Estrada v. Scars of the Mind Picture Co. CA2/1 ( 2022 )

Filed 8/31/22 Estrada v. Scars of the Mind Picture Co. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
MICHAEL ESTRADA et al., B314136
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 18STCV06219)
v.
SCARS OF THE MIND PICTURE
COMPANY, LLC et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daniel S. Murphy, Judge. Affirmed.
Harris & Ruble, Alan Harris and Lin Zhan for Plaintiffs
and Appellants.
Lyden Law Corporation and Christine Lyden for
Defendants and Respondents.
________________________
Appellants Michael Estrada, James Stout, and Patricia
Stout (collectively, appellants) are active or retired Los Angeles
Police Department (LAPD) officers who worked as traffic control
officers at an on-location film shoot that occurred over three days
in Elysian Park, Los Angeles. Appellants were paid directly by
respondent Scars of the Mind Picture Company, LLC (Scars of
the Mind). Each appellant’s check was returned unpaid because
of insufficient funds. Once she was informed of the bounced
checks, Leslie Bates, an individual respondent and a producer of
the film, wrote checks from her personal account to each
appellant, in an amount equal to the compensation owed as well
as bank charges incurred by each officer. Nonetheless, the three
officers retained counsel and filed suit to recover various
remedies afforded to employees under the Labor Code, as well as
attorney’s fees. Respondents Scars of the Mind, Bates and Vince
Lozano contended that these statutory remedies were
inapplicable because the officers were independent contractors
rather than employees.
Following a two-day bench trial, the court entered
judgment in favor of respondents, finding that the officers were
independent contractors rather than employees, and that the
statutes under which they sought relief were inapplicable to
independent contractors.
As discussed in more detail below, we affirm the judgment
on the ground that the court’s finding that appellants were
independent contractors is supported by substantial evidence.
Our review of the court’s findings is limited to whether
substantial evidence exists; as it does, we are not concerned with
the manner in which the trial court resolved conflicts in the
2
evidence, with the weight he gave to individual witnesses or
exhibits, or to his determinations of the credibility of any witness.
FACTUAL AND PROCEDURAL BACKGROUND
Scars of the Mind1 is a motion picture production company
specializing in low-budget independent films. In the spring of
2018, it was engaged in filming a theatrical motion picture titled
“Acts of Desperation.”2 Filming took place at various locations
within the “30-mile” zone centered in Hollywood, including
Elysian Park in Los Angeles. Not until Scars of the Mind applied
for a permit to film in Elysian Park did it learn that the
conditions of the permit for each day’s shooting included the
presence of at least two police officers for traffic control. Bates
sent an email to Eddie Esparza, principal of Pacific Production
Services (PPS), inquiring about the availability of police officers
to work at the filming location. Bates had no prior experience
1 Lozano, a principal of Scars of the Mind, and Bates, a
producer of “Acts of Desperation,” are also named defendants and
respondents. For simplicity of reference, we refer to respondents
collectively as “Scars of the Mind.”
2 Our factual and procedural background is derived in part
from undisputed aspects of the trial court’s statement of decision
and the parties’ filings. (See Baxter v. State Teachers’ Retirement
System (2017) 18 Cal.App.5th 340, 349, fn. 2 [utilizing the
summary of facts provided in the trial court’s ruling]; Artal v.
Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 [“ ‘briefs and
argument . . . are reliable indications of a party’s position on the
facts as well as the law, and a reviewing court may make use of
statements therein as admissions against the party’ ”].) In the
Appealability and Standard of Review section, post, we note that
the trial court’s orders are presumed correct.
3
with Esparza or his firm, but learned of it from a reference on the
website of FilmLA, the film permitting authority for Los Angeles.
Esparza responded that police officers were available. Thus, on
the first day of shooting in Elysian Park, retired LAPD officer
Elvira Gutierrez and Estrada presented themselves to the
production staff at the Elysian Park location. Gutierrez had
worked “hundreds” of film jobs, while Estrada was doing so for
the first time. They learned of the job, where to go and when to
start from Esparza, not from anyone at Scars of the Mind.
