Preview
Rafael G. Nendel Flores, Esq., SBN 223358
Guillermo Tello, Esq., SBN 277896
Katie Sharpless, Esq. SBN 335463
Alejandro Rosa, Esq., SBN: 340410
LARK ILL 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,
[Assigned to Hon. Theodore C. Zayner
Plaintiff, Department 19]
DEFENDANT VARSITY TUTORS LLC’S
OPPOSITION TO PLAINTIFF
ALEXANDER CHARLES’S MOTION
VARSITY TUTORS LLC, SUMMARY ADJUDICATION;
MEMORANDUM OF POINTS AND
Defendant. AUTHORITIES SUPPORT THEREOF
DATE: October 18, 2023
TIME: 1:30 P.M.
DEPT:
Complaint Filed: May 1, 2019
FAC Filed: May 30, 2019
Trial Date: May 13, 2024
DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR
SUMMARY ADJUDICATION; MEMORANDUM POINTS AND AUTHORITIES IN SUPPORT THEREOF
TABLE OF CONTENTS
I. INTRODUCTION AND SUMMARY OF ARGUMENTS .........................................................1
II. FACTS ..........................................................................................................................................2
III. LEGAL STANDARDS ................................................................................................................2
IV. LEGAL ARGUMENT ..................................................................................................................2
A. Plaintiff’s MSA Fails as a Matter of Law Because His Proposition that the ABC Test
Applies to All of His PAGA Theories Does Not “Completely Dispose of Any of
Varsity’s Affirmative Defenses”..................................................................................... 2
B. Plaintiff’s Argument That the ABC Test Applies to All of His PAGA Theories Lacks
Merit. ............................................................................................................................... 4
C. Assuming the ABC Test Applies, Plaintiff is not Entitled to Summary Adjudication
That it Satisfied Factors B or C....................................................................................... 8
10 1. Plaintiff Cannot Establish That Varsity Was a Tutoring Company Because, In
His Undisputed Material Fact No. 9, Plaintiff Admits That Varsity Did Not
11 Have the Ability to Provide Tutoring Services .....................................................9
12 2. Plaintiff Provided Services That were Outside Varsity’s Usual Course of
Business ..............................................................................................................10
13
(a) Plaintiff’s Argument Incorrectly Narrows Varsity’s Usual Course of
14 Business and Plaintiff Provides No Admissible Evidence Supporting the
Argument that Varsity Describes its Own Business as Solely Providing
15 Tutoring Services ....................................................................................11
16 (b) Tutors are “Incidental” to Varsity’s Business .........................................13
(c) The Court Need Not Analyze Whether Varsity’s Business Model Relied
17 on Tutors to Continuously Perform the Work ........................................14
18 (d) The Method in Which Varsity Obtained its Customers is Irrelevant .....15
3. Plaintiff was Engaged in an Independently Established Trade, Occupation, or
19
Business of the Same Nature as the Work He Performed Through the Platform
20 .............................................................................................................................15
V. CONCLUSION ...........................................................................................................................20
21
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TABLE OF AUTHORITIES
Page(s)
Cases
Affordable Cabs, Inc.,124 Wash. App. at 365 .........................................................................18, 19
AFM Messenger Serv., Inc. v. Dep’t of Emp. Sec.
(2001), 198 Ill. 2d 380 .............................................................................................................19
Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826 ................................................................................................................2
Becerra v. McClatchy Co.
(2021) 69 Cal.App.4th 913 ....................................................................................................4, 8
10 Borello & Sons, Inc. v. Department of Industrial Relations,
(1989) 48 Cal.3d 341 ....................................................................................................... passim
11
Bowerman v. Field Asset Servs.
12 (9th Cir. 2022) 39 F.4th 652 ......................................................................................................8
13 Canava v. Rail Delivery Service Inc.
(C.D. Cal. Aug. 8, 2021) 2021 WL 4907227...........................................................................13
14
Corely v. FedEx Ground
15 (CD Cal. June 2, 2022) 2022 WL 1805435 ...............................................................................8
16 Doe v. Good Samaritan Hospital
(2018) 23 Cal.App.5th 653 ........................................................................................................5
17
Dynamex Operations West v. Superior Ct.
18 (2018) 4 Cal.5th 903 ........................................................................................................ passim
19 Garcia v. Border Transportation Group, LLC
(2018) 28 Cal.App.5th 558 ....................................................................................................3, 8
20
Gonzales v. San Gabriel Transit, Inc.
21 (2019) 40 Cal.App.5th 1131 ..........................................................................................5, 6, 7, 8
22 Goro v. Flowers Foods, Inc.
(S.D. Cal. Sept. 21, 2021) 2021 WL 4295294 .................................................................5, 6, 12
23
Hall v. Cultural Care USA
24 (N.D. Cal. 2022) 624 F. Supp. 3d 1171 .................................................................................5, 6
25 Hartline v. Kaiser Foundation Hospitals
(2005) 132 Cal.App.4th 458 ..................................................................................................1, 3
26
Henry v. Central Freight Lines, Inc.
27 (E.D Cal. June 13, 2019) 2019 WL 2465339 ................................................................3, 4, 5, 8
28 Jameson v. Desta
(2015) 194 Cal.Rptr.3d 152 .......................................................................................................3
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Kendall-Jackson Winery, Ltd. v. Superior Court
(1999) 90 Cal.Rptr.2d 743 .........................................................................................................3
in re Leazard
(2010) 903 N.Y.S.2d 198 .........................................................................................................18
Ludlow v. Flowers Foods, Inc.
(S.D. Cal. July 5, 2022) 2022 WL 2441295 ............................................................................12
Moreno v. JCT Logistics, Inc.
(C.D. Cal. May 29, 2019) 2019 WL 3858999 ...........................................................................8
Naranjo v. Spectrum Security Services, Inc.
(2022) 13 Cal.5th 93 ..............................................................................................................5, 6
Nazir v. United Airlines, Inc.
178 Cal.App.4th 243 ..............................................................................................................3, 4
10 Roman v. Jan-Pro Franchising International, Inc.
(2022) 342 F.R.D. 274 ...............................................................................................................8
11
Salter v. Quality Carriers, Inc.
12 (October 27, 2021) 2021 WL 5049054 ..............................................................................4, 7, 8
13 Sportsman v. A Place for Rover Inc.
(2021) 537 F.Supp. 3d 1081,1094-96 1096 ..................................................................... passim
14
Thurman v. Bayshore Transit Mgmt., Inc.
15 (2019) 203 Cal. App. 4th 1112 ..............................................................................................4, 5
16 Varsity Tutors LLC v. Indus. Claim Appeals Office of Colo.
(Co. Ct. App. 2017) 488 P.3d 258. ..........................................................................................18
17
Vazquez v. Jan-Pro Franchising International, Inc.
18 (9th Cir. Feb. 2, 2021) 986 F.3d 1106 ...................................................................11, 13, 14, 15
19 Vendor Surveillance Corporation v. Henning
(2021) 62 Cal. App. 5th 59 ........................................................................................................5
20
Statutes
21
Code Civ. Proc. § 437c ....................................................................................................................2
22
Code Civ. Proc. § 437c(f) ................................................................................................................2
23
Code Civ. Proc. § 437c(f)(1)....................................................................................................1, 2, 3
24
Lab. Code § 226 .......................................................................................................................4, 6, 7
25
Lab. Code § 226(1) ..........................................................................................................................6
26
Lab. Code § 226(a) ..........................................................................................................................7
27
Lab. Code § 226.7 ............................................................................................................................7
28
Lab. Code § 226.8 ............................................................................................................................4
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Lab. Code § 558(a) ..........................................................................................................................7
Lab. Code § 1197.1(a) .....................................................................................................................7
Lab. Code § 2802 .....................................................................................................................4, 7, 8
Lab. Code § 2802(a)-(d) ..................................................................................................................7
Other Authorities
IWC Wage Order No. 4 ...................................................................................................................5
IWC Wage Order No. 7-2001 Regulating Wages, Hours, and Working Conditions in
the Mercantile Industry §7(B)....................................................................................................7
IWC Wage Order No. 9 ...............................................................................................................6, 7
IWC Wage Order No. 9-2001 Regulating Wages, Hours and Working Conditions in the
10 Transportation Industry §8 .........................................................................................................7
11 IWC Wage Order No. 16-2001 ........................................................................................................8
12 IWC Wage Order § 7 .......................................................................................................................7
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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MEMORANDUM AND POINTS AND AUTHORITIES
Defendant Varsity Tutors LLC (“Varsity”) hereby submits this brief in Opposition to Plaintiff
Alexander Charles’s Motion for Summary Adjudication (“MSA”).
I. INTRODUCTION AND SUMMARY OF ARGUMENTS
Plaintiff’s MSA fails as a matter of law because his proposition that the ABC test applies to all
of his liability theories does not “completely dispose of any of Varsity’s affirmative defenses.” Code
Civ. Proc., § 437c(f)(1)). In solely focusing on the ABC test, Plaintiff overlooked and omitted any
analysis of the Borello factors. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48
Cal.3d 341, 351. Meaning, if the Court finds that Borello applies to even one of Plaintiff’s PAGA
10 theories, then Plaintiff’s MSA must fail. Hartline v. Kaiser Foundation Hospitals (2005) 132
11 Cal.App.4th 458, 464 (citing Code Civ. Proc., § 437c(f)(1)) (emphasis added).
12 Even though the MSA can and should be denied without applying either the ABC or Borello
13 test, as set forth below in section IV(A), Plaintiff’s arguments regarding factor B and C of the ABC test
14 also fail. Plaintiff’s arguments fail as to factor B because Plaintiff lacks both factual and legal support
15 for his argument that Plaintiff’s tutoring services were part of Varsity’s “usual course of business.”
