Robinson v. Stryker Corp. CA6

Filed 3/28/24 Robinson v. Stryker Corp. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JOSHUA ROBINSON, H050336
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 20CV366898)

v.

STRYKER CORPORATION,

Defendant and Respondent.

Appellant Joshua Robinson filed this action on June 1, 2020, under the Private
Attorneys General Act (PAGA; Lab. Code, § 2698 et seq.) against respondent Stryker
Corporation (Stryker), a medical technology company.1 Robinson alleged that Stryker
had committed various Labor Code wage and hours violations. He alleged that he was
bringing the action “on behalf of himself and other current and former aggrieved
employees of [Stryker] for penalties.”
Stryker moved for summary judgment on the grounds, inter alia, that Robinson
lacked standing because he was not a Stryker employee. Rather, Stryker contended,
Robinson was an employee of Pomeroy Technologies, LLC (Pomeroy), which supplied
its employees to provide on-site information technology (IT) services to Stryker at its

Robinson also sued Stryker Sales Corporation and Howmedica Osteonics Corp.
1

(Howmedica). The record reflects that on November 5, 2020, Robinson dismissed
Stryker Sales Corporation and Howmedica from the action.
various business locations.2 Robinson opposed the motion. In a detailed order filed
July 6, 2022, the court granted the motion for summary judgment. The trial court found
that Stryker had met its initial burden of negating an essential element of the complaint
by establishing that it had not employed Robinson, and that Robinson had failed to raise a
triable issue of material fact establishing such employment. Because the court concluded
that Pomeroy, not Stryker, was Robinson’s sole employer, and since only an aggrieved
employee has standing to assert a PAGA claim (see Kim v. Reins International
California, Inc. (2020) 9 Cal.5th 73, 81 (Kim)), it granted Stryker’s motion for summary
judgment. Judgment was entered in favor of Stryker on August 8, 2022.
On appeal, Robinson asserts that he raised triable issues of material fact in his
opposition as to whether he was a Stryker employee under the legal theory that Stryker,
along with Pomeroy, was a joint employer. Based upon our de novo review of the
motion for summary judgment, we find no error. We will therefore affirm the judgment.
I. PROCEDURAL BACKGROUND
A. Pleadings
On June 1, 2020, Robinson filed this action against Stryker, alleging that he had
been “employed by [Stryker] within the statutory time period.” He pleaded one cause of
action for civil penalties under PAGA, claiming that Stryker had committed various wage
and hours violations of the Labor Code. Robinson claimed that Stryker had “(1) fail[ed]
to pay all meal period wages and rest break wages, (2) fail[ed] to properly calculate and
pay all minimum and overtime wages, (3) fail[ed] to provide accurate wage statements,
(4) fail[ed] to pay all wages due and owing during employment and upon termination of
employment, and (5) fail[ed] to reimburse all necessary business expenses.” Robinson
alleged that he was bringing suit “on behalf of himself and other current and former
aggrieved employees of [Stryker].”

2The record reflects that in July 2018, Getronics acquired Pomeroy by merger.
We will refer to the entity that provided on-site IT services to Stryker as Pomeroy.

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 Stryker filed an answer to the complaint. Among other affirmative defenses,
Stryker alleged that Robinson’s claim was barred “because there was no employment
relationship with [Stryker].”
B. Stryker’s Summary Judgment Motion
In March 2022, Stryker filed a motion for summary judgment. Stryker’s essential
argument was that Robinson was at all relevant times employed by Pomeroy, not by
Stryker. Rather, Stryker outsourced its IT work to Pomeroy, and Pomeroy supplied its IT
employees to Stryker. Indeed, after leaving Pomeroy’s employment, Robinson himself
confirmed that his employer had been Pomeroy.
In support of its position, Stryker relied substantially on a July 13, 2017 Master
Services Agreement (MSA or Services Agreement) between Pomeroy, as Contractor, and
Stryker, as Client. Under that Services Agreement, the parties agreed, inter alia, that
(a) Pomeroy would provide IT support to Stryker; (b) Pomeroy would “be the employer
in law and in fact of all persons assigned to [Stryker] perform the Services”; (c) Pomeroy
would supervise all Pomeroy IT personnel assigned to Stryker, and Pomeroy “[had] the
sole right to direct and control the management of such staff”; (d) Pomeroy would pay all
wages and other employee benefits file all required reports with governmental agencies,
and maintain all required personnel records; (e) all cost for the IT services would be
included in the fees Stryker paid to Pomeroy; and (f) Pomeroy would pay all cost of
training the IT personnel.
Stryker argued in its motion that it did not exercise control over matters
concerning Robinson’s employment, such as his hiring, wages, hours or working
conditions. It contended that Robinson, and all other “Deskside IT Technicians”
(hereafter, Deskside IT Techs) assigned by Pomeroy to Stryker’s various facilities, were
Pomeroy employees, with Pomeroy determining the number of such technicians required
to work on-site at Stryker at any given time. Stryker asserted that Pomeroy’s Deskside IT
Techs, including Robinson, did not report to Stryker; rather, their work was managed by,

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and they reported to, Pomeroy. Accordingly, Stryker argued that Robinson had no
standing to assert a PAGA claim against Stryker, as he was neither a current nor former
employee of that company. (See Kim, supra, 9 Cal.5th at p. 81.)
Robinson opposed the motion. He asserted that he had been “jointly employed”
and that Stryker had been his “joint employer.” Robinson argued that his primary
supervisor while working as a Deskside IT Tech at Stryker’s San Jose facility was Lettie
Carrisales (Carrisales), a Stryker employee, and he was hired because she had “ ‘liked
[him].’ ” Robinson contended that he “considered [Carrisales] to be ‘upper-level
management,’ ” and that she supervised the five Deskside IT Techs (including himself)
who worked at Stryker’s San Jose facility. He asserted further that he had little contact at
all with Ben DeYoung (DeYoung), Pomeroy’s Operations Manager, and that DeYoung
“had almost no involvement in the management of the Desktop IT Technicians.” He
“viewed himself as an employee of Stryker, not Pomeroy.” Robinson argued in opposing
summary judgment that he had therefore raised a triable issue of fact as to whether he
was s Stryker employee.
After hearing argument and submitting the matter, the court on July 6, 2022, filed
a comprehensive and well-reasoned order granting Stryker’s motion for summary
judgment. The court reasoned that the question of whether Robinson was an employee of
Stryker was governed by the California Supreme Court’s decision in Martinez v. Combs
(2010) 49 Cal.4th 35 (Martinez). As the trial court explained, under Martinez, there are
“three alternative tests for analyzing employment status: ‘(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 [italics in original].)” The trial court concluded that Robinson had failed to raise
a triable issue of material fact supporting an employment relationship with Stryker under
any of the three alternative tests enunciated in Martinez. The court found that
“[Robinson’s] conclusions and subjective statements fail[ed] to raise a triable issue of

4
fact,” and it, accordingly, granted the motion for summary judgment.3 Judgment was
thereafter entered on August 8, 2022.
II. DISCUSSION
A. Summary Judgment
Motions for summary judgment are governed by Code of Civil Procedure
section 437c.4 Summary judgment may be granted only if it disposes of the entire action.
(Id., subd. (a)(1) [motion proper when “it is contended that the action has no merit or that
there is no defense to the action”]; see also All Towing Services LLC v. City of Orange
(2013) 220 Cal.App.4th 946, 954 [“[s]ummary judgment is proper only if it disposes of
the entire lawsuit”].) “The purpose of the law of summary judgment is to provide courts
with a mechanism to cut through the parties’ pleadings in order to determine whether,
despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Although in the 1980’s and
1990’s, summary judgment motions were viewed by the courts much less favorably than
today (see Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542), the motion

3 The trial court also addressed a pleading argument raised in Stryker’s reply
memorandum. Stryker argued that Robinson’s opposition based upon the theory that he
had been jointly employed by Pomeroy and Stryker was beyond the scope of his
complaint and could not be the basis for opposing summary judgment. (See, e.g.,
Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74
[“the pleadings determine the scope of relevant issues on a summary judgment motion”].)
The court chose to disregard Stryker’s pleading objection, concluding that “[w]hether
Stryker is Plaintiff’s sole employer or should be considered jointly liable with Pomeroy
for the alleged wage and hour violations is immaterial (and therefore no amendment to
the pleading would change the result), because the test for employer status as set forth in
Martinez is the same.” Stryker renews the argument on appeal, asserting that Robinson
waived the right to claim that Stryker was his joint employer by failing to allege it in his
complaint, and the judgment should be affirmed on this basis. We agree with the trial
court’s reasoning and will therefore reject Stryker’s suggestion that the judgment should
be affirmed on the basis of Robinson’s failure to plead joint employment.
4 Further unspecified statutory references are to the Code of Civil Procedure.

