Curry v. Equilon Enterprises, LLC (2018) · DecisionDepot
Curry v. Equilon Enterprises, LLC
California Court of Appeal May 18, 2018 No. E065764MPublished
Filed 5/18/18 (unmodified opinion attached) CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
SADIE M. CURRY, E065764 Plaintiff and Appellant, (Super.Ct.No. RIC10014774) v. ORDER MODIFYING OPINION; EQUILON ENTERPRISES, LLC., AND DENIAL OF PETITION FOR REHEARING Defendant and Respondent. [NO CHANGE IN JUDGMENT]
The petition for rehearing filed by appellant on May 8, 2018, is denied. The
opinion filed in this matter on April 26, 2018, is modified as follows:
The “DISCUSSION,” section D starting on page 20 through “DISCUSSION”
section F, which ends on page 39, is deleted and is replaced with the following:
(“)D. DEFINITION NO. 2: ENGAGE
We examine whether there is a triable issue of fact concerning Shell being
Curry’s employer under the “to engage” definition of employer.
1
1. LAW
“ ‘[T]o engage’ has no other apparent meaning in the present context than its
plain, ordinary sense of ‘to employ,’ that is, to create a common law employment
relationship.” (Martinez, supra, 49 Cal.4th at p. 64, fn. omitted.) The common law test
focuses on the issue of whether a worker is an employee or an independent contractor.
(Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 11.)
The essence of the common law employment test “is the ‘control of details’—
that is, whether the principal has the right to control the manner and means by which the
worker accomplishes the work—but there are a number of additional factors in the
The first factor is whether Curry engaged in a distinct occupation or business.
Curry worked at two gas stations, one at Via Rancho and another at Carmel Mountain.
The undisputed facts reflect, “As an ARS station manager, Curry supervised
approximately five to seven ARS cashiers.” Thus, Curry was engaged in the distinct
occupation of an ARS station manager.
3. SUPERVISED OR UNSUPERVISED
The second factor is whether considering the kind of occupation and locality, the
work is usually done under the principal’s direction or by a specialist without
supervision. “While employed by ARS, Curry reported to and took direction from ARS
employees . . . and, at times, from the manager of the ARS HR department.” From this
evidence it can be inferred that Curry’s job was performed under the principal’s
direction. In this case, the principal was ARS. In regard to Shell providing direction to
Curry, Shell required various tasks be performed by ARS; however, there is nothing
indicating that Shell required Curry be the person to perform those tasks. It was ARS
that required Curry to perform certain tasks.
4. SKILLS
The third factor is the skill required for the work. Curry worked directly for
Shell from May 2001 to March 2003. From March to July 2003, Curry worked “at a
gas station.” “In July, 2003, Curry was contacted [by an ARS employee] for the
purpose of recruiting Curry to become the manager of the Via Rancho Station.” It can
be inferred from this evidence that skills are needed for managing a gas station. The
3
evidence that Curry was recruited by ARS indicates a particular skill set was desired—
ARS wanted a person with experience in the field.
The undisputed evidence reflects (1) “[Shell] never directed ARS to recruit,
interview, hire, or promote any specific ARS employee”; and (2) “ARS alone
determined what duties Curry should perform.” Because Shell did not have input on the
hiring process or Curry’s job duties, it can be inferred that Shell did not require a
particular skill set because Shell did not have input on the tasks performed by a
particular employee.
5. INSTRUMENTALITIES, TOOLS, AND PLACE OF WORK
The fourth factor is whether the principal or worker supplies the
instrumentalities, tools, and place of work. Curry’s job training was provided by ARS.
ARS required Curry attend environmental compliance courses taught by Shell. ARS
paid for Curry’s time at the classes. Curry was required to wear a shirt and a nametag
that were purchased by ARS and given to Curry by ARS. Thus, ARS provided Curry
with the information and uniform necessary to conduct her work.
