1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SIMON GORO, an individual; TONY Case No.: 17-CV-2580 TWR (JLB) RUSSELL, an individual; REY PENA, an 12 individual; JOSE PENA, an individual; ORDER (1) GRANTING PLAINTIFF 13 JEFF BELANDER, an individual; and TONY RUSSELL’S MOTION FOR GUISEPPE ZIZZO, an individual, PARTIAL SUMMARY JUDGMENT 14 ON DEFENDANTS’ FIRST AND Plaintiffs, 15 THIRTY-SECOND AFFIRMATIVE v. DEFENSES, AND (2) DENYING 16 WITHOUT PREJUDICE FLOWERS FOODS, INC., a Georgia 17 PLAINTIFF’S MOTION TO SEAL corporation; FLOWERS BAKING CO.
18 OF CALIFORNIA, LLC, a California (ECF Nos. 171, 172) limited liability company; FLOWERS 19 BAKING CO. OF HENDERSON, LLC, a 20 Nevada limited liability company; and DOES 1 through 100, inclusive, 21 Defendants. 22
23 24 Presently before the Court is Plaintiff Tony Russell’s Motion for Partial Summary 25 Judgment on Defendants’ First and Thirty-Second Affirmative Defenses (“Mot.,” ECF No. 26 171), as well as the Opposition filed by Defendants Flowers Foods, Inc. (“FF”); Flowers 27 Baking Co. of California, LLC (“FBC California”); and Flowers Baking Co. of Henderson, 28 LLC (“FBC Henderson”) (“Opp’n,” ECF No. 193) and Mr. Russell’s Reply (“Reply,” ECF 1 No. 195). Also pending before the Court is Mr. Russell’s Motion to Seal (“Mot. to Seal,” 2 ECF No. 172) certain exhibits filed in support of their Motion for Partial Summary 3 Judgment.1 The Court held a hearing on September 9, 2021. (See ECF No. 205.) Having 4 carefully considered the Parties’ arguments and evidence and the law, the Court DENIES 5 WITHOUT PREJUDICE Mr. Russell’s Motion to Seal and GRANTS Mr. Russell’s 6 Motion for Partial Summary Judgment. 7 BACKGROUND 8 I. Material Facts2 9 A. Defendants’ Direct-Store-Delivery System 10 FF is the second largest producer and marketer of bakery products in the United 11 States. (See ECF No. 171-3 (“Ex. A”) at 2, 4.) FF markets well-recognized brands such 12 as Nature’s Own, Dave’s Killer Bread, and Wonder. (See id.) In 2017, FF had $ 3.9 billion 13 in sales. (See id. at 4.) FF advertises to potential investors that it is in the “[r]etail and 14 foodservice” market. (See id.) 15 FF distributes its products through two segments: a Direct-Store-Delivery (“DSD”) 16 for fresh bakery foods and a Warehouse Delivery segment for others, including snack cakes 17 and frozen products. (See id. at 2, 5; see also ECF No. 171-4 (“Ex. B”) at 41–42.) The 18 DSD segment accounts for approximately 85 percent of FF’s sales, or approximately $3.3 19
20 1 While Defendants’ Motion for Partial Summary Judgment (see generally ECF No. 182), and Plaintiffs’ 21 related motion to file documents under seal, (see generally ECF No. 191), are also pending before the Court, those motions are set to be heard on November 3, 2021. (See generally ECF No. 203.) 22 2 As the Court reminded the Parties at the September 9, 2021 hearing, pursuant to the undersigned’s 23 Standing Order for Civil Cases, “[t]he parties must meet and confer . . . to arrive at a joint statement of 24 undisputed material facts, which must be filed no later than the reply brief.” Standing Order for Civil Cases III.B.6. No such statement was filed here because Mr. Russell’s counsel “conferred with 25 Defendants to arrive at a joint statement of undisputed material facts, but the parties could not agree on how that joint statement would read.” (See Reply at 10 n.10.) The Court reminds the Parties that future 26 failures to abide by the undersigned’s Standing Order for Civil Cases may result in the imposition of sanctions. See, e.g., Kurin, Inc. v. Magnolia Med. Techs., Inc., 473 F. Supp. 3d 1117, 1125 n.1 (S.D. Cal. 27 2020) (warning where violations of the Local Rules and the court’s standing order did not “facilitate[] an 28 efficient review of” cross-motions for summary judgment that “[a]ny further failure to comply . . . may 1 billion in Fiscal Year 2017. (See Ex. A at 2, 4–5.) Under the DSD system, Defendants 2 manufacture products and Distributors,3 like Mr. Russell, deliver them. (See id. at 2, 5; see 3 also ECF No. 193-1 (“Parmer Decl.”) ¶ 4.) Internally, Defendants acknowledge that “[t]he 4 primary purpose for operating under this model is reduced costs[, s]pecifically, . . . fringe 5 benefits that would be paid to employees of the company versus those costs which become 6 the responsibility of the [Distributor]” and “savings from the maintenance and use of the 7 route vehicles (fuel, etc.).” (See ECF No. 173-4 (“Ex. I”) at 1.) 8 Publicly, Defendants characterize their use of Distributors as an “independent 9 contractor franchise model,” which is meant to incentivize Distributors to develop business 10 and generate additional sales within the area to which they own distribution rights. (See 11 Ex. A at 5; see also Parmer Decl. ¶ 4.) Under certain circumstances, Defendants may 12 manage some routes using their employees. (See Ex. I at 1.) Other bakeries also use this 13 distribution model, which was developed in the 1950s. (See Parmer Decl. ¶ 4.) Mr. Russell 14 initially believed that, as a Distributor, he would have the opportunity to increase the value 15 of his territory. (See ECF No. 193-3 (“Ex. 1”) at 36:14–17.) 16 To purchase distribution rights to a defined geographic territory, a Distributor signs 17 a Distributor Agreement (“DA”). (See Parmer Decl. ¶ 8; see also Ex. I at 1; ECF No. 137- 18 7 (“Ex. L”) (DA between FBC Henderson and Mr. Russell).) Although prospective 19 Distributors may make certain elections under the DA, they are not permitted to make any 20 changes to it. (See ECF No. 173-14 (“Ex. Y”) at 160:15–161:20.) The DA defines the 21 territory that the Distributor may purchase, the products the Distributor is authorized to 22 sell, and the purchase price for those products. (See Parmer Decl. ¶ 9.) Under the terms 23 of the DA, the Distributor is “an independent contractor” that “shall not be controlled by 24 [Defendants] as to the specific details or manner of DISTRIBUTOR’s business.” (See id. 25 (quoting Pl.’s Ex. L “Witnesseth” Section ¶¶ 4, 16.1).) Mr. Russell, for example, testified 26
27 3 Although Defendants use the term “independent distributor” in Parmer Declaration and many of their 28 other documents, the independence of these distributors is one of the main points of contention in this 1 that he “vaguely understood” that he was entering into an independent contractor 2 relationship with FBC Henderson. (See Ex. 1 at 39:5–17.) 3 Among other things, the DA also provides that Distributors: may hire others to 4 operate their territory without Defendants’ approval,4 (see Parmer Decl. ¶¶ 10(a), 12(a)); 5 may hold other jobs and deliver products for other companies, (see id. ¶ 10(b); see also Ex. 6 1 at 147:19–149:24); may sell products not from Defendants, so long as those products do 7 not compete with Defendants’ products, (see Parmer Decl. ¶ 10(c)); are not required to 8 abide by a dress code, (see id. ¶ 10(d)); are expected to provide their own delivery vehicles, 9 (see id. ¶ 10(e); see also Ex. 1 at 139:16–25); agree to use “commercially reasonable best 10 efforts,” (see Parmer Decl. ¶ 10(f)); are expected to perform in accordance with “Good 11 Industry Practice,” (see id. ¶ 10(g)); and own the distribution rights to Defendants’ products 12 in the Distributors’ territory. (See id. ¶ 10(h).) The term “Good Industry Practice” refers 13 to industry customs, which the DA defines as “the standards that have developed and are 14 generally accepted and followed in the baking industry,” including “adequate fresh supply” 15 of products, “properly rotating” products, and “promptly removing” stale products. (See 16 id. ¶ 11; see also Ex. Y at 142:20–144:18.) Defendants will repurchase stale product from 17 Distributors up to a “stale cap” or “stale allowance.” (See Parmer Decl. ¶ 20.) As for sales 18 products above the allowance, Distributors may sell them for non-human consumption, 19 donate them to charity, or bear their cost as a business expense. (See id.) The DA, 20 however, explicitly proscribes Distributors from reselling stale product for human 21 consumption to protect Defendants’ brands. (See id.) 22 Defendants contend that, under the DA, Distributors are responsible for operating 23 their own businesses. (See id. ¶ 12.) According to Defendants, Distributors can decide: 24 how many days a week to work given assistance from hired help, (see id. ¶ 12(a)); when 25
