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Rafael G. Nendel-Flores, Esq., SBN 223358
Guillermo Tello, Esq., SBN 277896
Katie Sharpless, Esq. SBN 335463
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 OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
ALEXANDER CHARLES and HENRY Case No. 19CV347249
MULAK, as individuals,
DEFENDANT VARSITY TUTOR’S
Plaintiff, STATEMENT OF UNDISPUTED
MATERIAL FACTS IN SUPPORT
OF MOTION FOR SUMMARY
JUDGMENT OR, IN THE
VARSITY TUTORS LLC, ALTERNATIVE SUMMARY
ADJUDICATION OF ISSUES
Defendant.
Hearing: October 18, 2023
Time: 1:30 pm
Dept.:
Assigned to: Hon. Theodore C. Zavner
Complaint Filed: May 1, 2019
FAC: May 30, 2019
Trial Date: May 13
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN:
Pursuant to Code of Civil Procedure section 437c(b)(1) and California Rule of
Court 3.1350(d), Defendant VARSITY TUTOR, LLC (“Defendant”), hereby submit its
Separate Statement of Undisputed Material Facts in Support of its Motion for Summary
Judgment or, in the Alternative, Summary Adjudication.
DEFENDANT’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS
AND REFERENCE TO SUPPORTING EVIDENCER IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT
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
10 Private Attorney General Act (Labor Code 2698) (“PAGA”).
11
Moving Party’s Undisputed Material Opposing Party’s Response
12 No. Facts and Supporting Evidence and Supporting Evidence
13 Plaintiff’s First Amended Complaint
259. (“FAC”) Plaintiff asserts a PAGA
14
individual and a PAGA representative cause
15 of action based on the following theories:
Failure to Pay Minimum Wage; Failure to
16 reimburse for mileage of other expenses;
Failure to Pay for Daily and Weekly
17
Overtime; Failure to Provide Meal and Rest
18 Periods; Failure to Provide Accurate Wage
Statements; and Intentional
19 Misclassification.
20 Charles Depo. 38:24-39:10 (Ex. 4 at ¶¶ 17,
18, 19, 20, 22, 34(a), 34(b), 34(c), and
21
34(e)).
22 In August 2019, Plaintiff’s independent
300. contractor relationship ended with Varsity
23 when his final Independent Contractor
Agreement expired by its own terms and
24 Plaintiff chose not to enter into an
25 additional Independent Contractor
Agreement.
26
Charles Depo. 70:1 15
27 Varsity stopped contracting with California
301. tutors on December 31, 2019.
28
1
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES
Swenson Decl. ¶ 4.
ISSUE 2: Varsity is entitled to summary adjudication that Borello’s multi factor test
applies to Plaintiff’s PAGA claims.
Moving Party’s Undisputed Material Opposing Party’s Response
No. Facts and Supporting Evidence and Supporting Evidence
In Plaintiff’s First Amended Complaint
302. (“FAC”) Plaintiff asserts a PAGA
individual and a PAGA representative cause
of action based on the following theories:
Failure to Pay Minimum Wage; Failure to
10 reimburse for mileage of other expenses;
Failure to Pay for Daily and Weekly
11 Overtime; Failure to Provide Meal and Rest
Periods; Failure to Provide Accurate Wage
12 Statements (FAC ¶¶ 20, 22, 34(e)); and
Intentional Misclassification.
13
14 Charles Depo. 38:24-39:10 (Ex. 4 at ¶¶ 17,
18, 19, 20, 22, 34(a), 34(b), 34(c), and
15 34(e))
Varsity stopped contracting with California
16 303. tutors on December 31, 2019.
17
Swenson Decl. ¶ 4.
18
19 ISSUE 3: Varsity is entitled to summary adjudication that it properly classified Plaintiff as
an Independent Contractor under Borello’s multi-factor test because Varsity did not exercise
20 direction and control over Plaintiff’s tutoring services.
21
Moving Party’s Undisputed Material Opposing Party’s Response
22 No. Facts and Supporting Evidence and Supporting Evidence
23 While under contract with Varsity, Plaintiff
1. contemporaneously described Varsity’s lack
24
of control over him as follows: “I’ve been
25 an independent contractor for two years . .
They don’t interfere with what I do in
26 any way.” (emphasis added).
27
28
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
Declaration of Rafael Nendel-Flores
(“Nendel-Flores Decl.”) at ¶____ (Exs. 21-
22, Deposition of Plaintiff Alexander
Charles (“Charles Depo.”) 98:24-100:19
(Ex. 14)). (Hereinafter cited as “Charles
Depo” and references deposition exhibits
therein).
Varsity Tutors did not give Plaintiff any
2. instruction related to the performance of the
tutoring services and it was up to Plaintiff to
determine the manner and method of the
tutoring sessions.
Charles Depo. 395:12 20.
Plaintiff had the power/authority to end
3. tutoring sessions prior to their scheduled
10
ending.
11
Charles Depo. 379:25 380:16.
12 Plaintiff ended tutoring sessions prior to
4. their scheduled ending.
13
14 Charles Depo. 379:25 380:10
Varsity did not prevent Plaintiff from
5. ending tutoring sessions early.
15
16 Charles Depo. 380:11 16.
Plaintiff had authority to grant students
17 6. breaks during sessions.
18
Charles Depo. 381:1-9; Nendel-Flores Decl.
19 at ¶ (Ex. 61,VARSITY 061727).
Varsity did not prevent Plaintiff from taking
20 7. his own breaks during sessions.
21
Charles Depo. 467:7 9.
22 Plaintiff did take breaks during sessions.
8.
23 Nendel-Flores Decl. at ¶ 9 (Ex. 76,VARSITY
061980), (Ex. 67,VARSITY 061896), and (Ex.
24 108,VARSITY 062659).
25 Varsity did not reduce Plaintiff’s
9. compensation when he turned down
26 tutoring opportunities.
27 Charles Depo. 390:17 21.
28
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
Plaintiff was free to accept or reject tutoring
10. opportunities presented to him through the
Platform.
Charles Depo. 60:12-61:4 (Ex. 5 at Recital
E)(“Tutors have no obligation to accept any
particular requested engagement”), 66:3-19
(Ex. 7 at ¶ 1(d)) (“Tutor is free to accept or
reject prospective tutoring offers from
clients on the Company’s online platform as
she or he sees fit.”), 129:12-130:15 (Ex.
21), and 150:16-19; Declaration of Rafael
Nendel-Flores (“Nendel-Flores Decl.”) at
¶¶____ (Exs. 58-59, Deposition of
Christopher Swenson (“Swenson
Depo.”))(Hereinafter cited as “Swenson
10
Depo”); 289:12-19; Nendel-Flores Decl. at
11 (Ex. 91 VARSITY 062374).
Varsity did not penalize Plaintiff when he
12 11. turned down tutoring opportunities.
13 Charles Depo. 393:3
14 Varsity did not terminate Plaintiff’s ICA
12. when he turned down tutoring opportunities.
15
Charles Depo. 393:7 10
16 Varsity did not require Plaintiff to use any
13. specific materials during his sessions
17
because Plaintiff was free to rely on any
18 materials he wanted to use during his
tutoring sessions.
19
Charles Depo. 23:1-25:25, 66:3-19 (Ex. 7 at
20 ¶ 1(j))(“The Company will not provide
Tutor with any supplies or equipment that
21
he or she may need to provide tutoring
22 services under this Agreement.”), 394:25-
395:5, and 395:21-396:3; Swenson Decl. at
23 ¶ 21.
Plaintiff chose the times, locations, and
24 14. frequency of providing his tutoring services
25 to his customers/students.
26 Charles Depo. 46:3-6, 66:3-19 (Ex. 7 at ¶
1(b))(tutors have the sole and exclusive
27 right to perform tutoring services at such
28
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
times, locations, except as it related to his or
her minor customers/students, and
frequency as he or she deem appropriate)
129:12-130:15 (Ex. 21), 131:8-12,137:13-
24 (Ex. 24)(Plaintiff stated “I don’t think I
can accommodate that time, I currently live
in PST”), and 142:9-14 (Ex. 26)(“Yes, I can
do every day except the 27th. Could we see
about moving that one to an earlier time
then I can fully commit.”), and 155:3-
156:15 (Ex. 28)
Plaintiff could ask Varsity to match a
15. potential customer/student to a different
tutor.
Charles Depo. 132:17-134:11 (Ex.
10
22),138:10-12, 139:10-13, 141:11-18, and
11 429:15-430:23 (Ex. 68) (“Tutor: I just got
your note about me being “sassy.” I am a
12 professional private tutor. I know what
Merriam is missing. And the only way to
13 get her the rest of the points is to be Socratic
14 to a fault. I’m sorry you see this as ‘negative
energy.’ It’s good tutoring. But I will be
15 reassigning you. I hope you find a tutor
who fulfils your needs”)(emphasis added);
16 Swenson Decl. at ¶ 31 (Ex. 12) (“Hello, I
had some personal stuff come up. You
17 should contact your tutor manager to have
18 Kirk matched with another tutor
After accepting a potential tutoring
16. engagement, for various reasons, Plaintiff
19
occasionally choose not to proceed with
20 engaging the potential customer/student,
and he was free to do so under his
21
Independent Contractor Agreement.