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procedure “is now seen as ‘a particularly suitable means to test the sufficiency’ of the
plaintiff’s or defendant’s case. [Citations.]” (Ibid.)
The moving party “bears the burden of persuasion that there is no triable issue of
material fact and that he [or she] is entitled to judgment as a matter of law.” (Aguilar,
supra, 25 Cal.4th at p. 850, fn. omitted.) A defendant moving for summary judgment
must “ ‘show[ ] that one or more elements of the cause of action . . . cannot be
established’ by the plaintiff.” (Id. at p. 853, quoting § 437c, subd. (o)(2).) A defendant
meets its burden by presenting affirmative evidence that negates an essential element of
the plaintiff's claim. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).)
Alternatively, a defendant meets its burden by submitting evidence “that the plaintiff
does not possess, and cannot reasonably obtain, needed evidence” supporting an essential
element of its claim. (Aguilar, supra, at p. 855.) “Once the defendant meets the
foregoing 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 . . . [and] set forth the specific
showing that a triable issue of material fact exists as to that cause of action . . . .’
[Citation.]” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780 (Saelzler),
quoting § 437c, subd. (o)(2).) The existence of a triable issue of material fact is shown
“if, and only if, the evidence would allow a reasonable trier of fact to find the underlying
fact in favor of the party opposing the motion in accordance with the applicable standard
of proof.” (Aguilar, supra, at p. 850, fn. omitted.)
“In ruling on the motion, the court must ‘consider all of the evidence’ and ‘all’ of
the ‘inferences’ reasonably drawn therefrom [citation].” (Aguilar, supra, 25 Cal.4th at
p. 843.) In considering the parties’ evidence in connection with a motion for summary
judgment, the court “strictly scrutinize[es]” the declarations submitted by the moving
party and “liberally constru[es]” those offered by the opposing party, and it “resolv[es]
any evidentiary doubts or ambiguities in [the opposing party’s] favor.” (Saelzler, supra,
25 Cal.4th at p. 768; see also Aguilar, supra, at p. 843.)

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 But “[o]nly admissible evidence is liberally construed in deciding whether there
is a triable issue.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761, original
italics; see also Hayman v. Block (1986) 176 Cal.App.3d 629, 643 [in ruling on a
summary judgment motion, “the court is bound to consider the competency of the
evidence presented”].) “Further, an issue of fact is not raised by ‘cryptic, broadly
phrased, and conclusory assertions’ [citation], or mere possibilities [citation].” (Sinai
Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196-197 (Sinai Memorial).)
Thus, although the opposing party may rely upon inferences, “those inferences must be
reasonably deducible from the evidence, and not such as are derived from speculation,
conjecture, imagination, or guesswork. [Citation.]” (Joseph E. Di Loreto, Inc. v. O'Neill
(1991) 1 Cal.App.4th 149, 161 (Joseph E. Di Loreto, Inc.); see also Foltz v. Johnson
(2017) 16 Cal.App.5th 647, 662 (Foltz) [“[s]peculative possibilities are not substantial
evidence” sufficient to raise a triable issue of fact to defeat summary adjudication];
Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 281 [opposing
declarations containing “ ‘general and vague charges’ ” are insufficient to raise
competent evidence showing triable issue of material fact]; Knapp v. Doherty (2004)
123 Cal.App.4th 76, 99 (Knapp) [“ ‘[s]peculation . . . is not evidence’ that can be utilized
in opposing a motion for summary judgment”].)
Since summary judgment motions involve pure questions of law, we review
independently the granting of summary judgment to ascertain whether there is a triable
issue of material fact justifying the reinstatement of the action. (Wiener v. Southcoast
Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) In doing so, we “consider[] all
of the evidence the parties offered in connection with the motion (except that which the
court properly excluded) and the uncontradicted inferences the evidence reasonably
supports. [Citation.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We need
not defer to the trial court and are not bound by the reasons in its summary judgment
ruling; we review the ruling of the trial court, not its rationale. (Kids’ Universe v.

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In2Labs (2002) 95 Cal.App.4th 870, 878.) Therefore, “ ‘[w]e may affirm the summary
judgment on any correct legal theory, as long as the parties had an adequate opportunity
to address the theory in the trial court. [Citation.]’ [Citation.]” (Gray v. La Salle Bank,
N.A. (2023) 95 Cal.App.5th 932, 948.)
B. Martinez v. Combs
Martinez, supra, 49 Cal.4th 35 is the seminal case governing Robinson’s
contention that he presented sufficient evidence that Stryker had been his employer.
There, several plaintiffs, seasonal farmworkers, brought various wage claims, including
the violation of minimum wage laws under Labor Code section 1194 against the
strawberry grower that employed them (Grower) and two produce merchants (Merchants)
that purchase Grower’s harvested strawberries; the plaintiffs alleged that Grower and
Merchants were their joint employers. (Martinez, supra, at p. 48.) The California
Supreme Court stated that the issue before it was “[h]ow then do we define the
employment relationship, and thus identify the persons who may be liable as employers,
in actions under [Labor Code] section 1194?” (Id. at p. 51.) Giving deference to the
interpretation of the definition of the employment relationship utilized in Wage Order
No. 14 promulgated by the Industrial Welfare Commission (IWC) of this state (see
Martinez, supra, at pp. 60-62, 64), the high court in Martinez adopted the IWC’s three-
part definition identified by the trial court below, namely that “[t]o employ . . . 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” (id. at p. 64, original italics). As we discuss, post, Robinson does not argue
on appeal that he was a Stryker employee under either the second or third Martinez
criteria, and he has thus abandoned those arguments. We will therefore only consider
whether Stryker was an employer because he “exercise[d] control over the wages, hours
or working conditions” of Robinson. (Ibid.)

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 Applying the “control” aspect of this employment definition, the Martinez court
examined and rejected the plaintiffs’ argument that the activities of Merchants’ field
representatives in interacting with Grower’s foremen and individual workers constituted
“ ‘exercis[ing] control over [their] . . . working conditions’ ” sufficient to find that
Grower and Merchants jointly employed the plaintiffs. (Martinez, supra, 49 Cal.4th at
p. 75.) The evidence was that in the mornings of harvest days, Merchants’
“representatives would explain to [Grower] and his foremen how the merchant wanted
strawberries packed, and [Grower] and his foremen would demonstrate the packing style
to the workers. For about an hour, the representatives, together with [Grower] and his
foremen, would check the packed containers as workers brought them from the field to
the truck where they would be loaded for shipping. While the representatives would
generally bring problems to the attention of [Grower] and his foremen, they would also
sometimes speak directly to the workers, pointing out mistakes in packing such as green
or rotten berries. In the afternoon, the representatives would return briefly to check the
quality and quantity of berries in the loaded truck.” (Id. at p. 76.) The high court noted
that “picking and packing strawberries for fresh market sale necessitated close
communication during the harvest between [Merchants] and [Grower’s] personnel . . .
because market berries are packed in the field, as they are picked, into the containers in
which they will be sold to consumers, often that same day or the next.” (Id. at p. 75.)
The high court held that this level of interaction between the putative employers and
Grower’s farmworkers did not constitute supervision or control over their working
conditions to warrant a finding that Merchants were joint employers. (Id. at p. 76.)
In instances involving a variety of business settings, California appellate courts
have applied the legal principles and reasoning of the Supreme Court in Martinez, supra,
49 Cal.4th 35 in upholding defense summary judgment orders that were granted because
of the absence of an employment relationship between the plaintiffs and the putative
employers. (See, e.g., Taylor v. Financial Casualty & Surety, Inc. (2021) 67 Cal.App.5th

9
966 (Taylor) [action by fugitive recovery personnel having agency relationships with bail
bonds companies, alleging, inter alia, Labor Code violations against surety guaranteeing
bond principal’s performance not maintainable; surety was not plaintiffs’ employer];
Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111 [action by manager
of Shell-branded third-party service station operator against petroleum company (Shell
Oil)/lessor of service station for alleged wage and hour violations dismissed; Shell Oil
was not plaintiff’s employer]; Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176
(Aleksick) [action by employee of convenience store franchisee against franchisor
(7-Eleven) under Unfair Competition Law alleging wage and hour violations;
franchisee’s weekly use of 7-Eleven’s payroll processing service as required under
franchise agreement did not render 7-Eleven plaintiff’s employer]; Futrell v. Payday
California, Inc. (2010) 190 Cal.App.4th 1419 (Futrell) [action by employees of television
commercial production firm against its payroll processing company for alleged statutory
federal and state labor violations dismissed; payroll processing company was not
plaintiffs’ employer].)
C. Whether Stryker Met Its Summary Judgment Burden
We first examine whether Stryker met its initial burden in moving for summary
judgment by showing there was no triable issue of material fact to support Robinson’s
complaint. In doing so, we will detail the moving party’s evidence to assess whether
Stryker demonstrated “that the plaintiff does not possess, and cannot reasonably obtain,
needed evidence” supporting an essential element of its claim. (Aguilar, supra, 25
Cal.4th at p. 855.)
1. Master Services Agreement (MSA)
Stryker develops, manufactures, and sells medical devices related to orthopedics,
surgery, neurotechnology, and spine care. (Undisputed.)5 Pomeroy is a professional IT

