person rendering service for another,
other than as an independent contractor, is presumed to be an employee. (Lab. Code, § 3357.) The alleged employer has the burden of proof
to overcome this presumption.
[Citations.]†(
(2012) 211 Cal.App.4th 726, 737, fn. 4.)
“The determination of employee or independent-contractor status is one
of fact if dependent upon the resolution of disputed evidence or inferences,
and the [trial court’s] decision must be upheld if substantially
supported. [Citation.]†(S. G.
Borello & Sons, Inc. v. Department of
Industrial Relations (1989) 48 Cal.3d 341, 349 (Borello).) When the evidence
is undisputed, the question is one of law.
(Ibid.) Thus, RPM had the burden to demonstrate there
was no triable issue of material fact with the result plaintiffs were
independent contractors as matter of law.
“ ‘[T]he
principal test of an employment relationship is whether the person to whom
service is rendered has the right to control the manner and means of
accomplishing the result desired. . . .’
[Citations.]†(
not the extent of its exercise, gives rise to the employer-employee
relationship. [Citations.]†(Borello,
supra, at pp. 366-367 (dis. opn. of
Kaufman, J.).)
Numerous
secondary factors, derived largely from the Restatement Second of Agency (
not the worker is engaged in a distinct occupation or an independently
established business; (2) whether the worker or the principal supplies the
tools or instrumentalities used in the work, other than tools and
instrumentalities customarily supplied by employees; (3) the method of payment,
whether by time or by the job; (4) whether the work is part of the regular
business of the principal; (5) whether the worker has a substantial investment
in the business other than personal services; (6) whether the worker hires
employees to assist him.
[Citations.]†(
831, 837 (Torres), citing Labor Code,
§ 2750.5, subd. (a); Borello,
listed some additional factors including,
(a) whether the parties believe they are creating the relationship of
employer-employee; (b) the degree of permanence of the working relationship;
(c) the alleged employee’s investment in equipment or materials required for
his task. (Borello, supra, at pp.
351 & 355.)
“
‘Generally, . . . the individual factors cannot be applied mechanically as
separate tests; they are intertwined and their weight depends often on
particular combinations.’ [Citation.]†(Borello,
supra, 48 Cal.3d at p. 351.)
3. Application
Applying
the Borello factors to the undisputed
facts marshaled by RPM, we conclude RPM has carried its burden to show as a
matter of law that Diaz and Rabanal were independent contractors not
employees. This conclusion is demonstrated
by the primary test of an employment relationship, namely “whether the
‘ “person to whom service is rendered has the right to control the manner
and means of accomplishing the result desired. . . .†’ [Citation.]â€
(Ali v. U.S.A. Cab Ltd. (2009)
176 Cal.App.4th 1333, 1347; Borello,
complete or authoritative control must be shown, rather than mere suggestion as
to detail. A worker is an independent
contractor when he or she follows the employer’s desires only in the result of
the work, and not the means by which it is achieved. [Citation.]â€
(Ali v. U.S.A. Cab Ltd., at p.
1347; accord, Millsap v. Federal Express
Corp. (1991) 227 Cal.App.3d 425, 431.)
“[T]he owner may retain a broad general power of supervision
and control as to the results of the work so as to insure satisfactory
performance of the independent contract—including the right to inspect
[citation], the right to make suggestions or recommendations as to details of
the work [citation], the right to prescribe alterations or deviations in the
work [citation] — without changing the relationship from that of owner and
independent contractor . . .†(McDonald
v. Shell Oil Co. (1955) 44 Cal.2d 785, 790.)