22
Charles Depo. 66:3-19 (Ex. 7 at ¶ 8)(“Tutor
23 also may decide to terminate a specific
client engagement for any reason…”),
24 138:3-18 (Ex. 25) (indicating that Plaintiff
did not “have time to help” the
25
customer/student), 129:12-131:15 (Ex.
26 21)(communicating with customer/student
about need to pick a different tutor because
27 Plaintiff did not work on Sundays), and
28
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
391:11-24 (Ex. 60)(indicating that Plaintiff
dropped a customer/student one month
before the student’s exam), and 392:21-
393:2; Nendel-Flores Decl. at ¶9 (Ex. 91
VARSITY 062374)
Plaintiff did not ask Varsity for permission
17. prior to scheduling tutoring sessions with
customers/students.
Charles Depo. 440:2-24, and 446:18-22;
Swenson Decl. at ¶ 36 (Ex. 17)(“Would it
be okay if we started half an hour later so I
could schedule another client before our
session? If it would mess up your schedule,
I can schedule them for a totally different
week”).
10
Plaintiff did not ask Varsity for permission
18. prior to communicating with
11
customers/students.
12
Charles Depo. 441:9 17.
13 Plaintiff did not ask Varsity for permission
19. before rescheduling tutoring sessions with
14
customers/students.
15
Charles Depo. 442:8 22.
16 Varsity did not require the tutors to message
20. customers/students or communicate with
17
customers/students through the Platform, as
18 the tutors had sole discretion to determine
the method of communication with the
19 customers/clients.
20 Swenson Depo. 281:8-12; Swenson Decl. at
¶ 23.
21
Varsity did not penalize Plaintiff for
21. missing tutoring sessions with
22
customers/students.
23
Charles Depo. 444:8 24.
24 Customers/students rescheduled tutoring
22. sessions directly with Plaintiff.
25
26 Charles Depo. 446:18 22.
Varsity did not provide Plaintiff with an
27 23. employee handbook.
28
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
Charles Depo. 453:8 10.
Varsity did not issue Plaintiff any written
24. warnings.
Charles Depo. 453:11 13.
Varsity did not issue Plaintiff any written
25. discipline.
Charles Depo. 453:14 16.
Varsity did not assign Plaintiff a supervisor.
26.
Charles Depo. 454:3 6.
Varsity did not assign Plaintiff a manager.
27.
10 Charles Depo. 454:7 9.
Varsity did not assign Plaintiff someone to
28. whom he needed to report (as there was no
11
one at Varsity to assign Plaintiff or any
12 other tutor on the platform to).
13
Charles Depo. 48:1-49:25, 405:1-406:25,
14 and 454:20 23.
Varsity did not issue Plaintiff an annual
15 29. performance review.
16 Charles Depo. 454:4 11.
17 INTENTIONALLY BLANK.
30.
18 “Plaintiff prepared on the same day as a
31. tutoring session about 50% of the time in
19 general, and he was very likely to do so if
he was tutoring for four or fewer hours in a
20 day. When Plaintiff did not prepare on the
same day as a session, he typically did so no
21 more than three days prior to a tutoring
22 session.”
23 Charles Depo. 168:19-169:25 (Ex. 35 at
Interrogatory Numbers 22-27, 32-37, 42-47,
24 52 57, 62 67, 72 77, 82 87, 102, and 111
Varsity did not have the subject matter
25 32. knowledge to provide insight into the tutors’
26 tutoring services.
27
28
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
Charles Depo. 66:3-19 (Ex. 7 at Recital B),
and 124:12-15); Swenson Depo 57:4-14,
and 60:4-9 (“We don’t have [subject matter
expertise], and we need to make sure the
tutor does.”)
Plaintiff scheduled and rescheduled sessions
33. directly with customers/students without
Varsity’s knowledge or intervention
Charles Depo. 441:18-443:19 (Ex. 72);
Swenson Decl. at ¶ 36 (Ex. 17)(“Would it
be okay if we started half an hour later so I
could schedule another client before our
session? If it would mess up your schedule I
can schedule them for a totally different
week”); Nendel-Flores Decl. at ¶9 (Ex.
10
87,VARSITY 062258) (“Sorry, I keep
11 canceling. Right. Yeah, I was actually kind
of sick the other day when you canceled. I
12 was like, yeah. Yeah, no big deal, don't
worry. Um So it worked out for me. I don't
13 really care if like students cancel. I care
14 when you like, I have to wake up at 9 a.m.
and you're not there. That's what bothers
15 me. But otherwise, I really don't mind. I
have other things to do as well. I don't know
16 if I told you this, but I'm actually a contract
interpreter. So, whenever I'm not teaching
17 the ACT I log in my interpreters and stuff,
18 so it's really no big deal if I'm teaching the
ACT or not, I wanna make sure you're
19 successful. But if you need to reschedule as
long as it's not like, you know, class time is
20 like 9 a.m. and you're not here that just kind
of bugs me.”), Nendel-Flores Decl. at ¶9
21 (Ex. 94,VARSITY 062442), (Ex. 105,
22 VARSITY 062632 (v.2)), (Ex.
82,VARSITY 062087), (Ex. 114,VARSITY
23 062808 ; (Ex. 118 VARSITY 062909
Plaintiff used tutoring materials he created
24 34. for his business “Alexander Charles
Tutoring” while tutoring students he
25
obtained through the Varsity Platform.
26
Charles Depo. 180:4-181:8 (Ex. 37), and
27 379:8 20; Nendel Flores Decl. at ¶9 (Ex.
28
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
111,VARSITY 062741) (“And you'll notice
in the top of every page right here. So, do
you only do tutoring with Varsity Tutors?
No, I have other companies that I work for
as well. Yeah. Good business. Thank
you….” [Plaintiff calls student’s attention to
his logo at the top of the page]); (Ex.
104,VARSITY 062632 (v.1))(“Hold on, let
me sign into my email real quick. Ok. Yeah,
if it takes two seconds we can do it. Ok. So
these are ideas that create your own or do
they give to you? You create your own? I
created mine and it, it wasn’t given to me.
Yeah.”).
During the relevant time-period, Varsity
35. provided platform how-to videos when an
10
individual was hired as a contractor, as a
11 resource to facilitate familiarity with the
Platform’s features. The tutors were not
12 required to review the videos as a
prerequisite before tutoring
13 customers/students.
14
Swenson Depo. 64:1 17.
15 The profile individual tutors create with
36. Varsity is not proprietary.
16
Swenson Depo. 75:19 23.
17
Tutors commonly post their individual
37. profiles on other platforms besides Varsity.
18
19 Swenson Depo. 75:21 76:2
Varsity did not require individual tutors to
20 38. have a separate business entity or hold a
business license.
21
22 Swenson Depo. 76:13 25.
Varsity did not control what the tutors
23 39. invoiced.
24 Swenson Depo. 109:8-10; Charles Depo.
25 60:12-61:4 (Ex.5 at ¶ 8) 66:3-19 (Ex. 7 at ¶
10),129:1-25, 441:1-442:25, and 446:1-25;
26 Nendel-Flores Decl. at ¶9 (Ex.
63,VARSITY 061824), (Ex. 122,VARSITY
27 062991), (Ex. 80,VARSITY 062069), (Ex.
28
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
85,VARSITY 062232), and (Ex.
112,VARSITY 062757).
Plaintiff maintained sole discretion to
40. charge no-show and/or cancellation fees.
Swenson Depo. 152:7-20, 153:16-23,
155:6-21, and 249:3-5; see e.g., Swenson
Decl. at ¶¶ 34-35 (Ex. 15)( “Normally
Hardev would get charged for a cancellation
less than 24 hours before class. But he’s a
really great kid and he has a medical
excuse, so I’ll be make sure he doesn’t get
charged. Please send him my best. Chat
soon.”), and (Ex. 16)(“Normally there’s a
24-hour cancellation fee I’ll have waived
today. But same-day scheduling doesn’t
10
normally work. Just trying to make sure we
11 both use our time in an effective
manner.”)(emphasis added).
12 A tutor can negotiate his or her rate.
41.
13 Swenson Depo. 182:8 20.
14 Varsity did not issue payments to the tutors,
42. instead payments were distributed by a third
15 party vendor, Integrated Payroll Services.
16 Swenson Depo. 188:6 18.
Plaintiff determined the scope of services
17 43. provided to customers/students.
18
See e.g., Charles Depo. 60:12-61:4 (Ex.5 at
19 Recital A and ¶ 5), 66:3-19 (Ex. 7 at Recital
A and ¶¶ 1(a) and 7)(tutors possessed the
20 “sole and exclusive right to control and
direct the means and manner” of his or her
21
services) and 402:5 403:23 (Ex. 63).
22 Tutors determined the subjects they would
44. teach to their customers/students.
23
Swenson Depo. 57:7-20; Swenson Decl. at
24 ¶ 19.
25 Tutors were free to tutor customers/students
45. outside the Platform.
26
27
28 10
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
Charles Depo. 24:4-27:8, 46:1-48:25, 66:3-
19 (Ex. 7 at ¶ 1(f))-(h))(“Tutor may provide
similar tutoring services to other clients who
are not part of the Company’s online
platform or who are obtained by Tutor
through another company’s online
platform), and 435:12 436:1 17.
