Judge: David S. Cunningham, Case: 21STCV26898, Date: 2023-08-29 Tentative Ruling


Case Number: 21STCV26898    Hearing Date: August 29, 2023    Dept: 11

21STCV26898 (Jones)

Tentative Ruling Re: Motion for Summary Judgment/Summary Adjudication

 

Date:                           8/29/23

Time:                          10:00 am

Moving Party:           Covered 6, LLC (“Covered 6”)

Opposing Party:        Erin Jones (“Plaintiff”)

Department:              11

Judge:                        David S. Cunningham III

________________________________________________________________________

 

TENTATIVE RULING

 

Plaintiff’s objections 1 through 3, 6 through 8, and 10 through 18 are overruled.  Objection 4 is sustained as to “[t]he packet delineates that Covered 6 conducted a background check and provided shirts” and overruled as to the rest.  Objections 5, 9, and 19 are sustained.

 

Covered 6’s motion for summary judgment/summary adjudication is denied in full.

 

BACKGROUND

 

“Covered 6 is a stand-alone California company – operating out of Moorpark, California – that provides personal and cyber protective services, private security, and tactical training in the security and safety industry.”  (Plaintiff’s Opposition Separate Statement, p. 1, Undisputed Material Fact (“UMF”) 1.)

 

“On or around October 28, 2020, Covered 6 . . . entered into an agreement with the City of Beverly Hills to provide ‘armed uniformed security services’” for a couple months, starting on October 24, 2020.  (Id. at p. 29, Additional Material Fact (“AMF”) 1.)

 

In part, the contract called for Covered 6 to “‘provide . . . an officer and a vehicle to all of the major intersections’ of the business district ‘triangle’ of Beverly Hills from October 31, 2020 to November 6, 2020 (‘7 days – 24/7’)[.]”  (Id. at p. 29, AMF 2.)  The one-week assignment “require[ed] approximately ‘40 officers, 20 vehicles, and (2) Roving supervisors, (1) Command post Supervisor and vehicles’ and ‘“unarmed” personnel’ with ‘flexibility on both parties to increase or decrease deployment based in need, availability or personnel, and timely notification[.]’” (Ibid.)

 

To meet the needs of the one-week assignment, Covered 6 subcontracted with San Gabriel Valley Public Safety, LLC (“SGVPS”).

 

“Covered 6 and SGVPS are separate operating corporations, do not have ownership interests in each other’s company, do not have joint control over the companies, and do not share profits and losses.”  (Id. at p. 1, UMF 2.)

 

“Covered 6’s only assignment with SGVPS was [the] one-week subcontract for SGVPS to assist with providing security for the City of Beverly Hills.”  (Id. at p. 2, UMF 5.)

 

Plaintiff worked for SGVPS, but he alleges that SGVPS and Covered 6 were joint employers and joint venturers.  (See Complaint, ¶¶ 9, 10.)  He claims SGVPS and Covered 6 committed wage-and-hour violations against him and the putative class when they worked on the one-week assignment.

 

“SGVPS has not appeared . . . and is in default.”  (Plaintiff’s Opposition, p. 1 n.1.)

 

Covered 6 requests summary judgment or, alternatively, summary adjudication.  Covered 6 asserts that it did not jointly employ Plaintiff and did not have a joint venture with SGVPS. 

 

DISCUSSION

 

Summary Judgment

 

A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.

 

(Code Civ. Proc. § 437c, subd. (p)(2).)

 

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff's claim.”  (Edmond & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2023 Update) ¶ 10:241, emphasis in original.)  “A cause of action ‘cannot be established’ if the undisputed facts presented by defendant prove the contrary of plaintiff's allegations as a matter of law.”  (Id. at ¶ 10:241.10, emphasis in original.)  “The moving party's declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff's claim ‘in order to resolve any evidentiary doubts or ambiguities in plaintiff's [opposing party's] favor.’”  (Id. at ¶ 10:241.20.)