Here, it is
undisputed that plaintiffs independently determined how to perform their
jobs. They decided when they wanted to
work and whether they wanted to obtain fares from RPM’s dispatch, or drive
loops, or solicit
fares from other transportation networks such as Expedia, Go Airport, and
Shuttle Fare. Plaintiffs could
ask another driver to fill in for a fare already accepted from dispatch. Moreover, plaintiffs could determine the
order of, and the routes for, pickup and drop-off and need never communicate
these decisions to RPM. If plaintiffs
wanted access to airports other than LAX, they had to apply independently for
that right. There were no set hours or
schedules. RPM’s “participation is
limited to offering the assignments and paying . . . upon
proof of delivery.†(
(1995) 32 Cal.App.4th 188, 202-203 [truck drivers held to be independent contractors where they
made substantial capital investments in their own trucks; were paid on a
job-by-job basis; and company functioned as broker who directed drivers to
customer pick-up and drop-off locations].) In sum, RPM acted as a broker by providing a
service to its customers and its control was limited to the results of
plaintiffs’ work, namely picking up and dropping off passengers, not how those
results were achieved. (
176 Cal.App.4th at p. 1347.)
Moreover,
RPM and plaintiffs operated with the understanding that plaintiffs were
independent contractors. (
Rabanal wrote to RPM: “ ‘Please remember Im [sic]
an Owner-Operator. We have no
employee-employer relationship.’ †Diaz
created his own LLC and obtained a separate permit from the PUC so he could operate a fleet
of vans with drivers who would drive for him.
In Merchants Home Delivery Serv.,
Inc. v. N. L. R. B. (1978) 580 F.2d 966, all but one of the delivery
operators owned their own equipment and were doing business as corporations or
partnerships. All had the right to
employ their own helpers to assist and several paid the relevant employment taxes
themselves. Sometimes they engaged in
business for other companies and all had a substantial investment in their
equipment. (Id. at pp. 974-975.) The
Ninth Circuit concluded that “the entrepreneurial characteristics of the
owner-operators tip decidedly in favor of independent contractor status.†(Id.
at p. 974; accord, Mission Ins. Co. v.
Workers’ Comp. Appeals Bd. (1981) 123 Cal.App.4th 211, 224 (
being in business for himself; registered a fictitious name; and obtained a
separate license from the state were “highly significant factors†supporting
independent contractor finding].)
Likewise here, the entrepreneurial character tips the result in favor of
independent contractor status.
The
support the conclusion plaintiffs were independent contractors. Plaintiffs provided their own tools and
instrumentalities necessary for their transportation services. They owned their own Blackberries and GPSs,
supplied their own clothing, and owned or leased their own vans, paid for their
insurance, and could hold their own PUC permits. Diaz sold his van when he ceased driving for
RPM. Rabanal kept his van at home and
understood he was under no restrictions as to its use. These instruments required thousands
of dollars in investment on the part of plaintiffs. Plaintiffs were paid by the fare, not
hourly, and were issued IRS K-1 and 1099 forms.
Finally, both plaintiffs were entitled to hire employees to
assist them. Diaz incorporated for that
purpose. (Torres, supra, 3 Cal.App.4th at p. 837; citing Lab. Code, §§
2750.5, subd. (a) & 3353; Borello,
supra, 48 Cal.3d at pp. 350-351,
355.) Plaintiffs’ working relationship
with RPM was decidedly not exclusive.
Rabanal’s Owner-Operator Sub-Carrier Agreement stated as much. Plaintiffs could
solicit business for themselves through the internet, and hire their own
employees.
This
case is factually similar to Mission, supra, 123 Cal.App.3d 211, and compels the same result. There, Blankenhorn’s
business entity, EDC, had a subcontract with Morse Signal Devices under which
EDC would send Blankenhorn (or one of his employees) on a service call to
one of Morse’s security alarm subscribers.
(Id. at pp. 214–215.)
Blankenhorn worked no specific hours, and invariably “alone without
supervision;†his work was “inspected only in the event of a specific customer
complaint;†he used his own vehicle and paid his own expenses, including
liability and property damage insurance; for his compensation, once a month he
submitted billings to Morse; he attended lectures and classes at Morse; and, he
wore a shirt with a Morse insignia. (Id.
at pp. 216–217.) The
an independent contractor. (
explained that merely because “Morse prescribed standards of performance and
that [Blankenhorn] on occasion attended lectures or classes . . . was not
evidence that Morse controlled the manner in which the desired result was to
be achieved. ‘The test of “control,†however, means “
Uniform Standard, nor the classes undermine the overwhelming evidence that RPM
did not control the manner in which the desired result - transporting passengers
- was achieved.