ISSUE 4: Varsity is entitled to summary adjudication that it properly classified Plaintiff as
an independent contractor under Borello’s multi-factor test because Plaintiff is a highly
skilled tutor
Moving Party’s Undisputed Material Opposing Party’s Response
No. Facts and Supporting Evidence and Supporting Evidence
10 Plaintiff created and used his own tutoring
46. materials he created for his business “Alexander
11 Charles Tutoring” while tutoring
customers/students he obtained through the
12
Varsity Platform.
13
Charles Depo. 180:4-181:8 (Ex. 37), and 379:8-
14 20; Nendel-Flores Decl. at ¶9 (Ex.
111,VARSITY 062741) (“And you'll notice in
15 the top of every page right here. So, do you
only do tutoring with Varsity Tutors? No, I
16
have other companies that I work for as well.
17 Yeah. Good business. Thank you. Um So yeah,
question order. This is the really important
18 thing. This is the one thing you really, really,
really, really got to get done. Um Don't go
19 through the questions of normal order, just go
20 through them specific to general. This is, this is
a framework for you.” [Plaintiff calls student’s
21 attention to his logo at the top of the page]);
Nendel-Flores Decl. at ¶9 (Ex.104,VARSITY
22 062632 (v.1))(“Hold on, let me sign into my
email real quick. Ok. Yeah, if it takes two
23 seconds we can do it. Ok. So these are ideas
24 that create your own or do they give to you?
You create your own? I created mine and it, it
25 wasn’t given to me. Yeah.”)
Plaintiff represented to his students that
26 47. materials that he created for tutoring
purposes are his intellectual property.
27
28 11
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
Charles Depo. 379:8 20.
Plaintiff scored within the top 1% of ACT
48. test takers on a practice test and obtained a
perfect score on a SAT practice test.
Charles Depo. 397:6-21 (Ex. 61), 399:13-
16, and 400:11 401:14 (Ex. 62).
Plaintiff spent significant time studying the
49. Princeton Review materials and contributing to
the Princeton Review’s ACT and SAT test
materials to be able to identify inaccuracies and
discrepancies between the Princeton Review’s
practice ACT and SAT tests and the real ACT
and SAT tests.
10 Charles Depo. 401:15-25; Nendel-Flores Decl.
at ¶9 (Ex. 86,VARSITY 062245)(“Yeah, 2018.
11 It says five Fulling practice tests full in the
book and one online. Yeah. Um I worked on
12 that book so we’re gonna use that book. I’m so
happy it’s out now. Uh I think I have a copy of
13 it somewhere. We’re gonna use that for your
14 homework. Um let me just check that I have a
copy of it somewhere. Uh No. So is this one?
15 Uh I actually don’t know if I have that one
specifically. Um Can you open it up to the first
16 test and tell me what the first test is about?
Yeah, hold on.”)
17
Plaintiff created ACT writing materials for
50. his customers/students.
18
Charles Depo. 438:21-24.
19
According to Plaintiff, “Plaintiff needed to
20 51. cater his preparation to the needs of the
individual student. Plaintiff’s preparation
21 typically took 5 to 15 minutes per session,
and it was common to take up to 30 minutes
22
preparing per session when students had
23 special tutoring needs or were learning more
specialized topics.”
24
Charles Depo. 168:19-169:25 (Ex. 35 at
25 Interrogatory Numbers 22-27, 32-37, 42-47,
26 52-57, 62-67, 72-77, 82-87, 102, and 111);
see also Charles Decl. at ¶¶ 37-38 (Ex.
27 18)(“But to make any sort of progress,
28 12
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
especially at his level, he needs to be doing
at least 2 practice tests between sessions.”)
(Ex. 19) (discussing test taking tips and the
need to tailor each student’s content specific
to the subject the student needed to review).
Plaintiff acknowledged his expertise in his
52. Independent Contractor Agreement and in
his communication with customers/students.
Swenson Decl. at ¶ 32 (Ex. 13) (stating that
he was “rated one of the best math tutors on
the Platform”); Nendel-Flores Decl. at ¶9
(Ex. 93,VARSITY062389 (v.2))(“So like if
you have any questions about tutoring, I’m
like one of the top tutors in LA, I totally
get it. Um I can give you whatever
10
resources you need basically. Ok.
11 Awesome. Thank you so much. Sure. So
like, like the practice tests, for example, like
12 let’s say there are five top test prep
companies in LA. They all use the same,
13 they all use the same practice test. It’s free
14 online.”)( mphasis added).
Plaintiff represented to Varsity that he
53. possessed his tutoring skills prior to his
15
contract with Varsity Tutors.
16
Charles Depo. 60:12-61:4 (Ex. 5 at Recital
17 B and ¶ 1).
18 By May 17, 2018, Plaintiff had three years
54. of experience as a tutor and experience
19 tutoring internationally.
20 Nendel-Flores Decl. at ¶9 (Ex.
115,VARSITY 062860) (“I’ve been
21
tutoring for three years. I’ve tutored in
22 Turkey. I was actually an interpreter there, a
linguistic interpreter. Um, but I hated it. So
23 I started tutoring and I loved it a lot more.
So then I moved back home and Then I
24 moved to Lon-don where I was also an
interpreter. And as of today I, I moved to
25
Los Angeles where I’m starting my own
26 tutoring business. So uh I’m a graduate at
NYU for Explorer. Um Been doing this for
27 three years.”)
28 13
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
Plaintiff was hired by a private company to
55. create several courses geared towards
teaching the ACT and he wrote four
practice ACTs.
Nendel-Flores Decl. at ¶9 (Ex.
68,VARSITY 061905)(“Do you just like
study there? Sitting? Yeah, I, I spend my
mornings writing and then I do the ACT
stuff. It’s been a lot more ACT stuff this
week this month because I’ve been
launching my own business. It’s really fun.
Um, but they’ve also been doing this for
about three years and I, I’ve been asked to
create several courses and yesterday a
private company reached out to me and they
10
want me to write four ACTs to them over
11 the summer. It’s fun. I like that because it’s
a lot more. It’s not much more but it’s still
12 pretty good stuff. I get to do whatever I
want to.”)
13 Plaintiff was retained by other companies to
56. write ACT tests.
14
15 Nendel-Flores Decl. at ¶9 (Ex.
107,VARSITY 062658) (“I got a job two
16 years ago, like we already wrote the SAT
stuff for them and they’re like, write some
17 ACT stuff for us as well. So a practice test.
18 I’m already doing that. So I figured I might
as well start my own business. Right. So,
19 um, you like writing, like, ACTS? Yeah,
I’m on a team but I’m still doing
20 everything. Right. Like, it’s not like I have a
limited role. I’m doing English, math,
21 reading, science, writing everything. Um, so
22 when I figured I was already doing all this
stuff, I was like, you know what? I might as
23 well just start my own company and, like,
do my own tutoring stuff. Um So I made all
24 my own materials here already Do that
professionally.”)
25
Plaintiff previously worked as an interpreter
57. for the United States Department of
26
Homeland Security.
27
28 14
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
Nendel-Flores Decl. at ¶9 (Ex.
96,VARSITY 062453) (“But, um, I moved
out to Los Angeles to work in television so I
have to write a bunch of spec scripts and I
have to meet a bunch of people and I have
to talk to people about my scripts and that’s
how I’m gonna work as a TV. Writer.
Notoriously difficult to break into,
notoriously difficult, but that’s what I love
doing. So, um I tutor, I used to interpret. I
was a Turkish language interpreter,
interpreter for the US government.”)
Plaintiff described the materials as “the best
58. of the best” because he created them using
the experience he gained from working with
various tutoring companies.
10
11 Nendel-Flores Decl. at ¶9 (Ex.
98,VARSITY 062470)(“I don’t know if I
12 told you this, this is all stuff that I create.
This is all like I've had a bunch of training
13 throughout several different companies and
14 this is like the best of the best. Um Yeah,
I’m just always working on improving it. So
15 I wanna make sure that you get everything
that’s there…”)( mphasis added).
16 Plaintiff described himself as “one of the
59. top tutors in LA.”
17
18 Nendel-Flores Decl. at ¶9 (Ex.
93,VARSITY 062389 (v.2)) (“So like if you
19 have any questions about tutoring, I’m like
one of the top tutors in LA, I totally get it.
20 Um I can give you whatever resources you
need basically. Ok. Awesome. Thank you
21
so much. Sure. So like, like the practice
22 tests, for example, like let’s say there are
five top test prep companies in LA. They all
23 use the same, they all use the same practice
test. It’s free online.”)(Emphasis added).
24 Plaintiff had the ability to review practice
60. materials and determine whether they
25
comported with the material as tested on the
26 SAT.
27
28 15
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
Nendel-Flores Decl. at ¶9 (Ex.
100,VARSITY 062577 (v.1))(“Um, you use
the varsity tutor stuff, which I see. Um,
they’re saying it’s the SAT. The stuff on
here doe’n't appear on the SAT, like number
one, for example, does not appear in the
SAT. Sure we can go over this stuff, but it's
probably more be’eficial to talk about sort
of what your goals are and then figure out
what you need to go over. How does that
sound?”).
Plaintiff obtained his undergraduate degree
61. in literature from New York University and
was on the dean’s list.
Charles Depo. 71:16-20; Nendel-Flores
10
Decl. at ¶9 (Ex. 115,VARSITY
11 062860)(“I’ve been tutoring for three years.
I’ve tutored in Turkey. I was actually an
12 interpreter there, a linguistic interpreter.
