Judge: Lee W. Tsao, Case: 21NWCV00747, Date: 2023-04-06 Tentative Ruling
Case Number: 21NWCV00747 Hearing Date: April 6, 2023 Dept: C
CARTER v. JACOBSMA
LAW APC
CASE NO.: 21NWCV00747
HEARING: 04/06/23
#4
TENTATIVE ORDER
Defendant JACOBSMA LAW APC’s Motion for Summary Adjudication
is DENIED.
Opposing Party to give Notice.
This breach of contract action was filed by Plaintiff
JENNIFER C. CARTER (“Plaintiff”) against Defendant JACOBSMA LAW APC
(“Defendant” or “Law Firm”) on November 12, 2021. The relevant facts, as
alleged, are as follows: “Although Defendants misclassified Ms. Carter as an
independent contractor from 2018 through January 29, 2021 for their own benefit
of skirting employment law obligations, Ms. Carter was solely providing legal
services to clients at Law Firm, working full-time for Defendants solely under
the discretion and control of Law Firm, and using Law Firm’s equipment and
tools at Defendants’ Norwalk office. Despite her full-time status and
Defendants’ misclassification of Ms. Carter as an independent contractor, Ms.
Carter never received employee benefits. Law Firm failed to pay any appropriate
employment taxes for Ms. Carter.” (Complaint ¶14.) “On January 29, 2021, Ms.
Carter terminated her employment relationship with Law Firm.” (Complaint ¶15.)
“Law Firm now refuses to pay Ms. Carter any compensation owed under the
Contract and/or the reasonable value of her legal services that she provided on
the matters from 2018 through January 29, 2021. Law Firm is also disputing any
attorneys’ fees recovery before the Workers Compensation Board and courts for
the legal services provided by Ms. Carter.” (Complaint ¶18.)
Plaintiff’s Complaint asserts the following causes of
action: (1) Breach of Contract; (2) Breach of the Implied Contractual Duty of
Good Faith and Fair Dealing; (3) Quantum Meruit; (4) Failure to Provide
Accurate Wage Statements; (5) Failure to Provide Wages Due at Separation; (6)
Unlawful Business Practices; (7) Unfair Business Practices; (8) Fraudulent
Business Practices; (9) Failure to Provide Rest Breaks; and (10) Failure to Pay
Overtime Compensation.
On January 3, 2022, Defendant filed its Answer, which
consists of a general denial and thirty-four affirmative defenses. Defendant
now moves for summary adjudication on the first and thirty-third affirmative
defenses. Defendants specifically argues that: (1) the Court should grant
summary adjudication of Affirmative Defense No. 1 for Failure to State a Claim
with regard to the independent contractor status of Plaintiff; and (2) the
Court should grant summary adjudication of Affirmative Defense No. 33 for
independent contractor status of Plaintiff. Defendant argues that Plaintiff was
properly classified as an independent contractor.
In Opposition, Plaintiff argues that there are triable
issues of fact as to whether Plaintiff was correctly/incorrectly classified as
an independent contractor.
Although the determination of employee status is a question
of fact if there are conflicting evidence or inferences, it becomes one of law
if the evidence is undisputed. (S.G. Borello & Sons, Inc. v. Dept. of
Indus. Relations (1989) 48 Cal.3d 341, 349.) (“Borello”) “[W]e have
noted that strong evidence in support of an employment relationship is the
right to discharge at will, without cause. Additional factors have been derived
principally from the Restatement Second of Agency. These include (a) whether
the one performing services is engaged in a
distinct occupation or business; (b) the kind of occupation, with
reference to whether, in the locality, the work is usually done under the
direction of the principal or by a specialist without supervision; (c) the
skill required in the particular occupation; (d) whether the principal or the
worker supplies the instrumentalities, tools, and the place of work for the
person doing the work; (e) the length of time for which the services are to be
performed; (f) the method of payment, whether by the time or by the job; (g)
whether or not the work is a part of the regular business of the principal; and
(h) whether or not the parties believe they are creating the relationship of
employer-employee. Generally the individual factors cannot be applied
mechanically as separate tests; they are intertwined and their wight depends
often on particular combinations.” (Id. at 350-351.)
Further, “[t]he critical legal distinction between employees
and independent contractors is the right to control the manner and means by
which the agent conducts his business. A bona fide contractor is customarily
engaged in an independently established business and retains the right to
control the manner in which he performs his contract. An employee, on the other
hand, is subject to the absolute control and direction of his employer.” (Resnik
v. Anderson & Miles (1980) 109 Cal.App.3d 569, 572.)
“The existence and degree of each factor of the common law
test for employment is a question of fact, while the legal conclusion to be
drawn from those facts is a question of law. Even if one or two of the
individual factors might suggest an employment relationship, summary judgment
is nevertheless proper when… all the factors weighted and considered as a whole
establish that [plaintiff] was an independent contractor and not an employee.”
(Arnold v. Mutual of Omaha Ins. Co. (2011) 202 Cal.App.4th 580, 590.)
Defendant proffers the following facts in support of the
instant Motion:
·
In or about 2012, Plaintiff signed a written
Independent Contractor Agreement with the law firm Jacobsma & Brau. (SS No.
1)
·
Carter remained an independent contractor
through January 2021. (SS No. 4.)
·
Plaintiff was encouraged to develop and bring in
her own referral cases to the Firm and not told, directed, or controlled as to
the manner and means she should work on any case. (SS No. 5.)
