Opinion
NOT TO BE PUBLISHED
APPEAL from judgment of the Superior Court of Los Angeles County No. BC384434, Robert H. O’Brien, Judge.
Harris & Ruble and Alan Harris for Plaintiff and Appellant.
Rosen Saba and Ryan D. Saba for Defendant and Respondent.
KITCHING, J.
INTRODUCTION
Plaintiff and appellant Geno Imbriale alleges that defendant and respondent Power Payroll, Inc. (Power Payroll), a payroll processing company, violated sections of the Labor Code relating to wages and the Fair Labor Standards Act of 1938 (FLSA). The trial court granted Power Payroll’s motion for summary judgment on the ground that Power Payroll was not Imbriale’s employer, and thus could not be liable under any of the causes of action asserted by Imbriale.
The facts and legal issues in this case are very similar to those in Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419 (Futrell). Indeed, lead counsel for both sides is the same lead counsel who represented the parties in Futrell, Imbriale relies on some of the same expert witnesses relied on by the plaintiff in Futrell, and Imbriale makes virtually the same arguments rejected by the Futrell court. Futrell is directly on point with respect to all of the main issues in this appeal. After carefully reviewing the Futrell opinion, we conclude that the court’s legal analysis and reasoning were sound. Accordingly, we affirm the judgment of the trial court in favor of Power Payroll.
FACTUAL AND PROCEDURAL BACKGROUND
1. Imbriale’s Employment as a Production Supervisor
In late November 2007, Imbriale was contacted by line producer Kim Bradshaw about working on a television commercial for Neutrogena. He agreed to work on the project. Imbriale was employed as a production supervisor for the commercial from December 3 to December 17, 2007. In that position Imbriale hired vendors, helped schedule the shoot, assisted with accounting and payroll matters, and helped with “general overall logistics and organization of the shoot.”
Defendant Edge Films, Inc. (Edge Films) was the production company which produced the television commercial at issue in this litigation. According to Imbriale, defendants Cory Nahoum and Ken Nahoum, principals of Edge Films, were “running the show” on the commercial shoot. Cory Nahoum was the executive producer. Ken Nahoum was the director and script supervisor. Kim Bradshaw, an employee of Edge Films, was Imbriale’s direct supervisor. Bradshaw told Imbriale what time to show up at work, what time to leave, and what to do. Once Bradshaw received a budget from Ken and Cory Nahoum and Edge Films, she and Imbriale agreed that Imbriale would be paid a flat rate of $550 a day.
Edge Films entered into a contract with Power Payroll to administer its payroll for the Neutrogena commercial production. Power Payroll is not a parent or subsidiary of Edge Films. No representative from Power Payroll was ever at the Neutrogena commercial production set.
On December 4, 2007—one day after Imbriale began working on the project—he became aware that Power Payroll was retained to process the payroll for the project. In almost all of the productions Imbriale has worked on there has been a payroll company.
Imbriale played a role in collecting wage and hour data for Power Payroll. He collected time cards from crew members working on the project, completed the time cards by multiplying the hourly rate by the number of hours worked, submitted the time cards to Cory Nahoum for approval, and then forwarded the time cards to Power Payroll.
Power Payroll’s job was to process paychecks for each employee and to send them to employees in a timely manner. The company withheld appropriate taxes and unemployment insurance charges from each payment to an employee and deposited the withholdings with the appropriate governmental entities. Before Power Payroll issued employee paychecks, Edge Films deposited money in an account for Power Payroll, and Power Payroll used that money to pay employees. At the end of the year Power Payroll prepared and delivered W-2 forms to each individual who worked on the Neutrogena commercial as required by the Internal Revenue Service.
At his deposition Imbriale testified that Power Payroll instructed him on how to complete payroll forms and about the laws relating to payroll. Power Payroll did not, however, hire him, fire him, establish the amount of money that he was to be paid on a daily basis, tell him what time to go home, or otherwise control the way he performed his job.
Imbriale contends that Power Payroll made an error on his paycheck for his work on the Neutrogena commercial. Specifically, Imbriale alleges that he is still owed $550 in unpaid wages.
