Curry v. Equilon Enterprises, LLC

Filed 4/26/18
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

SADIE M. CURRY,

Plaintiff and Appellant, E065764

v. (Super.Ct.No. RIC10014774)

EQUILON ENTERPRISES, LLC, OPINION

Defendant and Respondent.

APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge.

Affirmed.

Samuel T. Rees for Plaintiff and Appellant.

Reed Smith, Raymond A. Cardozo and Remy Joseph Kessler for Defendant and

Respondent.

Plaintiff and appellant Sadie M. Curry brought a class action case against

defendant and respondent Equilon Enterprises, LLC, doing business as Shell Oil

Products US (Shell). Curry’s causes of action included (1) failure to pay overtime

compensation; (2) failure to pay for missed break periods; and (3) unfair business

practices (Bus. & Prof. Code, § 17200). The trial court found Shell was not Curry’s

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employer and therefore granted Shell’s motion for summary judgment. Curry contends

the trial court erred in its finding and by granting summary judgment. We affirm the

judgment.

FACTUAL AND PROCEDURAL HISTORY

A. BACKGROUND

Prior to May 2003, Shell owned approximately 365 service stations in California.

Shell operated some of the stations itself, with its own employees. Prior to May 2003,

Shell changed its business model. Shell no longer operated its own service stations with

its own employees. Instead, Shell offered leases and operating agreements to entities

that sought to run Shell’s service stations. The leases provided that the operators/lessees

(Operators) had a lease interest in the service stations’ convenience stores and car wash

facilities. Operators retained all the profits from the convenience stores and car wash

facilities.

The operating agreements were known as “Multi-Site Contractor Operated Retail

Outlet Agreements” (MSO Contract). Under the MSO Contract, Operators operated the

stations’ fuel facilities for Shell in exchange for compensation from Shell.1 Shell

owned the gasoline that was sold to customers. Shell received all the revenue from the

fuel sales. Shell unilaterally set the fuel prices. Operators were required to complete

daily gasoline price surveys from competing gas stations, submit that information to

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The parties stipulated that the MSO contract was not a franchise agreement.
(15 U.S.C.A. § 2801; Bus. & Prof. Code, § 20999.)

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Shell, and then change the fuel prices as directed by Shell. Shell reimbursed Operators

for the labor expenses associated with operating the fuel portion of the service station.

In addition to the daily price surveys, Shell required Operators to perform

various tasks for the purposes of maintenance, safety, accounting, and maintaining

Shell’s brand standards. The tasks were set forth in the “MSO Site Operations Manual,”

which was produced by Shell. Although Shell required Operators to conduct certain

tasks, “operator[s] always maintained control over the daily work of [their] own

employees.”

Some of the tasks that were required included: (1) daily inventory reconciliation

of fuel—tracking the amount of fuel stored in Shell’s tanks against the amount of fuel

sold to customers; (2) routine maintenance of the car wash performed by certified

technicians; (3) maintaining a file of station records, such as sales reports, any credit

card imprints, and recorded “drive-offs”/non-payments; (4) on a daily basis,

transmitting a report of fuel sales and credit card data; and (5) on a monthly basis,

transmitting a report of convenience store and car wash sales.

One clause in the MSO Contract provided, “Operator has the right to select, hire,

and discharge such employees, provided, however, Operator shall remove any such

employee promptly upon [Shell’s] request for good cause shown. [Shell] shall not

select, hire, discharge, supervise or instruct any of Operator’s employees.” Another

clause in the MSO Contract provided, “[Shell], its agents, and representatives may enter

any [station], at all reasonable times, to inspect the facilities, procedures, and material

being used in the sale of the Motor Fuel Products or other products, to obtain samples of

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and conduct tests on the Motor Fuel Products, to inspect the Records, and to audit,

observe, and otherwise verify Operator’s compliance with this Agreement.”

Shell also provided Operators with an “Enhanced Customer Value Proposition

Reference Guide” (CVP Guide). The CVP Guide was designed to help Operators meet

Shell’s brand standards by recommending certain tasks and frequencies for the

performance of the tasks. Some examples: (1) fuel price signs should be clean and

unobstructed, therefore signs should be inspected daily; (2) landscaping should be well

maintained without weeds or garbage, therefore weeds should be pulled on a weekly

basis and litter should be collected at least once a shift; and (3) the air and water

machine should function properly, therefore, at the start of each shift, the machine

should be inspected. The CVP Guide explained that because the Operators’ stations are

independent businesses, different methods or frequencies may be used than those

recommended by Shell.

Shell also provided Operators with a “Retail Service Station Health, Safety and

Environmental Reference Manual” (HSE Reference). The HSE Reference “contains

summary information about various Federal health, safety and environmental laws and

regulations.” It also contains information about how to deter robberies.

From May 2001 to March 5, 2003, Curry was employed directly by Shell and

worked at a station in Menifee. In March 2003, Curry began working at a gas station

operated by Circle K Stores, Inc., which was not affiliated with Shell.