Gutierrez testified that, based on her experience, she was
“uneasy” about the production and found Bates to be
“unprofessional.” In fact, on her first day on location Gutierrez
refused to allow filming to begin until she received confirmation
that Scars of the Mind had actually paid the fee for its filming
permit. At the end of the day, at the request of Scars of the
Mind, Estrada filled out a W-9 form. Gutierrez prepared a
handwritten invoice for herself and Estrada, taking care to
include not only each officer’s daily compensation but also an
additional 15 percent in order to offset the self-employment tax
she and Estrada would incur and a $75 “kit box rental” fee to
each officer for furnishing his or her uniform, gun and
motorcycle. Gutierrez and Estrada returned for the third and
final day of filming at Elysian Park, again as instructed by
Esparza of PPS.3
On the second day of shooting, James and Patricia Stout
were sent by PPS to work at the Elysian Park location. James
3 Gutierrez took her checks to the bank immediately
following the last day of filming. Her checks were paid by the
bank, and she is not a party to this action.
4
Stout is a retired motor patrol officer who testified that he has
worked on hundreds of film and television jobs since 2015. His
wife, Patricia, was at the time an active-duty motor patrol officer
with less motion picture experience than her husband. Like
Gutierrez and Estrada, the Stouts completed W-9 forms as
individuals/sole proprietors, and each demanded and received an
additional 15 percent of their daily compensation as
reimbursement for anticipated self-employment taxes along with
the $75 kit box rental fee.
The problems that gave rise to this action arose after
filming ended at Elysian Park, when banks began to return
appellants’ checks for insufficient funds. The first that Scars of
the Mind learned of this was when James Stout sent a text
message informing Bates that his check had bounced following
several attempts to deposit it. Bates responded promptly,
expressed her regrets, and assured Stout that the matter would
be resolved. Ultimately, Bates wrote a check from her personal
funds in an amount that covered both James Stout’s agreed-upon
compensation plus the fees his bank charged him for attempting
to deposit his check from Scars of the Mind. The same happened
to the other appellants, Patricia Stout and Estrada. Both were
paid from Bates’s personal funds, in full, plus assessed bank
charges.4
All three appellants testified that they felt they had
received what was owed from Scars of the Mind. Nonetheless,
4 In fact, Bates went much further. In an attempt to
forestall the pending lawsuit, Bates issued W-2 forms to the
police officers who worked on “Acts of Desperation” and, through
Scars of the Mind, paid their taxes even though she had already
paid them an additional 15 percent for self-employment tax.
5
they later retained counsel and filed suit to recover statutory
remedies and penalties available to employees. Their claims
included a demand for 30 days’ wages for each of the three
officers, pursuant to Labor Code section 203; a similar demand
for paying wages with a bad check, pursuant to Labor Code
section 203.1; failure to pay minimum wage and overtime under
Labor Code sections 510 and 1194; failure to provide pay stubs in
violation of Labor Code section 226, subdivision (a); failure to
provide employment records in violation of Labor Code sections
226, subdivision (b), and 1198.5; for restitution under Business
and Professions Code section 17200, and for civil penalties under
the Private Attorneys General Act (Lab. Code, § 2698 et seq.).
Appellants moved for summary adjudication of their
statutory claims, asserting that there was no triable issue of fact
as to whether they were employees of Scars of the Mind. The
trial court denied the motion, and the case proceeded to a bench
trial. The parties stipulated to a number of foundational facts,
including the days on which each appellant worked and the fact
that appellants’ checks were returned for insufficient funds. All
four officers who had worked on “Acts of Desperation” testified, as
did Bates and Lozano, Richard Friedman, the film’s director, and
the appellants’ expert witnesses. After the matter was
submitted, the trial court issued its tentative decision in favor of
Scars of the Mind, finding that Estrada, James Stout and
Patricia Stout were independent contractors and therefore not
entitled to the remedies provided in the statutes that formed the
basis of their claims for relief.
Appellants filed timely objections to the proposed
statement of decision. Rather than identify “omissions” or
“ambiguities” in the proposed decision, appellants’ objections
6
argued the weight that the court should have afforded specific
testimony or exhibits in order to reach the conclusion that the
officers were employees of Scars of the Mind. Appellants also
proposed additional findings for the court, consisting of requests
to find in the officers’ favor on each of their statutory claims
under the Labor Code, in specific amounts. With minor changes,
the trial court filed its final statement of decision and entered
judgment in favor of Scars of the Mind and against all three
police officers. Appellants filed a timely notice of appeal from the
judgment.