2. The Complaint
On January 28, 2008, Imbriale filed the operative complaint in this litigation against Power Payroll, Edge Films, Cory Nahoum, and Ken Nahoum. Imbriale alleged that this was a class action on behalf of all employees of defendants who worked on the Neutrogena commercial. Nothing in the record, however, indicates that the trial court certified the class.
Ken Nahoum Productions, Inc. was later named as defendant Doe 1. Power Payroll is the only defendant who is a party to this appeal.
Imbriale set forth six causes of action in his complaint: (1) willful failure to pay wages in a timely manner (Lab. Code, § 203 ), (2) failure to provide sufficient information on pay stubs (§ 226), (3) failure to pay overtime and comply with the state minimum wage law (§§ 510 and 1194), (4) failure to pay minimum wage in violation of the FLSA (29 U.S.C. § 206), (5) failure to pay overtime in violation of the FLSA (29 U.S.C. § 207), and (6) unfair competition (Bus. & Prof. Code, § 17200 et seq.). All of the causes of action were based on defendants’ alleged employment of Imbriale and the other members of the class in connection with the Neutrogena commercial, and defendants’ alleged failure to comply with state and federal wage laws.
Except as noted, all future statutory references are to the Labor Code.
3. Power Payroll’s Motion for Summary Judgment
On July 15, 2009, Power Payroll filed a motion for summary judgment, or in the alternative, summary adjudication. In support of the motion Power Payroll filed, inter alia, portions of the transcript of Imbriale’s deposition and a declaration by Power Payroll’s Business Affairs Manager Kerri Pettit.
In opposition to the motion Imbriale filed, inter alia, his own declaration, the declaration of his counsel Alan Harris, the declaration of Dean Bray, an employee of Harris’s law firm, and the declaration of Donn P. McVeigh filed on the Futrell case. We shall discuss post in more detail the evidence before the trial court, both parties’ evidentiary objections, and the trial court’s rulings on those objections.
In his opposition brief, Imbriale did not request a continuance of the hearing on the motion. Imbriale’s counsel Harris, however, stated the following in paragraph 18 of his declaration: “To the extent that the defense challenges the facts articulated in Paragraphs 14 to 17 hereof, pursuant to the provisions of [Federal Rules of Civil Procedure] Rule 56(f), Plaintiffs request that this court deny the motion or order a continuance so that affidavits may be obtained, depositions be taken, and/or other discovery be taken to establish these matters.”
After holding a hearing on the motion on November 4, 2009, the trial court took the matter under submission. On November 9, 2009, the trial court issued an order granting Power Payroll summary judgment. The court found that there was no admissible evidence supporting plaintiff’s claim that he was an employee of Power Payroll. Although the trial court did not expressly rule on Imbriale’s request for a continuance, we presume that it denied it. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Judgment was entered in favor of Power Payroll and against Imbriale on March 25, 2009. Imbriale filed a timely appeal of the judgment.
CONTENTIONS
Imbriale’s main argument on appeal is that the trial court erroneously concluded that Power Payroll was not his employer for purposes of the Labor Code wage statutes and the FLSA. He also contends that because Power Payroll held itself out as an employer, it should be estopped from denying its employer status. Imbriale further contends that he had an implied contract of employment with Power Payroll. He also argues that the trial court erroneously overruled his objections to Pettit’s declaration. Finally, Imbriale argues that the trial court erroneously denied his request for a continuance of the hearing on Power Payroll’s motion.
DISCUSSION
1. Standard of Review
A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) We review the record de novo to determine whether triable issues of material fact exist and whether Power Payroll should have been granted judgment as a matter of law. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) With respect to the trial court’s rulings on evidentiary objections, the weight of authority holds that the standard of review is abuse of discretion. (Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335; accord DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.) The trial court’s ruling on Imbriale’s request for a continuance is also reviewed for abuse of discretion. (Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1023 (Ace American).)
If the trial court does not rule on evidentiary objections, we review the objections de novo. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535.)