5The majority of the Undisputed Material Facts (UMF) identified in Stryker’s
motion for summary judgment (see § 437c, subd. (b)(1)) were described in Robinson’s

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services company that “perform[s] infrastructure support services for its clients.”
(Undisputed.) On or about July 13, 2017, Stryker and Pomeroy entered into the Services
Agreement under which Pomeroy agreed to provide Stryker with IT services through
Pomeroy’s employees that it identified as a group as “deskside IT technicians.”
(Undisputed.) The job of the Deskside IT Tech was to maintain, diagnose, troubleshoot,
and repair software and hardware for computers and other devices used by Stryker
employees. (Undisputed.) Stryker itself did not have any employees that performed the
functions of the Deskside IT Techs.
Relevant provisions of the Services Agreement between Pomeroy and Stryker—all
of which were not disputed in Robinson’s summary judgment opposition—included the
following:
(1) “Pomeroy . . . shall be the employer in law and in fact of all persons
assigned to [Stryker] perform the Services.”
(2) “Pomeroy’s employees . . . shall [not] be deemed employees of
[Stryker].”
(3) Pomeroy assumed the responsibility of supervising the Pomeroy IT
personnel assigned to Stryker, and Pomeroy was “responsible for [its] own staff
assigned to provide Services and [had] the sole right to direct and control the
management of such staff.”
(4) Pomeroy was responsible for “(a) determin[ing] and pay[ing] all
applicable wages and salaries . . . ; (b) provid[ing] welfare and retirement
benefits . . . ; (c) compl[iance] with applicable tax laws, including income tax and
employment tax withholding laws; (d) compl[ying] with all applicable laws . . .
including laws relating to accommodation of disabilities, equal pay, provision of
leave . . . , unlawful discrimination, as well as wage and hour law requirements;

opposition as “Undisputed.” We identify those facts delineated in Stryker’s motion that
Robinson did not dispute with the designation “(Undisputed).”

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(e) comply[ing] with all workers’ compensation insurance coverage laws;
(f) fil[ing] all applicable reports with federal, state and local agencies and
authorities as required by law; (g) maintain[ing] all required employment records,
including I-9, personnel and medical files consistent with applicable law and
customary business practices; and (h) comply[ing] with all applicable equal
employment opportunity laws.”
(5) The entire cost for “providing and retaining Pomeroy staff . . . [was]
included within the fees” paid by Stryker, including “all wages, applicable payroll
taxes, and all associated staffing costs such as training and education, recruiting
and relocation expenses.”
(6) Pomeroy was responsible for, and was to pay all costs associated with,
any training of the Deskside IT Techs.
(7) Pomeroy was responsible for “tak[ing] all necessary efforts and
precautions to ensure compliance with any other laws, rules or regulations
regarding co-employment so as to protect [Stryker] from being found . . . a co-
employer of any person performing the Services” at Stryker.
(8) Pomeroy was responsible for “maintain[ing] records relating to all
personnel provided pursuant to [the MSA],” including “verification of
qualifications, licenses, certifications, and references, verifying that such
personnel are qualified in light of applicable law, industry standards, and [the
MSA], to perform the work contracted for herein.” And Pomeroy was responsible
for “maintain[ing] records of in-service training and records of assignments.”
(9) If Stryker had a reasonable belief that any of the Deskside IT Techs’
“performance or conduct . . . [was] unsatisfactory” and communicated that
complaint to Pomeroy in writing, Pomeroy was obligated to “promptly address the
performance or conduct of such person” including the possible replacement of that
employee.

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 2. Performance Under the MSA
Pomeroy, according to DeYoung, hired its own employees that it assigned to work
at Stryker facilities, and it “direct[ed] the Deskside IT Technicians when and where to
work, based on Pomeroy’s independent assessment of the scope of work.” Pomeroy
decided solely the number of Deskside IT Techs required for the various on-site Stryker
locations. Pomeroy charged Stryker a flat monthly fee for the work performed by
Deskside IT Techs, and that fee did not fluctuate depending on the number of collective
hours they worked in a given month. (Undisputed.) Pomeroy’s Deskside IT Techs,
including Robinson, applied to Pomeroy, not Stryker, for positions of employment. The
Deskside IT Techs were paid by Pomeroy, not by Stryker. (Undisputed.)
DeYoung, who was at the relevant times Pomeroy’s Service Manager, supervised
the Deskside IT Techs, including Robinson. DeYoung declared that Pomeroy, not
Stryker, established “the start date, weekly schedule, daily scheduled hours, and rate of
pay” of the Deskside IT Techs, including Robinson. Pomeroy gave the Deskside IT
Techs daily assignments and direction on specifically assigned tasks. The Deskside IT
Techs did not report to anyone at Stryker; Carrisales, a Stryker employee, never
supervised the Deskside IT Techs, and she had no day-to-day oversight over them.
The duties of the Deskside IT Techs at Stryker were based upon a ServiceNow
ticketing system under which Stryker employees needing IT support submit applications
(tickets). The tickets were routed to Pomeroy, which assigned the work to individual
Deskside IT Techs; no one at Stryker had the responsibility to assign work requested in
the tickets. If a task in the ticket request required prioritization, DeYoung at Pomeroy
communicated that fact to the assigned Deskside IT Tech. On occasions where DeYoung
was unavailable, Carrisales so advised the assigned Deskside IT Tech; she did not,
however, have responsibility to assign work to the Deskside IT Techs.
Pomeroy was responsible for keeping track of the hours, overtime, and meal and
rest breaks of the Deskside IT Techs, based upon timesheets submitted by the employees,

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which were modified or approved on a weekly basis by DeYoung. (Undisputed.) Stryker
was not responsible for tracking the hours, including overtime, worked by the Deskside
IT Techs, and it did not review (or even have access to) their timesheets. (Undisputed.)
Pomeroy, not Stryker, was also responsible for reviewing and approving expense
reimbursement requests of Deskside IT Techs. (Undisputed.) Pomeroy directly
compensated the Deskside IT Techs for their services, and it provided them with year-end
wage statements and a W-2 forms. (Undisputed.) Stryker did not compensate the
Deskside IT Techs for their work, and it provided no benefits, such as health benefits and
vacation, to them. (Undisputed.)
Pomeroy, through DeYoung—not Stryker—was responsible for evaluating the
work of the Deskside IT Techs and providing them with feedback concerning their
performance. Pomeroy, through DeYoung, made decisions concerning any disciplinary
action required involving the Deskside IT Techs, and it was Pomeroy’s decision alone in
determining what level of discipline, including termination, was appropriate.
3. Hiring of Robinson
In March 2019, Robinson applied for employment with Pomeroy. He was
recruited for the position by a Pomeroy recruiter. (Undisputed.) DeYoung interviewed
Robinson by telephone, and DeYoung told him that he would need to take a drug test
with Pomeroy before he could be hired. (Undisputed.) DeYoung, on behalf of Pomeroy,
made the decision to hire Robinson as a Deskside IT Tech. Although Carrisales of
Stryker met with Robinson before his hiring, she did not offer him a Deskside IT Tech
position. (Undisputed.) Carrisales did not make the decision to hire Robinson; she did
not provide him with new-hire documents or a Stryker employee handbook.
On March 18, 2019, DeYoung sent an offer letter to Robinson, accepted by him,
confirming his employment with Pomeroy and the employment benefits for which he was
eligible. (Undisputed.) The offer letter indicated that Robinson’s manager would be
DeYoung. Based upon that hiring, Robinson became eligible for Pomeroy’s medical and