26 4 Although Mr. Russell did not hire others to operate his territory, he did receive assistance on some 27 Saturdays and some weekdays over the summer from his two teenaged sons “to teach [his] kids 28 responsibility.” (See Ex. 1 at 64:23–68:11, 71:12–73:3.) Mr. Russell testified that he was required to 1 to start and stop working each day, (see id. ¶¶ 12(b), (f); see also Ex. 1 at 310:7–311:2); 2 the route taken to service their customers, (see Parmer Decl. ¶ 12(c)); how much time to 3 spend at each retail location, (see id. ¶ 12(d)); whether and when to take breaks, (see id. 4 ¶ 12(e)); what vehicle(s) are needed, (see id. ¶ 12(g)); what products to order for their 5 customers, (see id. ¶ 12(h)); and, in consultation with their customers, the number of 6 service days required. (See id. ¶ 12(i); but cf. ECF No. 173-19 (“Ex. DD”) at 191:7–193:23 7 (Mr. Russell explaining that he works seven days per week and sometimes all day because 8 of customer requirements).) Under this arrangement, Distributors are also responsible for 9 their other business needs, such as insurance, hiring an accountant, etc. (See Parmer Decl. 10 ¶ 12(j).) If a Distributor is unable to operate their territory on a particular day, Defendants 11 may use an employee to cover the route and charge the Distributor for the necessary 12 expenses. (See ECF No. 173-21 (“Ex. JJ”) at 249:15–250:11, 6–7; ECF No. 171-45 13 (“Thorndike Decl.”) ¶¶ 3–5.) 14 Distributors sell products they purportedly purchase from Defendants to their 15 customers, and may promote displays, solicit new accounts, recommend new products, and 16 change product pricing, among other things. (See Parmer Decl. ¶ 13.) Distributors may 17 personally service two types of accounts: cash accounts and unauthorized credit accounts. 18 (See id. ¶ 14.) With cash accounts, the Distributor serves as the primary contact for the 19 customer, accepting payment directly. (See id.) Accordingly, the Distributor may extend 20 credit and set payment terms, but is also bears the risk of non-payment. (See id.) With 21 charge accounts, the Distributor receives credit for their sales following sales transactions 22 at their respective accounts. (See id.) Distributors receive from Defendants approximately 23 18 percent on average of the Manufacturer’s Suggested Retail Price of the products they 24 deliver, which represents their profit (or “margin”) on the products they sell. (See ECF No. 25 173-8 (“Ex. M”) at 3; see also ECF No. 173-16 (“Ex. AA”) at 82:15–83:25.) 26 Defendants employ national account representatives to serve as points of contact at 27 the corporate level for larger chain accounts, such as Wal-Mart. (See id. ¶ 15; see also ECF 28 No. 173-3 (“Ex. H”) (Wal-Mart “Supplier Agreement” with “Flowers Bakeries LLC”); 1 ECF No. 173-5 (“Ex. K”) (Sonic Industries Services Inc. and Sonic Capital LLC “Product 2 Agreement” with “Flowers Foods Foodservice Sales, LLC”).) Defendants’ top 25 3 customers account for approximately three-quarters of their revenue, (see ECF No. 173-5 4 (“Ex. J”) at 3), and those customers decide on the products they will stock, the price to be 5 paid, and the shelf allocation. (See Parmer Decl. ¶ 15; see also ECF No. 173-9 (“Ex. N”) 6 at 10 (“The [Distributor] does not set prices, incentives, or advertising with the reseller.”), 7 11–12 (same).) Distributors are responsible, however, for establishing a relationship with 8 local store management, who have significant discretion to award opportunities to 9 Distributors. (See Parmer Decl. ¶ 15.) Some customers may impose their own “service 10 requirements,” including the hours during which they will accept deliveries, the number of 11 delivery days per week, and/or standards for appearance, but Defendants contend that 12 Distributors may negotiate with their customers regarding these requirements. (See id. 13 ¶ 18; see also ECF No. 171-9 (“Ex. G”) (Walmart’s “DSD Supplier Expectations”); ECF 14 No. 171-18 (“Ex. P”) (Albertsons/Vons/Pavilions’ “Vendor Code of Conduct”); ECF No. 15 171-19 (“Ex. Q”) (“Kroger Enterprise Vendor Dress and Conduct Policy”); ECF No. 171- 16 20 (“Ex. R”) (Olive Garden’s “Service Procedures”).) 17 Until the beginning of 2018, Defendants employed “Branch Sales Managers” 18 (“BSMs”) as advisors or liaisons to their Distributors. (See Parmer Decl. ¶ 21.) According 19 to Defendants, BSMs did not “manage” Distributors, but instead were intended to help 20 Distributors grow their businesses and sales by offering suggestions that Distributors could 21 implement or not. (See id.; see also ECF No. 193-4 (“Ex. 2”) at 232:12–14.) Although 22 BSMs did visit retailers, Defendants contend that they did so to “look for opportunities to 23 grow the business,” not to supervise or check in on Distributors. (See Parmer Decl. ¶ 22.) 24 Nonetheless, store visits did sometimes alert BSMs that Distributors were not complying 25 with their contractual obligations under their DAs, (see id.), and, if a BSM noticed during 26 a store visit that a Distributor was missing sales opportunities, the BSM might have 27 approached the Distributor to discuss the issue. (Ex. 2 at 164:18–24.) 28 / / / 1 Although Defendants attempt to disclaim the written job descriptions for BSMs and 2 Directors of Sales, (see Ex. 2 at 229:3–21, 231:9–234:9, 235:17–19, 236:4–16), a job 3 description for Sales Managers advertised that they would “monitor[] and assist[] in the 4 daily route sales operations of a branch of plant market, in a manner that results in 5 maximum profitable sales, controlled stales, low turnover, superior customer relations, 6 brand growth, proper accounts receivable record, proper distribution, positive relations 7 with employees and independent distributors, and compliance with company 8 policies/procedures and the distributor’s agreement.” (See ECF No. 173-1 (“Ex. D”) at 1.) 9 The advertised responsibilities included “[t]rain[ing], assist[ing], and guid[ing] company 10 sales employees and Independent Distributors in the proper distribution of Flowers 11 Products;” “[c]ommunicat[ing] with, guid[ing] and direct[ing] each sales team member 12 (Company and Distributor) in their efforts to attain/maintain positive customer relations, 13 sales and stales goals, and compliance with company policies/procedures and the 14 Distributor’s agreement;” “[e]nsur[ing] . . . contact with all . . . distributors at least twice 15 weekly;” and “[e]nsur[ing] Sales Representatives and Distributors have the tools necessary 16 to do their jobs to Flowers or industry standards.” (See id. at 1–2; see also Ex. Y at 17 51:10–56:5 (discussing training programs); ECF No. 173-17 (“Ex. BB”) at 140:1–143:11 18 (discussing work performed in the territories); ECF No. 173-18 (“Ex. CC”) at 30:13–31:16 19 (same).) Similarly, the job description for the director of sales summarizes the position as 20 entailing “[d]irect the management of the sales of Flowers products in assigned branches.” 21 (See ECF No. 171-5 (“Ex. C”) at 2.) Territory Operations Specialists are advertised as 22 “further develop[ing] and execut[ing] orientation, mentoring, and educational 23 opportunities [for] . . . Distributors.” (See ECF No. 173-2 (“Ex F”) at 1; see also id. 24 (“Develop and implement mentoring and educational opportunities for IDs[.]”).) 25 When Defendants determine that a Distributor is violating their contractual 26 obligations under the DA, including failing to satisfy the “Good Industry Practice” 27 standard, Defendants may issue a “breach letter” as provided in the DA. (See Parmer Decl. 28 ¶¶ 23–24; see also ECF No. 173-12 (“Ex. W”); ECF No. 173-13 (“Ex. X”).) Breach letters 1 are most commonly issued in response to customer complaints. (See Parmer Decl. ¶ 23.) 