Modification: Garcia v. Border Transportation Group, LLC

JESUS CUITLAHUAC GARCIA,

Plaintiff and Appellant,

v.

BORDER TRANSPORTATION GROUP, LLC et al.,

Defendants and Respondents.

No. D072521

(Super. Ct. No. ECU08922)

California Courts of Appeal

Fourth Appellate District

Division One

Filed November 13, 2018

THE COURT:

It is ordered that the opinion filed October 22, 2018, be modified as follows:

1. The entire paragraph commencing at the bottom of page 22 with "We follow the approach" and ending at the top of page 23 is deleted and the following paragraph is inserted in its place:

We follow the approach of the Court of Appeal in Dynamex on our record. It is logical to apply the "suffer or permit to work" standard (and the ABC test that explicates it) to wage order claims. First, the wage order explicitly defines "employ" in this language, and the case law emphasizes "the primacy of statutory purpose in resolving the employee or independent contractor question." (Dynamex, supra, 4 Cal.5th at p. 948.) Second, wage orders regulate very basic working conditions for covered California employees, thus warranting " 'the broadest definition' " of employment to extend protections to "the widest class of workers." (See id. at pp. 913, 951; Cal. Code Regs., tit. 8, § 11090, subd. 1.) There is no reason to apply the ABC test categorically to every working relationship, particularly when Borello appears to remain the standard for worker's compensation. Although both parties agree Dynamex applies to Garcia's case, neither identifies a basis to use the ABC test in evaluating the non-wage-order claims. In the absence of an argument that the statutory purposes underlying those claims compel application of a different standard, we conclude Borello furnishes the proper standard as to Garcia's non-wage-order claims.

2. At the end of the top paragraph of page 23, after the sentence "as to Garcia's non-wage-order claims" add the following as footnote 11, which will require renumbering of all subsequent footnotes:

Appreciating "the primacy of statutory purpose in resolving the employee or independent contractor question" (Dynamex, supra, 4 Cal.5th at p. 948), we express no opinion on the appropriate test on different records in other situations.

3. On page 27, in the fourth sentence of the second full paragraph, the word "it" is changed to "Kirby" so the sentence reads:

As Kirby explained:

4. On the top of page 28, in the first sentence beginning "Because Dynamex favorably cites," the words "footnote 30 in" are to be inserted between "Because" and "Dynamex" so that the sentence reads:

Because footnote 30 in Dynamex favorably cites JSF Promotions to define part C, we follow the Kirby approach and reject Sebago's alternative construction.

5. The entire paragraph commencing at the bottom of page 28 with " Under the more stringent part C" and ending at the top of page 29 is deleted and the following paragraph is inserted in its place:

Under the more stringent part C framework adopted by the California Supreme Court in Dynamex, the result is obvious. Dynamex requires more than mere capability to engage in an independent business. Defendants presented no evidence in their moving papers that Garcia in fact provided services for other entities or otherwise established a business "independent" of his relationship with BTG. (See Kirby, supra, 176 A.3d at pp. 1187-1188 [certain factors besides performing similar work for third parties may also be relevant to part C].) Rather, they rely on the Sebago formulation and suggest Garcia was "free to offer his services as an entrepreneur to anyone he chose."

6. At the end of the top paragraph of page 29, after the sentence " 'free to offer his services as an entrepreneur to anyone he chose' " add the following as footnote 13:

For the first time in their petition for rehearing defendants attempt to argue that under a "totality of the circumstances" test (see Kirby, supra, 176 A.3d at p. 1188), factors other than the actual performance of similar work for other parties show that Garcia was an independent contractor rather than an employee. Most of this argument merely rehashes the "control" evidence defendants previously submitted to support the inapplicable Borello test, such as BTG's lack of training or supervision or Garcia's retention of fares. Defendants' suggestion that Garcia's taxicab amounts to an independent place of business akin to a "home office" is patently unpersuasive---Garcia made lease payments at BTG's office and had no separate business address. As to their reference to business cards, Garcia testified that BTG provided him with business cards; he could not advertise his services as "Garcia Taxicab" or the like; he opted to list his cell phone number on the cards alongside two numbers for the company; and he did not advertise his business in the Yellow Pages, newspaper, or any other source. Although Garcia had a city-issued permit, it was specific as to BTG. (Calexico Mun. Code, ch. 5.80, § 5.80.140.) BTG admits it provided third party liability insurance, and Garcia's ability to procure additional coverage does not show he is customarily engaged in an independently established business. Although Garcia did operate his own vehicle for a time, he purchased that vehicle from Martha Ortega, the former sole proprietor of Calexico Taxi, and operated it as a Calexico Taxi with BTG's vehicle permit. He then leased a vehicle from BTG starting in August 2013 when his own vehicle became inoperable.

There is no change in the judgment.

The petition for rehearing is denied.

HALLER, Acting P. J