Independent Contractors vs. Employees in California

Labor Code, section 2750.5 creates a rebuttable presumption that a worker performing services for which a license is required is an employee rather than an independent contractor.

Plaintiff became an Account Executive by signing the GSIE Independent Contractor Agreement on May 29, 2019. Plaintiff was aware at the time of his signing that he would be classified as an independent contractor and not as an employee. At the time of signing, Plaintiff voiced no concern as to his classification as an independent contractor.

The Court essentially held that an employee of an independent contractor (for whom workers’ compensation insurance must be provided) should not be treated differently from an independent contractor himself (even though he would not personally be covered by such insurance).

Varisco additionally observed that an “an independent contractor agreement can properly include an at-will clause giving the parties the right to terminate the agreement. Such a clause does not, in and of itself, change the independent contractor relationship into an employee-employer relationship. If it did, independent contractor arrangements could only be established through agreement which limited the right of a party, or perhaps both parties, to terminate the agreement.

Therefore, per Labor Code §2750.5, Randall Hayes is deemed to have been Moving Defendant’s employee, as opposed to independent contractor, at the time of the accident. The more difficult issue is whether Plaintiff was Randall Hayes’s employee, as opposed to independent contractor, at the time of the accident. The parties appear to agree that, as a matter of law, if Plaintiff was Randall Hayes’s employee, and Randall Hayes was Defendant’s employee, then Plaintiff would be de facto Defendant’s employee.

Dabbs’s theory is solely based on her contention that Plaintiff was an employee of Johnson, who was hired by Dabbs as an independent contractor. (Dem. At 3:5-12.) However, this is not alleged in the complaint, and Dabbs provides no judicially noticeable documents that would support its contention that Johnson was an independent contractor.

A hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but a hirer is liable to an employee of a contractor insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries. (Hooker v.

A hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but a hirer is liable to an employee of a contractor insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries. (Hooker v.

Hetsko was not an employee of DHC/ Dr. Dowairdari but was an independent contractor. Specifically, Defendant submits evidence to indicate: Dr. Hetsko worked for Dr. Dowairdari pursuant to an independent contractor agreement; Dr. Hetsko exercised full control over the relationship between himself and Plaintiff; Dr. Hetsko did not consult with Dr. Dowairdari with regard to Plaintiff’s treatment; and Dr. Hetsko maintained his own malpractice insurance. Separate Statement, ¶¶ 3, 9-11.

Similarly, a hirer of an independent contractor hirer is liable to an employee of an independent contractor insofar as the hirer's provision of unsafe equipment affirmatively contributes to the employee's injury. (McKown v. Walmart Stores (2002) 27 Cal.4th 219, 222 [Wal-Mart liable for requesting independent contractor use a fork-lift without a chain securing the platform to the extension or the forklift; the contractor's employee fell 15' when the platform disengaged from an extension to the fork-lift].)

“Willful misclassification” is defined to mean “avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.” (Lab. Code § 226.8, subd. (i)(4).) The statute therefore makes it unlawful for an employer to “engage in” the act of “voluntarily and knowingly misclassifying [an] individual as an independent contractor.” (Id., § 226.8, subds. (a), (i)(4).)

The sole issue on the instant motion for summary judgment is whether Esquivel was, at the time of the accident, an employee or an independent contractor of Defendant Marine Truck Service. If Esquivel was an employee, then Marine Truck Service may, potentially, be subject to liability. If Esquivel was an independent contractor, then no liability would accrue to Marine Truck Service. See Fonseca v. County of Orange (1972) 28 Cal.App.3d 361. Marine Truck Service relies primarily on Millsap v.

Discussion Independent Contractor versus Employee Plaintiff argues that the Court must determine, as a ‘gateway dispute,’ whether Plaintiff is an independent contractor or an employee. Plaintiff argues this issue is relevant because different arguments regarding unconscionability, discussed below, come in to play depending on whether Plaintiff is an independent contractor or an employee. Defendants argue the arbitrator is empowered to resolve this preliminary issue.

A hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but a hirer is liable to an employee of a contractor insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries. (Hooker v.

In denying Defendant’s motion to dismiss or stay based on forum non conveniens, the Court did not decide whether Plaintiff was an employee or independent contractor or whether there was a violation of Labor Code § 925(a).