Further, ARS operated the fueling facilities and leased the convenience stores
and car wash facilities where Curry worked. Shell owned the fueling facilities. Thus,
ARS and Shell provided Curry with a place to work—ARS provided the convenience
store and car wash, while Shell provided the fueling station, i.e., the fueling islands.
Shell also provided fuel and the fueling equipment, such as the fuel storage tanks.
Curry’s job duties included “many of the tasks set forth in the MSO Site Operations
Manual, the CVP . . . Guide, and the [HSE Reference].” Therefore, it can be inferred
4
that Curry’s job duties involved tasks such as determining the amount of fuel in the
storage tanks. As a result, Shell provided some of the equipment for Curry’s job, in that
Curry performed tasks related to Shell’s fueling equipment.
6. LENGTH OF TIME
The fifth factor is the length of time for which the services are to be performed.
The undisputed facts reflect “ARS alone determined that Curry would be deemed an
exempt employee . . . [and] when she would work.” Thus, ARS determined what shifts
Curry would work. The undisputed facts reflect, “ARS alone made all hiring,
disciplinary and promotional decisions with respect to Curry.” Thus, Curry’s hiring and
any possible termination would be decided by ARS. The undisputed facts reflect, “ARS
alone also determined when Curry could take personal time off from work, when she
could take vacations and when she could make up work time she missed.” Thus, ARS
decided when Curry could miss work. In sum, ARS decided the length of time for
which Curry’s work was to be performed.
Curry asserts Shell was able to determine the length of time Curry worked
because Shell had the right to effectively terminate Curry. The MSO Contract provides,
“Operator has the right to select, hire, and discharge such employees, provided,
however, Operator shall remove any such employee promptly upon [Shell’s] request for
good cause shown. [Shell] shall not select, hire, discharge, supervise or instruct any of
Operator’s employees.”
The MSO contract authorizes Shell to have ARS remove an ARS employee from
a station, but does not permit Shell to terminate any ARS employee’s employment. For
5
example, if Shell requested Curry be permanently removed from its stations, then ARS
could employ Curry in its offices or assign Curry the off-site task of driving around
checking competing station’s gas prices. The evidence cited by Curry does not create a
triable issue of fact as to whether Shell could terminate Curry’s employment because it
does not indicate that Shell could terminate Curry’s employment.
7. PAYMENT
The sixth factor is the method of payment, whether by time or by job. When
ARS offered Curry the position of manager of the Via Rancho Station, it offered an
annual salary of $32,000. Thus, Curry was a salaried employee of ARS; she was not
paid per project. The undisputed facts reflect ARS “maintained exclusive control over
all payroll” for Curry. Thus, Curry was not paid by Shell.
8. REGULAR BUSINESS
The seventh factor is whether the work is part of the principal’s regular business.
“ARS operated approximately 15 gas stations in San Diego County and employed over
100 people at those stations.” Given this undisputed fact, it can reasonably be inferred
that Curry’s management of two gas stations was part of ARS’s regular business
because ARS’s business involved operating gas stations.
Shell owned approximately 365 fueling stations in California. There is nothing
indicating Shell employed people at the gas stations. Thus, Curry’s work at the fueling
station was not part of Shell’s business. In other words, Shell was not in the business of
operating fueling stations—it was in the business of owning real estate and fuel.
6
Curry contends “Shell was and is in the business of selling its motor fuel at
facilities which it owns. . . . ARS merely provided the station employees and made sure
that they performed their tasks in the manner in which Shell dictated.” Curry’s
argument is problematic. If ARS supplied the employees and supervised the
employees’ work, then ARS was in the business of operating the station, and Shell was
in the business of owning the station.
For example, if the owner of an apartment complex hires a property management
company, and that property management company hires an on-site manager for the
complex, the owner is not engaged in the business of property management. Rather, the
owner is in the business of owning real estate, while the property management company
is in the business of managing properties. Shell’s contract with ARS did not put Shell
in the business of operating fuel stations.