2. Imbriale is Not an Employee of Power Payroll for Purposes of His State Law Causes of Action
Only an “employer” can be liable under the wage laws set forth in the Labor Code. (Martinez v. Combs (2010) 49 Cal.4th 35, 49 (Martinez).) All of Imbriale’s Labor Code causes of action therefore depend on Imbriale’s assertion that he was an employee of Power Payroll. Because Imbriale’s unfair competition cause of action is based on violations of the Labor Code wage laws, it too depends on Imbriale’s allegation that Power Payroll was his employer.
In Martinez our Supreme Court discussed at length the employment relationship required for Labor Code wage laws to be applicable. The court held that in actions under section 1194 to recover unpaid minimum wages, the wage orders of the Industrial Welfare Commission (IWC) generally define the employment relationship, and thus who may be liable. (Martinez, supra, 49 Cal.4th at p. 52.)
IWC Wage Order No. 14 (Cal. Code. Regs., tit. 8, § 11140) applied in Martinez because the plaintiffs were agricultural workers. The Supreme Court held that under Wage Order No. 14 there were three alternative definitions of employment. To employ a worker means “(a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.” (Martinez, supra, 49 Cal.4th at p. 64.)
In this case Imbriale worked on the production of a television commercial. This type of work is governed by ICW Wage Order No. 12, which applies to “any industry, business or establishment operated for the purpose of motion picture or television film production....” (Cal. Code. Regs., tit. 8, § 11120, subd. (1); see Futrell, supra, 190 Cal.App.4th at p. 1429 [workers for company which produced television commercial were covered by Wage Order No. 12].) “Because Wage Order No. 12 and Wage Order No. 14 use identical language to define the terms ‘employ, ’ ‘employee’ and “employer, ’ the Supreme Court’s three alternative definitions of employment articulated in Martinez are equally applicable to the relationship between [Imbriale] and [Power Payroll].” (Futrell, at p. 1429.)
Imbriale contends that he is an employee under all three alternatives. We shall address each in turn.
a. Power Payroll did Not Exercise Control Over Imbriale’s Wages, Hours or Working Conditions
Imbriale argues that because Power Payroll processed his paychecks, it exercised “control” over his wages, and thus was his employer. We disagree.
The plaintiff in Futrell made the same argument Imbriale asserts here. In Futrell, Reactor Films, Inc. (Reactor), a television production company, produced television commercials for various companies. (Futrell, supra, 190 Cal.App.4th at p. 1424.) Reactor hired freelance crewmembers to perform the tasks needed to produce the commercials. (Ibid.) It also hired Payday California, Inc. (Payday) to provide payroll processing and related services. Payday provided substantially the same services Power Payroll provided in this case, including issuing paychecks from its own accounts and paying for workers’ compensation insurance premiums. (Id. at p. 1427.)
The plaintiff in Futrell argued that Payday was his employer because Payday allegedly “controlled” his wages. The Futrell court rejected this argument. After noting that there were no cases directly on point, the court stated: “Writing on a clean slate, we conclude that ‘control over wages’ means that a person or entity has the power or authority to negotiate and set an employee's rate of pay, and not that a person or entity is physically involved in the preparation of an employee's paycheck. This is the only definition that makes sense. The task of preparing payroll, whether done by an internal division or department of an employer, or by an outside vendor of an employer, does not make Payday an employer for purposes of liability for wages under the Labor Code wage statutes. The preparation of payroll is largely a ministerial task, albeit a complex task in today’s marketplace. The employer, however, is the party who hires the employee and benefits from the employee’s work, and thus it is the employer to whom liability should be affixed for any unpaid wages. The extension of personal liability to the agents of an employer is not reasonably derived from the language and purposes of the Labor Code wage statutes.” (Futrell, supra, 190 Cal.App.4th at p. 1432.)
We agree with this analysis. Power Payroll did not control Imbriale’s wages for purposes of the Labor Code wage statutes. Further, there is no admissible evidence that Power Payroll controlled Imbriale’s hours or working conditions. Imbriale therefore was not Power Payroll’s employee under the first prong of the Martinez test.
