WILL TAYLOR еt al., Plaintiffs and Appellants, v. FINANCIAL CASUALTY & SURETY, INC., Defendant and Respondent.
D076869
COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE, STATE OF CALIFORNIA
Filed 8/17/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
WILL TAYLOR et al.,
Plaintiffs and Appellants,
v.
FINANCIAL CASUALTY & SURETY, INC.,
Defendant and Respondent.
D076869
(Super. Ct. No. 37-2016-00015444-CU-OE-CTL)
APPEAL from a judgment of the Superior Court of San Diego County, Ronald F. Frazier, Judge. Affirmed.
The McMillan Law Firm and Scott A. McMillan for the Plaintiffs and Appellants.
Lewis Brisbois Bisgaard & Smith and Ernest Slome, Jeffry A. Miller, Lann G. McIntyre, Timothy J. Watson, Katherine C. DenBleyker and Caroline E. Chan for the Defendant
Plaintiffs and appellants Will Taylor, Ken Gorman and Nicholas Wayman, individuals who formerly conducted bail fugitive recovery, appeal from a summary judgment in favor of defendant and respondent Financial Casualty & Surety, Inc (FCS), a surety admitted to write bail in California. Plaintiffs sued FCS and other bail-agent entities and individuals for, inter
alia, fraud, various Labor Code1 violations (wage and hour, classification, and notice) as well as statutory damages under the Labor Code, conversion, unfair competition, discrimination and wrongful termination, alleging in part that FCS was a co-employer with the right to control the manner in which they performed their assignments. FCS moved for summary judgment on grounds plaintiffs were not FCS employees as a matter of law, disposing of their claims based on the Labor Code as well as for fraud and conversion, which related to misrepresentations of their employment status or withholding final paychecks. The trial court granted the motion, in part ruling FCS did not employ plaintiffs for purposes of causes of action based on the Labor Code or dependent on an employment relationship; plaintiffs’ claims for fraud and conversion were barred by the “new right-exclusive remedy doctrine”; and plaintiffs could not make out a claim for unfair competition on their allegations that FCS violated the law.
Plaintiffs contend the trial court erred by its ruling. With the exception of their conversion cause of action which they concede is unavailable, they argue summary judgment was improperly granted because (1) the court ignored their operative complaint’s allegations of agency and too narrowly construed that pleading; (2) FCS failed to present admissible evidence to shift the summary judgment burden to them; (3) the agreements between FCS and the other defendants purporting to limit FCS’s liability are unlawful; (4) FCS’s liability stems from its agency relationship with the codefendant bail agents; (5) FCS is directly liable for Labor Code violations as an employer as it exercised control over their wages, hours and working conditions, knew of their work, and had a common law employment relationship with plaintiffs;
FACTUAL AND
On review of the court’s grant of summary judgment, “ ‘
FCS, a Texas corporation, is a casualty and surety company. It writes surety bonds that guarantee a
be error. ( Ghazarian v. Magellan Health Inc., supra, 53 Cal.App.5th at p. 183.)
A. Shields
Plaintiffs contend Shields’s declaration concerning FCS’s entry into the producer agreement with Hotline lacks personal knowledge. They point
That plaintiffs presented assertedly contrary summary judgment evidence from other witnesses does not render Shields’s statements inadmissible or without personal knowledge, and none of plaintiffs’ authorities suggest otherwise.8 At most, the contrary evidence raises issues
of Shields’s credibility, and summary judgment may not be granted on the court’s evaluation of credibility. (
opinions. (Id. at p. 1120.) There, a party’s declaration was based on opinion and conclusions instead of evidentiary facts, and some of his statements were contradicted by his own deposition testimony (not that of other witnesses, as is assertedly the case here), rendering it inadmissible or irrelevant. (Ibid.) People v. Lewis (2001) 26 Cal.4th 334 is cited for the general rule that a witness must have personal knowledge by a present recollection of an impression derived from the exercise of the witness’ own senses. (Id. at p. 356.) Plaintiffs do not analyze Lewis any further. In Maltby v. Shook (1955) 131 Cal.App.2d 349, the court found fault with a party who submitted the declaration of his counsel in opposition to a summary judgment motion, which asserted counsel’s belief’s as to various issues and was held to lack personal knowledge аnd constitute mere opinion or conclusion. (Id. at pp. 353-354.) That declaration further did not address the merits of the matter at issue: whether the plaintiff was a lawful assignee or had standing to bring the action. (Id. at p. 354.) Finally, Gay v. Torrance (1904) 145 Cal. 144 involved an attorney declaration “entirely made on ‘information and belief’ ” and thus the court found it stated no facts within the affiant’s knowledge. (Gay v. Torrance, 145 Cal. at pp. 150-151.) Shields’s statements were not made on information and belief, and therefore it is not inadmissible for lack of personal knowledge. (Compare, Overland Plumbing, Inc. v. Transamerica Ins. Co. (1981) 119 Cal.App.3d 476, 483 [declaration made “to the best of my knowledge and belief” implies something similar to information and belief, which is insufficient to show personal knowledge].)
established his personal knowledge of the information provided.
Independently considering plaintiffs’ objections, we hold they were properly overruled as to Shields’s declaration.
B. Gilbert McGuire Declaration
Plaintiffs contend the trial court erred by failing to sustain their objections to Gilbert McGuire’s declaration on grounds it lacked personal knowledge or foundation, and was not the best evidence. They complain about the fact Gilbert McGuire states that McGuire Bros. was in the business of posting bail bonds, when during his deposition he testified he did not know whether McGuire Bros. had an active bail license in the State of California, and they therefore assert Gilbert McGuire’s “suggestion . . . that McGuire Bros. . . . conducted bail business [sic] is baseless.” Plaintiffs argue Gilbert McGuire knew he was employed by DMCG or Daniel McGuire, not McGuire Bros. They argue these problems caused Gilbert McGuire to lack personal knowledge sufficient to authenticate the producer agreement or alternatively show he either did not read or “falsely authenticated” his declaration, raising triable issues of fact.