APPEALABILITY AND STANDARD OF REVIEW
This is an appeal from a final judgment; we have
jurisdiction pursuant to Code of Civil Procedure section 904.1,
subdivision (a)(1).5
“The question of what legal standard or test applies in
determining whether a worker is an employee or, instead, an
independent contractor” is a question of law. (Dynamex
Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, 942,
fn. 16 (Dynamex).) “When the trial court applies the proper legal
standard, ‘[t]he determination of employee or independent-
contractor status is one of fact if dependent upon the resolution of
disputed evidence or inferences.’ [Citation.] The decision will be
upheld if the court’s factual findings are supported by substantial
evidence.” (Becerra v. The McClatchy Co. (2021) 69 Cal.App.5th
5 Notwithstanding the clear requirement in rule
8.124(b)(1)(A) of the California Rules of Court, appellants failed
to include a copy of the judgment in their appendix in lieu of a
clerk’s transcript. Respondents cured the omission by including
the judgment in their respondents’ appendix.
7
913, 946-947, quoting S.G. Borrello & Sons, Inc. v. Department of
Industrial Relations (1989) 48 Cal.3d 341, 349 (Borrello); accord,
Vendor Surveillance Corp. v. Henning (2021) 62 Cal.App.5th 59,
75.) “As a result, appellate case law in this area arises primarily
in the context of substantial evidence review of the
determinations of the relevant fact finder.” (Cristler v. Express
Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 78.)
At trial, both sides agreed that the ABC test adopted in
Dynamex and subsequently codified at Labor Code section 2775,
subdivision (b)(1) is the applicable legal test, and this is the legal
standard that the trial court applied. Appellants’ objections to
the trial court’s proposed statement of decision identified no
errors of law, and their opening brief on this appeal does not urge
the adoption of some standard other than the ABC test.
We recognize that some cases decided after Dynamex have
held that the ABC test does not apply to non-wage claims. (See,
e.g., Vendor Surveillance Corp. v. Henning, supra, 62 Cal.App.5th
at p. 69; Garcia v. Border Transportation Group, LLC (2018) 28
Cal.App.5th 558.) While the new Labor Code provisions codifying
the ABC test make clear that it applies to all cases arising under
Labor Code section 2775, subdivision (b)(1), the new statutes
expressly apply only “to work performed on or after January 1,
2020” (Lab. Code, § 2785, subd. (c)), making those statutes
inapplicable to appellants’ claims or Scars of the Mind’s
affirmative defenses. Further, we note that when it denied
appellants’ motion for summary adjudication of three causes of
action asserted in the complaint, the trial court specifically noted
that the ABC test was controlling only as to the claims for unpaid
wages and for failure to furnish pay stubs, while the claim under
8
Labor Code section 203.1 for paying wages with a bad check was
governed by the so-called common-law test under Borrello.
Appellants do not question the applicability of the ABC test
as the legal standard to be used to evaluate all of their claims for
relief. Likewise, nowhere in their objections to the trial court’s
proposed statement of decision did appellants take issue with the
court’s application of the ABC test to resolve the employee versus
independent contractor issue for all of appellants’ claims.6
Accordingly, we deem any such objection to be waived by
appellants, and we will review the trial court’s findings of fact
using the ABC test. Consequently, this appeal hinges on whether
the trial court’s findings of fact regarding the three ABC factors
were supported by substantial evidence.
An appellant seeking to reverse findings of fact on disputed
evidence faces a “ ‘daunting burden.’ ” (Whiteley v. Philip Morris,
Inc. (2004) 117 Cal.App.4th 635, 678.) “ ‘ “We have no power to
judge of the effect or value of the evidence, to weigh the evidence,
to consider the credibility of the witnesses, or to resolve conflicts
in the evidence or in the reasonable inferences that may be
drawn therefrom.” [Citations.]’ [Citation.] When, as here, ‘the
evidence gives rise to conflicting reasonable inferences, one of
6 In so doing, we emphasize that we do not believe that our
review would lead to a different result had we applied the
substantial evidence test using a different legal standard. As
Dynamex makes clear, the ABC test is intended to be broader and
more protective of employees than was the common-law test
under Borrello; thus, we believe that if appellants are
independent contractors under the test most protective of
employees, there is no possibility that they have been prejudiced
in the event that some of appellants’ causes of action should have
been analyzed under the common-law rather than the ABC test.