2 Whether to issue a breach letter depends on an individualized assessment and is subject to 3 review and challenge by the Distributor. (See id.) Breach letters serve the dual purpose of 4 informing Distributors of personal risks to their business and protecting Defendants’ brands 5 and distributor network. (See id. ¶ 24.) Breach letters are typically “curable,” meaning the 6 Distributor is given an opportunity to remedy the breach within a specific timeframe. (See 7 id. ¶ 25.) In limited circumstances, however, such as those involving criminal activity, 8 violations of the law, or “substantial harm” to Defendants’ brands and ability to service 9 customers, breach letters may be non-curable. (See id.) 10 Defendants’ DSD system has been the subject of much investigation and litigation. 11 (See, e.g., Ex. B at 41; ECF No. 197-7.) For example, the California Labor Commissioner 12 determined on December 20, 2017, that a Distributor who filed a claim for reimbursable 13 business expenses against FBC Henderson was a “franchisee and therefore outside of the 14 Labor Commission jurisdiction.” (See generally ECF No. 197-7.) Around the same time, 15 the United States Department of Labor conducted investigations of Defendants in three 16 counties of Georgia, concluding that Defendants had misclassified their Distributors as 17 independent contractors rather than employees. (See generally ECF No.171-36 (“Ex. 18 HH”).) Defendants have also been named in several employment actions across the 19 country. (See, e.g., ECF No. 171-41 (“Ex. MM”); see also ECF No. 195-1 (“Ex. QQ”) at 20 17, F-53.) 21 B. Defendants’ Accounting Practices 22 As a publicly traded company, FF must regularly file reports with the Securities and 23 Exchange Commission (“SEC”).5 (See ECF No. 173-20 (“Ex. EE”) at 11:21–13:15.) FF’s 24 / / / 25 26 5 Because judicial notice of SEC filings is proper under Federal Rule of Evidence 201, see, e.g., Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1064 n.7 (9th Cir. 2008) (citing Dreiling v. Am. 27 Exp. Co., 458 F.3d 942, 946 n.2 (9th Cir. 2006)), the Court GRANTS Mr. Russell’s requests that the 28 Court take judicial notice of FF’s SEC filings, Exhibits B, V, FF, and QQ. (See ECF Nos. 171-46, 195- 1 SEC filings repeatedly describe distributors as independent businesses. (See ECF No. 193- 2 5 (“Davis Decl.”) ¶ 4.) FF’s financial reporting is also based on this premise. (See id.) 3 Based on guidance from the Financial Accounting Standards Board (“FASB”), FF 4 recognizes revenue for authorized charge sales when the product is delivered to retailers 5 by Distributors and for scan-based trading accounts when the product is purchased by the 6 end consumer. (See id. ¶ 6; see also Ex. B at 9; Ex. I at 2.) When a Distributor picks up 7 more product than is required to service their authorized charge or pay-by-scan sales, such 8 as for unauthorized charge or cash sales, FF recognizes revenue immediately. (See Ex. I 9 at 4.) Both PricewaterhouseCoopers (“PwC”), which is FF’s outside auditor, (see Davis 10 Decl. ¶ 1), and Ernst & Young approve of FF’s manner of revenue recognition. (See id. 11 ¶ 7.) Under Generally Accepted Accounting Principles (“GAAP”), intercompany 12 transactions—including those between FF’s subsidiaries—are reflected only by offsetting 13 ledger entries that do not appear in the consolidated financial statements, which reflect only 14 transactions with outside parties. (See id. ¶ 8; see also Ex. I at 2.) Under GAAP, these 15 offsetting ledger entries reflect bona fide transactions. (See Davis Decl. ¶ 8.) 16 In internal memoranda regarding revenue recognition in transactions involving 17 Distributors, FF’s accounting personnel have concluded that Distributors are “agents” of 18 Defendants for authorized charge and pay-by-scan sales for purposes of reporting revenue 19 at gross or net. (See Ex I at 4–5; Ex. N at 9–12; Ex. EE at 18:5–19:3, 38:13–41:3.) These 20 sales are also “considered to be consignment arrangements because control does not 21 transfer to the [Distributor].” (See Ex. N at 22.) In other words, for authorized charge and 22 pay-by-scan sales, Defendants recognize the reseller as their customer and the Distributor 23 as an intermediary. (See id. at 5.) Ultimately, for these two transaction types—which 24 account for 90 to 95 percent of FF’s sales—it is Defendants who have promised to deliver 25 product to resellers with whom they contract, and Defendants “have engaged the 26 [Distributor] to fulfill this promise.” (See id. at 7, 9; Ex. EE at 34:24–37:7; see also ECF 27 No. 173-10 (“Ex. O”) at 7 (“Independent distributors facilitate the sale[s brokered by 28 / / / 1 Defendants] by picking up the product at Flowers’ warehouse and delivering to the 2 customer.”).) 3 II. Relevant Procedural Background 4 Plaintiffs Simon Goro, Mr. Russell, Rey Pena, Jose Pena, Jeff Belander, and 5 Giuseppe Zizzo initiated this action in the Superior Court of California, County of San 6 Diego, on November 27, 2017. (See generally ECF No. 1-2.) Generally alleging that 7 Defendants had misclassified them as independent contractors rather than employees, 8 Plaintiffs asserted claims for (1) failure to compensate for all hours worked; (2) failure to 9 pay overtime premium pay; (3) waiting-time penalties; (4) failure to provide accurate wage 10 statements; (5) failure to provide meal periods; (6) unlawful deductions from wages; 11 (7) failure to indemnify for necessary expenditures; and (8) violations of California’s 12 Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq. (See generally 13 id.) After answering Plaintiffs’ complaint and asserting thirty-three affirmative defenses 14 on December 26, 2017, (see generally ECF No. 1-3), Defendants removed to this Court 15 based on diversity jurisdiction on December 28, 2017. (See generally ECF No. 1.) 16 On March 22, 2018, Plaintiffs filed their first amended complaint, adding a ninth 17 claim for enforcement of the California Private Attorney General Act (“PAGA”), Cal. 18 Labor Code §§ 2698 et seq. (See generally ECF No. 17.) Defendants moved to dismiss 19 Plaintiffs’ PAGA cause of action on April 12, 2018, (see ECF No. 22), and also filed an 20 answer to Plaintiffs’ first amended complaint, asserting thirty-two affirmative defenses. 21 (See generally ECF No. 23.) While their motion to dismiss was still pending, the Parties 22 filed cross-motions for partial summary judgment on November 16, 2018. (See generally 23 ECF Nos. 78, 81.) On January 8, 2019, the Honorable Janis L. Sammartino granted 24 Defendants’ motion to dismiss Plaintiffs’ PAGA cause of action and denied as moot the 25 pending motions for partial summary judgment. (See generally ECF No. 92.) 26 Plaintiffs filed their operative Second Amended Complaint on January 15, 2019, 27 adding additional allegations to support their PAGA cause of action. (See generally ECF 28 / / / 1 No. 95.) On January 29, 2019, Defendants answered, again asserting thirty-two affirmative 2 defenses. (See generally ECF No. 98.) 3 Mr. Russell moved for partial summary judgment as to Defendants’ first affirmative 4 defense—i.e., that Defendants were never Plaintiffs’ employers—on February 15, 2019. 5 (See generally ECF No. 99.) Defendants filed their own motion for partial summary 6 judgment as to six of Plaintiffs’ causes of action on March 12, 2019. (See generally ECF 7 No. 104.) After Judge Sammartino took the cross-motions for partial summary judgment 8 under submission, (see generally ECF No. 135), Defendants moved to stay this action 9 pending resolution of the following issues: (1) whether the “ABC” test articulated in 10 Dynamex Operations West v. Superior Court, 4 Cal. 5th 903 (2018), applies retroactively; 11 and (2) whether the Federal Aviation and Administration Authorization Act (“F4A”) 12 preempts prong “B” of the ABC test. (See generally ECF No. 141.) On January 24, 2020, 13 Judge Sammartino stayed this action pending the California Supreme Court’s in Vazquez 14 v. Jan-Pro Franchising International, Inc., No. S258191 (Cal. filed Sept. 26, 2019), and 15 denied without prejudice the Parties’ cross-motions for partial summary judgment. (See 16 generally ECF No. 166.) 17 On September 25, 2020, this action was transferred to the undersigned. (See 18 generally ECF No. 167.) After Plaintiffs informed the Court that the California Supreme 19 Court had issued a decision in Vazquez, (see generally ECF No. 168), the Court lifted the 20 stay, (see generally ECF No. 169), and requested a Joint Status Report from the Parties. 