These arguments again raise issues of credibility, not admissibility. As for the foundation for his statements, as summarized above, Gilbert McGuire averred he was a McGuire Bros. shareholder and director since the company was formed in 2005, and also was an officer and director of DMCG since its formation in 2010. He stated he had been “involved in operations of McGuire Bros. and DMCG during the course of my relationship with both companies.” He averred that McGuire Bros. was in the business of posting bail bonds until DMCG’s formation in 2010. Other than the absence of personal knowledge, plaintiffs do not specify what foundational or preliminary facts are missing from his declaration as to render it
inadmissible. We conclude Gilbert McGuire’s status as a McGuire Bros. and DMCG officer and director gave him sufficient personal knowledge to establish a foundation for his assertions. (
As for the secondary evidence rule, under that rule, oral testimony is generally not admissible to prove the contents of a writing. (
IV. Wage and Hour-Related Claims
A. The Applicable Legal Test
Plaintiffs’ wage and hour-related causes of action either allege Labor Code violations (causes of action two through nine) or arise from conduct alleged to be in violation of the Labor Code (fraud and unfair competition, first and eleventh causes of action). As plaintiffs correctly concede, in actions under the Labor Code to recover unpaid wages (and for other wage and hour violations under the Labor Code wage statutes and Fair Labor Standards Act (FLSA)), FCS’s liability turns on whether it employed plaintiffs within the meaning of the applicable IWC wage order governing the industry. (Martinez, supra, 49 Cal.4th at pp. 52, 64, 66; Mattei v. Corporate Management Solutions, Inc. (2020) 52 Cal.App.5th 116, 122-123; Futrell v. Payday Cal. Inc. (2010) 190 Cal.App.4th 1419, 1428-1429 (Futrell) [applying Martinez’s definition to causes of action alleging violations of sections 203, 226, 510 and 1194].) Here, that is IWC Wage Order 4-2001, regulating wages, hours and working conditions in the professional, technical, clerical, mechanical and similar occupations. (Wage Order No. 4;
who had hired them as well as several produce merchants who had contractual relationships with the grower. (Martinez, supra, 49 Cal.4th at pp. 42-44, 48.) The produce merchants moved for summary judgment (the grower had gone bankrupt) and in opposition, plaintiffs claimed among other things that the merchants jointly employed them with the grower. (Id. at p. 48.)
Martinez held that “[t]o employ . . . under the IWC’s definition, has three alternative definitions. It means: (a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law employment relationship.” (Martinez, supra, 49 Cal.4th at p. 64.) The court observed the words “suffer” and “permit” were employment terms of art. (Ibid.) The third prong, “to engage,” embodied the common law definition of the employer-еmployee relationship. (Ibid. [“the verb ‘to engage’ has no other apparent meaning in the present context than its plain, ordinary sense of ‘to employ,’ that is, to create a common law employment relationship”].)
The Martinez court began by assessing whether the defendant merchants suffered or permitted plaintiffs to work and/or exercised control over their wages, hours or working conditions. (Martinez, supra, 49 Cal.4th at p. 68.) It explained that the “suffer or permit” definition arose in the context of statutes prohibiting child labor and were “generally understood to impose liability on the proprietor of a business who knew child labor was occurring in the enterprise but failed to prevent it, despite the absence of a common law employment relationship.” (Id. at p. 69.) According to the court, that meaning was still relevant today: “A proprietor who knows that persons are working in his or her business without having been formally hired, or while being paid less than the minimum wage, clearly suffers or permits that
work by failing to prevent it, while having the power to do so.” (Ibid.) The basis for liability under this definition is thus a defendant’s failure “to prevent the unlawful condition” or “ ‘to perform the duty of seeing to it that the prohibited condition does not exist.’ ” (Ibid.) Martinez held it was not enough to show that the produce merchants knew plaintiffs were working and that the work benefitted them; Martinez held two of the merchants did not suffer or permit the plaintiffs to work because “neither had the power to prevent plaintiffs frоm working. [The grower] and his foremen had the exclusive power to hire and fire his workers, to set their wages and hours, and to tell them when and where to report to work.” (Id. at p. 70.) Though the producers could have withdrawn their business and forced the grower to fire the workers, that was the case with any substantial
Martinez rejected the argument that one merchant “exercised indirect control over [the grower’s] wages and hours” via its contractual relationship with the grower as well as its decisions regarding what payments to advance to him and demands that he harvest produce that would not produce a net return. (Martinez, supra, 49 Cal.4th at pp. 71-72.) The court observed that the wage order’s definition of employer encompassed any person who “directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person.” (Ibid.) There was no evidence raising a triable issue on that point because the undisputed facts showed the grower “alone controlled plaintiffs’ wages, hours and working conditions” (id. at p. 71) and nothing showed the merchant compelled the grower to harvest on any occasion. (Id. at p. 72.) “More
importantly,” according to Martinez, the plaintiffs’ factual assertions did not establish the producers’ business relationship with the grower allowed them to exercise control over the grower’s employees’ wages and hours; rather, the grower alone “hired and fired plaintiffs, trained and supervised them, determined their rate and manner of pay . . . , and set their hours, telling them when and where to report to work and when to take breaks.” (Id. at p. 72.) The plaintiffs’ assertion that the merchants “dominated [the grower’s] financial affairs” was irreconcilable with that evidence. (Ibid.)
Plaintiffs further argued that one producer exercised control over their wages and hours because it had sent an agent to a site to convince them to continue to work and guaranteed they would be paid by checks being delivered to the grower. (Martinez, supra, 49 Cal.4th at p. 74.) But the evidence showed the plaintiffs understood they were not working for the producer because of the nature of their work; it was reasonably apparent they were harvesting in bulk rather than packing for sale and understood the distinction because they questioned the individual about whether everyone would be paid. (Ibid.)
Martinez further rejected the plaintiffs’ argument that the merchants became joint employers by exercising control over their working conditions through field representatives doing quality control and contract compliance. (Martinez, supra, 49 Cal.4th at p. 75.) In doing so, it acknowledged multiple entities may be employers where they “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.” (Id. at p. 76.) There, though the field representatives interacted with the plaintiffs to demonstrate packing styles or point out
“not indicate the field representatives ever supervised or exercised control over [them]. No evidence suggests [the grower’s] employees viewed the field representatives as their supervisors or believed they owed their obedience to anyone but [the grower] and his foremen.” (Id. at p. 77.) Though the plaintiffs argued the right to exercise control over how work was performed, even if unexercised, was sufficient to establish an employment relationship, the court stated the contracts between the grower and merchants did not give the merchants the right to direct their work, and no evidence suggested that anyone believed the merchants or their representatives had such a right. (Ibid.)