 

A second way to meet the initial burden “is to ‘show’ that an essential element of plaintiff's claim cannot be established.”  (Id. at ¶ 10:242.)  “Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence . . . .”  (Ibid., emphasis in original.)  The moving party must present evidence of discovery admissions and/or factually devoid “all facts” discovery responses.  (See id. at ¶¶ 10:244-10:245.27.) 

 

The third way is to show a complete defense.  (See id. at ¶ 10:246.)  “To ‘show’ a complete defense, defendant must present admissible evidence of each essential element . . . upon which it bears the burden of proof at trial.”  (Id. at ¶ 10:247, emphasis in original.)  “Thus, where a defense has several elements, lack of substantial evidence on any element bars relief, ‘even if the plaintiff failed to introduce a scintilla of evidence challenging that element.’”  (Ibid., emphasis in original.) 

 

Once one of these burdens is met, “the burden shifts to plaintiff to prove the existence of a triable issue of fact regarding that element of its cause of action or that defense.  If plaintiff is unable to do so, defendants are entitled to judgment as a matter of law.”  (Id. at ¶ 10:240, emphasis in original.) 

 

Summary Adjudication

 

“A motion for summary adjudication asks the court to adjudicate the merits of a particular cause of action, affirmative defense, issue of duty or claim for damages, including a punitive damage request.”  (Id. at ¶ 10:1, emphasis in original.)

 

A defendant (or cross-defendant) moving for summary [adjudication] must “show” that either:

 

* one or more elements of the “cause of action … cannot be established”; OR

 

* there is a complete defense to that cause of action. [Citation.]

 

This means that where plaintiff has the burden of proof at trial by a preponderance of evidence, defendant “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, he [defendant] would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” [Citation.]

 

The import of “more likely than not” in the foregoing quote is that a moving defendant must generally present evidence that, if uncontradicted, “would constitute a preponderance of evidence that an essential element of the plaintiff's case cannot be established … The same is true when a moving defendant seeks to secure dismissal of the complaint based on an affirmative defense.” [Ciation.]

 

. . . Once defendants meet this burden, the burden shifts to plaintiff to prove the existence of a triable issue of fact regarding that element of its cause of action or that defense. If plaintiff is unable to do so, defendants are entitled to judgment as a matter of law. [Citations.]

 

. . . If defendants fail to meet their burden, their motion must be denied; plaintiff need not make any showing at all. [Citation.]

 

(Id. at ¶ 10:240, emphasis in original.)

 

Joint Employer

 

“California law specifies the elements necessary to define an employer.”  (Castaneda v. Ensign Group, Inc. (2014) 229 Cal.App.4th 1015, 1019.)  “‘To employ’ has ‘three alternative definitions.’”  (Ibid. [quoting Martinez v. Combs (2010) 49 Cal.4th 35, 64].)  “It means: [1] to exercise control over the wages, hours or working conditions, or [2] to suffer or permit to work, or [3] to engage, thereby creating a common law employment relationship.”  (Ibid. [quoting Martinez], emphasis in original.)

 

“The broad definition of an employer includes ‘“‘any person . . . who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of [an employee].’”’”  (Ibid. [quoting Guerrero v. Superior Court (2013) 213 Cal.App.4th 912, 947], emphasis in original.)  “Our Supreme Court said it also includes ‘[a] proprietor who knows that persons are working in his or her business without having been formally hired, or while being paid less than the minimum wage, clearly suffers or permits that work by failing to prevent it, while having the power to do so.’”  (Ibid. [quoting Martinez], emphasis in original.)

