Motion for Summary Judgment in WINONA POWERS VS. LEVI STRAUSS & CO., A DELAWARE CORP ET AL| Trellis.Law

On December 18, 2019 a Motion-Secondary was filed involving a dispute between Powers, Winona, and Does 1-25, Inclusive, Levi Strauss & Co., Levi Strauss & Co., A Delaware Corp, for OTHER NON EXEMPT COMPLAINTS in the District Court of San Francisco County.

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1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
2 Including Professional Corporations ELECTRONICALLY
JASON W. KEARNAGHAN, Cal. Bar No. 207707
3 jkearnaghan@sheppardmullin.com F I L E D
Y. DOUGLAS YANG, Cal. Bar No. 307550 Superior Court of California,
County of San Francisco
4 dyang@sheppardmullin.com
333 South Hope Street, 43rd Floor 08/06/2021
Clerk of the Court
5 Los Angeles, California 90071-1422 BY: SANDRA SCHIRO
Telephone: 213.620.1780 Deputy Clerk
6 Facsimile: 213.620.1398

7 AMANDA E. BECKWITH, Cal. Bar No. 312967
Four Embarcadero Center, 17th Floor
8 San Francisco, California 94111-4109
Telephone: 415.434.9100
9 Facsimile: 415.434.3947
Email: abeckwith@sheppardmullin.com
10
Attorneys for Defendant
11 LEVI STRAUSS & CO.
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 IN AND FOR THE COUNTY OF SAN FRANCISCO
14 WINONA POWERS, an individual, LEAD CASE:
Case No.: CGC-19-581624
15 Plaintiff,
CONSOLIDATED FOR ALL PURPOSES
16 v. WITH:
Case No.: CGC-20-584035
17 LEVI STRAUSS & CO., a Delaware Corp.;
and DOES 1-25, inclusive , LEVI STRAUSS & CO.’S
18 MEMORANDUM OF POINTS AND
Defendants. AUTHORITIES IN SUPPORT OF
19 MOTION FOR SUMMARY JUDGMENT
OR, IN THE ALTERNATIVE, MOTION
20 FOR SUMMARY ADJUDICATION

21 Hearing
Date: October 22, 2021
22 Time: 9:30 a.m.
Dept.: 302
23
Lead Case Complaint Filed: December 18,
24 2019
Consolidated Trial Date: December 6, 2021
25
[Filed concurrently with Notice of Motion and
26 Motion, Separate Statement of Undisputed
Material Facts, Appendix of Evidence, Request
27 for Judicial Notice, and Proposed Order]

SMRH:4837-1069-2822.8 LEVI STRAUSS & CO.’S MEMO OF POINTS & AUTHORITIES ISO MSJ/MSA
1 WINONA POWERS, an individual, and other
aggrieved employees, Trailing Case No. CGC-20-584035
2 Consolidated for all purposes with
Plaintiffs, Case No. CGC-19-581624
3
v.
4
LEVI STRAUSS & CO., a Delaware
5 corporation, and DOES 1 through 10,
inclusive,
6
Defendants.
7

9
10

SMRH:4837-1069-2822.8 LEVI STRAUSS & CO.’S MEMO OF POINTS & AUTHORITIES ISO MSJ/MSA
1 TABLE OF CONTENTS
Page
2
I. INTRODUCTION ...................................................................................................... 7
3
II. SUMMARY OF UNDISPUTED MATERIAL FACTS ............................................ 8
4
A. Plaintiff Was Never An Employee Of Levi’s ............................................................8
5
B. Plaintiff’s Contractual Relationship With Her Talent Agent .....................................9
6
C. Plaintiff’s Talent Agency Served As An Intermediary Between Plaintiff
7 And Levi’s ................................................................................................................10