21 (See generally ECF No. 170.) Before the ordered deadline for the Joint States Report, 22 Mr. Russell filed the instant Motions. (See generally ECF Nos. 171, 172.) 23 LEGAL STANDARD 24 Under Federal Rule of Civil Procedure 56, a party may move for summary judgment 25 as to a claim or defense or part of a claim or defense. Fed. R. Civ. P. 56(a). Summary 26 judgment is appropriate where “the movant shows that there is no genuine dispute as to 27 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. 28 P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Although materiality is 1 determined by substantive law, “[o]nly disputes over facts that might affect the outcome of 2 the suit . . . will properly preclude the entry of summary judgment.” Anderson v. Liberty 3 Lobby, Inc., 477 U.S. 242, 248, (1986). A dispute is “genuine” only “if the evidence is 4 such that a reasonable jury could return a verdict for the nonmoving party.” Id. When 5 considering the evidence presented by the parties, “[t]he evidence of the non-movant is to 6 be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. 7 The initial burden of establishing the absence of a genuine issue of material fact falls 8 on the moving party. Celotex, 477 U.S. at 323. The moving party may meet this burden 9 by “identifying those portions of ‘the pleadings, depositions, answers to interrogatories, 10 and admissions on file, together with the affidavits, if any,’ which it believes demonstrate 11 the absence of a genuine issue of material fact.” Id. “When the party moving for summary 12 judgment would bear the burden of proof at trial, ‘it must come forward with evidence 13 which would entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 14 C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) 15 (quoting Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992)). 16 Once the moving party satisfies this initial burden, the nonmoving party must 17 identify specific facts showing that there is a genuine dispute for trial. Celotex, 477 U.S. 18 at 324. This requires “more than simply show[ing] that there is some metaphysical doubt 19 as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 20 586 (1986). Rather, to survive summary judgment, the nonmoving party must “go beyond 21 the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, 22 and admissions on file,’ designate ‘specific facts’” that would allow a reasonable fact finder 23 to return a verdict for the non-moving party. Celotex, 477 U.S. at 324; see also Anderson, 24 477 U.S. at 248. Accordingly, the non-moving party cannot oppose a properly supported 25 summary judgment motion by “rest[ing] upon mere allegations or denials of his pleading.” 26 Anderson, 477 U.S. at 256. 27 / / / 28 / / / 1 ANALYSIS 2 Through the instant Motion, Mr. Russell seeks summary adjudication in his favor as 3 to Defendants’ first and thirty-second affirmative defenses. (See Mot. at 2; ECF Nos. 171- 4 1 & 173-23 (“Mem.”) at 1, 25; see also generally Mem. at 9–25.7) Defendants’ first 5 affirmative defense provides that “Plaintiffs’ claims may not be properly maintained 6 against Defendants because Defendants were never Plaintiffs’ employer, joint employer, 7 or co-employer,” (Ans. at 13), while their thirty-second affirmative defense maintains that 8 “Plaintiffs’ claims are preempted, in whole or in part, by the Federal Aviation 9 Administration Authorization Act.” (Id. at 18.) 10 In evaluating Mr. Russell’s Motion, the Court first determines whether the ABC Test 11 articulated by the California Supreme Court in Dynamex, 4 Cal. 5th 903, and codified at 12 California Labor Code section 2775, or the alternate test under S. G. Borello & Sons, Inc. 13 v. Department of Industrial Relations, 48 Cal. 3d 341 (1989) (the “Borello test”) applies to 14 Mr. Russell’s claims. The Court then addresses Defendants’ preemption arguments 15 concerning the ABC Test, including the viability of Defendants’ thirty-second affirmative 16 defense. Finally, the Court proceeds to evaluate Defendants’ first affirmative defense. 17 I. ABC Test or Borello Test 18 As an initial matter, the Court must determine whether the ABC Test or the Borello 19 test applies to Mr. Russell’s employment law claims. Mr. Russell contends that the ABC 20 Test applies to all his claims, (see Mem. at 14–17), while Defendants contend that his 21
22 6 Defendants seek to incorporate by reference their previously filed evidentiary objections. (See Opp’n at 23 3 n.2 (citing ECF No. 111-6).) As Mr. Russell notes, (see Reply at 1 n.1), the undersigned’s Standing 24 Order for Civil Cases provides that “[o]bjections to evidence submitted in support of a motion must be contained within the opposition brief, and . . . [n]o separate statements of objections will be allowed.” 25 Standing Order for Civil Cases § III.B.4. The Court therefore disregards Defendants’ prior evidentiary objections. See, e.g., Anhing Corp. v. Thuan Phong Co., 215 F. Supp. 3d 919, 929 (C.D. Cal. 2015); 26 Miller v. City of Los Angeles, No. CV 13-5148-GW(CWX), 2015 WL 12811238, at *23 (C.D. Cal. Oct. 22, 2015). 27
28 7 A public, redacted version of Mr. Russell’s memorandum of points and authorities was filed at ECF No. 1 claims for expense reimbursement and waiting time penalties are governed by the Borello 2 test. (See Opp’n at 11–12.) 3 The Court first addresses Defendants’ retroactivity argument. (See id. at 11.) In 4 Vazquez, the California Supreme Court clarified that the ABC Test articulated in 5 “Dynamex applies retroactively to all nonfinal cases [governed by wage orders] that 6 predate the effective date of the Dynamex decision.” See 10 Cal. 5th at 958. Nonetheless, 7 Defendants contend, based on Haitayan v. 7-Eleven, Inc., No. CV 17-7454 DSF (ASx), 8 2021 WL 757024 (C.D. Cal. Feb. 8, 2021), and Olson v. California, No. 9 CV1910956DMGRAOX, 2020 WL 905572, at *12 (C.D. Cal. Feb. 10, 2020), that 10 Assembly Bill 5, later codified as Section 2775 of the California Labor Code, does not 11 apply retroactively. (See Opp’n at 11.) But Defendants’ cases, see Haitayan, 2021 WL 12 757024, at *5; Olson, 2020 WL 905572, at *12, fail to address Section 2785(a) of the 13 California Labor Code, which provides that, as codified in Section 2775, the ABC Test 14 “does not constitute a change in, but is declaratory of, existing law with regard to wage 15 orders of the Industrial Welfare Commission [(“IWC”)] and violations of th[e Labor C]ode 16 relating to wage orders.”8 “[W]here a statute provides that it clarifies or declares existing 17 law, ‘[i]t is obvious that such a provision is indicative of a legislative intent that the 18 amendment apply to all existing causes of action from the date of its enactment.” W. Sec. 19 Bank v. Super. Ct., 15 Cal. 4th 232, 244–45 (1997) (second alteration in original) 20 (quoting Cal. Emp. Stabilization Comm’n v. Payne, 31 Cal. 2d 210, 214 (1947)) (citing 21 City of Sacramento v. Public Emps.’ Retirement Sys., (1994) 22 Cal. App. 4th 786, 798 22 (1994); City of Redlands v. Sorensen, 176 Cal. App. 3d 202, 211 (1985)). Because Mr. 23 Russell’s claims were pending before April 30, 2018 (the date of the Dynamex decision), 24 and September 4, 2020 (the effective date of Section 2785), the ABC Test applies so long 25 / / / 26
27 8 “In California, wage orders are constitutionally-authorized, quasi-legislative regulations that have the 28 force of law.” Dynamex, 4 Cal. 5th at 914 n.3 (citing Cal. Const., art. XIV, § 1; Cal. Lab. Code, §§ 1173, 1 as Mr. Russell’s claims for expense reimbursement and waiting time penalties “relat[e] to 2 wage orders.” 3 According to Mr. Russell, his seventh cause of action for failure to indemnify for 4 necessary expenditures, (see SAC ¶¶ 52–55), relates California Labor Code section 2802 5 and Wage Order 1(8) and (9),9 (see Mem. at 16), while his third cause of action for waiting- 6 time penalties, (see SAC ¶¶ 36–39), is “derivative” of their other claims under the 7 California Labor Code and IWC wage orders. (See Mem. at 16 n.9.) Mr. Russell cites the 8 California Court of Appeal’s decision in Gonzales v. San Gabriel Transit, Inc., 40 Cal. 9 App. 5th 1131 (2019), in which the court concluded that the plaintiff’s claims for “failure 10 to reimburse expenses and improper deductions in violation of section 2802 [are] 11 encompassed by Wage Order No. 9(8) and (9).” See id. at 1157; see also ECF No. 171-23 12
