Bacoka v. Best Buy Stores, L.P. ( 2021 )

Filed 10/29/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MILAN BACOKA, SR., et al., B306900
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC688588)
v.
BEST BUY STORES, L.P.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Yolanda Orozco, Judge. Affirmed.
Furtado Law and David J. Furtado for Plaintiffs and
Appellants.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Ernest
Slome; Prindle Goetz, Barnes & Reinholtz and R. Derek Classen
for Defendant and Respondent.
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Plaintiffs Milan and Bernardica Bacoka sued defendant
Best Buy Stores, L.P. for damage to their property caused by a
water leak from a negligently installed washing machine
purchased from and allegedly installed by Best Buy. Best Buy
moved for summary judgment on the ground that an independent
contractor installed the washing machine. The trial court
granted summary judgment in Best Buy’s favor. We affirm,
finding no material dispute that the washing machine was
installed by an independent contractor.
BACKGROUND
Plaintiffs sued Best Buy, alleging several theories of
negligence. The complaint alleged that plaintiffs own an
apartment complex in San Pedro, California, and that plaintiffs’
tenant purchased a Samsung washing machine from Best Buy.
The washing machine was negligently installed by Best Buy,
causing a water leak which resulted in significant damage to
plaintiffs’ property, rendering several units uninhabitable.
Plaintiffs’ theory of causation was that the hot water supply hose
was negligently threaded onto the machine, causing the leak.
Best Buy moved for summary judgment, arguing the
washing machine was installed by an independent contractor and
not by Best Buy, and that it was therefore not responsible for the
damage to plaintiffs’ property. Best Buy offered evidence that its
subsidiary, Best Buy Warehouse Logistics, Inc., had a contract
with Penn Ridge Transportation, Inc. (the Master Services
Agreement). Under that agreement, Penn Ridge “shall provide
services . . . as a duly licensed broker of property by the U.S.
Federal Motor Carrier Safety Administration . . . , not as a motor
carrier, and, as such, is engaged in the business of arranging for
transportation of Merchandise between points in the United
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States and other destinations for accounts, such as Best Buy,
utilizing the services of independent motor carriers to effectuate
the pick-up, delivery, and in-home installation of Merchandise
originating from or consigned to Best Buy or its Customers.”
Under the agreement, Penn Ridge is obligated to
subcontract with third party carriers to deliver and install Best
Buy merchandise. Carriers are defined under the Master
Services Agreement as “any independently owned and operated
motor carrier under contract with [Penn Ridge] who may also
provide Installation Services as part of its overall business.”
Under the agreement, Penn Ridge must require carriers to
“furnish, provide and maintain all vehicles, equipment, tools,
labor, and supervision necessary, required, or proper for the safe
and efficient performance of the obligations” under the
agreement.
The carriers’ trucks did not display the Best Buy name or
logo. The delivery teams did not wear any Best Buy branded
clothing. The equipment used by the carriers’ delivery teams
varied by carrier, as each carrier had its own best practices and
determined what equipment was necessary to carry out the
installations.
The agreement also requires Penn Ridge to “contract with
Carriers that are proficient in all aspects of Services including
but not limited to: (1) customer services skills; (2) conflict
management . . . ; (3) customer education . . . ; (4) illustrate the
work performed after the delivery has occurred; (5) offer to teach
the Customer how to use their appliance or TV (at no extra
charge); and, (6) ask the Customer if they have any questions or
concerns.”
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Penn Ridge found carriers by word of mouth, or by running
ads. Penn Ridge alone determined if the carriers were qualified
to provide necessary delivery and installation services, and
entered into contracts with those carriers. The contracts
provided that the carriers did not have an exclusive right to
perform subcontracted services for Penn Ridge, and that Penn
Ridge did not have an exclusive right to the carriers’ services.
The contracts further stated the carriers were providing services
as independent contractors, with full control over their personnel,
and the carriers were responsible for their own workers’
compensation and unemployment compensation.
Under the contract between Best Buy and Penn Ridge, Best
Buy “[f]or quality assurance purposes . . . will notify [Penn Ridge]
of its dissatisfaction with Carriers for any reason at any time
. . . .” If Best Buy provides notice of dissatisfaction, Penn Ridge
“will investigate the matter and take appropriate steps in
accordance with its agreement with the Carrier. Any such notice
given by Best Buy will not be construed . . . to be a direct or
indirect instruction to terminate or otherwise affect [Penn
Ridge’s] relationship with its own employees or Carrier.”