9. BELIEFS
The eighth factor is whether the parties believe they are creating an employer-
employee relationship. The undisputed facts reflect “Curry completed an Application
for Employment with ARS” and “received, signed and returned to ARS a writing
outlining her conditional offer of employment.” These undisputed facts support the
inference that Curry and ARS believed they were creating an employer-employee
relationship.
In regard to Shell, when Curry met with the recruiter who recruited her to work
at the Via Rancho station, Curry believed the recruiter was a Shell employee. However,
at that recruitment meeting, “Curry completed an Application for Employment with
7
ARS.” The reasonable inference from these undisputed facts is that Curry initially
believed at the recruitment meeting that she was being offered a job by Shell, but came
to understand in the recruitment meeting that she was being offered a job by ARS,
hence the ARS job application. Thus, the undisputed facts do not reflect Shell and
Curry believed they created an employer-employee relationship.
10. CONCLUSION
In sum, Shell, along with ARS, provided Curry a place to work and the
equipment with which she performed her job. Providing a portion of Curry’s work
location and equipment is insufficient to raise a triable issue of material fact as to Shell
being Curry’s employer due to the many other factors reflecting Shell is not Curry’s
employer.
In other words, one could not reasonably conclude that Shell controlled the
manner and means by which Curry accomplished her work because Shell did not
supervise Curry, Shell did not have input on Curry’s skills, Shell did not have control
over the length of time Curry performed her job, Shell did not pay Curry, Shell was not
in the business of operating service stations, and Shell and Curry did not believe they
were creating an employer-employee relationship. Accordingly, we conclude Curry’s
causes of action fail under the “to engage” definition of employer.
11. RWJ COS. V. EQUILON ENTERPRISES, LLC
Curry relies on an unpublished federal trial court case from Indiana to support
her position that Shell exercised control over the employees of gas station operators.
(RWJ Cos. V. Equilon Enters., LLC (December 28, 2005, 1:05-cv-1394) [2005 U.S.
8
Dist. LEXIS 38329] (RWJ).)1 RWJ operated 36 Shell branded gas stations in the
Indianapolis area. (Id. at p. [1].) Shell notified RWJ that it intended to terminate RWJ’s
contracts and have another company operate the gas stations. RWJ sued Shell, seeking
a preliminary injunction to prevent the termination of its contracts. RWJ relied upon the
Indiana Deceptive Franchise Practices Act. (Id. at pp. [1]-2.) Ultimately, the trial court
denied the request for a preliminary injunction. (Id. at p. [31].)
The trial court examined whether RWJ’s contract with Shell was a franchise
agreement. (RWJ, supra, 2005 U.S. Dist. LEXIS 38329, [5].) In conducting its
analysis, the court wrote, “The evidence in this case shows that Shell retained extensive
control over the marketing of fuel and every aspect of the filling station operation, as
well as substantial control over the marketing of convenience store products and
services. When reading cases addressing this issue, it is important to recognize that
RWJ operates only Shell-branded filling stations and that RWJ’s convenience stores are
associated very closely with both the filling station operations and the Shell brand.” (Id.
at p. [14].)
In RWJ, the control that Shell exercised was over RWJ—not the employees of
RWJ. For example, Shell may have required certain tasks to be performed by RWJ, but
it appears RWJ could choose which employees performed those tasks. The relationship
examined in RWJ was the relationship between Shell and RWJ, not Shell and the
1 “[T]he California Rules of Court do not prohibit citation to unpublished federal cases, which may properly be cited as persuasive, although not binding, authority.” (Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 251, fn. 6.)
9
employees of RWJ. Accordingly, we find Curry’s reliance on RWJ to be unpersuasive
because it is not the same issue presented in the instant case.