Um, but I hated it. So I started tutoring and I
13 loved it a lot more. So then I moved back
14 home and Then I moved to Lon-don where I
was also an interpreter. And as of today I, I
15 moved to Los Angeles where I’m starting
my own tutoring business. So uh I’m a
16 graduate at NYU for Explorer. Um Been
doing this for three years.”).
17
18 ISSUE 5: Varsity is entitled to summary adjudication that it properly classified Plaintiff as
19 an independent contractor under Borello’s multi-factor test because the parties believed
they formed an independent contractor relationship.
20
21 Moving Party’s Undisputed Material Opposing Party’s Response
No. Facts and Supporting Evidence and Supporting Evidence
22
While under contract with Varsity, Plaintiff
23 62. contemporaneously described his
relationship with Varsity that he’s been an
24 independent contractor for two years and
25 Varsity does not “interfere with what [he
does] in any way.”
26
Charles Depo. 98:24-100:19 (Ex. 14) (“I’ve
27 been an independent contractor for two
28 16
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
years . . . . They don’t interfere with what
I do in any way.” (emphasis added).
Plaintiff admitted that he understood the tax
63. differences between an IRS Form W-2 and
1099.
Charles Depo. 367:25 368:6.
Plaintiff did not request compensation via
64. IRS Form W-2.
Charles Depo. 368:11 15
Plaintiff filed tax returns as a sole proprietor
65. and deducted $2,700 in business expenses
in 2017.
10 Charles Depo. 369:17 371:4 (Ex. 56).
Plaintiff filed tax returns as a sole proprietor
66. and deducted $7,205 in business expenses
11
in 2018.
12
Charles Depo. 373:8 374:23.
13
Plaintiff has not amended his 2017, 2018,
67. and 2019 tax returns.
14
15 Charles Depo. 377:9 17.
Plaintiff signed seven Independent
16 68. Contractor Agreements explicitly stating
17 that he was an independent contractor.
18 Charles Depo. 60:12-61:4 (Ex.5 at ¶¶ 9 and
32); 64:4-65:1 (Ex.6 at ¶¶ 9 and 32); 66:3-
19 19 (Ex. 7 at ¶¶ 1 and 31); 67:10-68:1 (Ex. 8
at ¶¶ 1 and 31), 68:6-19 (Ex.9 at ¶¶ 1 and
20 31), 68:24-69:11 (Ex.10 at ¶¶ 1 and 31), and
21 386:5 25 (Ex. 59 at ¶¶ 1 and 31).
Plaintiff was not coerced to sign the ICA or
69. placed under duress while signing the ICA.
22
23 Charles Depo. 60:12 69:11, and 387:12 22.
Plaintiff referred to himself as “self-
24 70. employed” and “independent contractor” on
25 multiple occasions.
26 Charles Depo. 97:1-14, 99:20-100:4 (noting
that he’s been an independent contractor for
27
28 17
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
two years); 100:14-20, 229:12-14, and
230:21 231:1.
Plaintiff referred to himself as a private
71. tutor on his LinkedIn profile.
Charles Depo. 228:8-20 (Ex. 43), and
234:2 (Ex.44)
Plaintiff admitted the contractor relationship
72. was not permanent.
Nendel-Flores Decl. at ¶9 (Ex.
77,VARSITY 062008) (“So, is this like
your permanent job? So, they could do it
like, anywhere? No, this is my part time job.
I was my part time job. Normally I'm an
10 interpreter. Um but I'm not really a big fan
of it. So I just started doing this and it's sup-
11 posed to be a part time job, but it's supposed
to be...”)
12 As the final step of the application process,
73. Varsity issues a W-9 to the contracted tutor.
13
14 Swenson Depo. 109:8 10.
Plaintiff entered into seven Independent
74. Contractor Agreements with Varsity Tutors.
15
16 Charles Depo. 60:12-61:4 (Ex.5); 64:4-65:1
(Ex.6); 66:3-19 (Ex. 7); 67:10-68:1 (Ex. 8),
17
68:6-19 (Ex.9), 68:24-69:11 (Ex.10), 70:1-
18 15, and 386:5 25 (Ex. 59).
In 2019, Plaintiff filed tax returns as a sole
19 75. proprietor, deducted no business expenses,
and claimed $8,713 in income.
20
21 Charles Depo. 375:17 377:8 (Ex. 57).
22
ISSUE 6: Varsity is entitled to summary adjudication that it properly classified Plaintiff as
23 an independent contractor under Borello’s multi-factor test because Plaintiff was engaged in
his own distinct business.
24
25 Moving Party’s Undisputed Material Opposing Party’s Response
No. Facts and Supporting Evidence and Supporting Evidence
26
27 Plaintiff could take on as many or as few
76. Customers as he wanted.
28 18
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
See e.g. Charles Depo. 60:12-61:4 (Ex.5 at
¶¶ 2-3), and 66:3-19 (Ex. 7 at ¶¶ 3-4);
Nendel-Flores Decl. at ¶9 (Ex. 91,
VARSITY 062374).
Plaintiff maintained sole discretion
77. regarding what expenses he could incur
with respect to tutoring and supplies.
See e.g. Charles Depo. 60:12-61:4 (Ex.5 at
¶¶ 7, 8, and 10), and 66:3-19 (Ex. 7 at ¶¶
1(h)-(i), 9, and 10); Nendel-Flores Decl. at
¶9 (Ex. 72,VARSITY 061924 (v.3);
Nendel-Flores Decl. at ¶9 (Ex.
87 VARSITY 062258).
10 Plaintiff tutored customers/students outside
78. the Varsity platform.
11
Charles Depo. 24:4-27:8, 46:1-48:25, and
12 435:12 436:1 17.
Plaintiff posted his tutoring profile outside
13 79. of Varsity.
14
Charles Depo. 228:8-20 (Ex. 43), and
15 234:2 4 (Ex.44).
Plaintiff had discretion to charge no-show
16 80. or cancelation fees
17
Charles Depo. 60:12-61:4 (Ex.5 at ¶ 8)
18 66:3-19 (Ex. 7 at ¶ 10),129:1-25, 441:1-
442:25, and 446:1-25; Nendel-Flores Decl.
19 at ¶9 (Ex. 122,VARSITY 062991), (Ex.
80,VARSITY 062069), (Ex. 85,VARSITY
20 062232 , and (Ex. 112 VARSITY 062757).
21 Varsity had no oversight over what Plaintiff
81. invoiced during his sessions.
22
Swenson Depo. 107:22-109: 10 (noting
23 Varsity has “no control over what the tutor
actually invoices for” and that it is “up to
24 the tutors”), and 213 10 214:9.
25 Varsity did not prevent Plaintiff from
82. ending tutoring sessions early.
26
Charles Depo. 380: 11 16.
27
28 19
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
Varsity did not reimburse Plaintiff for
83. business expenses.
See e.g. Charles Depo. 60:12-61:4 (Ex.5 at ¶
10), 66:3-19 (Ex. 7 at ¶¶ 1(h)-(i) and 9) and
92 21.
In contrast, Plaintiff provided tutoring
84. services to customers/students that he
obtained both on Varsity’s platform and
outside of Varsity’s platform.
Charles Depo. 79:17-81:1 (Ex. 11), 84:8-25
(Ex. 12), 90:22-91:9, 95:24-96:6 (Ex. 13),
103:20-104:15 (Ex. 15), and 107:17-25
(Ex.16).
10
Nendel Decl. at ¶¶ __ (Ex. VARSITY
11 061940) (“Do you do this outside of this
varsity tutors? Uh-huh my own business,
12 right? We'll finish this up and I'll give you a
link…); Nendel-Flores Decl. at ¶9 (Ex.
13 116,VARSITY 062885 (v.1)), (Ex. 78,
14 VARSITY 062020), and (Ex.
120 VARSITY 062936).
15 Plaintiff established and operated Alexander
85. Charles Tutoring while simultaneously
16 engaging with Customers through the
Platform.
17
18 Charles Depo. 110:13-111:15, and 174:18-
175:2
19 Plaintiff adopted a logo; created and
86. maintained a website; ran online advertising
20 (in addition to his advertising on Varsity’s
platform); maintained a Yelp account and
21
created and used his own branded materials.
22
Charles Depo. 22:14-23:4, 25:13-17,
23 108:23-109:17, 111:25-112:19 (Ex. 18), and
115:2 20 (Ex. 20).
24 Plaintiff’s own website
87. www.alexandercharlestutoring.com
25
showcased his work in order to obtain
26 additional tutoring customers/students.
27 Charles Depo. 24:16 21.
28 20
DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF
ISSUES
Plaintiff promoted his business to his
88. customers/students and referred them to his
website.
Nendel-Flores Decl. at ¶9 (Ex.
107,VARSITY 062658) (“I got a job two
years ago, like we already wrote the SAT
stuff for them and they're like, right, some
ACT stuff for us as well. So I practice test.
I'm already doing that. So I figured I might
as well start my own business. Right. So,
um, you like writing, like, ACTS? Yeah, I'm
on a team but I'm still doing everything.
Right. Like, it's not like I have a limited
role. I'm doing English, math, reading,
science, writing everything. Um, so when I
10
figured I was already doing all this stuff, I
11 was like, you know what? I might as well
just start my own company and, like, do my
12 own drink stuff. Um So I made all my own
materials here already do that
13 professionally.”)(emphasis added), (Ex.