Because the only evidence before the Court indicates that Judgment Debtor is an independent contractor rather than an employee, Judgment Debtor's payments cannot be garnished via an earnings withholding order. The claim of exemption – as it relates to the wage garnishment only – is granted in its entirety. No other issue is currently before the Court. Any funds held by the levying officer shall be released to Judgment Debtor.

The question of whether a plaintiff was an employee or an independent contractor are two sides of the same coin. Independent contractor status is not an affirmative defense, nor is it new matter. Instead, the complete relevant factual nature of the parties' relationship determines whether the plaintiffs' status was that of employee or independent contractor. The plaintiffs' prima facie showing does not need to "disprove" independent contractor status.

Privette has to do with whether the hirer of an independent contractor may be liable for an injury to an employee of the independent contractor, based on such concepts as negligent hiring of the independent contractor or negligent supervision or oversight of the independent contractor’s work.

Crt. (1993) 5 Cal.4th 689 and its progeny do not bar liability against a hirer of an independent contractor where the hirer is directly negligent. The controlling case is McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219. There, the court held that the hirer of an independent contractor could be liable where it provided an unsafe forklift with an extension to the independent contractor's employee and the employee was injured.

Because the only evidence before the Court indicates that Judgment Debtor is an independent contractor rather than an employee, Judgment Debtor's payments cannot be garnished via an earnings withholding order. The claim of exemption – as it relates to the wage garnishment only – is granted in its entirety. No other issue is currently before the Court. Any funds held by the levying officer shall be released to Judgment Debtor.

Massimei was an independent contractor. In general terms, under the common law, a worker is an "employee" if the employer has control over the details of the employee's work.

As noted, Plaintiff’s own allegations establish that he was an employee of Pacific Land Builders, Inc., which was in turn an independent contractor hired by Defendant to build a church on certain property; Plaintiff had no direct relationship with Defendant aside from his status as an employee of Defendant’s independent contractor. (FAC ¶ 5; Undisputed Material Facts (“UMF”) Nos. 2-4, 14.) The Privette doctrine therefore bars any vicarious liability that may be asserted against Defendant.

Plaintiff was aware at the time of his signing that he would be classified as an independent contractor and not as an employee. At the time of signing, Plaintiff voiced no concern as to his classification as an independent contractor. Plaintiff later became a Senior Account Executive. Plaintiff supervised and directed others under his supervision as an independent contractor. As an independent contractor, all terms of the Agreement are controlling.

Privette was based on the fact that the contractor who hired the injured employee was an independent contractor, and the employee was employed by the independent contractor.

Yet, under [an] expansive view of the peculiar risk doctrine . . ., the person who hired the independent contractor can, for the same injury-causing conduct of the contractor, be held liable in a tort action for the injuries to the contractor's employee. . . . "The 'principal' who hires an independent contractor should be subject to no greater liability 'than its [independent contractor] agent,' whose exposure for injury to an employee is limited to providing workers' compensation insurance. . . .

The independent contractor defense[2] is inapplicable to this cause of action because employee status is not an element of a cause of action for IIED. C.

On these facts, the trial court granted summary judgment in favor of defendant, concluding the driver was an independent contractor, not an employee. The Millsap court affirmed, concluding the uncontradicted evidence showed the driver was an independent contractor.

(c) That the individual's independent contractor status is bona fide and not a subterfuge to avoid employee status.

Defendants hired non-party Marksmen Building and Design (Marksmen) as an independent contractor to perform remodeling of Defendants home. (UMF 4.) Marksmen hired Plaintiff to perform carpentry work at the subject location, including the installation of crown moldings. (UMF 6-7.) The Privette doctrine is applicable here, as Plaintiff was injured while working as an independent contractor or as an employee of an independent contractor.

The parties purportedly contracted in June 2020, and when doing so, Marzan allegedly represented that she would be an independent contractor, although she had plans to later file suit and claim she was actually an employee of the Cross-Complainants. (CC ¶ 15.) It would appear, then, that whether Marzan was an employee or independent contractor is irrelevant.

In it, ABH alleges that Kusez committed a fraud against ABH by representing to ABH that she was an independent contractor and failing to disclose that she wanted to be paid as an employee of ABH and that therefore the payment terms ABH agreed to with Kusez's agent, which was a company called Elite, had to be changed to reflect her desire to be paid as an ABH employee.