9
which supports the findings of the trial court, the trial court’s
finding is conclusive on appeal. [Citations.]’ [Citation.]”
(Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th
613, 622-623.) Our power “begins and ends with the
determination as to whether, on the entire record, there is
substantial evidence, contradicted or uncontradicted, which will
support the determination, and when two or more inferences can
reasonably be deduced from the facts, a reviewing court is
without power to substitute its deductions for those of the trial
court.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874,
italics omitted.) “If this ‘substantial’ evidence is present, no
matter how slight it may appear in comparison with the
contradictory evidence, the judgment must be upheld. As a
general rule, therefore, we will look only at the evidence and
reasonable inferences supporting the successful party, and
disregard the contrary showing.” (Howard v. Owens Corning
(1999) 72 Cal.App.4th 621, 631.)
DISCUSSION
A. The Adequacy of the Statement of Decision
A statement of decision under Code of Civil Procedure
section 632 et seq. serves two purposes. First, it provides the
reviewing court a roadmap as to the trial court’s legal reasoning
and findings of fact. Second, in the absence of a valid objection, it
supports the presumption that the trial court impliedly found all
facts needed to support the judgment. Appellants argue that we
cannot presume the validity of the judgment, nor the sufficiency
of the evidence supporting the trial court’s findings of fact, on the
ground that the statement of decision is insufficient because it
contains no findings as of the terms of any contract between
Scars of the Mind and appellants. We reject this argument for
10
two reasons. First, and most important, although appellants
filed 31 pages of objections to the trial court’s proposed statement
of decision, nowhere do they bring this alleged omission to the
court’s attention. Thus, the objection has not been preserved for
appeal. (Code Civ. Proc., § 634; 7 Witkin, Cal. Procedure (6th ed.
2021) Trial, § 394, p. 346; see also Ermoian v. Desert Hospital
(2007) 152 Cal.App.4th 475, 494-495; Fladeboe v. American Isuzu
Motors, Inc. (2007) 150 Cal.App.4th 42, 58.) Second, we cannot
regard this alleged omission as essential to the judgment in favor
of Scars of the Mind. In order to prevail at trial, Scars of the
Mind needed to establish that appellants were not its employees.
None of the elements of the ABC test (or of the common-law test,
for that matter) requires the hiring entity to prove the terms of a
contract in order to rebut the presumption that a worker is an
employee.7 Indeed, in many instances where an independent
contractor performs services, we would expect there not to be a
formal contract. For example, a plumber or electrician typically
presents a homeowner an invoice at the conclusion of a job, much
as Gutierrez and Estrada presented an invoice at the end of the
first day of shooting. Like the hypothetical plumber or
electrician, appellants can hardly point to the absence of a formal
contract as dispositive evidence that they were employees.
Finally, Code of Civil Procedure section 634 cannot be
invoked to undermine the presumptions in favor of the validity of
the lower court’s judgment unless the objection to the statement
7 The evidence sufficiently established all of the elements of
a common count for services rendered, and each appellant
admitted that he or she was ultimately fully compensated for
services performed, for kit box rental, for estimated employment
taxes, and for bank fees incurred.
11
of decision has substance. “[Code of Civil Procedure section 634]
applies only when there is an omission or ambiguity in the trial
court’s decision, not when the party . . . claims the trial court’s
findings are irrelevant or unsupported by evidence.” (Duarte
Nursery, Inc. v. California Grape Rootstock Improvement Com.
(2015) 239 Cal.App.4th 1000, 1012.) In this case, appellants’
objections consisted almost entirely of arguments that the court
gave insufficient weight to their evidence, or that the court
should have drawn different conclusions than the ones it reached.
