Filed 7/7/21 Mateel Environmental Justice Foundation v. Ukiah Rifle and Pistol Club CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION FOUR
MATEEL ENVIRONMENTAL
JUSTICE FOUNDATION,
Plaintiff and Appellant, A159015
v. (Mendocino County
UKIAH RIFLE AND PISTOL Super. Ct. No. SCUKCVG18-
CLUB, 70419)
Defendant and Respondent.
Plaintiff Mateel Environmental Justice Organization (Mateel) filed an
action under the Safe Drinking Water and Toxic Enforcement Act of 1986
(Health & Saf. Code1 § 25249.5 et seq. (Proposition 65 or Act)) seeking civil
penalties and an injunction to stop Defendant Ukiah Rifle and Pistol Club
(Club) from depositing bullets containing lead onto land where it could wash
into a nearby creek and to remove existing leaded bullets from the land. The
Club moved for summary judgment, arguing it was not subject to Proposition
65 because it had fewer than 10 employees on the alleged discharge dates.
The trial court granted the Club’s motion, entered judgment for the Club, and
dismissed the case.
Because there is a triable issue of fact as to whether the Club had 10 or
more employees during the relevant time period, and thus whether the Club
1 Undesignated statutory citations are to the Health and Safety Code.
1
was subject to Proposition 65’s discharge prohibitions, we will reverse the
judgment.
BACKGROUND
Founded in 1955, the Club is a non-profit, tax-exempt membership
corporation that operates a gun club and shooting range on approximately 98
acres of land in Ukiah. The Club hosts marksmanship competitions, firearm
safety training, and junior rifleman programs each year. The Club offers a
Junior Trap program to teach children under the age of approximately 14 to
shoot trap and develop responsible shooting skills. The Club advertises to
and enrolls non-members in that program, and several members run it. The
revenue the program generates is used to cover the Club’s general expenses.
The Club’s members elect a board of directors (Board) to supervise and
control the Club’s activities. Between February 20 and October 30, 2017, the
Board was composed of the Club’s nine officers.2 After amendments to the
Club’s bylaws took effect on October 30, 2017, the Club still had nine Board
members, but only five of them were officers.
Board members had discretion to waive the $150 annual dues of
members who provided exemplary service to the Club, such as those who
spent significant time operating the Junior Trap shooting program or a
hunter’s education program, fundraising, and doing maintenance work on
Club property. Between July 1, 2016 and June 30, 2017, the Club waived the
dues of at least seven members who performed exemplary service to the Club.
2 In its opening brief, Mateel asserts that the Club had 10 officers
between February 20, 2017, and October 30, 2017. Mateel relies on the fact
that the Club’s bylaws at the time stated that the Club would have 10
officers. But as the Club points out and Mateel does not dispute, there is no
evidence in the record that a past president ever served as an officer, leaving
only nine officers.
2
Between July 1, 2017 and June 30, 2018, the Club again waived the dues of
at least seven such members, six of whom received a dues waiver the prior
year. Two of the members who received dues waivers in both years helped
run the Junior Trap program. The Club later stopped awarding waivers of
dues.
The Club has known that users of its shooting ranges shoot leaded
ammunition and that spent ammunition becomes embedded in the land at
the Club’s property. Mateel, an environmental organization, filed a
Proposition 65 challenge on February 20, 2018, alleging that the Club
discharged leaded ammunition onto its property and that, during rainstorms,
lead from that ammunition washes into Sulphur Creek and subsequently into
the Russian River. Mateel further alleged that lead is a listed pollutant
under Proposition 65. Mateel therefore sought to enjoin the Club from
shooting leaded ammunition onto its property where rain could fall on the
projectiles. Mateel also sought civil penalties under section 25249.7,
subdivision (b)(1) and an order requiring the Club to remove leaded
projectiles from its property to the extent that rain could come in contact with
it.
The Club moved for summary judgment, relying on section 25249.11,
subdivision (b) to argue that it was not subject to Proposition 65 because it
had fewer than 10 employees on the four days on which Mateel alleged lead
from the Club’s property had entered into a source of drinking water. The
Club argued it had no employees because its officers and members who ran
its programs were volunteers, not employees. Mateel countered that the
relevant days were those on which the Club discharged leaded ammunition
onto the land, not just four particular days when lead from the ammunition
reached drinking water. Mateel also argued that the Club had more than 10
3
employees because the Club’s officers and members who provided services for
the Club received compensation in the form of waivers of their membership
fees.