Therefore, the undisputed facts show Plaintiff was an employee as a matter of law under California Labor Code section 2775(b)(1). Disposition Plaintiff Guillermo Alamilla Canuls motion for summary adjudication is granted as to Defendants affirmative defense of Independent Contractor and Not an Employee.

For the first time during this litigation, in connection with the instant motion for attorneys’ fees, Hobbs claims that she is an independent contractor and not an associate or employee of Salek Law Firm. Other than the conflicting declaration of Hobbs, Salek Law Firm has not submitted any evidence to indicate that Hobbs was an independent contractor.

Generally speaking, when an employee of an independent contractor is injured, the injured party cannot sue the party that hired the independent contractor. (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, citing Privette.)

DISCUSSION Triable issues of fact remain regarding whether Plaintiff was an independent contractor or employee of Defendants. The parties do not dispute that the action arises from a fall by Plaintiff, Aaron Young, who was riding his bicycle on Montana Avenue in Santa Monica, CA at the time of the incident. UF 1 The parties dispute whether Defendant, Apostolous Maguliotis (“Maguliotis”), was an employee of the Amazon Defendants, (“collectively, “Amazon”).

Guzman, Defendant is not liable for injuries to an employee of a subcontractor. Privette v. Superior Court (1993) 5 Cal. 4th 689 “held that an employee of a contractor may not sue the hirer of the contractor under either of the alternative versions of the peculiar risk doctrine set forth in sections 413 and 416.” Hooker v. Department of Transportation (2002) 27 Cal. 4th 198, 200-201, The hirer of an independent contractor is not liable for injuries to the employees of the independent contractor.

First Cause of Action - Negligence Plaintiff was not an Independent Contractor “The distinction between an employee and an independent contractor is a significant one: With some exceptions, an employer is vicariously liable for the negligent acts of its employees, but not of its independent contractors.” (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 299.)

Tjaarda Dairy (2001) 25 Cal.4th 1235, 1244 [ Privette/ Toland bars an employee of an independent contractor from bringing a negligent hiring action against the hirer of the contractor].)

Department of Transportation (2002) 27 Cal.4th 198, 202 ["We conclude that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries."].)

There is a Disputed Issue of Material Fact as to Whether Kusez Was an Independent Contractor or an Employee Defendants argue that Kusez was not an employee entitled to waiting time penalties under Labor Code section 203 and instead was an independent contractor. (Motion, p. 6.) In the Courts view, the Defendants failed to meet their initial burden on summary judgment to demonstrate that Kusez was not a print shoot employee.

Employee vs. Independent Contractor; Distinction Not Material A worker's tortious conduct cannot be imputed to the employer on a respondeat superior theory if the worker was the employer's independent contractor rather than an "employee." Zerne, Flahavan, Cheng and Wright, Cal. Prac. Guide: Personal Injury (The Rutter Group 2016) at ¶ 2:830. However, there are many exceptions to this general rule of nonliability for contractors' torts. Id.

The California Supreme Court has held that the duty to ensure a safe workplace may be delegated, based largely on the policy rationale that because workers’ compensation limits the liability of an independent contractor to its employees, “it would be unfair to permit the injured employee to obtain full tort damages from the hirer of the independent contractor—damages that would be unavailable to employees who did not happen to work for a hired contractor.

On Dangerous Condition of Public Property, a City employee is only liable if two conditions exist: The dangerous condition was directly attributable wholly or in substantial part to a negligent or wrongful act of the employee AND the employee had the authority and the funds and other means immediately available to take alternative action which would not have created the dangerous condition. Government Code Section 840.2(a).

Heritage fails to meet its initial burden to establish that Ortega was an independent contractor because it has failed to establish that Dynamex does not apply or its factors have been met. Since Heritage has failed to establish that Ortega is an independent contractor, Heritage’s argument under Privette also fails.

Opposing Argument Defendants contest they ever claimed Plaintiff was an employee. Defendants refer to verified discovery responses, in which Plaintiff stated he was an independent contractor who performed occasional jobs when called. Further, Defendants own discovery responses maintain that Plaintiff was an independent contractor. Defendants contend that allowing Plaintiff to plead that he was an employee is a material change contrary to prior discovery .

