Judge Randolph M. Hammock, Case Number: 21STCV21098, Date: 2025-03-13 Tentative Ruling

This is an employment action. Plaintiff John Doe alleges fifteen causes of action against Defendants Don Buchwald Agency and various other Buchwald entities, as well as individual Rick Ferrari. Plaintiff alleges he experienced sexual harassment, sexual assault and battery, and a hostile work environment, among other things, by the “employer” defendant and his agent Defendant Ferrari.

Effective January 1, 2025, the deadlines to file, respond to, and reply to a motion for summary judgment or adjudication have been extended. Defendants argue Plaintiff’s opposition was untimely under the new rules. Plaintiff accuses Defendants of attempting to “have their cake and eat it to,” asserting that if the new rules apply, Defendants’ motion is itself untimely.

Defendants filed and served this motion on December 13, 2024 for a hearing date of February 27, 2025. Code of Civil Procedure Section 437(b)(2), as it existed at the time Defendant filed the motion, required that a notice of motion and all supporting documents be filed 75-days before the hearing. Under the new statute, effective January 1, 2025, the motion must be filed 81-days before the hearing. (See CCP 437(b)(2).)

This court is unaware of any authority holding or suggesting that the statute’s new deadlines should apply “retroactively.” Because Defendant filed this motion before the new deadlines took effect, the previous statute and its deadlines should govern for all filings, including the opposition. Therefore, this court considers all pleadings relating to the motion to be timely filed under the old statute, and each will be read and considered.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

Plaintiff, an actor, brings this action against his former agents. Plaintiff’s First through Seventh Causes of Action are brought under FEHA. The parties agree that these causes of action are contingent on the existence of an employment relationship. (See Vernon v. State of California (2004) 116 Cal. App. 4th 114 [“FEHA predicates potential liability on the status of the defendants as an ‘employer.’”].)

“The various designated tests adopted by the courts to determine the existence of an employer/employee relationship have articulated many of the same or similar governing standards, and have ‘little discernible difference’ between them. [Citations.] The common and prevailing principle espoused in all of the tests directs us 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. [Citations.].” (St. Myers v. Dignity Health (2019) 44 Cal. App. 5th 301, 311–12.)

“Factors to be taken into account in assessing the relationship of the parties include 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. [Citations.]” (Id.) These factors “cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.” (Vernon v. State of California (2004) 116 Cal.App.4th 114, 124-125). The most important factor is “the defendant's right to control the means and manner of the workers’ performance.” (Id. at 126.)

It is Defendants’ position that no employment relationship exists here. The burden begins with Defendant to show that “one or more elements of a cause of action . . . cannot be established.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.

Defendant Don Buchwald & Associates, Inc. Pacific is a talent agency representing actors and other artists. (SSUMF 1.) Buchwald employed Defendant Rick Ferrari as the Director of its Commercial Department. (Id. ¶ 2.) In that role, Defendant Ferrari managed the commercial department and also worked as an agent for the actors he represented. (Id. ¶ 3.) Both Defendants Buchwald and Ferrari held licenses with the State of California as “talent agencies.” (Id. ¶ 4.)

In the world of talent representation, an actor is the “client” of the talent agency. (Id. ¶ 5.) Generally, when an actor books a job with a studio or other entity, the actor is compensated directly from the Studio or entity. (Id. ¶ 6.) The actor’s representation then receives a percentage of that fee as a commission. (Id. ¶ 6, 7.) The agency or agent is an “intermediary” between the talent and studio. (Id. ¶ 9; see e.g., Marathon Ent., Inc. v. Blasi (2008)42 Cal. 4th 974, 983 [“In Hollywood, talent agents act as intermediaries between the buyers and sellers of talent…Generally speaking, an agent's focus is on the deal: on negotiating numerous short-term, project-specific engagements between buyers and sellers.”].) California law recognizes this typical arrangement, which defines a talent agency as “a person or corporation who engages in the occupation of procuring, offering, promising, or attempting to procure employment or engagements for an artist or artists…,” or otherwise “counsel[s] or direct[s] artists in the development of their professional careers.” (Labor Code § 1700.4(a).)

Plaintiff is a professional actor. (Id. ¶ 10.) In 2018, Plaintiff signed a contract with Buchwald to be represented by Defendant Ferrari as his agent. (Id. ¶¶ 11, 12, 13.) Through this arrangement, Plaintiff expected Buchwald and Ferrari to submit him for acting roles with third-party companies. (Id. ¶ 15.) Plaintiff could then accept or reject these roles. (Id.) As is standard, Plaintiff paid Buchwald a commission on earnings from any role he received. (Id. ¶¶ 16, 17.) Plaintiff understood that Buchwald/Ferrari “work[ed] for [him].” (Id. ¶ 14.)

