Vaynberg v. Chevron Products





















Filed 3/14/13 Vaynberg v. Chevron Products CA1/2

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
TWO




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MOYSEY VAYNBERG, Plaintiff and Appellant, v. CHEVRON PRODUCTS COMPANY, Defendant and Respondent.

A131126 (Contra Costa County Super. Ct. No. MSC0801216)

I. INTRODUCTION

Appellant
Moysey Vaynberg worked for respondent Chevron Products Company (Chevron)
through an employment agency for nine
years, from August 1999 through April 2008.
For the last eight of those years, appellant worked through Value Added
Consulting Group (Value Added).
Appellant sued Value Addedhref="#_ftn1"
name="_ftnref1" title="">[1]
and Chevron for wage and hour violations, primarily the failure to pay him
overtime. At trial, there was no dispute
that Value Added was appellant’s employer; the main issue was appellant’s
employment relationship with Chevron.
Appellant contended that he was also an employee of Chevron, i.e., that
Value Added and Chevron were appellant’s “joint” or “dual” employers. Chevron maintained that appellant was an
independent contractor. The jury
returned a verdict for Chevron and the trial court denied appellant’s motion
for judgment notwithstanding the verdict.

On
appeal, appellant contends the trial court prejudicially misinstructed the jury
on the common law test for an employment relationship and also erred in
excluding evidence. Finding no href="http://www.mcmillanlaw.com/">reversible error, we will affirm.

II. FACTUAL AND PROCEDURAL
BACKGROUND

Appellant
sued Value Added and Chevron, alleging that he was employed by Value Added and
that Chevron was his co-employer. He
pleaded causes of action for (1) failure to pay overtime (Lab. Code,
§§ 510, 1194), (2) failure to pay wages (Lab. Code, §§ 204, 218; Cal.
Code Regs., tit. 8, § 11040), (3) failure to timely pay wages due upon
termination (Lab. Code, §§ 201, 203, 218; Cal. Code Regs., tit. 8, §
11040), (4) failure to reimburse reasonable expenses (Lab. Code, § 2802),
and (5) unfair, unlawful, and fraudulent business practices (Bus. & Prof.
Code, § 17200 et seq.).

The
case was tried to a jury. At trial, the
following testimony was adduced.

Appellant
initially worked at Chevron through Analysts International, an employment
agency. When he left that agency, he
asked Chevron to hire him as an employee.
Chevron declined to hire him, but gave him the names of other agencies
it used to staff its computer analyst positions. Appellant continued his work at Chevron as a
Production Support Technical Analyst through Value Added.

In
2004, Chevron and Value Added entered into a Master Services Agreement (the
Agreement). Pursuant to the Agreement,
Value Added was to provide “Consulting Services” to Chevron, including Computer
Programming, System Design, and Acceptance Testing services and personnel for
Chevron’s CAROL system.href="#_ftn2"
name="_ftnref2" title="">[2] Consultants were required to be proficient in
the COBOL language used by the CAROL system.


Chevron
considered Value Added to be a third-party vendor. The Agreement provided: “Contractor is performing the Services as an
independent contractor. Contractor shall
retain all authority to direct the supervision of its employees while providing
Services under this Agreement.
Contractor, its employees, agents and representatives are not employees
or agents of Company [Chevron] or its affiliates. None of the Contractor’s personnel shall be
entitled to receive any compensation, benefits or other incidents of employment
from Company or its Affiliates. Nothing
in this Agreement shall be deemed to constitute a partnership or joint venture
between Company (and its Affiliates) and Contractor.”

At
trial, appellant admitted that he was “aware at all times while [he was]
working for Value Added that when [he was] assigned to the Chevron facility [he
was] working there under a contract . . . .” He also acknowledged that he was retained for
six to twelve month “assignments,” and that he requested that his service order
with Chevron be extended at the expiration of each assignment. When the service order came up for renewal,
appellant understood that his Value Added supervisor, Peter Ngo, was working
with Chevron to extend the service agreement.
In renewing appellant’s services, Chevron would contact Ngo by email,
requesting Ngo’s approval of the extension of the contract. The terms of the renewal identified appellant
as a “contractor,” Value Added as his “agency,” the “contract dates,” the
hourly rate Chevron would pay Value Added for appellant’s services (usually $75
per hour), the fixed extension duration (a period of months, usually from six
to twelve), and the number of budgeted hours for appellant’s work. Ngo would approve the terms and inform
appellant of the renewal.

Appellant
was paid by Value Added, which determined the amount and terms of his
compensation. Value Added required
appellant to record all of his time on time cards that he submitted to Value
Added. The time cards identified Chevron
as the “Client,” Value Added as the “Agency,” and listed the CAROL “project”
and the number of hours appellant worked on each date. Value Added used these records to bill
Chevron by the hour for its contractors’ services.

Value
Added paid appellant a monthly salary and a bonus based on billed hours. Value Added issued appellant his paychecks,
paystubs, deducted payroll taxes, and provided him with medical and dental
insurance. Appellant also later received
unemployment insurance from Value Added, not Chevron. Chevron never paid appellant directly and
never provided him any benefits. When
appellant wanted a raise, he spoke with Ngo, not Chevron, about increasing his
pay.

Chevron
sought contractors with “technical specialist degrees” to perform the
production support team work. Appellant,
with a bachelor’s and a master’s degree and two engineering licenses, met the
requirements. Although he knew nothing
about the CAROL system when he was hired, he had experience with COBOL, the
language used by the CAROL system, and “extensive experience working in the
computer field . . . .”


Chevron
considered the CAROL system a legacy program that was slowly becoming obsolete
and was slated ultimately to be discontinued.
COBOL was an outdated programming language, familiar only to those who
had been in the field for a long time.

Appellant
learned the CAROL system by reviewing Chevron’s CAROL documentation over the
course of nearly a year before he was fully capable of performing his job using
CAROL. He never received or required any
formal training from Chevron.