The trial court agreed with the Club, ruling that the Club did not have
employees during the relevant time period. The court therefore granted the
Club’s motion, entered judgment for the Club, and dismissed the case.
DISCUSSION
I. Standard of Review
Summary judgment is appropriate “if all the papers submitted show
that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c,
subd. (c).) A defendant has met “his or her burden of showing that a cause of
action has no merit if the party has shown that one or more elements of the
cause of action, even if not separately pleaded, cannot be established, or that
there is a complete defense to the cause of action.” (Id., subd. (p)(2).) Where,
as here, the defendant moves for summary judgment on the grounds that one
or more elements of the plaintiff’s claim cannot be established, the defendant
must present evidence that either “conclusively negate[s] an element of the
plaintiff’s cause of action” or “show[s] that the plaintiff does not possess, and
cannot reasonably obtain,” evidence needed to establish an element of the
claim. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853–854
(Aguilar).) If the defendant meets this burden, “the burden shifts to the
plaintiff . . . to show that a triable issue of one or more material facts exists
as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c,
subd. (p)(2).)
We review an order granting summary judgment de novo. (Buss v.
Superior Court (1997) 16 Cal.4th 35, 60.) We consider all evidence presented
in the moving and opposition papers, excluding evidence to which objections
4
were made and sustained. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th
1028, 1037.) “We liberally construe the evidence in support of the party
opposing summary judgment and resolve doubts concerning the evidence in
favor of that party.” (Ibid.)
“The question of whether a person is an employee [under Labor Code
section 3200 et seq.] may be one of fact, of mixed law and fact, or of law only.
Where the facts are undisputed, the question is one of law, and the Court of
Appeal may independently review those facts to determine the correct
answer.” (Barragan v. Workers’ Comp. Appeals Bd. (1987) 195 Cal.App.3d
637, 642 (Barragan); see Land v. Workers’ Comp. Appeals Bd. (2002)
102 Cal.App.4th 491, 494.) “A trial court’s interpretation of an
administrative regulation is a legal determination and is reviewed de novo.”
(As You Sow v. Conbraco Industries (2005) 135 Cal.App.4th 431, 447.)
II. Proposition 65
Proposition 65 “was designed, in pertinent part, to regulate the
discharge or release of cancer-causing chemicals (carcinogens) and
reproductive toxins (teratogens) into drinking water. (Health & Saf. Code,
§§ 25249.5–25249.13; People ex rel. Lungren v. Superior Court (1996)
14 Cal.4th 294, 298.) Under section 25249.5, the discharge prohibition, ‘No
person in the course of doing business shall knowingly discharge or release a
chemical known to the state to cause cancer or reproductive toxicity into
water or onto or into land where such chemical passes or probably will pass
into any source of drinking water, notwithstanding any other provision or
authorization of law except as provided in Section 25249.9.’ Section 25249.8
requires the state to publish and update annually a list of these known
carcinogens and teratogens.” (Mateel Environmental Justice Foundation v.
Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17–18, fn. omitted (Mateel).)
5
Section 25249.11, subdivision (b) excludes from the definition of “person in
the course of doing business” anyone employing fewer than 10 employees, so
businesses with fewer than 10 employees are not subject to the Act. The
statute of limitations for a Proposition 65 claim is one year. (Shamsian v.
Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 976 (Shamsian).)
The California Health and Welfare Agency (HWA)3 promulgated
regulations to clarify the meaning of Proposition 65. (Mateel, supra,
115 Cal.App.4th at p. 18, fn. 5.) In light of Proposition 65’s nature as a
remedial statute whose goal is to protect Californians from toxic chemicals in
drinking water, we broadly construe the statute and its regulations. (People
ex rel. Lungren v. Superior Court, supra, 14 Cal. 4th at p. 314 (People ex
rel. Lungren).)