8 D. Plaintiff’s Talent Agency Had Full Control Over Plaintiff And Her
Compensation ...........................................................................................................11
9
III. ARGUMENT AND AUTHORITIES ...................................................................... 12
10
A. Plaintiff’s Claims For Waiting Time Penalties And Unpaid Wages Fail As
11 A Matter Of Law Because Plaintiff Was Never An Employee Of Levi’s ...............12

12 1. Analysis Of The Applicable Borello Factors Establishes That
Plaintiff Was Not An Employee Of Levi’s ..................................................12
13
2. The Dynamex Decision And The ABC Test Are Inapplicable ....................17
14
3. If Adopted, Plaintiff’s Position Would Upend The Entire Modeling
15 Industry, Eviscerate The Talent Agencies Act, And Defy The
Legislature’s Intent .......................................................................................19
16
4. Any Reliance On Smith And Zaremba Is Misplaced ...................................20
17
B. Plaintiff’s Claims For Waiting Time Penalties And Unpaid Wages Fail As
18 A Matter Of Law Because Levi’s Was Not Responsible For Paying Plaintiff
Wages .......................................................................................................................21
19
1. Plaintiff Cannot Obtain Waiting Time Penalties Because She Was
20 Not An Employee Of Levi’s ........................................................................21

21 2. Plaintiff’s Claim For Unpaid Wages Fails Because Plaintiff Was
Paid All Monies Due And Owing To Her By LMA ....................................22
22
C. Plaintiff’s Claims For Waiting Time Penalties Fail As A Matter Of Law
23 Because Any Failure To Timely Pay Plaintiff Was Not Willful..............................23

24 D. Plaintiff’s PAGA Claim Fails Because She Is Not An “Aggrieved
Employee” And Therefore Does Not Have Standing To Pursue A PAGA
25 Claim Against Levi’s ...............................................................................................25

26 IV. CONCLUSION ........................................................................................................ 26
27

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SMRH:4837-1069-2822.8 LEVI STRAUSS & CO.’S MEMO OF POINTS & AUTHORITIES ISO MSJ/MSA
1

2 TABLE OF AUTHORITIES

3 Page(s)
Cases
4
Absher v. AutoZone, Inc.
5
164 Cal. App. 4th 332 (2008) .....................................................................................................17
6
Amalgamated Transit Union, Local 1756, AFL–CIO v. Superior Court
7 46 Cal. 4th 993 (2009)................................................................................................................24

8 Amaral v. Cintas Corp.
163 Cal.App.4th 1157 (2008) ...............................................................................................22, 24
9
Arnold v. Mut. of Omaha Ins. Co.
10 202 Cal. App. 4th 580 (2011) .....................................................................................................13
11
Barnhill v. Robert Saunders & Co.
12 125 Cal. App.3d 1 (1981) ...........................................................................................................22

13 Beaumont-Jacques v. Farmers Grp., Inc.
217 Cal. App. 4th 1138 (2013) .............................................................................................15, 23
14
Cristler v. Exp. Messenger Sys., Inc.
15 171 Cal. App. 4th 72 (2009) .................................................................................................11, 22
16
Dynamex Operations W., Inc. v. Superior Court
17 4 Cal. 5th 903 (2018)............................................................................................................16, 17

18 FEI Enterprises, Inc. v. Yoon
194 Cal. App. 4th 790 (2011) .....................................................................................................23
19
Ferguson v. Workers’ Comp. Appeals Bd.
20 33 Cal. App. 4th 1613 (1995) .....................................................................................................17
21 Garcia v. Border Transp. Grp., LLC
22 28 Cal. App. 5th 558 (2018) .................................................................................................16, 17

23 Germann v. Workers’ Comp. Appeals Bd.
123 Cal. App. 3d 776 (1981) ......................................................................................................13
24
Gikas v. Zolin
25 6 Cal. 4th 841 (1993)..................................................................................................................17
26 Gonzales v. San Gabriel Transit, Inc.
40 Cal. App. 5th 1131 (2019) .....................................................................................................17
27