Appellant
was originally assigned to the production support team by Chevron supervisor
Lori Wong. At first, appellant was one
of a team of technical analysts, each of whom would be on-call every 20
weeks. Chevron determined this rotation
was inefficient, and created a production support group composed of four
technical analysts. Wong chose four
technical analysts, including appellant, to be on the production support
team.

The
production support team had a rotating on-call system. Each of four team members would be the
primary or “prime” on-call person 24 hours a day for one week out of every
four. In addition, each of the four would
serve as the secondary or back-up on-call person for another week out of every
four.

Yvonne
Blois, a Chevron employee, was the team leader of the Card Systems technical
team from 2000 to 2003, and again from 2007 onward. As leader of the technical team, her
responsibilities included production support.
Brent Boozer, also a Chevron employee, was in charge of the production
support team in the intervening period, from January 2004 to April 2007.

The
mainframe on which CAROL operated was not owned by Chevron; it was owned by a
separate company, EDS. Problems with the
system went first to the EDS help desk, which would resolve minor or routine
issues. Issues requiring more technical
ability or expertise would be assigned a “ticket” and sent to the production
support team.

Joe
Brennan, a contractor at Chevron through another agency, was the “de facto
lead” of the production support team and was responsible for assigning
“tickets.” In making the assignments,
Brennan would look to see who had the most time available or most familiarity
with the issue, and would assign it to the team member he determined was best
suited for it. Blois had assigned this
task to Brennan, and he performed this function until 2007 when she assigned it
to Chevron employee Rich Green. Brennan
was also responsible for the on-call schedule, which he created with input from
each of the contractors regarding their availability.

Appellant
spent the majority of his time “working tickets,” i.e., resolving program
glitches with the CAROL system.
According to appellant, 95 percent of the production support team’s job
was “ ‘restarting jobs and certain steps’ ” which were “ ‘pretty
well defined from the job docs.’ ”
According to Chevron, appellant’s work involved specialized tasks that
were “ ‘extremely complex.’ ”
For example, appellant was responsible for analysis, research, repair,
and testing of software; application development; working on system
specifications and performing systems analysis; writing code, working on code enhancements,
and preserving code integrity; and recommending changes and improvements to the
system. In addition, once an issue was
resolved, testing and quality assurance were a “big part” of the work.

Value
Added was owned by Peter Ngo and his wife.
Ngo was also a contract worker at Chevron through Value Added; he worked
at the Chevron facility in Concord on the same floor as appellant. Ngo did not direct appellant’s work. He did not provide appellant with training,
did not assign him work, and did not conduct any performance evaluation. He had no role in scheduling appellant’s
work.

Value
Added paid its employees once a month.
It withheld taxes, unemployment, and social security from appellant’s
pay and issued him a W-2. Ngo testified
that appellant was paid an annual salary of $51,000. He also testified that appellant was paid for
every hour he worked. As an example, Ngo
testified that if appellant worked 50 hours in a given week, he was paid for 50
hours by Value Added. Appellant worked for
Value Added from 2000 to 2008. During
that time, Chevron was the only company with which he was placed. Value Added terminated appellant’s employment
on the same day his final contract with Chevron expired: April 15, 2008.

Blois,
who supervised the production support team for most of the time relevant
herein, testified that she informed contractors of her expectations but did not
micromanage their work. She did not
direct them regarding how to perform their research or analysis; she only
stated the results she wanted.

She
considered appellant to be highly trained and skilled. He did not have to get her approval as to how
to analyze, research, or fix a problem.
If the fix required him to change data or change code, however,
appellant was required to consult with someone prior to making the change.

Appellant
testified that, if he could not resolve a ticket on his own, he would request
help from one of the business analysts, who were Chevron employees. Chevron directed that if a ticket would require
12 or more hours of work it should not be handled by production support but
rather should be reassigned to the technical team.

From
time to time, appellant was assigned tasks that were outside of his normal
production support work. Both Blois and
Boozer assigned such tasks or special projects.
Appellant was authorized to charge for the time he spent on such
projects, rather than offset the hours with comp time, as he was otherwise
required to do, because these projects were outside of his normal production
support duties. Appellant worked on a
special project known as the “taproot investigation,” which involved a glitch
in the transmission of credit card transaction files that caused duplicate
billings. Appellant also worked on
projects involving Proterm, an application that permitted the writing of a
single program to update large amounts of data.
Appellant obtained expertise in Proterm while working for Chevron, and
was considered the production support team expert on Proterm.

Blois
testified that it was “negotiable” whether appellant had to spend at least
eight hours per day at the Chevron facility.
She said there was no minimum number of hours he was required to be
on-site. Rather, the only requirement
was that he work the number of hours he billed.
Brennan testified that production support team members were required to
be at the Chevron site eight hours per day, 40 hours per week. Boozer testified similarly, that he expected
appellant to work at the Chevron facility during the three weeks of each month
that he was not on-call. He said
contractors could occasionally work from home, but only with his approval.

In
2004, Boozer checked records for a three-month period and noticed that
appellant was on the premises an average of only six hours per day. The number of hours appellant had billed
during that time was not the same as the number of hours he was on-site. Boozer testified at trial that he was “very
concerned” because “the way it looked is that he was charging us for time that
he had not put in . . . .”
He confronted appellant about the issue.


Appellant
explained that he had been working with Proterm from home after hours because
of the expense and difficulty of using Proterm during the day; Boozer accepted
his explanation but stated that, going forward, he wanted appellant to work
from the Chevron office. At his
deposition, Boozer testified that he did not recall whether appellant offered
an explanation or whether appellant told him he had been working from
home. At trial, Boozer initially
testified that he did not think appellant had “any explanation as to why there
was a discrepancy in the hours.” Later
he testified, “I can’t really remember what [appellant] said.”

Following
the confrontation, Boozer instructed appellant to be in the office 40 hours per
week, and appellant did so. Boozer did
not discuss appellant’s hours with Ngo and did not express to Ngo any concerns
with appellant’s job performance.