The premise of the Club’s summary judgment motion was that one of
Mateel’s discovery responses identified only four dates in early 2018 on which
Mateel contended the Club discharged lead into drinking water. The Club
therefore aimed its arguments at those dates and contended that it had fewer
than 10 employees on those dates. As it did in the trial court, Mateel argues
both that the Club is mistaken about what dates are relevant and that the
trial court erred in concluding the Club had fewer than 10 employees on the
relevant dates. We address each of these arguments in turn.
3 In 1987, the Governor designated the HWA as the “lead agency”
tasked with implementing regulations for Proposition 65. (Mateel, supra,
115 Cal.App.4th at pp. 18–19, fn. 5.) In 1991, the Governor transferred “lead
agency” responsibilities to the Office of Environmental Health Hazard
Assessment (OEHHA). (Ibid.) OEHHA is currently the lead agency that
implements Proposition 65. (Cal. Code Regs., tit. 27, § 25102, subd. (o);
§ 25249.12, subd. (a).) Although the HWA is no longer the implementing
agency, it was when it issued the regulations relevant here. For the sake of
clarity, we refer to the HWA as the implementing agency.
6
A. Relevant Time Period (When Discharges Occur)
Proposition 65 applies to persons employing 10 or more employees, but
it does not explain how to calculate the number of employees a person
employs. (§ 25249.11, subd. (b).) The HWA’s regulations fill in this gap,
directing, “In computing whether a person employs 10 or fewer employees in
his business, all full-time and part-time employees on the date on which the
discharge . . . occurs must be counted. Thus, the prohibition[] on
discharge . . . will apply to any person who has 10 or more full-time or part-
time employees on the date in question.” (Cal. Code Regs., tit. 27, § 25102,
subd. (h).) The discharges the Act prohibits are those of a listed chemical
“into water or onto or into land where such chemical passes or probably will
pass into any source of drinking water.” (§ 25249.5.) The HWA’s regulations
further clarify that “ ‘probably will pass into any source of drinking water’ ”
means “more likely than not will pass into any source of drinking water.”
(Cal. Code Regs., tit. 27, § 25102, subd. (r).) Reading all these definitions
together, an entity’s liability under Proposition 65 turns on whether it
employed 10 or more employees on each day when it discharged a listed
chemical into water or onto or into land where it, more likely than not, would
pass into drinking water.
Mateel’s complaint alleges the Club committed such discharges every
day that it allowed users to fire projectiles containing lead at the Club’s gun
ranges. Mateel filed its complaint on February 20, 2018, and the statute of
limitations for Proposition 65 claims is one year. (Shamsian, supra,
107 Cal.App.4th at p. 976.) Accordingly, to defeat Mateel’s complaint at
summary judgment by establishing it was not subject to Proposition 65, the
Club needed to prove it had fewer than 10 employees on every day on which
it allowed users to discharge leaded ammunition at its ranges between
7
February 20, 2017, and February 20, 2018, or that Mateel did not have and
could not obtain evidence that the Club had 10 or more employees on those
days. (Aguilar, supra, 25 Cal.4th at pp. 853–854 [to prevail at summary
judgment on the grounds that the plaintiff cannot establish an element of a
cause of action, a moving defendant must either “conclusively negate an
element of the plaintiff’s cause of action” or show “that the plaintiff does not
possess, and cannot reasonably obtain,” evidence needed to establish an
element of the claim].) The Club’s narrow focus on four dates within the
period when rain allegedly washed lead from its property into Sulphur Creek
was legally insufficient to entitle it to summary judgment because it failed to
address Mateel’s allegations that the firing of leaded ammunition was the
relevant discharge for the purposes of Proposition 65.
The Club also errs in relying on Mateel’s discovery responses to argue
that only the four rainfall dates are relevant, or that Mateel offered
conflicting theories for which dates are relevant. The Club’s interrogatory in
question asked Mateel to state the dates on which rain fell on the lead on the
Club’s property, dissolved it, and carried the lead into Sulphur Creek. This
question did not ask Mateel to identify every date on which it alleged the
Club violated the Act or discharged lead into water or onto land where it
would more likely than not pass into drinking water. Nor can Mateel’s
response be construed as identifying every date of the Club’s alleged
violations. Mateel’s response said that rain fell and washed lead into
Sulphur Creek “[e]very day on which there was enough rainfall that
stormwater ran off the property on which the . . . Club’s shooting ranges are
located” and that such dates “include[d]” the four listed dates. Mateel further
disclaimed any intent to provide an exhaustive list, stating, “The precise list
of other dates on which storm water discharged from the . . . Club are not
8
known at this time.” These responses in no way limit the time period of
Mateel’s allegations regarding the Club’s liability4.