 

“An entity that controls the business enterprise may be an employer even if it did not ‘directly hire, fire or supervise’ the employees.”  (Ibid. [quoting Guerrero].)  “Multiple entities may be employers where they ‘control different aspects of the employment relationship.’”  (Ibid. [quoting Martinez].)  “This occurs, for example, when one entity (such as a temporary employment agency) hires and pays a worker, and another entity supervises the work.”  (Ibid. [quoting Martinez].)  “Supervision of the work, in the specific sense of exercising control over how services are performed, is properly viewed as one of the ‘working conditions’. . . .”  (Ibid. [quoting Martinez].)  “[C]ontrol over how services are performed is an important, perhaps even the principal, test for the existence of an employment relationship.”  (Ibid. [quoting Martinez].)

 

“In Martinez, agricultural employees sued two agricultural purchasing companies that had contracts with their employer – a supplier of agricultural crops.”  (Ibid., underlined case name added.)  “The contracts involved marketing the crops the employees picked.”  (Ibid.)  “The employees claimed the purchasing companies were their employers because they benefited from the contracts and exerted financial influence on the supplier.”  (Id. at 1019-1020.)  “Our Supreme Court said the defendants ‘benefited in the sense that any purchaser of commodities benefits, however indirectly, from the labor of the supplier's employees.’”  (Id. at 1020 [quoting Martinez].)  They did not qualify as employers, though, because:

 

(1) the “undisputed facts . . . show[ed] that [the supplier] alone controlled plaintiffs’ wages, hours and working conditions” [citation]; (2) there was no evidence the purchasing companies offered employment to the workers [citation]; (3) the workers did not view the defendants to be supervisors [citation]; (4) the defendants lacked the power to “direct” the “work” of the supplier's employees [citation]; and (5) the defendants lacked the authority to prevent the supplier from paying inadequate wages.

 

(Ibid. [quoting Martinez], emphasis in original.)

 

Covered 6 cites cases brought under the Fair Employment and Housing Act (“FEHA”) (Plaintiff’s complaint does not allege FEHA claims).  (See Motion, pp. 9-10 [citing Bradley v. Department of Corrections and Rehabilitation (2008) 158 Cal.App.4th 1612, Vernon v. State of California (2004) 116 Cal.App.4th 114, McCoy v. Pacific Maritime Association (2013) 216 Cal.App.4th 283, Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.App.4th 474, and Hall v. Apartment Investment and Management Co. (N.D. Cal., Feb. 18, 2011, No. C 08-03447 CW) 2011 WL 940185].)

 

In Vernon, especially, the Court of Appeal notes that various tests have been “adopted by the courts to determine the existence of an employer/employee relationship[.]” (Vernon, supra, 116 Cal.App.4th at 124.)  “The common and prevailing principle espoused in all of the tests” instructs courts “to consider the ‘totality of circumstances’ that reflect upon the nature of the work relationship of the parties, with emphasis upon the extent to which the defendant controls the plaintiff’s performance of employment duties.”  (Ibid. [quoting Lambertsen v. Utah Department of Corrections (10th Cir. 1996) 79 F.3d 1024].) “There is no magic formula for determining whether an organization is a joint employer.”  (Id. at 124-125 [quoting Choe-Rively v. Vietnam Veterans of America (D. Del. 2001) 135 F.Supp.2d 462].) “‘[M]yriad facts surrounding the employment relationship’” should be analyzed.  (Id. at 125 [quoting Choe-Rively].)  “No one factor is decisive.”  (Ibid. [quoting Choe-Rively].)  Indeed, “the precise contours of an employment relationship can only be established by a careful factual inquiry.”  (Graves v. Lowery (3rd Cir. 1997) 117 F.3d 723, 729.)

 

Vernon identifies multiple factors to consider in FEHA cases in assessing party relationships:

 

payment of salary or other employment benefits and Social Security taxes, the ownership of the equipment necessary to performance of the job, the location where the work is performed, the obligation of the defendant to train the employee, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments, the defendant's discretion to determine the amount of compensation earned by the employee, the skill required of the work performed and the extent to which it is done under the direction of a supervisor, whether the work is part of the defendant's regular business operations, the skill required in the particular occupation, the duration of the relationship of the parties, and the duration of the plaintiff's employment.

