Judge: Deborah C. Servino, Case: 30-2020-01143706, Date: 2022-10-07 Tentative Ruling

Defendants Macco Pacific (erroneously sued as Macco Pacific, Inc.), Macco Properties, Inc., Macco Holdings, L.P., and Shattuck Companies’ (collectively, “Moving Defendants”) unopposed motion for summary judgment on Plaintiff Kim Sorensen’s Complaint, is granted in part and denied in part.  The motion is granted as to Defendants Macco Properties, Inc. Macco Holdings, L.P. The motion is denied as to Macco Pacific and Shattuck Companies.

Macco Pacific and Shattuck Companies

Moving Defendants offer evidence to show that Defendant Macco Corporation informally does business as Macco Pacific (erroneously sued as Macco Pacific, Inc.) and Shattuck Companies. (Waters Decl., at ¶¶ 5-6; SSUF 19, 25.) In other words, Macco Pacific and Shattuck Companies are fictitious business names of the legal entity Macco Corporation.  Because Plaintiff did not oppose the motion, it does not appear that she disputes this assertion.  Macco Corporation was Plaintiff’s employer.  (Waters Decl., at ¶ 2; Appendix, Exh. B.) Macco Corporation is not a party to the instant motion. 

The use of a “dba” or “doing business as” to associate a tradename with the corporation using it does not create a legal entity separate from the corporation but is merely descriptive of the corporation.  (Providence Washington Ins. Co. v. Valley Forge Ins. Co. (1996) 42 Cal.App.4th 1194, 1200.)  “While a corporation may be sued by its fictitious business name, once its true name is discovered, all further proceedings should be in the corporate name.”  (Pinkerton’s, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1349; see Code Civ. Proc., § 474.) 

Moving Defendants do not offer any authority to support entry of summary judgment for a fictitious business name only. Accordingly, the motion for summary judgment is denied as to Macco Pacific and Shattuck Companies.  However, it appears that Plaintiff should only proceed against Macco Corporation, the true legal name of the corporation, and dismiss Macco Pacific and Shattuck Companies from the matter.  (See Pinkerton’s Inc. v. Superior Court, supra, 49 Cal.App.4th at pp. 1349-1350.)    

Summary Judgment Standard

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)

The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)

A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.)

In determining whether there is any “triable issue,” the court must consider all evidence submitted by the parties except that to which objections have been made and sustained by the court. (Code Civ. Proc., § 437c, subd. (c); see Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 281, fn. 2 [evidentiary objections not made at summary judgment hearing are waived].)

Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)

Merits

Moving Defendants argue that they were not Plaintiff’s employer and that each cause of action requires an employer-employee relationship. (Mot., at pp. 3-7.) Plaintiff’s Complaint refers to all Moving Defendants as “Macco” and alleges that “Plaintiff was employed by Defendant MACCO from approximately December 4, 2017 through April 2, 2019 as Accounts Payable Manager at MACCO, located at 1600 Dove Street, 19 Suite 107, Newport Beach, California 92660 in the County of Orange, State of California”. (See Compl., at ¶¶ 8, 14.)

Fair Employment and Housing Act (“FEHA”) Claims

The first, fifth, sixth, seventh, and eighth causes of action are for harassment, gender discrimination, wrongful termination, retaliation, and failure to prevent harassment, discrimination, and/or retaliation, in violation of Government Code section 12940, et seq.  (Complaint, at pp. 5-8, 12-17.)  FEHA claims are limited to employers employing five or more persons or any person “acting as an agent of an employer, directly or indirectly,” the state, any political or civil subdivision of the state, and cities. (Gov. Code, §§ 12926, subd. (d), 12940, subds. (a)-(o).)

The possibility of dual employment under the FEHA is well recognized: “Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employers—his original or ‘general’ employer and a second, the ‘special’ employer.’” (Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1183.)

The existence of an employment relationship under the FEHA requires a consideration of the totality of the circumstances, including: payment of salary or other benefits; ownership of the equipment used by the employee; the location of the relevant work; responsibility for training the employee; authority to promote or discharge the employee; and power to determine the schedule, assignment and amount of the employee's compensation.  (Vernon v. State of Calif. (2004) 116 Cal.App.4th 114, 124-125; McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 301-302.)  “[T]he most important consideration is the right of the employer to control the means and manner of the [employee's] performance.” (McCoy v. Pacific Maritime Assn., supra, 216 Cal.App.4th at p. 302 [internal quotes omitted]; see Villanazul v. City of Los Angeles (1951) 37 Cal.2d 718, 721 [the essential characteristic of an employment relationship is the right to control and direct the activities of the person rendering service, and the manner and method in which the work is performed].)