More importantly, Plaintiff boldly claims or strongly suggests that he received a IRS “W2” form from Defendant Buchwald and that he also identified Buchwald as his employer on his tax returns. (SSADMF 2, 26.) However, int support of these claims he has produced only a single document which he claims is a “paycheck” [not “paychecks,”] from Defendant Buchwald to him. See, Declaration of N. Doumanian, p. 136. This Court disagrees that this a “paycheck” which demonstrates that Buchwald treated Plaintiff as a “W-2 employee.” It is simply a payment from Buchwald to Plaintiff that one would expect to see in a talent agency relationship. In this paycheck, there are no deductions whatsoever for taxes, unemployment insurance, workman’s comp, etc., which one would normally expect to see in a “W-2” employer-employee” relationship.

Moreover, Defendant provided Plaintiff's 2020 Wage and Income Transcript. The Income Transcript lists various "Employers," none of which are Defendant. (See Reply Gibson Decl., para 2, Exh. O.) Hence, for the Plaintiff to suggest in his opposition pleadings that there is evidence to establish a “W-2” employer-employee relationship is grossly misleading.

As to the latter claim, whatever Plaintiff filed in his tax returns are self-serving, as best. More problematic is that this Court cannot locate such tax returns in the current record before it. In the Defendants’ reply papers, they correctly note that “Plaintiff provides no pay stubs, no tax returns, and no evidence that he signed any agreements or policies related to his alleged employment.” They also aptly note that the “only other shred of evidence he provides to support this claim is a single check from December 16, 2020,” which this court has discussed supra. (See, Defendants’ Reply, 6:25 to 7:3.)

He also says he has an “employment contract” with Buchwald. (SSADMF 11.) This Court could not find any claimed employment contract. Certainly, Plaintiff does not claim that the written contract established an employer-employee relationship, does he? Indeed, this Court would not be surprised if the contract actually signed between the parties clearly states that Plaintiff is an independent contractor. Perhaps this explains why it hasn’t been produced by Plaintiff in his opposition?

Here, these facts are insufficient to establish a triable issue on the existence of an employment relationship. Instead, these facts demonstrate nothing more than a typical client-agent relationship. Defendants did not pay Plaintiff a salary or other remuneration—the studios did. Any payments Defendants provided to Plaintiff were disbursements from the studios—Defendants were essentially a middleman in the payment scheme and took a portion for their services.

Defendants also did not absolutely control each and every aspect of Plaintiff’s assignments or jobs, as suggested in his opposition. Plaintiff was free to accept or reject any job or assignment offered to him. See, Plaintiff’s Deposition, 29:13-19. [“A: Correct. I can accept it or reject it, depending on the rate and what details are on the job.”]

Defendants were merely brokers that set Plaintiff up with roles. Indeed, it might be no stretch to say that Plaintiff is more an “employer” of Defendants than Defendants are an employer of Plaintiff. Plaintiff recognized this fact when he stated at deposition that Defendants, as his agent, “worked for” him. (SSUMF 14.) This is consistent with the evidence and this court’s understanding of the talent-agent relationship.

In addition to these facts, Plaintiff devotes a large portion of his opposition addressing AB 5 and AB 2257 and the tests used to determine whether a person is an “employee” or an “independent contractor.” However, these Bills and tests are inapposite, because the relationship here is neither an employment nor even an independent contractor relationship.

Considering the “totality of circumstances,” there exists no triable issue regarding the absence of an employment relationship here. This court is mindful that it must “liberally construe the evidence in support of the party opposing summary judgment and resolve any doubts concerning the evidence in favor of that party.” (Medina v. Equilon Enterprises, LLC (2021) 68 Cal. App. 5th 868, 874.) Even doing so here, however, Plaintiff cannot produce sufficient facts to establish a triable issue on the existence of an employment relationship.

This issue was expressly addressed at the recent ex parte application by Plaintiff to continue to deposition. In short, Plaintiff’s counsel conceded that the current briefing was sufficient to allow this MSA to be heard on today’s date, and that a continuance was not needed. See, Minute Order, 2/26/25. Hence, this particular issue is essentially moot.

If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.

Plaintiff notes the existence of a pending motion to compel the deposition of Defendant’s PMK. Plaintiff states that it noticed the deposition of defendant’s PMK “as to the defendant’s employment of defendant Ferrari, his personnel records, records that speak to his employment status and the employer’s referral of this supervisor to anger management for abusive behavior towards subordinates.” (Opp. 16: 13-16.) Plaintiff contends that this discovery “is relevant and material discovery that plaintiff needs in order to oppose defendant’s motion” and will “yield information that speaks to the subject matter of defendant’s motion for summary judgment.” (Opp. 16: 16-19.)

Here, Plaintiff has failed to establish that any information sought by the PMK deposition will be relevant to the ultimate issue in this motion, that is, whether Defendants were Plaintiff’s “employer.” The unavoidable conclusion is that they were not. Therefore, no continuance is justified, and any and all requests for one are denied.