13 9 In relevant part, these provisions provide: 14 8. Cash Shortage and Breakage 15
16 No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown 17 that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee. 18 9. Uniforms and Equipment 19
20 (A) When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the 21 employer. The term “uniform” includes wearing apparel and accessories of distinctive design or color. 22 . . . 23
24 (B) When tools or equipment are required by the employer or are necessary to the performance of a job, such tools and equipment shall be provided and maintained 25 by the employer, except that an employee whose wages are at least two (2) times the minimum wage provided herein may be required to provide and maintain hand 26 tools and equipment customarily required by the trade or craft. This subsection (B) shall not apply to apprentices regularly indentured under the State Division of 27 Apprenticeship Standards. 28 1 (“Ex. U”), also available at Johnson v. VCG-IS, LLC, No. 30201500802813CUCRCX, 2 2018 WL 3953771 (Cal. Super. July 18, 2018) (unpublished minute order concluding that 3 waiting time claims under Section 201 to 203 and reimbursement claims under 2802 are 4 covered by wage orders). In their briefing, Defendants rely solely on the fact Mr. Russell’s 5 expense reimbursement and waiting time penalty claims arose before January 1, 2020, 6 declining to address whether those claims relate to wage orders. (See Opp’n at 11–12 7 (citing Moreno v. JCT Logistics, Inc., No. EDCV 17-2489 JGB (KKx), 2019 WL 3858999, 8 at *1, *12 (C.D. Cal. May 29, 2019); Alvarez v. XPO Logistics Cartage LLC, No. 18-cv- 9 03736 SJO (E), 2018 WL 6271965, at *2, *4 (C.D. Cal. Nov. 15, 2018); Garcia v. Border 10 Transp. Grp., LLC, 28 Cal. App. 5th 558, 571–72 (2018)).) Further, the cases on which 11 Defendants rely fail meaningfully to address the relation of expense reimbursement claims 12 and waiting time penalties to wage orders. See Moreno, 2019 WL 3858999, at *1, *12 13 (concluding that the ABC Test applied to the plaintiff’s rest break, meal break, and 14 minimum wage claims and UCL claims based on those violations because the “[p]laintiff 15 indicated [at the hearing] that [those same claims] depend on wage orders”); Alvarez, 2018 16 WL 6271965, at *2, *4 (applying ABC Test only to claims for failure to pay minimum 17 wage, failure to pay wages for missed meal periods, and failure to pay wages for missed 18 rest periods “because they are addressed to the same California wage orders at issue in 19 Dynamex,” without addressing claims for failure to reimburse business expenses or waiting 20 time penalties); Garcia, 28 Cal. App. 5th at 571–72 (concluding, without analysis, that “the 21 wage order does not encompass claims for . . . waiting time penalties”). 22 The Court concludes that Mr. Russell’s claims for expense reimbursement and 23 waiting time penalties relate to wage orders such that the ABC Test applies to those claims. 24 Mr. Russell urges that his waiting time claims relate to the work orders because they are 25 derivative of his other labor-related claims. (See Mem. at 16 n.9; see also SAC ¶ 37 26 (alleging that penalties are merited because of Defendants’ failure to compensate Plaintiffs 27 “for all hours worked, failing to adequately compensate for meal and rest breaks, [and] 28 failing to pay overtime premium pay”).) Defendants’ own cases support that the ABC Test 1 applies to a cause of action based on causes of action relating to wage orders. See, e.g., 2 Moreno, 2019 WL 3858999, at *12 (concluding that ABC Test applies to claims under 3 California’s UCL based on meal break, rest break, and minimum wage claims); Garcia, 28 4 Cal. App. 5th at 571–72 (same). As for the waiting time penalties, Mr. Russell alleges that 5 “Defendants unlawfully failed to indemnify Plaintiffs for reasonable and necessary 6 expenditures, including their vehicles, tools, cellular telephones, transportation expenses, 7 insurance, uniform and laundry of the same, loss of product (such as stolen baked goods), 8 among other expenses.” (See SAC ¶ 54.) As Mr. Russell notes, these allegations “relate” 9 to Wage Order 1(9), which requires an employer to provide uniforms, Cal. Code Regs. tit. 10 8, § 11010(9)(A), and required or necessary tools or equipment. Cal. Code Regs. tit. 8, 11 § 11010(9)(B). The Court therefore concludes that the ABC Test applies to Mr. Russell’s 12 claims. 13 II. Preemption Arguments 14 Defendants next contend that Mr. Russell cannot prevail under the ABC Test 15 because it is preempted by the F4A, (see Opp’n at 3–9 (discussing Defendants’ thirty- 16 second affirmative defense)), and under the Federal Trade Commission Franchise Rule 17 (“FTC Franchise Rule”), 16 C.F.R. §§ 436 et seq., and the Lanham Act, 15 U.S.C. §§ 1051 18 et seq. (See Opp’n at 9–11.) 19 A. Thirty-Second Affirmative Defense: F4A Preemption 20 For their thirty-second affirmative defense, Defendants assert that “Plaintiffs’ claims 21 are preempted, in whole or in part, by the Federal Aviation Administration Authorization 22 Act.” (See Ans. at 18.) Mr. Russell raises several arguments against F4A preemption, (see 23 Mem. at 17–24), and Defendants respond that his arguments were rejected in California 24 Trucking Association v. Becerra, 433 F. Supp. 3d 1154 (S.D. Cal. 2020) (Benitez, J.), and 25 “there is, at a minimum, a triable issue of fact given that Judge Benitez entered a state-wide 26 order enjoining the enforcement of the ABC test as to motor carriers.” (See Opp’n at 9 27 (citing Cal. Trucking Ass’n v. Becerra, 433 F. Supp. 3d at 1171).) 28 / / / 1 After Defendants filed their Opposition, however, the Ninth Circuit reversed 2 California Trucking Association v. Becerra, concluding that “the F4A does not preempt 3 [the ABC test] as applied to motor carriers,” (Reply at 1–2 (alteration in original) (quoting 4 Cal. Trucking Ass’n v. Bonta, 996 F.3d 644, 659 (9th Cir. 2021))), and reversing Judge 5 Benitez’s state-wide injunction. See Cal. Trucking Ass’n v. Bonta, 996 F.3d at 665–66. 6 The California Trucking Association has requested review of the Ninth Circuit’s decision, 7 and Defendants attempt to argue that the “issue remains open.” (See ECF No. 197 at 6.10) 8 But “once a federal circuit court issues a decision, the district courts within that circuit are 9 bound to follow it and have no authority to await a ruling by the Supreme Court before 10 applying the circuit court’s decision as binding authority[.]” Yong v. I.N.S., 208 F.3d 1116, 11 1119 n.2 (9th Cir. 2000) (citing McClellan v. Young, 421 F.2d 690, 691 (6th Cir. 1970)). 12 This is true even when, as here, see Order, Cal. Trucking Ass’n v. Bonta, No. 20-55106 13 (9th Cir. filed June 23, 2021), ECF No. 113, the Ninth Circuit has stayed the mandate to 14 offer an opportunity to petition for review of the decision. See In re Zermeno-Gomez, 868 15 F.3d 1048, 1050–53 (9th Cir. 2017) (concluding that district court committed clear error 16 and ordering the district court to comply with a published decision issued by the Ninth 17 Circuit despite the fact that the mandate had been stayed to allow the government to seek 18 en banc review or to petition for a writ of certiorari). Accordingly, the Court concludes 19 that California Trucking Association v. Bonta is determinative, GRANTS Mr. Russell’s 20 Motion, and DISMISSES Defendants’ thirty-second affirmative defense that the ABC 21 Test is preempted by the F4A as to Mr. Russell. 22