16 Indeed, in support of his factor B analysis, Plaintiff asks this court to find that Varsity was a tutoring
17 company while, at the same time, asking this court to find that Varsity was incapable of providing
18 tutoring services. Such an argument is nonsensical. Plainly, during the Relevant Time Period, Varsity
19 was a technology company, not a tutoring company. Varsity’s Response to Plaintiff’s Separate
20 Statement of Undisputed Material Facts in Support of his MSA (“Response UMF”) 5. Finally, Plaintiff’s
21 arguments fail as to factor C because Plaintiff lacks both factual and legal support for his arguments that
22 he was not engaged in an independently established trade, occupation, or business of the same nature as
23 that involved in the work performed through the platform. Instead, the evidence not only plainly
24 demonstrates Plaintiff created his own tutoring business, and provided tutoring services through other
25 companies/entities/clients in addition to (and concurrent with) his contractual relationship with Varsity,
26 but also, Plaintiff’s use of and activity through Varsity’s platform further supports the conclusion that
27
The Relevant Time Period is May 30, 2018 (one year prior to the filing of Plaintiff’s First Amended Complaint (“FAC”))
28 through December 31, 2019, when Varsity stopped contracting with California tutors. Varsity’s Separate Statement of
Undisputed Material Facts in Support of its Motion for Summary Judgment (“Varsity UMF”) 301.
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he maintained his own business. See e.g., Response UMF 32, 34, 45-46, 49, 51, 62, and 68. Accordingly,
Plaintiff is not entitled to summary adjudication on either factors B or C of the ABC test. For all of these
reasons, and as further established herein, Plaintiff’s MSA must be denied in its entirety.
II. FACTS
Varsity incorporates by reference the discussion of facts as set forth in its Motion for Summary
Judgment, and in the alternative Motion for Summary Adjudication.
III. LEGAL STANDARDS
Summary judgment must be granted when no triable issue of material fact exists, or the disputed
issue is one of law and the action can be terminated for the moving party without the necessity of a trial.
10 Code Civ. Pro. § 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843-44. Summary
11 adjudication works the same way, “except it acts on specific causes of action or affirmative defenses,
12 rather than on the entire complaint.” § 437c(f). A summary adjudication is properly granted “only if a
13 motion therefore completely disposes of a cause of action, an affirmative defense, a claim for damages,
14 or an issue of duty.” Id. at (f)(1) (emphasis added).
15 IV. LEGAL ARGUMENT
16 A. Plaintiff’s MSA Fails as a Matter of Law Because His Proposition that the ABC
Test Applies to All of His PAGA Theories Does Not “Completely Dispose of Any of
17 Varsity’s Affirmative Defenses”
18 Plaintiff’s MSA fails as a matter of law because his proposition that the ABC test applies to all
19 of his PAGA theories does not “completely dispose” of any of Varsity’s affirmative defenses. Meaning,
20 if the Court finds that Borello applies to even one of Plaintiff’s PAGA theories, then Plaintiff’s MSA
21 must fail as a matter of law.
22 In Plaintiff’s MSA, Plaintiff seeks summary adjudication as to Varsity’s fourth and sixth
23 affirmative defenses. The fourth affirmative defense maintains that “[t]he Complaint fails because
24 Plaintiffs were properly classified as independent contractors under the applicable California law…”
25 See Declaration of Guillermo Tello in Support of Varsity’s Opposition to Plaintiff’s MSA (“Tello
26 Decl.”) at ¶ 3 (Ex. B, Varsity’s Answer to Plaintiff’s First Amended Complaint at 2:21-25). The sixth
27 affirmative defense maintains that “Defendant did not employ Plaintiffs and therefore no employment
28 relationship existed with Plaintiffs.” Id. at 3:4-5. Here, in order to prevail on his MSA, Plaintiff needed
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to prove there was no evidence to support Varsity’s fourth and sixth affirmative defenses (that tutors
were properly classified by Defendant as independent contractors). Plaintiff has failed to meet this
burden.
Furthermore, Plaintiff’s MSA only addresses the ABC test, and presents no argument and/or
analysis of the Borello factors. As such, the Court must deny Plaintiff’s MSA if it finds that Borello
applies to any of Plaintiff’s PAGA theories because “[a] summary adjudication is properly granted only
if a motion therefore completely disposes of…an affirmative defense…” Hartline, 132 Cal.App.4th at
464 (citing Code Civ. Proc., § 437c(f)(1))(emphasis added); Nazir v. United Airlines, Inc. 178
Cal.App.4th 243, 251 (“Summary adjudication must completely dispose of the cause of action to which
10 it is directed”). Put differently, “[s]ummary adjudication of an affirmative defense is properly granted
11 when there is no triable issue of material fact as to the defense, and the moving party is entitled to
12 judgment on the defense as a matter of law.” Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 90
13 Cal.Rptr.2d 743, 748 (finding that plaintiff failed to establish that he was entitled to summary
14 adjudication on his unclean hands affirmative defense); see also Jameson v. Desta (2015) 194
15 Cal.Rptr.3d 152, 159 (holding that summary adjudication was inappropriate because plaintiff’s issues
16 brought forth in his MSA would not completely dispose of a cause of action, an affirmative defense, a
17 claim for damages, or an issue of duty). In Nazir, the court found that “more than half of the 44 issues
18 defendants sought to have summarily adjudicated fail” because they would not “dispose of,” for
19 example, plaintiff’s claim for harassment as if the court found that one employee did not fail to exhaust
20 his or her administrative remedies, then the court could not dispose of the entire harassment cause of
21 action. Nazir, 178 Cal.App.4th at 25, n.1.
22 Even assuming that Borello does not apply to all of Plaintiff’s PAGA theories (which Defendant
23 submits that it does), at the very least, Borello applies to his PAGA theories for alleged: (1) failure to
24
Borello applies to pre-Section 2750.3 claims stemming from the Labor Code. Dynamex Operations West v. Superior Ct.
25 (2018) 4 Cal.5th 903, 915-16; see also Garcia v. Border Transportation Group, LLC (2018) 28 Cal.App.5th 558, 571 (“we
conclude Borello furnishes the proper standard as to [Plaintiff’s] non-wage order claims.”). For example, in Henry v. Central
26 Freight Lines, Inc., a case involving pre-Section 2750.3 misclassification claims, the court held that Borello applies to pre-
Section 2750.3 PAGA claims. Henry v. Central Freight Lines, Inc. (E.D Cal. June 13, 2019) 2019 WL 2465339 at *8 (“This
27 Court agrees . . . that [Plaintiff’s] claims for . . . violations of PAGA are not grounded in the wage orders, but rather in the
California Labor Code, and must therefore be decided based on [Plaintiff’s] classification under the Borello standard”); see
also Thurman v. Bayshore Transit Mgmt., Inc. (2019) 203 Cal. App. 4th 1112, 1132 (holding that “PAGA does not create
28 any private right of action to directly enforce a wage order” because “a wage order is not a statute.”) (disapproved on other
grounds).
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reimburse for work related expenses, (2) failure to provide accurate wage statements, and (3) intentional
misclassification because the underlying substantive rights from which Plaintiff seeks civil penalties
stem from the Labor Code alone. See Lab. Code § 2802 (statutory basis for work-related expenses
obligations to employees without any reference to or incorporation of wage order requirements);
Becerra v. McClatchy Co. (2021) 69 Cal.App.4th 913, 934 (holding that Borello applied to pre-Section
2750.3 misclassification matters asserting Labor Code section 2802 violations); Lab. Code § 226
(statutory basis for duty to provide accurate wage statements to employees without any reference to or
incorporation of wage order requirements); Salter v. Quality Carriers, Inc. (October 27, 2021) 2021 WL
5049054 at *7 (holding that Borello applies to pre-Section 2750.3 misclassification matters asserting
10 wage statement violations); Lab. Code § 226.8 (statutory basis for intentional misclassification penalty
11 without any reference to or incorporation of wage order requirements). As such, the limited framework
12 in which Plaintiff brought the instant MSA (only addressing the ABC factors, and not Borello) precludes
13 the Court from granting Plaintiff’s MSA because it does not “completely dispose of the cause of action
14 to which it is directed.” Nazir, 178 Cal.App.4th at 251.
15 B. Plaintiff’s Argument That the ABC Test Applies to All of His PAGA Theories
Lacks Merit.