Production
support team members recorded their time worked on Chevron time sheets and on
time sheets for their agency. Prior to
November 2004, team members were instructed to report their actual hours worked
on Chevron time sheets, but that their agency time sheets “should always reflect
a 40 hour work week.”

That
rule was changed in November 2004, at which time they were instructed, going
forward, that “[a]gency time sheets [are] to reflect the same number of hours
as reported on Company timesheets.” They
were also instructed that the “company rule” required “the OnCall person to
take unpaid time off equal to the actual overtime hours worked during the
OnCall week.”

Chevron
did not want team members billing more than 40 hours per week. Boozer explained that it was important for
Chevron to stay within budget for contractors, and, to do so, Chevron wanted
contractors to balance their time out to 40 hours per week. The production support team manager, either
Boozer or Blois, was responsible for coordinating the equalization of unpaid
time off and actual overtime.

Boozer
instructed appellant to notify him and everyone on the team when he was
scheduling his comp time. Appellant
would send emails indicating when he intended to take time off. On one occasion, Boozer discovered that
appellant had accumulated 42 excess hours.
He asked appellant to balance this time out over several weeks. He testified that he was surprised that
appellant had accumulated so much excess time.


Blois
also imposed restrictions on appellant’s accumulation of overtime hours and his
taking of comp time. In April 2007,
appellant asked to take off the week of May 7.
At trial, Blois testified that appellant did not need her approval, that
she had no authority to prevent him from taking time off. However, by email on April 18, 2007, she
replied: “My inclination is to say no
but I have a consult into Brent [Boozer].”
Blois was concerned that appellant was “overbooking” or “padding” his
hours. She was concerned because
appellant’s hours were higher than other people’s for doing the same amount of
work, and Chevron had a budget based on 40 hours of work per week.

The
next day, on April 19, 2007, Blois instructed appellant: “From here on out, you will advise me the day
of and or the following day when you have accrued any OT and you will use this
time within a 2 week period, and you will tell me when you intend to utilize
this time.” She testified at trial that
this was her way of trying to “keep verification” going forward. She wanted to be informed when appellant
would not be in the office so she could keep better track of his hours for
budgetary purposes.

Later
on the same day, Ngo, the owner of Value Added, emailed Blois seeking her
“permission” to talk to appellant about his plan to take a week off as comp
time. Ngo wrote, “I promise to be very
diplomatic and not messing up [sic]. I
promise to run to you for help and I promise to report back to you on what’s
the outcome.” Blois replied, “In theory,
he is your employee so you can speak to him as you wish, however, it may be a
good idea if you and I discuss the latest outcomes.”

Thereafter,
appellant would customarily advise Blois by email of the overtime hours he
worked and the dates and times he proposed to take comp time to offset
them. Two months later, Blois announced
that the entire production support team had to work to reduce the number of
hours of overtime.

According
to respondent, Chevron did not establish any work schedule for appellant. The contractors advised each other and
Chevron when they would be unavailable, working from home, or not on the
premises.

According
to respondent, appellant also never had to ask Chevron for time off. “He worked the hours he pleased when he
pleased.” Chevron’s interest regarding
the contractors’ availability was ensuring that there were experts on-hand to
address any issues as they arose with the CAROL system. Chevron tracked the contractors’ hours to
ensure that labor costs did not exceed the budgeted or contracted-for amounts,
and to ensure that the contractors were actually working during the time billed
to Chevron.

Appellant
received training at Chevron when it implemented new versions of computer
programs. Appellant attended weekly,
hour-long meetings run by the production team manager, either Blois or Boozer. Both contractors and Chevron employees were
required to attend. The meetings
included members of the production support team and individuals from other
teams, and addressed matters such as happenings at the company, the tickets
team members were working on, and any issues people were having, “in order to
improve . . . cross-communication amongst the different
teams.” Chevron also held implementation
meetings at least once a month which appellant was required to attend.

Blois
testified that she had the right to discontinue appellant’s services at any
time. Boozer said he never filled out
performance reviews for contractors, but that he and his boss had the option of
whether or not to renew the contract of a contractor. In making that decision, they would take into
account the performance of the individual whose contract was up for
extension.

Because
the CAROL system contained confidential account information, its security had
to be protected. Chevron provided
production support team members with laptops and a virtual private network to
access the system from home. Chevron
also provided pagers to team members to use when they were on-call. Appellant was reimbursed by Value Added for other
work-related expenses such as a printer, paper, security software, internet,
office supplies, car maintenance, and travel expenses. Appellant never submitted expense requests to
Chevron.

According
to appellant, although the Value Added payment worksheets prepared by Ngo
apportioned appellant’s gross pay to “salary” and “bonuses,” appellant
testified that he was not on a salary.
Appellant was paid by the hour the entire time he worked at Chevron, and
that Ngo’s accounting was “a mystery.”
Chevron was the only work assignment Value Added ever gave him.

During
his time with Chevron, appellant was always aware that he was working under a
contract. He was involved with his
contract renewals and would ask for his contract to be extended. He considered himself an independent
contractor, not an employee of Chevron, but understood that the job was “pretty
much continuous.” The term of the
contract could not be indefinite, however, so it was usually extended for at
least six months.

Boozer
testified that he always considered appellant to be an independent
contractor. He never treated appellant
like an employee; he never intended appellant to be an employee; and appellant
never acted like an employee. Blois
testified the she never considered appellant to be a Chevron employee, and she
never tried to treat appellant as she would a Chevron employee.

When
Chevron announced that it was going to sell its credit card business, it
offered retention bonuses to encourage both contractors and employees to remain
on the job until the credit card business was terminated. It also offered to try to find jobs within
Chevron for contractors and employees who would otherwise lose their positions
when the credit card business ceased operations. Ngo helped appellant with preparing his
resume and tried to find him a new assignment.


After
a lengthy trial, the jury found by special verdict that appellant was not an
employee of Chevron. The jury therefore
did not reach any of the other issues.
Appellant’s motions for a new trial and for judgment notwithstanding the
verdict were denied.