Imbriale contends that certain contracts between non-parties to this litigation prove that Power Payroll controlled his hours and working conditions. As we shall explain in section 2(e) post, however, the evidence Imbriale relies on is irrelevant and inadmissible.
b. Power Payroll Did Not Suffer or Permit Imbriale to Work
In Martinez the Supreme Court explained the historical meaning of the terms “suffer, or permit to work.” (Martinez, supra, 49 Cal.4th at p. 69.) The court stated: “[T]he historical meaning continues to be highly relevant today: A proprietor who knows that persons are working in his or her business without having been formally hired, or while being paid less than the minimum wage, clearly suffers or permits that work by failing to prevent it, while having the power to do so.” (Ibid.)
The plaintiffs in Martinez were seasonal agricultural workers who worked on farms leased and operated by Isidro Munoz. They sued a number of companies they claimed were their joint employers, including Apio and Combs, produce merchants through whom Munoz sold strawberries. (Martinez, supra, 49 Cal.4th at p. 42.) The plaintiffs argued that Apio and Combs were their employers because they suffered or permitted plaintiffs to work for them. In rejecting this argument the Supreme Court stated: “[N]either Apio nor Combs suffered or permitted plaintiffs to work because neither had the power to prevent plaintiffs from working.” (Id. at p. 70.)
Similarly, in Futrell, the court held: “There is no evidence in the current case Payday allowed Futrell to suffer work, or permitted him to work, because there is no evidence showing Payday had the power to either cause him to work or prevent him from working.” (Futrell, supra, 190 Cal.App.4th at p. 1434.)
Here, there is no evidence that Power Payroll had the power to prevent Imbriale from working. Power Payroll thus did not “suffer or permit” Imbriale to work. Accordingly, Imbriale cannot show that he was Power Payroll’s employee under the second prong of the Martinez test.
c. Power Payroll Did Not Have a Common Law Employment Relationship with Imbriale
“The essence of the common law test of employment is in the ‘control of the details.’ A number of factors may be considered in evaluating this control, including (1) whether the worker is engaged in a distinct occupation or business; (2) whether, considering the kind of occupation and locality, the work is usually done under the alleged employer’s direction or without supervision; (3) the skill required; (4) whether the alleged employer or worker supplies the instrumentalities, tools, and place of work; (5) the length of time the services are to be performed; (6) the method of payment, whether by time or by job; (7) whether the work is part of the alleged employer’s regular business; and (8) whether the parties believe they are creating an employer-employee relationship.” (Futrell, supra, 190 Cal.App.4th at p. 1434.)
Here, Power Payroll did not direct or supervise Imbriale at the production site or elsewhere. Indeed, Power Payroll did not have a presence at the site and its communications with Imbriale were limited to payroll issues. Power Payroll did not provide any tools, or the place of work, to Imbriale. It did not set Imbriale’s pay. It did not hire or fire Imbriale. Rather, for a short period of time, it processed the checks to Imbriale for Imbriale’s employer, Edge Films. This does not amount to a common law employment relationship. (Futrell, supra, 190 Cal.App.4th at p. 1435.)
Imbriale believed he had an employment relationship with Power Payroll because (1) Power Payroll provided him with a W-2 and (2) Power Payroll, in its capacity as a payroll processing company, instructed Imbriale about payroll issues and how to complete his time card. These tasks, however, were merely incidental to the services provided by Power Payroll to Imbriale’s employer, Edge Films.
Imbriale also relies on the declaration of Donn P. McVeigh that was filed in the Futrell case. McVeigh stated in his declaration that he was an expert in the insurance industry; that an employer could not obtain workers’ compensation coverage for individuals unless it was a “common law employer” of those individuals; and that the defendants in the Futrell case “acted as common law employers” of the plaintiff in that case.
The trial court sustained Power Payroll’s objections to the McVeigh declaration on the grounds that it provided legal conclusions and opinions. We hold that the trial court did not abuse its discretion in sustaining Power Payroll’s objections. In any case, no facts in McVeigh’s declaration show that Power Payroll and Imbriale had a common law employment relationship.