16
17 Plaintiff argues that the ABC test applies to all of his PAGA theories alleged in the First
18 Amended Complaint (“FAC”). This argument lacks merit because, as a threshold matter, Plaintiff
19 ignores that he does not seek direct relief under any substantive Labor Code or IWC Wage Order
20 provision. Declaration of Rafael Nendel-Flores in Support of Varsity’s Motion for Summary Judgment
21 (“Nendel-Flores Decl.”) at ¶ 5 (Ex. 21, FAC ¶¶ 33-34). Instead, Plaintiff seeks only civil penalties under
22 PAGA. Id. at 34. As such, all of Plaintiff’s PAGA theories stem from the Labor Code and are, therefore,
23 controlled by Borello. Henry, 2019 WL 2465339 at *8 (“This Court agrees . . . that [Plaintiff’s] claims
24 for . . . violations of PAGA are not grounded in the wage orders, but rather in the California Labor Code,
25 and must therefore be decided based on [Plaintiff’s] classification under the Borello standard”); see also
26 Thurman, 203 Cal. App. 4th at 1132 (holding that “PAGA does not create any private right of action to
27
28
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directly enforce a wage order” because “a wage order is not a statute.”) (disapproved on other grounds).
Furthermore, Plaintiff cannot successfully argue that the ABC test applies to PAGA theories
where his own FAC does not even allege that a wage order provision was violated. Specifically,
Plaintiff’s failure to indemnify and inaccurate wage statement PAGA theories do not even allege a Wage
Order violation. Nendel-Flores Decl. at ¶ 5 (Ex.21, FAC ¶¶ 34(d)-(e)); Henry, 2021 WL 3187257 at *3
(holding that Borello applied to plaintiff’s reimbursement, unlawful deduction, waiting time penalty,
wage statement, and PAGA claims because “none of these claims in the FAC allege the violation of a
wage order.”). Put differently, by his own admission, Plaintiff’s failure to indemnify and inaccurate
wage statement PAGA theories do not stem from IWC Wage Order 4. Nendel-Flores Decl. at ¶ 5 (Ex.
10 21, FAC ¶¶ 34(d)-(e)).
11 Based on the foregoing, it is not surprising that none of Plaintiff’s cited authority supports the
12 notion that pre-Labor Code section 2750.3 PAGA theories are subject to the ABC test.
13 First, Plaintiff relies on Vendor Surveillance Corporation as an example of a court that applied
14 the ABC test to labor code violations rooted in one or more wage orders. Vendor Surveillance
15 Corporation v. Henning (2021) 62 Cal. App. 5th 59, 74. It is unclear why Plaintiff relies on this case
16 because the Court of Appeal in that case did not address the applicable independent contractor test for
17 discrete wage-hour claims. Id. at 69 (“Unlike Dynamex, this case does not involve alleged violations of
18 a wage order or related claims. Rather it concerns [defendant’s] statutory obligation to pay
19 unemployment insurance tax for work performed during the audit years.”). Id. at 62. Furthermore, that
20 case was an unemployment insurance tax refund matter, not a wage-hour matter. Id.
21 Second, Plaintiff cites a string of parentheticals, Hall, Goro, Naranjo, and Gonzales, purportedly
22 establishing that courts have held that the ABC test applies to claims for work-related expense
23 reimbursement, waiting time penalties, and wage statement penalties. Hall v. Cultural Care USA (N.D.
24 Cal. 2022) 624 F. Supp. 3d 1171, 1175; Goro v. Flowers Foods, Inc. (S.D. Cal. Sept. 21, 2021) 2021
25 WL 4295294 at *13; Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93, 101; Gonzales
26
27
28 Plaintiff cannot ignore the claims and allegations in the FAC, which he has done in the MSA. Plaintiff is limited to the claims and
allegations pled and cannot expand the pleadings through the MSA. Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653, 661
(noting that issues considered with a summary adjudication motion are “defined by the pleadings”).
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v. San Gabriel Transit, Inc. (2019) 40 Cal.App.5th 1131, 1157. Hall Goro and Naranjo are all
factually and legally distinguishable, and therefore inapposite. Regarding Gonzales, Plaintiff’s reliance
on this case is misguided because not only is it factually and legally distinguishable, Plaintiff’s analysis
with respect to Labor Code section 226 is simply incorrect, because Labor Code section 226 (1) imposes
statutory penalties while the wage orders do not, (2) contains numerous requirements beyond Wage
Order requirements; and (3) does not reference and/or incorporate Wage Order requirements.
As a threshold matter, Gonzales is legally distinguishable because the court did not analyze what
test applied to a PAGA civil penalty claim. Rather, in Gonzales, plaintiff alleged violations of both
underlying Labor Code provisions and Wage Order No. 9. Gonzales, 40 Cal.App. 5th at 1139. The court
10 noted that “Wage Order 9 covers most of the labor code violations alleged.” Id. at 1157. The court
11 further stated “[b]ecause most of the statutory claims alleged here are rooted in wage order protections
12 and requirements, the ABC test must be applied to those claims to resolve the employee vs. independent
13 contractor issues.” Id. at 1159. Revealingly, the Court of Appeal in Gonzales expressly instructed the
14 trial court “to determine which Labor Code claims alleged enforce wage order requirements, and which
15 do not. As to any Labor Code claims that do not enforce wage order requirements, the court must
16 reevaluate the claim under the Borello test.” Id. at 1160.
17 Moreover, Gonzales’ dictum that Labor Code section 226’s requirements are encompassed in
18 Section 7 of the IWC Wage Orders is simply incorrect. As a threshold matter, Labor Code section 226
19
Plaintiff cites Hall as an example of a case where a court applied the ABC test to a claim seeking wage statement penalties.
20 However, Hall addressed this issue for the first time on a motion for reconsideration, and the defendant did not raise it in its
summary judgment briefing. Hall, 624 F. Supp. 3d at 1175. (“Whether a particular claim is based on Wage Orders or not
21 should have been raised earlier in this suit.”).
Plaintiff cites Goro in a parenthetical as an example of a case where a court applied the ABC test to claims for work-related
22 expense reimbursement, waiting time penalties, and wage statement penalties. Goro, 2021 WL 4295294 at *9. Specifically,
as it pertains to Goro, the Court considered whether to apply the ABC test to Plaintiff’s claims for failure to reimburse for
23 vehicles and phones expenses and whether these claims are “derivative of” their other claims under the California Labor
Code and IWC Wage orders. Id. However, the court found that these claims related because the defendants failed to address
24 whether the expense reimbursement and waiting time penalty claims related to the wage orders at issue. Id. In the instant
case, Plaintiff’s complaint does not seek direct relief under any substantive Labor Code or IWC Wage Order provision.
25 Nendel-Flores Decl. at ¶ 5 (Ex. 21, FAC ¶¶ 34(d)-(e)). Furthermore, Goro is factually distinguishable as it involves a
completely different industry – baked goods production companies – whereas, during the Relevant Time Period, Varsity
was a technology company. Response UMF 5.
26
Plaintiff cites Naranjo as an example of a case that found that a waiting time penalty claim is derivative of other wage and
27 hour claims, including for minimum wage and overtime. However, the case is legally distinguishable because in Naranjo,
the California supreme court neither addressed independent contractor classification issues, nor even mentioned Borello or
Dynamex. Further, Naranjo did not involve a PAGA claim. Instead, Naranjo held that premium pay for meal and rest period
28 violations constitute wages for purposes of waiting time penalties and that meal and rest period premium payments must be
included in itemized wage statements. Naranjo, 13 Cal. 5th at 101.
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imposes statutory penalties while Section 7 of the IWC Wage Orders does not. See Salter, 2021 WL
5049054 at *8 (holding that the Borello test applied to wage statement claim because plaintiff’s “wage
statement claim seeks penalties under [Labor Code section 226], but Wage Order 9 does not impose
penalties related to wage statements.”) Further, Section 7 of the Wage Orders only requires that
employers provide employees a document showing (1) all deductions; (2) the inclusive dates of the pay
period; (3) the employee’s name and/or social security number; and (4) the name of the employer.
Industrial Welfare Commission Order Wage Order No. 7-2001 Regulating Wages, Hours, and Working
Conditions in the Mercantile Industry §7(B). In contrast, Labor Code section 226 contains numerous
additional requirements that are not contained in any wage order including, inter alia, listing (1) gross
10 wages earned; (2) total hours worked; and (3) all hourly rates in effect and the number of hours worked
11 at each hourly rate. Labor Code § 226(a). Reinforcing this point, Labor Code section 226 makes no
12 reference whatsoever to Section 7 of the Wage Orders, let alone does it incorporate any of Section 7 of
13 the Wage Orders’ requirements. Id.
14 Similarly, Gonzales’ statement that Labor Code section 2802 is encompassed in Section 9 of the
15 IWC wage orders is incorrect. Section 9 addresses only required employee uniforms and
16 required/necessary tools and equipment. Industrial Welfare Commission Order Wage Order No. 9-2001
17 Regulating Wages, Hours and Working Conditions in the Transportation Industry §8. In stark contrast,
18 Labor Code section 2802 is much broader vis-a-vis indemnity requirements. Labor Code § 2802(a)-(d)
19 (“an employer shall indemnify his or her employee for all necessary expenditures or losses incurred by
20 the employee in direct consequence of the discharge of his or her duties, or his or her obedience to the
21 directions of the employer…”). Further, Labor Code section 2802 does not mention and/or incorporate
22 Section 9 of the IWC wage order. Id. Plaintiff again cites Gonzales in a final attempt to argue that the
23 ABC test should apply to all of Plaintiff’s claims. Gonzales, 40 Cal.App.5th at 1131. In making his
24
25
26 This stands in stark contrast to Labor Code section 558(a) which imposes civil penalties for “any provision regulating hours
or days of work in any order of the Industrial Welfare Commission . . . .”; Labor Code section 1197.1(a) which imposes
27 penalties for paying “any employee a wage less than the minimum fixed by an order of the [industrial welfare] commission
. . . .”; and Labor Code section 226.7 which prohibits requiring an employee to “work during any meal or rest period mandated
28 by an applicable order of the Industrial Welfare Commission.”