 

(Vernon, supra, 116 Cal.App.4th at 125; see also Chin, et al., Cal. Practice Guide: Employment Litigation (The Rutter Group March 2023 Update) ¶ 7:152.1 [listing six factors: (1) “payment of salary or other benefits;” (2) “ownership of the equipment used by the employee;” (3) “the location of the relevant work;” (4) “responsibility for training the employee;” (5) “authority to promote or discharge the employee;” and (6) “power to determine the schedule, assignment and amount of the employee’s compensation”].) “‘Generally, . . . the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.’ [Citation.]”  (Vernon, supra, 116 Cal.App.4th at 125 [quoting S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341].)

 

The most important factor is “the extent of the defendant’s right to control the means and manner of the workers’ performance[.]”  (Id. at 126 [quoting Lee v. Mobile County Commission (S.D. Ala. 1995) 954 F.Supp. 1540].)  “In all cases, an ‘employer must be an individual or entity who extends a certain degree of control over the plaintiff.’”  (Ibid. [quoting Lee].)  “‘[T]he control . . . must be “significant,” [citation], and there must be a “sufficient indicia of an interrelationship . . . to justify the belief on the part of an aggrieved employee that the [alleged co-employer] is jointly responsible for the acts of the immediate employer.” [Citations.]’”  (Ibid. [quoting Choe-Rively].)

 

Covered 6 contends the motion should be granted because Covered 6 did not control Plaintiff and the SGVPS employees:

 

No one from Covered 6 had any day-to-day authority over Plaintiff’s employment at SGVPS. No one from Covered 6 exercised control over specific tasks Plaintiff or the other SGVPS employees were performing. Similarly, Covered 6 never supervised, trained, disciplined, or directed Plaintiff’s employment with respect to the BHPD assignment or at all. Critically, Plaintiff was supervised and received all work direction from SGVPS’s leadership or chain of command. Covered 6’s only involvement in the work duties was to provide SGVPS’s leadership with the areas that needed security coverage and SGVPS was responsible for assigning the SGVPS employee to that location.

 

Significantly, many other factors demonstrating joint employment are also missing. Covered 6 was not involved in the decision to hire or terminate Plaintiff’s employment with SGVPS. Covered 6 did not pay Plaintiff, determine his rate of compensation, determine method of compensation, when he was to be compensated, determine his work duties, determine his work schedule (including when to take meal and rest breaks), provide any training, or provide Plaintiff any equipment or uniform. . . . Covered 6 never compensated an SGVPS employee a single cent. The only payment Covered 6 made to SGVPS was the one-time payment per the invoice for services provided in connection with the BHPD assignment. In sum, Covered 6 never chose the employees who SGVPS decided to send, never directed their work schedules or duties, and only informed SGVPS’s leadership as to which locations BHPD required SGVPS’s personnel. SGVPS’s chain of command then issued the assignment to the specific SGVPS personnel.

 

Moreover, Covered 6 did not provide SGVPS with any equipment. Again, Covered 6 only allowed SGVPS employees to sit in a Covered 6 vehicle if an employee needed a ride to a post or if there was a break and the employee wanted to sit – Covered 6 employees manned Covered 6 vehicles at all times. None of the above establishes anything even close the type of control over one’s employment required to create a joint employer relationship.

 

Lastly, Plaintiff’s interactions with Covered 6’s leadership were minimal, if not non-existent. Both SGVPS leadership and Covered 6’s leadership received assignments from BHPD command. Covered 6 and SGVPS addressed their respective employees with respect to assignments and responsibilities. Accordingly, Plaintiff’s employment was directed by SGVPS, Chris Torres, and any other SGVPS chain of command. . . .