After Martinez, appellate courts have considered whether employment relationships were created in franchisor/franchisee and other business models, including those involving lessee operators who are required comply with certain tasks so as to meet an owner’s brand standards. (E.g., Curry v. Equilon Enterprises, LLC (2018) 23 Cal.App.5th 289, 292-294 [gas station owner was not a joint employee with lessee/operators even though operators were required to perform specifiс tasks to maintain safety, accounting and owner’s brand standards and owner had the right to enter and inspect or audit compliance with operator agreement]; Henderson v. Equilon Enterprises, LLC, supra, 40 Cal.App.5th 1111 [same]; Futrell, supra, 190 Cal.App.4th 1419 [payroll processing company providing services to television commercial producer was not a joint employer over producer’s employees]; Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1186-1191 [franchisor who provided payroll services to franchisee was not a joint employer for purposes of Labor Code wage statutes where franchisor exercised no control over franchisee’s employees, including hiring or firing, rate of pay, work hours or working conditions].)
More recently, the California Supreme Court decided in the tort liability context whether a franchisor was the principal or employer of a franchisee’s supervisor, who had allegedly sexually harassed a subordinate. (Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 477-478 (Patterson).) At issue in Patterson was the propriety of imposing vicarious liability on the franchisor for the franchisee’s wrongdoing. (Id. at p. 477; see Vazquez v. Jan-Pro Franchising International, Inc. (2021) 10 Cal.5th 944, 955, fn. 3 [framing the question in Patterson].) The Patterson court asked whether a franchisor stood in an employment or agency relationship with the franchisee and its employees for purposes of holding it liable for workplace injuries, holding the answer was dependent on the “inherent nature of the franchise relationship itself.” (Id. at p. 478.) The court concluded that “imposition and enforcement of a uniform marketing and operational plan cannot automatically saddle the franchisor with responsibility for employees of the
Patterson rejected the argument that the franchise agreement in that case deprived the franchisee of the means and manner of asserting managerial control so as to make each franchisee the agent of the franchisor
for all business purposes. (Patterson, supra, 60 Cal.4th at p. 496.) The court explained that franchisees are owner/operators who hold a personal and financial stake in the business, and had the right to hire the people who work for them and oversee their performance each day. (Id. at p. 497.) Thus, the mere fact the franchisor reserved the right to require or suggest uniform workplace standards to protect its brand and the quality of customer service was “not, standing alone, sufficient to impose ‘employer’ or ‘principal’ liability on the franchisor for statutory or common law violations by one of the franсhisee’s employees toward one another.” (Id. at p. 498, fn. 21.)
Examining the plaintiffs’ Fair Employment and Housing Act (FEHA) statutory claims under principles of agency and respondeat superior, it examined “ ‘the control exercised by the employer over the employee’s performance of employment duties.’ ” (Id. at p. 499.) That standard required “ ‘a comprehensive and immediate level of “day-to-day” authority’ over matters such as hiring, firing, direction supervision and discipline of the employee.” (Ibid.)
In Patterson, the franchise contract recited there was no principal-agent relationship between Domino’s and the franchisee and the franchisee had no authority to act on the franchisor’s behalf. (Patterson, supra, 60 Cal.4th at p. 500.) It stated that the persons who worked in the store were the franchisee’s employees, and no employment or agency relationship existed between them and Domino’s; the contract made the franchisee solely responsible for managing its employees with respect to the proper performance of their tasks. (Ibid.) Thus, the franchisor lacked contractual authority to manage the behavior of the franchisee’s employees. (Ibid.)
The summary judgment evidence did not compel a different conclusion. Domino’s did not advise or consent on any termination or rehiring decisions;
it was not involved in monitoring or reporting sexual harassment complaints
B. Nature of Surety and Bail Agent Relationship
This case involves the relationship of surety insurer FCS and its designated bail agents or bondsmen to transact bail undertakings.9 California civil bail proceedings and the licensing and business practices of professional bondsmen are regulated by statute and regulations, which set up a licensing procedure under the Insurance Commissioner’s control. (See
the court.’ [Citation.] ‘[A] bail bond is a contract between the surety and the government whereby the surety acts as a guarantor of the defendant’s appearance in court under the risk of forfeiture of the bond. [Citations.]’ [Citation.] Ultimately, if the defendant fails without sufficient excuse to appear in court as lawfully required, the surety ‘ “must suffer the consequences” ’ and forfeit the bail.” (People v. Financial Casualty & Surety, Inc., at p. 351; People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 657-658; People v. Accredited Surety & Casualty Co. (2012) 207 Cal.App.4th 163, 167; see
Surety insurers are required by law to execute bail undertakings through licensed bail agents (“bail bondsmen”), and only such licensees may post bail.
and to solicit and negotiate those undertakings” on behalf of the surety]; People v. Ranger Ins. Co. (2003) 110 Cal.App.4th 729, 734-735.) The surety does its business through the licensed bail agent, thus, the agent may act for the surety in receiving notice unless a statute requires otherwise. (Id. at p. 735.)
To perform its obligation to secure the defendant’s attendance, the surety may designate others to assist it. (
Plaintiffs, who were fugitive recovery persons, are involved in the process of locating and arresting fugitives. The Bail Fugitive Recovery Persons Act,
Guided by Martinez, we readily conclude FCS’s evidence was sufficient to establish prima facie it was not a joint employer liable for Hotline’s wage and hour violations; that it lacked control over and responsibility for plaintiffs’ fugitive recovery efforts on behalf of Hotline or any of the McGuire individuals/entities. Shields’s declaration was competent evidence that Hotline alone had “exclusive power to make all decisions related to its business and the hiring, managing, discipline and termination of its employees and independent contractors.” According to Shields, FCS “had no right to and did not participate in the application, interview or hiring process
subd. (a)(2)(A) [“the bail shall be released of all obligations under the bond if the case is dismissed . . . .”],
for any [Hotline] employee or independent contractor” and it “never directed or influenced [Hotline] to recruit, interview, hire, engage, discipline or discharge any specific employee or independent contractor.” FCS never set wages for Hotline employees or independent contractors, specified the tasks to be performed by them or dictated their work schedules. The evidence was that FCS did not decide plaintiffs’ compensation, job duties, or work schedules; directly or indirectly pay them; train, discipline supervise or promote them; or provide tools, forms, supplies or a physical site to do their work. Shields stated FCS did not have authority to prevent plaintiffs from working and it never did so.