A.R.S., a limited liability company (ARS) had an MSO Contract and leases with

Shell. “ARS operated approximately 15 gas stations throughout San Diego County and

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employed over 100 people at those stations.” One of ARS’s stations was the Via

Rancho station. Another of ARS’s stations was the Carmel Mountain station. The Via

Rancho station and the Carmel Mountain station each had a convenience store and a car

wash. Both stations had copies of the MSO Site Operations Manual, the CVP Guide,

and the HSE Reference.

In July 2003, Curry met with an ARS employee who recruited Curry to manage

the Via Rancho station in exchange for a $32,000 annual salary. Curry completed an

ARS employment application, and then signed ARS’s offer of employment. Curry was

not required to read the MSO Site Operations Manual, CVP Guide, or HSE Reference.

ARS assigned Curry’s job duties. Curry reported to ARS employees. Curry was

trained by ARS employees. The cashiers supervised by Curry were ARS employees. In

April 2004, Curry “was promoted by ARS to multi-site manager and at that time

became manager of [a second station,] the Carmel Mountain Station.” The cashiers

Curry supervised at the Carmel Mountain Station were ARS employees.

Curry prepared daily reports for ARS. “Curry was instructed by ARS to conduct

gas surveys and to transmit on a daily basis . . . the information/results to ARS.” When

Shell inspected the two stations Curry managed, if Curry was present then she walked

around the station with the inspector. Inspections occurred three to four times a year.

“ARS alone determined that Curry would be deemed an exempt employee, at

which station(s) Curry would work, when she would work and what compensation and

health and welfare benefits she should receive. ARS also undertook responsibility for

paying Curry.” “ARS alone made all hiring, disciplinary and promotional decisions

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with respect to Curry.” “ARS alone approved salary increases for Curry.” “ARS alone

set discipline guidelines for its own employees, including Curry.” “ARS alone

determined what duties Curry should perform based on operational demands . . . . ARS

alone also determined when Curry could take personal time off from work, when she

could take vacations and when she could make up work time she missed.” “[Shell]

never directed ARS to recruit, interview, hire, or promote any specific ARS employee.”

Under the MSO Contract, the stations were required to be open 24 hours a day,

seven days a week. The stations could not close for employee break periods. The Via

Rancho and Carmel Mountain stations operated on a schedule of three eight-hour shifts.

At least one cashier was scheduled to work along with Curry during an eight-hour shift.

“During her employment with ARS, Curry testified that she routinely worked more than

40 hours in a work week and was never paid overtime; did not take a 30 minute off-duty

meal break each day she worked more than 5 hours and while a cashier was also

working and was not paid any compensation for a missed meal break; and did not take a

10 minute off-duty rest break each day she worked more than 3.5 hours and was not

paid any compensation for a missed rest break.”

B. SECOND AMENDED COMPLAINT

Curry brought three causes of action in her Second Amended Complaint:

(1) failure to pay overtime compensation; (2) failure to pay for missed break periods;

and (3) unfair business practices (Bus. & Prof. Code, § 17200). The case was brought

on behalf of Curry and all other persons similarly employed “at third party operated

service stations located in the State of California, which stations on or after March 1,

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2003 or the date the station was converted to a multi-site operated station sold motor

fuel products owned at the time of sale to the public by Shell . . . and were operated by

third party multi-site operators, including A.R.S.”

Curry asserted she was misclassified as an exempt employee. Curry complained

of (1) being denied overtime wages for periods when she worked more than eight hours

a day or more than 40 hours a week; and (2) being denied meal and rest breaks without

additional compensation. Curry sought unpaid wages, statutory penalties, interest,

attorneys’ fees, costs, restitution, an injunction, and any other proper relief.

Curry alleged Shell was her joint employer, along with ARS. Curry asserted

Operators operated the fuel portion of the service stations for Shell’s benefit and Shell

reimbursed Operators for the labor expenses associated with operating the fuel portion

of the business. Curry alleged “Shell both directly and indirectly controlled the wages,

hours or working condition[s] of these employees through, among other ways, common

contractual requirements of duties and tasks to be performed by station employees, the

right to demand that specific employees be terminated, common Employer Compliance

Program requirements, common training of operators, common manuals including a site

operations manual, the . . . CVP Guide, the [HSE Reference,] and other manuals dealing

with the fuel side of the business which the operators and station employees were

required to follow pursuant to the common contracts and periodic inspections of the

stations by Shell employees or other Shell contractors.

“In addition, Shell also entered into a lease with each operator, including ARS,

for a portion of the station property, normally the convenience store and any car wash

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on the property. . . . Notwithstanding these leases, Shell both directly and indirectly

controlled the wages, hours, or working condition[s] of the employees working at these

stations through, among other ways, interrelated contractual requirements in the

operating contracts regarding duties and tasks to be performed by station employees and

the right to demand that specific employees be terminated, common training of

operators, common manuals including a site operations manual, the . . . CVP Guide

which included requirements for the leased portion of the property, the [HSE

Reference,] and other manuals dealing with the fuel side of the business and periodic

inspections of the stations by Shell employees or other Shell contractors.