14 97,VARSITY 062462)(“This is, this is the
most exciting to happen in my day for a
15 boring. Do. Really? Yeah, I'm for you. Oh,
like you can't. All right. It is not uploading
16 but I got a logo made for my business and
it's really, really, it looks really nice.
17 Everyone's like freaking out. It looks so
18 nice. Uploading. It looks so and I wanted to
share it with you because it just looks so
19 nice. Oh, wait, is it this, I thin
Preview
Rafael G. Nendel-Flores, Esq., SBN 223358 Guillermo Tello, Esq., SBN 277896 Katie Sharpless, Esq. SBN 335463 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 OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ALEXANDER CHARLES and HENRY Case No. 19CV347249 MULAK, as individuals, DEFENDANT VARSITY TUTOR’S Plaintiff, STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE VARSITY TUTORS LLC, ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES Defendant. Hearing: October 18, 2023 Time: 1:30 pm Dept.: Assigned to: Hon. Theodore C. Zavner Complaint Filed: May 1, 2019 FAC: May 30, 2019 Trial Date: May 13 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: Pursuant to Code of Civil Procedure section 437c(b)(1) and California Rule of Court 3.1350(d), Defendant VARSITY TUTOR, LLC (“Defendant”), hereby submit its Separate Statement of Undisputed Material Facts in Support of its Motion for Summary Judgment or, in the Alternative, Summary Adjudication. DEFENDANT’S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS AND REFERENCE TO SUPPORTING EVIDENCER IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 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 10 Private Attorney General Act (Labor Code 2698) (“PAGA”). 11 Moving Party’s Undisputed Material Opposing Party’s Response 12 No. Facts and Supporting Evidence and Supporting Evidence 13 Plaintiff’s First Amended Complaint 259. (“FAC”) Plaintiff asserts a PAGA 14 individual and a PAGA representative cause 15 of action based on the following theories: Failure to Pay Minimum Wage; Failure to 16 reimburse for mileage of other expenses; Failure to Pay for Daily and Weekly 17 Overtime; Failure to Provide Meal and Rest 18 Periods; Failure to Provide Accurate Wage Statements; and Intentional 19 Misclassification. 20 Charles Depo. 38:24-39:10 (Ex. 4 at ¶¶ 17, 18, 19, 20, 22, 34(a), 34(b), 34(c), and 21 34(e)). 22 In August 2019, Plaintiff’s independent 300. contractor relationship ended with Varsity 23 when his final Independent Contractor Agreement expired by its own terms and 24 Plaintiff chose not to enter into an 25 additional Independent Contractor Agreement. 26 Charles Depo. 70:1 15 27 Varsity stopped contracting with California 301. tutors on December 31, 2019. 28 1 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES Swenson Decl. ¶ 4. ISSUE 2: Varsity is entitled to summary adjudication that Borello’s multi factor test applies to Plaintiff’s PAGA claims. Moving Party’s Undisputed Material Opposing Party’s Response No. Facts and Supporting Evidence and Supporting Evidence In Plaintiff’s First Amended Complaint 302. (“FAC”) Plaintiff asserts a PAGA individual and a PAGA representative cause of action based on the following theories: Failure to Pay Minimum Wage; Failure to 10 reimburse for mileage of other expenses; Failure to Pay for Daily and Weekly 11 Overtime; Failure to Provide Meal and Rest Periods; Failure to Provide Accurate Wage 12 Statements (FAC ¶¶ 20, 22, 34(e)); and Intentional Misclassification. 13 14 Charles Depo. 38:24-39:10 (Ex. 4 at ¶¶ 17, 18, 19, 20, 22, 34(a), 34(b), 34(c), and 15 34(e)) Varsity stopped contracting with California 16 303. tutors on December 31, 2019. 17 Swenson Decl. ¶ 4. 18 19 ISSUE 3: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an Independent Contractor under Borello’s multi-factor test because Varsity did not exercise 20 direction and control over Plaintiff’s tutoring services. 21 Moving Party’s Undisputed Material Opposing Party’s Response 22 No. Facts and Supporting Evidence and Supporting Evidence 23 While under contract with Varsity, Plaintiff 1. contemporaneously described Varsity’s lack 24 of control over him as follows: “I’ve been 25 an independent contractor for two years . . They don’t interfere with what I do in 26 any way.” (emphasis added). 27 28 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES Declaration of Rafael Nendel-Flores (“Nendel-Flores Decl.”) at ¶____ (Exs. 21- 22, Deposition of Plaintiff Alexander Charles (“Charles Depo.”) 98:24-100:19 (Ex. 14)). (Hereinafter cited as “Charles Depo” and references deposition exhibits therein). Varsity Tutors did not give Plaintiff any 2. instruction related to the performance of the tutoring services and it was up to Plaintiff to determine the manner and method of the tutoring sessions. Charles Depo. 395:12 20. Plaintiff had the power/authority to end 3. tutoring sessions prior to their scheduled 10 ending. 11 Charles Depo. 379:25 380:16. 12 Plaintiff ended tutoring sessions prior to 4. their scheduled ending. 13 14 Charles Depo. 379:25 380:10 Varsity did not prevent Plaintiff from 5. ending tutoring sessions early. 15 16 Charles Depo. 380:11 16. Plaintiff had authority to grant students 17 6. breaks during sessions. 18 Charles Depo. 381:1-9; Nendel-Flores Decl. 19 at ¶ (Ex. 61,VARSITY 061727). Varsity did not prevent Plaintiff from taking 20 7. his own breaks during sessions. 21 Charles Depo. 467:7 9. 22 Plaintiff did take breaks during sessions. 8. 23 Nendel-Flores Decl. at ¶ 9 (Ex. 76,VARSITY 061980), (Ex. 67,VARSITY 061896), and (Ex. 24 108,VARSITY 062659). 25 Varsity did not reduce Plaintiff’s 9. compensation when he turned down 26 tutoring opportunities. 27 Charles Depo. 390:17 21. 28 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES Plaintiff was free to accept or reject tutoring 10. opportunities presented to him through the Platform. Charles Depo. 60:12-61:4 (Ex. 5 at Recital E)(“Tutors have no obligation to accept any particular requested engagement”), 66:3-19 (Ex. 7 at ¶ 1(d)) (“Tutor is free to accept or reject prospective tutoring offers from clients on the Company’s online platform as she or he sees fit.”), 129:12-130:15 (Ex. 21), and 150:16-19; Declaration of Rafael Nendel-Flores (“Nendel-Flores Decl.”) at ¶¶____ (Exs. 58-59, Deposition of Christopher Swenson (“Swenson Depo.”))(Hereinafter cited as “Swenson 10 Depo”); 289:12-19; Nendel-Flores Decl. at 11 (Ex. 91 VARSITY 062374). Varsity did not penalize Plaintiff when he 12 11. turned down tutoring opportunities. 13 Charles Depo. 393:3 14 Varsity did not terminate Plaintiff’s ICA 12. when he turned down tutoring opportunities. 15 Charles Depo. 393:7 10 16 Varsity did not require Plaintiff to use any 13. specific materials during his sessions 17 because Plaintiff was free to rely on any 18 materials he wanted to use during his tutoring sessions. 19 Charles Depo. 23:1-25:25, 66:3-19 (Ex. 7 at 20 ¶ 1(j))(“The Company will not provide Tutor with any supplies or equipment that 21 he or she may need to provide tutoring 22 services under this Agreement.”), 394:25- 395:5, and 395:21-396:3; Swenson Decl. at 23 ¶ 21. Plaintiff chose the times, locations, and 24 14. frequency of providing his tutoring services 25 to his customers/students. 26 Charles Depo. 46:3-6, 66:3-19 (Ex. 7 at ¶ 1(b))(tutors have the sole and exclusive 27 right to perform tutoring services at such 28 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES times, locations, except as it related to his or her minor customers/students, and frequency as he or she deem appropriate) 129:12-130:15 (Ex. 21), 131:8-12,137:13- 24 (Ex. 24)(Plaintiff stated “I don’t think I can accommodate that time, I currently live in PST”), and 142:9-14 (Ex. 26)(“Yes, I can do every day except the 27th. Could we see about moving that one to an earlier time then I can fully commit.”), and 155:3- 156:15 (Ex. 28) Plaintiff could ask Varsity to match a 15. potential customer/student to a different tutor. Charles Depo. 132:17-134:11 (Ex. 10 22),138:10-12, 139:10-13, 141:11-18, and 11 429:15-430:23 (Ex. 68) (“Tutor: I just got your note about me being “sassy.” I am a 12 professional private tutor. I know what Merriam is missing. And the only way to 13 get her the rest of the points is to be Socratic 14 to a fault. I’m sorry you see this as ‘negative energy.’ It’s good tutoring. But I will be 15 reassigning you. I hope you find a tutor who fulfils your needs”)(emphasis added); 16 Swenson Decl. at ¶ 31 (Ex. 12) (“Hello, I had some personal stuff come up. You 17 should contact your tutor manager to have 18 Kirk matched with another tutor After accepting a potential tutoring 16. engagement, for various reasons, Plaintiff 19 occasionally choose not to proceed with 20 engaging the potential customer/student, and he was free to do so under his 21 Independent Contractor Agreement. 