Opinion
H043214
11-26-2018
LUCILLE MENDES, Plaintiff and Appellant, v. RMR FINANCIAL, LLC, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 1-14-CV-259684)
Laura Bertoldi provided personal assistant and corporate concierge services for respondent RMR Financial, LLC, dba Princeton Capital, (Princeton Capital). Bertoldi was going to the grocery store for Princeton Capital when the car she was driving struck appellant Lucille Mendes, injuring her. Mendes brought this tort action against Princeton Capital on the theory that Bertoldi was acting as Princeton Capital's agent at the time of the accident, such that Princeton Capital was vicariously liable for Bertoldi's alleged negligence. The trial court granted summary judgment in Princeton Capital's favor, concluding that the only inference to be drawn from the undisputed evidence was that no agency relationship existed. Mendes appeals. The sole issue on appeal is whether there exists a triable issue of fact as to whether there existed an agency relationship between Bertoldi and Princeton Capital at the time of the accident. Concluding there does, we reverse.
I. BACKGROUND
On May 7, 2013, Bertoldi drove her husband's car through a Los Gatos intersection, hitting Mendes, who was crossing the street. Bertoldi was the owner and sole employee of Busy B's, a company providing personal assistant and corporate concierge services to multiple clients, including Princeton Capital. At the time of the collision, Bertoldi was performing tasks for Princeton Capital.
Bertoldi performed services for Princeton Capital pursuant to a service agreement entered into by Princeton Capital and Busy B's in 2012. The service agreement, which Bertoldi drafted, stated that Busy B's would "serve as an independent contractor . . . ." It further provided that "Busy B's will be onsite at the Los Gatos Office of Princeton Capital Tuesdays and Thursdays 10:00am until 2:00pm PST" and that Princeton Capital employees could contact Busy B's "with requests Monday - Friday 8:00am - 5:30pm PST via email or phone." The service agreement authorized Busy B's "to contract services on behalf of Princeton Capital employees to aid in the completion of Concierge, Errand or Personal Assistant tasks requested by Princeton Capital employees." The service agreement required Busy B's to "maintain liability insurance, car insurance and bond during the term of the contract . . . ." Finally, the service agreement included an indemnification provision, stating that "Princeton Capital agrees to indemnify, defend and hold harmless Busy B's LLC, Busy B'[s] LLCs directors, Busy B's LLC concierges and all officers, owners[,] agents, information providers, affiliates, licensors and licensees from and against any and all liability and costs, including, without limitation, reasonable attorney fees incurred by Busy B's LLC in connection with any claim arising from the [sic] anything provided by Busy B's LLC or its employees. This includes consequential damages and any damages resulting from alleged negligence by Busy B's LLC, and its employees." The service agreement was silent as to duration and grounds for termination.
Initially, Princeton Capital compensated Busy B's at a rate of $60 per hour based on invoices Bertoldi submitted. Later, Princeton Capital paid Busy B's a monthly retainer for its services. Bertoldi received no employee benefits from Princeton Capital.
In practice, Bertoldi went to Princeton Capital on Tuesday and Thursday mornings, arriving at 8:45 or 9:00 a.m. She would "walk around the office and people that needed [her] would flag [her] down" and request that she perform various tasks. The requested tasks typically included grocery shopping, picking up dry cleaning, purchasing gifts, and going to the post office. Employees typically specified "[w]hat store to go to and what to be purchasing, [and the] price range." Based on her conversations with employees, Bertoldi would compile a list of tasks, which she would then complete. While she had multiple clients, she dedicated Tuesdays and Thursdays to Princeton Capital.
In January 2014, Mendes filed suit against Bertoldi, her husband, and Doe defendants 1-1000 alleging that she suffered personal injuries and property damage in the May 7, 2013 motor vehicle accident caused by the defendants' negligence. The complaint consisted of a Judicial Council form complaint for "Personal Injury, Property Damage, Wrongful Death" and a Judicial Council form "motor vehicle" cause of action. On the cause of action form, Mendes identified Laura Bertoldi and Does 1 to 1000 as "[t]he defendants who were the agents and employees of the other defendants and acted within the scope of the agency." On August 15, 2014, Mendes amended her complaint to identify Busy B's LLC and Princeton Capital as two of the Doe defendants.
Princeton Capital moved for summary judgment, contending it could not, as a matter of law, be directly liable to Mendes because it did not operate the vehicle, nor vicariously liable to Mendes because it did not own or control the vehicle and Bertoldi was not its agent or employee. Mendes opposed the motion on the ground that there exists a triable issue of fact as to whether Bertoldi was acting as Princeton Capital's agent at the time of the accident, such that it can be held vicariously liable for Bertoldi's negligence. The trial court granted Princeton Capital's motion for summary judgment and entered judgment in favor of Princeton Capital and against Mendes. Mendes timely appealed.
