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Rafael Nendel Flores, Esq., SBN: 223358
Guillermo Tello, Esq., SBN: 277896
Katie Sharpless, Esq. SBN: 336463
Alejandro Rosa, Esq., SBN: 340410
CLARK HILL LLP
555 South Flower Street, 24th Floor
Los Angeles, CA 90071
Telephone: (213) 891-9100
Facsimile: (213) 488-1178
RNendelFlores@ClarkHill.com
GTello@ClarkHill.com
Ksharpless@Clarkhill.com
ARosa@ClarkHill.com
Attorneys for Defendant
VARSITY TUTORS LLC
SUPERIOR COURT THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
ALEXANDER CHARLES and HENRY Case No.: 19CV347249
MULAK, as individuals,
[Assigned to Hon. Theodore C. Zayner,
Plaintiffs,
Department 19]
vs.
DEFENDANT VARSITY TUTORS
VARSITY TUTORS LLC, LLC’S NOTICE OF MOTION AND
MOTION FOR SUMMARY JUDGMENT
Defendant. OR, IN THE ALTERNATIVE,
ADJUDICATION OF ISSUES
Hearing: October 18, 2023
Time: 1:30 pm
Dept.:
Filed concurrently with: Memorandum of
Points and Authorities; Separate Statement of
Undisputed Material Facts; Declarations of
Rafael Nendel-Flores, Christopher Swenson,
and Nick Morgan; Appendix of Evidence;
Request for Judicial Notice, Proposed Order,
the Documentary Evidence, the depositions
under oath, and the attached exhibits]
Complaint Filed: May 1, 2019
FAC: May 30, 2019
Trial Date: May 13
/
DEFENDANT VARSITY TUTORS LLC’S NOTICE OF MOTION AND MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, ADJUDICATION OF ISSUES
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on October 18, 2023, at 1:30 p.m., as the matter may be heard,
Defendant VARSITY TUTORS LLC (“Varsity”), will and hereby moves this Court and the Honorable
Theodore C. Zavner for an Order granting Varsity’s Motion for Summary Judgment or, in the alternative,
Summary Adjudication of Issues (“Motion”) pursuant to Rules of Civil Procedure as to Plaintiffs’
ALEXANDER CHARLES (“Plaintiff”) First Amended Complaint (“Complaint”). This Motion is based
on the following grounds:
Issue 1: Varsity is entitled to summary adjudication as to the inapplicability of AB 5 (Labor Code
Section 2750) to Plaintiff’s Cause of Action for Penalties under California’s Private Attorney General Act
10 (Labor Code 2698) (“PAGA”);
11 Issue 2: Varsity is entitled to summary adjudication that Borello’s multi factor test controls
12 Plaintiff’s PAGA claims;
13 Issue 3: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an
14 independent contractor under Borello’s multi-factor test because Varsity did not exercise direction and
15 control over Plaintiff;
16 Issue 4: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an
17 Independent contractor under Borello’s multi-factor test because Plaintiff is a highly skilled tutor;
18 Issue 5: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an
19 independent contractor under Borello’s multi-factor test because the parties believed they formed an
20 independent contractor relationship;
21 Issue 6: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an
22 independent contractor under Borello’s multi-factor test because Plaintiff was engaged in his own distinct
23 business;
24 Issue 7: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an
25 independent contractor under Borello’s multi-factor test because Plaintiff, and not Varsity, supplied his
26 own instrumentalities;
27 Issue 8: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an
28 independent contractor under Borello’s multi-factor test because Plaintiff generated tutoring revenue on a
DEFENDANT VARSITY TUTORS LLC’S NOTICE OF MOTION AND MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, ADJUDICATION OF ISSUES
project basis;
Issue 9: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an
independent contractor under Borello’s multi-factor test because each of Plaintiff’s independent contractor
Agreement (“ICA”) with Varsity were of a limited duration;
Issue 10: Varsity is entitled to summary adjudication that it Properly classified Plaintiff as an
Independent contractor under Borello’s multi-factor test because Plaintiff’s contracted tutoring services
were not an integral part of Varsity’s regular business;
Issue 11: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an