“In addition, Shell indirectly controlled wages at the stations through its

unilateral setting of contract payments. Shell further has indirectly controlled working

conditions at the stations through its common contracts and in mandating that the

operators keep their stations open and staffed 24 hours a day, every day of the year . . . .

Shell has also permitted or caused station employees to suffer the requirement that

stations not be closed to permit employees who are working alone to close their station

to take ‘off-duty’ meal or rest breaks. The combination of the Shell unilaterally set

contract payments and the 24/7 Requirement has caused its operators to misclassify

station employees as exempt to require that they work more than 8 hours in a workday

and/more than 40 hours in a work week in order to reduce labor costs and make a profit

and has caused its operators to deny off-duty meal and rest breaks to employees

working alone. As a result of the foregoing, Shell is the joint employer of the

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employees working at these stations while operated by these third party operators,

including ARS.”

C. MOTION FOR SUMMARY JUDGMENT

Shell moved for summary judgment. Shell asserted Curry was not employed by

Shell and therefore her case against Shell failed. Shell contended it had a business

relationship with ARS while Curry worked for ARS, but ARS alone “managed and

controlled every aspect of its employment relationship with its gas station employees

such as Curry. For example, ARS made all recruiting, interviewing, hiring, disciplinary,

promotional and termination decisions with respect to its own employees. ARS

implemented its own personnel policies and procedures for its own employees. ARS

determined exclusively the terms and conditions of the employment of its employees,

including how much to pay them and what benefits, if any, to provide them. ARS also

determined what duties should be performed by its own employees based on operational

demands and requirements. Moreover, ARS maintained exclusive control over all

payroll, human resources and record keeping functions. ARS also controlled the

manner and means by which work was performed by its employees at the stations and it

controlled the day-to-day operations of its stations.” Shell asserted its requirement that

ARS maintain Shell’s brand image did not cause Shell to become Curry’s employer.

D. OPPOSITION

Curry opposed Shell’s motion for summary judgment. Curry asserted there were

two independent businesses at the service stations: (1) a convenience store and car

wash business owned by ARS, and (2) a fuel business owned by Shell. Curry

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contended the fuel business was the primary business. Curry asserted Shell, through

ARS, exercised control over her wages, hours, and working conditions. Shell’s control

was established through the MSO contract, the MSO Site Operations Manual, the CVP

Guide, the HSE Reference, accounting equipment and requirements, and periodic

inspections.

Curry asserted “that upon recognition of the fact that [Shell] operates a separate

business of selling motor fuel to the public for solely its own economic benefit and upon

recognition of the fact that [Shell] mandates how that business will be operated

primarily by service station employees, it is clear that a reasonable jury could find that

[Shell] was the joint employer of those service station employees.”

E. HEARING

The trial court held a hearing on Shell’s motion for summary judgment. Curry

argued that ARS received no revenue from the fuel sales, so it was effectively Shell that

was directing station employees to conduct fuel pricing surveys. Curry argued, “So

Shell is the one that’s telling the station employees, ‘You must go out and perform the

gas surveys.’ Shell is the one who wants to make sure that the motor fuel is put into the

tanks. Who’s responsible for overseeing that? The station employees. What equipment

is being used? Is it any of our equipment? No, ARS doesn’t even have a right to where

the equipment is. The yard, the pumps, the canopy piece, the underground tanks all

belong 100 percent to [Shell].

“So [Shell] says, I need a warm body there to make sure we get the [fuel]

deliveries, that the deliveries go into the tank, and then I need to have the warm body

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get the invoice from the fuel truck, and put it in their financial reports, that under the

MSO site operations manual has to be transmitted to [Shell] on a daily basis together

with all the cash receipts.

“Now, how does the station employee figure out what all the cash receipts and all

this other information is? They use Shell-owned equipment. You’ve got these—and

I’m sure you’ve seen them. You walk into the station, and you have your little Snickers

bar, and you walk up to the cash register, they scan the bar code [sic], [which] goes

directly into the computer, which directly communicates with Shell.”

Shell argued, “ARS makes the determinations as to how to comply with these

agreements. [Shell] did not tell ARS how many employees to put in its stations. It

didn’t say when these employees were supposed to work, how these employees were

supposed to work. ARS had its own supervisory chain of command telling its own

employees, when, how, and where to do the work.”

Shell continued, “[E]ven though those manuals are there [in the stations], and in

fact one of the stipulated facts is that Curry admits she never read the manuals. So how

can [Shell] be exercising the control over Curry if Curry wasn’t required to read the

manuals? And the reason why she wasn’t required to read the manuals is because ARS

was responsible for complying with its contracts and what was in the manuals and

directing its employees as to what to do. [¶] . . . [¶] The gas surveys, for instance, that

[Curry] brought up. There was no requirement under any contract that the surveys be

done by a station employee. ARS could assign a manager to go out there—meaning an

office manager or a secretary to go out and do gas surveys if it chose to do so.”

