DYNAMEX OPERATIONS WEST v. S.C.

Petitioner’s Supplemental Brief

Cal.February 21, 2017

SUPREME COURT FILED FEB 21 2017 Case No, 8222732 "Jorge Navarrete Clerk IN THE SUPREME COURT OF CALIFORNIA Deputy DYNAMEX OPERATIONS WEST,INC., Petitioner, VS. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, CHARLESLEEetal., RealParties in Interest. ON REVIEW FROM A DECISION BY THE COURT OF APPEAL SECOND APPELLATEDISTRICT, DIVISION SEVEN, CASE No. B249546 LOs ANGELES COUNTY SUPERIOR COURT, CASE No. BC 332016 MICHAELL. STERN, JUDGE PETITIONER DYNAMEX OPERATIONSWEST,INC.’S SUPPLEMENTAL BRIEF LITTLER MENDELSON PC DLA PIPER LLP *ROBERT G. HULTENG, SBN 071293. *ELLEN M. BRONCHETTI, SBN 226975 DAMONM.OTT, SBN 215392 555 MISSION STREET, SUITE 2400 333 BUSH STREET, 34TH FLOOR SAN FRANCISCO, CALIFORNIA 94105 SAN FRANCISCO CALIFORNIA 94104 TELEPHONE: 415.615.6052 TELEPHONE: 415.433.1940 FACSIMILE: 415.836.2501 FACSIMILE: 415.399.8490 EMAIL:ellen.bronchetti@dlapiper.com EMAIL: rhulteng@littler.com Attorneys for Petitioner Dynamex Operations West, Inc. Case No. §222732 IN THE SUPREME COURT OF CALIFORNIA DYNAMEX OPERATIONSWEST,INC., Petitioner, VS. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, CHARLESLEEetal., Real Parties in Interest. ON REVIEW FROM A DECISION BY THE COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION SEVEN, CASE No. B249546 Los ANGELES COUNTY SUPERIOR COURT, CASE No. BC 332016 MICHAELL. STERN, JUDGE PETITIONER DYNAMEX OPERATIONS WEST,INC.’S SUPPLEMENTALBRIEF LITTLER MENDELSON PC DLA PIPER LLP *ROBERT G. HULTENG, SBN 071293. *ELLEN M. BRONCHETTI, SBN 226975 DAMONM.OTT, SBN 215392 555 MISSION STREET, SUITE 2400 333 BUSH STREET, 34TH FLOOR SAN FRANCISCO, CALIFORNIA 94105 SAN FRANCISCO CALIFORNIA 94104 TELEPHONE: 415.615.6052 TELEPHONE: 415.433.1940 FACSIMILE: 415.836.2501 FACSIMILE: 415.399.8490 EMAIL: ellen.bronchetti@dlapiper.com EMAIL: rhulteng@littler.com Attomeys for Petitioner Dynamex Operations West, Inc. TABLE OF CONTENTS PAGE I. INTRODUCTION...ccesescseesesesscsssssessssesseeseseesessensereseeseeseees 1 I. ARGUMENT0000eeseceeecesecessesaeessessesscsecsecsaseeseessneseesesseseesaeenes 2 A. The DLSEHas, In Its Manual AndIn Practice, Consistently And Uniformly Directed The Application Of The Borello Standard WhenDistinguishing Employees From Independent Contractors...eee 2 l. The DLSE Manual summarizes the DLSE’s interpretation of the Labor Code and Wage OLerwoes cccecccccccccceevssssessssssesecssenseeessssssssesssseessesaeees 2 a. The DLSE Manualdoes not follow the WageOrders’ definition of “employer” whensetting forth the standard by which to distinguish employees from independent ContractoFS......... eeeeect eteeseeee 3 b. The DLSE Manualsets forth the Borello test as the proper standard to distinguish between an employee and an independent contractOF...........eeeeeeese reese eee 5 2. The DLSE,throughits opinion letters and decisions, has consistently applied the Borello standardas set forth in the DLSE Manual.........000..... 6 3. The DLSE’sreliance on Borello comports with the enforcementpractices of other California agencies and the independent contractortests ACTOSS the mation .......... ceceesesseseeeseeeeeseseesesesseeseaeeees 9 THT. CONCLUSION.....ceecccseseessccrscssersenessessseesaeeesseseaseseeenecnrens 10 TABLE OF AUTHORITIES Page(s) Cases Augustus v. ABMSec. Servs., Inc. (Dec. 22, 2016) No. S224853, 2016 WL 7407328........ecceescseeeeees 2, 3,8 Day v. Models, Incorporated (Cal. Lab. Com. January 24, 2002) TAC 37-00 oo...ceceeee teeteeeeeeeees 7 In re DMR Team,Inc. (Aug. 4, 2016) 15-0227-PWH(reconsideration denied)...........eee 7 JKHEnterprises, Inc. v. Dep’t ofIndus. Relations (2006) 142 Cal. App. 4th 1046occsessecsseseessessseressssesnseeseseneens 7 Kern, et al. v. Entertainers Direct, Inc., etal. (Cal. Lab. Com. August 20, 1998) TAC 25-96 000...occeceeeseseeeeeeneees 7 Martinez v. Combs (2010) 49 Cal.4th 35 ooeeeeeseneeseeeeseesarsesesesseessseesseesseesesseseaspassim