Gilbert McGuire’s declaration similarly established FCS gave no guidance or direction to the operations of DMCG or McGuire Bros., and FCS had no input in or authority over McGuire Bros. and DMCG regarding recovery agents’ hiring process or fugitive recovery efforts. Rather, McGuire Bros. and DMCG had exclusive decisionmaking authority regarding their business. McGuire Bros. and DMCG maintained the records for plaintiffs’ services and payments made to them. In short, FCS presented evidence it did not exercise control over plaintiffs’ wages, hours or working conditions, and it did not
Our conclusion is the same with regard to FCS’s evidence pertaining to whether it “engaged” plaintiffs such that it had a common law employment relationship with them. (Martinez, supra, 49 Cal.4th at p. 64.) “The essence of the common law employment relationship test ‘is the “control of details”—that is, whether the principal has the right to control the manner and means by which the worker accomplishes the work . . . .’ ” (Curry v. Equilon Enterprises, LLC, supra, 23 Cal.App.5th at p. 304; see also Futrell, supra, 190 Cal.App.4th at p. 1434.) There are “secondary factors” (Henderson v. Equilon Enterprises, LLC, supra, 40 Cal.App.5th at p. 1122) relevant to the inquiry.12 “ ‘[W]hat matters under the common law is not how much control a hirer exercises, but how much control the hirer retains the right to exercise.’ [Citation.] ‘In cases where there is a written contract, to answer that question without full examination of the contract will be virtually impossible.’ ” (Mattei v. Corporate Management Solutions, Inc., supra, 52 Cal.App.5th at p. 124, citing Tieberg v. Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943, 952 [written agreements are a “significant factor” in assessing the right to control]; Grant v. Woods (1977) 71 Cal.App.3d 647, 653 [“[w]ritten
agreements are of probative significance” in evaluating the extent of a hirer’s right to control].)
Both the producer agreement and general agent agreement governing FCS and Hotline (as well as the other McGuire individuals/entities) provide that their relationship was that of principal and independent contractor, and expressly state that Hotline was not an employee of FCS. The agreements give Hotline “exclusive control” over its agency and employees, and provide
In short, FCS’s evidence prima facie demonstrates FCS did not have the requisite level of control over plaintiffs’ employment, and thus it was not their employer (or joint employer) under Martinez.
D. Plaintiffs’ Evidence Does not Raise a Triable Issue of Material Fact on Whether FCS was Their Employer
We turn then to whether plaintiffs demonstrated a triable issue of material fact concerning FCS’s status. (Curry v. Equilon Enterprises, LLC, supra, 23 Cal.App.5th at p. 302; Futrell, supra, 190 Cal.App.4th at p. 1428.) They make a series of arguments to claim that FCS is “liable” on their causes of action, or that there are triable issues of fact on that question.
Characterizing the producer agreement as “secret” and both that and the general agency agreement as unlawful side agreements, they argue those agreements do not exonerate FCS or nullify its representations to the Department of Insurance that it had appointed DMCG or Daniel McGuire to act as its general agent. They point to their statements that they were not aware of any limits on FCS’s authority to control those entities. They argue FCS is liable due to an actual principal/agent relationship with Hotline, or because Hotline is FCS’s ostensible agent. Plaintiffs argue FCS is directly liable as an employer under Martinez, supra, 49 Cal.4th 35 and Wage Order No. 4 because FCS exercised control over their wages, hours and working conditions, “suffered or permitted” plaintiffs to work, and had a common law employment relationship with them.
“ ‘ “The question of whether an employment relationship exists ‘ “is generally a question reserved for the trier of fact.” ’ . . . This remains true ‘[w]here the evidence, though not in conflict, permits conflicting inferences.’ . . . However, if neither the evidence nor inferences are in conflict, then the question of whether an employment relationship exists becomes a
Plaintiffs’ evidence must be admissible to create a triable issue. (Perry v. Bakewell Hawthorne, LLC, supra, 2 Cal.5th at p. 543; Curry v. Equilon Enterprises, LLC, supra, 23 Cal.App.5th at pp. 302-303.) Affidavits must cite evidentiary facts, not legal conclusions or ultimate facts. (Hayman v. Block (1986) 176 Cal.App.3d 629, 639; United Parcel Service Wage & Hour Cases (2010) 190 Cal.App.4th 1001, 1018.) Though plaintiffs’ evidence submitted in opposition must be construed liberally, in employment cases it “ ‘ “remains subject to careful scrutiny.” [Citation.] The employee’s “subjective beliefs . . . do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.” ’ ” (Foroudi v. The Aerospace Corp. (2020) 57 Cal.App.5th 992, 1007; Talley v. County of Fresno (2020) 51 Cal.App.5th 1060, 1090.)
Here, plaintiffs’ declarations are interspersed with claims they were employed by FCS or that certain McGuire entities were FCS’s “agent.” We disregard these inadmissible conclusions. (Accord, Duffy v. Tender Heart Home Care Agency, LLC (2019) 31 Cal.App.5th 232, 242, fn. 7 [whether plaintiff was an employee or there was an agency relationship are legal conclusions, not facts].) We likewise disregard subjective statements that they believed they were doing work “on behalf of” FCS.