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 Shell argued, “Again, [Curry] kept referring to the fact that Shell is telling the

ARS employees what to do. There’s no evidence of that. Shell is not telling Ms. Curry

anything to do. Shell has contractual obligations with ARS that ARS is obligated to

follow, and the contract, as I said before, specifically states between the parties that

ARS at all times maintains operational control and it makes the decision as to how the

contract is going to be complied with.”

The trial court took the matter under submission. In a written ruling, the trial

court found Shell “was not Curry’s employer, either solely or jointly” and therefore her

causes of action failed. The trial court explained, “[Shell] did not determine Curry’s

compensation, did not pay the work she performed and did not handle tax reporting.

[Shell] did not determine what employment benefits Curry would receive. [Shell] did

not set employment policies for ARS employees. [Shell] did not make disciplinary

decisions, including termination decisions, involving ARS employees. [Shell] did not

tell Curry where to work or what duties to perform. In addition, neither the terms of the

MSO contract, the MSO lease, the operational manuals and training provided by [Shell]

nor the periodic gas station inspections performed by [Shell] support Curry’s

employment theory.” The trial court issued an order granting Shell’s motion for

summary judgment.

DISCUSSION

A. STANDARD OF REVIEW

“A defendant moving for summary judgment . . . ‘bears the burden of persuasion

that there is no triable issue of material fact and that [the defendant] is entitled to

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judgment as a matter of law.’ [Citation.] To meet this burden, the defendant must show

one or more elements of the cause of action cannot be established, or that there is a

complete defense to that cause of action. [Citation.] This burden can be met by relying

on the opposing party’s factually inadequate discovery responses if these responses

show the plaintiff ‘will be unable to prove its case by any means.’ [Citations.] A

defendant seeking to prevail on this ground must make an affirmative showing that the

plaintiff does not possess, and cannot reasonably obtain, evidence to prove his or her

case.

“If the defendant does not present sufficient evidence to meet its initial burden,

the court must deny the motion. [Citation.] But if the defendant satisfies its burden,

‘ “the burden shifts to the plaintiff . . . to show that a triable issue of one or more

material facts exists as to that cause of action or a defense thereto.” ’ [Citation.] The

plaintiff must present admissible evidence to establish a triable issue of fact. [Citation.]

An ‘issue of fact . . . is not created by “speculation, conjecture, imagination or guess

work.” ’ ” (Silva v. See’s Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 246.)

We apply the de novo standard of review. (Silva v. See’s Candy Shops, Inc.,

supra, 7 Cal.App.5th at p. 246.) “In evaluating the record, we strictly scrutinize the

moving party’s papers and resolve all doubts in the opposing party’s favor.” (Id. at p.

247.)

B. LAW

The Industrial Welfare Commission (IWC) “is empowered to promulgate

regulations known as ‘wage orders’ governing wages, hours, and working conditions in

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the State of California. [Citation.] Currently, there are 16 effective wage orders, most

of which cover specific industries. [Citations.] The terms of IWC wage orders are

accorded great deference by California courts.” (Aleman v. AirTouch Cellular (2012)

209 Cal.App.4th 556, 567-568.)

The IWC wage order cited in all three of Curry’s causes of action is Order No. 7-

2001 (Wage Order No. 7). (Cal. Code Regs., tit. 8, § 11070.) Wage Order No. 7

concerns the mercantile industry, which means a business “operated for the purpose of

purchasing, selling, or distributing goods or commodities.” (Cal. Code Regs., tit. 8,

§ 11070, subd. (2)(H).)

Wage Order No. 7 provides that work in excess of eight hours a day or in excess

of 40 hours a week must be compensated as overtime. (Cal. Code Regs., tit. 8, § 11070,

subd. (3)(A)(1).) Wage Order No. 7 requires a minimum 30 minute meal break for

shifts longer than five hours, and a 10 minute rest break a four hour period worked.

(Cal. Code Regs., tit. 8, § 11070, subds. (11)&(12).) The breaks and overtime

compensation are to be provided to employees by employers. (Cal. Code Regs., tit. 8,

§ 11070, subds. (3), (11) & (12); Martinez v. Combs (2010) 49 Cal.4th 35, 49

(Martinez) [“only an employer can be liable”].)

Wage Order No. 7 defines “Employer” as a person or business “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.” (Cal. Code Regs., tit. 8,

§ 11070, subd. (2)(F).) An “Employee” is defined as “any person employed by an

employer.” (Cal. Code Regs., tit. 8, § 11070, subd. (2)(E).) “Employ” is defined as

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“engag[ing], suffer[ing], or permit[ting] to work.” (Cal. Code Regs., tit. 8, § 11070,

subd. (2)(D).)