 

(Motion, pp. 10-11, citations and footnote omitted; see also id. at pp. 5-8; Reply, pp. 2-7 [asserting that (1) SGVPS onboarded Plaintiff, (2) SGVPS forwarded health questionnaires to its employees,  (3) SGVPS “was responsible for ensuring that its employees were uniformed and appropriately equipped for the Assignment[,]” (4) “Covered 6 did not control the wages, hours, or working conditions of Plaintiff[,]” (5) “Covered 6 was not responsible for SGVPS (or any of its rank-and-file employees) as to how to deploy SGVPS employees, how to supervise SGVPS employees, how to enforce SGVPS employee attendance, how to stand at the predetermined posts, how to interact with the public, or how to carry out specific job duties[,]” (6)  “Covered 6 developed the shift structure” but “did not create or control the schedule for SGVPS employees[,]” (7) “it was SGVPS’s responsibility to pay its own employees[,]” and (8) “Covered 6 could not hire or fire any SGVPS employees”].)

 

Plaintiff claims triable issues exist because Covered 6:

 

* “controlled the hiring and training conditions” (Opposition, p. 5; see also id. at pp. 5-6 [stating that Covered 6 (1) “was responsible for ‘selective hiring’ including checking that all personnel working on the Beverly Hills Assignment passed a background check[,]” (2) “performed this background on Plaintiff” and another SGVPS employee, (3) “required Plaintiff to go through several onboarding steps – including entering into direct agreements with Covered 6 (nondisclosure and social media policy agreements) – before starting work[,]” (4) “was responsible [for] ensuring that all personnel working in the Beverly Hills Assignment ‘received specialized training in Mobile Field Force [] operations from the Los Angeles Police Department [], less lethal deployment, fire suppression [] and universal defensive tactics[,]’” and (5) “controlled how many SGVPS officers could work at the Beverly Hills Assignment”]); 

 

* “controlled the working conditions” (id. at p. 5; see also id. at p. 6 [stating that Covered 6 (1) “require[d] all SGVPS officers to undergo daily health checks[,]” (2) “require[d] all SGVPS officers to wear clothing with distinct Covered 6 logos[,]” and (3) “controlled communications” by “requir[ing] all security officers to use the social media application WhatsApp to receive instruction from Covered 6” and by “communicat[ing] with SGVPS through radios and ‘rovers’ that would pass on information”]);

 

* “directed and supervised SGVPS officers during the Beverly Hills Assignment” (id. at p. 5; see also id. at pp. 6-7 [stating that Covered 6 (1) “determined the assignments for SGVPS officers[,]” (2) “created and developed a ‘plan’ for ‘deployment’” that applied to SGVPS employees, (3) required SGVPS to “follow Covered 6’s directions . . . as it related to operational needs[,]” (4) placed SGVPS officers “under the leadership of Covered 6[,]” and (5) “transported and relieved SGVPS officers in Covered 6’s vehicles”]); 

 

* “controlled hours” (id. at p. 5; see also id. at pp. 7-8 [stating that Covered 6 “‘came up’ with and controlled the schedule[,]” “start date[,]” and “start time for all SGVPS security officers”]);

 

* “controlled wages” (id. at p. 5; see also id. at p. 8 [stating that Covered 6 “controlled the compensation rates” and “the method and timing of payment” “for all SGVPS security officers”]); and

 

* “had authority to fire SGVPS officers” (id. at p. 5; see also id. at pp. 8-9 [stating that the “Beverly Hills Agreement” required Covered 6 “to have any personnel . . . ‘immediately cease performing services under the Agreement’ if the individual(s) ‘have come in contact with anyone with an infectious disease or has contracted an infectious disease’”]).