12. CASTANEDA V. THE ENSIGN GROUP, INC.
Curry relies on Castaneda v. Ensign Group, Inc. (2014) 229 Cal.App.4th 1015
(Castaneda) to support her assertion that Shell exercised control over her as an
employee of ARS. In Castaneda, the named plaintiff, John Castaneda, filed a class
action alleging The Ensign Group, Inc. (Ensign) was the alter ego of Cabrillo
Rehabilitation and Care Center (Cabrillo). Ensign had no employees and was the owner
of Cabrillo. Castaneda asserted Ensign was his actual employer and its corporate veil
should be pierced. (Id. at pp. 1017-1018.)
The appellate court considered what it means to be an employer, and looked to
Martinez and its definition concerning the control of different aspects of the
employment relationship. (Castaneda, supra, 229 Cal.App.4th at p. 1019.) The
appellate court noted, “Ensign has more than a contractual relationship with Cabrillo.
Ensign owns Cabrillo.” (Id. at p. 1020.) The court explained that Ensign’s ownership
of Cabrillo could cause a trier of fact to disbelieve Ensign’s contention that it did not
control Cabrillo. (Ibid.) Further, a staff person at Ensign’s corporate office recruited
employees for Cabrillo to hire, and the director of Cabrillo received his employment
orientation training at Ensign. (Ibid.)
Additionally, Ensign’s forms were used at Cabrillo, Ensign instructed Cabrillo
employees to increase revenues, Ensign replaced Cabrillo’s computers and timeclocks,
Ensign required Cabrillo employees to use the new timecard system, Ensign sent
10
consultants to Cabrillo to advise employees on how to perform their duties, Ensign’s
employee handbook notified Cabrillo employees that there was an employee emergency
fund for employees who experienced hardship, Cabrillo employees received paychecks
from Ensign Facility Services, Cabrillo employees’ e-mail addresses were in the form of
name@ensigngroup.net, the Vice President of Ensign set the rate of pay for Cabrillo
employees, employment benefits for Cabrillo’s employees were administered through
Ensign, and Ensign handled issues related to disciplining Cabrillo employees.
(Castaneda, supra, 229 Cal.App.4th at p. 1021-1024.) The appellate court concluded
there were triable issues of fact concerning Ensign being Castaneda’s employer. (Id. at
p. 1018.)
Curry relies on Castaneda for the proposition that “[j]oint employer status has
been found to exist on far less compelling facts” than the facts presented in the instant
case. Curry, relying on Castaneda, contends that requiring an employee to wear the
logo of the alleged secondary employer can support a finding that the alleged secondary
employer is a joint employer. We do not find Castaneda to be illustrative of Curry’s
point. Castaneda has far more compelling facts for joint employment than the instant
case, such as (1) Ensign owning Cabrillo; (2) Ensign setting the rate of pay for
employees; and (3) Ensign administering employee benefits. Because Castaneda does
not illustrate joint employment being found on weaker facts than those in the instant
case, we do not find Curry’s reliance on Castaneda to be persuasive.
11
E. DEFINITION NO. 3: SUFFER OR PERMIT TO WORK
We examine whether there is a triable issue of fact as to Shell being Curry’s
employer due to Shell suffering Curry or permitting Curry to work. (Cal. Code Regs.,
tit. 8, § 11070, subd. (2)(D); Martinez, supra, 49 Cal.4th at p. 64.) The language
concerning an employer suffering or permitting a person to work was derived from a
desire to prevent evasion from liability by a claim that a person was not employed in a
traditional master/servant relationship. (Martinez, at p. 58.) The language arose from
child labor laws. For example, children under age 14 were not permitted to work.
Nevertheless, coal miners paid a boy to carry water for them and the boy sustained
injuries while working. The boy was not employed in a traditional sense by the mining
company, but the mining company permitted or suffered the boy’s work. (Id. at p. 58,
citing Purtell v. Philadelphia & Reading Coal & Iron Co. (1912) 256 Ill. 110, 111,
117.) This definition has been interpreted to mean “the employer ‘shall not . . . permit
by acquiescence, nor suffer by a failure to hinder.’ ” (Martinez, at p. 58, italics
omitted.) Put differently, “the basis of liability is the defendant’s knowledge of and
failure to prevent the work from occurring.” (Id. at p. 69, italics omitted.)