In Martinez, our Supreme Court examined “the question of how employment

should be defined.” (Martinez, supra, 49 Cal.4th at p. 50.) The high court concluded

“the IWC’s wage orders do generally define the employment relationship, and thus who

may be liable.” (Id. at p. 52.) The high court held, “To employ, then, under the IWC’s

definition, has three alternative definitions. It means: (a) to exercise control over the

wages, hours, or working conditions[, which is taken from the IWC definition of

“employer”], or (b) to suffer or permit to work[, which is taken from the IWC definition

of “employ”], or (c) to engage,” which is taken from the IWC definition of “employ.”

(Id. at p. 64.)

C. DEFINITION NO. 1: WAGES, HOURS, OR CONDITIONS

We examine whether there is a triable issue of fact as to Shell being Curry’s

employer due to Shell “exercise[ing] control over [Curry’s] wages, hours, or working

conditions.” (Cal. Code Regs., tit. 8, § 11070, subd. (2)(F); Martinez, supra, 49 Cal.4th

at p. 64.)

The undisputed facts reflect:

(1) “The MSO operator was responsible for hiring, firing, disciplining, training,

compensating and maintaining payroll records for all employees working at the station”

(italics added);

(2) “[Shell] was aware that many of the specified maintenance responsibilities

for the stations would be performed by MSO employees working at the stations

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although the MSO operator maintained the right and ability to assign any employee to

perform such duties” (italics added);

(3) “Under the MSO Contract and in order to maintain Shell[’s] brand standards,

as well as for maintenance, health, safety, environmental and/or accounting purposes,

the MSO operator was required to follow and ensure that its employees followed the

procedures, perform the responsibilities and provide the reports set forth in the MSO

Site Operations Manual, although the MSO operator always maintained control over the

daily work of its own employees” (italics added);

(4) “ARS alone determined that Curry would be deemed an exempt employee, at

which station(s) Curry would work, when she would work and what compensation and

health and welfare benefits she should receive”;

(5) “Any bonus paid to Curry while she was employed by ARS, however, was

solely at the discretion of ARS”;

(6) “During her employment with ARS, Curry received medical benefits from

ARS and she received no employment benefits from [Shell]”;

(7) “ARS alone made all hiring, disciplinary and promotional decisions with

respect to Curry”;

(8) “ARS alone approved salary increases for Curry after she was employed in

August 2003”;

(9) “Curry discussed any questions she had regarding her pay and her bonus

payments only with her [ARS] Superiors”

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 (10) ARS alone set discipline guidelines for its own employees, including

Curry”; and

(11) “ARS alone determined what duties Curry should perform based on

operational demands, requirements of her station(s) and requirements imposed by the

MSO Contract and MSO Lease. ARS alone also determined when Curry could take

personal time off from work, when she could take vacations and when she could make

up work time she missed.”

In regard to wages and hours, ARS “was responsible for hiring, firing,

disciplining, training, and compensating” Curry. This undisputed fact shows that ARS

was responsible for Curry’s wage. “ARS alone determined that Curry would be deemed

an exempt employee, at which station(s) Curry would work, when she would work and

what compensation and health and welfare benefits she should receive.” This

undisputed fact shows that ARS was responsible for the hours Curry worked and the

wage she received. “ARS alone also determined when Curry could take personal time

off from work, when she could take vacations and when she could make up work time

she missed.” This undisputed facts reflects ARS was responsible for determining

Curry’s work schedule. In sum, ARS had control over Curry’s wages and hours.

In regard to Curry’s working conditions, ARS “maintained the right and ability

to assign any employee” to perform tasks. In other words, Shell could not direct Curry

to perform a particular task, only ARS could do that. Further, ARS “maintained control

over the daily work of its own employees.” Thus, the tasks Curry was made to perform,

and the conditions in which she performed them, were not controlled by Shell—they

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were controlled by ARS. Accordingly, Shell has met its burden of establishing there is

not a triable issue of fact concerning Shell being Curry’s employer under the “wages,

hours, or conditions” definition of employer.

The burden now shifts to Curry to establish there is a triable issue of fact

concerning Shell being Curry’s employer. Curry asserts the MSO Contract, the MSO

Site Operations Manual, and the HSE Reference detail the tasks that Curry had to

perform on a daily basis. Curry asserts, “The MSO Contract mandates that ARS must

‘ensure’ that its employees perform specific tasks. In order to comply with this

mandate, ARS directed Curry to perform many of those tasks because she was the on-

site manager with only one cashier on duty with her.” (Italics added.)

The flaw in Curry’s argument lies in the phrase “ARS directed Curry.” We are

examining whether Shell exercised control over Curry’s wages, hours, or working

conditions. Curry’s argument reflects Shell exercised control over ARS, and, in turn,

ARS exercised control over Curry, but Curry has not explained how Shell exercised

control over Curry’s wages, hours, or working conditions. Shell required particular

tasks be performed by ARS, but did not mandate who or how many employees execute

the tasks. For example, if Curry worked four hours a day, took her required 10 minute

rest break, and a different ARS 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.