Some of plaintiffs’ arguments about FCS’s and Hotline’s asserted ostensible agency relationship are based on the contents of a court opinion—People v. Financial Casualty & Surety, Inc., supra, 2 Cal.5th 35—of which they unsuccessfully sought judicial notice in the trial court. Plaintiffs reiterate their request in this court.13 We deny the request. (See
Citizens for Sensible Planning v. City of Stockton (2012) 210 Cal.App.4th 1484, 1488, fn. 2 [courts are not permitted to take judicial notice of the truth of factual findings in a California Supreme Court opinion].) On our review of the summary judgment we disregard all excluded evidence. (
1. Validity of Producer and General Agent Agreements
We reject plaintiffs’ attack on the validity of the producer and general agent agreements defining the scope of FCS’s relationship with Hotline and the McGuire individuals. Plaintiffs frame their challenge as faulting FCS for entities as bail agents, and the fact other McGuire-related entities—Fugitive Recovery Investigations, Inc. and McGuire Bros Enterprises—had no record of licensure with either entity. They argue the materials show that FCS was “required to conduct its business through bail agents,” FCS is a “bail” within the meaning of the Penal Code, and that FCS appointed those individuals, who directed plaintiffs’ fugitive recovery efforts. Notably, FCS does not dispute it is a bail surety, and Cesar McGuire admitted FRI was not a bail agency, but rather contracted with plaintiffs directly for their fugitive recovery services. Even assuming the information from these government websites is properly judicially noticeable, we would deny plaintiffs’ request. The admissions make some of the materials irrelevant, a proper basis to deny the request. (Abatti v. Imperial Irrigation District (2020) 52 Cal.App.5th 236, 249, fn. 6.) Otherwise, “ ‘the proffered material is unnecessary to our decision.’ ” (City of Grass Valley v. Cohen (2017) 17 Cal.App.5th 567, 594, fn. 3.) That FCS and Hotline or the McGuire individuals have a regulated surety/bail agent relationship does not by itself make FCS vicariously or otherwise liable as their employer. Our decision turns on the absence of triable issues of fact concerning FCS’s exercise of control over plaintiffs’ employment both because it lacked contractual authority to do so and it in fact did not involve itself in plaintiffs’ work within the scope and meaning of the test in Martinez, supra, 49 Cal.4th 35.
failing to justify the agreements.14 Pointing out that the surety is liable to the court on the bonds, must execute such instruments through an agent, and the Penal Code authorizes forfeiture only against thе surety, plaintiffs maintain the producer and general agent agreements are contracts with an unlawful object, namely an attempt by FCS to evade bail laws by “secretly transferring its liability imposed under California law to its agent through deftly drafted contract language purporting to negate the bail industry[-]specific sections of the Penal Code and Insurance Code . . . .” Plaintiffs further assert they were unaware of the agreements and any limitations on FCS’s authority over their agents because the agreements were not filed with the Department of Insurance.
On the latter point, plaintiffs’ knowledge or lack thereof of FCS’s contractual arrangement with Hotline does not go to the validity of the producer or general agent agreements. They have not cited any requirement, statutory, regulatory or otherwise, that requires such contracts be approved by or filed with the Department of Insurance.
As for the legality of the agreements, plaintiffs argue FCS’s position in the trial court was that “all it provided was wholesale bonds” and that it was not
without authority that “[u]nder California law, there is no authority for a surety to sell ‘wholesale bonds’ ” and assert “the insurance commissioner is entitlеd to deny a bail license where the evidence indicates the applicant’s purpose is to act as a ‘dummy’ for another, or . . . evade enforcement of the insurance laws.” Plaintiffs do not specify what provisions in either the producer agreement or general agent agreement seek to avoid statutory or legal requirements that FCS execute its undertakings via licensed bail agents or act as the debtor on forfeiture of its bonds. The agreements define the producer or general agent as “an independent contractor duly licensed by its state of operation as a bail bondsman . . . .” They expressly state that Hotline and the McGuire individuals are to comply with all laws and regulations applying to “any business Producer [or General Agent] conducts or . . . performs pursuant to this Agreement,” and that obligation “shall supersede any other requirement arising out of this Agreement.” No provisions purport to exonerate FCS from its obligations as a surety or transfer this liability.
2. Liability Under Actual or Ostensible Agency Theories
Plaintiffs contend FCS is broadly vicariously liable for all wrongful acts, including employment-related offenses, committed by Hotline while transacting its bail bond business because FCS and Hotline have a principal and agent relationship. They argue agency is a question of fact for the jury, suggesting the evidence raises triable issues on this point making summary judgment improper. Plaintiffs further contend FCS should be held liable under the theory that Hotline was an ostensible agent given plaintiffs’ understanding—based on the affidavits of undertaking—that FCS was acting as a principal operating though Hotline, the visits and communications from FCS representatives, and evidence via their own declarations that they would not have dealt with Hotline but for FCS’s involvement.
We decline the invitation to replace the Martinez test with agency principles. As stated, in Labor Code wage and hour violation cases, the wage order definition of the employment relationship and the Martinez test control. (Martinez, supra, 49 Cal.4th at p. 66; Futrell, supra, 190 Cal.App.4th at p. 1431; accord, Salazar v. McDonald’s Corp. (9th Cir. 2019) 944 F.3d 1024, 1033 [the wage order and Martinez test control over ostensible agency analysis in wage and hour case against franchisor alleging it was a joint employer liable for violations of the Labor Code]) While the wage order here defines an employer to mean one who “directly or indirectly, or through an agent or any other person employs or exercises control over the wages, hours, or working conditions of any person,” Martinez explained that was intended
Even if agency doctrine were applicable to the employment inquiry and other tort theories alleged by plaintiffs, the court in Patterson made clear (Patterson, supra, 60 Cal.4th at pp. 500-503) that the question of liability under an agency theory turns on the contractual authority given to Hotline by FCS, as well as the degree оf control exercised by FCS over the conduct of Hotline such that Hotline’s alleged wrongdoing should be deemed that of FCS. Plaintiffs’ authorities acknowledge this. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1171-1172 [“ ‘ “ ‘The significant test of an agency relationship is the principal’s right to control the activities of the agent’ ” ’ ”].)
There is no question that as it is required by law to do, FCS authorized Hotline, a licensed bail agent, to effect bail undertakings on its behalf. The evidence shows there were tasks FCS asked of Hotline in connection with those undertakings, such as delivery of bond collateral. FCS certainly had financial interests in the work being performed by Hotline and its fugitive recovery personnel. But there is no evidence FCS’s appointment or control extended to day-to-day management, payment, hiring and firing of fugitive recovery personnel as to make FCS responsible for alleged wage and hour and other Labor Code violations. We conclude on that question there is no evidence raising a triable issue of fact under an agency theory. As in Patterson, FCS’s agreements did not authorize Hotline and the McGuire individuals to act as general agents; the agreements provide the parties are principal and independent contractor, and give exclusive control to Hotline of its employees and independent contractors, including to set working hours,
That the agreement gave FCS the right to “enforce applicable agreements against [Hotline’s] sub-producers, employees, and/or independent contractors” does not give FCS the right to set Hotline’s employee’s hours, wages or working conditions.