Appellant
filed a timely notice of appeal from the judgment.

III. DISCUSSION

A. >Alleged Instructional Error.

1. The Challenged Instruction Did Not
Correctly State the Applicable Law.

a. Background.

At
Chevron’s request, the trial court instructed the jury: “Chevron contends that Mr. Vaynberg was not
entitled to overtime pay from Chevron because he was an employee of Value Added
working at Chevron as an independent contractor, not an employee of
Chevron. In deciding whether Mr.
Vaynberg was an independent contractor, you must first decide whether Chevron
had the right to completely control the manner and means by which Mr. Vaynberg
performed his work, rather than just the right to specify or request a desired
result. [¶] If Chevron had complete authority to supervise
the specific details of Mr. Vaynberg’s work and to exercise complete control
over his work, as opposed to just giving him suggestions as to the details,
then this is one of the factors you may consider.”

Appellant
contends that this instruction is erroneous because, under a dual employment
relationship, as appellant alleged he had with Chevron and Value Added, it is
not necessary that Chevron have a right of complete
control. The parties both submitted jury
instructions based on the common law definition of employment to assist the
jury in distinguishing between an employee and an independent contractor. The parties agree that the existence of
control is the most important factor, but not the only one, in making this
determination. At trial, appellant
contended that, although he was originally hired by Value Added to work at
Chevron as an independent contractor, Chevron assumed sufficient control over
his work and working conditions that his relationship to Chevron was that of
employee to dual employer, with control shared by Chevron and Value Added. Under these circumstances, appellant argues,
the challenged instruction misled the jury by suggesting or implying that
Chevron’s control over appellant had to be “complete” to satisfy the control factor.

“We
review de novo whether a challenged instruction correctly states the law.” (Bowman
v. Wyatt (2010) 186 Cal.App.4th 286, 298 (Bowman), and cases cited therein.)

b.> The
Law.

The
common law pertaining to the distinction between employees and independent
contractors developed largely around workers compensation and unemployment
insurance cases, where liability for misconduct
or negligence and/or eligibility for benefits were primarily at issue. “The ‘seminal case’ [citation] addressing the
employee/independent contractor distinction is Empire Star Mines Co. v. Cal. Emp. Com. (1946) 28 Cal.2d 33 (>Empire Star), overruled on other grounds
in People v. Sims (1982) 32 Cal.3d 468, 479-480, footnote 8. That case arose under the Unemployment
Insurance Act, pursuant to which employers were required to pay unemployment
insurance taxes for employees, but not for independent contractors. (Empire
Star, at p. 36.) In affirming the
trial court’s determination that the defendant mining company’s lessees were
independent contractors, the Supreme Court identified a number of factors
relevant to distinguishing independent contractors from employees. The most important factor was ‘the right to
control the manner and means of accomplishing the result desired. If the employer has the authority to exercise
complete control, whether or not that right is exercised with respect to all
details, an employer-employee relationship exists.’ (Id.
at p. 43.) The court also identified a
series of ‘other factors’ to be taken into consideration: ‘(a) whether or not the one performing
services is engaged in a distinct occupation or business; (b) the kind of
occupation, with reference to whether, in the locality, the work is usually done
under the direction of the principal or by a specialist without supervision;
(c) the skill required in the particular occupation; (d) whether the principal
or the workman supplies the instrumentalities, tools, and the place of work for
the person doing the work; (e) the length of time for which the services are to
be performed; (f) the method of payment, whether by the time or by the job; (g)
whether or not the work is part of the regular business of the principal; and
(h) whether or not the parties believe they are creating the relationship of
employer-employee. [Citation.]’ (Id.
at pp. 43-44.)” (Bowman, supra, 186 Cal.App.4th at pp. 299-300; see also >S.G. Borello & Sons, Inc. v. Department
of Industrial Relations (1989) 48 Cal.3d 341, 350-351 (Borello), and cases cited therein [explaining that the right of
control is the primary factor in determining whether a worker is an independent
contractor or an employee, and that secondary factors must also be
considered].)

>Empire Star, Borello, and Bowman all
addressed the employee/independent contractor distinction in the context of a
single employer.

Dual
employment, of necessity, involves two employers. “The possibility of dual employment is well
recognized in the case law. ‘Where an
employer sends an employee to do work for another person, and both have the
right to exercise certain powers of control over the employee, that employee
may be held to have two employers—his original or “general” employer and a
second, the “special” employer.’ (>Miller v. Long Beach Oil Dev. Co. (1959)
167 Cal.App.2d 546, 549.) In >Industrial Ind. Exch. v. Ind. Acc. Com.
(1945) 26 Cal.2d 130, 134-135, this court stated that ‘an employee may at the
same time be under a general and a special employer, and where, either name="sp_233_175">name="citeas((Cite_as:_23_Cal.3d_168,_*175)">by the terms of a contract or
during the course of its performance, the employee of an independent contractor
comes under the control and direction of the other party to the contract, a
dual employment relation is held to exist.
[Citations.]’ ” (>Kowalski v. Shell Oil >Co. (1979) 23 Cal.3d 168, 174 (>Kowalski).)

In
Kowalski, the plaintiff was employed
by a maintenance company and was working at a Shell refinery, operating a
radial saw when his hand was amputated.
He brought a personal injury action against Shell, which claimed he was
a special employee under the contract Shell had with the maintenance company
and, thus, the plaintiff’s exclusive remedy was under the workers compensation
law. (Kowalski, supra, 23
Cal.3d at pp. 171-172.) The jury found
that Kowalski was not Shell’s special employee.