Next, Curry contends Shell controlled her hours because Shell required the gas

station to be open 24 hours a day, seven days a week, and required various tasks be

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performed on a daily basis, thus, Curry could not take her required breaks and had to

work overtime. Curry fails to explain how Shell exercised control over Curry, as

opposed to ARS. As explained ante, if ARS staffed the gas station with five employees

a shift, such that the various required tasks were completed by a variety of people, there

is no evidence indicating Shell would have been authorized to change such an

arrangement. In other words, Shell did not mandate that Curry perform the tasks;

rather, Shell required that ARS complete the tasks, and ARS placed the burden on

Curry. Thus, there is not a triable issue of fact on the issue of Shell controlling Curry’s

hours.

Next, Curry asserts there is a triable issue of fact as to whether Shell controlled

Curry’s wages. Curry points to evidence that Shell was required to reimburse ARS for

the reasonable expenses related to ARS employees maintaining the fueling station.

Shell unilaterally determined what amount was reasonable. This evidence does not

reflect that Curry’s wages were affected by the reimbursement. For example, it does not

reflect Curry was paid less for a shift if the reimbursement amount was lower than ARS

expected. Because Curry has not shown her wages were affected by Shell’s

reimbursement decisions, Curry has failed to show there is a triable issue of fact

concerning Shell controlling Curry’s wages.

Accordingly, we conclude Curry’s causes of action fail under the “wages, hours,

or conditions” definition of employer.

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 D. SUFFER OR PERMIT TO WORK

We examine whether there is a triable issue of fact as to Shell being Curry’s

employer due to Shell suffering Curry or permitting Curry to work. (Cal. Code Regs.,

tit. 8, § 11070, subd. (2)(D); Martinez, supra, 49 Cal.4th at p. 64.) The language

concerning an employer suffering or permitting a person to work was derived from a

desire to prevent evasion from liability by a claim that a person was not employed in a

traditional master/servant relationship. (Martinez, at p. 58.) The language arose from

child labor laws. For example, children under age 14 were not permitted to work.

Nevertheless, coal miners paid a boy to carry water for them and the boy sustained

injuries while working. The boy was not employed in a traditional sense by the mining

company, but the mining company permitted or suffered the boy’s work. (Id. at p. 58,

citing Purtell v. Philadelphia & Reading Coal & Iron Co. (1912) 256 Ill. 110, 111,

117.) This definition has been interpreted to mean “the employer ‘shall not . . . permit

by acquiescence, nor suffer by a failure to hinder.’ ” (Martinez, at p. 58, italics

omitted.) Put differently, “the basis of liability is the defendant’s knowledge of and

failure to prevent the work from occurring.” (Id. at p. 69, italics omitted.)

Accordingly, we examine if Shell met its burden of establishing there is no

triable issue of fact as to whether Shell permitted or suffered Curry’s work at the station.

The undisputed facts reflect, (1) “The MSO operator was responsible for hiring, firing,

disciplining, training, compensating and maintaining payroll records for all employees

working at the station”; and (2) “the MSO operator always maintained control over the

daily work of its own employees.” (Italics added.)

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 The undisputed evidence reflects Curry’s hiring, firing, and daily tasks were

ARS’s responsibility. Thus, Shell did not acquiesce to Curry’s employment because

Shell was not in a position to terminate Curry or hire a different person to perform the

tasks Curry performed. In other words, Shell had no role to play—it could not hire

Curry or terminate Curry’s employment. Thus, Shell could not acquiesce to Curry’s

employment.

In regard to suffering by a failure to hinder, Shell had the authority to have Curry

removed from the station upon “good cause shown.” There is no evidence indicating

what Shell may have cited as good cause for physically removing Curry from the station

so as to prevent her from working her regularly scheduled shifts. Because the “good

cause shown” clause was not triggered, Shell could not have Curry physically removed

from the station. Thus, Shell did not have the ability to hinder Curry’s work and, in

turn, could not have failed to hinder Curry’s work. In sum, Shell has met its burden of

establishing there is not a triable issue of fact concerning Shell being Curry’s employer

based on the definition of suffering or permitting Curry to work.

We now examine whether Curry has met her burden of establishing there is a

triable issue of material fact. Curry asserts “Shell caused her to suffer the non-payment

of overtime by failing to ‘hinder’ ARS.” Suffering concerns the alleged employer’s

failure to hinder the alleged employee’s work by not stopping the alleged employee

from working, e.g., not stopping the boy from carrying water to the coalminers.

(Martinez, supra, 49 Cal.4th at pp. 58, 69-70 [“failure to prevent the work from

occurring”].) It does not concern suffering by the employee due to the alleged failure to

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pay wages owed. Also it does not concern failing to hinder a third party, e.g., ARS.