Accordingly, we examine if Shell met its burden of establishing there is no
triable issue of fact as to whether Shell permitted or suffered Curry’s work at the station.
The undisputed facts reflect, (1) “The MSO operator was responsible for hiring, firing,
disciplining, training, compensating and maintaining payroll records for all employees
working at the station”; and (2) “the MSO operator always maintained control over the
daily work of its own employees.” (Italics added.)
12
The undisputed evidence reflects Curry’s hiring, firing, and daily tasks were
ARS’s responsibility. Thus, Shell did not acquiesce to Curry’s employment because
Shell was not in a position to terminate Curry or hire a different person to perform the
tasks Curry performed. In other words, Shell had no role to play—it could not hire
Curry or terminate Curry’s employment. Thus, Shell could not acquiesce to Curry’s
employment.
In regard to suffering by a failure to hinder, Shell had the authority to have Curry
removed from the station upon “good cause shown.” There is no evidence indicating
what Shell may have cited as good cause for physically removing Curry from the station
so as to prevent her from working her regularly scheduled shifts. Because the “good
cause shown” clause was not triggered, Shell could not have Curry physically removed
from the station. Thus, Shell did not have the ability to hinder Curry’s work and, in
turn, could not have failed to hinder Curry’s work. In sum, Shell has met its burden of
establishing there is not a triable issue of fact concerning Shell being Curry’s employer
based on the definition of suffering or permitting Curry to work.
We now examine whether Curry has met her burden of establishing there is a
triable issue of material fact. Curry asserts “Shell caused her to suffer the non-payment
of overtime by failing to ‘hinder’ ARS.” Suffering concerns the alleged employer’s
failure to hinder the alleged employee’s work by not stopping the alleged employee
from working, e.g., not stopping the boy from carrying water to the coalminers.
(Martinez, supra, 49 Cal.4th at pp. 58, 69-70 [“failure to prevent the work from
occurring”].) It does not concern suffering by the employee due to the alleged failure to
13
pay wages owed. Also it does not concern failing to hinder a third party, e.g., ARS.
Accordingly, we conclude Curry has failed to meet her burden of establishing there is a
triable issue of fact as to Shell being Curry’s employer based upon the definition of
suffering or permitting Curry to work.
Thus, we conclude Curry’s causes of action fail under the “suffering or
permitting” definition of employer.
Curry contends this court should apply the “ABC test” definition of the “suffer or
permit to work” test recently set forth in Dynamex Operations West, Inc. v. Superior
The first factor is whether Curry engaged in a distinct occupation or business.
Curry worked at two gas stations, one at Via Rancho and another at Carmel Mountain.
The undisputed facts reflect, “As an ARS station manager, Curry supervised
approximately five to seven ARS cashiers.” Thus, Curry was engaged in the distinct
occupation of an ARS station manager.
3. SUPERVISED OR UNSUPERVISED
The second factor is whether considering the kind of occupation and locality, the
work is usually done under the principal’s direction or by a specialist without
supervision. “While employed by ARS, Curry reported to and took direction from ARS
employees . . . and, at times, from the manager of the ARS HR department.” From this
evidence it can be inferred that Curry’s job was performed under the principal’s
direction. In this case, the principal was ARS. In regard to Shell providing direction to
Curry, Shell required various tasks be performed by ARS; however, there is nothing
23
indicating that Shell required Curry be the person to perform those tasks. It was ARS
that required Curry to perform certain tasks.
4. SKILLS
The third factor is the skill required for the work. Curry worked directly for
Shell from May 2001 to March 2003. From March to July 2003, Curry worked “at a
gas station.” “In July, 2003, Curry was contacted [by an ARS employee] for the
purpose of recruiting Curry to become the manager of the Via Rancho Station.” It can
be inferred from this evidence that skills are needed for managing a gas station. The
evidence that Curry was recruited by ARS indicates a particular skill set was desired—
ARS wanted a person with experience in the field.