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SMRH:4837-1069-2822.8 LEVI STRAUSS & CO.’S MEMO OF POINTS & AUTHORITIES ISO MSJ/MSA
1 Hennighan v. Insphere Ins. Sols., Inc.
38 F. Supp. 3d 1083 (N.D. Cal. 2014) .......................................................................................14
2
Hill v. Walmart Inc.
3 No. 19-CV-05436-JST, 2021 WL 342574 (N.D. Cal. Jan. 14, 2021) ........................................22
4
Lilienthal & Fowler v. Superior Court
5 12 Cal. App. 4th 1848 (1993) .....................................................................................................22

6 Maldonado v. Epsilon Plastics, Inc.
22 Cal. App. 5th 1308 (2018) .........................................................................................22, 23, 24
7
Marathon Entm’t, Inc. v. Blasi
8 42 Cal. 4th 974 (2008)................................................................................................................18
9 Price v. Starbucks Corp.
10 192 Cal. App. 4th 1136 (2011) ...................................................................................................24

11 S.G. Borello & Sons, Inc. v. Dep’t of Indus’ Relations
48 Cal. 3d 341 (1989) ...........................................................11, 12, 13, 15, 16, 17, 18, 19, 20, 23
12
Smith v. Superior Court
13 39 Cal. 4th 77 (2006)..................................................................................................................19
14 Tan v. GrubHub, Inc.
15 171 F. Supp. 3d 998 (N.D. Cal. 2016) .......................................................................................24

16 Vazquez v. Jan-Pro Franchising Int'l, Inc.
10 Cal. 5th 944 (2021)................................................................................................................17
17
Whitworth v. SolarCity Corp.
18 336 F. Supp. 3d 1119 (N.D. Cal. 2018) .....................................................................................24
19 Zaremba v. Miller
113 Cal. App. 3d Supp. 1 (1980)..........................................................................................19, 20
20

21 Statutes

22 Lab. Code § 200(a) .....................................................................................................................11, 21

23 Lab. Code § 201 .........................................................................................................................11, 19

24 Lab. Code § 203 ...............................................................................................6, 7, 11, 16, 21, 22, 23
25 Lab. Code § 203(a) .............................................................................................................................7
26 Lab. Code §§ 1700-1700.47 .............................................................................................................21
27 Lab. Code § 1700.23 ..........................................................................................................................9
28

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SMRH:4837-1069-2822.8 LEVI STRAUSS & CO.’S MEMO OF POINTS & AUTHORITIES ISO MSJ/MSA
1 Lab. Code § 1700.25(a) ....................................................................................................................18

2 Lab. Code § 1700.33 ........................................................................................................................18
3 Lab. Code § 1700.35 ........................................................................................................................18
4 Lab. Code § 1700.44 ........................................................................................................................18
5
Lab. Code § 1723 .............................................................................................................................18
6
Lab. Code § 2699(c) .........................................................................................................................24
7
Lab. Code § 2750.3 ..........................................................................................................................16
8
Lab. Code § 2775 .......................................................................................................................16, 17
9
Lab. Code § 2785 ............................................................................................................................17
10
Lab. Code §§ 2785(a)-(b) .................................................................................................................17
11

12 Lab. Code § 2785(c) .........................................................................................................................17

13 Lab. Code § 3353 .............................................................................................................................12

14 Lab. Code § l 700.4(b) .....................................................................................................................18

15 Other Authorities

16 Assembly Bill 5 (2019) ....................................................................................................................16
17 Assembly Bill 2257 (2020) ........................................................................................................16, 17
18

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SMRH:4837-1069-2822.8 LEVI STRAUSS & CO.’S MEMO OF POINTS & AUTHORITIES ISO MSJ/MSA
1 I. INTRODUCTION

2 For nearly two decades, Plaintiff Winona Powers (“Plaintiff”) was a freelance model who

3 provided services to a multitude of clients. Whether to existing clients, prospective clients, or the

4 government, Plaintiff has always held herself out to be an independent contractor. As an

5 independent contractor, Plaintiff has also always had the ability to freely accept or decline

6 modeling assignments, and has always worked with talent agencies of her choosing to facilitate

7 the sourcing of assignments and payments to her for services provided.

