Modification: Bennett v. Rancho California Water Dist.

SHAWN BENNETT,

Plaintiff and Respondent,

v.

RANCHO CALIFORNIA WATER DISTRICT,

Defendant and Appellant.

No. G054617

(Super. Ct. No. RIC 1218298)

California Courts of Appeal

Fourth Appellate District

Division Three

Filed June 13, 2019

ORDER MODIFYING OPINION

AND DENYING PETITION FOR REHEARING;

NO CHANGE IN JUDGMENT

It is ordered that the opinion filed herein on May 29, 2019, be modified as follows:

On page 15, following the end of the second full paragraph, add the following paragraphs:

In support of his petition for rehearing, Bennett cites Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (Dynamex). His reliance is misplaced as Dynamex does not assist him. Bennett argues that "all Bennett had to do to satisfy the first element of his section 1102.5 claim was to demonstrate that he had provided services to the District, a fact which the District never contested." (Italics omitted.) Bennett's argument continues: "In light of that undisputed predicate fact, it was therefore the District's burden in that subsequent section 1102.5 action to prove that Bennett was not its presumed employee, but was instead an independent contractor"---rendering the burden on the District "the exact same in both proceedings." (Italics omitted.)

Bennett's arguments miss the point. In our analysis of burdens, we are concerned with the applicability of the doctrine of collateral estoppel to the administrative law judge's determination the District failed to carry its burden of proving Bennett was an independent contractor in the CalPERS proceeding. Dispositive to our analysis is the administrative law judge's express statement that, from the outset, the District had "the burden of demonstrating by a preponderance of the evidence that Mr. Bennett was an independent contractor." As discussed ante, we apply the express language of section 1102.5 and California Supreme Court authority interpreting that language in concluding it was Bennett's initial burden in the trial court to show that he was an employee, by whatever modicum of proof may be required, to prove his section 1102.5(b) claim. Therefore, the burden applied by the administrative law judge and Bennett's initial burden with regard to employment status in proving the section 1102.5(b) claim were not identical for purposes of collateral estoppel applicability.

Dynamex does not cite section 1102.5, much less analyze the burdens of proof relevant to section 1102.5(b) claims. In Dynamex, the Supreme Court stated: "The issue in this case relates to the resolution of the employee or independent contractor question in one specific context. Here we must decide what standard applies, under California law, in determining whether workers should be classified as employees or as independent contractors for purposes of California wage orders, which impose obligations relating to the minimum wages, maximum hours, and a limited number of very basic working conditions (such as minimally required meal and rest breaks) of California employees." (Dynamex, supra, 4 Cal.5th at pp. 913-914, first italics added.)

This modification does not effect a change in judgment. The petition for rehearing is DENIED.

FYBEL, J.

I CONCUR:

O'LEARY, P. J.

I DISSENT: I am of the opinion the petition for rehearing should be GRANTED.

THOMPSON, J.