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dental plans, its 401(k) plan, Pomeroy’s long-term disability plan, and its group life
insurance program.. (Undisputed.) The offer letter makes no mention of Stryker.
(Undisputed.) Robinson also received Pomeroy’s employment handbook, and he
acknowledged and agreed that he had received, read, and understood it, and that he
agreed to adhere to Pomeroy’s regulations, policies, and procedures. (Undisputed.)
Robinson received an employee ID number from Pomeroy. (Undisputed.) He completed
an Employment Eligibility Verification form (I-9 form) identifying his employer as
Pomeroy. (Undisputed.)
Robinson received no offer letter from Stryker, as that company does not make
employment offers to Deskside IT Techs or make them employees by giving them new-
hire documents or a company employment handbook. (Undisputed.) He did not receive
an employee ID number from Stryker. (Undisputed.) Robinson never received an
I-9 form from Stryker. (Undisputed.)
4. Robinson’s Work
Pomeroy assigned Robinson to give IT support as an on-site Deskside IT Tech at
Stryker’s San Jose facility. (Undisputed.) As noted, DeYoung at Pomeroy, not Stryker,
had supervisory duties over Robinson while he worked at Stryker’s San Jose facility as an
on-site Deskside IT Tech. Robinson submitted his timesheets to Pomeroy.
(Undisputed.)6
Robinson received wage statements and paychecks (by direct deposit as authorized
by him) from Pomeroy, not Stryker. (Undisputed.) Pomeroy also provided Robinson
with holiday and vacation pay, and a monthly communications allowance. (Undisputed.)
Based upon his hiring, Robinson voluntarily enrolled in Pomeroy’s medical and
dental plans, and its 401(k) plan. (Undisputed.) Stryker did not provide Robinson with

6Robinson testified that on one or more occasion, DeYoung followed up with him
to remind him to submit his timesheets. (Undisputed.)

15
employee benefits such as health, dental, or vision insurance, life insurance, short-term
disability, or vacation time. (Undisputed.)
5. Robinson’s Resignation
On June 12, 2019, Robinson advised DeYoung that he was resigning his
employment with Pomeroy, giving the company two-weeks’ notice. (Undisputed.)
During a subsequent exit interview, DeYoung instructed Robinson, notwithstanding his
two-weeks’ notice, to not return to work.
After Robinson ceased his employment, he indicated on a LinkedIn profile that he
had been employed previously by Pomeroy. (Undisputed.) Robinson also listed in two
places on an employment application that Pomeroy was his former employer and
identified DeYoung as his former supervisor at that job. (Undisputed.)
The evidence presented by Stryker constituted a prima facie showing that it was
not Robinson’s employer. Since only an aggrieved employee has standing to assert a
PAGA claim (see Kim, supra, 9 Cal.5th at p. 73), Stryker met its summary judgment
burden by presenting affirmative evidence that negated an essential element of the
Robinson’s claim. (Guz, supra, 24 Cal.4th at p. 334; see also Taylor, supra, 67
Cal.App.5th at pp. 991-992 [defendant surety made prima facie showing that summary
judgment was proper because it was not a joint employer of the plaintiff].)
D. Whether Opposition Raised Triable Issue of Material Fact
As noted, the Supreme Court has held that there are three alternative tests in
analyzing the existence of employment status. (See Martinez, supra, 49 Cal.4th at p. 64.)
Robinson, in this appeal, addresses only the first test, i.e., whether the putative employer
“exercise[s] control over the wages, hours or working conditions.” (Ibid.) In his opening
brief, Robinson merely recites the three alternative Martinez tests; he does not present
argument in support of the claim that either the second test (“suffer or permit to work”) or
the third test (“engag[ing], thereby creating a common law employment relationship”)
applies in this instance. (See ibid.) Nor does he address these two tests in his reply

16
brief.7 Robinson has therefore abandoned any such claims. (Meddock v. County of Yolo
(2013) 220 Cal.App.4th 170, 175, fn. 2 [theories advanced in opposition to summary
judgment at trial level that are not raised on appeal are deemed abandoned]; Reyes v.
Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [notwithstanding that “review of a summary
judgment is de novo, it is limited to issues which have been adequately raised and
supported in [appellant’s] brief”].) He is therefore limited to the argument that the
evidence submitted in opposition to the motion raised a triable issue of material fact as to
whether the putative employer, Stryker, “exercise[d] control over the wages, hours or
working conditions” in this case. (Martinez, supra, at p. 64.) We address below
Robinson’s position, and the evidence he cites in support thereof, that the trial court erred
in concluding that there was no triable issue of material fact raised that Stryker exerted
control over Robinson’s wages, hours, or working conditions.
1. Robinson’s Interview and Hiring
a. Stryker’s Showing
Stryker presented significant evidence that Pomeroy alone controlled the hiring of
Robinson as a Deskside IT Tech. His March 2019 employment application was with
Pomeroy. He never submitted a job application to Stryker. Robinson was interviewed by
Pomeroy’s DeYoung, who told him that Pomeroy required drug testing before he could
be hired. (Undisputed.) DeYoung, on behalf of Pomeroy, made the decision to hire
Robinson as a Deskside IT Tech. DeYoung sent Robinson an offer letter on March 18,
2019—which Robinson accepted—that did not mention Stryker and detailed the
employment benefits for which he was eligible. (Undisputed.) Although Carrisales of
Stryker met with Robinson, she did not (1) offer him a Deskside IT Tech position

7 Stryker in its respondent’s brief asserted that Robinson had only argued on
appeal the applicability of the first Martinez test and that he thus waived any argument as
to the two other tests of employment. Robinson, in his reply brief, did not address
Stryker’s waiver argument.

17
(Undisputed); (2) make the decision to hire Robinson; (3) provide him with new-hire
documents or a Stryker employee handbook; or (4) supply him with an offer letter on
behalf of Stryker. (Undisputed).
b. Robinson’s Opposition
Robinson disputed two facts that Stryker had identified as “Undisputed Material
Facts” (UMF), namely, that (a) “Pomeroy, in its sole discretion, hires and selects the
personnel it assigns to perform IT support services on-site at Stryker business locations”
(UMF No. 5); and (b) “the decision to hire Plaintiff to work for Pomeroy as a Deskside
IT Technician was solely made by [Pomeroy’s] Ben DeYoung.” (UMF No. 24).
Robinson contended in his response to UMF No. 5 that Stryker’s “Carrisales[] hires and
selects the personnel it assigns to perform IT support services . . .” Robinson further
contended, in response to UMF No. 24, that “Lettie Carrisales (Stryker) made the
decision to hire Plaintiff Robinson.”
To support his position, Robinson offered his deposition testimony that after a
“short phone interview” with DeYoung,8 “he scheduled [Robinson] for an interview
with Lettie Carrisales” that occurred at Stryker the next day; a Deskside IT Tech with
Pomeroy, Bosa, was also present. Robinson testified that he had understood that
“if Lettie liked [him], then the next stage [is] the hiring process, whatever that is.” He
testified further that Carrisales “hired” him.
It is evident from a review of the record that Robinson’s testimony that he was
“hired” by Carrisales was not based upon personal knowledge (see § 437c, subd. (d)),

8 Robinson testified that he didn’t remember the length of his interview with
DeYoung, and that it could have lasted more than 30 minutes. Robinson also testified
that he did not recall precisely what DeYoung said in the interview about the Deskside IT
Tech position, “because a lot of these interviews that I have just kind of all seem the
same.”

18
and constituted speculation.9 Further, Robinson presented no competent evidence to
refute UMF No. 5 that Pomeroy is the entity that hired Deskside IT Techs. Robinson’s
showing therefore may not be considered in refutation of Stryker’s clear evidence that
(1) Pomeroy was vested with sole discretion in the hiring of Deskside IT Techs in
general, and (2) specifically, DeYoung of Pomeroy was solely responsible for the
decision to hire Robinson as a Deskside IT Tech ultimately assigned to Stryker’s
San Jose facility. (See Foltz, supra, 16 Cal.App.5th at p. 662 [“[s]peculative possibilities
are not substantial evidence” to oppose summary judgment motion]; Knapp, supra,
123 Cal.App.4th at p. 99 [speculation may not form the basis of a summary judgment
opposition]; see also General Motors Corp. v. Superior Court (1993) 12 Cal.App.4th
435, 442 (General Motors) [rejecting statements in attorney’s declaration that were not
based upon his personal knowledge].)10

9 Robinson testified that the basis for his belief that Carrisales hired him was that
“she’s the one [who] interviewed [him] and asked [him] the questions” and “she was [his]
manager, and [he] worked for her.” He testified further that “[I]s it true that I don’t know
who . . . made the decision to hire me?· I know [Carrisales] had a big say in that because
I sat right next to her.· I am not sure.· It could have been . . . multiple people, whoever
was looking at my résumé, whoever was looking at my qualifications.· I don’t know
how . . . they make their hiring decisions.· I mean, the recruiter, Caleb, it could have been
his decision, it could have been [DeYoung’s] decision.· They all could have talked about
it together.· [I’m] not sure how the -- how the hiring process works.· I just know I
interviewed and got a job, very easily.” (Italics added.)
10 Robinson also disputed the material facts that (a) “Deskside IT Technicians

do not (and Plaintiff did not) apply for employment with Stryker” (UMF No. 8); and
(b) “Plaintiff applied for a job with Pomeroy on March 18, 2019 . . . [as a] Deskside IT
Technician” (UMF No. 19). His response to both was that “Deskside IT technicians
apply for employment with Stryker through Pomeroy.” This conclusory statement—
which is not supported by the evidence Robinson cited in his opposition—is insufficient
to raise a triable issue of fact. (See Sinai Memorial, supra, 231 Cal.App.3d at p. 196
[“ ‘conclusory assertions’ ” insufficient to raise triable issue of fact].)