8 Despite years of representing to the industry that she was a professional freelance model,

9 and despite taking advantage of the personal, professional, and tax benefits that come with being
10 an independent contractor, Plaintiff now avers for the first time that she was purportedly
11 misclassified and should have been designated an employee of each and every client for whom she
12 provided modeling services. Plaintiff’s current target is Levi Strauss & Co. (“Levi’s”) for which
13 she provided modeling services between 2017 and 2019. According to Plaintiff, because she was
14 allegedly an employee of Levi’s whenever she provided modeling services, and because her talent
15 agency – Look Model Agency (“LMA”) – did not render payment to her on the same day that she
16 modeled, Levi’s should pay her a windfall of more than a hundred thousand dollars in waiting
17 time penalties under Labor Code § 203 (“Section 203”). Plaintiff’s about-face position not only
18 offends the conscience, it is wholly unsupported by Plaintiff’s deposition testimony and the law.
19 An analysis of Plaintiff’s claims, as demonstrated herein, proves to be a labyrinth with no
20 exit. The inescapable conclusion is that Plaintiff simply does not have any competent evidence to
21 support her claims, all of which fail as a matter of law. Critically, the undisputed facts establish
22 that Plaintiff was never an employee of Levi’s. Rather, Plaintiff had a contractual relationship
23 with LMA, which in turn had a relationship with Levi’s. There was no relationship between
24 Plaintiff and Levi’s. Indeed, it was LMA that, in accordance with its written agreements with
25 Plaintiff, invoiced Levi’s for the modeling services performed by Plaintiff, and LMA was solely
26 responsible for paying Plaintiff for her services (as well as the numerous other clients for whom
27 Plaintiff provided modeling services during the same time period in which she modeled for
28 Levi’s). This arrangement was expressly blessed by the Labor Commissioner, such that any attack

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SMRH:4837-1069-2822.8 LEVI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MSJ/MSA
1 by Plaintiff on her status as an independent contractor is an attack on the entire statutory scheme

2 enforced by the Labor Commissioner to regulate the modeling industry. Levi’s cannot, as a matter

3 of law, be found liable for willfully failing to timely pay Plaintiff wages under Section 203, which

4 on its face applies only to employers of employees. Labor Code § 203(a) (“If an employer

5 willfully fails to pay … any wages of an employee who is discharged or who quits”). Plaintiff was

6 not a Levi’s employee, and therefore Levi’s cannot be liable for any alleged failure to pay wages. 1

7 Even if the Court were to find that Plaintiff was an employee of Levi’s (which she was

8 not), Levi’s still cannot be liable for Section 203 penalties because there is a good faith dispute

9 rooted in the law over Plaintiff’s classification and the exclusive responsibility of her contracted
10 talent agency (LMA) to pay Plaintiff. As such, any alleged failure by Levi’s to timely pay
11 Plaintiff was not willful. Plaintiff’s claims cannot survive summary judgment.
12 II. SUMMARY OF UNDISPUTED MATERIAL FACTS

13 A. Plaintiff Was Never An Employee Of Levi’s

14 For the entirety of her nearly 20-year freelance modeling career, Plaintiff has held herself

15 out as an “advertising contractor” and a self-employed model. 2 (UF 5). Plaintiff’s representations

16 to the public made, and continue to make, a calculated distinction between her work for bona fide

17 employers and her work as an “advertising contractor.” (UF 6). For example, on her LinkedIn

18 profile Plaintiff represents that she previously worked as an Assistant Manager for a bank:

25 1
Plaintiff also lacks standing to pursue a claim under the Private Attorneys General Act of 2004
(“PAGA”).
26
2
(Plaintiff’s Depo. Tr. (“Pla. Dep.”), 37:4-7, 231:24-232:3). All referenced deposition testimony
27 and exhibits are attached to the Declaration of Y. Douglas Yang, which is located in the
Appendix of Evidence.
28