Plaintiff’s Status as Employee or Independent Contractor Defendants argue that Plaintiff’s Labor Code claims fail because Plaintiff was an independent contractor and not an employee. Defendant’s arguments, however, rely on a declaration by Khadavi and not the actual allegations in Plaintiff’s complaint. (See Demurrer at 6:7-20 in which Defendant does not cite to one allegation in the complaint, but to Khadavi’s declaration).

Defendant also argues that based on the FAA regulations, Defendant had control over Plaintiff, thereby making her an employee. The most recent articulation of the test to determine if a worker is an employee or an independent contractor was in Dynamex Operations W. v. Superior Court (2018) 4 Cal.4th 903.

Defendant also argues that based on the FAA regulations, Defendant had control over Plaintiff, thereby making her an employee. The most recent articulation of the test to determine if a worker is an employee or an independent contractor was in Dynamex Operations W. v. Superior Court (2018) 4 Cal.4th 903.

Defendant also argues that based on the FAA regulations, Defendant had control over Plaintiff, thereby making her an employee. The most recent articulation of the test to determine if a worker is an employee or an independent contractor was in Dynamex Operations W. v. Superior Court (2018) 4 Cal.4th 903.

Defendant also argues that based on the FAA regulations, Defendant had control over Plaintiff, thereby making her an employee. The most recent articulation of the test to determine if a worker is an employee or an independent contractor was in Dynamex Operations W. v. Superior Court (2018) 4 Cal.4th 903.

Further, [u]nder the plain meaning of section 2750.5, any unlicensed subcontractor is the employee of the general contractor; consequently, as a matter of law, the employee of an unlicensed subcontractor is the employee of the principal contractor. ( Ibid. ) The rule of workers compensation exclusivity, which shields an independent contractor who pays workers compensation insurance premiums from further liability to its employee, should equally apply to the person hiring the contractor because the hirer has

The Court finds that there are triable issues of material fact as to whether Plaintiff was an employee or an independent contractor. Because different inferences may be drawn as to whether Plaintiff is an employee or an independent contractor, this is a question of fact best suited for the jury. (See Brose v. Union-Tribune Publishing Co. (1986) 183 Cal.App.3d 1079, 1081-1082; Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, 1179.)

Plaintiff was an employee of CES Cleaning Contractors (“CES”), an independent contractor, and he was cleaning a bacon slicer at Defendant’s meat processing facility in Manteca on November 5, 2015, when he suffered severe injury to his hand (the blade on the slicer spun for one or two seconds while his hands were near it).

Tjaarda Dairy (2001) 25 Cal.4th 1235, 1244 [ Privette/ Toland bars an employee of an independent contractor from bringing a negligent hiring action against the hirer of the contractor].)

Privette pertains to whether a hirer of an independent contractor is liable to an employee of the independent contractor when they are injured on the job. (Privette v. Superior Court (1993) 5 Cal.4th 689, 702.) While McCarty does apply and discuss Privette, it also discusses general principals of liability of a hirer of an independent contractor.

“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.” (Id.) Here, Defendants have provided evidence that Hidalgo was an independent contractor providing valet services and not an employee of Defendants. (UMF 57.) As such, Defendants are not directly or vicariously liable for the actions of Hidalgo as an employee.

Privette “renders the hirer of an independent contractor immune from liability to the independent contractor’s employee even when the basis for liability was that the hirer failed to provide in the contract that the contractor must take special precautions to avert the risks of work. [Citation.] Privette also bars liability when the injured employee’s theory is that the hirer negligently hired the independent contractor. [Citation.]

This inequity would be even greater when, as is true here, the independent contractor had sole control over the means of performing the work. ( Id . at p. 603.) A threshold question governing the applicability of Privette is whether Woods was Defendants employee or an independent contractor. Whether a common law employer-employee relationship exists turns foremost on the degree of a hirers right to control how the end result is achieved. ( Ayala v. Antelope Valley Newspapers, Inc.

Defendant does not address any specific cause of action but argues instead that the FAC is a sham pleading because to omit allegations in the original complaint that plaintiff was both and independent contractor and employee and alleges only that he was an employee. This argument fails. Allegations in the original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation in the amended pleading.