Morillion v. Royal Packing (2000) 22 Cal.4th 575 uu... eccecceccseesceecceseseeeceseseeesasessesesesseassesseseaeeeasens 8 NCMDirect Delivery v. EDD (May8, 2007) Precedent Tax Decision No. P-T-495 oo...eeeeeeeeeees 9 O’Connorv. Uber Techs., Inc. (N.D.Cal. 2015) 82 F. Supp. 3d 1133 ooceceeeeeeeecteesctsssesesenes 10 O’Connorv. Uber Techs., Inc., (N.D. Cal. Sept. 1, 2015) No. C-13-3826 EMC, 2015 WL 5138097... .esccsccessecsccescscecseeecenseescesseeeessceseesseeceseeseeseesesuenssaecsstsneasearaeeesaes 10 RWI Transportation LLC v. EDD (Sept. 13, 2016) Precedent Benefit Decision No. P-T-S1 1.0.0. 9 S.G. Borello & Sons, Inc. v. Dept. ofIndustrial Relations (1989) 48 Cal. 3d 341 oeeeeeececessseeeseesesseeneseseessnseasaesnssseespassim SuperShuttle International Inc. v. EDD (Feb. 13, 2013) Precedent Tax Decision No. P-T-502 wcccc9 -3- In re Total Service (Sept. 1, 2007) 05-0129-PWH (reconsideration denied).............eee 7 Whitcomb Hotel, Inc. v. Cal. Emp. Com. (1944) 24 Cal.2d 753 oceecccceceeeesecesseeseesceeaeearsaeesarernessaessessesaeeseeeeaeees 8 Yamaha Corp. ofAmerica v. State Bd. ofEqualization (1998) 19 Cal.4th ooocceseceeseeeeseesecsesseeeeeseeeseeeseeeseeensereneeesseeseeaes 8 Other Authorities State of California DepartmentofIndustrial Relations. http://www.dir.ca.gov/dlse/FAQ IndependentContractor.htm (last visited January 27, 2017)eee ceeessseeeseeetecseeceseeesaesereesessaeeoeseesees 6 LEE vy. Dynamex I. INTRODUCTION The Court has asked for supplemental briefing on the enforcement policies of the Division of Labor Standards (“DLSE”). The DLSEandits agents administer and interpret the California Labor Code and Wage Orders on a daily basis. In doing so, they rely upon the DLSE Enforcement Policies and Interpretations Manual (2002 update, revised again in March 20016) (“DLSE Manual”). Answering the specific question posed by the Court, Dynamex Operations West (“Dynamex”) submits that the DLSE Manualis directly relevant to the issue on appealhere. Over several decades, the DLSE has consistently directed that questions of independent contractor status be determined under the Borello standard. This guidance emerges from the DLSE Manual, which interprets employmentas used in the Wage Orders and labor statutes. Beyondthat, DLSEposition letters and decisions have consistently echoed the language of Borello, including the primacy of control and the economicrealities of the parties. Accordingly, the long-standing practice of the DLSE, which has been mirrored by other California agencies in the employment context, provides yet another reason why this Court should reaffirm that Borello remains the test for distinguishing employees from independent contractors in California. II. ARGUMENT A. The DLSE Has,In Its Manual AndIn Practice, Consistently And Uniformly Directed The Application Of The Borello Standard When Distinguishing Employees From Independent Contractors. S.G. Borello & Sons, Inc. v. Dept. ofIndustrial Relations (1989) 48 Cal. 3d 341 (“Borello”) established the multi-factored test for determining whether an individual was an employee or independent contractor (“Borello standard”). In the nearly 30 years since Borello was decided, the DLSE has uniformly applied the Bore/lo standard to disputes over independent contractor status. This is highly relevant to the present appeal because, as this Court has recently acknowledged, the DLSE is the state agency empowered to enforce Wage Orders andstate labor statutes. (Augustus v. ABMSec. Servs., Inc. (Dec. 22, 2016) No. 8224853, 2016 WL 7407328,at *6.) From its enforcement role, the DLSE is in a unique position to accumulate both knowledge and experience relevant to the administration and enforcement of the Wage Orders and the Labor Code. Again and again, the DLSE has applied the Bore//o standard to differentiate between employees and independent contractors. 