Notably, Plaintiff does not and cannot allege that Varsity required him to utilize/wear uniforms.
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DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR
SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
argument, Plaintiff misstates Gonzales’ analysis. Moreover, numerous cases disagree with Gonzales
and its approach. See e.g., Bowerman v. Field Asset Servs. (9th Cir. 2022) 39 F.4th 652, 666;10 Becerra,
69 Cal.App.5th at 93411 (holding that Borello applied to pre-Section 2750.3 misclassification matters
asserting Labor Code section 2802 violations); Salter, 2021 WL 5049054 at *7 (holding that Borello
applied to pre-Section 2750.3 misclassification matters asserting wage statement violations); Moreno v.
JCT Logistics, Inc. (C.D. Cal. May 29, 2019) 2019 WL 3858999 at *16, n. 22 (observing that “because
[plaintiff’s] inaccurate wage statement claim is brought under the Labor Code . . . [the claim] is therefore
governed by the Borello test.”); Corely v. FedEx Ground (CD Cal. June 2, 2022) 2022 WL 1805435 at
*12 (observing that Borello applies to wage statement claims); Henry, 2021 WL 3187257 at *3 (holding
10 that Borello applied to “claims for reimbursement, unlawful deductions, waiting time penalties, wage
11 statement penalties, and violations of PAGA are not grounded in wage orders”); Garcia, 28 Cal. App.
12 5th at 561 (“Dynamex compels the conclusion that defendants did not meet their burden on summary
13 judgment to show no triable issue of material fact as to Garcia's wage order claims . . . . We reach a
14 different result as to the non-wage-order claims, to which Dynamex does not apply.”) (emphasis in
15 original).
16 C. Assuming the ABC Test Applies, Plaintiff is not Entitled to Summary
Adjudication That it Satisfied Factors B or C
17
18 Plaintiff seeks summary adjudication only as to factors B and C of the ABC test, likely because
19 he has no evidence supporting that Varsity exercised direction and control over him. Pursuant to
20
21 The Gonzales court summarized its analysis as follows: “In a wage and hour action where the purposes served by the Labor
Code and wage order provisions are coextensive, there is no principled reason to treat the claims differently. Such a policy
22 would create different standards for violation of the same or very similar conduct.” Id. at 1160. Plaintiff omitted the sentence
before the quoted language because in the instant case the purposes served by the Labor Code and wage order provisions are
not coextensive.
23 10
In Bowerman, the Court squarely addressed whether the ABC test governs expense reimbursement claims and found
24 Borello governs the class members’ expense reimbursement claims.” Id. The court reasoned as follows: “[h]ere, the class
members' expense reimbursement claims are not based on a California wage order, but on California Labor Code § 2802.
25 Nor are they ‘rooted in’ a California wage order, even though the class members belatedly invoked Wage Order 16-2001 in
their class certification briefing.” Id. at 665. The court further opined that Wage Order 16-2001 does not “cover[ ] most of
the [section 2802] violations alleged,” and its provisions are not ‘equivalent or over-lapping’ with section 2802.” Id.
26 11
In Becerra, the Court found that “the employee status of newspaper carriers is, and was at the time the carriers’ claims
27 arose, determined by application of the Borello test.” Id. at 936. This case departs from Gonzales because it found that wage
orders do not cover certain issues under Section 2802 (failure to reimburse reasonable expenses). Roman v. Jan-Pro
Franchising International, Inc. (2022) 342 F.R.D. 274, 302 (citing Becerra, 69 Cal.App.5th at 934) (“We agree and conclude
28 that neither the carriers' UCL claim nor the Labor Code violation it is based upon relies on a wage order to distinguish
between employees and independent contractors.”) Id. at 934.
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DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR
SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
Dynamex, an individual/entity is properly classified as an independent contractor if the individual: (a) is
free from the control and direction of the contracting entity in connection with the performance of
services both under the applicable contracts and, in fact; (b) provides services that are outside the usual
course of the contracting entity’s (putative employers’) business; and (c) is customarily engaged in an
independently established trade, occupation, or business of the same nature as that involved in the work
performed. Dynamex, 4 Cal.5th at 964.
Plaintiff is not entitled to summary adjudication that he satisfied the ABC test because he did not
put forth facts supporting arguments for factor A.
Plaintiff’s arguments fail as to factor B because he lacks both factual and legal support for its
10 argument that Plaintiff’s tutoring services were part of Varsity’s “usual course of business.” Plainly,
11 during the Relevant Time Period, Varsity was a technology company, not a tutoring company. Response
12 UMF 5. Indeed, in support of his factor B analysis, Plaintiff asks this Court to find that Varsity was a
13 tutoring company while, at the same time, admitting that Varsity was incapable of providing tutoring
14 services. This argument is nonsensical.
15 Finally, Plaintiff’s argument that he was not engaged in an independent tutoring service business
16 is directly contradicted by Plaintiff’s own conduct which includes, inter alia, 1) Plaintiff launched his
17 own tutoring business and 2) Plaintiff provided tutoring services through other companies and/or for
18 clients in addition to (and concurrent with) his contractual relationship with Varsity. Response UMF 32,
19 34, 45-46, 49, 51, 62, and 68. Further, Plaintiff’s motion fails to address factor C’s “trade” and
20 “occupation” portions. Put differently, since Plaintiff’s motion fails to address whether he was engaged
21 in an independently established “trade” or “occupation,” he cannot obtain summary adjudication as to
22 factor C because this factor may be also satisfied by establishing that the individual at issue is
23 “customarily engaged in an independently established trade, occupation, or business of the same nature
24 as that involved in the work performed.” Dynamex, 4 Cal.5th at 964. Accordingly, Plaintiff is not entitled
25 to summary adjudication on either factors B or C of the ABC test.
26 1. Plaintiff Cannot Establish That Varsity Was a Tutoring Company Because,
In His Undisputed Material Fact No. 9, Plaintiff Admits That Varsity Did
27 Not Have the Ability to Provide Tutoring Services
28 Curiously, Plaintiff asks this Court to find that Varsity was a tutoring company while, at the
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DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR
SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
same time, claiming as undisputed that Varsity was incapable of providing tutoring services. This
diametrically opposed factual position and resulting argument borders on the absurd. Specifically, in
Plaintiff’s UMF No. 9, Plaintiff proffers the following undisputed fact: “Varsity Tutors acknowledges
that it ‘does not possess the skills, services or personnel necessary to train, supervise, or provide tutoring
services to students and relies on independent contractors to provide such services.’” Response UMF 9.
The foregoing Undisputed Material Fact is fatal to Plaintiff’s motion as it confirms that Varsity was not
a tutoring company during the Relevant Time Period. Put simply, it would defy logic to simultaneously
find that: (1) a company provides a certain set of services and (2) the company acknowledges it does not
have the ability to provide those same services.
10 2. Plaintiff Provided Services That were Outside Varsity’s Usual Course of
Business
11
12 Plaintiff argues that he provided services that were inside Varsity’s usual course of business
13 because (1) Varsity describes its own business as providing tutoring services, (2) Plaintiff’s tutoring
14 services were integral to Varsity’s business, (3) Varsity’s business model relies on tutors to continuously
15 perform the work, and (4) Varsity obtains the customers/students using the services. MSA at 8:17-12:12.
16 Plaintiff, however, did not provide sufficient undisputed material facts to support any of these
17 arguments, and therefore failed to satisfy factor B of the ABC test.
18 These arguments fail because as a threshold matter, during the Relevant Time Period, Varsity
19 was a technology company, not a tutoring company. Response UMF 5. Put differently, Varsity’s regular
20 business activities did not involve the provision of tutoring services. See Declaration of Chris Swenson
21 in Support of Defendant’s Motion for Summary Judgment (“Swenson MSJ Decl.”) at ¶¶ 6-14 and 18.
22 Instead, tutors like Plaintiff provided such tutoring services directly to the customers/students they
23 obtained through the platform (and did not provide those services to representatives of Varsity). Next,
24 tutors are “incidental” to Varsity’s business. See Sportsman v. A Place for Rover Inc. (2021) 537 F.Supp.
25 3d 1081,1094-96 (“Rover”) (holding that “[p]et care providers like Sportsman are ‘incidental’ to Rover’s
26 business” based on the structure of Rover’s platform (akin to a marketplace that helps facilitate
27 connections between pet owners and pet care providers with minimal involvement or direction regarding
28 how pet care providers performed their services for pet owners)). For similar reasons, the Court need
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DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR
SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
not analyze whether Varsity “continuously used” tutors’ services because Varsity was a technology
company which did not utilize tutoring services. This can be contrasted with cases analyzing more
traditional business arrangements (such as electricians and plumbers) where there is no dispute that the
contracting entity was utilizing the contractor’s services. Vazquez v. Jan-Pro Franchising International,
Inc. (9th Cir. Feb. 2, 2021) 986 F.3d 1106, 1126. Finally, the method in which Varsity obtains its
customers/students is irrelevant to the matters at issue in this MSA.
