Natalie Hockey vs Brighton Collectibles LLC

Case Number

19CV06616

Case Type

Hearing Date / Time

Mon, 02/05/2024 - 10:00

Nature of Proceedings

Motion: Summary Judgment

Tentative Ruling

Natalie Hockey v. Brighton Collectibles, LLC           

Case No. 19CV06616          

Hearing Date: February 5, 2024                                            

HEARING:              L.A. Models, Inc.’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication Against Cross-Complainant Brighton Collectibles, LLC

ATTORNEYS:        For Plaintiff and Cross-Defendant Natalie Hockey: Joseph H. Low IV; Roger Y. Muse, John Matheny, Excelsior Law

                                    For Defendant and Cross-Complainant Brighton Collectibles, LLC: Peter W. Ross, Charles Avrith, Ross LLP

                                    For Cross-Defendant L.A. Models, Inc.: Gene H. Shioda, Steven P. Chang, Heidi M. Cheng, Shioda Langley & Chang, LLP

TENTATIVE RULING:

LA Models, Inc.’s motion for summary judgment or, in the alternative, summary adjudication against cross-complainant Brighton Collectibles, LLC is denied.

Background:

On December 16, 2019, plaintiff Natalie Hockey filed her complaint in this action against defendant Brighton Collectibles, LLC (Brighton). The complaint alleges one cause of action for penalty wages pursuant to Labor Code section 203.

The complaint alleges that in October 2018, Brighton employed Hockey as a model for a photography shoot. (Complaint, ¶ 6.) That employment began and concluded on October 4, 2018. (Ibid.) The employment was pursuant to an employment agreement for the one day’s employment on October 4. (Complaint, ¶ 7.) Hockey asserts that pursuant to Labor Code section 201, she was entitled to be paid her wages upon the completion of the photo shoot. (Complaint, ¶ 8.) Hockey was not paid until more than 30 days after she was discharged. (Complaint, ¶ 9.) Hockey claims her entitlement to penalty wages for 30 days at her daily rate amounting to $90,000. (Complaint, ¶¶ 10-11.)

On March 2, 2020, Brighton filed its answer to the complaint generally denying the allegations of the complaint and asserting eight affirmative defenses.

Also on March 2, 2020, Brighton filed its cross-complaint (“CC”) against Hockey. The CC alleges two causes of action: (1) declaratory relief; and (2) fraud.

On June 30, 2020, Brighton filed its cross-complaint against LA Models for breach of contract and indemnity.

On April 1, 2022, Brighton filed its first amended cross-complaint (FACC) against LA Models, with the same two causes of action.

As alleged in the FACC: “Brighton is in the business of designing, manufacturing, marketing, and selling ladies’ accessories, such as handbags, wallets, belts, shoes, sunglasses, and jewelry.” (FACC, ¶ 4.) LA Models is a modeling agency based in Los Angeles. (FACC, ¶ 5.) LA Models was Hockey’s employer. (FACC, ¶ 7.)

“On or around October 3, 2018, Brighton and LA Models agreed to a contract containing the following terms, among others: (a) LA Models had the authority to act Hockey’s behalf; (b) LA Models would instruct Hockey to appear for a photoshoot with Brighton on October 4, 2018, in Santa Barbara; (c) Brighton would pay LA Models $3,000 for Hockey’s work (d) LA Models would send an invoice to Brighton for Hockey’s work; (e) the invoice would be paid by Brighton directly to LA Models (not Hockey); and (f) LA Models would fully and timely pay Hockey in accord with all applicable laws. Terms (b) and (c) were orally agreed to and confirmed in emails. Terms (a), (d), (e) and (f) were implied in fact based on the custom and practice in the industry and the course of dealing between Brighton and LA Models.” (FACC, ¶ 9.)

“Pursuant to the contract between Brighton and LA Models, Hockey modeled for a

photoshoot in Santa Barbara for Brighton on October 4, 2018.” (FACC, ¶ 11.) “On October 29, 2018, LA Models sent Brighton an invoice related to Hockey’s October 4, 2018 work.” (FACC, ¶ 12.) “In accordance with the parties’ agreement, on or about December 7, 2018, Brighton sent LA Models a $3,000 check in full payment of its October 29, 2018 invoice.” (FACC, ¶ 13.)