1. The DLSE Manual summarizes the DLSE’s interpretation of the Labor Code and Wage Orders. The DLSE Manual “summarizes the policies and interpretations which DLSEhasfollowed in discharging its duty to administer and enforce the labor statutes and regulations of the State of California.” (DLSE Manual [“Manual”] at § 1.1.6.) The DLSE derives its policies and interpretations from a multitude of sources, including: decisions by -6- California courts, California statutes and regulations which are clear and susceptible to only one reasonable interpretation, selected opinion letters issued by the DLSE,and selected prior decisions rendered by the Labor Commissioner in the course of adjudicating disputes arising under California’s labor statutes and regulations. (Id.) As such, the DLSE Manual is the DLSE’s primary resource tool when adjudicating disputes arising under the Labor Code or Wage Orders. a. The DLSE Manualdoesnotfollow the Wage Orders’ definition of “employer” whensetting forth the standard by whichto distinguish employees from independentcontractors. The Court of Appeal misread the scope and meaning of this Court’s decision in Martinez v. Combs (2010) 49 Cal.4th 35 by relying on century- old language in the Wage Orders which defines an “employer.” As explained extensively in prior briefing, the language of the Wage Orders assumes employee status, and defines what entities may be deemed “employers” of acknowledged employees. Where the issue instead is employee/independent contractor status, the “employer” definition in the Wage Orders is unworkable. It would mean that every independent contractor would essentially be converted into an employee. The DLSE Manualtakesa realistic approach consistent with long- standing precedent in California. The Manual correctly distinguishes between the Wage Order definition, which determines if an entity is an employer, and the Borello definition, which determines whether an individual is an employee. The DLSE Manual sets forth the definition of an “employer” as -7- defined in the Wage Orders: “(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 employmentrelationship.” (Manual at §§ 55.2 (citing Martinez), 2.2 (referencing § 52.2).) However, immediately after, in Section 2.3, the DLSE Manual implicitly acknowledges that this definition is to be used only for determining employer liability, not the more complex issue of employee/independent contractorclassification: As explained in detail at Section 37.1.2 of this Manual, it is possible that two separate employer entities (joint employers) may share responsibility for the wages due an employee. Also, at Section 28 of this Manual, there is a detailed discussion on how to distinguish between an employee and an independent contractor. (Id. at § 2.2.1.) Clearly, the DLSE decided against citing Section 52.2, or Martinez, when laying out the standard for how to distinguish between employees and independentcontractors. This was not because of lack of opportunity. The DLSE Manual was updated on January 14, 2014, almost four years after Martinez was decided. It includes Martinez in Section 52.2’s definition of “employer.” (Manual at p.9.) Crucially, the DLSE did not even mention Martinez in Section 28 (entitled “INDEPENDENT CONTRACTORvs. EMPLOYEE”). Nor did the DLSE changethe reference quoted above in Section 2.2.1, which unequivocally states that Section 28 controls disputes over independent contractor status. As Dynamex has previously argued, the distinction between employees and independent contractors cannot turn merely on the Wage -8- odOrders’ definition of “employer.” And clearly the Wage Orders offer no help in differentiating independent contractors from employees, given that the Wage Orders define the term “employee”as follows: “[g]enerally, the term means any person employed by an employer.” (Manual at § 2.1.) Simply put, the Wage Orders’ definitions of “employer” and “employee” do nothing to distinguish between employees and independent contractors. In fact, the