In
sum, the undisputed facts here demonstrate that plaintiffs were independent
contractors.
4.
Plaintiffs have not demonstrated a dispute as to any of the above-cited
material facts.
In opposing the summary
judgment motions, plaintiffs attempted to dispute the overwhelming majority of
facts proffered by RPM and the Joeas. Toward
that end, they offered characterizations of
deposition testimony or quotes from the concession agreement or the PUC license
to dispute a fact unrelated to those contracts.
To successfully oppose summary judgment plaintiffs must present
admissible evidence, “ ‘not merely claims or theories’ †(Trujillo v. First
American Registry, Inc. (2007) 157 Cal.App.4th 628, 635.) “ ‘[T]he
opposition to summary judgment will be deemed insufficient when it is
essentially conclusionary, argumentative or based on conjecture and
speculation.’ [Citation.]†(Ibid.) Having reviewed the separate statements and documentation in
support of and opposition to the summary judgment motions, we conclude
plaintiffs have demonstrated no actual dispute as to any of the material
facts. Accordingly, plaintiffs have
failed to successfully oppose the summary judgment motions.
On
appeal, although they purport to point to factual disputes, effectively
plaintiffs challenge the legal conclusions the trial court drew from the
undisputed facts. Plaintiffs contend
that RPM controlled the details of plaintiffs’ work through the dispatch
procedures. They argue they did not
actually have control over their own schedules because dispatch assigned fares to them. Estrada
v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th
1, relied on by plaintiffs is factually inapposite. In concluding that the FedEx drivers were
employees, Estrada observed that
FedEx had “control over every exquisite
detail of the drivers’ performance.â€
(Id. at pp. 11-12, italics
added.) In affirming the trial court’s
findings, the appellate court noted that the drivers’
right to “control their own routes and schedules was illusive because they were
‘constrained by customer pick up and delivery windows contracted by the [FedEx]
sales force.’ †(
assigned work schedule from which they could not deviate. Only upon plaintiffs’ request were they given
pickup locations and times and thus “assigned†passengers. They could “skip†a day of work by requesting
no scheduled fares, or arrive at any time and run loops for unscheduled
passengers. After a fare, each could
decide to request another fare, or could leave for the day. Plaintiffs thus were not “constrained†in the
same manner as the Estrada truck
drivers.
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Plaintiffs also argue that many of
the dispatch requirements, such as “curb coordinators,†running loops, the
color scheme and identification requirements for operators’ vans and uniforms,
and limitations on access to LAX, are evidence of RPM’s control over the
details of plaintiffs’ work. We
disagree. These are all requirements
imposed on RPM by the City through the concession agreement. A putative employer does not exercise
any degree of control merely by imposing requirements mandated by government
regulation. (N.L.R.B. v. Friendly Cab Co., Inc. (9th Cir. 2008) 512 F.3d 1090,
1097, fn. 7, citing Sida of Hawaii, Inc.
v. N. L. R. B. (1975) 512 F.2d 354, 359 (Sida).) In Mission,
Blankenhorn’s wearing of Morse logos, even when combined
with attendance at Morse’s lectures, did not yield an employer/employee
relationship. (Mission, supra, 123 Cal.App.3d at p. 221.) The Uniform Standard also required that a
driver, for example, avoid excessive jewelry and have “neatly groom[]†beards
and mustaches. In Sida, taxi drivers were also required to satisfy personal
appearance standards, but were nonetheless classified as
supra, 512 F.2d at p. 359.)
Next,
plaintiffs contend that RPM exerted control through the points and lock-out
systems. To the contrary. Rabanal acknowledged that “[n]othing at all†happens
when points are assigned. No evidence
was submitted that Diaz knew about or was ever disciplined under a “pointsâ€
system. As for lock-outs, Rabanal only
experienced one, and that was because he had not paid his start-up costs, not
as a punishment for flouting an order from RPM.