“Neither LA Models nor Hockey ever said or indicated to Brighton that they considered Hockey to be an employee of Brighton. Neither LA Models nor Hockey ever said or indicated to Brighton, either before or during the photoshoot, or until sending the invoice on October 29, 2018, that Brighton must pay Hockey in some fashion other than that agreed.” (FACC, ¶ 14.)

“LA Models breached the contract with Brighton by failing to pay Hockey timely and in compliance with the California Labor Code.” (FACC, ¶ 19.)

On September 6, 2022, LA Models filed its answer to Brighton’s FACC generally denying the allegations of the FACC and asserting 26 affirmative defenses.

On December 4, 2023, Hockey dismissed her complaint without prejudice.

LA Models now moves for summary judgment or, in the alternative, summary adjudication as to Brighton’s action against it, arguing that LA Models is a talent agency that is only required to pay its models within 30 days after receipt of money from the models’ employers, and that they did so. LA Models further argues that it has no employment relationship with Hockey and therefore Brighton is not entitled to indemnification.

Brighton opposes the motion and argues that there are triable issues of material facts as to “whether L.A. Models breached its contract with Brighton and whether L.A. Models is liable for equitable indemnity to Brighton.” (Opposition, p. 3, ll. 2-3.)

In reply, LA Models points out that Hockey dismissed her complaint on December 4, 2023 (after the filing of its motion) and that the motion for summary judgment should be granted because equitable indemnification requires a finding of liability of the indemnitee as well as the indemnitor.

Analysis:

As an initial matter: “All electronic documents must be in text searchable format and must comply with the formatting and content requirements of the California Rules of Court for electronic documents, including particularly CRC 3.1110(f)(4) requiring electronic bookmarks.” (Super. Ct. Santa Barbara County, Local Rules, rule 1012 (c)(1).)

“Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” (Cal. Rules of Court, rule 3.110 (f)(4).)

“Compliance with all of the formatting requirements for electronic documents is extremely important for the court’s timely consideration of e-filed documents. In cases of noncompliance, the court may, in its discretion, order any, or all, of the following in addition to any other sanction permitted by law: (i) the noncomplying document to be stricken as improperly filed; (ii) the continuance of the hearing to which the noncomplying document pertains; or, (iii) the imposition of monetary sanctions for violation of the California Rules of Court or these Local Rules, following adequate notice and an opportunity to be heard.” (Super. Ct. Santa Barbara County, Local Rules, rule 1012 (c)(2).)

Neither party included electronic bookmarks that comply with the above authority as required. Counsel is reminded to comply with the California Rules of Court as well as the Local Rules in any future filings with the court.

            Reply of LA Models

While the court does understand that the fact of Hockey’s dismissal of the complaint occurred after the filing of the present motion:

“ ‘Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.’ ” [Citation.] “ ‘Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant.’ ” [Citation.] “ ‘Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission.’ ” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)

Due process, and fundamental fairness, requires that the court not consider the new arguments brought up by way of LA Models’ reply brief. The court may only properly consider the issues raised by the motion, the opposition, and those portions of the reply that are directly responsive to the opposition. This does not preclude LA Models from appropriately raising their new arguments at a later time.

The court offers no opinion regarding the merits of LA Models’ reply arguments or whether Brighton is likely to prevail against LA Models given that Hockey has dismissed the complaint. The remaining parties are encouraged to engage in good-faith discussions regarding the effect of this recent development.

            Evidentiary Objections

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).)

In opposition, Brighton objects to the Holba declaration in the following respects: (1) A portion of paragraph 2; (2) Paragraph 3 in its entirety; (3) Paragraph 4 in its entirety; (4) Paragraph 5 in its entirety; and (5) Paragraph 6 in its entirety.

The first objection, regarding Holba’s declaration that, “At all relevant times hereto, MODELS has been a licensed talent agency with the State of California and pursuant to Labor Code § 1700.25, is required to pay its talent “ ‘within 30 days of receipt’ ” of wages from the talent’s employer,” will be sustained on the grounds that the statement lacks foundation and constitutes an improper legal conclusion. None of the other objections have merit and they will be overruled.

LA Models does not object to any of Brighton’s evidence.