19
 2. Control Over Wages and Hours
a. Wages
“ ‘[C]ontrol over wages’ means that a person or entity has the power or authority
to negotiate and set an employee’s rate of pay, and not that a person or entity is
physically involved in the preparation of an employee’s paycheck.” (Futrell, supra,
190 Cal.App.4th at p. 1432.) Stryker established in its motion that Pomeroy was the
entity that controlled Robinson’s wages.
Pomeroy, not Stryker, directly compensated the Deskside IT Techs for their
services, and it provided them with year-end wage statements and a W-2 forms.
Robinson received wage statements and paychecks (by direct deposit as authorized by
him) from Pomeroy, not Stryker. As part of his compensation package with Pomeroy,
Robinson received from Pomeroy holiday and vacation pay, and a monthly
communications allowance. He also enrolled in, Pomeroy’s medical and dental plans,
and its 401(k) plan. Each of these material facts identified in Stryker’s motion was
undisputed by Robinson.
Robinson submitted no evidence in his opposition that raised a triable issue of fact
to refute that Pomeroy was the entity that was responsible for compensating the Deskside
IT Techs in general, and Robinson, in particular.
b. Hours
Stryker presented evidence (through DeYoung’s declaration) that Pomeroy,
through DeYoung, not Stryker, established “the start date, weekly schedule, daily
scheduled hours, and rate of pay” of the Deskside IT Techs, including Robinson.
Robinson did not dispute that the Deskside IT Techs–including Robinson—submitted
timesheets to Pomeroy, and that entity was responsible for keeping track of their hours,
overtime, and meal and rest breaks. And Robinson did not dispute that Stryker had no
responsibility for tracking the hours, including overtime, worked by the Deskside IT
Techs, and it did not review (or even have access to) their timesheets.

20
 In addressing Stryker’s contentions concerning Pomeroy’s control over the hours
of Robinson and the other Techs, Robinson disputed four UMF’s identified in the motion:
(a) “Pomeroy (not Stryker) sets the start date, weekly schedule, daily scheduled hours,
and rate of pay for Plaintiff and the other Deskside IT Technicians” (UMF No. 16);
(b) “Pomeroy set Plaintiff’s daily scheduled working hours, which were 8:00 a.m. to
5:00 p.m. Monday to Friday” (UMF No. 31); (c) “Pomeroy, not Ms. Carrisales, was
responsible for tracking hours and overtime worked by Deskside IT Technicians, as well
as their meal and rest breaks” (UMF No. 56); and (d) if there were any questions by
Deskside IT Techs concerning “their hours, wages, overtime pay, meal or rest breaks,
wage statements, or expense reimbursements, they [were] directed to address these with
Pomeroy” (UMF No. 58).
Robinson asserted that his deposition testimony served to refute Stryker’s UMF
Nos. 16 and 31 that Pomeroy set his weekly and daily schedules. The evidence he cited
was his testimony that he was “scheduled to do whatever [his] manager [Carrisales]
would tell [him] to do” and “would be asked to come in earlier” if there were a
conference or a meeting. Other Robinson deposition testimony, however, belied his
attempt to refute that it was Pomeroy that set his schedule and hours. Robinson testified
that he “would assume [Carrascales]” was the one who determined that his schedule
would be 8:00 a.m. to 5:00 p.m., Monday through Friday. (Italics added.) Robinson’s
speculation on this issue was underscored when he was asked later in his deposition to
identify the person who asked him to come to work earlier than 8:00 a.m., and he
responded, “If anyone asked, it would be [Carrisales].” Speculation and statements not
based upon personal knowledge do not constitute admissible evidence to oppose
summary judgment. (Knapp, supra, 123 Cal.App.4th at p. 99 [speculation]; General
Motors, supra, 12 Cal.App.4th at p. 442 [declaration not based upon personal
knowledge].)

21
 Robinson’s expressed dispute that Pomeroy was responsible for responding to
inquiries and the tracking of Deskside IT Techs’ hours, overtime, meal and rest breaks
(UMF Nos. 56 and 58) was that “Carrisales (Skyler) not only monitored when Deskside
IT Technicians took their meal and rest breaks, but also had the capability to create a
lunch schedule that the Deskside IT Technicians would have to follow.”11 The evidence
cited by Robinson—excerpts from Carrisales’s deposition and an e-mail that she
authored—does not support this statement. It only indicates that on one occasion,
Carrisales sent an e-mail to the Deskside IT Techs (on which Robinson was not copied)
in which she expressed concern that at noon on March 26, 2019, there was only one
Deskside IT Tech present and he was unable to go to lunch. She stated that “ ‘[i]f this
happens again, I will be setting up a lunch schedule.’ ” This e-mail documented one
incident of an apparent lack of personnel coordination with meal breaks. Robinson
presented no evidence that Carrisales (Stryker) ever actually implemented a meal break
schedule for Deskside IT Techs. Moreover, even were we to accept Robinson’s premise
that Carrisales’s one communication involving one instance of an apparent lack of
coordination with lunch breaks had any potential significance, her suggested future
implementation of a lunch schedule did not rise to the level of her having control over
the working conditions of the Deskside IT Techs.
Robinson’s opposition did not refute UMF Nos. 16, 31, 56 and 58, and it did not
present a triable issue of fact concerning whether Stryker had control over the hours,
overtime, meal breaks, or rest breaks of the Deskside IT Techs.

11It is evident from the record that Robinson did not dispute that Pomeroy was
responsible for hours and overtime issues pertaining to Deskside IT Techs.

22
 3. Management/Supervision Role of Pomeroy
a. Stryker’s Showing
Stryker presented a significant amount of detail in its motion showing that
Pomeroy, not Stryker, exercised control over the working conditions of the Deskside IT
Techs (including Robinson) assigned to Stryker facilities.
Starting with the July 2017 MSA that governed the IT outsourcing relationship
between Stryker and Pomeroy—the existence and terms of which agreement were not
disputed in Robinson’s opposition—Pomeroy was identified as “the employer in law and
in fact of all [Deskside IT Techs]”; assumed the responsibility of supervising the
Deskside IT Techs and had “the sole right to direct and control the management of such
staff.” (See Martinez, supra, 49 Cal.4th at p. 77 [emphasizing that under contracts
between Grower and the putative employers, Merchants, the latter had “no right to direct
[Grower’s] employees’ work”]; Taylor, supra, 67 Cal.App.5th at pp. 992-993
[emphasizing that under the parties’ written agreements, bonding companies, not the
putative employer surety, had “ ‘exclusive control’ ” over their employees, including
setting their hours and the right to retain and discharge them].) Additionally, Pomeroy
was to “take all necessary efforts and precautions to ensure compliance with any other
laws, rules or regulations regarding co-employment so as to protect [Stryker] from being
found . . . a co-employer of any person [of the Deskside IT Techs].” Further, under the
MSA, it was Pomeroy (not Stryker) that was responsible for determining and paying all
wages due to the Deskside IT Techs, complying with withholding requirements,
providing workers’ compensation coverage, filing required employee reports with the
government, and “compl[ying] with all applicable equal employment opportunity laws.”
Pomeroy was required under the agreement to pay all costs associated with the Deskside
IT Techs, and any such cost was included in the fees paid by Stryker for such services.
Pomeroy was also responsible for all training of the Deskside IT Techs, and for
maintaining all personnel records, including records of assignments.