 

On balance, the Court agrees with Plaintiff.  Even assuming Covered 6 shifts the burden, Plaintiff raises triable issues.  For example, the Beverly Hills-Covered 6 contract obligates all Covered 6 security personnel – encompassing Covered 6 employees and extra personnel “secure[d] at [Covered 6’s] own expense . . . to perform [Covered 6’s] Scope of Work” – to satisfy various licensing and training standards and background checks.  (Plaintiff’s Evidence, Ex. A, p. 4, § 8, emphasis added; see also id. at Ex.  A to Ex. A, pp. 16-17.)  It calls for Covered 6 to submit proof of compliance with the standards and background checks in advance of “commencing services” under the contract and to “conduct regular audits of certifications and expiration dates of all personnel to ensure compliance with all licensing requirements.  (Id. at Ex. A to Ex. A, p. 17, emphasis addded.)  The Covered 6-SGVPS subcontract states: “SGVPS Officers assigned to the city will be under the leadership of Covered 6.  All officers will adhere to the rules, regulations, and uniform policies of Covered 6.” (Plaintiff’s Evidence, Ex. C, p. COV 00002, emphasis added.)  Covered 6’s chief executive officer, Christopher Dunn (“Dunn”), testified that he saw this language and “ha[d] time to review” it prior to signing the subcontract.  (Plaintiff’s Evidence, Ex. B, p. 54.)  A document titled “CONTRACTOR GENERAL INFORMATION[,]” which bears the Covered 6 logo, contains Plaintiff’s gender, birth date, and contact information.  (See id. at Ex. D, p. 9.)  Another document, which bears the DGP International (“DGP”) logo (DGP is the former business name of Covered 6) and Plaintiff’s e-signature, indicates that Plaintiff was issued a Covered 6 shirt on October 31st, the first day of the one-week assignment.  (See id. at Ex. D, p. 10; see also Dunn Decl., ¶ 2 [declaring that “Covered 6 previously provided private security services under the fictitious name of DGP”].)  Notably, the document uses “employee” to refer to Plaintiff, “required uniform item” to refer to the shirt, and “employment” to refer to the relationship between DGP/Covered 6 and Plaintiff, and it allows DGP/Covered 6 to deduct from Plaintiff’s check:

 

The undersigned employee has received the required uniform items. The employee agrees to maintain the item(s) in a clean and well-kept condition. Upon separation of employment, the employee agrees to return the item(s) to the place of employment. Failure to return any item(s) will result in the cost of the assigned item being deducted from the employee’s last check, provided the deduction does not reduce the pay below the minimum wage.    

 

(Plaintiff’s Evidence, Ex. D, p. 10, emphasis added.)  At deposition, Dunn admitted that Covered 6 “came up” with the start date, post hours, shift hours, compensation rates, the deployment plan, and the break-and-relief plan for SGVPS workers.  (Id. at Ex. B, pp. 50-54, 68-69.)  Dunn also said Covered 6 utilized “rovers” to provide SGVPS officers with “breaks, support, [and] transportation” back to the command center.  (Id. at Ex. B, pp. 70-71, 88-89.)  In addition, putative class member Travis Douglas, an ex-employee of SGVPS who worked with Plaintiff in Beverly Hills, declares that he:

 

* “was required by Covered 6 to submit to a background check” (id. at Ex. E, ¶ 6);

 

* gave his “driver’s license information and [] guard card license details to Covered 6 and SGVPS personnel” (ibid.);

 

* “electronically signed documents that had the Covered 6 letterhead, including a document listing [his] general information and a document listing required uniform items such as a Covered 6 Polo shirt” (id. at Ex. E, ¶ 7);

 

* “was instructed by Covered 6 personnel to use . . . WhatsApp to read any instructions and/or directions about the assignment from Covered 6” (id. at Ex. E, ¶ 8 [declaring that “[t]he messages from WhatsApp came from Covered 6 and included URLs that linked to Covered 6’s internet page regarding the Beverly Hills Assignment” and that he “received text messages populated from the Covered 6 ‘97685’ general messaging account if [he] did not sign into an assignment”]);

 

* “received Daily Health Questionnaires from Covered 6 each day of the Beverly Hills Assignment [he] worked” (id. at Ex. E, ¶ 9 [declaring that “[t]hese electronic Daily Health Questionnaires were sent from Covered 6 employee Jacob Sanchez via a Google Form” and that his “responses would also be sent to bhdetail@covered6.com”]);