Nor did plaintiffs present evidentiary facts to suggest FCS in fact exercised any such control. Plaintiffs presented evidence that FCS advised the Department of Insurance that it had authorized DMCG to use certain forms, including a form entitled “Authorization to Arrest Defendant.” Gorman averred the files issued to him contained such documents, and he “only received a file with the intent to make a lawful arrest and the surety companies knew of my responsibilities to do so.” He averred fugitive recovery personnel were “unable to work without authorization by the surety or its bail agent.” He stated that when FCS representatives visited Hotline, they made it clear that the recovery department personnel kept it from having to pay in the event a fugitive was not recovered. He pointed out that he received emails from FCS’s attorney asking him to modify declarations to ensure they reflected personal knowledge of the declarants.
At best, the evidence shows interactions inherent in the state-regulated surety/bail agent relationship, but not FCS’s control over or involvement in fugitive recovery personnel hiring, discipline, working hours, pay or how they performed their fugitive recovery assignments. (Accord, Patterson, supra, 60 Cal.4th at p. 501 [even though franchisor provided orientation materials that supplemented the training the franchisee was required to conduct, the franchisee exercised sole control over selecting the individuals who worked in his store and he did not include the franchisor in the application, interview and hiring process].) FCS’s oversight over Hotline—its ensuring compliance with licensing requirements, review of legality and sufficiency of bond
paperwork, or requests for updates on forfeitures—is akin to a franchisor’s right to require or suggest uniform workplace standards to protect its brand and the quality of customer service that is “not, standing alone, sufficient to impose ‘employer’ or ‘principal’ liability” for statutory or common law violations.” (Patterson, supra, 60 Cal.4th at p. 498, fn. 21.) Gorman vaguely states he was expected to comply with what FCS’s lawyer “told him to do” or “snap to attention” when Ledbetter was concerned about a forfeiture. But this is no different from the evidence in Patterson that the franchisees subjectively believed they “had little choice but to follow the advice of [the franchisor’s] area leader,” and “assumed that a franchisee who did not ‘play ball’ ” would be in trouble. (Patterson, supra, 60 Cal.4th at p. 485.) In Patterson, when it came down to the specific conduct leading to the plaintiff’s complaint, the evidence showed the franchisee chose to suspend the harasser, despite the franchisor’s representative suggesting that the
We reach the same conclusion as to ostensible agency. An agency is ostensible when a principal intentionally or negligently causes a third person to believe another individual is acting as its agent, even though the individual is not so employed by the principal. (
the [Hotline] office to audit” and communications with Gorman, as well as FCS’s acceptance of the benefits of their fugitive recovery efforts. We disregard plaintiffs’ further argument that their reliance was reasonable given FCS made certain representations to the California Supreme Court as evidenced by People v. Financial Casualty & Surety, supra, 2 Cal.5th 35.
We cannot say that FCS’s identification as the surety insurer on an affidavit of undertaking (a copy of which is attached to plaintiffs’ opening brief) would allow plaintiffs to entertain a reasonable belief it was their employer, like the evidence in Ochoa v. McDonald’s Corp. (N.D. Cal. 2015) 133 F.Supp.3d 1228, relied upon by plaintiffs. In Ochoa, the evidence was that plaintiffs wore McDonald’s uniforms, served McDonald’s food in McDonald’s packaging, received рaystubs and orientation materials marked with McDonald‘s name and logo, and, with the exception of one plaintiff, applied for a job through a McDonald’s website. (Id. at p. 1240.) This is a far cry from the evidence here. Nor is it similar to the evidence in Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741, likewise cited by plaintiffs. There, a realtor “tout[ed]” Coldwell Banker’s name on an advertising campaign, and as a consequence the sophisticated plaintiff relied upon it (he “went for the sign”) without noticing a disclaimer that the realtor was an independently owned member of a Coldwell Banker affiliate entity. (Id. at pp. 744, 748.) Here, the general agent agreement and producer agreements prevented Hotline from using FCS’s name in any advertising materials “or in any manner, which may induce a belief that [the producer or agent] is an employee of, or in any way associated with [FCS], other than [FCS] supplying of bonds to [producer or agent] in a wholesale manner.” We decline to say FCS’s identification as a surety on documents
inherent in the nature of the bail business raises a triable issue of fact as to ostensible agency to support liability for wage and hour violations.
Plaintiffs contend FCS should be treated as an employer under the Martinez test because the evidence shows FCS’s conduct meets all three Martinez prongs. At the same time, they seek to distinguish Martinez, arguing that the “broader” definition of employer in the wage order applies in light of the express agency relationship between FCS and Hotline. Plaintiffs make much of Wage Order Nо. 4’s definition of an employer as one “who . . . indirectly, or through an agent or any other person, employs or exercises control over the wages, hours or working conditions of any person.” (Italics added.) But as stated, this language reaches through “straw men and other sham arrangements to impose liability for wages on the actual employer” and Martinez held it did not impose liability on the produce merchants in that case because the grower “alone controlled plaintiffs’ wages, hours and working conditions.” (Martinez, supra, 49 Cal.4th at p. 71.)