The undisputed evidence reflects (1) “[Shell] never directed ARS to recruit,
interview, hire, or promote any specific ARS employee”; and (2) “ARS alone
determined what duties Curry should perform.” Because Shell did not have input on the
hiring process or Curry’s job duties, it can be inferred that Shell did not require a
particular skill sets because Shell did not have input on the tasks performed by a
particular employee.
5. INSTRUMENTALITIES, TOOLS, AND PLACE OF WORK
The fourth factor is whether the principal or worker supplies the
instrumentalities, tools, and place of work. Curry’s job training was provided by ARS.
ARS required Curry attend environmental compliance courses taught by Shell. ARS
paid for Curry’s time at the classes. Curry was required to wear a shirt and a nametag
24
that were purchased by ARS and given to Curry by ARS. Thus, ARS provided Curry
with the information and uniform necessary to conduct her work.
Further, ARS operated the fueling facilities and leased the convenience stores
and car wash facilities where Curry worked. Shell owned the fueling facilities. Thus,
ARS and Shell provided Curry with a place to work—ARS provided the convenience
store and car wash, while Shell provided the fueling station, i.e., the fueling islands.
Shell also provided fuel and the fueling equipment, such as the fuel storage tanks.
Curry’s job duties included “many of the tasks set forth in the MSO Site Operations
Manual, the CVP . . . Guide, and the [HSE Reference].” Therefore, it can be inferred
that Curry’s job duties involved tasks such as determining the amount of fuel in the
storage tanks. As a result, Shell provided some of the equipment for Curry’s job, in that
Curry performed tasks related to Shell’s fueling equipment.
6. LENGTH OF TIME
The fifth factor is the length of time for which the services are to be performed.
The undisputed facts reflect “ARS alone determined that Curry would be deemed an
exempt employee . . . [and] when she would work.” Thus, ARS determined what shifts
Curry would work. The undisputed facts reflect, “ARS alone made all hiring,
disciplinary and promotional decisions with respect to Curry.” Thus, Curry’s hiring and
any possible termination would be decided by ARS. The undisputed facts reflect, “ARS
alone also determined when Curry could take personal time off from work, when she
could take vacations and when she could make up work time she missed.” Thus, ARS
25
decided when Curry could miss work. In sum, ARS decided the length of time for
which Curry’s work was to be performed.
Curry asserts Shell was able to determine the length of time Curry worked
because Shell had the right to effectively terminate Curry. The MSO Contract provides,
“Operator has the right to select, hire, and discharge such employees, provided,
however, Operator shall remove any such employee promptly upon [Shell’s] request for
good cause shown. [Shell] shall not select, hire, discharge, supervise or instruct any of
Operator’s employees.”
The MSO contract authorizes Shell to have ARS remove an ARS employee from
a station, but does not permit Shell to terminate any ARS employee’s employment. For
example, if Shell requested Curry be permanently removed from its stations, then ARS
could employ Curry in its offices or assign Curry the off-site task of driving around
checking competing station’s gas prices. The evidence cited by Curry does not create a
triable issue of fact as to whether Shell could terminate Curry’s employment because it
does not indicate that Shell could terminate Curry’s employment.
7. PAYMENT
The sixth factor is the method of payment, whether by time or by job. When
ARS offered Curry the position of manager of the Via Rancho Station, it offered an
annual salary of $32,000. Thus, Curry was a salaried employee of ARS; she was not
paid a project. The undisputed facts reflect ARS “maintained exclusive control over all
payroll” for Curry. Thus, Curry was not paid by Shell.
26
8. REGULAR BUSINESS
The seventh factor is whether the work is part of the principal’s regular business.
“ARS operated approximately 15 gas stations San Diego County and employed over
100 people at those stations.” Given this undisputed fact, it can reasonably be inferred
that Curry’s management of two gas stations was part of ARS’s regular business
because ARS’s business involved operating gas stations.