(a) Plaintiff’s Argument Incorrectly Narrows Varsity’s Usual Course of
Business and Plaintiff Provides No Admissible Evidence Supporting
the Argument that Varsity Describes its Own Business as Solely
Providing Tutoring Services
10 Plaintiff incorrectly construes Varsity as a tutoring company in direct contravention of authority
11 in Rover. Rover, in characterizing the nature of Rover’s business in analyzing factor B of the ABC test,
12 found that Rover’s business was akin to a marketplace that helps facilitate connections between pet
13 owners and pet care providers with minimal involvement or direction regarding how pet care providers
14 performed their services for pet owners. Rover, 537 F.Supp. 3d
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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 LARK ILL 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, [Assigned to Hon. Theodore C. Zayner Plaintiff, Department 19] DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION VARSITY TUTORS LLC, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND Defendant. AUTHORITIES SUPPORT THEREOF DATE: October 18, 2023 TIME: 1:30 P.M. DEPT: Complaint Filed: May 1, 2019 FAC Filed: May 30, 2019 Trial Date: May 13, 2024 DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM POINTS AND AUTHORITIES IN SUPPORT THEREOF TABLE OF CONTENTS I. INTRODUCTION AND SUMMARY OF ARGUMENTS .........................................................1 II. FACTS ..........................................................................................................................................2 III. LEGAL STANDARDS ................................................................................................................2 IV. LEGAL ARGUMENT ..................................................................................................................2 A. Plaintiff’s MSA Fails as a Matter of Law Because His Proposition that the ABC Test Applies to All of His PAGA Theories Does Not “Completely Dispose of Any of Varsity’s Affirmative Defenses”..................................................................................... 2 B. Plaintiff’s Argument That the ABC Test Applies to All of His PAGA Theories Lacks Merit. ............................................................................................................................... 4 C. Assuming the ABC Test Applies, Plaintiff is not Entitled to Summary Adjudication That it Satisfied Factors B or C....................................................................................... 8 10 1. Plaintiff Cannot Establish That Varsity Was a Tutoring Company Because, In His Undisputed Material Fact No. 9, Plaintiff Admits That Varsity Did Not 11 Have the Ability to Provide Tutoring Services .....................................................9 12 2. Plaintiff Provided Services That were Outside Varsity’s Usual Course of Business ..............................................................................................................10 13 (a) Plaintiff’s Argument Incorrectly Narrows Varsity’s Usual Course of 14 Business and Plaintiff Provides No Admissible Evidence Supporting the Argument that Varsity Describes its Own Business as Solely Providing 15 Tutoring Services ....................................................................................11 16 (b) Tutors are “Incidental” to Varsity’s Business .........................................13 (c) The Court Need Not Analyze Whether Varsity’s Business Model Relied 17 on Tutors to Continuously Perform the Work ........................................14 18 (d) The Method in Which Varsity Obtained its Customers is Irrelevant .....15 3. Plaintiff was Engaged in an Independently Established Trade, Occupation, or 19 Business of the Same Nature as the Work He Performed Through the Platform 20 .............................................................................................................................15 V. CONCLUSION ...........................................................................................................................20 21 22 23 24 25 26 27 28 -i- DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF TABLE OF AUTHORITIES Page(s) Cases Affordable Cabs, Inc.,124 Wash. App. at 365 .........................................................................18, 19 AFM Messenger Serv., Inc. v. Dep’t of Emp. Sec. (2001), 198 Ill. 2d 380 .............................................................................................................19 Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 ................................................................................................................2 Becerra v. McClatchy Co. (2021) 69 Cal.App.4th 913 ....................................................................................................4, 8 10 Borello & Sons, Inc. v. Department of Industrial Relations, (1989) 48 Cal.3d 341 ....................................................................................................... passim 11 Bowerman v. Field Asset Servs. 12 (9th Cir. 2022) 39 F.4th 652 ......................................................................................................8 13 Canava v. Rail Delivery Service Inc. (C.D. Cal. Aug. 8, 2021) 2021 WL 4907227...........................................................................13 14 Corely v. FedEx Ground 15 (CD Cal. June 2, 2022) 2022 WL 1805435 ...............................................................................8 16 Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653 ........................................................................................................5 17 Dynamex Operations West v. Superior Ct. 18 (2018) 4 Cal.5th 903 ........................................................................................................ passim 19 Garcia v. Border Transportation Group, LLC (2018) 28 Cal.App.5th 558 ....................................................................................................3, 8 20 Gonzales v. San Gabriel Transit, Inc. 21 (2019) 40 Cal.App.5th 1131 ..........................................................................................5, 6, 7, 8 22 Goro v. Flowers Foods, Inc. (S.D. Cal. Sept. 21, 2021) 2021 WL 4295294 .................................................................5, 6, 12 23 Hall v. Cultural Care USA 24 (N.D. Cal. 2022) 624 F. Supp. 3d 1171 .................................................................................5, 6 25 Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458 ..................................................................................................1, 3 26 Henry v. Central Freight Lines, Inc. 27 (E.D Cal. June 13, 2019) 2019 WL 2465339 ................................................................3, 4, 5, 8 28 Jameson v. Desta (2015) 194 Cal.Rptr.3d 152 .......................................................................................................3 -ii- DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 90 Cal.Rptr.2d 743 .........................................................................................................3 in re Leazard (2010) 903 N.Y.S.2d 198 .........................................................................................................18 Ludlow v. Flowers Foods, Inc. (S.D. Cal. July 5, 2022) 2022 WL 2441295 ............................................................................12 Moreno v. JCT Logistics, Inc. (C.D. Cal. May 29, 2019) 2019 WL 3858999 ...........................................................................8 Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93 ..............................................................................................................5, 6 Nazir v. United Airlines, Inc. 178 Cal.App.4th 243 ..............................................................................................................3, 4 10 Roman v. Jan-Pro Franchising International, Inc. (2022) 342 F.R.D. 274 ...............................................................................................................8 11 Salter v. Quality Carriers, Inc. 12 (October 27, 2021) 2021 WL 5049054 ..............................................................................4, 7, 8 13 Sportsman v. A Place for Rover Inc. (2021) 537 F.Supp. 3d 1081,1094-96 1096 ..................................................................... passim 14 Thurman v. Bayshore Transit Mgmt., Inc. 15 (2019) 203 Cal. App. 4th 1112 ..............................................................................................4, 5 16 Varsity Tutors LLC v. Indus. Claim Appeals Office of Colo. (Co. Ct. App. 2017) 488 P.3d 258. ..........................................................................................18 17 Vazquez v. Jan-Pro Franchising International, Inc. 18 (9th Cir. Feb. 2, 2021) 986 F.3d 1106 ...................................................................11, 13, 14, 15 19 Vendor Surveillance Corporation v. Henning (2021) 62 Cal. App. 5th 59 ........................................................................................................5 20 Statutes 21 Code Civ. Proc. § 437c ....................................................................................................................2 22 Code Civ. Proc. § 437c(f) ................................................................................................................2 23 Code Civ. Proc. § 437c(f)(1)....................................................................................................1, 2, 3 24 Lab. Code § 226 .......................................................................................................................4, 6, 7 25 Lab. Code § 226(1) ..........................................................................................................................6 26 Lab. Code § 226(a) ..........................................................................................................................7 27 Lab. Code § 226.7 ............................................................................................................................7 28 Lab. Code § 226.8 ............................................................................................................................4 -iii- DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Lab. Code § 558(a) ..........................................................................................................................7 Lab. Code § 1197.1(a) .....................................................................................................................7 Lab. Code § 2802 .....................................................................................................................4, 7, 8 Lab. Code § 2802(a)-(d) ..................................................................................................................7 