Superior Court, 5 Cal.4th 689) provides that under the peculiar risk doctrine, a person who hires an independent contractor (here MCC) to perform work that is inherently dangerous cannot be held responsible for tort damages when the independent contractor's negligent performance of the work causes work related injuries to an employee of the independent contractor.

Moving Defendants argue that they are not liable for the negligence of independent contractors, and that Plaintiff was an employee of an independent contractor and cannot establish that any exceptions to the Privette doctrine exist. In Privette v. Superior Court (1993) 5 Cal.4th 689, the California Supreme Court held that when an employee of an independent contractor is injured in the workplace, he or she may not recover tort damages from the hirer of the independent contractor.

Peters was Defendant’s employee or an independent contractor as explained in CACI No. 3700. CACI No. 3704 sets forth the factors for determining whether an employer-employee relationship exists.

Though not dispositive, the Agreement provides: “The renter is a self-employed, independent contractor, not an employee of the owner or Landlord...” Thus, Moving Defendants argue that Mai exercised control over the work provided and acted as an independent contractor at the time of the incident. However, it is the right to control, rather than the amount of control which was exercised, that determines whether an employer-employee relationship exists.

Analysis Defendant argues Plaintiff’s causes of action based on an employer-employee relationship (1 st , 2 nd , 4 th , 10 th , and 11 th COAs) fail because Plaintiff cannot prove he was Defendant’s employee and not its independent contractor.

Under Privette, Manuel’s sole remedy for his injuries as an employee of Mitsubishi is a worker’s compensation claim. Manuel is not entitled to seek relief from Matt, because Manuel was an employee of an independent contractor, Mitsubishi. The exceptions to this general rule do not apply here.

COLLATERAL NEGLIGENCE “The employer of an independent contractor is not liable for the “collateral” or “casual” negligence by an employee of the independent contractor. The Restatement's rule concerning collateral negligence in section 426 reads in relevant part as follows: An employer of an independent contractor . . .

Even though the agreement between Batista and AMS is labeled “independent contractor”, an "agreement characterizing the relationship as one of ‘client- independent contractor’ will be ignored if the parties, by their actual conduct, act like ‘employer-employee.’” (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 877). Here, based on the Borello factors, there is sufficient evidence of employer-employee conduct to create a triable issue.

Even though the agreement between Batista and AMS is labeled “independent contractor”, an "agreement characterizing the relationship as one of ‘client- independent contractor’ will be ignored if the parties, by their actual conduct, act like ‘employer-employee.’” (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 877). Here, based on the Borello factors, there is sufficient evidence of employer-employee conduct to create a triable issue.

In response, Defendant admits that it seeks to discover whether her subsequent employers classified Plaintiff as an independent contractor or employee. However, Defendant contends this is directly relevant, under the “balancing test” articulated in Williams v.

“When … the injuries resulting from an independent contractor’s performance on inherently dangerous work are to an employee of the contractor … the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries. (Privette, supra, 5 Cal.App.4th at p. 702, emphasis added.) Defendant must establish, by admissible evidence, that there was an independent contractor. Defendant has failed to do so.

MOTION FOR SUMMARY JUDGMENT MOTION FOR SUMMARY JUDGMENT TO DECLARE PLAINTIFF AS EMPLOYEE DENIED. TRIABLE ISSUE OF FACT AS TO STATUS OF PLAINTIFF WHETHER INDEPENDENT CONTRACTOR OR EMPLOYEE. (302/AJR/RS)

Further, [u]nder the plain meaning of section 2750.5, any unlicensed subcontractor is the employee of the general contractor; consequently, as a matter of law, the employee of an unlicensed subcontractor is the employee of the principal contractor. ( Neighbours , supra , 217 Cal.App.3d at 330.)

FASI and FAI (collectively Defendants) demur to the two causes of action on the grounds they did not own the Truck; Trujillo was an independent contractor; and they did not ratify Trujillo’s conduct or commit oppression, fraud or malice for purposes of punitive damages. Plaintiffs oppose the motion. Defendants argue that the facts alleged in the complaint clearly show that Trujillo was an independent contractor and not Defendants’ employee.

The California Supreme Court has held that the duty to ensure a safe workplace may be delegated, based largely on the policy rationale that because workers’ compensation limits the liability of an independent contractor to its employees, “it would be unfair to permit the injured employee to obtain full tort damages from the hirer of the independent contractor—damages that would be unavailable to employees who did not happen to work for a hired contractor.