Such objections are of no effect. “A party cannot be prevented
from using the request as a way of arguing with the court rather
than clarifying the grounds of its decision. But neither should a
party who makes that choice be entitled to rely on the resulting
document to insulate the judgment from the presumption of
correctness.” (Yield Dynamics, Inc. v. TEA Systems Corp. (2007)
154 Cal.App.4th 547, 559 [objections to statement of intended
decision, in the form of argument, do not preserve issues for
appellate review or rebut presumption of validity of trial court’s
decision].)8
8 Objections in this form also waste a good deal of the
reviewing court’s time. To give just one example, appellants
contended the testimony was “undisputed” that walkie-talkies
furnished by Scars of the Mind “were used by [respondents] to
give instructions to [appellants] to lock down traffic.” In fact, the
testimony was far from undisputed: Bates, the producer of “Acts
of Desperation,” testified that the respondents did not instruct
the police officers when to stop traffic, and that rather than use
the walkie-talkies the police officers yelled when they were
stopping traffic so that even crew members without walkie-
talkies would be aware. It is the sole province of the trial court to
12
We have independently reviewed the statement of decision.
It is incomplete in one respect—it fails to address each of the
causes of action asserted by appellants; instead, it only makes
specific references to the causes of action arising under Labor
Code sections 203, 203.1, and 226, subdivision (a). Appellants did
request that the trial court make specific findings in their favor
on all of their causes of action. However, appellants do not
address this issue in the brief, and have thus waived any
argument arising from the failure of the statement of decision to
specifically address all of their causes of action. (See In re
Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.) The
omission also is harmless because each claim affords relief only to
an employee rather than an independent contractor. The trial
court’s conclusion that appellants are independent contractors
means that Scars of the Mind must prevail on all claims against
it.
B. Substantial Evidence Supports the Trial Court’s
Findings that Appellants Were Independent
Contractors, Not Employees
1. Prong A: Scars of the Mind Did Not Control
Appellants
The first of the Dynamex factors is whether the hiring
entity—in this case, Scars of the Mind—had the right to control
how appellants performed their duties as traffic control officers.
The trial court found that it did not, citing evidence that
appellants were required to be on site as a condition of the
location filming permit and that they relied on LAPD training
resolve disputes in testimony and to determine the weight to
afford that testimony.
13
rather than on any directions from Scars of the Mind.
Specifically, the court found that “[c]oncerning traffic control,
[appellants] followed the LAPD [m]anual, and [appellants]
advised [respondents] when traffic was stopped. [Appellants]
decided when to stop traffic and for how long traffic would be
stopped. [Appellants] decided if [respondents] would be allowed
to film and if [respondents] were complying with the City of Los
Angeles’ permit.” The trial court’s determinations that Scars of
the Mind did not control appellants and lacked the right to do so
are supported by substantial evidence.
The terms of the film permits introduced in evidence are
particularly instructive. The Elysian Park film shoot required
permits from the City of Los Angeles and from Caltrans, as well
as a “monitor” from the Los Angeles Department of Recreation
and Parks. The Los Angeles filming permit allowed
“Intermittent traffic control—2 minutes standard.” The filming
permit from the California Film Commission allowed “ROLLING
BREAKS/ITC [Intermittent traffic control] ALLOWED PER
DISCRETION OF CHP/LAW ENFORCEMENT OFFICER IN
CHARGE AT SCENE.” Both permits, then, left Scars of the
Mind no discretion as to how traffic control was to be
accomplished, and made it clear that traffic control were in the
hands of the law enforcement officers on scene—that is to say, on
appellants. Even more illuminating is the work permit that each
appellant was required to have in order to work while off-duty.
Paragraph 11 of the “Rules and Regulations” accompanying the
work permit application reads as follows, in part: “Upon
reporting to a work site, officers shall review and ensure
compliance with the conditions of the filming permit. Officers
shall ensure compliance with arrival and departure times, and
14
authorized filming locations issued by the FilmLA Inc. Officers
shall not allow any activity or conduct that is in violation of local
and state law, nor allow any filming condition that is not
authorized by the permit.” The officers took this seriously:
Gutierrez would not permit filming on the morning of April 7,
until she received confirmation that Scars of the Mind had paid
the permit fee. Paragraph 13 of the same “Rules and
Regulations” directs officers to be familiar with, inter alia, Los
Angeles Municipal Code section 80.03 governing traffic control,9
and states that officers “shall adhere to those rules and
regulations.” Only current or former motor patrol officers, or
retired motor patrol officers who left the force in good standing,
are permitted to work as traffic control officers at filming sites.