DLSE Manual provides a cogent explanation as to why the definitions of “employee” and “employer” contained in the Wage Orders can only be considered when an employmentrelationship already exists: “coverage of the IWC Orders extends only to employees. If the individual is not an ‘employee,’ there is no employment relationship with an employer and the Wage Orders do not apply. (O.L. 1988.10.27).” (Id. at § 43.6.5.) The DLSE Manual goes on to instruct that “independent contractors are not employees” and are not subject to the Wage Orders. (Id. at § 43.6.6.) It is here that the DLSE Manual again directs the reader to Section 28, which contains a “full discussion” of the complex threshold issue of whether an individual is subject to the Wage Orders and the definitions contained therein, i.e., whether the individual is an employee or an independent contractor. (Id.) b. The DLSE Manualsets forth the Borello test as the proper standardto distinguish between an employee and an independentcontractor. Rather than rely on the Wage Orders’ definition of “employer” to distinguish between an employee and an independent contractor, the DLSE Manual explicitly reserves an entire section to explain the alternative factors and considerations for making such a determination. Indeed, Section 28 is the only section of the DLSE Manual that sets forth the -9- standard to be used when determining whetheran individual is an employee or an independent contractor. Section 28 explicitly adopts the Borello standard: Multi-Factor Borello Test. In determining whether an individual providing service to another is an independent contractor or an employee, there is no single determinative factor. Rather, it is necessary to closely examine the facts of each service relationship and to then apply the “multi-factor” or “economic realities” test adopted by the California Supreme Court in Borello, supra, 48 Cal.3d 341. (Manual at § 28.3 (no emphasis in original).) The DLSE Manual then explains in detail how to apply Borello, starting with the history and primacy of the commonlaw right to control test. (See id. at § 28.3.1.) It subsequently lists the eleven other factors and provides further guidance on several of these factors as part of the non-mechanical Borello analysis. (See id. at §§ 28.3.2-28.3.3.5.) The DLSE Manual goes to great lengths to not merely recite, but to summarize and explain the applicable test under California law for determining employee or independent contractor status. Notably, neither the Wage Order’s definition of “employer” nor Martinez are mentioned even once in Section 28. In sum, there is no room for doubt: the DLSE Manual has unequivocally incorporated the Borello standard as part of “policies and interpretations which DLSE has followed in discharging its duty to administer and enforce the labor statutes and regulations of the State of California.” (Manualat § 1.1.6.) -10- 2. The DLSE,throughits opinion letters and decisions, has consistently applied the Borello standardasset forth in the DLSE Manual. As noted above, the DLSE Manual is not the only source of administrative authority. Through its advisory opinion letters and its administrative decisions, the DLSE has further elucidated its uniform policy and interpretation of the Wage Orders and labor statutes. Beyond relying on the Borello standard in its Manual, the DLSE also has historically provided advice and resolved legal controversies by applying the Borello standard.’ The DLSE has issued two opinion letters since Borello that have directly addressed the issue of employee/independent contractor classification. In both letters, the DLSE has consistently applied the Borello standard. (See O.L. 2000.05.17 (performing detailed analysis under Boreilo standard’); O.L. 1994.04.11 (referring to Borello standard for distinguishing between employees and independent contractors). The DLSEhasalso consistently applied the Borello standard in its decisions, in accordance with the DLSE Manual. (See, e.g., Jn re DMR Team, Inc. (Aug. 4, 2016) 15-0227-PWH at 5-7 (reconsideration denied) (noting Borello “is the seminal case detailing the factors in determining ' The DLSE’s website even directs that the Borello standard be used to distinguish employees from independent contractors. (See “Independent contractor versus employee.” State of California Department of Industrial Relations. http://www.dir.ca.gov/dlse/FAQ IndependentContractor.htm (Jast visited January 27, 2017).) * While the DLSE acknowledged the Wage Order’s definition of “employer” in its analysis, the DLSE in fact performed the multi-factored test in accordance with Borello. Notably, the DLSE weighed someof the secondary Borello factors even after finding the contractual terms between the parties established a right to control that was sufficient to conclude an employmentrelationship. -]1- whether a worker is an employee or an independent contractor” and applying Borello); In re Total Service (Sept. 1, 2007) 05-0129-PWHat 14 (reconsideration denied) (noting the “question whether someone is an employee or an independent contractor is controlled by the Supreme Court's decision in [Borello],” and finding “no [Bore/lo] factors that persuasively create an employmentrelationship”); Day v. Models, Incorporated, (Cal. Lab. Com. Jan. 24, 2002) TAC 37-00 at 5-6 (noting “[Borello] is the leading case on the issue of whether an employmentrelationship exists betweenthe parties or whether an agencyrelationship exists,” and applying Borello); Kern, et al. v. Entertainers Direct, Inc., et al., (Cal. Lab. Com. Aug. 20, 1998) TAC 25-96 at 8-10 (applying Borello, citing it as “the leading case on the issue of whether a person engaged to provide servicesis an independent contractor or an employee.”).) JKH Enterprises, Inc. v. Dep’t of Indus. Relations (2006) 142 Cal. App. 4th 1046 also provides insight into a written decision by the DLSE that addressed the issue of distinguishing between employees and independent contractors. The court noted that the Labor Commissioner (DLSE)decision below had stated that there was no single determinative factor in the determination of whether a worker is an employee or independent contractor, and that it applied the “multi-factor” or “economic realities” test enunciated in Borello. (Id. at 1053-54.) Notably, the court applied the same Borello standard and upheld the Labor Commissioner’s decision. These decisions all demonstrate that the Borello standard has been and continues to be consistently applied in a workable fashion both before and after Martinez was decided. The relevance and importance of the DLSE’s enforcementpractices (and, in turn, the DLSE Manual which summarizes the principles and -12- interpretations derived from the DLSE’s enforcement) have long been recognized andrelied upon by this Court, largely because: Long-standing, consistent administrative construction of a statute by those charged with its administration, particularly where interested parties have acquiesced in the interpretation,is entitled to great weight and should not be disturbed unless clearly erroneous. Moreover, this principle applies to administrative practices embodied in staff attorney opinions and other expressions short of formal, quasi-legislative regulations. (Morillion v. Royal Packing (2000) 22 Cal.4th 575, 590 (citations omitted); Augustus, 2016 WL 7407328, at *6; Manual at § 1.1.4.) Further, “[w]hen an administrative interpretation is of long standing and has remained uniform, it is likely that numerous transactions have been entered into in reliance thereon, and it could be invalidated only at the cost of major readjustments and extensivelitigation.” (Whitcomb Hotel, Inc. v. Cal. Emp. Com. (1944) 24 Cal.2d 753, 757.) Thus, while not controlling on this Court, the DLSE’s opinion letters and decisions “do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” (Yamaha Corp. ofAmerica v. State Bd. of Equalization (1998) 19 Cal.4th 1, 14; Manual at § 1.1.5.) 