B. Definition of Employee
Although the Club’s motion for summary judgment was deficient in
that it addressed whether the Club was subject to Proposition 65 on only four
dates within the limitations period, that alone does not entitle Mateel to a
reversal of the judgment. The trial court granted the Club summary
judgment based on the more expansive theory that the Club had no
employees at any time during the relevant time period. The trial court had
inherent power to grant summary judgment on this broader theory if the
record supported it. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59,
70.)5 We therefore consider the definition of “employee” for the purposes of
Proposition 65.
The regulation clarifying how to calculate of the number of employees a
person employs also includes a substantive definition of who qualifies as an
“employee.” California Code of Regulations, title 27, section 25102,
4 Relatedly, the Club asserted at oral argument that Mateel is bound by
its statements in the trial court that the Club had only five officers. Mateel
made these statements in response to the Club’s summary judgment briefing,
which, as discussed, addressed the number of Club employees only on four
specific dates in early 2018. These statements therefore cannot be construed
as establishing Mateel’s position regarding the number of Club officers
during the period from February 20 to October 30, 2017
5 Because the trial court went beyond the arguments raised in the
Club’s motion, Mateel was entitled to the opportunity to respond to the
rationale that the trial court adopted. (Juge v. County of Sacramento, supra,
12 Cal.App.4th at p. 70.) Mateel did not argue below that it was denied this
opportunity, nor has it raised such an argument on appeal. (Cf. Luebke v.
Automobile Club of Southern California (2020) 59 Cal.App.5th 694, 706
[reversing summary judgment on issue not raised in motion because trial
court did not give plaintiff an opportunity to oppose].) Mateel’s briefing
below appears to have addressed the trial court’s ultimate rationale.
9
subdivision (h) defines “employee” by incorporating definitions from other
statutes: “ ‘Employee’ shall have the same meaning as it does in
Unemployment Insurance Code Section 621 and in Labor Code Section 3351.
Generally, and without limiting the applicability of the definitions in these
two statutes, this means that an employee is a person who performs services
for remuneration under any appointment or contract of hire or
apprenticeship, express or implied, oral or written, whether lawfully or
unlawfully employed.”
The parties’ dispute centers on Labor Code section 3351. This statute
is part of the Worker’s Compensation Act (Lab. Code §§ 3200 et seq.; Arriaga
v. County of Alameda (1995) 9 Cal.4th 1055, 1059, 1061 (Arriaga)) and
broadly defines “employee” as “every person in the service of an employer
under any appointment or contract of hire or apprenticeship, express or
implied, oral or written, whether lawfully or unlawfully employed . . . .”
(Lab. Code, § 3351.) It also declares that the term includes “[a]ll officers and
members of boards of directors of quasi-public or private corporations while
rendering actual service for the corporations for pay.” (Lab. Code, § 3351,
subd. (c).) In Arriaga, our Supreme Court noted that the Worker’s
Compensation Act “ ‘intends comprehensive coverage of injuries in
employment. It accomplishes this goal by defining “employment” broadly in
terms of “service to an employer” and by including a general presumption
that any person “in service to another” is a covered “employee.” ’ ” (Arriaga,
supra, 9 Cal.4th at p. 1061.)