independent contractor under Borello’s multi-factor test because neither party could terminate the ICA’s
10 on an at-will basis and both parties had termination rights;
11 Issue 12: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an
12 independent contractor under Borello’s multi-factor test because the California Unemployment Insurance
13 Appeal Board ruled seven separate times that Varsity properly classified Tutors as independent
14 contractors;
15 Issue 13: Even if the ABC test applied, Varsity is entitled to summary adjudication that it properly
16 classified Plaintiff as an independent contractor because Varsity did not exercise direction and control
17 over Plaintiff;
18 Issue 14: Even if the ABC test applied, Varsity is entitled to summary adjudication that it Properly
19 classified Plaintiff as an independent contractor because Plaintiff’s contracted tutoring services were
20 outside the usual course of Varsity’s regular business;
21 Issue 15: Even if the ABC test applied, Varsity is entitled to summary adjudication that it Properly
22 Classified Plaintiff as an independent contractor because Plaintiff was engaged in his own distinct
23 business;
24 Issue 16: Varsity is entitled to summary adjudication as to Plaintiff’s representative PAGA claim
25 because Plaintiff has no evidence to support that any other alleged aggrieved tutor suffered even a single
26 violation alleged in the Complaint.
27 For all the foregoing reasons, Varsity is entitled to summary judgment as to Plaintiff’s Complaint.
28 This Motion is based upon this Notice, the Memorandum of Points and Authorities, Separate
DEFENDANT VARSITY TUTORS LLC’S NOTICE OF MOTION AND MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, ADJUDICATION OF ISSUES
Statement of Undisputed Material Facts, Appendix of Evidence, Declaration of Rafael Nendel-Flores,
Declaration of Chris Swenson, Declaration of Nick Morgan, Request for Judicial Notice, Proposed Order,
the Documentary Evidence, the depositions under oath, the attached exhibits, pleadings, and records of
this action on file, and upon such oral and documentary evidence/arguments as may be presented at the
hearing of this Motion.
Dated: August 2, 2023 CLARK HILL LLP
By:
Rafael Nendel-Flores
Guillermo Tello
10 Katie Sharpless
Alejandro Rosa
11 Attorneys for Defendant
VARSITY TUTORS LLC
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DEFENDANT VARSITY TUTORS LLC’S NOTICE OF MOTION AND MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, ADJUDICATION OF ISSUES
PROOF OF SERVICE
STATE OF CALIFORNIA )
) ss.
COUNTY OF LOS ANGELES )
I declare that:
I am employed in the County of Los Angeles, State of California. I am over the age of 18 years
and not a party to the within action; my business address is 555 South Flower Street, 24th Floor, Los
Angeles, California 90071.
On August 2, 2023, I served the following documents in the manner described below:
DEFENDANT VARSITY TUTORS LLC’S NOTICE OF MOTION AND MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, ADJUDICATION OF ISSUES on the
interested parties in this action by placing the true copies thereof enclosed in a sealed envelope(s) addressed
10 as follows:
11
Steven Tindall, Esq. Attorneys for Plaintiffs
12 Jeffrey Kosbie, Esq. ALEXANDER CHARLES and
Rosanne L. Mah, Esq. HENRY MULAK
13 GIBBS LAW GROUP LLP
1111 Broadway, Suite 2100 Email : smt@classlawgroup.com
14 Oakland, CA 94607 jbk@classlawgroup.com
Telephone: (510) 350-9700 rlm@classlawgroup.com
15 Facsimile: (510) 350-9701
hcb@classlawgroup.com
16
[X] BY ELECTRONIC TRANSMISSION: By emailing a true and correct copy through Clark Hill LLP’s
17 electronic mail system from DVo@clarkhill.com to the email addresses as indicated on the above service
list.
18
[ ] BY OVERNIGHT DELIVERY: I deposited such document(s) in a box or other facility regularly
19 maintained by the overnight service carrier, or delivered such document(s) to a courier or driver
authorized by the overnight service carrier to receive documents, in an envelope or package
20 designated by the overnight service carrier with delivery fees paid or provided for, addressed to the
person(s) served hereunder. (C.C.P. § 1013(d)(e)).