In
determining whether substantial evidence supported the jury’s finding, the
Supreme Court noted that “the courts have looked to a number of factors as
evidentiary indicia of the existence of a special employment relationship. ‘The paramount consideration appears to be
whether the alleged special employer exercises control over the details of [an
employee’s] work. Such control strongly
supports the inference that a special employment exists.’ [Citations.]
However, ‘[t]he fact that instructions are given as to the result to be
achieved does not require the conclusion that a special employment relationship
exists.’ [Citations.]” (Kowalski,
supra, 23 Cal.3d at pp.
176-177.) In addition, evidence that the
alleged special employer has the power to discharge the worker is strong
evidence of a special employment relationship, while the payment of wages is
not determinative. “Other factors to be
taken into consideration are ‘the nature of the services, whether skilled or
unskilled, whether the work is part of the employer’s regular business, the
duration of the employment period, . . . and who supplies the
work tools.’ [Citations.] Evidence that (1) the employee provides
unskilled labor, (2) the work he performs is part of the employer’s regular
business, (3) the employment period is lengthy, and (4) the employer provides
the tools and equipment used, tends to indicate the existence of special
employment. Conversely, evidence to the
contrary negates existence of a special employment relationship. [¶] In
addition, consideration must be given to whether the worker consented to the
employment relationship, either expressly or impliedly, and to whether the
parties believed they were creating the employer-employee relationship. [Citation.]”
(Id. at pp. 177-178, fn.
omitted.)

We
observe that there are two different types of special employment, one in which
the general employer relinquishes all control to the special employer, and one
in which the general employer relinquishes only partial control. In the former situation, the special employer
becomes solely responsible for the employee’s actions and the general is
relieved of all liability; in the latter, the special and the general employers
are dual or joint employers and share liability “concurrently and
simultaneously, jointly and severally . . . .” (Marsh
v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492, 494-495 (>Marsh); see also Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 216 (>Brassinga) [“Marsh itself made clear that relinquishment of ‘all’ control is not
necessary for creation of a special employment relationship.”].)

>Marsh, Kowalski, and Brassinga
are cases involving personal injury tort and workers compensation remedies, as
are McFarland v. Voorheis-Trindle Co.
(1959) 52 Cal.2d 698 (McFarland) and >Riley v. Southwest Marine, Inc. (1988)
203 Cal.App.3d 1242, which appellant also cites. These dual employer cases involved a right to
control test where each employer had “ ‘ “some power, not necessarily
complete, of direction and control.” ’ ” (McFarland,
supra, 52 Cal.2d at p. 704.)

In
Martinez v. Combs (2010) 49 Cal.4th
35, 50, 59, 76 (Martinez), our
Supreme Court had occasion to consider the nature of the employment
relationship and alleged dual employers in the context of wage claims brought
under state law. In Martinez, seasonal agricultural workers brought an action under
Labor Code section 1194 to recover unpaid minimum wages. (Martinez,
supra, 49 Cal.4th at p. 42.) The plaintiffs filed the action against the
bankrupt strawberry farm operator who hired them, Munoz, and two produce
merchants, Apio and Combs, who had stopped selling Munoz’s strawberries. (Id.
at pp. 42-43.) There was no question
that Munoz employed the plaintiffs; the produce merchants’ liability turned on
whether they were joint employers with Munoz.
(Martinez, >supra, 49 Cal.4th at p. 45.) Concluding that, as a matter of law, the
produce merchants did not jointly employ the plaintiffs, the trial court
granted the produce merchants’ motion for summary judgment. The Supreme Court concluded that the evidence
failed to raise a triable issue of fact as to whether the produce merchants
ever supervised or exercised control over the plaintiffs’ working
conditions. (Id. at p. 76.)

Before
addressing the merits, the Supreme Court analyzed the term “employment” for the
first time in the context of state wage and hour violation cases. It held that, in actions under Labor Code
section 1194 to recover unpaid wages, the applicable Industrial Welfare
Commission (IWC) wage order defines the employment relationship and, thus, who
may be held liable as an employer for unpaid wages.href="#_ftn3" name="_ftnref3" title="">[3] (Martinez,
supra, 49 Cal.4th at p. 52.) Although the factual situation, procedural
posture, and the applicable wage order here are different, the >Martinez court’s consideration of the
employment relationship required for Labor Code wage laws to apply has direct
bearing on this case. The IWC defines
employer as “a personname="______#HN;F28"> who ‘employs or exercises control over the wages,
hours, or working conditions of any person.’ ”
The Martinez court observed
that, “phrased as it is in the alternative (i.e., ‘wages, hours, >or working conditions’), the language of
the IWC’s ‘employer’ definition has the obvious utility of reaching situations
in which multiple entities control different aspects of the employment
relationship, as when one entity, which hires and pays workers, places them
with other entities that supervise the work.
Consistently with this observation, the IWC has explained its decision
to include the language in one modern wage order as ‘specifically intended to
include both temporary employment agencies and employers who contract with such
agencies to obtain employees within the definition of “employer.” ’ ” (Martinez,
supra, 49 Cal.4th at p. 59, fns.
omitted.)

The
court later emphasized this point again:
“As we have explained, one of the reasons the IWC defined ‘employer’ in
terms of exercising control was to reach situations in which multiple entities
control different aspects of the employment relationship. This occurs, for example, when one entity
(such as a temporary employment agency) hires and pays a worker, and another
entity supervises the work.
[Citation.] Supervision of the
work, in the specific sense of exercising control over how services are
performed, is properly viewed as one of the ‘working conditions’ mentioned in
the wage order. To read the wage order
in this way makes it consistent with other areas of the law, in which control
over how services are performed is an important, perhaps even the principal,
test for the existence of an employment relationship. (See, e.g., Metropolitan Water Dist. v. Superior Court [(2004)] 32 Cal.4th 491,
512 [common law]; Tieberg v. Unemployment
Ins. App. Bd. (1970) 2 Cal.3d 943, 946 [(Tieberg)] [unemployment insurance]; McFarland[, supra,] 52
Cal.2d [at p.] 704 [workers’ compensation].)”
(Martinez, >supra, 49 Cal.4th at p. 76.)href="#_ftn4" name="_ftnref4" title="">[4]

c.> Analysis.

