MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION
The Court Denies Defendants, Amplex Group Services and Ronald Prosser?s Motion for Summary Judgment of the First Amended Complaint of Plaintiffs Dipillo and Avalos.? The Court Denies the Defendants? alternative motion for summary adjudication of the 1st through 7th causes of action as to each Plaintiff.? Plaintiffs are ordered to give notice.
Defendants primarily claim that the claims for overtime/minimum wages (1stand 2nd causes of action), for meal and rest period violations (3rd and 4th), for wage statement violations (5th), for waiting time penalties (6th) and the derivative claim under the unfair competition law (7th) — all fail on the same primary ground:? the facts show these ?[P]laintiffs were independent contractors and not employees?.? (See Moving Mem. at 8:18, 9:6, 9:18, 10:2, 10:8).
However, Plaintiffs come forward with evidence at this time to sustain the theory of an employment relationship.? Based on the evidence, a jury could reasonably find that the parties were in the claimed employment relationship.? This would be under the common law test of employment status (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531-32) or under the IWC definitions in its wage orders, which are also based on the common law (see Martinez v. Combs (2010) 49 Cal.4th 35, 63, 64, 67, 71 and 8 CCR ? 11040, subd. 2, ?11010 subd. 2, ?11160 subd. 2).
Plaintiffs support their theory with the following evidence indicating that Defendants retained the right to and controlled the work conditions, hours, and wages:? the work of independent contractors appears to be an integral part of Amplex?s business, and fulfills the core purpose of Amplex, which is to install bathroom fixtures for customers; (Dipillo Decl. ? 3-4, Avalos Decl. ? 3-4; Opp. Prosser Dep. Tr. p. 11-12); to facilitate that work, Amplex coordinated and scheduled the Plaintiffs? travel to and from job locations, made the travel arrangements, paid for the air tickets and paid for rental cars that transported Plaintiffs to and from the job sites (Prosser Dep. p. 30-31, Diab Dep. p. 16-20, 38-40, Dipillo Dep. p. 57-58, Reyes Dep. p. 47, 118-119, Dipillo Decl ? 7, Avalos Decl. ? 7);? Amplex supplied the customers and assignments that Plaintiffs regularly fulfilled, including the order in which the jobs were to be visited or done (Dipillo Decl ?? 5-8, Avalos Decl. ? 5-8, Diab Dep. p. 38-39, Dipillo Dep. p. 123-24, 131-33);? Plaintiffs were required to wear a uniformed shirt with the Defendant?s logo and matching pants (Dipillo Decl. ? 10, Avalos Dec. ? 10, Prosser Dep. Tr. p. 51, 59-60);? Defendants supplied the paperwork and forms that Plaintiffs had to have customers sign off and return to Defendant, after the jobs were completed (Dipillo Decl. ? 9, Avalos Dec. ? 9, Diab Dep. p. 40);? Defendants supplied some although not all of the tools or materials that were used for the installation work (Dipillo Decl. ? 11, Dipillo Dep. p. 53-54, , 55-56, 58; Avalos Dec. ? 11).? And finally, Defendants dictated the rates that independent contractors were paid. (Dipillo Decl. ? 12,13, Dipillo Dep. p. 62, Avalos Decl. ? 13, 15, Avalos Dep. p. 95-96).
This is sufficient to put it before a jury and defeat the motion.
That a supervisor was not immediately watching over the shoulders of Plaintiffs, during the installation process, does not necessitate granting summary judgment.? The trier of fact examines the totality of the relationship, of the business, and work conditions.? See, e.g., Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 6-7, 10.
The evidence does not point to only one conclusion here and therefore the trier of fact will decide the legal relationship.? See California Jury Instruction 3704 (?Existence of Employee Status is Disputed?); Angelotti v. Walt Disney Co. (2011) 192 Cal.App.4th 1394, 1404.
It appears the parties? written agreements are not determinative of their status.? Subjective characterizations do not appear to dictate their legal relationship, as the economic realities and actual conduct are examined.? Generally, labor rights may not be abrogated by voluntary agreement, and this is based on public policy.? Davis v. Farmers Insurance Exchange(2016) 245 Cal.App.4th 1302, 1332 (?Appellant’s testimony appeared to concede that he agreed to at least some of the deductions taken from his compensation over the years.? That fact, however, is not dispositive: ?The one tool that is not available to [the employer] … is an employment agreement by which [it] requires its employees to consent to unlawful deductions from their wages.??); Flowers v. Los Angeles County Metropolitan Transportation Authority (2015) 243 Cal.App.4th 66, 82 (?Under both federal and California law, employees may not agree to waive their entitlement to the minimum wage. . . ?); Estrada, 154 Cal.App.4th 1, 11 (?As noted above, the parties’ label is not dispositive and will be ignored if their actual conduct establishes a different relationship?); S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349-51.
Defendants also seek to dispose of Plaintiff Avalos? claims, on the grounds that he does not have information to create a schedule or total hours that he worked, in order to recover.? (See Moving Brief at 8:20 and Def. Material Fact 97 and 111).? This argument fails because Defendants did not supply the cited evidence.? Pages 45 to 46 of the transcript of his deposition were not found in moving Exhibit 2 nor in reply Exhibit 2.? (See Def. Material Facts 97 and 111).
Assuming the evidence had been produced, it would not defeat the claim.? In the 5th cause of action, Plaintiffs allege that Defendant did not furnish itemized wage statements.? Labor Code ? 226 generally requires employers to furnish semi-monthly wage statements to employees that itemize the total hours worked over each pay period, gross wages earned, net wages earned, applicable hourly rates of pay, and other information.
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If the trier of fact were to conclude here there was an employment relationship, ?[w]here the employer has failed to keep records required by statute, the consequences for such failure should fall on the employer, not the employee.? In such a situation, imprecise evidence by the employeecan provide a sufficient basis for damages.?? Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949, 961 (emphasis added).?? ?Once an employee shows that he performed work for which he was not paid, thefact of damage is certain; the only uncertainty is the amount of damage . . . In such a case, it would be a perversion of justice to deny all relief to the injured person, thereby relieving the wrongdoer from making any restitution for his wrongful act.?? Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 726-27. ???The solution, however, is not to penalize the employee by denying him any recovery on the ground that he is unable to prove the precise extent of uncompensated work…?? Id. at 727, 28.
For these reasons, summary adjudication and summary judgment are Denied.
Plaintiffs? Evidentiary Objections are Overruled.