23 10 In support of their own affirmative motion for partial summary judgment—the only filing in which 24 Defendants had the opportunity to address the Ninth Circuit’s decision in California Trucking Association v. Bonta—Defendants invoke the First Circuit’s decision in Schwann v. FedEx Ground Package System, 25 Inc., 813 F.3d 429 (1st Cir. 2016), to support their argument that, by precluding Defendants from using independent contractors, Prong B of the ABC test relates to the service of a motor carrier and therefore is 26 expressly preempted by the F4A. (See ECF No. 197 at 6 (citing Schwann, 813 F.3d at 437).) But the Ninth Circuit rejected this argument in California Trucking Association v. Bonta, noting that it had 27 “previously concluded that such indirect consequences have ‘only a tenuous, remote, or peripheral 28 connection to rates, routes or services.’” 996 F.3d at 663 (quoting Dilts v. Penske Logistics, LLC, 769 1 B. Preemption Under the FTC Franchise Rule and the Lanham Act 2 Before the Court may proceed to analyze Defendants’ first affirmative defense, the 3 Court also must address Defendants’ additional preemption arguments, namely, that 4 “applying the ABC Test is preempted by the Federal Trade Commission Franchise Rule 5 and the Lanham Act” because Plaintiffs are franchisees. (See Opp’n at 9–11.) Specifically, 6 Defendants argue, the FTC Franchise Rule requires a “franchisor . . . to exert a significant 7 degree of control over the franchisee’s method of Operation,” (see Opp’n at 10 (quoting 8 16 C.F.R. § 436.1(h)(2))), and the Lanham Act requires franchisors to “control use of their 9 trademarks,” (see id. (citing 15 U.S.C. § 1127), requirements that “directly conflict with 10 the ABC Test’s ‘free from control’ requirement.” (See id.) Mr. Russell responds that 11 “Flowers cannot meet its burden to demonstrate how the labor laws at issue stand as a 12 significant obstacle to any objective Congress seeks to achieve” because neither the FTC 13 Franchise Rule nor the Lanham Act evidences a clear and manifest intent to regulate wages 14 or employment relationships between franchisors and franchisees. (See Reply at 2–3.) 15 Mr. Russell also argues that the Ninth Circuit implicitly rejected Defendants’ arguments in 16 Vazquez. (See Reply at 3 (citing Vazquez, 986 F.3d at 1122).) 17 In Vazquez, the Ninth Circuit held that “the franchise context does not alter 18 the Dynamex analysis.” See 986 F.3d at 1124. Although highly persuasive, the Ninth 19 Circuit in Vazquez was not confronted with the preemption arguments that are currently 20 before the Court. “Federal preemption occurs when: (1) Congress enacts a statute that 21 explicitly pre-empts state law; (2) state law actually conflicts with federal law; or 22 (3) federal law occupies a legislative field to such an extent that it is reasonable to conclude 23 that Congress left no room for state regulation in that field.” CTIA - Wireless Ass’n v. City 24 of Berkeley, 928 F.3d 832, 849 (9th Cir. 2019). Defendants appear to invoke conflict 25 preemption. (See Opp’n at 9–11 (arguing that it is “impossible to reconcile” the FTC 26 Franchise Rule and Lanham Act with California’s ABC Test).) To determine whether the 27 ABC Test conflicts with the FTC Franchise Rule and Lanham Act, the Court must focus 28 on Congress’s intent and “begin with the presumption that Congress did not intend to 1 preempt a law that is within a state’s historical police powers, unless that ‘was the clear 2 and manifest purpose of Congress.’” See Cal. Trucking Ass’n v. Bonta, 996 F.3d at 654 & 3 664 n.14 (quoting Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016, 1021 (9th Cir. 4 2020)). Labor law is traditionally an area of state concern. See, e.g., McDaniel v. Wells 5 Fargo Invs., LLC, 717 F.3d 668, 675 (9th Cir. 2013). 6 First, Defendants fail to identify any actual conflict between the ABC Test and the 7 FTC Franchise Rule or Lanham Act. Not only do Defendants rely only on the definitional 8 provisions of the FTC Franchise Rule and Lanham Act, (see Opp’n at 10 (citing 15 U.S.C. 9 § 1127; 16 C.F.R. § 436.1(h)(2))), but they fail to identify a conflict between those 10 definitions and the ABC Test. The FTC Franchise Rule’s definition for a “franchise” 11 provides only that a “franchisor . . . has authority to exert a significant degree of control 12 over the franchisee’s method of operation,” see 16 C.F.R. § 436.1(h)(2), while the Lanham 13 Act defines a “related company” as “any person whose use of a mark is controlled by the 14 owner of the mark with respect to the nature and quality of the goods or services on or in 15 connection with which the mark is used.” 15 U.S.C. § 1127. The ABC Test, on the other 16 hand, requires that an independent contractor be “free from control and direction of the 17 hiring entity in connection with the performance of the work.” See Cal. Labor Code 18 § 2775(b)(1)(A). But that all three provisions include the term “control[]” does not mean 19 that the provisions are related, much less that they conflict. For example, the phrase 20 “method of operation” in the FTC Franchise Rule is broader than the phrase “performance 21 of . . . work” appearing in the ABC Test. While a franchisor may dictate that a franchisee 22 include certain food items on its menu, that does not mean that a franchisor must dictate 23 the franchisee’s hiring decisions, the layout of its kitchen, or the wages it pays its 24 employees. The same is true of the Lanham Act, which applies to a licensor’s control over 25 the “use of [its] mark,” not the performance of work by its licensee. Defendants therefore 26 fail to identify any conflict between these federal authorities and California’s ABC Test. 27 Second, neither the FTC Franchise Rule nor the Lanham Act evidences a “clear and 28 manifest purpose of Congress” to preempt state labor law. Rather, Part 436 of Title 16 of 1 the Code of Federal Regulations generally regulates Disclosure Requirements and 2 Prohibitions Concerning Franchising. See generally id.; see also 16 C.F.R. §§ 1.8, 1.22 3 (indicating that Congress authorized the FTC to promulgate rules and regulations regarding 4 unlawful trade practices). Similarly, the Lanham Act generally governs trademarks and 5 unfair competition related to the misuse of registered marks. See 15 U.S.C. § 1127; see 6 also generally 15 U.S.C. ch. 22. In short, Defendants fail to identify any specific provision 7 of the FTC Franchise Rule or Lanham Act that evidences Congress’s “clear and manifest” 8 intent to preempt labor laws, much less those concerning the classification of workers as 9 independent contractors or employees. Accordingly, the Court concludes that Defendants 10 fail to establish that the ABC Test is preempted by either the FTC Franchise Rule or the 11 Lanham Act. 12 Because Defendants have failed to demonstrate that the ABC Test is preempted by 13 either the F4A, the FTC Franchise Rule, or the Lanham Act, the Court will apply the ABC 14 Test to evaluate Defendants’ first affirmative defense. 15 III. First Affirmative Defense: Employment Status 16 Defendants’ first affirmative defense is that “Plaintiffs’ claims may not be properly 17 maintained against Defendants because Defendants were never Plaintiffs’ employer, joint 18 employer, or co-employer.” (See Ans. at 13.) Mr. Russell contends that he is entitled to 19 summary adjudication because Defendants are unable to meet their burden of raising a 20 genuine issue of material fact as to his employment status under either the ABC Test or the 21 alternate Borello test. (See generally Mem. at 9–14, 24–25.) 22 The Court has already determined that the ABC Test applies to Mr. Russell’s claims. 23 (See supra Sections I–II.) Pursuant to California’s ABC Test, 24 [A] person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity 25 demonstrates that all of the following conditions are satisfied: 26 (A) The person is free from the control and direction of the hiring entity in 27 connection with the performance of the work, both under the contract 28 for the performance of the work and in fact. 1 (B) The person performs work that is outside the usual course of the hiring entity’s business. 2
3 (C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the 4 work performed. 5