Accordingly, we conclude Curry has failed to meet her burden of establishing there is a

triable issue of fact as to Shell being Curry’s employer based upon the definition of

suffering or permitting Curry to work.

Thus, we conclude Curry’s causes of action fail under the “suffering or

permitting” definition of employer.

E. ENGAGE

We examine whether there is triable issue of fact concerning Shell being Curry’s

employer under the “to engage” definition of employer.

1. LAW

“‘[T]o 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.” (Martinez, supra, 49 Cal.4th at p. 64, fn. omitted.) The common law test

focuses on the issue of whether a worker is an employee or an independent contractor.

(Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 11.)

The essence of the common law employment 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—but there are a number of additional factors in the

modern equation, including (1) whether the worker is engaged in a distinct occupation

or business, (2) whether, considering the kind of occupation and locality, the work is

usually done under the principal’s direction or by a specialist without supervision,

(3) the skill required, (4) whether the principal or worker supplies the instrumentalities,

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tools, and place of work, (5) the length of time for which the services are to be

performed, (6) the method of payment, whether by time or by job, (7) whether the work

is part of the principal’s regular business, and (8) whether the parties believe they are

creating an employer-employee relationship. [Citations.] The parties’ label is not

dispositive and will be ignored if their actual conduct establishes a different

relationship.” (Estrada v. FedEx Ground Package System, Inc., supra, 154 Cal.App.4th

at p. 10.)

2. DISTINCT OCCUPATION OR BUSINESS

The first factor is whether Curry engaged in a distinct occupation or business.

Curry worked at two gas stations, one at Via Rancho and another at Carmel Mountain.

The undisputed facts reflect, “As an ARS station manager, Curry supervised

approximately five to seven ARS cashiers.” Thus, Curry was engaged in the distinct

occupation of an ARS station manager.

3. SUPERVISED OR UNSUPERVISED

The second factor is whether considering the kind of occupation and locality, the

work is usually done under the principal’s direction or by a specialist without

supervision. “While employed by ARS, Curry reported to and took direction from ARS

employees . . . and, at times, from the manager of the ARS HR department.” From this

evidence it can be inferred that Curry’s job was performed under the principal’s

direction. In this case, the principal was ARS. In regard to Shell providing direction to

Curry, Shell required various tasks be performed by ARS; however, there is nothing

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indicating that Shell required Curry be the person to perform those tasks. It was ARS

that required Curry to perform certain tasks.

4. SKILLS

The third factor is the skill required for the work. Curry worked directly for

Shell from May 2001 to March 2003. From March to July 2003, Curry worked “at a

gas station.” “In July, 2003, Curry was contacted [by an ARS employee] for the

purpose of recruiting Curry to become the manager of the Via Rancho Station.” It can

be inferred from this evidence that skills are needed for managing a gas station. The

evidence that Curry was recruited by ARS indicates a particular skill set was desired—

ARS wanted a person with experience in the field.

The undisputed evidence reflects (1) “[Shell] never directed ARS to recruit,

interview, hire, or promote any specific ARS employee”; and (2) “ARS alone

determined what duties Curry should perform.” Because Shell did not have input on the

hiring process or Curry’s job duties, it can be inferred that Shell did not require a

particular skill sets because Shell did not have input on the tasks performed by a

particular employee.

5. INSTRUMENTALITIES, TOOLS, AND PLACE OF WORK

The fourth factor is whether the principal or worker supplies the

instrumentalities, tools, and place of work. Curry’s job training was provided by ARS.

ARS required Curry attend environmental compliance courses taught by Shell. ARS

paid for Curry’s time at the classes. Curry was required to wear a shirt and a nametag

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that were purchased by ARS and given to Curry by ARS. Thus, ARS provided Curry

with the information and uniform necessary to conduct her work.

Further, ARS operated the fueling facilities and leased the convenience stores

and car wash facilities where Curry worked. Shell owned the fueling facilities. Thus,

ARS and Shell provided Curry with a place to work—ARS provided the convenience

store and car wash, while Shell provided the fueling station, i.e., the fueling islands.

Shell also provided fuel and the fueling equipment, such as the fuel storage tanks.

Curry’s job duties included “many of the tasks set forth in the MSO Site Operations

Manual, the CVP . . . Guide, and the [HSE Reference].” Therefore, it can be inferred

that Curry’s job duties involved tasks such as determining the amount of fuel in the

storage tanks. As a result, Shell provided some of the equipment for Curry’s job, in that

Curry performed tasks related to Shell’s fueling equipment.

6. LENGTH OF TIME

The fifth factor is the length of time for which the services are to be performed.