We have quoted these provisions at length because they
provide ample support for the trial court’s conclusion that Scars
of the Mind was subordinate to the discretion of appellants and
Gutierrez when it came to traffic control during the shoot at
Elysian Park. The provisions of the permits matched actual
practice on the set: according to Bates, it was the officers who
instructed the film crew when traffic would stop and resume, not
the other way around. The officers were “very experienced” at
traffic control on the set, and they were “in charge” on all three
9 Section 80.03 of the Los Angeles Municipal Code provides
in pertinent part that “No person other than a Police Officer, a
person deputized by the Chief of Police, a Traffic Officer, or an off
duty or retired police officer authorized under the provisions of
Section 80.03.1 shall direct or attempt to direct traffic . . . .”
Section 80.03.1 provides for the work permits, used by appellants,
authorizing off-duty and retired officers to control traffic at
commercial filming sites.
15
days of filming. Bates observed no one from the film crew
instructing the officers on how to perform traffic control. The
officers’ testimony was in accord: James Stout, for example,
testified that no one from Scars of the Mind instructed him on
how to control traffic at Elysian Park, and that he relied on his
LAPD training to do so. Gutierrez testified that she held traffic
pursuant to the terms of the filming permit, which limited traffic
breaks to two minutes at a time. Estrada testified that he
followed the lead of Gutierrez, and Patricia Stout testified that
she took direction from her husband. The evidence shows that,
while the times when traffic breaks were required was
determined by the pace of filming, the decision whether to
implement a traffic break and the length of time when traffic
could be stopped was controlled by the officers on set rather than
by Scars of the Mind.
Appellants insist that the trial court failed to give
appropriate weight to the fact that Scars of the Mind provided
walkie-talkies to the traffic officers to aid in communicating with
the film crew. The trial court likened this to a homeowner
allowing a gardener, roofer or pool cleaner the use of a rake,
ladder or skimmer. We agree. A walkie-talkie was potentially a
useful piece of equipment but was not essential for the police
officers to control traffic. In fact, Bates testified that there was
no provision for walkie-talkies in the film budget because the
crew and set were both small. She further testified that the
officers communicated by yelling, rather than use the walkie-
talkies, so that everyone on the set, regardless of whether he had
a walkie-talkie, knew when traffic was being stopped or allowed
to resume. For the sake of efficiency, and to ensure that filming
could be completed within the time permitted, Scars of the Mind
16
distributed walkie-talkies that helped appellants and film crew
alike do their jobs. The issue before the trial court was the right
of control, and the court correctly concluded that furnishing a
walkie-talkie to a police officer did not undermine that officer’s
sole discretion as to the means and duration of controlling traffic
at the filming site. The trial court’s conclusion that prong A of
the ABC test was met by evidence that appellants were free from
the control and direction of respondents, is supported by
substantial evidence.
2. Prong B: Appellants Were in a Different Business
than Scars of the Mind
The second factor under Dynamex looks to whether the
putative employees were in the same business as the hiring
entity, or if they performed a different type of service. The intent
of this factor is to protect “individuals whose services are
provided within the usual course of the business of the entity for
which [services are] performed and thus who would ordinarily be
viewed by others as working in the hiring entity’s business and
not as working, instead, in the worker’s own independent
business.” (Dynamex, supra, 4 Cal.5th at p. 959.)
Application of this prong is straightforward in this case:
appellants are retired or active-duty police officers, while Scars of
the Mind is a film production company. The trial court found
that appellants are in a different business than Scars of the
Mind, and that finding is supported by substantial evidence. In
explicating, this factor, the Dynamex court contrasted a plumber
hired by a retail store with a cake decorator servicing a bakery
for custom cakes. (Dynamex, supra, 4 Cal.5th at pp. 959-960.)
The trial court suggested another, equally apt analogy after
hearing the evidence in this case: “a lifeguard for a country club
17
would likely be considered an employee when the country club’s
pool is open seven days a week. However, a lifeguard would
likely be considered an independent contractor if lifeguard was
retained for a one[-]day house party.”