·
As an independent contractor, Plaintiff was paid
as such in accordance with the fee schedules set forth in the 2012 Agreement.
(SS No. 7.)
·
As an Independent Contractor, Plaintiff received
average earnings of between $130,000 to $185,000 per year before the business
deductions she took as a self-employed person. (SS. No. 8.)
·
Plaintiff completed a W-9 and was given a 1099
each year by Defendant. (SS No. 9.)
·
Plaintiff believed she was an Independent
Contractor for tax purposes. (SS Nos. 10-11.)
·
Plaintiff admits she applied for and received a
Small Business Administration Paycheck Protection Program loan of $20,832.00 in
2021 as a self-employed person. (SS No. 12.)
·
Plaintiff admits she did not file State and
Federal income taxes as an employed person for the years 2012-present. (SS No.
13.)
·
Plaintiff had her own promotional red pens made
and distributed with her name “Jennifer C. Carter.” (SS No. 16.)
·
Plaintiff created and purchased advertising for
herself, and did not seek consent from Defendant before appearing in videos
promoting herself. (SS Nos. 18-19.)
·
Plaintiff handled three criminal cases and three
estate planning matters as “Jennifer C. Carter”, individually, all of which are
types of law Defendant does not practice. (SS No. 21.)
·
Between 2012 and 2021, Plaintiff never made a
complaint to Defendant that she was misclassified as an independent contractor.
(SS No. 22.)
·
On January 29, 2021, Plaintiff tendered a letter
confirming the termination of the “independent contractor” relationship. (SS
No. 24.)
·
Plaintiff paid her own California State Bar
license fees, workers compensation insurance premium (except for the year
2020), malpractice insurance premium, the cost of MCLE credits to maintain her
license and the expenses and costs of her business. (SS No. 27.)
In Opposition, Plaintiff submits her declaration, wherein
Plaintiff declares the following relevant facts:
·
“I was paid twice a month during the same time
as the employees at Jacobsma Law based on a percentage of the attorneys’ fees
generated from settlements or judgments. I continued to work full-time and di
not work for any other attorneys or law firms.” (Carter Decl., ¶6.)
·
“For all matters that I worked on at Jacobsma
Law, all client expenses, costs, and fees incurred on behalf of a client were
paid by settlement proceeds obtained by Jacobsma Law. I did not advance any
costs or expenses for client matters.” (Id. ¶8.)
·
“For all matters that I worked on at Jacobsma
Law, the firm’s support and secretarial staff handled all case matter
scheduling and financial transactions including paying clients, handling client
trusts, processing payments to Ms. Carter and third parties, and processing
other case related transactions.” (Id. ¶9.)
·
“For all matters that I worked on at Jacobsma
Law, the cases were assigned, organized, and processed by Jacobsma Law.” (Id.
¶10.)
·
“Jacobsma Law purchased business cards that
stated ‘Jennifer C. Carter Attorney of Law Associate of Jacobsma Law Southeast
Law Center’ with their contact information and my Jacobsma Law email address jc@jacobsmalaw.net.”
(Id. ¶14.)
·
“While providing legal services at Jacobsma Law,
I purchased at least two different sets of advertising in at least three church
bulletins. The advertising bulletin in St. Bruno’s Church bulletin stated
‘Jennifer C. Carter Attorney at Law Personal Injury Workers’ Compensation
Jacobsma Law….” (Id. ¶17.)
·
“While providing legal services at Jacobsma Law,
I appeared in YouTube videos to provide general information…. At the end of
each video, the name and contact information for Jacobsma Law including their
phone number, email address, and social media were listed.” (Id. ¶18.)
·
“During my time at Jacobsma Law, I paid for my
own California Bar licenses fees and MCLE fees. I listed Jacobsma Law as my
firm with Jacobsma Law’s contact information and my Jacobsma Law-issued email
address. I paid my malpractice insurance and workers’ compensation premiums as
part of a group cost with Jacobsma Law.” (Id. ¶23.)
·
“During my time with Jacobsma Law, I believed I
was an independent contractor….. I later discovered information that changed my
belief that I was misclassified as an independent contractor.” (Id. ¶24.)
Summary adjudication is DENIED. “The burden on a defendant
moving for summary judgment based upon the assertion of an affirmative defense
is heavier than the burden to show one or more elements of the plaintiff’s
cause of action cannot be established. Instead of merely submitting evidence to
negate a single element of the plaintiff’s cause of action or offering evidence
such as vague or insufficient discovery responses that the plaintiff does not
have evidence to create an issue of fact as to one or more elements of his or
her case ‘the defendant has the initial burden to show that undisputed facts
support each element of the affirmative defense.” (Anderson v. Metal Clad
Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) Defendant has not met its
burden here. Upon applying the Borello test, Defendant has not
established, as a matter of law, that Plaintiff was an independent contractor,
and not an employee. The label placed by the parties on their relationship is
not dispositive. (Borello at
349.) Moreover, the Court finds that the evidence in support of many factors,
especially the right to control, remains in dispute. The issue of whether
Plaintiff was an employee or independent contractor of Defendant should be left
for determination by the finder of fact at trial.
Plaintiff’s Objections to Defendant’s Separate Statement are
misplaced. The Separate Statement is not evidence, nor is Counsel’s
characterization of the underlying evidence cited therein.
Plaintiff’s Evidentiary Objections:
Nos. 1-3. Overruled
Defendant’s Evidentiary Objections.
Nos. 1-14. Overruled