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SMRH:4837-1069-2822.8 LEVI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MSJ/MSA
1 (UF 6). When describing her modeling work, however, Plaintiff did not claim that she was

2 employed by any of the clients, including Levi’s, for whom she provided modeling services. She

3 instead asserted she was “self employed” and identified a roster of current and former modeling

4 agencies with which she has had a relationship:

9
10

11 (UF 6). In or about June 2016, Plaintiff entered into various written agreements with LMA – her
12 third talent agency. (Pla. Dep., 37:4-7, 37:19-38:6; UF 3). At the time she began her contract
13 with LMA, Plaintiff was an industry veteran with approximately 14 years of professional
14 modeling experience. (UF 4). LMA was responsible for sourcing Plaintiff’s modeling
15 assignments from various clients, which Plaintiff could freely accept or decline. (UFs 7-8).
16 Plaintiff alleges that she has performed modeling services on a freelance basis for Levi’s, a
17 San Francisco-based apparel brand that designs, develops, manufactures and sells lifestyle
18 clothing, on 12 occasions from 2017 to 2019. (UF 1; see also Lead Complaint). Plaintiff alleges
19 she was a “fit model” for Levi’s; a fit model is someone who has certain measurements that fit
20 clothing so that manufacturers and potential buyers are able to view apparel product on a live
21 person instead of a mannequin. (UF 20; Pla. Dep., 80:10-13, 84:8-10, 81:7-9, 16-19).
22 B. Plaintiff’s Contractual Relationship With Her Talent Agent
23 Plaintiff was represented by LMA during the entire time period in which she modeled for
24 Levi’s. (UF 2). LMA negotiated all of Plaintiff’s rates for the “fit sessions.” (UF 26). Plaintiff
25 was never directly involved in the negotiations of the LMA rate to model for Levi’s. (UF 27).
26 LMA entered into agreements with Levi’s, requiring Levi’s to remit payments for Plaintiff’s
27 modeling services exclusively to LMA, at the rates LMA negotiated. (UF 28). The contractual
28 agreement entered into by Plaintiff with LMA empowered LMA to serve as Plaintiff’s agent. (UF

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SMRH:4837-1069-2822.8 LEVI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MSJ/MSA
1 28). Like every other agreement between a talent agency and a California-based model, Plaintiff’s

2 agreements and payment terms with LMA were approved by the Labor Commissioner pursuant to

3 Labor Code § 1700.23. (UF 3). This approval included an “independent contractor agreement”

4 that Plaintiff signed, which expressly averred that Plaintiff “control[led] the manner and means by

5 which [Plaintiff] perform[ed] each Engagement. . ..” (UF 3). Under the contract, LMA, not

6 Levi’s, was responsible for rendering payment to Plaintiff for her services – an industry practice

7 for models. (UF 47). Plaintiff never received any direct payments or tax forms from Levi’s or

8 other clients. (UF 16). The only tax forms she received in connection with her modeling services

9 were issued by LMA. (UF 17). Notably, during the entire time period in which she provided
10 modeling services to Levi’s, Plaintiff identified herself as self-employed on her federal and state
11 tax returns. (UF 18). Whenever Plaintiff incurred any expenses associated with her modeling
12 work, she kept detailed records of those expenses, reported those expenses on her tax returns as
13 business expenses, and sought to receive tax credits for those reported expenses. (UF 19).
14 Plaintiff never entered into any agreement for services with Levi’s, nor did she ever submit
15 an employment application to Levi’s. (UFs 9-10). At no time did Plaintiff receive an employee
16 handbook, employment policies, performance reviews, or disciplinary action from Levi’s. (UFs
17 11-12, 14-15). She did not ever attend a new hire orientation for Levi’s employees. (UF 13).
18 C. Plaintiff’s Talent Agency Served As An Intermediary Between Plaintiff And Levi’s