Appellant’s
theory of the case was that Chevron and Value Added were dual employers in that
they shared control over appellant or, phrased another way, Value Added
relinquished partial control over appellant to Chevron. The challenged instruction, however, required
the jury to decide whether Chevron had the right of complete control or complete
authority over appellant’s work. We
agree with appellant that, in the context of dual employers, the instruction
was an incorrect statement of the law.

Chevron’s
arguments to the contrary are not persuasive.
First, Chevron relies on Empire
Star, supra, 28 Cal.2d at page
43, which used the “complete control” language:
“If the employer has the authority to exercise complete control, whether
or not that right is exercised with respect to all details, an employer-employee
relationship exists.”href="#_ftn5"
name="_ftnref5" title="">[5] As more recent support for this standard,
Chevron cites Borello, >supra, 48 Cal.3d 341, but quotes from
the dissenting opinion at page 366 (“A material and often conclusive factor is
the right of an employer to exercise complete and authoritative control of the
mode and manner in which the work is performed”) without identifying it as
such. (Borello, supra, 48 Cal.3d
at p. 366, dis. opn. of Kaufman J.) The
majority in Borello does not refer to
“complete control.”

The
other cases Chevron relies on as recent authority interpreting the
right-to-control factor merely cite or derive from Empire Star and S.A. Gerrard
Co. without analysis on this
point. (See Bowman, supra, 186 Cal.App.4th at p. 299 [quoting >Empire Star, supra, 28 Cal.2d at p. 43:
“ ‘If the employer has the authority to exercise complete control,
whether or not that right is exercised with respect to all details, an
employer-employee relationship exists.’ ”]; Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220
Cal.App.3d 864, 873-874 [same]; Varisco
v. Gateway Science & Engineering, Inc. (2008) 166 Cal.App.4th 1099,
1103 (Varisco) [quoting >S.A. Gerrard Co., supra, 17 Cal.2d at p. 414:
“ ‘But this rule requires that the right to exercise complete or
authoritative control, rather than mere suggestion as to detail, must be
shown.’ ”]; Ali v. U.S.A. Cab Ltd.
(2009) 176 Cal.App.4th 1333, 1347 [attributing the same sentence to >Varisco].) In any event, none of these cases addresses
the right-to-control factor in the context of dual employment.

Chevron
also argues that appellant invited the error of which he now complains by
proposing two jury instructions that were based on the common law of employment
and that, according to Chevron, suggested that the right of control must be exclusive
or complete. “The ‘doctrine of invited
error’ is an ‘application of the estoppel principle’: ‘Where a party by his conduct induces the
commission of error, he is estopped from asserting it as a ground for reversal’
on appeal. [Citation.]’ . . . [T]he
doctrine ‘prevent[s] a party from misleading the trial court and then profiting
therefrom in the appellate court.” (>Norgart v. Upjohn Co. (1999) 21 Cal.4th
383, 403.) The doctrine “requires
affirmative conduct demonstrating a deliberate tactical choice on the part of
the challenging party.” (>Huffman v. Interstate Brands Companies (2004) 121 Cal.App.4th 679, 706.)

The
argument is entirely without merit. The
record shows that appellant expressly withdrew both instructions, requested an
instruction on joint employment, and consistently opposed an instruction
requiring a right of complete control.
There is no support in the record for a contention that appellant
engaged in a deliberate trial strategy to mislead the trial court or any
indication that the trial court was misled as to appellant’s position.

Attempting
to distance this case from Martinez,
Chevron contends that “Martinez did
not consider whether, under the common law test, a joint employment
relationship where an employee can recover overtime wages from either employer,
can be established under a lesser right to control standard.” Although Martinez
held that the applicable wage orders, not the common law, properly defined the
employment relationship under Labor Code section 1194, the common law was not
irrelevant to its analysis: “This is not
to say that the common law plays no role in the IWC’s definition of the
employment relationship. In fact [and as
discussed above], the IWC’s definition of employment incorporates the common
law definition as one alternative.” (Martinez,
supra, 49 Cal.4th at p. 64 [one of
the three alternative definitions of “[t]o employ” is “to exercise control over
the wages, hours, or working conditions”].)


We
interpret Chevron’s position to be that, although Martinez supports the applicability of the concept of dual
employment in the wage and hour context, Martinez
itself does not stand for the proposition that dual employment may be
established by a showing of partial or shared control. However, as appellant points out, shared
control is “the very essence of a joint or dual employment.” (See, e.g., Service Employees Internat. Union v. County of Los Angeles (1990)
225 Cal.App.3d 761, 773 [dual or joint employment arises only where both the
general employer and the special employer have the right to control the
employee’s activities]; County of Los
Angeles v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 391, 405 [dual
employment exists where the general employer sends an employee to work for the
special employer and both have the right to control the employee’s
activities].) Moreover, the central
issue in Martinez involved this
precise question: did the plaintiffs
show sufficient shared or partial control by the produce merchants such that
they were liable for wages under Labor Code section 1194? (Martinez,
supra, 49 Cal.4th at p. 49.)

Finally,
Chevron argues that Martinez
questioned the “continued applicability” of the common law employment factors
in the wage and hour context. The >Martinez plaintiffs attempted to compare
their case with Borello, >supra, 48 Cal.3d 341, in which the
Supreme Court held that workers hired by a large agricultural landowner under
“sharefarmer” agreements were employees, not independent contractors, for
purposes of workers compensation law.
The Borello court applied the
common law test of employment in light of the remedial purposes of the workers
compensation law, and concluded that the sharefarmers were workers the law
intended to protect. (>Martinez, supra, 49 Cal.4th at p. 73.)
The Martinez court
distinguished Borello: “Assuming the decision in [>Borello], supra, 48 Cal.3d 341, has any relevance to wage claims, a point we
do not decide, the case does not advance plaintiffs’ argument. Plaintiffs are correct in that, if Munoz had
been Apio’s employee rather than an independent contractor, Munoz’s employees
arguably would also have been Apio’s employees; the determination that a
purported independent contractor is in fact an employee raises the strong
possibility, generally speaking, that the contractor and its employer jointly
employ the contractor’s employees.
[Citation.]” (>Martinez, supra, 49 Cal.4th at p. 73.)
Martinez proceeded to apply
the common law employment factors to Munoz, contrasting his independent
contractor status with that of the Borello
sharefarmer-employees. (>Ibid.)
We disagree with Chevron that this discussion means any more than the
court said it did, i.e., it addressed the plaintiffs’ argument based on >Borello, assuming without deciding the
relevance of that case to wage claims.