The Court notes Plaintiff’s allegation that misclassification also violates Labor Code §2753, which provides that, “[A] person who, for... consideration, knowingly advises an employer to treat an individual as an independent contractor to avoid employee status for that individual shall be jointly and severally liable with the employer if the individual is found not to be an independent contractor.” (Complaint ¶25.)

Labor Code § 1194 provides for an employee to bring a civil action to recovery the unpaid balance of minimum wage or overtime compensation due. The allegation that Plaintiff was misclassified as an independent contractor rather than an employee is not the substantive basis for the claim, but rather a necessary predicate to becoming entitled to the protections which the Labor Code affords to employees. This is a question of fact which Plaintiff is entitled to litigate.

Labor Code § 1194 provides for an employee to bring a civil action to recovery the unpaid balance of minimum wage or overtime compensation due. The allegation that Plaintiff was misclassified as an independent contractor rather than an employee is not the substantive basis for the claim, but rather a necessary predicate to becoming entitled to the protections which the Labor Code affords to employees. This is a question of fact which Plaintiff is entitled to litigate.

However, now that Walsh is no longer an “employee” of Paradyne, he receives no “wages” from Paradyne to garnish. An independent contractor is not an employee. (See People v. Uber Technologies, Inc. (2020) 56 Cal.App.5th 266, 287.) Because Walsh is no longer an employee of Paradyne, and Premier is no longer capable of garnishing Walsh’s wages, Premier seeks an order assigning all of Walsh’s income, that is earned as an independent contractor for Paradyne, to Premier.

Superior Court (1993) 5 Cal.4th 689, the California Supreme Court held that an employee of an independent contractor performing inherently dangerous work may not seek recovery of tort damages from the person who hired the contractor but did not cause the injuries. ((Id. at p. 702.)

Paragraph 21 of the First Amended Complaint (FAC) alleges that plaintiff was an independent contractor. The court must accept that this allegation as true. Nothing in the FAC or that is judicially noticeable establishes that plaintiff was an employee. The determination whether one is an employee or independent contractor is done on a case by case factual involving the consideration of numerous factors. (S.G. Borello & Sons, Inc. v. State Dept. of Indus Relations (1989) 48 Cal.3d. 341).

Although plaintiff does not expressly allege that he was an independent contractor, nothing in the complaint or that is judicially noticeable establishes that he was an employee. The determination whether a person is an employee or independent contractor is done on a case by case basis involving the consideration of numerous factors. (S.G. Borello & Sons, Inc. v. State Dept. of Industrial Relations (1989) 48 Cal.3d. 341.)

Although plaintiff does not expressly allege that she was an independent contractor, nothing in the complaint or that is judicially noticeable establishes that she was an employee. The determination whether a person is an employee or independent contractor is done on a case by case basis involving the consideration of numerous factors. (S.G. Borello & Sons, Inc. v. State Dept. of Industrial Relations (1989) 48 Cal.3d. 341.)

Labor Code Sec. 226(a) due to his failure to provide an employee with a detachable itemized wage statement containing the required information. The violations concern a single employee, Miguel Carillo Medina ("Medina"). Huynh maintained that he was not required to provide wage statements because Medina was an independent contractor, not an employee. As Huynh notes, in assessing Medina's status (employee vs. independent contractor), and after noting the factors set forth in Borello & Sons v.

Independent Contractor versus Employee Both parties spend a significant amount of time briefing what impact, if any, the fact that Plaintiff is an independent contractor of an independent contractor, rather than an employee of an independent contractor, has on the outcome of the suit. This briefing is all made in relation to whether the Privette doctrine applies to independent contractors of independent contractors, or if it is limited to employees of independent contractors.

Either way, the majority of the factors favor determining that Halbert is an employee as opposed to an independent contractor. Looking at the original (a)-(h) factors, factors (a), (b), (d), (f) and (g) point towards Halbert being an employee. Factors (c) and (e) are not probative in this situation.

The statutes state that a public entity is only liable to the extent the public employee is liable, and a public entity is liable for the acts of an independent contractor to the same extent it is liable for the acts of an employee. This cause of action would not include the acts of Frances, as Frances was not responsible for hiring, supervising, retaining or training himself. No other agent, employee or independent contractor is named as a defendant in this cause of action.