The trial court ruled that officers and members of the Club would be
employees if they provided service for pay. The court cited an opinion letter
from the Division of Labor Standards Enforcement (DLSE), which stated that
one of the controlling factors in determining whether an individual is an
10
employee or a volunteer is how the parties view their relationship. (Dept. of
Industrial Relations, DLSE, Opinion Letter (October 27, 1988) p. 1, at
[as of July 8, 2021]
(DLSE Opinion Letter).) But the court also cited Brassinga v. City of
Mountain View (1998) 66 Cal.App.4th 195, 214, which instructed that courts
should consider “the reality of the situation, not the parties’ characterization
of the relationship.” The trial court then concluded that none of the Club’s
officers or members were employees because they volunteered their services
gratuitously and were not paid compensation. The trial court rejected
Mateel’s theory that the waivers of membership dues provided to officers or
Club members who provided extraordinary service to the Club qualified as
remuneration because the individuals did not expect dues waivers, the Club
did not promise them, and the waivers were granted based on work
performed in the previous year.
The Club defends the trial court’s decision as well-reasoned, but we
agree with Mateel that the trial court erred. As the trial court recognized,
there is an established body of case law that distinguishes in various factual
contexts between volunteers and employees under Labor Code section 3351.
The HWA stated when it adopted California Code of Regulations, title 27,
section 25102, subdivision (h)6 that “it is appropriate to interpret the
6 The definition of “employee” was originally promulgated at California
Code of Regulations, title 22, section 12201, subdivision (c). (Former Cal.
Code Regs., tit. 22, § 12201, subd. (c), Register 88, No. 11 (Mar. 12, 1988)
p. 328.) It was transferred without substantive change to California Code of
Regulations, title 22, section 12102, subdivision (h) in 2003, and then
renumbered without change as California Code of Regulations, title 27,
section 25102, subdivision (h) in 2008. (Former Cal. Code Regs., §§ 12102,
subd. (h), 12201, Register 2003, No. 2 (Jan. 10, 2003), pp. 189–190; Cal. Code
Regs., tit. 27, § 25102, Register 2008, No. 25, Digest of New Regulations, Title
22.)
11
definitions of ‘employee’ in Unemployment Insurance Code section 621 and
Labor Code section 3351 in light of court decisions which further refine those
terms.” (Health and Welfare Agency, Final Statement of Reasons (Jan. 1,
1988) p. 18, at
[as of July
8, 2021]; see former Gov. Code, § 11346.7, subds. (a)(2) & (b)(1) (Stats. 1987,
ch. 1375, § 14) [statute in effect in 1988 requiring agencies proposing
regulations to prepare a final statement of the specific purpose of each
regulation adopted]; see also Gov. Code, §§ 11346.2, subd. (b)(1), 11346.9,
subd. (a)(1) [current version of this requirement].) We give great weight to its
explanation of the intent behind California Code of Regulations, title 27,
section 25102, subdivision (h). (People ex rel. Lungren, supra, 14 Cal.4th at p.
309 [“ ‘the contemporaneous administrative construction of [an] enactment by
those charged with its enforcement . . . is entitled to great weight, and courts
generally will not depart from such construction unless it is clearly erroneous
or unauthorized’ ”].)
The cases consider various factors relevant to the distinction between
volunteers and employees, depending on the circumstances. Some decisions
examine whether the putative employer directed and controlled the putative
employee. (E.g., Arriaga, supra, 9 Cal.4th at p. 1063 [plaintiff injured while
working off a speeding ticket was under government agencies’ control]; Laeng
v. Workmen’s Comp. Appeals Bd. (1972) 6 Cal.3d 771, 782 (Laeng) [plaintiff
injured while performing agility test for a position as a sanitation worker was
under defendant city’s control].) Other decisions consider whether the
putative employee’s service benefited the putative employer. (E.g., id. at
pp. 781–782 [plaintiff job applicant’s agility test benefitted the employer by
helping the employer choose the best candidate for the job]; Waggener v.