Appellants devoted substantial effort at trial attempting to
establish a “standard practice” in the motion picture industry
that police officers were treated as employees rather than
independent contractors. The trial court found no such practice,
and evidence on the point, which at best for appellants was
conflicting, does not warrant a finding that the trial court’s
conclusion is unsupported by substantial evidence.
Witnesses from Scars of the Mind testified that no such
standard practice existed, at least as to small independent
production companies. Appellants’ own expert witness, Jon
Katzman, testified that police officers are occasionally treated as
independent contractors, and that employment status varied
depending on if the person was working for several days as
opposed to a day or so. Appellants testified that they were almost
always treated as employees, but that exceptions did occur.
Finally, the trial court admitted, over appellants’ objection,
evidence that payment for police officers was included in the cost
of their filming permits in both Glendale and Burbank with
compensation in both cases paid directly to those cities rather
than to the individual officers.
Appellants also assert that the trial court committed legal
error when it focused its analysis on the specific evidence
pertaining to Scars of the Mind, a small production company
which “may never use police or very infrequently use police” and
accorded less weight to the experience of some appellants with
“large production [companies]” which “need security and traffic
18
control every day [and] may decide [to] hire security and traffic
control as employees.” We see no error.
Appellants’ evidence fell well short of proving an industry
standard that police officers are paid as employees, and they
failed to prove that the actual services performed by appellants
were within the usual course of business of a motion picture
producer. Scars of the Mind is not in the business of traffic
control, and the terms of its permit to film at Elysian Park
forbade it from being in that business. Evidence that some
(perhaps even most) large production companies choose to pay
police officers as part-time employees, rather than independent
contractors, is not enough to compel the conclusion that, on all
film shoots, the police officers’ services “are provided within the
usual course of the hiring entity’s business.” (Dynamex, supra, 4
Cal.5th at p. 960.) In the present case, the issue is whether the
off-duty or retired police officers who worked for Scars of the
Mind for one or two days, all of whom were in uniform and
performing duties typically associated with police officers, “would
ordinarily be viewed by others as working in the [film company’s]
business.” (Id. at p. 959.) The trial court’s conclusion that they
would not be so viewed is supported by the evidence and not
infected with any legal error.
We also find unpersuasive the contention that treating
appellants as employees is necessary “to create a level playing
field among competing businesses in the same industry in order
to prevent the type of ‘race to the bottom’ that occurs when
businesses implement new structures or policies that result in
substandard wages and unhealthy conditions for workers.”
(Dynamex, supra, 4 Cal.5th at p. 960.) Apart from the fact that
this statement from Dynamex is at most contextual commentary
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on the rationale for industry-wide wage orders, to which the court
was analogizing in its ruling (ibid.), the concept has no
application here. On the record before us, the film producer had
no opportunity to select among available police officers; instead,
the producer dealt with one or more intermediaries who assigned
officers from a roster maintained by that intermediary. Scars of
the Mind did not negotiate the officers’ compensation; instead,
Estrada testified that compensation was based on a schedule or
“cheat sheet” maintained by the LAPD film unit, the organization
that administers work permits for off-duty and retired police
officers who wish to do film work.10 Even the $75 kit box rental
fee charged by appellants originated with the police officers’
union. In short, the labor market for police officers working film
shoots in Los Angeles, particularly for a small film company like
Scars of the Mind, was shown to be one in which the hiring entity
had no discernable market power.
It cannot credibly be contended that Scars of the Mind’s
hiring of four officers for one or two days of work on financial
terms it could not dictate, and paying the officers as independent
contractors, would have any impact on the industry as a whole.
The “race to the bottom,” where hiring entities vie with one
10 The evidence available to us corroborates Estrada’s
testimony that compensation is based on a fixed schedule.
Appellants placed some of James Stout’s payroll records in
evidence. These records show that James Stout was paid the
same hourly rate by a number of different production companies
from mid-2018 to June of 2019, at which point the hourly rate
increased slightly and thereafter remained the same for a
number of jobs, with different production companies, through the
end of 2019.