 

* “was instructed by SGVPS and Covered 6 to report to” Covered 6’s command center “located at 905 Loma Vista Dr., Beverly Hills, CA 90210 at the start of [his] shift” (id. at Ex. E, ¶ 10 [declaring that, at the command center, “Covered 6 personnel” “handed out radios to all security guards[,]” “did COVID health checks[,]” and “would have the security guard employees come and sign a Covered 6 sign in sheet and get security equipment like batons, security belts, handcuff holders and uniform items”]);

 

* “typically waited in line 20 to 30 minutes before [he] could sign in and receive [his] equipment, including a radio” (id. at Ex. E, ¶ 11);

 

* “was assigned” and “drove” a “white Covered 6 SUV during [his] shifts” (id. at Ex. E, ¶¶ 11, 12); and

 

* “had to represent [himself] to [his] coworkers and the public as part of Covered 6 (id. at Ex. E, ¶ 15 [declaring that he “had to wear [his] black polo shirt with the Covered 6 logo stitched on it as [he] patrolled the streets as a Covered 6 security officer and drove a Covered 6 SUV”].)

 

Taken together, these pieces of evidence contradict Covered 6’s position and support denial.

 

The Court finds that Covered 6’s declarations fail to change the result. The declarants claim Covered 6 “only onboarded, trained, supervised, directed, paid, and terminated Covered 6 employees, not SGVPS employees.”  (Dunn Decl., ¶ 3, emphasis deleted; see also Abad Decl., ¶ 5 [claiming “Covered 6 did not onboard, train, supervise, direct the employment of, pay, or terminate SGVPS employees”].) Given the contractual language and Plaintiff’s other contrary evidence, the declarants’ statements create credibility questions that the jury should answer.

 

Covered 6 filed two new declarations with the reply papers – Dunn’s reply declaration and the declaration of SGVPS supervisor Daniel Valencia.  The Court has discretion to strike them or to give Plaintiff a chance to respond.  Either way, they do not change the outcome.  Triable issues remain.

 

Plaintiff contends the motion should be denied based on spoliation.  Specifically, Plaintiff contends Covered 6 did not respond to discovery requests and threw away certain documents.  Since triable issues exist, it is unnecessary to reach this issue, and, regardless, the argument is unavailing at this stage.  Plaintiff fails to show that he sought a discovery conference or filed a motion to compel.  He should not get the advantage of an adverse inference by sitting on his hands.  If he believes a spoliation finding is warranted, he needs to bring a noticed motion.  (See Reply, pp. 7-8.)

 

Plaintiff claims Covered 6’s motion only covers Plaintiff’s claims and cannot bind the putative class members.  Why?  Because it is being heard pre-certification.  The Court agrees, but the issue is moot due to the motion being denied.

 

Joint Venture

 

A joint venture exists if all of the following have been proved:

 

1. Two or more persons or business entities combine their property, skill, or knowledge with the intent to carry out a single business undertaking;

 

2. Each has an ownership interest in the business;

 

3. They have joint control over the business, even if they agree to delegate control; and

 

4. They agree to share the profits and losses of the business.

 

(CACI No. 3712; see also Weiner v. Fleischman (1991) 54 Cal.3d 476, 482 [“A joint venture is ‘an undertaking by two or more persons jointly to carry out a single business enterprise for profit.’”]; Holtz v. United Plumbing and Heating Co. (1957) 49 Cal.2d 501, 506 [“A joint venture has been defined in various ways, but most frequently perhaps as an association of two or more persons who combine their property, skill or knowledge to carry out a single business enterprise for profit.”]; Cochrum v. Costa Victoria Healthcare, LLC (2018) 25 Cal.App.5th 1034, 1053 [“‘There are three basic elements of a joint venture: the members must have joint control over the venture (even though they may delegate it), they must share the profits of the undertaking, and the members must each have an ownership interest in the enterprise.’ Where a joint venture is established, the parties to the venture are vicariously liable for the torts of the other in furtherance of the venture.”]; Simmons v. Ware (2013) 213 Cal.App.4th 1035, 1053 [“‘A joint venture exists when there is “an agreement between the parties under which they have a community of interest, that is, a joint interest, in a common business undertaking, an understanding as to the sharing of profits and losses, and a right of joint control.”’”].)