12
County of Los Angeles (1995) 39 Cal.App.4th 1078, 1082–1083 [juror injured
when exiting a jury box performed service that benefitted the county].) Some
decisions consider whether a putative employee performed the same service
and was exposed to the same risks as recognized employees. (E.g., Arriaga,
supra, 9 Cal.4th at p. 1063 [injured plaintiff performed same tasks as
defendants’ transportation workers]; Land v. Workers’ Comp. Appeals Bd.,
supra, 102 Cal.App.4th at p. 496 [student injured while performing tasks for
a class in animal science was not working with paid workers and student’s
work was performed for an educational purpose and not usually done by paid
employees]; Hoppmann v. Workers Comp. Appeals Bd. (1991) 226 Cal.App.3d
1119, 1125 [maintenance worker for church “worked shoulder to shoulder”
with employees covered by worker’s compensation, “did the same
work . . . and ran the same risks”].) Finally, several decisions turn on
whether individuals received compensation or offered their services
gratuitously. (E.g., Edwards v. Hollywood Canteen (1946) 27 Cal.2d 802,
805–806 (Hollywood Canteen) [plaintiff who volunteered to dance with
soldiers did so gratuitously, without pay]; (Barragan, supra, 195 Cal.App.3d
at p. 649 [plaintiff injured while externing at a hospital to earn school credits
she needed to graduate was an employee because she worked at the hospital
as a required component of her education, not out of the goodness of her
heart]; see Lab. Code, § 3352, subd. (a)(9) [“employee” excludes a “person
performing voluntary service for . . . a private, nonprofit organization who
13
does not receive remuneration for the services, other than meals,
transportation, lodging, or reimbursement for incidental expenses”].)7
The parties’ evidence and briefing below was aimed almost exclusively
at the last factor, focusing on whether the Club’s members who served as
officers or provided other services were volunteers because they received no
compensation. The trial court’s ruling understandably focused on that
question as well. However, because no single factor appears to be controlling
when distinguishing between volunteers and employees, there may be a
dispute of material fact on the other factors that would preclude summary
judgment. But we need not examine the other factors in detail, because we
also find a triable issue of material fact on the one factor the parties and the
trial court addressed in detail concerning whether the Club compensated its
officers and members who provided services to the Club.
Preliminarily, the DLSE Opinion Letter, on which the trial court relied
and which the Club cites in its brief for the notion that the parties’ intent is
controlling, is of dubious value. The DLSE’s Opinion Letter addresses the
definition of “employee” for the purposes of wage orders of the Industrial
Wage Commission. (DLSE Opinion Letter, at p. 1.) Because this case does
not involve a wage order and neither the trial court nor the Club has shown
7 The trial court ruled that California Code of Regulations, title 27,
section 25102, subdivision (h) did not incorporate other provisions of the
Labor Code or Unemployment Insurance Code that related to the listed
sections, like Labor Code section 3352. The Club nonetheless relies on this
statute, which we interpret as a repudiation of this ruling. We also struggle
to see how it would make sense to consult Labor Code section 3351 in
isolation from related statutes that create exclusions from its definition. The
question is ultimately academic here, however, because the exception for
volunteers who receive no remuneration at all was recognized in Hollywood
Canteen even in the absence of a statute like Labor Code section 3352,
subdivision (a)(9).
14
that the wage orders use the same or a similar definition of “employee” as
Labor Code section 3351, the DLSE Opinion Letter provides little guidance in
this case. The two-page letter is also devoid of legal analysis and authority to
support its conclusion that the intent of the parties is dispositive when
determining whether a person is an employee or volunteer. We therefore
place little weight on this letter. (Cf. Oliver v. Konica Minolta Business
Solutions U.S.A., Inc. (2020) 51 Cal.App.5th 1, 27 [DLSE Opinion Letter
interpreting Labor Code section not helpful due in part to the lack of legal
analysis supporting its conclusion].)
Decisions construing Labor Code section 3351 nonetheless instruct that
the motivations of an individual are relevant when determining whether he
or she is a volunteer or employee, as is the issue of whether the individual
received any compensation. Hollywood Canteen concluded a plaintiff who
danced with soldiers was not an employee of the dance hall where she was
injured while dancing because she intended to offer her services gratuitously
as a contribution of the entertainment industry to entertain servicemen.
(Hollywood Canteen, supra, 27 Cal.2d at pp. 805–806, 807.) The court also
noted that the plaintiff was not paid. (Id. at pp. 805–806.) Barragan,
following Hollywood Canteen and applying the statutory exemption currently
found at Labor Code section 3352, subdivision (a)(9), similarly considered
both that the plaintiff extern did not intend to provide gratuitous services to
the hospital and that the extern did in fact receive valuable remuneration in
the form of instruction and on-the-job training. (Barragan, supra,
195 Cal.App.3d at p. 650.) The reasoning in both cases indicates that an
individual’s subjective motivations are important, but so is the interrelated
question of whether the individual actually received compensation in
exchange for his or her service. We also heed the observation in Brassinga v.