The
plaintiffs in Martinez also argued
that “the right to exercise control
over the manner in which work is performed is sufficient to prove the existence
of an employment relationship, whether or not the right is exercised,” once
again relying on S.G. Borello. (Martinez,
supra, 49 Cal.4th at p. 76.) Once again, the Supreme Court assumed,
without deciding, that this rule applied in the wage and hour context, and then
concluded the argument had no merit on the facts. (Ibid.) We again reject Chevron’s contention that
this discussion has any bearing on the quantum of control required to establish
a joint or dual employment.

2.> The
Instruction Was Not Prejudicial.

Although
the instruction was erroneous, “there is no rule of automatic reversal or
‘inherent’ prejudice applicable to any category of civil
instructional error, whether of commission or omission. A judgment may not be reversed for
instructional error in a civil case ‘unless, after an examination of the entire
cause, including the evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice.’ [Citation.]”
(Soule v. General Motors Corp.
(1994) 8 Cal.4th 548, 580 (Soule);
see Cal. Const., art. VI, § 13.) The
instructional error is harmless if it is not reasonably probable appellant
would have obtained a more favorable result in its absence. (Soule,
supra, 8 Cal.4th at p. 570.)

“In
determining whether instructional error was prejudicial, a reviewing court
evaluates ‘ “(1) the state of the evidence, (2) the effect of other
instructions, (3) the effect of counsel’s arguments, and (4) any indications by
the jury itself that it was misled” ’ to determine whether it is ‘reasonably
probable’ that erroneous instructions misled the jury. [Citations.]
‘A “reasonable probability” in this context “does not mean more likely
than not, but merely a reasonable chance,
more than an abstract possibility.”
[Citations.]’ ” (>Bowman, supra, 186 Cal.App.4th at p. 304.)

a.> State
of the Evidence.

Here,
the evidence regarding the terms and conditions of appellant’s working
relationship with Chevron was largely undisputed. While appellant emphasized certain aspects of
the evidence, such as the amount of control over his work schedule exerted by
Blois and Boozer, the length of time he worked continuously at Chevron, and
that Chevron supplied instrumentalities for doing the job, Chevron emphasized
other aspects, such as the expertise required to do the job, the inability of
Blois and Boozer to control or direct the substance of appellant’s work because
they did not have the technical expertise, and the series of contracts and
budgets under which appellant was retained.


b.> Effect
of Other Instructions.

The
other instructions pertaining to the employment relationship between appellant
and Chevron state the parties’ basic contentions, and provide guidance on
making the determination whether appellant was Chevron’s employee or an
independent contractor. The jury was
instructed that “a primary factor” is “which party has the right to control the
manner and means of accomplishing the result desired. . . . [¶] Thereafter, even if you decide that
Chevron did or did not have the right of control, then you must consider all
the other secondary factors in deciding whether [appellant] was Chevron’s
employee or an independent contractor.”
The secondary factors the jury was advised to consider were: “1.
Whether there is a right to discharge at will, without cause. [¶] 2.
Whether or not the one performing services is engaged in a distinct
occupation or business. [¶] 3. Whether the work is usually done under the
direction of an employer or by a specialist without supervision. [¶] 4.
The skill required.
[¶] 5. Who supplies the
instrumentalities, tools, and place of work of the one performing
services. [¶] 6. The length of time for which the services are
to be performed. [¶] 7. The method of payment, whether by time or by
the job. [¶] 8. Whether or not the work is part of a regular
business of the beneficiary of the services.
[¶] 9. Whether or not the
parties believe they are creat[ing] a relationship of master and servant. [¶] The most important factor in whether
there is an employer/employee relationship is the right of control; however, no
single factor is dispositive and all should be considered together. If you decide that Chevron is the employer,
or one of the employers, then that would be a basis to determine the liability
of Chevron.”href="#_ftn6" name="_ftnref6"
title="">[6]

These
instructions made clear that the jury was to consider all of the enumerated factors:
the primary factor of control, all of the secondary factors, and all of
the factors together, in determining whether appellant and Chevron had an
employment relationship. This concept
was stated no fewer than five separate times:
(1) control is “one of the factors you may consider;” (2) the right of
control is “a primary factor;” (3) the right of control need not be exercised;
if it existed, then appellant “may or may [not] be an employee;” (4) whether or
not Chevron had the right of control, the jury then “must consider all the
other secondary factors;” and (5) “[t]he most important
factor . . . is the right of control; however, no single
factor is dispositive and all should be considered together.”

c.> Effect
of Counsels’ Argument.

In
lengthy closing arguments totaling nearly 100 pages of transcript, both sides
argued the right of control, among various other issues. Appellant’s counsel focused on the evidence
that Chevron had the right to control or exerted control over various aspects
of appellant’s work. Early in his
argument, counsel for Chevron stated that, in deciding whether appellant was an
independent contractor or an employee, the jury must first decide whether
“Chevron had the right to—and here are the magic words—completely control the
manner and means by which [appellant] performed his work, rather than just the
right to specify or request a desired result.
What that means is they had the right to go in to tell [appellant] this
is how you perform your research, this is how you perform your analysis, and
this is how you do your fix, the very details of the work
. . . .” Counsel argued
that “no one at Chevron ever had the right of control to tell [appellant] how
to perform the details of his work.”
Thereafter, Chevron’s counsel referred only to “control” and “the right
of control,” not “complete control,” in arguing that appellant was an
independent contractor and not an employee.