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another to misclassify workers considered to be core to their
business in order to save money on wages and benefits, is a
legitimate concern. In the small corner of the labor market that
we are concerned with here, however, the concern is not justified.
Appellants’ final argument on this prong of the ABC test is
that the trial court should have afforded more weight to wage
statements showing occasions where production companies paid
James Stout as an employee rather than an independent
contractor. The trial court found these wage statements not
persuasive. We agree. The issue is not what other film
production companies do; the issue is what was done in this
instance. Other production companies are certainly free to treat
police officers as employees, and no doubt there are valid reasons
to do so. It was for the trial court to determine what weight to
give James Stout’s wage statements from other film shoots, and
we cannot second-guess the court’s determination, which is
supported by substantial evidence.
3. Prong C: Appellants Operated Independently from
Scars of the Mind
The third element of Dynamex’s ABC test protects a worker
who “has not independently decided to engage in an
independently established business but instead is simply
designated an independent contractor by the unilateral action of
a hiring entity.” (Dynamex, supra, 4 Cal.5th at p. 962.)
The trial court found that all three appellants were in
business for themselves: “At all pertinent times, [appellants]
were reserve or full-time LAPD officers, and LAPD gave
[appellants] permission for outside employment to work security
and/or traffic control. [Appellants] have worked for dozen[s], if
not hundreds, of different corporations wherein they provided
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security and traffic control services similar to the work that
[appellants] provided for Scars [of the Mind]. [Appellants] used a
third-party [PPS] to obtain work with these various
corporations.”
The fact that each appellant had secured permission from
the LAPD to work on film sets as a retired or off-duty officer, and
had made themselves available for assignments through PPS, is
strong evidence that each officer treated film work as an
independent side business. So is the fact that the officers paid
PPS a fee (called a “toke”) from each day’s earnings on jobs
secured through PPS, and the fact that it was the police officers,
not the production companies, who paid PPS for job placements.
Details of the officers’ compensation, too, supports a finding
that they are independently in business. The officers’
compensation was not negotiated with Scars of the Mind; instead,
it was PPS that communicated the amount the officers were to be
paid. Each appellant filled out a W-9 form, identifying him or
herself as an individual or sole proprietor. Their testimony that
they did not understand the consequences of presenting a W-9
form apparently was given little or no weight by the trial court,
and we do not second-guess that decision.
Still stronger evidence that appellants knew they were
independent contractors is the fact that they demanded, and
received, an additional 15 percent of their daily compensation to
offset the self-employment taxes they would incur as independent
contractors, as well as their demanding, and receiving, a daily kit
box rental fee covering their uniform and equipment. James
Stout’s testimony is particularly instructive: although he insisted
he had no idea that signing a form W-9 meant he would be
treated as an independent contractor, when presented the W-9
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form he told Bates “that there would be a 15 percent pay hike due
to that because of taxes.” All of these facts are clear indicia of
individuals who understood they were acting as independent
contractors rather than employees, and who adjusted their
compensation accordingly. The trial court was the sole judge of
appellants’ credibility; its decision to give greater weight to their
conduct than to their testimony was for the trial court alone.
Appellants urge us to conclude that the third ABC prong is
not met as to Estrada, who was working his first film production
job when he accompanied Gutierrez to Elysian Park to work on
“Acts of Desperation.” This argument is unavailing.
The test is not whether a given appellant has years of
experience in film work, it is whether the appellant has an
independent business providing such work. If an appellant has
such a business, it is as true on the first job worked as on the one
hundredth: nothing in Dynamex suggests that someone working
his first job is an employee as a matter of law, regardless of his
circumstances. Here, Estrada, like the other appellants, obtained
permission from the LAPD to work on film shoots during his off-
duty time; he made himself available for such work through PPS;
he compensated PPS for furnishing him for film work; and he
demanded and received additional compensation for his self-
employment taxes and his kit box rental.
The foregoing facts are sufficient to support the trial court’s
finding in favor of Scars of the Mind on the third of the Dynamex
factors.
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DISPOSITION
The judgment is affirmed. Respondents shall recover their
costs on appeal.
NOT TO BE PUBLISHED
KELLEY, J.*
We concur:
CHANEY, J.
BENDIX, Acting P. J.
* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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