Although Diaz claimed he was locked out for attending a training session
to become a driver for an RPM competitor, he acknowledged the lock-out was
immediately withdrawn as it was a misunderstanding on the part of a non-RPM
employee. Diaz also testified he was not
aware of any policies about how or whether a driver would be locked out. These systems do not evince control on the
part of RPM.
Plaintiffs suggest that RPM
required that a driver had to work at least 10 hours each day. However, both Diaz and Rabanal testified that
they understood they could work less than 10 hours, or not at all on a given
day, if they desired.
Plaintiffs next contend the
trial court erred in concluding, where plaintiffs had access to airports other
than LAX, that plaintiffs’ relationship with RPM was not exclusive. They insist that RPM controlled who among its
drivers could have access to other airports.
However, it is undisputed that operators needed to apply on their own to
the other airports for permits before they could enter those airport lots. Rabanal testified he could make loops at Long
Beach airport and Diaz testified he could and did serve passengers at airports
other than LAX.
title="">[3]
Plaintiffs argue that their
subjective belief in their status is not dispositive. “[I]t is well established that a worker’s
belief is one of several secondary
indicia of his or her status.
[Citation.]†(
italics added.) Rabanal signed an
Owner-Operator Sub-Carrier Agreement, which he understood meant
“incident report†reminded RPM that he
was an independent contractor. Diaz
considered himself an independent contractor because he formed an LLC,
Harmony’s Transportation so he could personally hire drivers and generate
additional income.
Finally, plaintiffs argue
that the method of payment, i.e., by fare as opposed to hourly, and the lack of
direct supervisors are “not dispositive†facts. Although secondary factors such as the lack of
direct supervisors or the manner in which plaintiffs were compensated are not
underscore plaintiffs’ status as independent contractors. Even “if one or two
of the individual factors might suggest an employment relationship, summary
judgment is nevertheless proper when . . . all the factors
weighed and considered as a whole establish that [plaintiff] was an independent
contractor and not an employee.†(Arnold
v. Mutual of Omaha Ins. Co. (2011) 202 Cal.App.4th 580, 590.) Here, as analyzed, the overwhelming majority
of factors establish that plaintiffs are independent contractors.
Given
our conclusion that plaintiffs were independent contractors, all of their
causes of action, with the exception of the eighth for fraud, fail because all
are based on plaintiffs’ asserted rights as employees.
5. Plaintiffs
have forfeited any challenge to the trial court’s ruling on the fraud cause of
action and to the portion of the judgment in favor of the Joeas.
The trial court ruled that
plaintiffs failed to dispute that no false representation was knowingly made by
anyone at RPM. It also ruled that Rattan
Joea was not plaintiffs’ employer because he was an individual corporate agent
acting as the managing member of RPM and that Parminder Joea “had no role at
all†in RPM. As plaintiffs do not mention
these rulings in their brief on appeal, any challenge is forfeited. (Badie
v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [when appellant fails
to raise a point, or fails to support a point with reasoned argument and
citations to authority, it is forfeited].)
DISPOSITION
The
judgment is affirmed. Each party to bear
its own costs on appeal.
ALDRICH,
J.
We concur:
KLEIN,
P. J.
CROSKEY,
J.
Code section 3353 reads:
“ ‘Independent contractor’ means any person who renders service for
a specified recompense for a specified result, under the control of his
principal as to the result of his work only and not as to the means by which
such result is accomplished.â€
favor of employment in Estrada v. FedEx
Ground Package System, Inc., supra,
154 Cal.App.4th 1, and are not present here.
The instrumentalities of the
work, e.g., trucks and scanners, were obtained through FedEx-approved providers
and financed through FedEx. Drivers were
paid weekly, many standard employee benefits were provided, and the drivers
worked full time with regular schedules and routes. They worked exclusively for FedEx, and FedEx
controlled the opportunities for profit.
(Id. at p. 12.) Estrada
is simply inapposite.