Standard on Summary Judgment

A defendant’s motion for summary judgment asks the court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The court must determine from the evidence presented that there is no triable issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)    

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain an adjudication in his favor. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.) “[W]e liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

“The trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.] Nor may the trial court grant summary judgment for a defendant based simply on its opinion that plaintiff’s claims are “ ‘implausible,’ ” if a reasonable factfinder could find for plaintiff on the evidence presented.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) “[T]he function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist, and not to decide the merits of the issues themselves.” (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

            Summary Adjudication

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“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. Once the defendant … has met that burden, the burden shifts to the plaintiff or cross-complainant 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).)

“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

            Undisputed Material Facts

LA Models sets forth four facts which it contends are undisputed as to issue No. 1 that LA Models is entitled to judgment on the first cause of action for Breach of Contract. The same four facts are set forth in support of issues No. 2 and 3 that LA Models is entitled to judgment on the second cause of action for indemnification.

Brighton sets forth 10 additional facts in opposition to issue No. 1, 17 additional facts in opposition to issue No. 2, and 18 additional facts in opposition to issue No. 3. None of Brighton’s additional facts appear to be disputed by LA Models.

The following relevant facts are either undisputed or not reasonably disputed:

In October 2018, LA Models procured a job assignment for plaintiff with Brighton with a pre-agreed price of $3,000.00. (UMF No. 2.) The photo shoot took place on October 4, 2018. (Holba Dec., ¶ 6.) An invoice was issued by LA Models to Brighton, in the amount of $3,000.00 on October 29, 2018. (Holba Dec., ¶ 3 & Exh. A.)

LA Models was paid, by Brighton on December 11, 2018. (Holba Dec., ¶ 6 & Exh. B.) Hockey was paid, by LA models, on December 14, 2018. (Holba Dec., ¶ 6 & Exh. C.)

LA Models paid Hockey within 30 days after it received payment from Brighton. (UMF No. 4; Holba Dec. ¶ 5 & Exh. C.)

“As of October 4, 2018, the custom and practice in the industry was that the agency sent the client an invoice after the photoshoot, the client paid the invoice directly to the agency and the agency paid the model.” (Brighton’s Additional Facts (“BAF”) No. 2.)

“Prior to October 4, 2018, Brighton had worked with LA Models on a number of occasions. The course of dealing between LA Models and Brighton was the same as the industry protocol discussed in fact no. 2.” (BAF No. 3.)

“LA Models didn’t tell Brighton that the payment arrangement for the October 4, 2018 photo shoot would vary from the industry practice discussed above.” (BAF No. 4.) The documents confirming the agreement between LA Models and Brighton for the October 4, 2018 photoshoot don’t state when payment is due.” (BAF No. 5.)

“LA Models understood that it was its obligation as Hockey’s agent to ensure that she was paid in accordance with California law.” (BAF No. 6.)

LA Models negotiates with clients concerning the fees for its models’ services and other conditions of the assignments.” (BAF No. 10.) LA Models determines which of its models would best suit its clients’ needs.” (BAF No. 11.) “LA Models retains the authority to assign a model to another client when the model it has recommended is deemed unacceptable by the client.” (BAF No. 12.)

“LA Models negotiates on behalf of its models the fees that the client will pay for the models’ services.” (BAF No. 14.) LA Models pays its models from LA Models’ bank account.” (BAF No. 15.) “LA Models retains the right to hire and terminate its models.” (BAF No. 16.) “LA Models was Hockey’s temporary services employer under Labor Code section 201.3. (BAF No. 17.)

            Breach of Contract

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

“A contract is either express or implied. (Civ. Code, § 1619.) The terms of an express contract are stated in words. (Civ. Code, § 1620.) The existence and terms of an implied contract are manifested by conduct. (Civ. Code, § 1621.) The distinction reflects no difference in legal effect but merely in the mode of manifesting assent. [Citation.] Accordingly, a contract implied in fact “ ‘consists of obligations arising from a mutual agreement and intent to promise where the agreement and promise have not been expressed in words.’ ” [Citation.]” (Retired Employees Assn. of Orange County, Inc. v. County of Orange (2011) 52 Cal.4th 1171, 1178.)

LA Models provides no evidence of the existence of a contract, let alone the fulfilling of the terms of the contract, by way of the four facts contained in its separate statement or in its supporting evidence. LA Models has failed to meet its burden on summary judgment.

“The separate statement serves two important functions in a summary judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74.)