15
City of Mountain View, supra, 66 Cal.App.4th at page 214, that “it is the
reality of the relationship rather than the characterization of it by the parties
that controls.”
The question of compensation is particularly significant here, because
Labor Code section 3351, subdivision (c) specifically provides that the
category of “employees” includes “[a]ll officers and members of boards of
directors of quasi-public or private corporations while rendering actual
service for the corporations for pay.” If the Club’s officers received
compensation, then, by statute they would qualify as employees, regardless of
their subjective intent. We conclude, based on the undisputed facts, that the
officers did receive compensation in the form of dues waivers. (Barragan,
supra, 195 Cal.App.3d at p. 642 [where facts are undisputed, the question of
whether an individual is an employee is one of law].)8
“[T]here is a long line of case law establishing the rule that one need
not receive actual payment of money or wages in order to be an employee for
purposes of the Workers’ Compensation Act.” (Barragan, supra,
195 Cal.App.3d at p. 650; see Arriaga, supra, 9 Cal.4th at p. 1065 [credit
against court-imposed fine was renumeration]; Hollywood Canteen, supra,
27 Cal.2d at p. 806 [“pecuniary consideration is not required,” italics
omitted]; Morales v. Workers’ Comp. Appeals Bd. (1986) 186 Cal.App.3d 283,
289 [inmate who participated in a work release program received
renumeration in the form of release from confinement]; Anaheim General
Hospital v. Workmen’s Comp. Appeals Bd. (1970) 3 Cal.App.3d 468, 473
8 Although Mateel does not rely on Unemployment Insurance Code
section 621, we note that subdivision (a) of that statute supports our
approach here, as it provides that “[a]ny officer of a corporation” is an
employee, without regard to payment or compensation. (Unemployment Ins.
Code, § 621, subd. (a).)
16
[money paid by hospital to nursing student’s school in exchange for student’s
services was compensation because school did not have to charge student
tuition]; Gabel v. Industrial Accident Commission (1926) 83 Cal.App. 122,
123, 125–126 [exchange of labor between neighboring farmers was
renumeration].) The waivers of membership dues that the Club formerly
provided to its officers were something of value exchanged for the officers’
service, so the waivers constitute compensation.
The Club’s bylaws in effect when the Club had nine officers confirm
this conclusion, since they stated that the dues waivers were provided to
officers “in recompense for the hours donated in conducting official business
of the Club.” The bylaws further stated that no officers other than the
Membership Secretary and the Treasurer would receive “monetary
remuneration.”9 The phrasing “monetary remuneration” distinguishes
between monetary and other forms of remuneration. This provision is
therefore consistent with the waivers being compensatory for all officers
because the waivers were in the form of free membership in the Club and not
paid in cash. Moreover, the bylaws also reveal the officers’ intent, as they
indicate that the Club’s officers knew before taking office that they would
receive the benefit and performed their service in exchange.
To escape the conclusion that the dues waivers provided to the officers
were compensation, the Club argues that the dues waivers were merely a
reimbursement of the expenses of membership that were incidental to service
as an officer. The Club contends Labor Code section 3352, subdivision (a)(9)
permits such reimbursements without jeopardizing an individual’s status as
a volunteer. We reject this post hoc characterization of the dues waivers,
There is no indication in the record that the Membership Secretary or
9
Treasurer ever received monetary remuneration.
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however, because it fails to account for the Club’s contemporaneous bylaws
showing that the dues waivers were compensatory.
Our conclusion that the Club’s officers received compensation for their
service and therefore qualify as employees under Labor Code section 3351,
subdivision (a)(9) is significant because the Club had nine officers who served
throughout the first part of the statute of limitations period, between
February 20 and October 30, 2017. As a result, summary judgment for the
Club is inappropriate if there is a triable issue as to whether the Club had at
least one other employee on any date during this period on which leaded
ammunition was discharged into the land at the Club’s property. (Cal. Code
Regs., tit. 27, § 25102, subd. (h) [10-employee test applies “on the date on
which the discharge . . . occurs”].)