21
[X] (STATE): I declare under penalty of perjury under the laws of the State of California that the
22 above is true and correct.
23 Executed on August 2, 2023, at Los Angeles, California.
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26 Diane Vo
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PROOF OF SERVICE
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Rafael Nendel Flores, Esq., SBN: 223358 Guillermo Tello, Esq., SBN: 277896 Katie Sharpless, Esq. SBN: 336463 Alejandro Rosa, Esq., SBN: 340410 CLARK HILL LLP 555 South Flower Street, 24th Floor Los Angeles, CA 90071 Telephone: (213) 891-9100 Facsimile: (213) 488-1178 RNendelFlores@ClarkHill.com GTello@ClarkHill.com Ksharpless@Clarkhill.com ARosa@ClarkHill.com Attorneys for Defendant VARSITY TUTORS LLC SUPERIOR COURT THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ALEXANDER CHARLES and HENRY Case No.: 19CV347249 MULAK, as individuals, [Assigned to Hon. Theodore C. Zayner, Plaintiffs, Department 19] vs. DEFENDANT VARSITY TUTORS VARSITY TUTORS LLC, LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Defendant. OR, IN THE ALTERNATIVE, ADJUDICATION OF ISSUES Hearing: October 18, 2023 Time: 1:30 pm Dept.: Filed concurrently with: Memorandum of Points and Authorities; Separate Statement of Undisputed Material Facts; Declarations of Rafael Nendel-Flores, Christopher Swenson, and Nick Morgan; Appendix of Evidence; Request for Judicial Notice, Proposed Order, the Documentary Evidence, the depositions under oath, and the attached exhibits] Complaint Filed: May 1, 2019 FAC: May 30, 2019 Trial Date: May 13 / DEFENDANT VARSITY TUTORS LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, ADJUDICATION OF ISSUES TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 18, 2023, at 1:30 p.m., as the matter may be heard, Defendant VARSITY TUTORS LLC (“Varsity”), will and hereby moves this Court and the Honorable Theodore C. Zavner for an Order granting Varsity’s Motion for Summary Judgment or, in the alternative, Summary Adjudication of Issues (“Motion”) pursuant to Rules of Civil Procedure as to Plaintiffs’ ALEXANDER CHARLES (“Plaintiff”) First Amended Complaint (“Complaint”). This Motion is based on the following grounds: Issue 1: Varsity is entitled to summary adjudication as to the inapplicability of AB 5 (Labor Code Section 2750) to Plaintiff’s Cause of Action for Penalties under California’s Private Attorney General Act 10 (Labor Code 2698) (“PAGA”); 11 Issue 2: Varsity is entitled to summary adjudication that Borello’s multi factor test controls 12 Plaintiff’s PAGA claims; 13 Issue 3: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an 14 independent contractor under Borello’s multi-factor test because Varsity did not exercise direction and 15 control over Plaintiff; 16 Issue 4: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an 17 Independent contractor under Borello’s multi-factor test because Plaintiff is a highly skilled tutor; 18 Issue 5: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an 19 independent contractor under Borello’s multi-factor test because the parties believed they formed an 20 independent contractor relationship; 21 Issue 6: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an 22 independent contractor under Borello’s multi-factor test because Plaintiff was engaged in his own distinct 23 business; 24 Issue 7: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an 25 independent contractor under Borello’s multi-factor test because Plaintiff, and not Varsity, supplied his 26 own instrumentalities; 27 Issue 8: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an 28 independent contractor under Borello’s multi-factor test because Plaintiff generated tutoring revenue on a DEFENDANT VARSITY TUTORS LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, ADJUDICATION OF ISSUES project basis; Issue 9: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an independent contractor under Borello’s multi-factor test because each of Plaintiff’s independent contractor Agreement (“ICA”) with Varsity were of a limited duration; Issue 10: Varsity is entitled to summary adjudication that it Properly classified Plaintiff as an Independent contractor under Borello’s multi-factor test because Plaintiff’s contracted tutoring services were not an integral part of Varsity’s regular