d. Imbriale’s Reliance on DLSE Decisions is Misplaced
Imbriale cites four decisions of the Division of Labor Standards Enforcement (DLSE) of the California Department of Industrial Relations, which he contends hold that a payroll processing company such as Power Payroll is a “joint employer” for purposes of the Labor Code wage laws: Carranza v. Avalon Payroll Services, Inc. (Cal. Dept. of Industrial Relations, DLSE, March 11, 1999 (No. 17-15139-042-236/134) (Carranza); Cassidy v. SCIE, LLC (Cal. Dept. of Industrial Relations, DLSE, June 4, 2002 (No. 17-27229 CJ) (Cassidy); Fischer v. FSI Processing, Inc. (Cal. Dept. of Industrial Relations, DLSE, Jan. 23, 2002 (No. 17-24276 SJ) (Fischer); and Maichel v. Conner & Co Films (Cal. Dept. of Industrial Relations, DLSE, Apr. 22, 2002 (No. 06-61382) (Maichel). A similar argument was rejected by Futrell. There, the court stated: “Although Futrell [the plaintiff] is correct that our state courts afford considerable deference to an interpretation of a statute by an administrative agency charged with its administration [citation], we summarily reject his argument because he has not actually cited us to any DLSE decision treating a payroll company as the employer of the persons to whom it delivers checks. To answer the question whether Payday acted as Futrell’s employer for purposes of the Labor Code wage statutes, we see no reason to apply any other definition than the Martinez definition, unless Futrell can persuade us that there is another reason to find Payday was his employer.” (Futrell, supra, 190 Cal.App.4th at p. 1430.)
In Martinez, the Supreme Court declined to give deference to the DLSE’s interpretation of “employer” in its published policies governing the enforcement of wage claims because they were not adopted in compliance with the Administrative Procedure Act. (Martinez, supra, 49 Cal.4th at p. 50, fn. 15; id. at p. 63, fn. 34.)
Imbriale contends that this case is distinguishable from Futrell because Carranza, Cassidy, Fischer and Maichel allegedly involved payroll processing companies. We reject Imbriale’s argument.
The DLSE decisions Imbriale relies upon were issued pursuant to sections 98 through 98.8. Such decisions are not precedential decisions that must comply with the Administrative Procedure Act. (Corrales v. Bradstreet (2007) 153 Cal.App.4th 33, 55.) Rather, these decisions are made after an informal “Berman” hearing (id. at p. 48) and are not entitled to any weight whatsoever if reviewed by the trial court. (Id. at p. 55; accord Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1114-1116 (Murphy).)
Moreover, even assuming Carranza, Cassidy, Fischer and Maichel have precedential value, they are at most persuasive authority. “While the DLSE’s construction of a statute is entitled to consideration and respect, it is not binding and it is ultimately for the judiciary to interpret [Labor Code statutes].” (Murphy, supra, 40 Cal.4th at p. 1105, fn. 7; accord Azusa Land Partners v. Department of Industrial Relations (2010) 191 Cal.App.4th 1, 14 [we exercise independent judgment interpreting a statute taking into account and respecting the agency’s interpretation].) The DLSE decisions cited by Imbriale are not persuasive because they do not provide sufficient factual background to indicate whether the facts in those cases are materially the same as the facts in this case. In addition, the legal analysis in Carranza, Cassidy, Fischer and Maichel was cursory. Finally, all four decisions were issued prior to Martinez, and include incorrect legal assumptions. For example, Carranza relied on federal cases to determine whether the defendant was a joint employer under Labor Code wage laws. In Martinez, however, the California Supreme Court held that IWC’s wage orders generally define the employment relationship, and that such wage orders “do not incorporate the federal definition of employment.” (Martinez, supra, 49 Cal.4th at p. 52.)
To bolster his arguments based on DLSE decisions, Imbriale cites the declaration of Dean Bray. Bray, who submitted a declaration for the plaintiff in Futrell (Futrell, supra, 190 Cal.App.4th at p. 1426), stated that the DLSE “routinely found payroll companies such as Power Payroll to be responsible employers.” In support of this statement Bray attached the Carranza, Cassidy, Fischer and Maichel decisions. The trial court sustained Power Payroll’s objection to Bray’s statement regarding DLSE decisions on the grounds that it was merely a legal conclusion, and essentially a legal argument. We conclude that the trial court did not abuse its discretion with respect to this evidentiary ruling. In any case, Bray’s statement does not persuade us to follow the DLSE’s decisions for the reasons stated ante.