Here, Moving Defendants provide evidence to show that Plaintiff was employed by Macco Corporation as an Accounts Payable Manager from December 4, 2017 until her termination on April 2, 2019. (Waters Decl., at ¶ 2, Exh. B.) At all times during her employment, Macco Corporation defined the parameters of her role, provided her work space and tools, directed and controlled her assignments, established her work schedule, determined her compensation, paid her compensation, and benefited from her services. (Waters Decl., at ¶ 2; SSUF 3.) At all times during her at-will employment, Plaintiff reported to Howard Waters and William Shattuck of Macco Corporation. (Waters Decl., at ¶ 4; SSUF 4.)

Plaintiff named Macco Properties, Inc. ("Macco Properties") as a Defendant in her Complaint. (Exh. A [Complaint]; SSUF 6.) Macco Properties did not did not exercise any control over Plaintiff's work hours or working conditions. (Waters Decl., at ¶ 3; SSUF 8.) Macco Properties had no authority to hire or fire Plaintiff. (Waters Decl., at ¶ 3; SSUF 9.) Macco Properties did not supervise or direct Plaintiff's work, provide her tools or a place of work, nor did it set her rate of pay. (Waters Decl., at ¶ 3; SSUF 10.)

Plaintiff named Macco Holdings, LP. ("Macco Holdings") as a Defendant in her Complaint. (Exh. A [Complaint]; SSUF 12.) Macco Holdings did not did not exercise any control over Plaintiff's work hours or working conditions. (Waters Decl., at ¶ 4; SSUF 14.) Macco Holdings had no authority to hire or fire Plaintiff. (Waters Decl., at ¶ 4; SSUF 15.) Macco Holdings did not supervise or direct Plaintiff's work, provide her tools or a place of work, nor did it set her rate of pay. (Waters Decl., at ¶ 4; SSUF 16.)

Gender Violence (Fourth Cause of Action)

The fourth cause of action is for gender violence in violation of Civil Code section 52.4. (Complaint, at pp. 11-12.) Any person who has been subjected to gender violence or sexual orientation violence may bring a civil action for damages against any responsible party. (Civ. Code, § 52.4.) The plaintiff may seek actual and compensatory damages, punitive damages, injunctive relief, or any other appropriate relief. A prevailing plaintiff may be awarded attorney fees and costs. (Civ. Code, § 52.4, subd. (a).)

Here, the cause of action for gender violence refers back to the assault and battery claims brought against the individual Defendants (William Shattuck and Howard Waters) whom were employed by Moving Defendants. At all times during her at-will employment, Plaintiff reported to Howard Waters and William Shattuck of Macco Corporation. (Waters Decl., at ¶ 2; SSUF 4.) Thus, Moving Defendants have shown that they were not Plaintiff’s or the individual Defendants’ employer at the time of the incidents.

Labor Code Violations and Unfair Business Practices

Finally, the ninth through fourteenth causes of action are for inaccurate wage statements, meal and rest period violations, overtime pay, failure to pay final check, all under the Labor Code, and the derivative claim of unfair business practices (Bus. & Prof. Code, § 17200).  (Complaint, at pp. 18-26.)

The Labor Code permits an employee who believes he or she has not been paid the wages due under the applicable labor statutes and wage orders may bring a civil action against his or her employer. (See, e.g., Lab. Code, § 1194; Martinez v. Combs (2010) 49 Cal.4th 35, 49-51.)  Moving Defendants have shown that they were not Plaintiff’s employer.

For a claim pursuant to Business and Professions Code section 17200, damages cannot be recovered, and plaintiffs are generally limited to restitution and injunctive relief. (Safeway, Inc. v. Superior Court (2015) 238 Cal.App.4th 1138, 1147.)  Here, any restitution claims must be related to the Labor Code causes of action.  Since those claims cannot stand against non-employers, the derivative claim cannot either.

Thus, Macco Properties, Inc. and Macco Holdings, L.P. have met their prima facie burden. Plaintiff did not oppose and has presented no facts or evidence to create a triable issue of material fact. Thus, the motion for summary judgment  is granted as to Macco Properties, Inc. and Macco Holdings, L.P.

Moving Defendants shall submit a proposed judgment as to Defendant Macco Properties, Inc. and Macco Holdings, L.P. 

Moving Defendants shall give notice of the ruling.