19 Levi’s scheduled fit sessions by advising the various talent agencies it contracted with of

20 the dates and locations of the fit sessions; the talent agencies would then select available fit

21 models. (UF 25). All communications concerning pertinent information about the fit sessions

22 were communicated directly from Levi’s to the talent agencies. (UF 29). Talent agencies – like

23 LMA – would then provide models – like Plaintiff – with details of the fit sessions, including

24 changes to the schedule or cancellations, as well as any requests (e.g., that models bring their own

25 shoes or have natural-looking makeup on). (UFs 30-31). Except for jeans or other clothing being

26 modeled during a fit session, Levi’s did not provide any shoes, makeup, tools, equipment or other

27 materials used by Plaintiff at the fit sessions. (UF 32). Plaintiff was never denied, or sent home

28 from, a modeling assignment with Levi’s. (UF 33). As a fit model, Plaintiff would have sole

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SMRH:4837-1069-2822.8 LEVI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MSJ/MSA
1 control over whether she could maintain her physique and measurements. (UF 34). If Plaintiff or

2 any other model could not attend a fit session, Levi’s would simply use the services of another fit

3 model with similar body measurements at that fit session. (UF 35).

4 Whenever Plaintiff arrived for a fit session, she was required to obtain and wear a visitor’s

5 badge – she was never issued employee credentials. (UF 21). Fit sessions generally involved

6 third-party buyers of Levi’s merchandise. (UF 22). While in a fit session, Plaintiff would interact

7 with these third-party buyers, including discussing her opinions of the product she was modeling,

8 and by taking direction from the third-party buyers as where to walk and poses to adopt. (UF 23). 3

9 D. Plaintiff’s Talent Agency Had Full Control Over Plaintiff And Her Compensation
10 Following the completion of each fit session, Plaintiff prepared invoices and submitted

11 them to LMA for payment. (UF 36). Plaintiff does not recall how much time elapsed before she

12 submitted her invoices to LMA. (UF 39). LMA paid Plaintiff certain minimum half-day or full-

13 day rates, such that Plaintiff was paid for a half or full day even if she worked just a fraction of the

14 half-day or full-day allotment. (UF 37). These payments were made after LMA deducted an

15 industry-standard 20 percent commission and all expenses LMA incurred in representing Plaintiff.

16 (UF 38). LMA would alert Plaintiff of its payments to her via electronic notification. (UF 40).

17 Just as a contractor would charge a late cancellation fee, when Levi’s cancelled a fit session with a

18 few days’ notice, LMA would still charge – and Plaintiff was paid – the minimum half or full-day

19 rates, even though she did not provide any modeling services. 4 (UF 41).

20 Notwithstanding Plaintiff’s newfound and apparent displeasure with the pace at which

21 LMA rendered payment to her, she never complained to Levi’s regarding alleged untimely

22 payments. (UF 42). Indeed, Plaintiff never contacted Levi’s to obtain updates on the status of

23 payments for her modeling services. (UF 43). Plaintiff has never ascertained or even inquired

24 why LMA allegedly could not or did not pay her in a timely manner. (UF 43). Levi’s did not

25
3
Plaintiff testified that she does not recall the details of any of the fit sessions she participated in,
26 including who was present at those sessions or what directions she received, if any, at the fit
sessions. (UF 24).
27
4
Such cancellations occurred on November 2 and 3, 2017, and September 24, 2018. (UF 41).
28

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SMRH:4837-1069-2822.8 LEVI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MSJ/MSA
1 have any control or influence over Plaintiff’s relationship with LMA, the commissions or

2 deductions LMA took, or the amounts Plaintiff ultimately received from LMA. (UF 48).