For all of these reasons, Imbriale’s reliance on DLSE decisions is misplaced.
e. The Contracts Imbriale Relies On Are Irrelevant and Inadmissible
The actual contract between Power Payroll and Edge Films (the Actual Contract) is not in the record and apparently was lost or destroyed. Imbriale argues that this court should conclude that two other contracts are “similar” or “substantially identical” to the Actual Contract. The first is a contract dated August 12, 2003 (FPS Contract), between FPS Payroll Services, Inc. (FPS) and Black August, LLC (Black August). The second is a contract dated June 15, 2007 (Film Services Contract), between Film Payment Services, Inc. (Film Payment) and Broken Angel, LLC (Broken Angel). Based on the language of these contracts, Imbriale argues that he was Power Payroll’s employee under all three definitions set forth in Martinez.
The FPS Contract was attached as an exhibit to Dean Bray’s declaration. The Film Services Contract was attached as an exhibit to Allen Harris’s declaration. Harris stated that he obtained the Film Services Contract in discovery in a case entitled Dustin Keller et al. v. Broken Angel, LLC.
The FPS Contract and Film Services Contract, which are almost identical, both stated in relevant part: “Client [Black August/Broken Angel] may determine and control day-to-day activities of the Personnel, but the right to hire, discharge, reprimand, direct, control and supervise the Personnel supplied by Employer [FPS/Film Payment] herein shall remain with Employer [FPS/Film Payment].” The contracts also state that FPS/Film Payment “is in the business of providing personnel... for commercial television and theatrical motion picture productions....”
Imbriale’s assertion that the Actual Contract had the same relevant terms as the FPS Contract and Film Services Contract is not supported by any facts in the record. At oral argument Imbriale’s counsel stated that Kerri Pettit’s testimony supported Imbriale’s position. Specifically, citing the Appellant’s Appendix at pages 2371, 2372 and 2376, he claimed Pettit testified that (1) Power Payroll used the same form contract as FPS and Film Payment (i.e. the FPS Contract and the Film Services Contract) and (2) the Actual Contract is this form contract. This is a misrepresentation of the record. Pettit merely testified that a company called Media Services managed FPS and Power Payroll, and that it was FPS’s “general practice” in 2007 to use a “personnel services agreement, ” though FPS did not always use a “form contract” for its personnel services agreement. Pettit did not testify that Power Payroll used a form contract, much less the type of form contract sometimes used by FPS. She did not testify regarding contracts used by Film Payment. She did not testify that the Actual Contract has any connection whatsoever to the FPS Contract or the Film Payment Contract.
Imbriale also relies on a letter dated December 28, 2007, from Media Services to Edge Films. Although the letter referred to a “Service Agreement” between the parties, it did not describe the terms and conditions of that agreement. The letter therefore does not support Imbriale’s position.
In the trial court Power Payroll objected to the FPS Contract and Film Services Contract on, among other grounds, that they were irrelevant. Although the court did not specifically rule on this objection, it effectively disregarded the contracts as immaterial. In its order granting Power Payroll’s motion for summary judgment, it stated that the contracts did not “show any agreement” between Power Payroll and Edge Films, and that there was no admissible evidence that Imbriale was an employee of Power Payroll.
We agree with the trial court. The FPS Contract and Film Payment Contract are irrelevant because they were between companies who are not parties to this lawsuit. (See Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1092 [generally only a party to a contract can sue for breach of the contract’s terms].) Moreover, we reject Imbriale’s argument that the only logical inference is that the terms of the FPS Contract and the terms of the Film Services Contract were the same as the Actual Contract. This argument is based on pure speculation. Accordingly, the FPS Contract and Film Payment Contract are inadmissible because they are irrelevant. (Evid. Code, § 350)
3. Imbriale Was Not An Employee of Power Payroll for Purposes of the FLSA
The federal courts have used the “economic reality test” to determine whether an employment relationship exists for purposes of the FLSA. (Goldberg v. Whitaker House Coop. (1961) 366 U.S. 28, 33; Gilbreath v. Cutter Biological, Inc. (9th Cir. 1991) 931 F.2d 1320, 1324 (Gilbreath).) Under this test the courts look at a number of factors, including whether the alleged employer (1) had the power to hire and fire employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records. (Gilbreath, at p. 1324; Zheng v. Liberty Apparel Co. Inc. (2nd Cir. 2003) 355 F.3d 61, 67; Moreau v. Air France (9th Cir. 2004) 356 F.3d 942, 947; Chao v. Westside Drywall, Inc. (D.Or. 2010) 709 F.Supp.2d 1037, 1061.)