Further, [u]nder the plain meaning of section 2750.5, any unlicensed subcontractor is the employee of the general contractor; consequently, as a matter of law, the employee of an unlicensed subcontractor is the employee of the principal contractor. ( Ibid. ) The rule of workers compensation exclusivity, which shields an independent contractor who pays workers compensation insurance premiums from further liability to its employee, should equally apply to the person hiring the contractor because the hirer has

In addition, as to Defendants arguments that Decedent signed the independent contractor agreement, the agreement provides in relevant part: 5. INDEPENDENT CONTRACTOR. Contractor is an independent contractor and not an employee of the Company, and, unless otherwise stated in this Agreement, is not entitled to any of the benefits normally provided to the employees of the Company. Contractor's helper are not employee [sic] of Sithal [sic] Inc..

Moreover, that act affords “ ‘the exclusive remedy ... for injury or death of an employee’ ” against an employer who obtains workers' compensation insurance coverage. (Id. at p. 697.) In light of that limitation on the independent contractor's liability to its injured employee, Privette concluded that it would be unfair to permit the injured employee to obtain full tort damages from the hirer of the independent contractor.

Such cases answer the question of whether and when the hirer of an independent contractor is liable for negligence as a result of work done by or work involving the independent contractor’s employees or subcontractors. (See, e.g., Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 667-672 (listing cases).) Kinsman itself dealt with the question of what premises liability duty a landowner owes to the employee of an independent contractor when the landowner hired the independent contractor. (Id. at 672-73.)

Haas (1955) 45 Cal.2d 811, 832 [a negligent doctor was one of six anesthesiologists on the staff of the defendant hospital; the evidence failed to show that the plaintiff had notice that the negligent doctor was not an employee, and the plaintiff was not obliged to inquire whether each person at the hospital was an independent contractor].) Accordingly, the motion for summary judgment will be denied.

Again, defendants have shown that Thomas was not their employee and that he was acting as an independent contractor at the time of the accident, so they cannot be held liable for hiring him, or failing to properly train and supervise him.

Medaris responded to written discovery that he was not acting within the course and scope of his independent contractor agreement with My News at the time of the accident. (UMF No. 32.) “‘An employer is generally liable for negligent acts of an employee performed within the scope of the employment, but if an independent contractor rather than master and servant relationship exists, the independent contractor usually is alone liable for his negligent acts.’” (Millsap v.

THE APPLICABILITY OF THE COMMERICAL RULES WAS ADDRESSED IN CASE NUMBER 464469 AS WAS PLAINTIFF'S STATUS AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR. THE COURT ORDERED THE MATTER TO ARBITRATION. PLAINTIFF DID NOT CHALLENGE THE RULING BUT DISMISSED THE COMPLAINT. NOW PLAINTIFF FILES AN ACTION ALLEGING SHE IS AN INDEPENDENT CONTRACTOR AND ASSERTS THE A.A.A. RULES OF COMMERICIAL ARBITRATION ARE PROCEDURALLY AND SUBSTANTIVELY UNCONSCIONABLE.

Triable issue of fact raised regarding the nature of contract, and whether Bonhach was an at will employee or independent contractor. The language of the 6/18/04 email is ambiguous, referencing an "at will" relationship and then refers to plaintiff as a consultant. Both parties' depositions support Bonhach discretion to conduct himself similar to an independent contractor (Bonhach depos pp. 103, 118; Leff depo p. 138). Triable issues of fact whether contract breached and whether damages sustained.

HP Communications brings this motion for summary judgment arguing that it is undisputed that it did not exert sufficient control over the manner that Defendant Rodriguez performed his work to be considered Rodriguez’s employer, and that Camarillo Drilling is an independent subcontractor and not an employee or agent of HP. The test to be applied to determine whether an individual is an employee or independent contractor is the ABC test set forth in Dynamex Operations W. v.

Defendant contends the masseuse, Bozhong Shan aka Michael, was not an employee but an independent contractor. Defendant argues that under California law it is neither directly nor vicariously liable for the alleged sexual battery.

Labor Code section 351 states: “No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron, or deduct any amount from wages due an employee on account of a gratuity, or require an employee to credit the amount, or any part thereof, of a gratuity against and as a part of the wages due the employee from the employer.