22 Charles Depo. 66:3-19 (Ex. 7 at ¶ 8)(“Tutor 23 also may decide to terminate a specific client engagement for any reason…”), 24 138:3-18 (Ex. 25) (indicating that Plaintiff did not “have time to help” the 25 customer/student), 129:12-131:15 (Ex. 26 21)(communicating with customer/student about need to pick a different tutor because 27 Plaintiff did not work on Sundays), and 28 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES 391:11-24 (Ex. 60)(indicating that Plaintiff dropped a customer/student one month before the student’s exam), and 392:21- 393:2; Nendel-Flores Decl. at ¶9 (Ex. 91 VARSITY 062374) Plaintiff did not ask Varsity for permission 17. prior to scheduling tutoring sessions with customers/students. Charles Depo. 440:2-24, and 446:18-22; Swenson Decl. at ¶ 36 (Ex. 17)(“Would it be okay if we started half an hour later so I could schedule another client before our session? If it would mess up your schedule, I can schedule them for a totally different week”). 10 Plaintiff did not ask Varsity for permission 18. prior to communicating with 11 customers/students. 12 Charles Depo. 441:9 17. 13 Plaintiff did not ask Varsity for permission 19. before rescheduling tutoring sessions with 14 customers/students. 15 Charles Depo. 442:8 22. 16 Varsity did not require the tutors to message 20. customers/students or communicate with 17 customers/students through the Platform, as 18 the tutors had sole discretion to determine the method of communication with the 19 customers/clients. 20 Swenson Depo. 281:8-12; Swenson Decl. at ¶ 23. 21 Varsity did not penalize Plaintiff for 21. missing tutoring sessions with 22 customers/students. 23 Charles Depo. 444:8 24. 24 Customers/students rescheduled tutoring 22. sessions directly with Plaintiff. 25 26 Charles Depo. 446:18 22. Varsity did not provide Plaintiff with an 27 23. employee handbook. 28 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES Charles Depo. 453:8 10. Varsity did not issue Plaintiff any written 24. warnings. Charles Depo. 453:11 13. Varsity did not issue Plaintiff any written 25. discipline. Charles Depo. 453:14 16. Varsity did not assign Plaintiff a supervisor. 26. Charles Depo. 454:3 6. Varsity did not assign Plaintiff a manager. 27. 10 Charles Depo. 454:7 9. Varsity did not assign Plaintiff someone to 28. whom he needed to report (as there was no 11 one at Varsity to assign Plaintiff or any 12 other tutor on the platform to). 13 Charles Depo. 48:1-49:25, 405:1-406:25, 14 and 454:20 23. Varsity did not issue Plaintiff an annual 15 29. performance review. 16 Charles Depo. 454:4 11. 17 INTENTIONALLY BLANK. 30. 18 “Plaintiff prepared on the same day as a 31. tutoring session about 50% of the time in 19 general, and he was very likely to do so if he was tutoring for four or fewer hours in a 20 day. When Plaintiff did not prepare on the same day as a session, he typically did so no 21 more than three days prior to a tutoring 22 session.” 23 Charles Depo. 168:19-169:25 (Ex. 35 at Interrogatory Numbers 22-27, 32-37, 42-47, 24 52 57, 62 67, 72 77, 82 87, 102, and 111 Varsity did not have the subject matter 25 32. knowledge to provide insight into the tutors’ 26 tutoring services. 27 28 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES Charles Depo. 66:3-19 (Ex. 7 at Recital B), and 124:12-15); Swenson Depo 57:4-14, and 60:4-9 (“We don’t have [subject matter expertise], and we need to make sure the tutor does.”) Plaintiff scheduled and rescheduled sessions 33. directly with customers/students without Varsity’s knowledge or intervention Charles Depo. 441:18-443:19 (Ex. 72); Swenson Decl. at ¶ 36 (Ex. 17)(“Would it be okay if we started half an hour later so I could schedule another client before our session? If it would mess up your schedule I can schedule them for a totally different week”); Nendel-Flores Decl. at ¶9 (Ex. 10 87,VARSITY 062258) (“Sorry, I keep 11 canceling. Right. Yeah, I was actually kind of sick the other day when you canceled. I 12 was like, yeah. Yeah, no big deal, don't worry. Um So it worked out for me. I don't 13 really care if like students cancel. I care 14 when you like, I have to wake up at 9 a.m. and you're not there. That's what bothers 15 me. But otherwise, I really don't mind. I have other things to do as well. I don't know 16 if I told you this, but I'm actually a contract interpreter. So, whenever I'm not teaching 17 the ACT I log in my interpreters and stuff, 18 so it's really no big deal if I'm teaching the ACT or not, I wanna make sure you're 19 successful. But if you need to reschedule as long as it's not like, you know, class time is 20 like 9 a.m. and you're not here that just kind of bugs me.”), Nendel-Flores Decl. at ¶9 21 (Ex. 94,VARSITY 062442), (Ex. 105, 22 VARSITY 062632 (v.2)), (Ex. 82,VARSITY 062087), (Ex. 114,VARSITY 23 062808 ; (Ex. 118 VARSITY 062909 Plaintiff used tutoring materials he created 24 34. for his business “Alexander Charles Tutoring” while tutoring students he 25 obtained through the Varsity Platform. 26 Charles Depo. 180:4-181:8 (Ex. 37), and 27 379:8 20; Nendel Flores Decl. at ¶9 (Ex. 28 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES 111,VARSITY 062741) (“And you'll notice in the top of every page right here. So, do you only do tutoring with Varsity Tutors? No, I have other companies that I work for as well. Yeah. Good business. Thank you….” [Plaintiff calls student’s attention to his logo at the top of the page]); (Ex. 104,VARSITY 062632 (v.1))(“Hold on, let me sign into my email real quick. Ok. Yeah, if it takes two seconds we can do it. Ok. So these are ideas that create your own or do they give to you? You create your own? I created mine and it, it wasn’t given to me. Yeah.”). During the relevant time-period, Varsity 35. provided platform how-to videos when an 10 individual was hired as a contractor, as a 11 resource to facilitate familiarity with the Platform’s features. The tutors were not 12 required to review the videos as a prerequisite before tutoring 13 customers/students. 14 Swenson Depo. 64:1 17. 15 The profile individual tutors create with 36. Varsity is not proprietary. 16 Swenson Depo. 75:19 23. 17 Tutors commonly post their individual 37. profiles on other platforms besides Varsity. 18 19 Swenson Depo. 75:21 76:2 Varsity did not require individual tutors to 20 38. have a separate business entity or hold a business license. 21 22 Swenson Depo. 76:13 25. Varsity did not control what the tutors 23 39. invoiced. 24 Swenson Depo. 109:8-10; Charles Depo. 25 60:12-61:4 (Ex.5 at ¶ 8) 66:3-19 (Ex. 7 at ¶ 10),129:1-25, 441:1-442:25, and 446:1-25; 26 Nendel-Flores Decl. at ¶9 (Ex. 63,VARSITY 061824), (Ex. 122,VARSITY 27 062991), (Ex. 80,VARSITY 062069), (Ex. 28 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES 85,VARSITY 062232), and (Ex. 112,VARSITY 062757). Plaintiff maintained sole discretion to 40. charge no-show and/or cancellation fees. Swenson Depo. 152:7-20, 153:16-23, 155:6-21, and 249:3-5; see e.g., Swenson Decl. at ¶¶ 34-35 (Ex. 15)( “Normally Hardev would get charged for a cancellation less than 24 hours before class. But he’s a really great kid and he has a medical excuse, so I’ll be make sure he doesn’t get charged. Please send him my best. Chat soon.”), and (Ex. 16)(“Normally there’s a 24-hour cancellation fee I’ll have waived today. But same-day scheduling doesn’t 10 normally work. Just trying to make sure we 11 both use our time in an effective manner.”)(emphasis added). 12 A tutor can negotiate his or her rate. 41. 13 Swenson Depo. 182:8 20. 14 Varsity did not issue payments to the tutors, 42. instead payments were distributed by a third 15 party vendor, Integrated Payroll Services. 16 Swenson Depo. 188:6 18. Plaintiff determined the scope of services 17 43. provided to customers/students. 18 See e.g., Charles Depo. 60:12-61:4 (Ex.5 at 19 Recital A and ¶ 5), 66:3-19 (Ex. 7 at Recital A and ¶¶ 1(a) and 7)(tutors possessed the 20 “sole and exclusive right to control and direct the means and manner” of his or her 21 services) and 402:5 403:23 (Ex. 63). 22 Tutors determined the subjects they would 44. teach to their customers/students. 23 Swenson Depo. 57:7-20; Swenson Decl. at 24 ¶ 19. 25 Tutors were free to tutor customers/students 45. outside the Platform. 26 27 28 10 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES Charles Depo. 24:4-27:8, 46:1-48:25, 66:3- 19 (Ex. 7 at ¶ 1(f))-(h))(“Tutor may provide similar tutoring services to other clients who are not part of the Company’s online platform or who are obtained by Tutor through another company’s online platform), and 435:12 436:1 17. ISSUE 4: Varsity is entitled to summary adjudication that it properly classified Plaintiff as an independent contractor under Borello’s multi-factor test because Plaintiff is a highly skilled tutor Moving Party’s Undisputed Material Opposing Party’s Response No. Facts and Supporting Evidence and Supporting Evidence 10 Plaintiff created and used his own tutoring 46. materials he created for his business “Alexander 11 Charles Tutoring” while tutoring customers/students he obtained through the 12 Varsity Platform. 