Shell owned approximately 365 fueling stations in California. There is nothing
indicating Shell employed people at the gas stations. Thus, Curry’s work at the fueling
station was not part of Shell’s business. In other words, Shell was not in the business of
operating fueling stations—it was in the business of owning real estate and fuel.
Curry contends “Shell was and is in the business of selling its motor fuel at
facilities which it owns. . . . ARS merely provided the station employees and made sure
that they performed their tasks in the manner in which Shell dictated.” Curry’s
argument is problematic. If ARS supplied the employees and supervised the
employees’ work, then ARS was in the business of operating the station, and Shell was
in the business of owning the station.
For example, if the owner of an apartment complex hires a property management
company, and that property management company hires an on-site manager for the
complex, the owner is not engaged in the business of property management. Rather, the
owner is in the business of owning real estate, while the property management company
is in the business of managing properties. Shell’s contract with ARS did not put Shell
in the business of operating fuel stations.
27
9. BELIEFS
The eighth factor is whether the parties believe they are creating an employer-
employee relationship. The undisputed facts reflect “Curry completed an Application
for Employment with ARS” and “received, signed and returned to ARS a writing
outlining her conditional offer of employment.” These undisputed facts support the
inference that Curry and ARS believed they were creating an employer-employee
relationship.
In regard to Shell, when Curry met with the recruiter who recruited her to work
at the Via Rancho station, Curry believed the recruiter was a Shell employee. However,
at that recruitment meeting, “Curry completed an Application for Employment with
ARS.” The reasonable inference from these undisputed facts is that Curry initially
believed at the recruitment meeting that she was being offered a job by Shell, but came
to understand in the recruitment meeting that she was being offered a job by ARS,
hence the ARS job application. Thus, the undisputed facts do not reflect Shell and
Curry believed they created an employer-employee relationship.
10. CONCLUSION
In sum, Shell, along with ARS, provided Curry a place to work and the
equipment with which she performed her job. Providing a portion of Curry’s work
location and equipment is insufficient to raise a triable issue of material fact as to Shell
being Curry’s employer due to the many other factors reflecting Shell is not Curry’s
employer.
28
In other words, one could not reasonably conclude that Shell controlled the
manner and means by which Curry accomplished her work because Shell did not
supervise Curry, Shell did not have input on Curry’s skills, Shell did not have control
over the length of time Curry performed her job, Shell did not pay Curry, Shell was not
in the business of operating service stations, and Shell and Curry did not believe they
were creating an employer-employee relationship. Accordingly, we conclude Curry’s
causes of action fail under the “to engage” definition of employer.
F. CONCLUSION
In conclusion, Curry’s three causes of action fail because there is not a triable
issue of material fact concerning Shell being Curry’s employer under any of the three
legal definitions of employer. The trial court properly granted summary judgment.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
CERTIFIED FOR PUBLICATION
MILLER Acting P. J.
We concur:
CODRINGTON J.
SLOUGH J.
29
AI Brief
AI-generated · verify before citing
Holding. The court held that Shell was not the employer of the plaintiff under either the common law "to engage" test or the "suffer or permit to work" test, as Shell lacked the requisite control over the plaintiff's hiring, firing, daily tasks, and compensation.
Issues
Whether there is a triable issue of fact concerning Shell being the plaintiff's employer under the common law "to engage" definition.
Whether there is a triable issue of fact concerning Shell being the plaintiff's employer under the "suffer or permit to work" definition.
Whether the "ABC test" established in Dynamex applies to the joint employment context.
Disposition. No change in judgment
Quotations verified verbatim against the opinion
“one could not reasonably conclude that Shell controlled the manner and means by which Curry accomplished her work because Shell did not supervise Curry”
“Shell did not have the ability to hinder Curry’s work and, in turn, could not have failed to hinder Curry’s work.”
“the “ABC” test set forth in Dynamex is directed toward the issue of whether e”