business; Issue 11: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an independent contractor under Borello’s multi-factor test because neither party could terminate the ICA’s 10 on an at-will basis and both parties had termination rights; 11 Issue 12: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an 12 independent contractor under Borello’s multi-factor test because the California Unemployment Insurance 13 Appeal Board ruled seven separate times that Varsity properly classified Tutors as independent 14 contractors; 15 Issue 13: Even if the ABC test applied, Varsity is entitled to summary adjudication that it properly 16 classified Plaintiff as an independent contractor because Varsity did not exercise direction and control 17 over Plaintiff; 18 Issue 14: Even if the ABC test applied, Varsity is entitled to summary adjudication that it Properly 19 classified Plaintiff as an independent contractor because Plaintiff’s contracted tutoring services were 20 outside the usual course of Varsity’s regular business; 21 Issue 15: Even if the ABC test applied, Varsity is entitled to summary adjudication that it Properly 22 Classified Plaintiff as an independent contractor because Plaintiff was engaged in his own distinct 23 business; 24 Issue 16: Varsity is entitled to summary adjudication as to Plaintiff’s representative PAGA claim 25 because Plaintiff has no evidence to support that any other alleged aggrieved tutor suffered even a single 26 violation alleged in the Complaint. 27 For all the foregoing reasons, Varsity is entitled to summary judgment as to Plaintiff’s Complaint. 28 This Motion is based upon this Notice, the Memorandum of Points and Authorities, Separate DEFENDANT VARSITY TUTORS LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, ADJUDICATION OF ISSUES Statement of Undisputed Material Facts, Appendix of Evidence, Declaration of Rafael Nendel-Flores, Declaration of Chris Swenson, Declaration of Nick Morgan, Request for Judicial Notice, Proposed Order, the Documentary Evidence, the depositions under oath, the attached exhibits, pleadings, and records of this action on file, and upon such oral and documentary evidence/arguments as may be presented at the hearing of this Motion. Dated: August 2, 2023 CLARK HILL LLP By: Rafael Nendel-Flores Guillermo Tello 10 Katie Sharpless Alejandro Rosa 11 Attorneys for Defendant VARSITY TUTORS LLC 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT VARSITY TUTORS LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, ADJUDICATION OF ISSUES PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES ) I declare that: I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the within action; my business address is 555 South Flower Street, 24th Floor, Los Angeles, California 90071. On August 2, 2023, I served the following documents in the manner described below: DEFENDANT VARSITY TUTORS LLC’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, ADJUDICATION OF ISSUES on the interested parties in this action by placing the true copies thereof enclosed in a sealed envelope(s) addressed 10 as follows: 11 Steven Tindall, Esq. Attorneys for Plaintiffs 12 Jeffrey Kosbie, Esq. ALEXANDER CHARLES and Rosanne L. Mah, Esq. HENRY MULAK 13 GIBBS LAW GROUP LLP 1111 Broadway, Suite 2100 Email : smt@classlawgroup.com 14 Oakland, CA 94607 jbk@classlawgroup.com Telephone: (510) 350-9700 rlm@classlawgroup.com 15 Facsimile: (510) 350-9701 hcb@classlawgroup.com 16 [X] BY ELECTRONIC TRANSMISSION: By emailing a true and correct copy through Clark Hill LLP’s 17 electronic mail system from DVo@clarkhill.com to the email addresses as indicated on the above service list. 18 [ ] BY OVERNIGHT DELIVERY: I deposited such document(s) in a box or other facility regularly 19 maintained by the overnight service carrier, or delivered such document(s) to a courier or driver authorized by the overnight service carrier to receive documents, in an envelope or package 20 designated by the overnight service carrier with delivery fees paid or provided for, addressed to the person(s) served hereunder. (C.C.P. § 1013(d)(e)). 21 [X] (STATE): I declare under penalty of perjury under the laws of the State of California that the 22 above is true and correct. 23 Executed on August 2, 2023, at Los Angeles, California. 24 25 26 Diane Vo 27 28 PROOF OF SERVICE