In this case, the washing machine was delivered by a
carrier, B3D Transportation, pursuant to its agreement with
Penn Ridge. The owner of B3D, David Santo Padilla, considered
himself an independent contractor. He trained his employees
how to make deliveries and installations, and neither Best Buy
nor Penn Ridge told him how to train his employees, or which
tools were required. Mr. Padilla knew which tools were required
based on his own trade experience.
In opposition to the motion for summary judgment,
plaintiffs argued certain provisions in Best Buy’s agreement with
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Penn Ridge show Best Buy has control over the delivery and
installation of appliances. 1 Plaintiffs offered evidence that while
Best Buy does not train carriers to install Best Buy products,
Best Buy occasionally audits carriers by “rid[ing] behind
installers as they are entering homes [to] watch the work and
report it back to [the] third-party to let them know it was done
correctly or incorrectly.” Best Buy also requires on-time delivery,
and that installation is done correctly the first time. Best Buy
gave Penn Ridge access to its routing system so that Penn Ridge
could route drivers to effectuate deliveries. The agreement
provides that Penn Ridge shall require all contracted carriers to
comply “with all policies and procedures promulgated by Best
Buy including, without limitation, safety procedures, Best Buy’s
Vendor Privacy and Security Policy and its policy regarding gifts
and gratuities . . . .”
The agreement also required Penn Ridge to keep a field
management team to facilitate the carriers’ compliance “with
applicable standards that have been reviewed/approved by Best
Buy.” Penn Ridge was also to require its carriers to “provide real
time data entry in Best Buy’s systems in the normal process of
completing” service orders, that they be available to provide
services Monday through Saturday, and that they complete all
1 We note that plaintiffs’ responsive separate statement in
opposition to Best Buy’s summary judgment motion makes no
mention, whatsoever, of these provisions of the agreement, and it
does not appear the trial court considered these provisions when
making its ruling. Opposition separate statements must cite to
facts and evidence for the evidence to be considered by the court.
(Madden v. Del Taco, Inc. (2007) 150 Cal.App.4th 294, 300.)
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services before 7:00 p.m. Penn Ridge was required to contact
Best Buy for “additional instructions” for delivery problems, such
as the customer not being home. Penn Ridge’s contracts with
carriers are required to provide that delivery teams wait at least
15 minutes for a customer to arrive home, and that they contact a
Best Buy representative if the customer did not arrive within the
15-minute window to receive a release code documenting that
services could not be completed.
The trial court granted the motion, finding there was no
material dispute that B3D was an independent contractor.
Judgment was entered on July 22, 2020, and this timely appeal
followed.
DISCUSSION
1. 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 (Aguilar).)
“Once the [movant] has met that burden, the burden shifts to the
[other party] to show that a triable issue of one or more material
facts exists as to [that] cause of action . . . .” (Code Civ. Proc.,
§ 437c, subd. (p)(2); Aguilar, at p. 850.) The party opposing
summary judgment “shall not rely upon the allegations or denials
of its pleadings to show that a triable issue of material fact exists
but, instead, shall set forth the specific facts showing that a
triable issue of material fact exists . . . .” (§ 437c, subd. (p)(2).)
A triable issue of material fact exists where “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, at p. 850.)
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Our Supreme Court has made clear that the purpose of the
1992 and 1993 amendments to the summary judgment statute
was “ ‘to liberalize the granting of [summary judgment]
motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 542; Aguilar, supra, 25 Cal.4th at p. 854.) It is no longer
called a “disfavored” remedy. (Perry, at p. 542.) “Summary
judgment is now seen as a ‘particularly suitable means to test the
sufficiency’ of the plaintiff’s or defendant’s case.” (Ibid.) On
appeal, “we take the facts from the record that was before the
trial court . . . . ‘ “We review the trial court’s decision de novo,
considering all the evidence set forth in the moving and opposing
papers except that to which objections were made and
sustained.” ’ ” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th
1028, 1037, citation omitted.)
2. Independent Contractor or Employee
Under the doctrine of respondeat superior, an “employer
may be [vicariously] liable for the torts its employee commits
while acting within the scope of . . . employment.” (Yamaguchi v.
Harnsmut (2003) 106 Cal.App.4th 472, 481.) “ ‘Employee[s]’
include most persons ‘in the service of an employer under any . . .
contract of hire’ . . . , but do not include independent contractors.”
(S. G. Borello & Sons, Inc. v. Dept. of Indus. Rel. (1989) 48 Cal.3d
341, 349 (Borello).)
