Martinez v. A.R. Private Club CA2/8

Filed 2/26/16 Martinez v. A.R. Private Club CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

TERESA MARTINEZ, B261716

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC499593) v.

A.R. PRIVATE CLUB,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara A. Meiers, Judge. Reversed.

Fink & Steinberg, Keith A. Fink and Sarah E. Hernandez for Plaintiff and Appellant.

Law Offices of Sheldon Rosenfield and Sheldon Rosenfield for Defendant and Respondent.

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Plaintiff Teresa Martinez sued defendant A.R. Private Club alleging causes of action for wrongful termination, for violation of various Labor Code and Business and Professions Code sections, and for intentional infliction of emotional distress, based on the theory that plaintiff was defendant’s employee, and that defendant failed to pay wages or overtime compensation and failed to provide meal or rest periods, and wrongfully terminated plaintiff after she complained about these conditions. The complaint alleged that plaintiff worked as a hostess and server for defendant, which operated a private card club. She was compensated only with tips, was required to launder defendant’s tablecloths at her own expense, and was never reimbursed for the food and beverages she purchased and served to defendant’s customers. The trial court disposed of all of plaintiff’s claims by summary judgment, concluding that plaintiff was not an employee and instead she was an independent contractor providing a “mini catering service” to defendant. Plaintiff appeals, contending there are triable issues of fact as to her employment status. We agree, and reverse and remand the case for further proceedings consistent with this opinion. BACKGROUND These are the material facts, both disputed and undisputed. We do not include any facts to which objections were sustained by the court. No party claims any error in the trial court’s evidentiary rulings. Defendant is a sole proprietorship owned by Mr. Reza Sharifzadeh. Defendant is a private card club located in Beverly Hills that maintains facilities for seniors to play card games. Defendant rents tables to its “customers,” who organize the games to be played at the tables they rent. Defendant receives $15 per player, no matter what the customers charge the card players. The club provides free tea and coffee to its customers. The club does not sell soda, food, or snacks, but players are free to bring their own food or to order food for delivery from nearby restaurants. Over the years, people like plaintiff have come to the club and provided snacks and drinks to the card players. Defendant receives no share of the income made by