II. DISCUSSION
A. Summary Judgment Principles and Standard of Review
"[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (Aguilar).) A defendant moving for summary judgment "has the burden of persuasion that one or more elements of the cause of action at issue 'cannot be established' or that 'there is a complete defense to that cause of action.' [Citations.] In attempting to meet this burden, the defendant has the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. [Citation.] If the defendant meets this burden, then the burden of production shifts to the plaintiff to establish the existence of a triable issue of material fact. [Citation.]" (Blackwell v. Vasilas (2016) 244 Cal.App.4th 160, 168 (Blackwell).) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, supra, at p. 850.)
"In reviewing a grant of summary judgment, we independently evaluate the record, liberally construing the evidence supporting the party opposing the motion, and resolving any doubts in his or her favor." (Patterson v. Domino's Pizza, LLC (2014) 60 Cal.4th 474, 499-500.)
B. Principles of Agency Law
"An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency." (Civ. Code, § 2295.) A principal—such as an employer—may be liable for the torts of an agent—such as an employee— acting within the scope of his or her agency under the common law doctrine of respondeat superior. (3 Witkin, Summary of Cal. Law (11th ed. 2018) Agency and Employment, § 175, p. 227; Lathrop v. HealthCare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1421.)
"Whether a person performing work for another is an agent . . . depends primarily upon whether the one for whom the work is done has the legal right to control the activities of the alleged agent." (Malloy v. Fong (1951) 37 Cal.2d 356, 370 (Malloy).) "[I]t is the right to control the means and manner in which [a] result is achieved that is significant in determining whether a principal-agency relationship exists," not the right to control merely the result itself. (Wickham v. Southland Corp. (1985) 168 Cal.App.3d 49, 59.) Put differently, "[c]ontrol for agency purposes is exhibited by the 'principal' having . . . control over the details of the ['agent's'] work." (APSB Bancorp v. Thornton Grant (1994) 26 Cal.App.4th 926, 933 (APSB Bancorp).) "It is not essential that the right of control be exercised or that there be actual supervision of the work of the agent. The existence of the right of control and supervision establishes the existence of an agency relationship." (Malloy, supra, at p. 370.) In determining whether the right of control exists, courts consider whether the hirer has the power to terminate the services of the hiree without cause, as such power is a "means of controlling the [hiree's] activities." (Ibid.) Indeed, our Supreme Court has called the power to discharge without cause "[p]erhaps the strongest evidence of the right to control . . . ." (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531 (Ayala); see Burlingham v. Gray (1943) 22 Cal.2d 87, 100 [" 'Perhaps no single circumstance is more conclusive to show the relationship of an employee than the right of the employer to end the service whenever he sees fit to do so' "].)
While the "right of control is particularly persuasive," courts also consider other factors in determining whether an agency relationship exists. (APSB Bancorp, supra, 26 Cal.App.4th at p. 932.) Those factors include: (1) " '[w]hether . . . the one performing services is engaged in a distinct occupation or business' "; (2) the skill required to perform the services at issue; (3) who supplies the instrumentalities, tools, and the place of work; (4) " '[t]he length of time for which the services are to be performed' "; (5) " '[t]he method of payment, whether by the time or by the job' "; (6) " '[w]hether . . . the work is a part of the regular business of the principal' "; and (7) " '[w]hether . . . the parties believe they are creating the relationship of employer-employee.' " (Malloy, supra, 37 Cal.2d at pp. 371-372.)
" ' "[T]he existence of an agency relationship is usually a question of fact, unless the evidence is susceptible of but a single inference." ' [Citation.]" (Harley-Davidson, Inc. v. Franchise Tax Bd. (2015) 237 Cal.App.4th 193, 214.)
C. Princeton Capital Did Not Meet its Initial Burden
In its motion for summary judgment, Princeton Capital sought to show that Mendes's negligence cause of action had no merit because she could not establish that Bertoldi was Princeton Capital's agent, as required to hold Princeton Capital vicariously liable. To that end, Princeton Capital submitted the declaration of its president, Robert Reid, in which he declared that "Princeton [Capital] did not control how Busy B's would perform the requested tasks and Princeton [Capital] did not control how Busy B's prioritized its efforts between performing tasks for Princeton [Capital] and performing tasks for Busy B's other clients." Princeton Capital also submitted Bertoldi's deposition testimony, in which she explained that she would speak to Princeton Capital employees to compile a list of tasks, which she then completed using a vehicle she provided.