Based
on our reading of the transcript, it appears that the distinction Chevron
sought to draw with respect to control was between controlling how the actual
work of computer systems analysis, research, and repair was done, on the one
hand, and controlling supervisory tasks such as assigning the work, providing access
to secure systems, and establishing the work schedule, on the other. Chevron emphasized control of the >manner and means of performing the work
rather than the quantum of control over the work having to be >complete control. We find no reasonable probability that this
single reference to “complete control” adversely affected the result.

d. Any
Indications the Jury Was Misled.

Finally,
there is no indication that the jury was misled by the erroneous
instruction. Prior to closing arguments,
the court responded to a question from the jury. The jury asked, “ ‘Please explain why
you’re not seeking these damages from Value Added Consulting Group, Inc. along
with or instead of Chevron[.]’ ”
The stipulated answer was, “ ‘The plaintiff Moysey Vaynberg is
pursuing Value Added Consulting Group separately.’ ” This question reflects no confusion on the
part of the jury regarding the right of control factor. The jury asked no other questions before
rendering a verdict. By a vote that was
not close (10 to 2), the jury determined that appellant was not an employee of
Chevron during the relevant time period, and there were no inconsistencies in
the verdict that might suggest confusion.


Accordingly,
we find that there is no reasonable probability that, in the absence of the
error, appellant would have obtained a more favorable result. (Soule,
supra, 8 Cal.4th at p. 570.) Thus, we conclude that the href="http://www.mcmillanlaw.com/">instructional error was harmless. (Ibid.)

B. Exclusion of Evidence.

Appellant
also challenges the trial court’s exclusion of Chevron’s HR Policy 305,
entitled “Services of Former Employees” (HR Policy 305).

HR
Policy 305 provided, in part:
“Contracting directly with a former employee for professional services
is handled the same as with any other independent contractor. To maintain an independent contractor
relationship, the company cannot: [¶] [] directly supervise the
contractor. [¶] [] require
compliance with detailed instructions.
[¶] [] require prescribed working hours. [¶] [] use a contractor who is solely
dependent on the company for business.
[¶] [] impose any other working conditions that directly or
indirectly establish an employer-employee relationship.”

Appellant
sought to introduce into evidence two versions of this policy, one in effect
from October 2001 to September 2006, and the other in effect thereafter.

Chevron
moved in limine to exclude its internal human resources (HR) policies,
including HR Policy 305, on grounds of irrelevance and Evidence Code section
352. Chevron argued that the policies
would “mislead the jury as to the correct standard for evaluating Chevron’s
purported liability” because its “HR policies are stricter than what the law
provides and requires.” Appellant
opposed the motion, arguing that the jury would understand the difference
between instructions on the proper legal standard to apply when determining
liability and a company’s internal policies that “may or may not invoke
different standards.” The court ruled
that HR Policy 305 could be used by appellant only “for impeachment purposes if
needed.”

We
review a trial court’s decision to exclude evidence for abuse of
discretion. (Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 168; >San Lorenzo Valley Community Advocates for
Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139
Cal.App.4th 1356, 1419.)
“ ‘ “In the absence of a clear showing that its decision was
arbitrary or irrational, a trial court should be presumed to have acted to
achieve legitimate objectives and, accordingly, its discretionary
determinations ought not [to] be set aside on review.” [Citation.]’ ” (Ajaxo
Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 45.) Even where exclusion of the evidence was
erroneous, however, reversal is only proper when there is a reasonable
probability that a more favorable result would have been achieved absent the
error. (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th
1422, 1431-1432; see also Cal. Const., art. VI, § 13 [judgment will not be
reversed for improper exclusion of evidence absent the reviewing court’s
opinion that the error has resulted in a miscarriage of justice.].)

Appellant
contends HR Policy 305 was relevant to one of the secondary factors to be
considered in determining whether an employment relationship exists under the
common law, i.e., whether the parties believe they are creating the
relationship of employer-employee. (>Tieberg, supra, 2 Cal.3d at p. 949; S.G.
Borello, supra, 48 Cal.3d at p.
351.) Appellant argues that HR Policy
305 was evidence of what Chevron believed were the practices that had to be
avoided in order to maintain an independent contractor relationship and,
conversely, to avoid creating an employment relationship.

Further,
appellant contends he was prejudiced by the exclusion of the evidence because
Chevron elicited testimony from appellant that he considered himself an
independent contractor, not an employee, of Chevron. In addition, Boozer and Blois testified that they
considered appellant to be an independent contractor; they never considered him
an employee; and they never treated him as an employee. Chevron argued these points to the jury: “Not one witness testified in this case that
Mr. Vaynberg was an employee of Chevron at any time. [¶]
Indeed, even Mr. Vaynberg himself, the plaintiff in this case, testified
that he was not an employee of Chevron. . . . Mr. Vaynberg
admitted to you that at all times while working on assignment at the Chevron
facility he was a contractor of Chevron.”


Appellant’s
contentions are unpersuasive. First, the
policy on its face applies to “former employees,” and there is no evidence to
suggest that appellant fits this category.
If the policy was applied more broadly by Chevron, there is no evidence
to that effect. Second, although
appellant contends the policy is relevant to whether Chevron believed it was
creating an employee-employer relationship with appellant, there is no evidence
that any of the Chevron employees who were allegedly creating this relationship
had ever read the policy or were aware of it.
Third, under the trial court’s ruling, appellant was permitted to use
the policy for impeachment purposes, and appellant did in fact use the policy
with one witness. Presumably, he could
have attempted to impeach other witnesses with it as well. Finally, despite the ruling below, appellant
read the policy to the jury and published it during opening statements. No abuse of discretion has been shown.

IV. DISPOSITION

The
judgment is affirmed.





_________________________

Haerle,
Acting P.J.





We concur:





_________________________

Lambden, J.





_________________________

Richman, J.