23
 In practice, Pomeroy hired its own employees that it assigned to work as Deskside
IT Techs at Stryker facilities. All Deskside IT Techs who were ultimately placed at
Stryker facilities, including Robinson, applied to Pomeroy for employment. As stated in
the Carrisales and DeYoung declarations, it was undisputed that Pomeroy “direct[ed] the
Deskside IT Technicians when and where to work.” In Robinson ‘s specific case,
Pomeroy assigned him to Stryker’s San Jose location. It was solely Pomeroy’s decision
in setting the number of Deskside IT Techs required for a given Stryker site. (Cf.
Curry v. Equilon Enterprises, LLC (2018) 23 Cal.App.5th 289, 303 [emphasizing that
putative employer, lessor of Shell service station, did not control working conditions
because it had no authority to determine number of employees of lessee to be assigned or
to determine number of hours to be worked by them].) It was undisputed that Pomeroy
charged Stryker a flat monthly fee for the work performed by Deskside IT Techs.
Pomeroy supervised the Deskside IT Techs. This included DeYoung’s
supervision of Robinson. DeYoung established “the start date, weekly schedule, daily
scheduled hours, and rate of pay” of the Deskside IT Techs, including Robinson.
Pomeroy gave the Deskside IT Techs daily assignments and direction on specifically
assigned tasks. The Deskside IT Techs did not report to Carrisales or anyone else at
Stryker. Pomeroy evaluated the work of the Deskside IT Techs and gave them feedback
concerning their performance. Pomeroy made decisions concerning any disciplinary
action of Deskside IT Techs, and it alone decided what level of discipline, including
termination, was appropriate.
b. Robinson’s Opposition
Robinson disputes UMF’s identified in Stryker’s motion that are central to
whether Stryker exerted control over his work as a Deskside IT Tech. These facts
related to the entity responsible for (a) assignment of personnel to Stryker facilities,
(b) assignment of specific IT projects, (c) the overall supervision and day-to-day
management of Deskside IT Techs, and (d) employee discipline (including termination

24
or removal of an employee from a particular assigned Stryker facility). The particular
identified facts, as discussed below, are: UMF Nos. 7, 9, 14, 15, 17, 18, 42, 43, 45, 47,
and 59.
(1) Overall Supervision of IT Techs
Robinson, in his opposition, disputed three undisputed material facts in the motion
related to the overall management of the Deskside IT Techs. They were (a) Deskside IT
Techs, although performing services on devices used by Stryker employees, did not
report to Stryker, and during the relevant time period, the Deskside IT Techs assigned to
Stryker’s San Jose facility reported to Pomeroy’ DeYoung (UMF No. 15); (b) DeYoung
was Robinson’s supervisor, and DeYoung supervised Robinson and the other Deskside
IT Techs on a day-to-day basis (UMF No. 42); and (c) Carrisales did not supervise
Robinson or the other Deskside IT Techs, and she did not have day-to-day oversight over
Robinson or other Deskside IT Techs (UMF No. 43).
The evidence Robinson relies on his dispute of these material facts consists of his
deposition testimony, which is conclusory, self-serving, and based upon speculation.
Asserting that Carrisales “supervised Plaintiff and the Deskside IT Technicians,”
Robinson cites to his deposition testimony that Carrisales “manages the location,”
“was managing things,” “managed everyone,” was “upper-level management,” and was
“[his] manager.” A closer review of the evidence demonstrates that Robinson presented
no competent evidence that Stryker, through Carrisales, managed the Deskside IT
Technicians in general or Robinson in particular.
Robinson asserted in his opposition, based upon his testimony, that he “considered
[Carrisales] to be ‘upper-level management.’ ” But the record shows that this was
speculation. In responding to a question as to the basis for his understanding that
Carrisales was a salaried employee, Robinson testified: “Because she was upper level
management.· She wasn’t an hourly employee.· I don’t think she put in hours.· I don’t
know.· I guess that’s speculation.· I just don’t—it wasn’t my job to manage [Carrisales].·

25
It didn’t matter.· If there was something—she was the only person there that was a
manager.” (Italics added.)
Similarly, Robinson cited his deposition testimony to purportedly show that
Carrisales, not DeYoung, was the manager of the Deskside IT Techs assigned to
Stryker’s San Jose facility. In responding to whether the five Deskside IT Techs (that
included himself) reported to DeYoung, Robinson testified: “I don’t know what they
reported to . . . [Carrisales].· I don’t know what they reported to [DeYoung].”
Robinson’s testimony here also demonstrated a lack of personal knowledge and
speculation regarding the potential roles of DeYoung and Carrisales as manager.12
Robinson also emphasized in his opposition to UMF No. 15 (Deskside IT Techs
reported to Pomeroy’s DeYoung, not to Stryker) that he had never met, and had only
spoken with, DeYoung on approximately two occasions—prior to his hiring and when
he resigned. The fact that Robinson never met DeYoung and only spoke to him by
telephone on a few occasions does not refute that DeYoung supervised the Deskside IT
Techs, including Robinson. In fact, Robinson’s claim in opposing summary judgment
that Carrisales, not DeYoung, was his manager is belied by (1) his deposition testimony
that DeYoung was his supervisor at Pomeroy, and (2) the statement in an employment
application later submitted by Robinson that identified his manager while employed by
Pomeroy as DeYoung.
Robinson did not raise a triable issue of material fact that it was Stryker, rather
than Pomeroy, that managed the work of the Deskside IT Techs, including Robinson.
“ ‘ “The employee’s ‘subjective beliefs . . . do not create a genuine issue of fact; nor do
uncorroborated and self-serving declarations.’ ” ’ [Citations.]” (Taylor, supra, 67

12 Robinson’s attorney objected to the question of whether the Deskside IT
Technicians reported to DeYoung on the grounds of lack of personal knowledge and that
it required speculation by the witness. Robinson’s answer to the question confirmed the
validity of his own counsel’s objections.

26
Cal.App.5th at p. 994.) Robinson’s deposition testimony, with conclusory statements,
speculation, and matters stated without personal knowledge concerning the management
of the work did not constitute admissible evidence to refute Stryker’s showing in its
summary judgment motion. (See Knapp, supra, 123 Cal.App.4th at p. 99 [speculation];
General Motors, supra, 12 Cal.App.4th at p. 442 [declaration not based upon personal
knowledge]; Sinai Memorial, supra, 231 Cal.App.3d at p. 196 [triable “issue of fact is not
raised by ‘cryptic, broadly phrased, and conclusory assertions’ ”].)13
(2) Assignment to Stryker Facilities
There were two undisputed material facts stated in Stryker’s motion relating to this
issue that were disputed by Robinson. They were (a) Pomeroy was “solely responsible”
for deciding the number of Deskside IT Techs needed at various Stryker locations, and it
directed the timing and location of their work at Stryker (UMF No. 7); and (b) a Deskside
IT Tech’s tenure at a particular Stryker site varied, and Stryker did not have input on
these issues (UMF No. 9). Robinson again relied on his deposition testimony that
Carrisales “manages the location,” “was managing things,” and “managed everyone.” He
stated in his opposition that “Stryker, through its employee Lettie Carrisales, managed the
Deskside IT Technicians, including how many technicians they needed and when and
where they would work.”
Robinson presented no facts refuting that Pomeroy was “solely responsible” for
deciding the number and timing of the assignment of Deskside IT Techs required at the
given Stryker locations, and that Stryker had no input on these issues. And for the
reasons stated, ante, Robinson’s conclusory and unsupported deposition testimony that
Carrisales managed the Deskside IT Techs did not present a triable issue of fact as to
whether Pomeroy was the entity responsible for the assignment of Deskside IT Techs to

13With regard to the assignment of work to Deskside IT Techs, Robinson also
argued that it was Carrisales of Stryker who managed the ticket queue. We address this
contention separately, post.

27
Stryker locations. (See Taylor, supra, 67 Cal.App.5th at p. 994 [“[a]ffidavits must cite
evidentiary facts, not legal conclusions or ultimate facts”].)
(3) Assignment of Specific Stryker IT Projects
Robinson disputed three undisputed material facts from Stryker’s motion
responsibility for the assignment of particular Stryker IT projects to Deskside IT Techs:
(a) “[w]hen Stryker employees need technical support from a Deskside IT Technician,
they submit a ticket in the ServiceNow application requesting assistance . . . [and] tickets
are routed directly to Pomeroy, and Pomeroy [not Stryker] assigns the tickets to a
Deskside IT Technician employed by Pomeroy.” (UMF No. 14); (b) “[w]hile Ms.
Carrisales may coordinate with a Deskside IT Technician to handle an IT request from a
Stryker employee, she does not give assignments to Deskside IT Technicians . . . [; t]hat
was Pomeroy’s responsibility” (UMF No. 45); and (c) “[i]f Plaintiff had any issues with
the support portal, he was instructed to contact the Pomeroy Service Desk” (UMF
No. 59).
Robinson, in attempting to refute UMF No. 14, cited his deposition testimony to
the effect that it was Stryker (Carrisales), not Pomeroy, who was responsible for
managing the ticket queue. He testified: “It wasn’t [his] job to manage the ticket
queue. . . . That was [Carrisales].” He later testified: “We all managed [the ticket
queue], but everything was managed by Stryker management.· They managed the queue,
they created the system, and there was a workflow in the ticketing system.” He testified
further that “there was a person . . . that sat right next to [Carrisales] that was the
ServiceNow administrator.· And whoever in management at Stryker created the ticket
system, and programmed everything to work that way, that’s how it worked.· I had . . .
no say in it.· I just worked the tickets.· I don’t manage. [¶] . . . [¶] Because [Carrisales]
would go to meetings about [the ticket queue].· She was Deskside Support Manager.· I
was Deskside Support Technician. She was my manager, at Stryker, and it was her job to
manage me in the ticketing system, specifically ServiceNow; that’s what she did.” Thus,