We hold that under the economic realty test Imbriale was not Power Payroll’s employee. Power Payroll did not have the power to hire or fire Imbriale. It did not control or supervise Imbriale’s schedule or conditions of employment, nor did it determine the rate or method of payment. Although Power Payroll maintained certain records regarding Imbriale in order to complete its payroll processing function, this by itself did not create an employment relationship for purposes of the FLSA. (Futrell, supra, 190 Cal.App.4th at pp. 1435-1436 [rejecting similar FLSA argument].) The trial court thus correctly granted Power Payroll’s motion for summary judgment with respect to Imbriale’s FLSA causes of action.
4. Power Payroll is Not Estopped From Denying That It Was Imbriale’s Employer
The W-2 form Imbriale received from Power Payroll in connection with his wages for the Neutrogena commercial states that Power Payroll was his “employer.” The paystubs to the checks Imbriale received from Power Payroll also indicate that he was an “employee” of Power Payroll. Imbriale argues that in light of these “representations” by Power Payroll, Power Payroll is estopped from denying that it was Imbriale’s employer pursuant to Evidence Code section 623, which provides: “Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.”
“A valid claim for equitable estoppel requires: (a) a representation or concealment of material facts; (b) made with knowledge, actual or virtual, of the facts; (c) to a party ignorant, actually and permissibly, of the truth; (d) with the intention, actual or virtual, that the ignorant party act on it; and (e) that party was induced to act on it.” (Simmons v. Ghaderi (2008) 44 Cal.4th 570, 584.) With respect to the last element—reliance—the party asserting estoppel must rely upon the other party’s conduct or statements “to his injury.” (Golden Gate Water Ski Club v. County of Contra Costa (2008) 165 Cal.App.4th 249, 257; accord Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 502.)
Imbriale cannot satisfy at least two of these elements. First, there is nothing in the record indicating that Power Payroll intended to change Imbriale’s conduct by representing to him that it was his “employer.” Second, there is nothing in the record indicating that Imbriale detrimentally relied on Power Payroll’s representations. Power Payroll therefore is not estopped from denying that it was Imbriale’s employer. (Futrell, supra, 190 Cal.App.4th at pp. 1436-1437 [rejecting the same argument Imbriale asserts here].)
In cases involving a dispute over whether an individual is an employee or an independent contractor, “the parties’ label is not dispositive and will be ignored if their actual conduct establishes a different relationship.” (Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 11; accord S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349.) The same principle applies here. For whatever reason, perhaps convenience, Power Payroll listed itself as the “employer” on certain payroll documents. But as we have explained, Power Payroll did not assume the function of employer for purposes of the Labor Code wage statutes or the FLSA. The label stated on Imbriale’s payroll forms is thus not controlling.
5. Power Payroll and Imbriale Did Not Have an Implied Contract of Employment
Imbriale alleges that he had an implied contract with Power Payroll. “An implied contract is one, the existence and terms of which are manifested by conduct.” (Civ. Code, § 1621.) Imbriale contends: “There was and is substantial evidence that [Power Payroll], through its conduct, impliedly contracted with [Imbriale] and Class Members to work for it as employees, utilizing the information and rates of pay on the start forms and timecards.”
We hold that Imbriale forfeited this argument for two reasons. First, he did not assert the argument in the trial court. (Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 498, fn. 9.) Second, he did not discuss or analyze the purported evidence in support of the argument. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”]; accord Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303.)
Assuming Imbriale did not forfeit the argument, we reject it on the merits. There is nothing in the record indicating that Power Payroll had an implied employment contract with Imbriale.
