FILED
NOT FOR PUBLICATION AUG 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DARLENE HOYT, No. 11-55663
Plaintiff - Appellant, D.C. No. 3:07-cv-01733-BEN-
RBB
v.
CAREER SYSTEMS DEVELOPMENT MEMORANDUM *
CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted August 8, 2012
Pasadena, California
Before: REINHARDT, SILVERMAN, and WARDLAW, Circuit Judges.
Plaintiff Darlene Hoyt appeals the judgment entered in favor of Defendant
Career System Development Corporation. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Plaintiff asserts that the district court erred in its instruction to the jury
regarding the “right to control.” We disagree. The district court properly
instructed the jury that, though the right to control is the most important factor in
determining whether a worker is an employee or an independent contractor, it is
not the only factor. Under California law, the jury was required to consider
secondary factors, such as whether the right to discharge at will existed, if
specialized skills were needed for the work, and who supplied the tools and place
of work. See S.G. Borello & Sons, Inc. v. Dep’t of Indus. Relations, 769 P.2d 399,
404, 408–09 (Cal. 1989). In any event, the district court’s instructions told the jury
only that the additional factors may show that she was an employee. Thus, it is
difficult to see how Plaintiff could have been prejudiced by that instruction.
Plaintiff also argues that the district court erred when it granted summary
judgment on her Unruh Civil Rights Act claim. We again disagree. Here, unlike
in Payne v. Anaheim Memorial Medical Center, Inc., 30 Cal. Rptr. 3d 230, 244–45
(Ct. App. 2005), Plaintiff was compensated for work and Defendant directed that
work. Because the Unruh Act only applies to discrimination by a business
establishment “in the course of furnishing goods, services or facilities to its clients,
patrons or customers” and Plaintiff was none of these, the district court correctly
granted summary judgment on Plaintiff’s Unruh Act claim. See Alcorn v. Anbro
2
Eng’g, Inc., 468 P.2d 216, 219–20 (Cal. 1970); see also Johnson v. Riverside
Healthcare Sys., LP, 534 F.3d 1116, 1125–26 (9th Cir. 2008).
AFFIRMED.
3