6 Cal. Lab. Code § 2775(b)(1). Mr. Russell contends that he is entitled to summary 7 adjudication because Defendants cannot raise a genuine dispute of material fact regarding 8 the applicability of either of the first two prongs of the ABC Test. Because the Court agrees 9 that Defendants have failed to identify a genuine issue of material fact as to Prong B, the 10 Court declines to analyze Prong A. See Vazquez, 986 F.3d at 1125 (“[T]he ABC test is 11 conjunctive, so a finding of any prong against the hiring entity directs a finding of an 12 employer-employee relationship.”). 13 Prong B requires Defendants to establish that Mr. Russell “performs work that is 14 outside the usual course of [Defendants’] business.” See Cal. Lab. Code § 2775(b)(1)(B). 15 In other words, “Prong B requires the hiring entity to establish that it was not engaged in 16 the same usual course of business as the putative employee.” See Vazquez, 986 F.3d at 17 1125. According to the California Supreme Court, this requirement is meant “to bring 18 within the ‘employee’ category all individuals who can reasonably be viewed as working 19 ‘in the [hiring entity’s] business[.]’” Dynamex, 4 Cal. 5th at 959 (emphasis and first 20 alteration in original) (quoting Martinez v. Combs, 49 Cal. 4th 35, 69 (2010)). The Ninth 21 Circuit has advised that “courts have framed the Prong B inquiry in several ways.” 22 Vazquez, 986 F.3d at 1125. For example, courts “have considered whether the work of the 23 employee is necessary to or merely incidental to that of the hiring entity, whether the work 24 of the employee is continuously performed for the hiring entity, and what business the 25 hiring entity proclaims to be in.” See id. (citing Mattatuck Museum-Mattatuck Historical 26 Soc’y v. Adm’r, Unemployment Comp. Act, 238 Conn. 273, 279 (1996); Carey v. 27 Gatehouse Media Mass. I, Inc., 92 Mass. App. Ct. 801, 804–10 (2018)). “All of these 28 / / / 1 formulations should be considered in determining whether” a hiring entity is an employer 2 under Prong B. See id. 3 Defendants contend that there are factual disputes related to the first and third factors 4 under Prong B that prevent summary adjudication, and that there also exist factual disputes 5 about the relationship between Mr. Russell and FF. (See Opp’n at 13–14.) With regard to 6 the first factor, Defendants argue that Mr. Russell’s own Memorandum reveals his belief 7 that Defendants are in the “baking business,” while he is in the transportation or delivery 8 business. (See id. at 14 (citing Mem. at 1, 5, 10, 11, 21, 22).) According to Defendants, 9 “[i]f Russell could conclude that he is in the transportation business and Defendants are in 10 the baking business, a juror could do the same.” (See id. (citing Parmer Decl. ¶ 12(a)).) 11 The Court finds this argument disingenuous—while Mr. Russell may concede that 12 Defendants manufacture baked goods, he also contends that Defendants’ business is not so 13 limited, additionally encompassing sales, delivery, and merchandising. (See Mem. at 14 10–12.) 15 Defendants also argue that they are “indifferent to how much work Distributors do 16 . . . and how they perform their work.” (See Opp’n at 15 (citing Parmer Decl. ¶ 12(a)).) 17 The Court agrees that Defendants “misrepresent Mr. Parmer’s declaration to make this 18 claim.” (See Reply at 4.) Paragraph 12(a) of the Parmer Declaration provides only that 19 “Mr. Russell could exercise his rights under the DA to hire others to distribute products for 20 him, without prior approval from Flowers. As a result, Mr. Russell could work five days 21 a week, or two days, or no days. It was all up to him.” (Parmer Decl. ¶ 12(a).) Even if 22 true, this does not support that Defendants were “indifferent” to the amount or end results 23 of their Distributors’ labor. Indeed, Mr. Russell responds that this argument is “absurd” 24 because “most Flowers’ business flows through its DSD segment . . . ; Flowers 25 contractually promises that it will put its products on large retail shelves and service these 26 retail customers . . . ; Flowers can and will discipline distributors for not meeting 27 performance obligations it owes to its customers . . . ; Flowers personally operates 28 territories and carries out the same work as distributors . . . ; and Flowers operates 1 distributors’ territories where they fail to do so in order to keep the sales flowing.” (See 2 Reply at 4–5 (citations omitted).) 3 The Court agrees that the undisputed facts demonstrate that Distributors’ work was 4 necessary to Defendants’ business. Defendants’ DSD segment accounted for 85 percent 5 of their sales for Fiscal Year 2017, or approximately $3.3 billion of $3.9 billion in total 6 sales over that period. (See Ex. A at 1.) In their “Investor Fact Sheet,” Defendants 7 identified their “distributor partners” as part of their “core business.” (See id. at 4 8 (emphasis in original).) Defendants’ top 25 customers account for approximately three- 9 quarters of their revenue, (see Ex. J at 3), and it is Defendants that negotiate and sign 10 contracts with these large chain accounts. (See Parmer Decl. ¶ 15; Ex. H (Wal-Mart 11 “Supplier Agreement” with “Flowers Bakeries LLC”); Ex. K (Sonic Industries Services 12 Inc. and Sonic Capital LLC “Product Agreement” with “Flowers Foods Foodservice Sales, 13 LLC”).) These large customers decide the products they will stock, the price they will pay, 14 and the shelf space they will allocate. (See Parmer Decl. ¶ 15; see also Ex. N at 10 (internal 15 accounting memorandum recognizing that “[t]he [Distributor] does not set prices, 16 incentives, or advertising with the reseller” for pay-by-scan transactions), 11–12 (same for 17 authorized credit transactions).) It is Defendants who contract to sell and deliver their 18 products to these customers, (see, e.g., Ex. H at 1; Ex. K at 8), who therefore view 19 Defendants, not their Distributors, as their “vendor.” (See Ex. N. at 9, 11.) Consequently, 20 when Distributors fail to perform under Defendants’ contracts, Defendants may use their 21 own employees to fulfill those duties,11 (see, e.g., Ex. JJ at 249:14–250:13; Ex. JJ at 8), 22 and may even terminate a Distributor within 24-hours if their “failure of performance . . . 23 threatens to do substantial harm to COMPANY’s business, trademarks or reputation, 24 including, but not limited to, any action or inaction on DISTRIBUTOR’s part that results 25 in DISTRIBUTOR’s inability to service any Chain account.” (See Ex. L § 17.3; see also 26 27 28 11 FF’s 2016 Form 10-K filed with the SEC also indicates that FF owns “230 company owned and operated 1 Parmer Decl. ¶ 5 (“To the extent that an Independent Distributor does not deliver products 2 in a timely and professional manner including selling stale product to consumers or causing 3 accounts to use other vendors it is harmful to both Flowers and the distributor network.”).) 4 These undisputed facts establish that the Distributors’ work was necessary, and not merely 5 incidental to, to Defendants’ business. (See Ex. QQ at 12 (“Our ability to make, move and 6 sell products is critical to our success.”).) 7 As for the third factor, Defendants contend that they “make clear that they 8 manufacture products and use independent Distributors to deliver them.” (See Opp’n at 9 17.) Defendants also identify three exhibits Mr. Russell filed that “state that Defendants 10 are not in the delivery business.” (See id. (citing Exs. A, B, V).) A review of these exhibits, 11 however, reveals that Defendants hold themselves out as more than a mere manufacturer 12 of baked goods. Exhibit A, for example, is a printout from the “Flowers Foods At-A- 13 Glance” tab of FF’s website. (See Ex. A at 2–3.) On that page, FF advertises that it 14 “produces and markets bakery products in the United States,” and that “[i]t operates 15 through two segments, Direct-Store-Delivery (DSD) and Warehouse Delivery.” (See id. 16 at 2; see also Ex. QQ (“The company has two business segments that reflect its two distinct 17 methods of delivering products to market.”).) While FF routinely mentions that the DSD 18 segment “sells its products through a network of independent distributors to retail and 19 foodservice customers,” (see, e.g., Ex. A at 2), that FF uses purportedly independent 20 distributors does not mean that FF does not also hold itself out as a distributor of its 21 Products. (See id.) FF’s “Business Overview” on its “Flowers Foods At-A-Glance” 22 webpage, for example, includes a pie chart for “Distribution,” showing that DSD accounts 23 for approximately 85% of FF’s distribution-related business. (See id.) The website also 24 shows a map of the United States with “Flowers Foods Bakery Locations/Market 25 Territory,” which depicts FF’s sizeable “fresh (DSD) market distribution.” (See id. at 26 2–3.) Exhibit A also includes an “Investor Fact Sheet,” which identifies FF’s “Business” 27 as a “producer and marketer of packaged bakery foods in the U.S.,” and defines its 28 “Market” as “[r]etail and foodservice,” with sales of its “[f]resh bakery foods to 85% of 1 the U.S. population through a network of independent contractors.” (See id. at 4.) This 2 page includes the same pie charts and map as FF’s website. (See id.) It goes on to provide 3 detailed information about FF’s “OPERATING SEGMENTS,” i.e., the DSD and 4 warehouse delivery segments. (See id. at 5.) 