3. The DLSE’sreliance on Borello comports with the enforcement practices of other California agencies and the independent contractor tests across the nation. The DLSE’sapplication of Borello comports with other California agencies that must determine the existence of an employmentrelationship. While the Employment Development Department (“EDD”) and DLSE perform different functions, they have overlapping statutory duties and -13- share a common goal of ensuring compliance with the laws regulating employment in California. Critical to such enforcement is the need to resolve the threshold question of whether an employment relationship exists. Both agencies have consistently applied the Bore/lo standard. (See SuperShuttle International Inc. v. EDD (Feb. 13, 2013) Precedent Tax Decision No. P-T-502, at 16 (acknowledging “California decisions applying statutes for the protection of employees ‘uniformly declare that ‘(t]he principal test of an employmentrelationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired. . . .”” and deciding therefore, that CUIAB has powerto “draw direct analogy to workers’ compensation law and Labor Code statutes enforced by DIR.”) (citing Borello) (emphasis added)); NCM Direct Delivery v. EDD (May 8, 2007) Precedent Tax Decision No. P-T- 495, at 7-12 (extending application of Borello to the unemployment insurance context: “While recognizing the differences between worker’s compensation and unemployment insurance laws, we find that the Borello case has strong applicability to cases arising under the Unemployment Insurance Codeand that the reasoning of that decision provides important guidance. . .”); RWI Transportation LLC v. EDD (Sept. 13, 2016) Precedent Benefit Decision No. P-T-511, at 10-15 (relying on common law right to control test and Borello factors to determine employee/independent contractor status).)° 3 A California federal court has also applied the Borello standard to decide a motion for summary judgment (O’Connor v. Uber Techs., Inc. (N.D. Cal. 2015) 82 F. Supp. 3d 1133, 1138) and a motion for class certification (O’Connor v. Uber Techs., Inc. (N.D. Cal. Sept. 1, 2015) No. C-13-3826 EMC, 2015 WL 5138097, at *5, *16-*30). The underlying decision of the Court of Appeal here stands in direct contrast. -14- This Court’s departure from Borello would not only abandon the long-standing practice of these two agencies, but it would also isolate California on a national scale. Businesses reasonably rely on long-standing interpretations of the law. This is particularly true in a fact-intensive area such as the determination of independent contractor status. As Dynamex has noted in prior briefing, it would be highly disruptive to multi-state businesses if California abruptly departed from its historical reliance on Borello, and instead adopted a standard at odds with those existing in the other 49 states. III. CONCLUSION Based onits institutional knowledge and experience, the DLSE has always applied the Borello standard. Although Martinez issued prior to the DLSE’s most recent update of its Manual, the DLSE chose not to apply Martinez to independent contractor determinations. To the contrary, the DLSE has explicitly directed that Borello is the sole standard for distinguishing employees from independent contractors. The trial court here has already concluded twice that the facts presented do not support class certification under the Borello standard. For these reasons, Dynamex respectfully urges the Court to reverse the decision of the Court of Appeal and order the case remanded to thetrial court, with instructions to vacate the order denying decertification of the class, and to enter a new and different order decertifying the class based onthetrial court’s prior rulings. -15- DATED:February 21, 2017 LITTLER MENDELSON,P.C. » EE bless ROBERT G. HULTENG DAMONM.OTT Attorneys