Other Authorities IWC Wage Order No. 4 ...................................................................................................................5 IWC Wage Order No. 7-2001 Regulating Wages, Hours, and Working Conditions in the Mercantile Industry §7(B)....................................................................................................7 IWC Wage Order No. 9 ...............................................................................................................6, 7 IWC Wage Order No. 9-2001 Regulating Wages, Hours and Working Conditions in the 10 Transportation Industry §8 .........................................................................................................7 11 IWC Wage Order No. 16-2001 ........................................................................................................8 12 IWC Wage Order § 7 .......................................................................................................................7 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iv- DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF MEMORANDUM AND POINTS AND AUTHORITIES Defendant Varsity Tutors LLC (“Varsity”) hereby submits this brief in Opposition to Plaintiff Alexander Charles’s Motion for Summary Adjudication (“MSA”). I. INTRODUCTION AND SUMMARY OF ARGUMENTS Plaintiff’s MSA fails as a matter of law because his proposition that the ABC test applies to all of his liability theories does not “completely dispose of any of Varsity’s affirmative defenses.” Code Civ. Proc., § 437c(f)(1)). In solely focusing on the ABC test, Plaintiff overlooked and omitted any analysis of the Borello factors. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 351. Meaning, if the Court finds that Borello applies to even one of Plaintiff’s PAGA 10 theories, then Plaintiff’s MSA must fail. Hartline v. Kaiser Foundation Hospitals (2005) 132 11 Cal.App.4th 458, 464 (citing Code Civ. Proc., § 437c(f)(1)) (emphasis added). 12 Even though the MSA can and should be denied without applying either the ABC or Borello 13 test, as set forth below in section IV(A), Plaintiff’s arguments regarding factor B and C of the ABC test 14 also fail. Plaintiff’s arguments fail as to factor B because Plaintiff lacks both factual and legal support 15 for his argument that Plaintiff’s tutoring services were part of Varsity’s “usual course of business.” 16 Indeed, in support of his factor B analysis, Plaintiff asks this court to find that Varsity was a tutoring 17 company while, at the same time, asking this court to find that Varsity was incapable of providing 18 tutoring services. Such an argument is nonsensical. Plainly, during the Relevant Time Period, Varsity 19 was a technology company, not a tutoring company. Varsity’s Response to Plaintiff’s Separate 20 Statement of Undisputed Material Facts in Support of his MSA (“Response UMF”) 5. Finally, Plaintiff’s 21 arguments fail as to factor C because Plaintiff lacks both factual and legal support for his arguments that 22 he was not engaged in an independently established trade, occupation, or business of the same nature as 23 that involved in the work performed through the platform. Instead, the evidence not only plainly 24 demonstrates Plaintiff created his own tutoring business, and provided tutoring services through other 25 companies/entities/clients in addition to (and concurrent with) his contractual relationship with Varsity, 26 but also, Plaintiff’s use of and activity through Varsity’s platform further supports the conclusion that 27 The Relevant Time Period is May 30, 2018 (one year prior to the filing of Plaintiff’s First Amended Complaint (“FAC”)) 28 through December 31, 2019, when Varsity stopped contracting with California tutors. Varsity’s Separate Statement of Undisputed Material Facts in Support of its Motion for Summary Judgment (“Varsity UMF”) 301. -1- DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF he maintained his own business. See e.g., Response UMF 32, 34, 45-46, 49, 51, 62, and 68. Accordingly, Plaintiff is not entitled to summary adjudication on either factors B or C of the ABC test. For all of these reasons, and as further established herein, Plaintiff’s MSA must be denied in its entirety. II. FACTS Varsity incorporates by reference the discussion of facts as set forth in its Motion for Summary Judgment, and in the alternative Motion for Summary Adjudication. III. LEGAL STANDARDS Summary judgment must be granted when no triable issue of material fact exists, or the disputed issue is one of law and the action can be terminated for the moving party without the necessity of a trial. 10 Code Civ. Pro. § 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843-44. Summary 11 adjudication works the same way, “except it acts on specific causes of action or affirmative defenses, 12 rather than on the entire complaint.” § 437c(f). A summary adjudication is properly granted “only if a 13 motion therefore completely disposes of a cause of action, an affirmative defense, a claim for damages, 14 or an issue of duty.” Id. at (f)(1) (emphasis added). 15 IV. LEGAL ARGUMENT 16 A. Plaintiff’s MSA Fails as a Matter of Law Because His Proposition that the ABC Test Applies to All of His PAGA Theories Does Not “Completely Dispose of Any of 17 Varsity’s Affirmative Defenses” 18 Plaintiff’s MSA fails as a matter of law because his proposition that the ABC test applies to all 19 of his PAGA theories does not “completely dispose” of any of Varsity’s affirmative defenses. Meaning, 20 if the Court finds that Borello applies to even one of Plaintiff’s PAGA theories, then Plaintiff’s MSA 21 must fail as a matter of law. 22 In Plaintiff’s MSA, Plaintiff seeks summary adjudication as to Varsity’s fourth and sixth 23 affirmative defenses. The fourth affirmative defense maintains that “[t]he Complaint fails because 24 Plaintiffs were properly classified as independent contractors under the applicable California law…” 25 See Declaration of Guillermo Tello in Support of Varsity’s Opposition to Plaintiff’s MSA (“Tello 26 Decl.”) at ¶ 3 (Ex. B, Varsity’s Answer to Plaintiff’s First Amended Complaint at 2:21-25). The sixth 27 affirmative defense maintains that “Defendant did not employ Plaintiffs and therefore no employment 28 relationship existed with Plaintiffs.” Id. at 3:4-5. Here, in order to prevail on his MSA, Plaintiff needed -2- DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF to prove there was no evidence to support Varsity’s fourth and sixth affirmative defenses (that tutors were properly classified by Defendant as independent contractors). Plaintiff has failed to meet this burden. Furthermore, Plaintiff’s MSA only addresses the ABC test, and presents no argument and/or analysis of the Borello factors. As such, the Court must deny Plaintiff’s MSA if it finds that Borello applies to any of Plaintiff’s PAGA theories because “[a] summary adjudication is properly granted only if a motion therefore completely disposes of…an affirmative defense…” Hartline, 132 Cal.App.4th at 464 (citing Code Civ. Proc., § 437c(f)(1))(emphasis added); Nazir v. United Airlines, Inc. 178 Cal.App.4th 243, 251 (“Summary adjudication must completely dispose of the cause of action to which 10 it is directed”). Put differently, “[s]ummary adjudication of an affirmative defense is properly granted 11 when there is no triable issue of material fact as to the defense, and the moving party is entitled to 12 judgment on the defense as a matter of law.” Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 90 13 Cal.Rptr.2d 743, 748 (finding that plaintiff failed to establish that he was entitled to summary 14 adjudication on his unclean hands affirmative defense); see also Jameson v. Desta (2015) 194 15 Cal.Rptr.3d 152, 159 (holding that summary adjudication was inappropriate because plaintiff’s issues 16 brought forth in his MSA would not completely dispose of a cause of action, an affirmative defense, a 17 claim for damages, or an issue of duty). In Nazir, the court found that “more than half of the 44 issues 18 defendants sought to have summarily adjudicated fail” because they would not “dispose of,” for 19 example, plaintiff’s claim for harassment as if the court found that one employee did not fail to exhaust 20 his or her administrative remedies, then the court could not dispose of the entire harassment cause of 21 action. Nazir, 178 Cal.App.4th at 25, n.1. 22 Even assuming that Borello does not apply to all of Plaintiff’s PAGA theories (which Defendant 23 submits that it does), at the very least, Borello applies to his PAGA theories for alleged: (1) failure to 24 Borello applies to pre-Section 2750.3 claims stemming from the Labor Code. Dynamex Operations West v. Superior Ct. 25 (2018) 4 Cal.5th 903, 915-16; see also Garcia v. Border Transportation Group, LLC (2018) 28 Cal.App.5th 558, 571 (“we conclude Borello furnishes the proper standard as to [Plaintiff’s] non-wage order claims.”). For example, in Henry v. Central 26 Freight Lines, Inc., a case involving pre-Section 2750.3 misclassification claims, the court held that Borello applies to pre- Section 2750.3 PAGA claims. Henry v. Central Freight Lines, Inc. (E.D Cal. June 13, 2019) 2019 WL 2465339 at *8 (“This 27 Court agrees . . . that [Plaintiff’s] claims for . . . violations of PAGA are not grounded in the wage orders, but rather in the California Labor Code, and must therefore be decided based on [Plaintiff’s] classification under the Borello standard”); see also Thurman v. Bayshore Transit Mgmt., Inc. (2019) 203 Cal. App. 4th 1112, 1132 (holding that “PAGA does not create 28 any private right of action to directly enforce a wage order” because “a wage order is not a statute.”) (disapproved on other grounds). -3- DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF reimburse for work related expenses, (2) failure to provide accurate wage statements, and (3) intentional misclassification because the underlying substantive rights from which Plaintiff seeks civil penalties stem from the Labor Code alone. See Lab. Code § 2802 (statutory basis for work-related expenses obligations to employees without any reference to or incorporation of wage order requirements); Becerra v. McClatchy Co. (2021) 69 Cal.App.4th 913, 934 (holding that Borello applied to pre-Section 2750.3 misclassification matters asserting Labor Code section 2802 violations); Lab. Code § 226 (statutory basis for duty to provide accurate wage statements to employees without any reference to or incorporation of wage order requirements); Salter v. Quality Carriers, Inc. (October 27, 2021) 2021 WL 5049054 at *7 (holding that Borello applies to pre-Section 2750.3 misclassification matters asserting 10 wage statement violations); Lab. Code § 226.8 (statutory basis for intentional misclassification penalty 11 without any reference to or incorporation of wage order requirements). As such, the limited framework 12 in which Plaintiff brought the instant MSA (only addressing the ABC factors, and not Borello) precludes 13 the Court from granting Plaintiff’s MSA because it does not “completely dispose of the cause of action 14 to which it is directed.” Nazir, 178 Cal.App.4th at 251. 