5 The other exhibits identified by Defendants, Exhibits B and V, are publicly filed and 6 available SEC filings: Exhibit B is FF’s Form 10-Q quarterly report for the period ending 7 April 21, 2018, (see generally Ex. B), and Exhibit V is FF’s Form 10-K annual report for 8 the fiscal year ended December 28, 2013. (See generally Ex. V.) In these filings, much as 9 on its website and in its investor materials, FF describes itself as a national “producer and 10 marketer of . . . bakery” products. (See, e.g., Ex. B at 8, 41; Ex. V at 5.) But also as in 11 Exhibit A, FF advertises that it is more than a bakery. For example, FF notes that its 12 “business is managed based on delivery method of [its] products and [FF] ha[s] two 13 operating segments,” the DSD and Warehouse Delivery segments. (See Ex. B at 41; see 14 also id. at 8; Ex. QQ at 23 (“The design of our delivery systems and segments permits us 15 to allocate management time and resources to meet marketplace expectations.”).) FF 16 acknowledges the importance of its “relationships with [its] retail and foodservice 17 customers,” (see Ex. V at 5), which “include mass merchandisers, supermarkets and other 18 retailers, restaurants, quick-serve chains, food wholesalers, institutions, dollar stores, and 19 vending companies.” (See id. at 7.) FF also represents that its products are “distribut[ed]” 20 or “sold” “through a DSD . . . system,” (see id.; Ex. B at 8), and that FF itself personally 21 operates 230 of its territories. (See Ex. QQ at 1.) Further, as a larger operation, FF 22 “enjoy[s] . . . competitive advantages . . . , including greater brand awareness and 23 economies of scale in purchasing, distribution, production, information technology, 24 advertising and marketing.” (See Ex. V at 9; see also Ex. QQ (“Throughout our history, 25 we have devoted significant resources to automate our production facilities and improve 26 our distribution capabilities. We believe these investments have made us one of the most 27 efficient producers of packaged bakery products in the United States.”).) While it is 28 undisputed that Defendants hold themselves out as a producer and marketer of baked 1 goods, these filings also demonstrate that Defendants tout their distribution capacity. (See 2 Ex. Q at 4 (“We believe our company also invests wisely and bakes smart by: . . . 3 [i]mproving our shipping and logistics.”).) 4 Finally, Defendants contend that “[e]ven more factual issues are present because 5 Plaintiff contends Flowers Foods, the ultimate parent, does not meet prong B. Flowers 6 Foods provides overall direction to its subsidiaries and is not a party to the DA. How 7 Flowers Foods’ business is allegedly aligned with Plaintiff’s is replete with factual issues.” 8 (See Opp’n at 13–14.) The Ninth Circuit has recognized, however, that, “as a doctrinal 9 matter, [FF] could be [Mr. Russell’s] employer under the ABC test even though it is not a 10 party to any contract with [Mr. Russell].” See Vazquez, 986 F.3d at 1124. This is because 11 “[w]here a party is the agent of misclassification, it may be directly liable under [the ABC 12 test], even where it utilizes a proxy to make arrangements with its employees.” Id. (quoting 13 Depianti v. Jan-Pro Franchising Int’l, Inc., 465 Mass. 607, 624 n.17 (2013)). Therefore, 14 “[a]s long as the putative employee was providing a service to the hiring entity 15 even indirectly, the hiring entity can fail the ABC test and be treated as an employer.” Id. 16 (emphasis in original) (citing Depianti, 465 Mass. at 623–24). 17 Here, although Mr. Russell signed his DA with FBC California, (see Parmer Decl. 18 ¶ 8; Ex. L), FF is the entity that owns the delivery routes, (see, e.g., Ex. V at 7 (“The 19 company has sold the majority of these territories to independent distributors under long- 20 term financing arrangements.”); see also Ex. QQ at 6, 49, F-9, F-16); finances the 21 purchases and holds the distribution rights notes receivable, (see Ex. Q at 49, F-8–F-9, F- 22 16); recognizes sales and administrative expenses related to its DSD segment, (see id. at 23 30–31, F-54); and negotiates contracts with retailers, particularly the big brands that make 24 up the vast majority of FF’s business that the Distributors then fulfill. (See id. at 5, 10.) 25 Under these undisputed facts, the Distributors have provided a service to FF and, 26 consequently, FF may be held directly liable for their misclassification despite the 27 Distributors’ interactions with FF’s intermediaries. See Vazquez, 986 F.3d at 1124. 28 / / / 1 The Court therefore concludes that Defendants have failed to meet their burden of 2 identifying genuinely disputed material facts demonstrating that their Distributors perform 3 work that is “outside the usual course of [Defendants’] business.” Accordingly, the Court 4 GRANTS Mr. Russell’s Motion and DISMISSES Defendants’ first affirmative defense. 5 IV. Motion to Seal 6 At Defendants’ insistence, (see Mot. to Seal at 2; ECF No. 172-2 (“Markley Decl.”) 7 ¶¶ 26–27), Mr. Russell moves to file under seal twenty-two documents produced by 8 Defendants (Exs. D, F, H–O, T, W–EE, JJ, NN), and those portions of his Memorandum 9 referencing those documents. (Mot. to Seal at 3–5; Markley Decl. ¶¶ 2–23, 25.) All told, 10 these documents comprise over 400 pages. (See generally ECF No. 173.) Mr. Russell 11 explains that the Exhibits they move to file under seal were all designated 12 “CONFIDENTIAL” by Defendants pursuant to the then-operative Protective Order 13 entered in this action, ECF No. 19. (See Mot. to Seal at 2; see also Markley Decl. ¶ 24.) 14 Defendants have provided no further legal authority for these documents to be filed under 15 seal. (See Mot. to Seal at 2; Markley Decl. ¶¶ 24, 26–27; see also generally Docket.) 16 As the Court has previously informed the Parties, (see ECF No. 187), a party seeking 17 to seal a judicial record bears the burden of overcoming the strong presumption of access. 18 Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). “[T]he 19 presumption of access is not rebutted where documents which are the subject of a 20 protective order are filed with the court as attachments to summary judgment motions’ and 21 . . . ‘to retain any protected status for documents attached to a summary judgment motion, 22 the proponent must meet the compelling reasons standard and not the lesser good cause 23 determination.” Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1177 (9th Cir. 24 2006) (internal quotation marks omitted) (quoting Foltz, 331 F.3d at 1135). Through no 25 fault of his own, Mr. Russell cites only to the Protective Order as justification for sealing 26 the documents filed in support of his Motion for Partial Summary Judgment, which is 27 insufficient under Ninth Circuit precedent. The Court therefore DENIES WITHOUT 28 PREJUDICE Mr. Russell’s Motion to Seal (ECF No. 172). 1 CONCLUSION 2 In light of the foregoing, the Court GRANTS Mr. Russell’s Motion for 3 ||Partial Summary Judgment (ECF No. 171) and DISMISSES Defendants’ first and 4 thirty-second affirmative defenses as to Mr. Russell. The Court also DENIES 5 || WITHOUT PREJUDICE Mr. Russell’s Motion to Seal (ECF No. 172). Defendants 6 ||MAY FILE a renewed motion to file under seal any documents for which 7 ||“compelling reasons” exist within fourteen (14) days of the electronic docketing of this 8 ||Order. Should Defendants elect not to file a renewed motion, Mr. Russell SHALL 9 || FILE PUBLICLY ECF No. 173 in its entirety within twenty-one (21) days of the 10 || electrdticlSc&8QeORDEREDrder. 1] Dated: September 20, 2021 —— eee [5d 1S be Honorable Todd W. Robinson 14 United States District Court 15 16 17 18 19 20 21 22 23 24 25 26 27 28