28
when questioned regarding the basis for his testimony that Carrisales (Stryker) managed
the ticket queue, Robinson was unable to provide specific facts to support that
conclusion.
Robinson’s testimony consisted of conclusory statements, speculation, and matters
not based upon his personal knowledge. It did not constitute admissible evidence raising
a triable issue of fact refuting that Pomeroy was the entity responsible for the assignment
of specific projects (i.e., managing the ticket queue) assigned to the Deskside IT Techs.
(See Knapp, supra, 123 Cal.App.4th at p. 99 [speculation]; General Motors, supra,
12 Cal.App.4th at p. 442 [declaration not based upon personal knowledge]; Sinai
Memorial, supra, 231 Cal.App.3d at p. 196 [“ ‘cryptic, broadly phrased, and conclusory
assertions’ ”].)
(4) Disciplining Deskside IT Techs
Robinson disputed three undisputed material facts identified in Stryker’s motion
concerning issues relating to the evaluation and disciplining of Deskside IT Techs. They
were (a) Pomeroy had the exclusive authority to terminate Deskside IT Techs (UMF
No. 17); (b) although Stryker may request ending the assignment of a Deskside IT Tech
at one of its facilities, “Pomeroy has the final decision-making authority” (UMF No. 18);
and (c) although Carrisales at Stryker may have been informed of performance issues
involving Deskside IT Techs, the information would be relayed to Pomeroy, and that
entity had the sole discretion to decide what discipline, if any, would be appropriate
(UMF No. 47).
In attempting to refute UMF Nos. 17 and 18, Robinson stated in his opposition
that “Plaintiff Robinson gave his two weeks, but was then abruptly fired by Ben
[DeYoung], Kelly,[14] and Lettice [sic]. Kelly and Lettice [sic] are Stryker employees.”
Robinson cited one short passage of his deposition testimony in support of this assertion.

14 “Kelly” is apparently Kelly Duong, who was IT director employed by Stryker.

29
He testified that after sending a June 12, 2019 e-mail to DeYoung and Carrisales giving
two-weeks’ notice of his resignation, he had an exit interview that probably occurred the
next day.15 Robinson testified that he worked only one day after he gave notice, because
“at the end of the next day, [he] interviewed with [DeYoung], finished . . . [his] day. On
the drive home, they told [him] not to come back.” (Italics added.) The following
exchange (upon which Robinson relied in his summary judgment opposition) then took
place: “Q. And when you say ‘they,’ do you mean [DeYoung]? [¶] A. I guess, yeah. [¶]
Q. I mean, is that the person who called you to say don’t come back? [¶] A. I’m
assuming—yeah, he’s the one—he was meeting, talking with Kelly and Lettie.· So I think
they all made the decision together.· So he’s the one that called me, telling me not to
come back.” (Italics added.) Robinson later admitted in his deposition that he had no
personal knowledge as to who made the decision to terminate him.
Further, Robinson testified that he did not know who had the final authority to
approve a transfer to another Stryker facility, had he made such a request. He testified
that he was never disciplined, and he had no knowledge of any other Deskside IT Techs
having been disciplined.
Robinson presented no competent evidence that Stryker played any role in the
disciplining, including termination, of any Deskside IT Tech. (Cf. Aleksick, supra, 205
Cal.App.4th at p. 1180 [emphasizing that under franchise agreement, it was franchisee,
not the putative employer-franchisor, who was responsible for “all matters pertaining to
employees, such as hiring and firing, setting pay, and scheduling work”].) And,
specifically, Robinson offered no competent evidence that Stryker was involved in any
decision to terminate him. At best, his deposition testimony involved “speculation [and]
conjecture” that Carrisales and Kelly were involved in some way in the termination

15The exit interview was conducted by DeYoung. Robinson testified that he did
not have an exit interview with Carrisales.

30
decision, which was inadmissible to oppose summary judgment. (Joseph E. Di Loreto,
Inc., supra, 1 Cal.App.4th at p. 161.)16
E. Challenge to Evidentiary Ruling
Robinson included in his opposition to summary judgment certain documents
obtained in discovery, labeled exhibits C through R, that were attached to the declaration
of his counsel. All but one of the exhibits were internal e-mails sent by Carrisales. In its
reply to the motion, Stryker filed objections to six of these exhibits, namely, exhibits F, J,
K, N, O, and Q. The asserted objections in each instance were lack of foundation (Evid.
Code, § 403), absence of personal knowledge (id., § 702), and hearsay (id., § 1200).
Stryker contended, inter alia, that the exhibits were not authenticated either by counsel in
his declaration, or by Carrisales in her deposition. The trial court sustained Stryker’s
objections, concluding that the six exhibits were not properly authenticated and were thus
inadmissible.
On appeal, Robinson contends that the trial court erred in excluding four of these
exhibits (J, K, N, and Q).17 He contends that the exhibits were properly authenticated in
his attorney’s declaration, and that the court’s ruling was “plain error.” Stryker responds

16 The cited evidence upon which Robinson relied in disputing UMF No. 47—that
Pomeroy had the sole discretion to decide what discipline, if any, would be appropriate
for Deskside IT Techs—consisted of his deposition testimony that he only spoke to
DeYoung on about two occasions, and that Carrisales “was managing things,” and
“managed everyone.” This did not refute that the decision to discipline Deskside IT
Techs was vested solely in Pomeroy. Further, for the reasons stated, ante, none of this
purported evidence was admissible to create a triable issue of fact that Stryker managed
the Deskside IT Techs.
17 He does not challenge the ruling excluding exhibits F and O, and he has waived

any such challenge. (See Tiernan v. Trustees of Cal. State University & Colleges (1982)
33 Cal.3d 211, 216, fn. 4 [arguments made at trial level that are not asserted on appeal are
deemed waived].) In the section of his opening brief addressing his challenge to the
court’s evidentiary ruling, Robinson identifies 10 other exhibits to his attorney’s
declaration. There was no evidentiary objection by Stryker as to these 10 exhibits and
hence no ruling; they are not included in our discussion here.

31
that the trial court did not err because “Robinson did not identify what, if any, indicia
established the authenticity of the exhibits—let alone clear indicia.”
Robinson does not identify the appellate standard that governs our review of the
challenged order. The California Supreme Court has not decided the issue. (See Reid v.
Google, Inc. (2010) 50 Cal.4th 512, 535 [declining to decide whether standard of review
of evidentiary rulings in connection with summary judgment motions is de novo or abuse
of discretion].) However, “[t]he weight of authority” is that evidentiary rulings made by
the trial court in connection with summary judgment motions are reviewed for abuse of
discretion. (Weil & Brown, Cal. Practice Guide: Civil Writs and Appeals (Rutter Group
2024) ¶ 8:168; see also Alexander v. Scripps Memorial Hospital La Jolla (2018) 23
Cal.App.5th 206, 226 [“the weight of authority . . . holds that an appellate court applies
an abuse of discretion standard” to evidentiary issues arising in the context of a summary
judgment motion, except evidentiary rulings turning on questions of law, such as hearsay
rulings, which are reviewed de novo].) The abuse of discretion standard of review has
been applied by a number of courts considering a trial court’s order excluding evidence
proffered in the summary judgment context. (See, e.g., San Francisco Print Media Co. v.
The Hearst Corp. (2020) 44 Cal.App.5th 952, 962 & fn. 7 [exclusion of expert
testimony]; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852 (Serri)
[exclusion of documents on authentication grounds].)
As a panel of this court has explained, “[d]ocuments obtained in discovery in
response to a request for production of documents may be used to support or oppose a
motion for summary judgment, but must be presented in admissible form. This means
the evidence must be . . . properly identified and authenticated. . . . Unless the opposing
party admits the genuineness of the document, the proponent of the evidence must
present declarations or other ‘evidence sufficient to sustain a finding that it is the writing
that the proponent of the evidence claims it is.’ [Citations.]” (Serri, supra, 226
Cal.App.4th at p. 855.) “[A]cceptable means of authentication” of documents submitted