 

“Each of the members of a joint venture, and the joint venture itself, are responsible for the wrongful conduct of a member acting in furtherance of the venture.”  (CACI No. 3712.)

 

“A joint venture can be formed by a written or an oral agreement or by an agreement implied by the parties’ conduct.”  (Ibid.)

 

Covered 6 asserts that it never engaged in a joint venture:

 

First, there was not a single business undertaking between Covered 6 and SGVPS, just a subcontract for services.  Moreover, Covered 6 does not provide any products or services to SGVPS.

 

Second, there is no ownership interest between or amongst Covered 6 and SGVPS.  Third, SGVPS does have any control over Covered 6.  Similarly, Covered 6 has no control over SGVPS’s business.  Lastly, Plaintiff cannot dispute that Covered 6 never agreed to – and, in fact, did not – share its profits or losses with SGVPS.

 

(Motion, p. 9, citations omitted; see also id. at p. 12.)

 

Plaintiff responds:

 

As a threshold matter, this issue is an improper subject for summary adjudication. “Summary adjudication must completely dispose of the cause of action to which it is directed.” Here, even if the Court did find that Covered 6 and SGVPS are not in a joint venture, it would not dispose of this action, so summary adjudication of this issue is improper.

 

In any event, Covered 6’s “joint venture” argument fails on the merits. A joint venture is an undertaking by two or more persons jointly to carry out a single business enterprise for profit. It is created when the members have joint control over the venture (even though they may delegate it), share the profits of the undertaking, and each have an ownership interest in the enterprise.

 

Here, the evidence shows that Covered 6 and SGVPS entered into an agreement for services covering the Beverly Hills Assignment. Under this agreement, SGVPS provided services to Covered 6 when it provided specific employees for the Beverly Hills Assignment, and Covered 6 provided services and equipment to SGVPS in the form of leadership over SGVPS officers, scheduling and assigning of officers, a daily check-in sheet, rovers to relieve SGVPS officers for breaks, and vehicles, etc. Thus, Covered 6 and SGVPS had joint control over the Beverly Hills Assignment, and there are disputed issues of material fact as to whether Defendant and SGVPS were in a joint venture.

 

(Opposition, p. 9, citations omitted.)

 

Covered 6 appears correct on the merits.  As noted above, all four elements must be proven to establish a joint venture.  (See CACI No. 3712.)  It is undisputed that “Covered 6 and SGVPS are separate operating corporations, do not have ownership interests in each other’s company, do not have joint control over the companies, and do not share profits and losses” (Plaintiff’s Opposition Separate Statement, p. 1, UMF 2, emphasis added; see also id. at p. 28, UMFs 64, 67), so, at minimum, Plaintiff seems unable to prove the second and fourth elements.

 

Nevertheless, the Court agrees with Plaintiff.  This portion of the motion is procedurally defective.  It does not dispose of a cause of action, affirmative defense, issue of duty, or claim for damages, and Covered 6 fails to show compliance with Code of Civil Procedure section 437c(t)’s requirements for partial summary adjudication.  (See Code Civ. Proc. § 437c, subd. (t); see also Edmon & Karnow, Cal. Practice Guide: Civ. Procedure Before Trial (The Rutter Group June 2023 Update) ¶ 10:44.25 [stating that (1) “[t]he parties must stipulate such a motion may be brought and to the issue(s) sought to be adjudicated[,]” (2) “[t]he parties must each file a declaration justifying the filing of the motion on the ground ‘that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement[,]’” and (3) “[t]he court must determine whether the motion may be filed”].)  The motion is denied.