Even had LA Models met their initial burden, Brighton provides evidence of the terms of the alleged contract, their performance of the terms of the contract, LA Models breach of the contract, and resulting damages. Brighton claims, supported by submitted evidence, that the terms of the contract were oral, contained in emails, and implied in fact based on the custom and practice in the industry and the course of dealing between itself and LA Models.

At the very least, there exist triable issues of material fact regarding the terms of any contract, even if only implied based on industry customs and practices, between the parties and whether those terms were breached.        

Equitable Indemnity

In its motion, LA Models largely argues the merits of their defense rather than addressing the existence of triable issues of material fact. Their primary argument is that LA Models was not Hockey’s employer and that they paid Hockey within 30 days after receipt of payment from Brighton.

“In general, indemnity refers to ‘the obligation resting on one party to make good a loss or damage another party has incurred.’ [Citation.] Historically, the obligation of indemnity took three forms: (1) indemnity expressly provided for by contract (express indemnity); (2) indemnity implied from a contract not specifically mentioning indemnity (implied contractual indemnity); and (3) indemnity arising from the equities of particular circumstances (traditional equitable indemnity). [Citations.] [¶] Although the foregoing categories of indemnity were once regarded as distinct, we now recognize there are only two basic types of indemnity: express indemnity and equitable indemnity. [Citation.] Though not extinguished, implied contractual indemnity is now viewed simply as ‘a form of equitable indemnity.’ [Citations.]” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1157, fn. omitted (Prince).)

“Unlike express indemnity, traditional equitable indemnity requires no contractual relationship between an indemnitor and an indemnitee. Such indemnity ‘is premised on a joint legal obligation to another for damages,’ but it ‘does not invariably follow fault.’ [Citation.] Although traditional equitable indemnity once operated to shift the entire loss upon the one bound to indemnify, the doctrine is now subject to allocation of fault principles and comparative equitable apportionment of loss.” (Prince, supra, 45 Cal.4th at p. 1158, fn. omitted.)

Labor Code section 201.3, subdivision (a) provides:

“(a) For purposes of this section, the following definitions apply:

“(1) “Temporary services employer” means an employing unit that contracts with clients or customers to supply workers to perform services for the clients or customers and that performs all of the following functions:

“(A) Negotiates with clients and customers for matters such as the time and place where the services are to be provided, the type of work, the working conditions, and the quality and price of the services.

“(B) Determines assignments or reassignments of workers, even if workers retain the right to refuse specific assignments.

“(C) Retains the authority to assign or reassign a worker to another client or customer when the worker is determined unacceptable by a specific client or customer.

“(D) Assigns or reassigns workers to perform services for clients or customers.

“(E) Sets the rate of pay of workers, whether or not through negotiation.

“(F) Pays workers from its own account or accounts.

“(G) Retains the right to hire and terminate workers.

“(2) “Temporary services employer” does not include any of the following:

“(A) A bona fide nonprofit organization that provides temporary service employees to clients.

“(B) A farm labor contractor, as defined in subdivision (b) of Section 1682.

“(C) A garment manufacturing employer, which, for purposes of this section, has the same meaning as “contractor,” as defined in subdivision (d) of Section 2671.

“(3) “Employing unit” has the same meaning as defined in Section 135 of the Unemployment Insurance Code.

“(4) “Client” and “customer” mean the person with whom a temporary services employer has a contractual relationship to provide the services of one or more individuals employed by the temporary services employer.”

Brighton has provided evidence that Labor Code section 201.3 applies to LA Models and that, therefore, LA Models was Hockey’s temporary services employer.

LA Models argues, as it did in demurring to Brighton’s FACC, that Alch v. Superior Court (2004) 122 Cal.App.4th 339 (Alch), holds that talent agencies do not have an employer-employee relationship with the artists they represent and that, therefore, they cannot be held to indemnify Brighton for any loss. As was explained to the parties in ruling on LA Models’ demurrer to Brighton’s FACC: Alch does not stand for the proposition that a licensed talent agency cannot concurrently or alternatively act in the capacity of employer of the talent. The capacity in which LA Models was operating is a question of fact that cannot be determined by way of summary judgment.

As to the second cause of action for equitable indemnity, there exist triable issues of material fact, including whether LA Models was acting as Hockey’s employer or co-employer, and whether it was LA Models or Brighton that was obligated to timely pay Hockey.

The motion for summary judgment or, in the alternative, summary adjudication, will be denied.