3 Levi’s never intended to create or believed it had created an employer-employee

4 relationship with Plaintiff – a relationship that runs counter to longstanding modeling industry

5 practices. (UF 49). Plaintiff’s own conduct showed that she too did not intend to create an

6 employer-employee relationship with Levi’s. In addition to holding herself out to the world as a

7 freelance model and claiming tax credits for expenses she incurred while modeling, Plaintiff

8 performed modeling services for at least 10 other companies during the same time period in

9 which she provided services to Levi’s. (UF 46). When Plaintiff decided to stop providing
10 modeling services to Levi’s, she informed LMA – not Levi’s – of her decision. (UF 45).
11 III. ARGUMENT AND AUTHORITIES

12 A. Plaintiff’s Claims For Waiting Time Penalties And Unpaid Wages Fail As A Matter
Of Law Because Plaintiff Was Never An Employee Of Levi’s
13

14 Wages are only owed to employees of the employer. Lab. Code §§ 200(a), 201. Similarly,

15 waiting time penalties based upon an alleged failure to pay wages upon termination of the

16 employment relationship may be awarded only if an employer willfully fails to pay all wages due

17 to an employee upon separation. Lab. Code § 203. Because the undisputed evidence establishes

18 that Levi’s was never Plaintiff’s employer and was never responsible to pay Plaintiff anything

19 directly, Plaintiff’s unpaid wages and waiting time penalties claims cannot survive. 5 (UFs 1-19,

20 21, 23, 25-38, 41-49). Plaintiff’s absurd claims must be rejected as a matter of law.

21 1. Analysis Of The Applicable Borello Factors Establishes That Plaintiff Was Not
An Employee Of Levi’s
22

23 It is well settled that California’s wage and hour laws apply only to employees, not

24 independent contractors. Cristler v. Exp. Messenger Sys., Inc., 171 Cal. App. 4th 72, 77, 83-84

25 (2009) (“The Labor Code . . . specifically excludes independent contractor[s]”). For decades,

26 California courts have used the Borello test to decide if a worker is an employee or an independent
5
27 Each of Plaintiff’s 12 individual causes of action pertains to a separate fit model session
allegedly conducted between 2017 and 2019. (See, generally, Lead Complaint).
28

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SMRH:4837-1069-2822.8 LEVI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MSJ/MSA
1 contractor. See S.G. Borello & Sons, Inc. v. Dep’t of Indus’ Relations, 48 Cal. 3d 341 (1989).

2 The undisputed evidence here makes clear that, under the applicable Borello test for employment

3 classification, Plaintiff was not employed by Levi’s. Moreover, pursuant to the contracts with

4 Plaintiff’s agents at LMA, all amounts billed for Plaintiff’s freelance services were paid solely to

5 LMA, who billed Levi’s for Plaintiff’s fees. (UFs 16, 28). LMA, in turn, was exclusively

6 responsible to remit amounts to Plaintiff after making various deductions for industry-standard

7 commissions and expenses, and to issue tax forms to Plaintiff. (UFs 17, 36-40, 47).

8 Under the Borello standard, the principal test is whether the putative employer has “the

9 right to control the manner and means of accomplishing the result desired.” Borello, 48 Cal. 3d
10 at 404 (emphasis added). Labor Code § 3353 defines an independent contractor as one who

11 “renders a service for a specified recompense for a specified result, under the control of his

12 principal as to the result of his work only and not as to the means by which such result is

13 accomplished.” (Emphasis added.)

14 As a fit model, Plaintiff would have sole control over whether she could maintain her body

15 type and measurements. (UF 34). Indeed, it should be self-evident that Levi’s could not control

16 Plaintiff’s measurements and body silhouette; Levi’s control was limited to obtaining fit models

17 that satisfied its sizing requirements. Other than setting the start time and location of the fit

18 session (like a homeowner telling a plumber where the water leak is and what time the repair

19 could start), Levi’s exercised little to no control over the manner and means by which Plaintiff

20 performed her modeling services at the fit sessions. As Plaintiff conceded at deposition, the sole

21 source of information she received concerning fit sessions came from LMA. (UFs 30-31). LMA