15 B. Plaintiff’s Argument That the ABC Test Applies to All of His PAGA Theories Lacks Merit. 16 17 Plaintiff argues that the ABC test applies to all of his PAGA theories alleged in the First 18 Amended Complaint (“FAC”). This argument lacks merit because, as a threshold matter, Plaintiff 19 ignores that he does not seek direct relief under any substantive Labor Code or IWC Wage Order 20 provision. Declaration of Rafael Nendel-Flores in Support of Varsity’s Motion for Summary Judgment 21 (“Nendel-Flores Decl.”) at ¶ 5 (Ex. 21, FAC ¶¶ 33-34). Instead, Plaintiff seeks only civil penalties under 22 PAGA. Id. at 34. As such, all of Plaintiff’s PAGA theories stem from the Labor Code and are, therefore, 23 controlled by Borello. Henry, 2019 WL 2465339 at *8 (“This Court agrees . . . that [Plaintiff’s] claims 24 for . . . violations of PAGA are not grounded in the wage orders, but rather in the California Labor Code, 25 and must therefore be decided based on [Plaintiff’s] classification under the Borello standard”); see also 26 Thurman, 203 Cal. App. 4th at 1132 (holding that “PAGA does not create any private right of action to 27 28 -4- DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF directly enforce a wage order” because “a wage order is not a statute.”) (disapproved on other grounds). Furthermore, Plaintiff cannot successfully argue that the ABC test applies to PAGA theories where his own FAC does not even allege that a wage order provision was violated. Specifically, Plaintiff’s failure to indemnify and inaccurate wage statement PAGA theories do not even allege a Wage Order violation. Nendel-Flores Decl. at ¶ 5 (Ex.21, FAC ¶¶ 34(d)-(e)); Henry, 2021 WL 3187257 at *3 (holding that Borello applied to plaintiff’s reimbursement, unlawful deduction, waiting time penalty, wage statement, and PAGA claims because “none of these claims in the FAC allege the violation of a wage order.”). Put differently, by his own admission, Plaintiff’s failure to indemnify and inaccurate wage statement PAGA theories do not stem from IWC Wage Order 4. Nendel-Flores Decl. at ¶ 5 (Ex. 10 21, FAC ¶¶ 34(d)-(e)). 11 Based on the foregoing, it is not surprising that none of Plaintiff’s cited authority supports the 12 notion that pre-Labor Code section 2750.3 PAGA theories are subject to the ABC test. 13 First, Plaintiff relies on Vendor Surveillance Corporation as an example of a court that applied 14 the ABC test to labor code violations rooted in one or more wage orders. Vendor Surveillance 15 Corporation v. Henning (2021) 62 Cal. App. 5th 59, 74. It is unclear why Plaintiff relies on this case 16 because the Court of Appeal in that case did not address the applicable independent contractor test for 17 discrete wage-hour claims. Id. at 69 (“Unlike Dynamex, this case does not involve alleged violations of 18 a wage order or related claims. Rather it concerns [defendant’s] statutory obligation to pay 19 unemployment insurance tax for work performed during the audit years.”). Id. at 62. Furthermore, that 20 case was an unemployment insurance tax refund matter, not a wage-hour matter. Id. 21 Second, Plaintiff cites a string of parentheticals, Hall, Goro, Naranjo, and Gonzales, purportedly 22 establishing that courts have held that the ABC test applies to claims for work-related expense 23 reimbursement, waiting time penalties, and wage statement penalties. Hall v. Cultural Care USA (N.D. 24 Cal. 2022) 624 F. Supp. 3d 1171, 1175; Goro v. Flowers Foods, Inc. (S.D. Cal. Sept. 21, 2021) 2021 25 WL 4295294 at *13; Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93, 101; Gonzales 26 27 28 Plaintiff cannot ignore the claims and allegations in the FAC, which he has done in the MSA. Plaintiff is limited to the claims and allegations pled and cannot expand the pleadings through the MSA. Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653, 661 (noting that issues considered with a summary adjudication motion are “defined by the pleadings”). -5- DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF v. San Gabriel Transit, Inc. (2019) 40 Cal.App.5th 1131, 1157. Hall Goro and Naranjo are all factually and legally distinguishable, and therefore inapposite. Regarding Gonzales, Plaintiff’s reliance on this case is misguided because not only is it factually and legally distinguishable, Plaintiff’s analysis with respect to Labor Code section 226 is simply incorrect, because Labor Code section 226 (1) imposes statutory penalties while the wage orders do not, (2) contains numerous requirements beyond Wage Order requirements; and (3) does not reference and/or incorporate Wage Order requirements. As a threshold matter, Gonzales is legally distinguishable because the court did not analyze what test applied to a PAGA civil penalty claim. Rather, in Gonzales, plaintiff alleged violations of both underlying Labor Code provisions and Wage Order No. 9. Gonzales, 40 Cal.App. 5th at 1139. The court 10 noted that “Wage Order 9 covers most of the labor code violations alleged.” Id. at 1157. The court 11 further stated “[b]ecause most of the statutory claims alleged here are rooted in wage order protections 12 and requirements, the ABC test must be applied to those claims to resolve the employee vs. independent 13 contractor issues.” Id. at 1159. Revealingly, the Court of Appeal in Gonzales expressly instructed the 14 trial court “to determine which Labor Code claims alleged enforce wage order requirements, and which 15 do not. As to any Labor Code claims that do not enforce wage order requirements, the court must 16 reevaluate the claim under the Borello test.” Id. at 1160. 17 Moreover, Gonzales’ dictum that Labor Code section 226’s requirements are encompassed in 18 Section 7 of the IWC Wage Orders is simply incorrect. As a threshold matter, Labor Code section 226 19 Plaintiff cites Hall as an example of a case where a court applied the ABC test to a claim seeking wage statement penalties. 20 However, Hall addressed this issue for the first time on a motion for reconsideration, and the defendant did not raise it in its summary judgment briefing. Hall, 624 F. Supp. 3d at 1175. (“Whether a particular claim is based on Wage Orders or not 21 should have been raised earlier in this suit.”). Plaintiff cites Goro in a parenthetical as an example of a case where a court applied the ABC test to claims for work-related 22 expense reimbursement, waiting time penalties, and wage statement penalties. Goro, 2021 WL 4295294 at *9. Specifically, as it pertains to Goro, the Court considered whether to apply the ABC test to Plaintiff’s claims for failure to reimburse for 23 vehicles and phones expenses and whether these claims are “derivative of” their other claims under the California Labor Code and IWC Wage orders. Id. However, the court found that these claims related because the defendants failed to address 24 whether the expense reimbursement and waiting time penalty claims related to the wage orders at issue. Id. In the instant case, Plaintiff’s complaint does not seek direct relief under any substantive Labor Code or IWC Wage Order provision. 25 Nendel-Flores Decl. at ¶ 5 (Ex. 21, FAC ¶¶ 34(d)-(e)). Furthermore, Goro is factually distinguishable as it involves a completely different industry – baked goods production companies – whereas, during the Relevant Time Period, Varsity was a technology company. Response UMF 5. 26 Plaintiff cites Naranjo as an example of a case that found that a waiting time penalty claim is derivative of other wage and 27 hour claims, including for minimum wage and overtime. However, the case is legally distinguishable because in Naranjo, the California supreme court neither addressed independent contractor classification issues, nor even mentioned Borello or Dynamex. Further, Naranjo did not involve a PAGA claim. Instead, Naranjo held that premium pay for meal and rest period 28 violations constitute wages for purposes of waiting time penalties and that meal and rest period premium payments must be included in itemized wage statements. Naranjo, 13 Cal. 5th at 101. -6- DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF imposes statutory penalties while Section 7 of the IWC Wage Orders does not. See Salter, 2021 WL 5049054 at *8 (holding that the Borello test applied to wage statement claim because plaintiff’s “wage statement claim seeks penalties under [Labor Code section 226], but Wage Order 9 does not impose penalties related to wage statements.”) Further, Section 7 of the Wage Orders only requires that employers provide employees a document showing (1) all deductions; (2) the inclusive dates of the pay period; (3) the employee’s name and/or social security number; and (4) the name of the employer. Industrial Welfare Commission Order Wage Order No. 7-2001 Regulating Wages, Hours, and Working Conditions in the Mercantile Industry §7(B). In contrast, Labor Code section 226 contains numerous additional requirements that are not contained in any wage order including, inter alia, listing (1) gross 10 wages earned; (2) total hours worked; and (3) all hourly rates in effect and the number of hours worked 11 at each hourly rate. Labor Code § 226(a). Reinforcing this point, Labor Code section 226 makes no 12 reference whatsoever to Section 7 of the Wage Orders, let alone does it incorporate any of Section 7 of 13 the Wage Orders’ requirements. Id. 14 Similarly, Gonzales’ statement that Labor Code section 2802 is encompassed in Section 9 of the 15 IWC wage orders is incorrect. Section 9 addresses only required employee uniforms and 16 required/necessary tools and equipment. Industrial Welfare Commission Order Wage Order No. 9-2001 17 Regulating Wages, Hours and Working Conditions in the Transportation Industry §8. In stark contrast, 18 Labor Code section 2802 is much broader vis-a-vis indemnity requirements. Labor Code § 2802(a)-(d) 19 (“an employer shall indemnify his or her employee for all necessary expenditures or losses incurred by 20 the employee in direct consequence of the discharge of his or her duties, or his or her obedience to the 21 directions of the employer…”). Further, Labor Code section 2802 does not mention and/or incorporate 22 Section 9 of the IWC wage order. Id. Plaintiff again cites Gonzales in a final attempt to argue that the 23 ABC test should apply to all of Plaintiff’s claims. Gonzales, 40 Cal.App.5th at 1131. In making his 24 25 26 This stands in stark contrast to Labor Code section 558(a) which imposes civil penalties for “any provision regulating hours or days of work in any order of the Industrial Welfare Commission . . . .”; Labor Code section 1197.1(a) which imposes 27 penalties for paying “any employee a wage less