Based on the record before us concerning the Club’s Junior Trap
program, during which leaded ammunition was discharged, we find there is.10
The Club defends the trial court’s finding that members were not promised
and did not expect to receive dues waivers in exchange for their service by
citing certain members’ declarations to that effect. But other evidence in the
record supports contrary inferences about the motivations of the members
who operated the Junior Trap program. The members whose declarations
the Club submitted admitted they knew in advance that they might receive
10 Mateel offers various additional theories for other forms of
compensation Club members received for their service besides dues waivers,
such as an increased benefit and utility from Club improvements, increase in
the value of Club memberships that might inure to members’ benefit if the
Club were ever to dissolve, and avoidance of an additional $50 in dues the
bylaws obligated a member to pay if he or she did not provide volunteer
service. Mateel did not adequately raise most if not all of these theories in its
briefing below, and they are unnecessary to discuss in light of the conclusion
we reach about the members who ran the Junior Trap program, so we
express no opinion about these contentions.
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dues waivers before performing their service, calling their motivation into
question.11 Moreover, two of the members who declared that they did not
expect a dues waiver for their work on the Junior Trap program in 2017–
2018 had received a waiver of dues in the prior year. From their prior receipt
of a waiver and continued service, one could reasonably infer that the
members continued to serve in expectation of receiving another waiver. It is
immaterial that the dues waivers were never guaranteed or that members
received a dues waiver in the year after their service. In Laeng, the plaintiff
was injured when trying out for a job as a sanitation worker. (Laeng, supra,
6 Cal.3d at p. 774.) The plaintiff’s compensation there was contingent, as
there was no guarantee the plaintiff would be hired, yet the California
Supreme Court nonetheless found he was an employee. (Id. at pp. 774, 776–
777.) Similarly here, the possibility that the Club would not grant a dues
waiver does not conclusively establish that the Club’s members who operated
the Junior Trap program were volunteers. It is also common for employees to
be paid after they perform services, so the timing of the dues waivers is not
remarkable.
In addition to finding the due waivers were not compensation, the trial
court cited the absence of a formal contract for hire and the fact that at least
some members continued to serve after the Club discontinued the practice of
offering dues waivers. The former is irrelevant because the California
11The Club contends Mateel waived the argument that members who
received dues waivers qualified as employees by failing to identify the specific
members in its briefing in the trial court. This argument is meritless.
Mateel’s separate statement cited to the Club’s own evidence to support its
claim that individuals receiving fee waivers were employees, and the Club
chose to identify such individuals by pseudonyms to protect their privacy.
The Club cannot credibly contend it was unable to identify the individuals on
whom Mateel’s argument turns.
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Supreme Court has held that a formal contract is not necessary for an
individual to be an employee under Labor Code section 3351. (Laeng, supra,
6 Cal.3d at pp. 776–777; see also Waggener v. County of Los Angeles, supra,
39 Cal.App.4th at p. 1081 [courts should eschew “a rigid contractual analysis”
when evaluating whether someone is an employee].) The latter is insufficient
to establish that the members’ earlier service was performed without
expectation of compensation in the face of the contrary evidence discussed
above.
In sum, there is a triable issue of fact as to whether the Club had at
least 10 employees during the relevant time period because all nine of the
Club’s officers between February 20 and October 30, 2017, received
compensation in the form of dues waivers and were therefore employees
under Labor Code section 3351, subdivision (a)(9), and there is a triable issue
of fact concerning whether at least one of the Club’s members who received a
dues waiver for performing service for the Club’s Junior Trap program was
an employee under Labor Code section 3351. Accordingly, the court erred in
granting summary judgment to the Club on the basis that it was not a
“person in the course of doing business” subject to Proposition 65’s discharge
prohibitions. (§ 25249.11, subd. (b).)
DISPOSITION
The judgment is reversed. The case is remanded to the trial court for
proceedings consistent with this opinion. Mateel is entitled to its costs on
appeal.
BROWN, J.
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WE CONCUR:
POLLAK, P. J.
STREETER, J.
Mateel Environmental Justice Foundation v. Ukiah Rifle and Pistol Club (A159015)
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