At best, the foregoing evidence establishes that Princeton Capital did not exercise control over the details of Bertoldi's work. But it is the existence of the right to control that matters for purposes of an agency relationship. (Malloy, supra, 37 Cal.2d at p. 370.) Yet Princeton Capital's statement of undisputed facts included no facts regarding its right to control the details of Bertoldi's work and its evidence does not establish that it lacked that right. Significantly, in that regard, the statement of undisputed facts is silent as to whether Princeton Capital had the power to terminate its relationship with Bertoldi without cause, which courts consider "[p]erhaps the strongest evidence of the right to control . . . ." (Ayala, supra, 59 Cal.4th at p. 531). The service agreement is likewise silent as to grounds for termination and no evidence as to the parties' understanding of any such grounds was presented.
Princeton Capital submitted evidence relevant to many of the other factors that bear on the agency relationship analysis. The undisputed evidence shows that three of those factors support the conclusion that Bertoldi was not Princeton Capital's agent. First, Bertoldi was "engaged in an independent occupation in the sense that [she] contracted with different [clients] to perform various [personal assistant and concierge] services . . . ." (Malloy, supra, 37 Cal.2d at p. 371; cf. ibid. [concluding defendant was an agent of the Presbytery of San Francisco where, among other things, "he was engaged solely in his work with the San Mateo Church and . . . could accept no other assignments as a Presbyterian minister without the consent of the Presbytery"].) Second, Bertoldi supplied the "tools" to complete her work—she provided her own transportation and paid for gas. Third, the service agreement identified Busy B's as an independent contractor, indicating that the parties did not intend to create an agency relationship. Bertoldi's deposition testimony confirms that conclusion. She testified that, in her view, "I had my own business, they had their own business, and we were completely separate from each other." But three other factors point to Bertoldi being Princeton Capital's agent. First, her work required limited skills. Second, she was paid by time rather than by the job. Third, the apparently indefinite nature of Bertoldi's relationship with Princeton Capital (the service agreement was silent as to duration) weighs in favor of an agency relationship. (Malloy, supra, 37 Cal.2d at pp. 371-372 ["length of time for which the services are to be performed" factor favored conclusion that hiree was an agent because his employment "was on an indefinite basis"].) There is insufficient evidence as to what kind of business Princeton Capital is in and the relationship of Bertoldi's tasks to that business to evaluate the final factor—whether Bertoldi's work was part of Princeton Capital's regular business. Regardless of the nature of Princeton Capital's business, it appears some of Bertoldi's tasks constituted personal errands for individual employees that could not be considered part of Princeton Capital's core business. But other tasks, like dropping off mail, may have been part of Princeton Capital's core business.
In sum, the undisputed evidence shows that some of the relevant factors support the conclusion that Bertoldi was not Princeton Capital's agent, while others indicate she was. As to the most persuasive factor—the right to control the details of Bertoldi's work—no evidence was presented. Under these circumstances, Princeton Capital did not make a prima facie showing that Bertoldi was not its agent. Thus, the evidentiary burden never shifted to Mendes to establish the existence of a triable issue of material fact. (Blackwell, supra, 244 Cal.App.4th at p. 173.) And the trial court erred in granting Princeton Capital's motion for summary judgment. (Ibid.)
Princeton Capital relies heavily on Millsap v. Federal Express Corporation (1991) 227 Cal.App.3d 425, which affirmed a grant of summary judgment on grounds that a delivery driver was, as a matter of law, an independent contractor of the defendant company. There, as here, the driver and the defendant company "operated on the understanding that [the driver] was an independent contractor. [The driver] used his own car (or the car of his parents) to deliver the packages, furnished his own gas and oil, furnished his own liability insurance, and paid for whatever car repairs were necessary. . . . He received no employee benefits and no taxes were withheld by [the defendant company] from his paychecks. [The driver] submitted invoices to [the defendant company] . . . ." (Id. at p. 431.) However, the driver in Millsap "was paid on a 'per route' basis." (Ibid.) Bertoldi was paid for her time. And each time the Millsap driver picked up a package for delivery there was a new "contract"; the Millsap court concluded that, accordingly, the power-to-terminate-at-will factor was of "minimal" "significance." (Id. at p. 432, fn. 3.) Here, the parties operated pursuant to a contract that was silent as to duration and grounds for termination. Therefore, Millsap is not on all fours with this case, as Princeton Capital suggests.
III. DISPOSITION
The judgment is reversed. Mendes shall recover her costs on appeal.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.