Wage Order No. 4 and the Martinez test—not agency doctrine—control in cases involving whether an employer-employee relationship exists for purposes of the Labor Code wage statutes. (Futrell, supra, 190 Cal.App.4th at p. 1431; Curry v. Equilon Enterprises, supra, 23 Cal.App.5th at p. 301.) Here, as in Martinez (Martinez, supra, 49 Cal.4th at p. 72), no evidence shows that the statutory surety and bail bondsmen relationship, or the contractual agreements between FCS and Hotline—allowed FCS to exercise control over the wages, hours or working conditions of Hotline’s fugitive recovery personnel. As in Martinez, “[Hotline] alone . . . hired and fired plaintiffs, trained and supervised them, determined their rate and manner of pay, and set their hours, telling them when and where to report to work and when to
take breaks.” (Ibid.) There is no evidence FCS “dominated [Hotline’s] financial affairs” (ibid.) with respect to those matters.
a. Control Over Wages, Hours or Working Conditions
To show FCS exercised control over their wages, hours and working conditions, plaintiffs refer back to the general agent agreement. They maintain FCS’s control is shown by its requirements that Hotline (1) be “familiar with and abide by the laws and regulations, which apply to any business [it] conducts or performs pursuant to this Agreement”; (2) “comply with any and all procedural directions, rules, and regulations distributed by [FCS] for adoption by [Hotline]”; (3) “avoid any acts or omissions, which may create unauthorized liabilities for [FCS] or impair [FCS’s] business reputation”; and (4) assign FCS “any and all rights [Hotline] might have to enforce applicable agreements against [its] sub-producers, employees, and/or independent contractors.” They point out that the general agent agreement anticipated Hotline’s bail fugitive recovery efforts, and that FCS’s former vice president
That FCS required Hotline to abide by applicable laws in dealing with bail bond principals/defendants is not evidence that FCS had the right to control plaintiffs’ wages or hours. The general agent agreement in fact gives Hotline the “exclusive” right to such control. Nor is such control shown by FCS’s conduct in general auditing, seeking updates on forfeitures, or ensuring compliance with licensing or bond paperwork requirements, even if FCS sent some of the communications directly to plaintiffs. (Accord, Martinez, supra, 49 Cal.4th at pp. 75-76 [input from merchants directly to plaintiffs concerning quality and packaging of produce did not establish a
supervisory or control relationship with farm worker plaintiffs]; sеe also Futrell, supra, 190 Cal.App.4th at p. 1432 [payroll processing company did not exercise control over worker’s wages by “handling the ministerial tasks of calculating pay and tax withholding, and by also issuing paychecks, drawn on its own bank account”]; Henderson v. Equilon Enterprises, LLC, supra, 40 Cal.App.5th at p. 1123 [station owner supplied detailed operation manuals, but operator was responsible for directing its employee’s compliance with those manuals].) That FCS knows of and benefits from plaintiffs’ work is not enough. (Martinez, supra, 49 Cal.4th at p. 70.) The fact FCS exercises oversight over its licensed bail agents to protect its financial interests, or directs Hotline to deliver bond collateral or perform other tasks with respect to the bail undertakings, does not make it the employer of Hotline’s workforce. Even construing the evidence in the light most favorable to plaintiffs, it does not raise triable issues of material fact that FCS exercises control over wages, hours and working conditions of Hotline’s fugitive recovery personnel to warrant liability as their employer.
b. Suffered or Permitted
Nor do we agree that plaintiffs’ evidence raises an issue as to the second Martinez prong, that is, whether it shows FCS acted or had the capacity “ ‘to prevent the unlawful condition’ ” or “ ‘to perform the duty of seeing to it that the prohibited condition does not exist.’ ” (Martinez, supra, 49 Cal.4th at p. 69, italics omitted.) Martinez emphasized the fact the produce merchants knew plaintiffs were working and that the work benefitted them was insufficient to raise a triable issue of fact on this point; rather, the defendants there did not suffer or permit the plaintiffs to work because “neither had the power to prevent plaintiffs from working” and the grower “had the exclusive power
wages and hours, and to tell them when and where to report to work.” (Id. at p. 70)16
So it is here. That FCS representatives knew Hotline was engaged in fugitive recovery efforts—a task inherent in the bail bond business—or that its representatives may have had direct email and other interactions with the plaintiffs with respect to forfeitures, is not evidence that FCS had or exercised any capacity to control the manner in which Hotline paid plaintiffs or prevent Hotline’s wage and hour violations. In Martinez, the power of the merchant to indirectly force employment decisions by withdrawing business was insufficient to satisfy the second “suffer or permit” prong; “[s]uch a business relationship, standing alone, does not transform the purchase into the employer of the supplier’s workforce.” (Martinez, supra, 49 Cal.4th at p. 70.)
c. Common Law Employment Relationship
In their effort to demonstrate a triable issue of fact as to the common law employment relationship prong, plaintiffs rely on the affidavit for bail undertaking, the face sheet of the bond, and the notice of forfeiture of the bond, which they argue “comprised the written ‘engagement’ for an employment relationship.” Citing Ayala v. Antelope Valley Newspapers, Inc.
(2014) 59 Cal.4th 522, they argue the test is not how much control the hirer exercises, but how much it “retains the right to exercise.”17 Plaintiffs maintain FCS retained “broad control” over Hotline via the general agent agreement, and in turn Hotline imposed significant control over their working conditions, equipment and training.
employee conducted the various tasks Shell required of ARS, there is nothing indicating Shell would have any input on that situation. There is not a triable issue of fact on the issue of Shell controlling Curry’s working conditions.” (Id. at p. 303.) Apart from the flawed logic, for the reasons explained above, we disagree that the general agent agreement reflects FCS’s “broad control” over Hotline’s fugitive recovery personnel, much less their hours, pay, and working conditions.
For the same reasons stated above, we cannot say plaintiffs’ evidence establishes the requisite “ ‘ “control of details” ’ ” by FCS of the manner and means by which they accomplished their work. (Curry v. Equilon Enterprises, LLC, supra, 23 Cal.App.5th at p. 304.) Plaintiffs acknowledge the secondary factors, but do not directly address them. That the bail bond paperwork identifies FCS as the “Surety Company” and Hotline as the “Bail Bond Agency” or “Bonding Agency” does not alone demonstrate such control over details of plaintiffs’ fugitive recovery work as to create a common law employment relationship between FCS and Hotline. Plaintiffs argue the documents “reflect the principal/agency relationship between FCS and [Hotline],” but “[t]he parties’ use of a label to describe their relationship does not control and will be ignored where the evidence of their actual conduct establishes a different relationship exists.” (Futrell, supra, 190 Cal.App.4th at p. 1435.) Whatever language plaintiffs relied upon in the bail bond paperwork, there is no evidence FCS in fact had the sort of “control of details” as described in Curry and Futrell. (Curry, supra, 23 Cal.App.5th at pp. 305-308; Futrell, at p. 1434.) While FCS may have performed audits, ensured bond paperwork was in order, and sought status updates on forfeitures, there is no evidence demonstrating FCS had input into the hiring, firing, or
payment of fugitive recovery personnel, dictated how such personnel accomplished their work, or supervised that work.