than the minimum fixed by an order of the [industrial welfare] commission . . . .”; and Labor Code section 226.7 which prohibits requiring an employee to “work during any meal or rest period mandated 28 by an applicable order of the Industrial Welfare Commission.” Notably, Plaintiff does not and cannot allege that Varsity required him to utilize/wear uniforms. -7- DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF argument, Plaintiff misstates Gonzales’ analysis. Moreover, numerous cases disagree with Gonzales and its approach. See e.g., Bowerman v. Field Asset Servs. (9th Cir. 2022) 39 F.4th 652, 666;10 Becerra, 69 Cal.App.5th at 93411 (holding that Borello applied to pre-Section 2750.3 misclassification matters asserting Labor Code section 2802 violations); Salter, 2021 WL 5049054 at *7 (holding that Borello applied to pre-Section 2750.3 misclassification matters asserting wage statement violations); Moreno v. JCT Logistics, Inc. (C.D. Cal. May 29, 2019) 2019 WL 3858999 at *16, n. 22 (observing that “because [plaintiff’s] inaccurate wage statement claim is brought under the Labor Code . . . [the claim] is therefore governed by the Borello test.”); Corely v. FedEx Ground (CD Cal. June 2, 2022) 2022 WL 1805435 at *12 (observing that Borello applies to wage statement claims); Henry, 2021 WL 3187257 at *3 (holding 10 that Borello applied to “claims for reimbursement, unlawful deductions, waiting time penalties, wage 11 statement penalties, and violations of PAGA are not grounded in wage orders”); Garcia, 28 Cal. App. 12 5th at 561 (“Dynamex compels the conclusion that defendants did not meet their burden on summary 13 judgment to show no triable issue of material fact as to Garcia's wage order claims . . . . We reach a 14 different result as to the non-wage-order claims, to which Dynamex does not apply.”) (emphasis in 15 original). 16 C. Assuming the ABC Test Applies, Plaintiff is not Entitled to Summary Adjudication That it Satisfied Factors B or C 17 18 Plaintiff seeks summary adjudication only as to factors B and C of the ABC test, likely because 19 he has no evidence supporting that Varsity exercised direction and control over him. Pursuant to 20 21 The Gonzales court summarized its analysis as follows: “In a wage and hour action where the purposes served by the Labor Code and wage order provisions are coextensive, there is no principled reason to treat the claims differently. Such a policy 22 would create different standards for violation of the same or very similar conduct.” Id. at 1160. Plaintiff omitted the sentence before the quoted language because in the instant case the purposes served by the Labor Code and wage order provisions are not coextensive. 23 10 In Bowerman, the Court squarely addressed whether the ABC test governs expense reimbursement claims and found 24 Borello governs the class members’ expense reimbursement claims.” Id. The court reasoned as follows: “[h]ere, the class members' expense reimbursement claims are not based on a California wage order, but on California Labor Code § 2802. 25 Nor are they ‘rooted in’ a California wage order, even though the class members belatedly invoked Wage Order 16-2001 in their class certification briefing.” Id. at 665. The court further opined that Wage Order 16-2001 does not “cover[ ] most of the [section 2802] violations alleged,” and its provisions are not ‘equivalent or over-lapping’ with section 2802.” Id. 26 11 In Becerra, the Court found that “the employee status of newspaper carriers is, and was at the time the carriers’ claims 27 arose, determined by application of the Borello test.” Id. at 936. This case departs from Gonzales because it found that wage orders do not cover certain issues under Section 2802 (failure to reimburse reasonable expenses). Roman v. Jan-Pro Franchising International, Inc. (2022) 342 F.R.D. 274, 302 (citing Becerra, 69 Cal.App.5th at 934) (“We agree and conclude 28 that neither the carriers' UCL claim nor the Labor Code violation it is based upon relies on a wage order to distinguish between employees and independent contractors.”) Id. at 934. -8- DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Dynamex, an individual/entity is properly classified as an independent contractor if the individual: (a) is free from the control and direction of the contracting entity in connection with the performance of services both under the applicable contracts and, in fact; (b) provides services that are outside the usual course of the contracting entity’s (putative employers’) business; and (c) is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. Dynamex, 4 Cal.5th at 964. Plaintiff is not entitled to summary adjudication that he satisfied the ABC test because he did not put forth facts supporting arguments for factor A. Plaintiff’s arguments fail as to factor B because he lacks both factual and legal support for its 10 argument that Plaintiff’s tutoring services were part of Varsity’s “usual course of business.” Plainly, 11 during the Relevant Time Period, Varsity was a technology company, not a tutoring company. Response 12 UMF 5. Indeed, in support of his factor B analysis, Plaintiff asks this Court to find that Varsity was a 13 tutoring company while, at the same time, admitting that Varsity was incapable of providing tutoring 14 services. This argument is nonsensical. 15 Finally, Plaintiff’s argument that he was not engaged in an independent tutoring service business 16 is directly contradicted by Plaintiff’s own conduct which includes, inter alia, 1) Plaintiff launched his 17 own tutoring business and 2) Plaintiff provided tutoring services through other companies and/or for 18 clients in addition to (and concurrent with) his contractual relationship with Varsity. Response UMF 32, 19 34, 45-46, 49, 51, 62, and 68. Further, Plaintiff’s motion fails to address factor C’s “trade” and 20 “occupation” portions. Put differently, since Plaintiff’s motion fails to address whether he was engaged 21 in an independently established “trade” or “occupation,” he cannot obtain summary adjudication as to 22 factor C because this factor may be also satisfied by establishing that the individual at issue is 23 “customarily engaged in an independently established trade, occupation, or business of the same nature 24 as that involved in the work performed.” Dynamex, 4 Cal.5th at 964. Accordingly, Plaintiff is not entitled 25 to summary adjudication on either factors B or C of the ABC test. 26 1. Plaintiff Cannot Establish That Varsity Was a Tutoring Company Because, In His Undisputed Material Fact No. 9, Plaintiff Admits That Varsity Did 27 Not Have the Ability to Provide Tutoring Services 28 Curiously, Plaintiff asks this Court to find that Varsity was a tutoring company while, at the -9- DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF same time, claiming as undisputed that Varsity was incapable of providing tutoring services. This diametrically opposed factual position and resulting argument borders on the absurd. Specifically, in Plaintiff’s UMF No. 9, Plaintiff proffers the following undisputed fact: “Varsity Tutors acknowledges that it ‘does not possess the skills, services or personnel necessary to train, supervise, or provide tutoring services to students and relies on independent contractors to provide such services.’” Response UMF 9. The foregoing Undisputed Material Fact is fatal to Plaintiff’s motion as it confirms that Varsity was not a tutoring company during the Relevant Time Period. Put simply, it would defy logic to simultaneously find that: (1) a company provides a certain set of services and (2) the company acknowledges it does not have the ability to provide those same services. 10 2. Plaintiff Provided Services That were Outside Varsity’s Usual Course of Business 11 12 Plaintiff argues that he provided services that were inside Varsity’s usual course of business 13 because (1) Varsity describes its own business as providing tutoring services, (2) Plaintiff’s tutoring 14 services were integral to Varsity’s business, (3) Varsity’s business model relies on tutors to continuously 15 perform the work, and (4) Varsity obtains the customers/students using the services. MSA at 8:17-12:12. 16 Plaintiff, however, did not provide sufficient undisputed material facts to support any of these 17 arguments, and therefore failed to satisfy factor B of the ABC test. 18 These arguments fail because as a threshold matter, during the Relevant Time Period, Varsity 19 was a technology company, not a tutoring company. Response UMF 5. Put differently, Varsity’s regular 20 business activities did not involve the provision of tutoring services. See Declaration of Chris Swenson 21 in Support of Defendant’s Motion for Summary Judgment (“Swenson MSJ Decl.”) at ¶¶ 6-14 and 18. 22 Instead, tutors like Plaintiff provided such tutoring services directly to the customers/students they 23 obtained through the platform (and did not provide those services to representatives of Varsity). Next, 24 tutors are “incidental” to Varsity’s business. See Sportsman v. A Place for Rover Inc. (2021) 537 F.Supp. 25 3d 1081,1094-96 (“Rover”) (holding that “[p]et care providers like Sportsman are ‘incidental’ to Rover’s 26 business” based on the structure of Rover’s platform (akin to a marketplace that helps facilitate 27 connections between pet owners and pet care providers with minimal involvement or direction regarding 28 how pet care providers performed their services for pet owners)). For similar reasons, the Court need -10- DEFENDANT VARSITY TUTORS LLC’S OPPOSITION TO PLAINTIFF ALEXANDER CHARLES’S MOTION FOR SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF not analyze whether Varsity “continuously used” tutors’ services because Varsity was a technology company which did not utilize tutoring services. This can be contrasted with cases analyzing more traditional business arrangements (such as electricians and plumbers) where there is no dispute that the contracting entity was utilizing the contractor’s services. Vazquez v. Jan-Pro Franchising International, Inc. (9th Cir. Feb. 2, 2021) 986 F.3d 1106, 1126. Finally, the method in which Varsity obtains its customers/students is irrelevant to the matters at issue in this MSA. (a) Plaintiff’s Argument Incorrectly Narrows Varsity’s Usual Course of Business and Plaintiff Provides No Admissible Evidence Supporting the Argument that Varsity Describes its Own Business as Solely Providing Tutoring Services 10 Plaintiff incorrectly construes Varsity as a tutoring company in direct contravention of authority 11 in Rover. Rover, in characterizing the nature of Rover’s business in analyzing factor B of the ABC test, 12 found that Rover’s business was akin to a marketplace that helps facilitate connections between pet 13 owners and pet care providers with minimal involvement or direction regarding how pet care providers 14 performed their services for pet owners. Rover, 537 F.Supp. 3d