for Defendant and Petitioner DYNAMEX OPERATIONSWEST, INC. -16- CERTIFICATE OF WORD COUNT Pursuant to CRC 8.204(c) and 8.486(a)(6), the text of this Supplemental Brief, including footnotes and excluding the cover information, table of contents, table of authorities, signature blocks, and this certification, consists of 2799 words in 13-point Times New Roman type as counted by the word-processing program used to generate the text. DATED: February 21, 2017 LITTLER MENDELSON,P.C. ye EHHPSs, ROBERT G. HULTENG DAMONM.OTT Attorneys for Defendant and Petitioner DYNAMEX OPERATIONS WEST, INC. -|7- PROOF OF SERVICE I am resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is 333 Bush Street, 34" Floor, San Francisco, California 94104, I served the within document(s): PETITIONER DYNAMEX OPERATIONS WEST,INC.’S SUPPLEMENTAL BRIEF by placing a true copy of the document(s) listed above for collection and mailing following the firm’s ordinary business practice in a sealed envelope with postage thereon fully prepaid for deposit in the United States mail at Walnut Creek, California addressedas set forth below. by depositing a true copy of the same enclosed in a sealed envelope, with delivery fees provided for, in an overnight delivery service pick up box or office designated for overnight delivery, and addressed as set forth below. Based on a court order or an agreementof the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-mail addresses on the attached service list on the dates and at the times stated thereon. I did not receive, within a reasonable time after the transmission, any electronic messageor other indication that the transmission was unsuccessful. The electronic notification address of the person makingthe service is @littler.com. Clerk Court ofAppeal B249546 Second Appellate District Division Seven Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, Court ofAppeal Case No. CA 90013 -18- Clerk Los Angeles County Superior Court 111 North Hill Street Los Angeles, CA 90012 Attorney General Appellate Coordinator Office of the Attorney General Consumer Law Section 300 S. Spring Street Los Angeles, CA 90013-1230 District Attorney's Office County of Los Angeles 320 West Temple Street, #540 Los Angeles, CA 90012 A. Mark Pope, Esq. (State Bar No. 77798) Pope, Berger, Williams & Reynolds, LLP 401 B Street, Suite 2000 San Diego, CA 92101 Attorneysfor Charles Lee: Plaintiffs and Real Party in Interest Pedro Chevez: Plaintiffs and Real Party in Interest Kevin F. Ruf, Esq. (State Bar No. 136901) Glancy Prongay & Murray LLP 1925 Century Park East, #2100 Los Angeles, CA 90067 Attorneysfor Charles Lee: Plaintiffs and Real Party in Interest Pedro Chevez: Plaintiffs and Real Party in Interest Jon R. Williams, Esq.(State Bar No. 162818)Williams Iagmin LLP666 State StreetSan Diego CA 92101 AttorneysforCharles Lee: Plaintiffs and RealParty in InterestPedro Chevez: Plaintiffs and RealParty in Interest -19- Ellen M. Bronchetti, Esq. (State Bar No. 226975) DLAPiper LLP 555 Mission Street, Suite 2400 San Francisco, CA 94105 Co-Counselfor Dynamex Operations West, Inc.: Defendant and Petitioner Paul S. Cowie, Esq. (State Bar No. 250131) Sheppard Mullin Co-Counselfor Dynamex Operations West, Inc.: Defendant and Petitioner 379 Lytton AvenuePalo Alto, CA 94301-1479 I am readily familiar with the firm's practice of collection and processing correspondence for mailing and for shipping via overnight delivery service. Under that practice it would be deposited with the U.S. Postal Service or if an overnight delivery service shipment, deposited in an overnight delivery service pick-up box or office on the same day with postage or fees thereon fully prepaid in the ordinary course of business. I declare under penalty of perjury under the lawsof the State of California that the aboveis true and correct. Executed on February 21, Pyeplone —BARBARA PALOMO . 2017, at San Francisco, California. Firmwide:144691119.5 052385.1039 -20-