22 would inform Plaintiff of the location, time, and estimated duration of the fit sessions, as well as

23 any changes to the schedule or cancellations. (Id.). While the fit sessions were conducted at a

24 Levi’s facility, Plaintiff testified that the fit sessions involved third-party buyers of Levi’s

25 merchandise, and that she would receive directions from these third-party individuals concerning

26 poses she should adopt or where she should walk. (UFs 22-23). At most, Levi’s asked that its fit

27 models appeared presentable and decided what clothing they modeled – going only to the result

28 rather than the means by which such result was accomplished. Critically, unlike an employer,

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SMRH:4837-1069-2822.8 LEVI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MSJ/MSA
1 Levi’s did not manage her performance; it did not provide her with reviews, corrective actions, or

2 send her home from an assignment because of her performance. (UFs 15, 33).

3 Borello held that a number of other factors should also be evaluated, including the alleged

4 employee’s investment in equipment or materials, or her employment of helpers, whether the

5 service rendered requires a special skill, the degree of permanence of the working relationship,

6 whether the service rendered is an integral part of the alleged employer’s business, the method of

7 payment, whether by time or by the job, and whether the parties believed they were in an

8 employee-employer relationship. Borello, 48 Cal. 3d at 351, 354-55. “Generally, ... the

9 individual factors cannot be applied mechanically as separate tests; they are intertwined and their
10 weight depends often on particular combinations.” Germann v. Workers’ Comp. Appeals Bd.,
11 123 Cal. App. 3d 776, 783 (1981). “Even if one or two of the individual factors might suggest an

12 employment relationship, summary judgment is nevertheless proper when . . . all the factors

13 weighed and considered as a whole establish that [the individual] was an independent contractor

14 and not an employee.” Arnold v. Mut. of Omaha Ins. Co., 202 Cal. App. 4th 580, 590 (2011).

15 An analysis of these additional Borello factors militates heavily against classifying

16 Plaintiff as an employee of Levi’s.

17 • Plaintiff, as a model, was engaged for many years in an occupation distinct and entirely
18 separate from the primary business of Levi’s, which is designing, developing,
19 manufacturing, and selling lifestyle clothing. (UF 1).
20 • In performing her services, Plaintiff relied entirely on her talent agency – LMA – to secure
21 freelance modeling work, and LMA, not Levi’s, arranged for her bookings, expenses,

22 compensation, and any tax withholdings. (UFs 2, 7-8, 16, 17, 25-31, 36-41, 45, 47).

23 Plaintiff was free to accept or decline assignments as she desired, and to decide which

24 clients she wished to provide modeling services to. (UFs 7-8).

25 • Plaintiff rendered a service that required a special skillset (to m

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Document Filed Date

August 06, 2021

Case Filing Date

December 18, 2019

County

Parties

BECKWITH, AMANDA E. Attorneys for Defendants
BECKWITH, AMANDA E. Attorney for the Defendant
DOES 1-25, INCLUSIVE Defendant
DOES 1 THROUGH 10, INCLUSIVE Defendant (consolidated Case)
KEARNAGHAN, JASON W. Attorneys for Defendants
KEARNAGHAN, JASON W. Attorney for the Defendant
LEVI STRAUSS & CO. Defendant
LEVI STRAUSS & CO. Defendant (consolidated Case)
LEVI STRAUSS & CO., A DELAWARE CORP Defendant
LEVI STRAUSS & CO., A DELAWARE CORPORATION Defendant (consolidated Case)
LOW, JOSEPH H. Attorney
LOW, JOSEPH H. Attorney for the Plaintiff
POWERS, WINONA Plaintiff
POWERS, WINONA Plaintiff (consolidated Case)
Bruce Highman Attorney
Yongqing Yang Attorneys for Defendants
Roger Muse Attorneys for Plaintiffs
Y. Yang Attorney

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Motion-Secondary: WINONA POWERS VS. LEVI STRAUSS & CO., A DELAWARE CORP ET AL

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