13 Charles Depo. 180:4-181:8 (Ex. 37), and 379:8- 14 20; Nendel-Flores Decl. at ¶9 (Ex. 111,VARSITY 062741) (“And you'll notice in 15 the top of every page right here. So, do you only do tutoring with Varsity Tutors? No, I 16 have other companies that I work for as well. 17 Yeah. Good business. Thank you. Um So yeah, question order. This is the really important 18 thing. This is the one thing you really, really, really, really got to get done. Um Don't go 19 through the questions of normal order, just go 20 through them specific to general. This is, this is a framework for you.” [Plaintiff calls student’s 21 attention to his logo at the top of the page]); Nendel-Flores Decl. at ¶9 (Ex.104,VARSITY 22 062632 (v.1))(“Hold on, let me sign into my email real quick. Ok. Yeah, if it takes two 23 seconds we can do it. Ok. So these are ideas 24 that create your own or do they give to you? You create your own? I created mine and it, it 25 wasn’t given to me. Yeah.”) Plaintiff represented to his students that 26 47. materials that he created for tutoring purposes are his intellectual property. 27 28 11 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES Charles Depo. 379:8 20. Plaintiff scored within the top 1% of ACT 48. test takers on a practice test and obtained a perfect score on a SAT practice test. Charles Depo. 397:6-21 (Ex. 61), 399:13- 16, and 400:11 401:14 (Ex. 62). Plaintiff spent significant time studying the 49. Princeton Review materials and contributing to the Princeton Review’s ACT and SAT test materials to be able to identify inaccuracies and discrepancies between the Princeton Review’s practice ACT and SAT tests and the real ACT and SAT tests. 10 Charles Depo. 401:15-25; Nendel-Flores Decl. at ¶9 (Ex. 86,VARSITY 062245)(“Yeah, 2018. 11 It says five Fulling practice tests full in the book and one online. Yeah. Um I worked on 12 that book so we’re gonna use that book. I’m so happy it’s out now. Uh I think I have a copy of 13 it somewhere. We’re gonna use that for your 14 homework. Um let me just check that I have a copy of it somewhere. Uh No. So is this one? 15 Uh I actually don’t know if I have that one specifically. Um Can you open it up to the first 16 test and tell me what the first test is about? Yeah, hold on.”) 17 Plaintiff created ACT writing materials for 50. his customers/students. 18 Charles Depo. 438:21-24. 19 According to Plaintiff, “Plaintiff needed to 20 51. cater his preparation to the needs of the individual student. Plaintiff’s preparation 21 typically took 5 to 15 minutes per session, and it was common to take up to 30 minutes 22 preparing per session when students had 23 special tutoring needs or were learning more specialized topics.” 24 Charles Depo. 168:19-169:25 (Ex. 35 at 25 Interrogatory Numbers 22-27, 32-37, 42-47, 26 52-57, 62-67, 72-77, 82-87, 102, and 111); see also Charles Decl. at ¶¶ 37-38 (Ex. 27 18)(“But to make any sort of progress, 28 12 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES especially at his level, he needs to be doing at least 2 practice tests between sessions.”) (Ex. 19) (discussing test taking tips and the need to tailor each student’s content specific to the subject the student needed to review). Plaintiff acknowledged his expertise in his 52. Independent Contractor Agreement and in his communication with customers/students. Swenson Decl. at ¶ 32 (Ex. 13) (stating that he was “rated one of the best math tutors on the Platform”); Nendel-Flores Decl. at ¶9 (Ex. 93,VARSITY062389 (v.2))(“So like if you have any questions about tutoring, I’m like one of the top tutors in LA, I totally get it. Um I can give you whatever 10 resources you need basically. Ok. 11 Awesome. Thank you so much. Sure. So like, like the practice tests, for example, like 12 let’s say there are five top test prep companies in LA. They all use the same, 13 they all use the same practice test. It’s free 14 online.”)( mphasis added). Plaintiff represented to Varsity that he 53. possessed his tutoring skills prior to his 15 contract with Varsity Tutors. 16 Charles Depo. 60:12-61:4 (Ex. 5 at Recital 17 B and ¶ 1). 18 By May 17, 2018, Plaintiff had three years 54. of experience as a tutor and experience 19 tutoring internationally. 20 Nendel-Flores Decl. at ¶9 (Ex. 115,VARSITY 062860) (“I’ve been 21 tutoring for three years. I’ve tutored in 22 Turkey. I was actually an interpreter there, a linguistic interpreter. Um, but I hated it. So 23 I started tutoring and I loved it a lot more. So then I moved back home and Then I 24 moved to Lon-don where I was also an interpreter. And as of today I, I moved to 25 Los Angeles where I’m starting my own 26 tutoring business. So uh I’m a graduate at NYU for Explorer. Um Been doing this for 27 three years.”) 28 13 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES Plaintiff was hired by a private company to 55. create several courses geared towards teaching the ACT and he wrote four practice ACTs. Nendel-Flores Decl. at ¶9 (Ex. 68,VARSITY 061905)(“Do you just like study there? Sitting? Yeah, I, I spend my mornings writing and then I do the ACT stuff. It’s been a lot more ACT stuff this week this month because I’ve been launching my own business. It’s really fun. Um, but they’ve also been doing this for about three years and I, I’ve been asked to create several courses and yesterday a private company reached out to me and they 10 want me to write four ACTs to them over 11 the summer. It’s fun. I like that because it’s a lot more. It’s not much more but it’s still 12 pretty good stuff. I get to do whatever I want to.”) 13 Plaintiff was retained by other companies to 56. write ACT tests. 14 15 Nendel-Flores Decl. at ¶9 (Ex. 107,VARSITY 062658) (“I got a job two 16 years ago, like we already wrote the SAT stuff for them and they’re like, write some 17 ACT stuff for us as well. So a practice test. 18 I’m already doing that. So I figured I might as well start my own business. Right. So, 19 um, you like writing, like, ACTS? Yeah, I’m on a team but I’m still doing 20 everything. Right. Like, it’s not like I have a limited role. I’m doing English, math, 21 reading, science, writing everything. Um, so 22 when I figured I was already doing all this stuff, I was like, you know what? I might as 23 well just start my own company and, like, do my own tutoring stuff. Um So I made all 24 my own materials here already Do that professionally.”) 25 Plaintiff previously worked as an interpreter 57. for the United States Department of 26 Homeland Security. 27 28 14 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES Nendel-Flores Decl. at ¶9 (Ex. 96,VARSITY 062453) (“But, um, I moved out to Los Angeles to work in television so I have to write a bunch of spec scripts and I have to meet a bunch of people and I have to talk to people about my scripts and that’s how I’m gonna work as a TV. Writer. Notoriously difficult to break into, notoriously difficult, but that’s what I love doing. So, um I tutor, I used to interpret. I was a Turkish language interpreter, interpreter for the US government.”) Plaintiff described the materials as “the best 58. of the best” because he created them using the experience he gained from working with various tutoring companies. 10 11 Nendel-Flores Decl. at ¶9 (Ex. 98,VARSITY 062470)(“I don’t know if I 12 told you this, this is all stuff that I create. This is all like I've had a bunch of training 13 throughout several different companies and 14 this is like the best of the best. Um Yeah, I’m just always working on improving it. So 15 I wanna make sure that you get everything that’s there…”)( mphasis added). 16 Plaintiff described himself as “one of the 59. top tutors in LA.” 17 18 Nendel-Flores Decl. at ¶9 (Ex. 93,VARSITY 062389 (v.2)) (“So like if you 19 have any questions about tutoring, I’m like one of the top tutors in LA, I totally get it. 20 Um I can give you whatever resources you need basically. Ok. Awesome. Thank you 21 so much. Sure. So like, like the practice 22 tests, for example, like let’s say there are five top test prep companies in LA. They all 23 use the same, they all use the same practice test. It’s free online.”)(Emphasis added). 