V. Fraud Cause of Action
In their operative complаint, plaintiffs allege defendants failed to comply with a “non-delegable statutory obligation” to post the Wage Order in a place where employees could read it easily, and a similar nondelegable duty under Labor Code sections 226.8, 2753, and 2800 through 2802 to refrain from making statements inducing them to enter into employment as independent contractors or demand they make expenditures on defendants’ behalf. Though plaintiffs further allege defendants intended that plaintiffs remain ignorant of their rights under Wage Order No. 4 and the Labor Code, those allegations are not made against FCS. Likewise, plaintiffs allege certain defendants made affirmative statements as to their classification as independent contractors, but do not include FCS in those allegations. Plaintiffs allege defendants’ concealment of information contained in the required postings was a substantial factor in causing them harm.
In moving for summary judgment FCS argued it never had any oral or written communications with plaintiffs, and it was not an employer obligated to post wage orders or workers’ compensation notices. It also argued the fraud cause of action was barred by the so called “new right/exclusive remedy” doctrine. Under this principle, “ ‘[w]here a statute [or statutory scheme] creates new rights and obligations not previously existing in the common law, the express statutory remedy is deemed to be the exclusive
remedy available for statutory violations, unless it is inadequate.’ ” (Beach & Bluff Conservancy v. City of Solana Beach (2018) 28 Cal.App.5th 244, 262; Brewer v. Premier Golf Properties (2008) 168 Cal.App.4th 1243, 1252.)
Plaintiffs contend they can prevail on this cause of action because FCS is an employer “operating through its agent” and is liable under respondeat superior. As for the exclusive remedy doctrine, they argue “FCS does not identify where the Labor Code provides a remedy for falsely inducing an employee . . . to work as an independent contractor, who then incurs damages” nor does it “identify where the Legislature intended to provide an exclusive remedy for such deception, let alone any remedy.” They point out that common law deceit predates the statutes of 1872. In their reply papers, plaintiffs say that as a result of defendants’ misclassification of them as independent contractors they were unable to obtain medical coverage and suffered tax problems for the failure to withhold taxes from their payroll.
We need not reach the new right/exclusive remedy doctrine. Plaintiffs’ pleadings govern the summary judgment issues. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.) Plaintiffs’ operative complaint does not allege affirmative misrepresentations by FCS, and we have already held there is no triable issue that FCS was their employer under a duty to make representations or disclosures under labor laws. An element of fraud based on concealment is that the defendant must have been under a duty to disclose a material fact to the plaintiff. (Bank of America Corp. v. Superior Court (2011) 198 Cal.App.4th 862, 870.) Because the alleged deception or
concealment was grounded in the violation of Labor Code or other “statutory” obligations, summary judgment was appropriate.
VI. Unfair Competition Claim
Plaintiffs contend for the same reasons stated with regard to their other claims, FCS “is liable” on their claim of unfair competition under theories of agency and respondeat superior. As support, they cite the same authority presented in their opposing summary judgment papers: People v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219 as well as a treatise stating that a defendant may be secondarily liable for UCL violations via aiding and abetting, agency, respondeat superior and other theories. At bottom, plaintiffs’ argument is an acknowledgment that their UCL claim is dependent on their Labor Code violation claims.
There is not a triable issue of material fact on plaintiffs’ UCL claim. Plaintiffs’ sole theory under the UCL is that they lost money and property “due to [FCS’s] . . . practices of violating the Labor Code . . . .” Having concluded summary judgment was properly granted on plaintiffs’ Labor Code violation claims, this dependent claim falls. (Accord, Martinez, supra, 49 Cal.4th 48, fn. 10 [plaintiffs’ UCL claims depended on validity of three Labor Code violation claims; summary judgment affirmed as to all claims based on wage order’s employer test]; accord, Henderson v. Equilon Enterprises, LLC, supra, 40 Cal.App.5th at pp. 1114, 1130 [affirming summary judgment on UCL claim based on conclusion that Shell was not a joint employer under Martinez]; AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. (2018) 28 Cal.App.5th 923, 950 [when underlying legal clаim fails, so too will a derivative UCL claim].)
Plaintiffs’ treatment of their discrimination/retaliation under FEHA and wrongful termination causes of action are cursory. They maintain the FEHA claim is “valid” because FEHA defines an “employer” as including “any person acting as an agent of an employer, directly or indirectly” (
A. FEHA Discrimination/Retaliation Claim
In moving for summary judgment on plaintiffs’ FEHA claim, FCS argued plaintiffs were required to prove FCS was their employer for purposes of FEHA, but there was no triable issue of fact under factors stated in Vernon v. State of California (2004) 116 Cal.App.4th 114 relevant to FCS’s ability to control the means and manner of their work. Plaintiffs do not address Vernon on appeal or address the evidence that FCS did not hire them, pay them, or otherwise control their working conditions. The FEHA standard of an employer “requires ‘a comprehensive and immediate level of “day-to-day” authority’ over matters such as hiring, firing, direction, supervision and discipline of the employee.” (Patterson, supra, 60 Cal.4th at p. 499.) The evidence does not create a triable issue on that point. The Government Code definition plaintiffs cite “was intended ‘to ensure that employers will be held liable if their supervisory employees take actions later found discriminatory.’ ” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th
568, 580-581.) Plaintiffs presented no evidence that any FCS representative, supervisory or otherwise, took some discriminatory or retaliatory action against them.
B. Wrongful Termination
As for plaintiff’s wrongful termination claim, FCS argued plaintiffs could not establish they were employed by FCS or that FCS terminated them, essential elements of such a claim. It pointed to evidence that it did not directly or indirectly hire or discharge plaintiffs. FCS further argued that the common law cause of action for wrongful termination fell with the Labor Code wage and hour claims, and absent a violation of any underlying statute, it was entitled to judgment as a matter of law. Plaintiffs’ argument does not address the evidence on these elements, and it does not persuade us that summary judgment was improperly granted on this claim.
The judgment is affirmed.
O’ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.