RG Garcia Corp. v. Loftis CA2/6

Filed 9/15/14 RG Garcia Corp. v. Loftis CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

RG GARCIA CORPORATION, 2d Civil No. B248784 (Super. Ct. No. 56-2012-00427138- Plaintiff and Appellant, CU-JR-VTA) (Ventura County) v.

STEVEN W. LOFTIS,

Defendant and Respondent.

RG GARCIA CORPORATION, 2d Civil No. B249067 (Super. Ct. No. 56-2012-00427136- Plaintiff and Appellant, CU-JR-VTA)

v.

CHRISTOPHER BITETTI,

Defendant and Respondent.

RG Garcia Corporation appeals the dismissals for failure to post an undertaking of its appeals from the Labor Commissioner's awards to Steven W. Loftis and Christopher Bitetti.1 RG Garcia contends that the trial court erred by failing to waive

1 On our own motion, we consolidated the two appeals for purposes of decision only.

the undertaking requirement on account of the corporation's indigence and inability to obtain the necessary bond. We affirm. FACTUAL AND PROCEDURAL BACKGROUND RG Garcia had a contract with the U.S. Army Corps of Engineers to extract and remove rock from the Santa Paula Creek. It formed a second entity, Santa Paula Rock, Gravel & Sand LLC (SPRGS), to screen, clean, and sort the rock. RG Garcia and SPRGS employed Loftis and Bitetti to perform personal services as operators. From January 15, 2010, through May 21, 2011, RG Garcia paid Loftis's and Bitetti's wages. From May 22 through July 2, SPRGS paid their wages. Beginning July 3, Loftis and Bitetti were not remunerated for their services. Bitetti quit without notice on July 29. Loftis's employment was terminated on August 5. Loftis, Bitetti, and four other individuals filed claims with the Labor Commissioner alleging that RG Garcia and SPRGS owed them unpaid wages, penalties, and interest. RG Garcia argued that it was never the claimants' employer and that it merely acted as SPRGS's payroll service. The Commissioner concluded, however, that RG Garcia and SPRGS jointly employed the claimants through May 21, 2011, when RG Garcia severed its joint employer status. The Commissioner cited several factors supporting its conclusion, including the following: (1) RG Garcia was a partner in Solrick LLC, the majority owner of SPRGS; (2) RG Garcia hired some of the claimants and paid all of their wages during the relevant time frame; (3) RG Garcia offered no evidence that SPRGS had ever reimbursed it or paid it any fees for providing payroll services; (4) RG Garcia paid for SPRGS's equipment; and (5) RG Garcia and SPRGS both exercised control over the claimants' wages, hours, and working conditions until May 21, 2011. The Commissioner awarded Loftis $40,588.53 from RG Garcia and SPRGS jointly and severally, consisting of $29,767.50 in unpaid overtime wages (Cal. Code Regs., tit. 8, § 11160), $7,200.00 in waiting time penalties (Lab. Code, § 203),2 and