The undisputed facts reflect “ARS alone determined that Curry would be deemed an

exempt employee . . . [and] when she would work.” Thus, ARS determined what shifts

Curry would work. The undisputed facts reflect, “ARS alone made all hiring,

disciplinary and promotional decisions with respect to Curry.” Thus, Curry’s hiring and

any possible termination would be decided by ARS. The undisputed facts reflect, “ARS

alone also determined when Curry could take personal time off from work, when she

could take vacations and when she could make up work time she missed.” Thus, ARS

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decided when Curry could miss work. In sum, ARS decided the length of time for

which Curry’s work was to be performed.

Curry asserts Shell was able to determine the length of time Curry worked

because Shell had the right to effectively terminate Curry. The MSO Contract provides,

“Operator has the right to select, hire, and discharge such employees, provided,

however, Operator shall remove any such employee promptly upon [Shell’s] request for

good cause shown. [Shell] shall not select, hire, discharge, supervise or instruct any of

Operator’s employees.”

The MSO contract authorizes Shell to have ARS remove an ARS employee from

a station, but does not permit Shell to terminate any ARS employee’s employment. For

example, if Shell requested Curry be permanently removed from its stations, then ARS

could employ Curry in its offices or assign Curry the off-site task of driving around

checking competing station’s gas prices. The evidence cited by Curry does not create a

triable issue of fact as to whether Shell could terminate Curry’s employment because it

does not indicate that Shell could terminate Curry’s employment.

7. PAYMENT

The sixth factor is the method of payment, whether by time or by job. When

ARS offered Curry the position of manager of the Via Rancho Station, it offered an

annual salary of $32,000. Thus, Curry was a salaried employee of ARS; she was not

paid a project. The undisputed facts reflect ARS “maintained exclusive control over all

payroll” for Curry. Thus, Curry was not paid by Shell.

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 8. REGULAR BUSINESS

The seventh factor is whether the work is part of the principal’s regular business.

“ARS operated approximately 15 gas stations San Diego County and employed over

100 people at those stations.” Given this undisputed fact, it can reasonably be inferred

that Curry’s management of two gas stations was part of ARS’s regular business

because ARS’s business involved operating gas stations.

Shell owned approximately 365 fueling stations in California. There is nothing

indicating Shell employed people at the gas stations. Thus, Curry’s work at the fueling

station was not part of Shell’s business. In other words, Shell was not in the business of

operating fueling stations—it was in the business of owning real estate and fuel.

Curry contends “Shell was and is in the business of selling its motor fuel at

facilities which it owns. . . . ARS merely provided the station employees and made sure

that they performed their tasks in the manner in which Shell dictated.” Curry’s

argument is problematic. If ARS supplied the employees and supervised the

employees’ work, then ARS was in the business of operating the station, and Shell was

in the business of owning the station.

For example, if the owner of an apartment complex hires a property management

company, and that property management company hires an on-site manager for the

complex, the owner is not engaged in the business of property management. Rather, the

owner is in the business of owning real estate, while the property management company

is in the business of managing properties. Shell’s contract with ARS did not put Shell

in the business of operating fuel stations.

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 9. BELIEFS

The eighth factor is whether the parties believe they are creating an employer-

employee relationship. The undisputed facts reflect “Curry completed an Application

for Employment with ARS” and “received, signed and returned to ARS a writing

outlining her conditional offer of employment.” These undisputed facts support the

inference that Curry and ARS believed they were creating an employer-employee

relationship.

In regard to Shell, when Curry met with the recruiter who recruited her to work

at the Via Rancho station, Curry believed the recruiter was a Shell employee. However,

at that recruitment meeting, “Curry completed an Application for Employment with

ARS.” The reasonable inference from these undisputed facts is that Curry initially

believed at the recruitment meeting that she was being offered a job by Shell, but came

to understand in the recruitment meeting that she was being offered a job by ARS,

hence the ARS job application. Thus, the undisputed facts do not reflect Shell and

Curry believed they created an employer-employee relationship.

10. CONCLUSION

In sum, Shell, along with ARS, provided Curry a place to work and the

equipment with which she performed her job. Providing a portion of Curry’s work

location and equipment is insufficient to raise a triable issue of material fact as to Shell

being Curry’s employer due to the many other factors reflecting Shell is not Curry’s

employer.

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 In other words, one could not reasonably conclude that Shell controlled the

manner and means by which Curry accomplished her work because Shell did not

supervise Curry, Shell did not have input on Curry’s skills, Shell did not have control

over the length of time Curry performed her job, Shell did not pay Curry, Shell was not

in the business of operating service stations, and Shell and Curry did not believe they

were creating an employer-employee relationship. Accordingly, we conclude Curry’s

causes of action fail under the “to engage” definition of employer.

F. CONCLUSION

In conclusion, Curry’s three causes of action fail because there is not a triable

issue of material fact concerning Shell being Curry’s employer under any of the three

legal definitions of employer. The trial court properly granted summary judgment.

DISPOSITION

The judgment is affirmed. Respondent is awarded its costs on appeal.

CERTIFIED FOR PUBLICATION

MILLER
Acting P. J.

We concur:

CODRINGTON
J.

SLOUGH
J.

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