Martinez v. Combs 11/18/03 CA2/6

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B161773

Case Date: 03/03/2004

Preview:Filed 11/18/03 Martinez v. Combs CA2/6

NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX MIGUEL MARTINEZ et al., Plaintiffs and Appellants, v. CORKY N. COMBS et al., Defendants and Respondents. 2d Civil No. B161773 (Super. Ct. No. CV001029) (San Luis Obispo County)

Miguel Martinez, Antonio Perez Cortes, Hilda Martinez, Otilio Cortes, Catarino Cortez and Asuncion Cruz (workers) appeal a judgment of dismissal after the court granted summary judgment on their causes of action for wages against Corky N. Combs, Larry D. Combs, Combs Distribution Co. (collectively Combs), Juan Ruiz, Jr., and Apio, Inc. (Apio). We conclude, among other things, that the trial court properly granted summary judgment in favor of Combs, Apio and Ruiz because they did not exercise sufficient control over the workers and the agricultural operation to be joint employers. It properly dismissed the workers' sixth cause of action because they did not show that they were third party beneficiaries to a contract between Apio and Isidro Munoz. But

the court erred by dismissing the workers' seventh cause of action because there were triable issues of fact as to whether Combs' agent agreed to pay the workers' wages and whether they relied to their detriment on that promise. We reverse as to the seventh cause of action and affirm as to all remaining causes of action. FACTS The workers belonged to crews that grew and harvested strawberries for Isidro Munoz. Munoz signed contracts with Combs and Apio to sell the crops. He also harvested strawberries for two other companies, the Ramirez Brothers and Frozun. In 2000 Munoz's company grew strawberries on four ranches and he invested $500,000 in these operations. Munoz testified in his deposition that his foremen supervised his workers and he decided which fields to pick. He trained the workers and provided the gloves and other equipment they would use. He purchased or leased the seeds, plastic, tools, tractors and other equipment to run the operations. He hired the workers, set their compensation rates and decided how many hours they should work. When Munoz became insolvent, he was unable to pay the workers. Apio's Contract With Munoz Apio and Munoz signed a "Farmer Agreement" which provided that Munoz was responsible for growing produce and Apio would sell it. It authorized Apio to advance money to Munoz and take a security interest in the crops. It prevented Munoz from selling or encumbering title to the crops without Apio's permission. It gave Apio a "full" and "undisputed . . . right of entry" onto Munoz's land with the right to inspect the crops "at any time." Apio decided whether Munoz's performance was adequate. If it was not, Apio had the right to "enter the fields and maintain the growing business operations[.]" The agreement states Munoz is "an independent contractor" and people who work in his operations are his employees. The agreement's "Legal Compliance" provision states: "Farmer [Munoz] warrants that it will comply with all provisions of 2

federal, state and local laws applicable to its farming operations, including, without limitation, labor, health and safety, industrial hygiene, environmental protection, land use and hazardous substances, and that it possesses all required licenses, authorizations, and permits to operate the same." Munoz said in his declaration that he did not understand the Farmer Agreement because it was in English and he speaks Spanish. Apio prepared it but did not translate it for him. He subleased the agricultural land from Apio and it provided him money so he could grow strawberries. He harvested and delivered strawberries exclusively to Apio. Apio staff supervised him. They told him what crop to pick and how to pack it. The crop had to be packed in boxes with Apio's label. Munoz relied on Apio to pay him and calculate how much it owed him. He and the workers delivered 40,000 boxes of strawberries to Apio in a 6-week period. Apio did not pay him, and he could not pay the workers. Department of Labor Standards Enforcement (DLSE) Investigation of Unpaid Wages Paul Rodriguez, a DLSE investigator, contacted Tim Murphy, Apio's vice-president, about the unpaid wages. Murphy provided DLSE a list of the workers and said he was "'holding the money'" to pay them. He wrote checks, but Rodriguez determined that "the checks . . . did not cover all the wages owed[.]" Combs' Contract With Munoz Combs loaned Munoz $80,000 to harvest strawberries on a 40-acre field. Combs and Munoz signed a contract which gave Combs exclusive title to the crops produced on that field for the year 2000 "or until [the] loan is paid off." Munoz said Ruiz, Combs' field representative, supervised the "quality of the produce." During April and May of 2000, Ruiz came to the field on a daily basis. He told Munoz "how much to pick, which fruit to pack, which fruit to discard, and how to pack the fruit[.]"

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Ruiz's Promise to Pay the Workers The workers' declarations stated that they stopped working on May 27, 2000, because Munoz had not paid them. They returned to work because Ruiz told them he "guaranteed" that they "would be paid." He said "his boss," Combs, had checks for Munoz which were sufficient to pay "all" the workers. They believed Ruiz because they saw him "checking the strawberries virtually every day[.]" Otilio Cortes's declaration said he worked until June 24, 2000, but was not paid "for work completed between May 22 and June 24." Larry Combs said in his deposition that Ruiz worked for him as a "field representative." Combs paid for business cards which identified him as working in that capacity. Ruiz testified he was employed by Combs from September 1999 through August 2000. He later testified he was not employed by Combs during that period. He said he was doing "business" with 100 other "farmers or ranchers." In granting summary judgment, the trial court found that Apio and Combs were not the workers' employers within the meaning of Industrial Welfare Commission (IWC) wage order No. 14; Combs did not agree to pay their wages; and the workers were not third party beneficiaries to the Apio-Munoz contract. DISCUSSION I. Exercising Control of Wages, Hours or Working Conditions The workers contend the trial court erred because there were triable issues of fact about whether Combs, Ruiz and Apio were joint employers. They argue there were reasonable inferences that they exercised "control over wages, hours or working conditions" within the meaning of IWC wage order No. 14. We disagree. "'[A] summary judgment is a drastic measure which deprives the losing party of [a] trial on the merits.'" (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) We review an order granting summary judgment de novo to decide whether there is a triable issue of fact. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) 4

We review all the evidence and "'all' of the 'inferences' reasonably drawn therefrom . . . in the light most favorable to the opposing party." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) IWC wage order No. 14 defines an employer as "any person . . . who directly or indirectly, or through an agent or any other person . . . exercises control over the wages, hours or working conditions of any person." (Cal. Code Regs., tit. 8,

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