6. The Trial Court’s Rulings on Imbriale’s Objections to Pettit’s Declaration Are Not Grounds for Reversal of the Judgment
In the trial court Imbriale objected to the declaration of Power Payroll’s Business Affairs Manager Kerri Pettit. Imbriale contends the trial court did not rule on his objections. This is not true. The trial court “overruled” the objections.
As stated ante, we review the trial court’s evidentiary rulings for abuse of discretion. Assuming we find that the trial court erroneously admitted all or part of Pettit’s declaration, we cannot reverse the judgment unless the error resulted in a miscarriage of justice. (Evid. Code, §353, subd. (b).) This standard is met when there is a reasonable probability that in the absence of error, a result more favorable for the appealing party would have been reached. (People v. Watson (1956) 46 Cal.2d 818, 837; Lone Star Security & Video, Inc. v. Bureau of Security & Investigative Services (2009) 176 Cal.App.4th 1249, 1255.)
Imbriale objected to paragraphs 2, 3, 6, 7, 9, 10 and 13 of Pettit’s declaration on two grounds. First, he argued that there was no foundation for Pettit’s personal knowledge of the statements in those paragraphs (Evid. Code, § 702). Second, Imbriale argued that Pettit offered improper opinion testimony (Evid. Code, § 800).
We reject Imbriale’s arguments with respect to paragraphs 2, 6, 7, 9, and 13. As a manager for Power Payroll, Imbriale was qualified to make the statements asserted in these paragraphs. It was not an abuse of discretion for the trial court to admit this evidence.
Pettit stated the following in her declaration: “(2) Power Payroll, Inc. is a payroll company that processes payroll for certain entertainment production workers that perform services for production companies. [¶]... [¶] (6) The Neutrogena television commercial at issue in this litigation was produced by a company named Edge Films, Inc. The production company contracted with Power Payroll, Inc. to administer its payroll for the production. [¶] (7) Power Payroll, Inc. is not a parent, subsidiary or associated with Edge Films, Inc. in any way. [¶]... [¶] (9) As the Business Affairs Manager for Power Payroll, Inc., I am also familiar with all individuals who are employed by our company. At no time has Plaintiff Geno Imbriale ever been employed by Power Payroll, Inc. Mr. Imbriale has never applied for, nor been hired to perform, any job for Power Payroll, Inc. [¶]... [¶] (13) Power Payroll, Inc. did not have the power to hire or fire employees; did not supervise and control the employee work schedules or conditions of employment; did not determine the rate and method of payment; and did not maintain employment records for the Edge Films television production.”
We agree with Imbriale that the trial court abused its discretion by overruling certain statements in paragraphs 3 and 10. Pettit stated the following:
“(3) Power Payroll, Inc. is not the ‘common law employer’ of individual production company workers....
“[¶]... [¶]
“(10) At no time was Power Payroll, Inc. ever the ‘common law employer’ or ‘joint employer’ of Plaintiff Geno Imbriale.”
These statements were legal conclusions and inappropriate opinion testimony. The trial court’s error, however, did not result in a miscarriage of justice. Nothing in the record indicates the trial court relied on these statements in arriving at its decision. Moreover, the statements are superfluous to Power Payroll’s motion. There is overwhelming evidence, apart from these isolated statements, indicating that Power Payroll was not Imbriale’s employer. Accordingly, the trial court’s erroneous evidentiary rulings are not grounds for reversing the judgment.
7. The Trial Court Did Not Abuse Its Discretion When It Denied Imbriale’s Request for a Continuance
Imbriale argues that the trial court erred in denying Imbriale’s request for a continuance pursuant to Code of Civil Procedure section 437c, subdivision (h). We reject this argument.
Code of Civil Procedure section 437c, subdivision (h) provides: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.”
A nonmoving party seeking a continuance of a hearing on a motion for summary judgment must show: “(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.” (Ace American, supra, 121 Cal.App.4th at p. 1023; accord Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270.) Imbriale failed to satisfy any of these requirements. The trial court thus did not abuse its discretion in denying Imbriale’s request for a continuance.
DISPOSITION
The judgment is affirmed. Respondent Power Payroll is awarded costs on appeal.
We concur: CROSKEY, Acting P. J.ALDRICH, J.