24 Plaintiff had the ability to review practice 60. materials and determine whether they 25 comported with the material as tested on the 26 SAT. 27 28 15 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES Nendel-Flores Decl. at ¶9 (Ex. 100,VARSITY 062577 (v.1))(“Um, you use the varsity tutor stuff, which I see. Um, they’re saying it’s the SAT. The stuff on here doe’n't appear on the SAT, like number one, for example, does not appear in the SAT. Sure we can go over this stuff, but it's probably more be’eficial to talk about sort of what your goals are and then figure out what you need to go over. How does that sound?”). Plaintiff obtained his undergraduate degree 61. in literature from New York University and was on the dean’s list. Charles Depo. 71:16-20; Nendel-Flores 10 Decl. at ¶9 (Ex. 115,VARSITY 11 062860)(“I’ve been tutoring for three years. I’ve tutored in Turkey. I was actually an 12 interpreter there, a linguistic interpreter. Um, but I hated it. So I started tutoring and I 13 loved it a lot more. So then I moved back 14 home and Then I moved to Lon-don where I was also an interpreter. And as of today I, I 15 moved to Los Angeles where I’m starting my own tutoring business. So uh I’m a 16 graduate at NYU for Explorer. Um Been doing this for three years.”). 17 18 ISSUE 5: Varsity is entitled to summary adjudication that it properly classified Plaintiff as 19 an independent contractor under Borello’s multi-factor test because the parties believed they formed an independent contractor relationship. 20 21 Moving Party’s Undisputed Material Opposing Party’s Response No. Facts and Supporting Evidence and Supporting Evidence 22 While under contract with Varsity, Plaintiff 23 62. contemporaneously described his relationship with Varsity that he’s been an 24 independent contractor for two years and 25 Varsity does not “interfere with what [he does] in any way.” 26 Charles Depo. 98:24-100:19 (Ex. 14) (“I’ve 27 been an independent contractor for two 28 16 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES years . . . . They don’t interfere with what I do in any way.” (emphasis added). Plaintiff admitted that he understood the tax 63. differences between an IRS Form W-2 and 1099. Charles Depo. 367:25 368:6. Plaintiff did not request compensation via 64. IRS Form W-2. Charles Depo. 368:11 15 Plaintiff filed tax returns as a sole proprietor 65. and deducted $2,700 in business expenses in 2017. 10 Charles Depo. 369:17 371:4 (Ex. 56). Plaintiff filed tax returns as a sole proprietor 66. and deducted $7,205 in business expenses 11 in 2018. 12 Charles Depo. 373:8 374:23. 13 Plaintiff has not amended his 2017, 2018, 67. and 2019 tax returns. 14 15 Charles Depo. 377:9 17. Plaintiff signed seven Independent 16 68. Contractor Agreements explicitly stating 17 that he was an independent contractor. 18 Charles Depo. 60:12-61:4 (Ex.5 at ¶¶ 9 and 32); 64:4-65:1 (Ex.6 at ¶¶ 9 and 32); 66:3- 19 19 (Ex. 7 at ¶¶ 1 and 31); 67:10-68:1 (Ex. 8 at ¶¶ 1 and 31), 68:6-19 (Ex.9 at ¶¶ 1 and 20 31), 68:24-69:11 (Ex.10 at ¶¶ 1 and 31), and 21 386:5 25 (Ex. 59 at ¶¶ 1 and 31). Plaintiff was not coerced to sign the ICA or 69. placed under duress while signing the ICA. 22 23 Charles Depo. 60:12 69:11, and 387:12 22. Plaintiff referred to himself as “self- 24 70. employed” and “independent contractor” on 25 multiple occasions. 26 Charles Depo. 97:1-14, 99:20-100:4 (noting that he’s been an independent contractor for 27 28 17 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES two years); 100:14-20, 229:12-14, and 230:21 231:1. Plaintiff referred to himself as a private 71. tutor on his LinkedIn profile. Charles Depo. 228:8-20 (Ex. 43), and 234:2 (Ex.44) Plaintiff admitted the contractor relationship 72. was not permanent. Nendel-Flores Decl. at ¶9 (Ex. 77,VARSITY 062008) (“So, is this like your permanent job? So, they could do it like, anywhere? No, this is my part time job. I was my part time job. Normally I'm an 10 interpreter. Um but I'm not really a big fan of it. So I just started doing this and it's sup- 11 posed to be a part time job, but it's supposed to be...”) 12 As the final step of the application process, 73. Varsity issues a W-9 to the contracted tutor. 13 14 Swenson Depo. 109:8 10. Plaintiff entered into seven Independent 74. Contractor Agreements with Varsity Tutors. 15 16 Charles Depo. 60:12-61:4 (Ex.5); 64:4-65:1 (Ex.6); 66:3-19 (Ex. 7); 67:10-68:1 (Ex. 8), 17 68:6-19 (Ex.9), 68:24-69:11 (Ex.10), 70:1- 18 15, and 386:5 25 (Ex. 59). In 2019, Plaintiff filed tax returns as a sole 19 75. proprietor, deducted no business expenses, and claimed $8,713 in income. 20 21 Charles Depo. 375:17 377:8 (Ex. 57). 22 ISSUE 6: Varsity is entitled to summary adjudication that it properly classified Plaintiff as 23 an independent contractor under Borello’s multi-factor test because Plaintiff was engaged in his own distinct business. 24 25 Moving Party’s Undisputed Material Opposing Party’s Response No. Facts and Supporting Evidence and Supporting Evidence 26 27 Plaintiff could take on as many or as few 76. Customers as he wanted. 28 18 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES See e.g. Charles Depo. 60:12-61:4 (Ex.5 at ¶¶ 2-3), and 66:3-19 (Ex. 7 at ¶¶ 3-4); Nendel-Flores Decl. at ¶9 (Ex. 91, VARSITY 062374). Plaintiff maintained sole discretion 77. regarding what expenses he could incur with respect to tutoring and supplies. See e.g. Charles Depo. 60:12-61:4 (Ex.5 at ¶¶ 7, 8, and 10), and 66:3-19 (Ex. 7 at ¶¶ 1(h)-(i), 9, and 10); Nendel-Flores Decl. at ¶9 (Ex. 72,VARSITY 061924 (v.3); Nendel-Flores Decl. at ¶9 (Ex. 87 VARSITY 062258). 10 Plaintiff tutored customers/students outside 78. the Varsity platform. 11 Charles Depo. 24:4-27:8, 46:1-48:25, and 12 435:12 436:1 17. Plaintiff posted his tutoring profile outside 13 79. of Varsity. 14 Charles Depo. 228:8-20 (Ex. 43), and 15 234:2 4 (Ex.44). Plaintiff had discretion to charge no-show 16 80. or cancelation fees 17 Charles Depo. 60:12-61:4 (Ex.5 at ¶ 8) 18 66:3-19 (Ex. 7 at ¶ 10),129:1-25, 441:1- 442:25, and 446:1-25; Nendel-Flores Decl. 19 at ¶9 (Ex. 122,VARSITY 062991), (Ex. 80,VARSITY 062069), (Ex. 85,VARSITY 20 062232 , and (Ex. 112 VARSITY 062757). 21 Varsity had no oversight over what Plaintiff 81. invoiced during his sessions. 22 Swenson Depo. 107:22-109: 10 (noting 23 Varsity has “no control over what the tutor actually invoices for” and that it is “up to 24 the tutors”), and 213 10 214:9. 25 Varsity did not prevent Plaintiff from 82. ending tutoring sessions early. 26 Charles Depo. 380: 11 16. 27 28 19 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES Varsity did not reimburse Plaintiff for 83. business expenses. See e.g. Charles Depo. 60:12-61:4 (Ex.5 at ¶ 10), 66:3-19 (Ex. 7 at ¶¶ 1(h)-(i) and 9) and 92 21. In contrast, Plaintiff provided tutoring 84. services to customers/students that he obtained both on Varsity’s platform and outside of Varsity’s platform. Charles Depo. 79:17-81:1 (Ex. 11), 84:8-25 (Ex. 12), 90:22-91:9, 95:24-96:6 (Ex. 13), 103:20-104:15 (Ex. 15), and 107:17-25 (Ex.16). 10 Nendel Decl. at ¶¶ __ (Ex. VARSITY 11 061940) (“Do you do this outside of this varsity tutors? Uh-huh my own business, 12 right? We'll finish this up and I'll give you a link…); Nendel-Flores Decl. at ¶9 (Ex. 13 116,VARSITY 062885 (v.1)), (Ex. 78, 14 VARSITY 062020), and (Ex. 120 VARSITY 062936). 15 Plaintiff established and operated Alexander 85. Charles Tutoring while simultaneously 16 engaging with Customers through the Platform. 17 18 Charles Depo. 110:13-111:15, and 174:18- 175:2 19 Plaintiff adopted a logo; created and 86. maintained a website; ran online advertising 20 (in addition to his advertising on Varsity’s platform); maintained a Yelp account and 21 created and used his own branded materials. 22 Charles Depo. 22:14-23:4, 25:13-17, 23 108:23-109:17, 111:25-112:19 (Ex. 18), and 115:2 20 (Ex. 20). 24 Plaintiff’s own website 87. www.alexandercharlestutoring.com 25 showcased his work in order to obtain 26 additional tutoring customers/students. 27 Charles Depo. 24:16 21. 28 20 DEFENDANT VARSITY TUTOR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES Plaintiff promoted his business to his 88. customers/students and referred them to his website. Nendel-Flores Decl. at ¶9 (Ex. 107,VARSITY 062658) (“I got a job two years ago, like we already wrote the SAT stuff for them and they're like, right, some ACT stuff for us as well. So I practice test. I'm already doing that. So I figured I might as well start my own business. Right. So, um, you like writing, like, ACTS? Yeah, I'm on a team but I'm still doing everything. Right. Like, it's not like I have a limited role. I'm doing English, math, reading, science, writing everything. Um, so when I 10 figured I was already doing all this stuff, I 11 was like, you know what? I might as well just start my own company and, like, do my 12 own drink stuff. Um So I made all my own materials here already do that 13 professionally.”)(emphasis added), (Ex. 14 97,VARSITY 062462)(“This is, this is the most exciting to happen in my day for a 15 boring. Do. Really? Yeah, I'm for you. Oh, like you can't. All right. It is not uploading 16 but I got a logo made for my business and it's really, really, it looks really nice. 17 Everyone's like freaking out. It looks so 18 nice. Uploading. It looks so and I wanted to share it with you because it just looks so 19 nice. Oh, wait, is it this, I thin