“The principal test of an employment relationship is
whether the person to whom service is rendered has the right to
control the manner and means of accomplishing the result
desired.” (Tieberg v. Unemployment Insurance Appeals Board
(1970) 2 Cal.3d 943, 946; see also Borello, supra, 48 Cal.3d at
p. 350.) However, no rigid test governs whether someone is an
employee. (Arzate v. Bridge Terminal Transport, Inc. (2011)
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192 Cal.App.4th 419, 426.) “[W]hile the right to control work
details ‘is the “most important” or “most significant”
consideration, the authorities also endorse several “secondary”
indicia of the nature of a service relationship.’ ” (Id. at p. 426.)
For example, “ ‘the right to discharge at will, without
cause,’ ” is “ ‘[s]trong evidence in support of an employment
relationship.’ ” (Borello, supra, 48 Cal.3d at p. 350.) Additional
factors include: “(a) whether 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 worker 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 a part of the regular
business of the principal; and (h) whether or not the parties
believe they are creating the relationship of employer-employee.”
(Id. at p. 351.)
When applying the control test, what matters “is not how
much control a hirer exercises, but how much control the hirer
retains the right to exercise.” (Ayala v. Antelope Valley
Newspapers, Inc. (2014) 59 Cal.4th 522, 533, italics omitted.)
When the parties have a written agreement, “[s]elf-evidently,
‘[s]uch agreements are a significant factor for consideration’ in
assessing a hirer’s right to control a hiree’s work.” (Id. at p. 534.)
The contract defines the legal parameters of the parties’
relationship, and “what matters is whether a hirer has the ‘legal
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right to control the [hiree’s] activities.’ ” (Ayala, at p. 535, italics
omitted.)
Nevertheless, “ ‘[t]he owner may retain a broad general
power of supervision and control as to the results of the work so
as to insure satisfactory performance of the independent
contract—including the right to inspect [citation], . . . the right to
make suggestions or recommendations as to details of the work
[citation], the right to prescribe alterations or deviations in the
work [citation]—without changing the relationship from that of
owner and independent contractor . . . .’ [Citation.]” (Beaumont-
Jacques v. Farmers Group, Inc. (2013) 217 Cal.App.4th 1138,
1143.)
“The determination of employee or independent-contractor
status is one of fact if dependent upon the resolution of disputed
evidence or inferences.” (Borello, supra, 48 Cal.3d at p. 349.) The
question is one of law if the evidence is undisputed. (Ibid.)
Here, the undisputed evidence established the washing
machine was installed by an independent contractor, and not
Best Buy’s employees. Best Buy contracted with Penn Ridge to
serve as a broker of transportation services from third party,
independent carriers, who were to supply their own employees,
trucks, and tools. Penn Ridge alone determined whether the
carriers were qualified to provide the contracted services.
Carriers were not trained by Best Buy or told how to perform
their services. Best Buy had no power to terminate carriers or
even to recommend that Penn Ridge terminate a carrier; that
was solely Penn Ridge’s decision.
Penn Ridge’s contract with Best Buy, and its contracts with
carriers, provided the carriers were independent contractors.
Carriers had no contract relationship with Best Buy. The
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carriers’ contracts with Penn Ridge were not exclusive; the
contracts specified the carriers were free to contract their services
with companies other than Penn Ridge.
Although Best Buy retained some right to control aspects of
the delivery and routing, that does not create a material dispute
as to exercise of control over the manner and means by which the
washers are installed. Best Buy’s control was to ensure the
satisfactory performance of services and did not change the
nature of the relationship of the carriers from independent
contractors of Penn Ridge to employees of Best Buy.
3. Requests for Judicial Notice
Plaintiffs have filed two requests for judicial notice.
Plaintiffs’ first request asks us to take notice of a federal district
court order granting preliminary approval of a settlement of a
class action lawsuit against Penn Ridge and Best Buy, where the
class alleged that delivery drivers were misclassified as
independent contractors. Plaintiffs’ counsel declared he
discussed the existence of the order granting the settlement
motion at the summary judgment hearing, but that there was no
reporter present at the hearing. There is no indication from the
court’s ruling that it considered these matters. The district court
ruling is irrelevant to these proceedings.
Plaintiffs’ second request for judicial notice asks us to
notice a federal complaint in intervention filed by plaintiffs’
insurer against Best Buy, which was assigned to plaintiffs before
judgment was entered in this case. In the complaint, the insurer
sought to recover from Best Buy sums paid under the plaintiffs’
insurance policy related to the water leak. There is no indication
the trial court considered or was asked to consider the pendency
of these claims. This pleading is also irrelevant.
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Accordingly, the requests for judicial notice are denied.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs
on appeal.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
OHTA, J. *
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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