32
in law and motion proceedings include submitting a declaration of counsel attaching
relevant deposition excerpts in which the deponent authenticates the documents.
(Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 523; see also Serri, supra, at
p. 855 [noting that proponent of documents could have authenticated them, but did not do
so, by propounding requests for admission asking the adverse party to admit their
authenticity, or by asking the author to authenticate the documents while taking his or her
deposition].)
Here, the sole statement in the declaration of counsel that purported to serve to
authenticate the four exhibits excluded by the trial court was that the documents had been
Bates-stamped and “produced by Stryker in response to Plaintiff’s Requests for
Production of documents.” In support of his position that this was sufficient to
authenticate the exhibits, Robinson relies on Hooked Media Group, Inc. v. Apple Inc.
(2020) 55 Cal.App.5th 323 (Hooked Media Group). There, a panel of this court
concluded that the trial court did not err in overruling objections that documents
submitted by the party moving for summary judgment were not properly authenticated.
(Id. at pp. 337-338.) It held that there were “clear indicia” that the documents—which
the movant indicated had been produced in discovery and were accompanied by third-
party custodian declarations identifying their origin—were as indicated by their
proponent, and that, based upon the circumstances presented, the trial court did not err in
their admission. (Id. at p. 338.) However, the fact that in Hooked Media Group, there
was an attorney declaration indicating that the documents had been produced in discovery
did not mean that such evidence, of itself, would necessarily constitute sufficient
authentication in all cases. (See People v. Goldsmith (2014) 59 Cal.4th 258, 267 [proof
necessary to authenticate evidence may vary between cases].)
The trial court concluded that “[Robinson] has not offered [any] evidence to
establish the foundational facts necessary to authenticate Exhibits F, J, K, N, O, and Q.”
The court did not abuse its discretion by concluding that Robinson had not sufficiently

33
authenticated the exhibits and thus concluding that Stryker’s objections were proper.
(Serri, supra, 226 Cal.App.4th at p. 852; see also id. at p. 854 [court agrees with
objecting party that “ ‘[n]ot every document that comes out of an opposing party’s files
is automatically admissible against even that party’ ”].)18 Robinson failed to meet his
burden of establishing that the trial court abused its discretion in making this evidentiary
ruling in connection with the summary judgment motion. (See Duarte v. Pacific
Specialty Ins. Co. (2017) 13 Cal.App.5th 45, 52.)
But even were we to conclude that the trial court erred in excluding the evidence,
such assumed error is not prejudicial. It is axiomatic that “[t]he trial court’s error in
excluding evidence is grounds for reversing a judgment only if the party appealing
demonstrates a ‘miscarriage of justice’—that is, that a different result would have been
probable if the error had not occurred. [Citations.]” (Zhou v. Unisource Worldwide
(2007) 157 Cal.App.4th 1471, 1480, quoting Evid. Code, § 354; see also Twenty-Nine
Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1449 [“erroneous
evidentiary ruling requires reversal only if ‘there is a reasonable probability that a result
more favorable to the appealing party would have been reached in the absence of the
error’ ”].)
Here, the excluded evidence consisted of four Carrisales e-mails (1) asking to
meet with Robinson to discuss the status of a project (exhibit J); (2) thanking a Stryker
employee for expressing appreciation for Robinson’s work (exhibit K); (3) reporting to
Deskside IT Techs the number of tickets that had closed in April 2019 (exhibit N); and
(4) reporting to Deskside IT Techs the number of tickets that had closed in May 2019
(exhibit Q). It is clear from our discussion, ante, that these e-mails—considered

18 We observe that Robinson in fact took the deposition of Lettie Carrasales, the
author of the four excluded exhibits—excerpts of which deposition were attached to
Robinson’s opposition—and could have had the witness authenticate the documents at
that time (but apparently did not do so).

34
individually or in conjunction with other evidence submitted by Robinson—did not raise
a triable issue of material fact on the question of his purported employment by Stryker.
We therefore reject Robinson’s claim of error based upon the trial court’s exclusion of
evidence.
F. Conclusion
We have concluded that Stryker, as the party moving for summary judgment, met
its burden of showing that Robinson’s complaint had no merit. Stryker demonstrated that
an element essential to Robinson’s wage and hours claims was that he had been a Stryker
employee, and there was no triable issue of material fact to support that element.
Stryker presented significant evidence that Pomeroy was Robinson’s employer—
and his sole employer. This evidence included the MSA, which provided detailed terms
requiring that Pomeroy assume complete responsibility as an employer for all aspects of
the employment of the Deskside IT Techs, including Robinson. The evidence also
consisted of Pomeroy’s having (a) recruited, interviewed, and hired Robinson;
(b) assumed responsibility for the placement of Deskside IT Techs at the different Stryker
facilities; (c) made all decisions regarding the number of persons assigned and hours to
be worked at any given Stryker facility; (d) charged Stryker a flat fee for the assignment
of Deskside IT Techs, regardless of the number of employees assigned or the hours they
were required to work; (e) assumed the supervision of the Deskside IT Techs, including
Robinson, including the making of daily assignments through the ticketing system;
(f) exclusive responsibility for any disciplinary actions or transfers of Deskside IT Techs;
(g) exclusive responsibility for tracking the hours of Deskside IT Techs, including
Robinson, through review of timesheets submitted by the employees; (h) determined and
provided the compensation for the Deskside IT Techs, including Robinson, as well as
having issued paychecks, wage statements, and W-2 forms to them; and (i) assumed
responsibility to maintain all personnel records and to file all documents required of
governmental agencies.

35
 Robinson admitted many of the undisputed material facts identified in Stryker’s
motion. Notably, however, he denied key UMF’s, such as Pomeroy’s having (1) hired
Robinson, (2) assigned Deskside IT Techs to Stryker, (3) supervised them, and
(4) responsibility for disciplining them. As we have discussed, the purported facts cited
by Robinson to refute the UMF’s consisted mostly of matters about which Robinson
speculated and for which he lacked personal knowledge, i.e., incompetent evidence not
admissible to oppose summary judgment. In short, Robinson, in response to Stryker’s
prima facie showing, did not meet his burden of demonstrating the existence of “ ‘a
triable issue of one or more material facts . . . as to the cause of action . . . [by] set[ting]
forth the specific facts showing that [such] a triable issue of material fact exists . . .”
(§ 437c, subd. (p)(2).)
In determining whether, applying the principles enunciated by our high court in
Martinez in a wage and hour case such as the one here, an entity is a plaintiff’s employer
or co-employer, “[a] commonsense understanding of who ‘employed’ [plaintiff]—for
purposes of compelling the payment of allegedly unpaid wages—must prevail . . .”
(Futrell, supra, 190 Cal.App.4th at p. 1435.) In this regard, substance over form must be
observed. (See, e.g., Aleksick, supra, 205 Cal.App.4th at pp. 1186-1190 [where franchise
agreement provided that franchisee was an independent contractor responsible for store
operations, including hiring, firing, setting salary, and paying employees, the fact that
franchisor was responsible under the agreement to provide payroll services to franchisee
did not render it an employer]; Futrell, supra, at pp. 1432-1433 [fact that payroll
company, which did not hire, supervise, or provide work assignments to employees,
provided payroll services to an advertising production company did not mean it
controlled the employees’ wages or that it was a co-employer].)
Robinson attempts to construe the role of Stryker employee Carrisales in
communicating with Deskside IT Techs employed by Pomeroy on a day-to-day basis
about their work as elevating the position of Stryker to co-employer. However, as

36
explained in Martinez, the fact that an entity has direct contact with employees of another
entity, including discussing how work should be performed—in the case of Martinez,
Merchants having contact with Grower’s employees, or here, a company, Stryker,
receiving the benefit of IT personnel employed by a separate outsourcing entity,
Pomeroy, employing them—does not render the entity a co-employer. (See Martinez,
supra, 49 Cal.4th at pp. 75-76; see also Taylor, supra, 67 Cal.App.5th at pp. 1002-1003
[surety’s contacts with fugitive recovery agents did not render surety an employer or joint
employer].)
The record here shows that there was no triable issue of material fact that
supported a finding that Robinson was employed by Stryker. Since only an aggrieved
employee has standing to assert a PAGA claim (see Kim, supra, 9 Cal.5th at p. 81),
Robinson’s complaint based upon wage and hour claims against Stryker was without
merit. Accordingly, the motion for summary judgment in favor of Stryker was properly
granted.
III. DISPOSITION
The August 8, 2022 judgment entered on the prior order granting respondent’s
motion for summary judgment is affirmed. Respondent to recover its costs on appeal.

37
 BAMATTRE-MANOUKIAN, J.

WE CONCUR:

GREENWOOD, P. J.

WILSON, J.

Robinson v. Stryker Corporation
H050336