Bijon Hill v. Walmart Inc. ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BIJON HILL, No. 21-15180
Plaintiff-Appellant,
D.C. No.
v. 4:19-cv-05436-
JST
WALMART INC., a Delaware
corporation,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Argued and Submitted December 9, 2021
Pasadena, California
Filed April 26, 2022
Before: PAUL J. KELLY, JR., * MILAN D. SMITH, JR.,
and DANIELLE J. FORREST, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
*
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
2 HILL V. WALMART
SUMMARY **
California Employment Law
The panel affirmed the district court’s summary
judgment in favor of Walmart in a diversity action brought
by a plaintiff who alleged that Walmart owed her penalties
pursuant to California Labor Code § 203 because it failed to
pay her immediately after several photo shoots.
Plaintiff appeared in ten photo shoots organized by
Walmart between July 2016 and August 2017 for a total of
fifteen days, in non-consecutive periods of one or two days.
Plaintiff sued Walmart for its failure to pay her immediately
after each photo shoot ended and sought more than $540,000
in penalties. The district court denied summary judgment on
Walmart’s defense that plaintiff was an independent
contractor outside the protection of the relevant Labor Code
provisions due to disputes of material fact. However, it
granted summary judgment on Walmart’s good-faith
defense. The district court concluded that there was a good-
faith dispute about whether plaintiff was an independent
contractor that made it objectively reasonable for Walmart
to believe plaintiff was not an employee.
As a threshold issue, the panel rejected plaintiff’s
contention that Walmart was foreclosed from raising a good-
faith defense based on mistakenly classifying an employee
as an independent contractor. The panel held that Walmart’s
argument that plaintiff was an independent contractor was a
good-faith dispute that any wages are due. A good-faith
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HILL V. WALMART 3
mistake about a worker’s employment status was a defense
to the imposition of waiting-time penalties pursuant to Cal.
Labor Code § 203.
The panel turned to the merits of Walmart’s good-faith
defense. First, the panel held that nothing in the record
suggested bad faith on Walmart’s part. Next, the panel
considered whether a reasonable jury could find that
Walmart’s independent contractor defense was unreasonable
or unsupported by evidence. The panel held that the
applicable test for its analysis of the employment
relationship was the common law test derived from S.G.
Borello & Sons, Inc. v. Department of Industrial Relations,
769 P.2d 399 (Cal. 1989). The panel noted that a second test
for employment explained in Martinez v. Combs, 231 P.3d
259 (Cal. 2010), and Dynamex Operations West, Inc. v.
Superior Court, 416 P.3d 1 (Cal. 2018), applied only to cases
governed by California Industrial Welfare Commission
(IWC) wage orders; and held that it did not apply here where
plaintiff did not allege that Walmart violated any wage order.
The panel next considered the ultimate issue: based on
the undisputed material facts, and the state of California
employment law in 2016 and 2017, did Walmart have
reasonable grounds to believe plaintiff was an independent
contractor? Plaintiff put forth evidence that Walmart
exercised significant control over her activities. On the other
hand, plaintiff arranged for and paid for her own travel;
Walmart did not provide plaintiff with a Form W-2; plaintiff
provided modeling services for other companies; and the
length of time plaintiff was employed argued against
employment status. All these facts would have suggested to
Walmart that the parties did not believe they were forming
an employment relationship – the last Borello factor. The
unrebutted facts in the record also suggested that another
4 HILL V. WALMART
Borello factor – whether or not the work was a part of the
regular business of the principal – weighed against
employment status. Consequently, there were some
reasonable grounds for Walmart to believe that plaintiff was
an independent contractor, which was sufficient for a good-
faith dispute. The panel rejected plaintiff’s
counterarguments where she cited three cases that she
contended supported her position. The panel held that the
cases were not enough to render unreasonable Walmart’s
belief that plaintiff was a contractor.
Because Walmart raised a good-faith dispute as to
whether it was plaintiff’s employer and that dispute provided
a sufficient defense to plaintiff’s claims, and because
plaintiff did not identify a material factual dispute, the panel
affirmed the district court’s summary judgment to Walmart.
COUNSEL
Jordanna G. Thigpen (argued), Thigpen Legal P.C., Beverly
Hills, California; Roger Y. Muse, Excelsior Law, Beverly
Hills, California; for Plaintiff-Appellant.
Timothy L. Reed (argued), Ford & Harrison LLP, Oakland,
California; Jenny S. Choi, Ford & Harrison LLP, Los
Angeles, California; for Defendant-Appellee.
HILL V. WALMART 5
OPINION
M. SMITH, Circuit Judge:
Plaintiff-appellant Bijon Hill appeals from the district
court’s grant of summary judgment to defendant-appellee
Walmart, Inc. Hill modeled in several Walmart photo shoots
and claims that Walmart owes her penalties pursuant to
California Labor Code § 203 because it failed to pay her
immediately after each shoot. In the district court, Walmart
contended that no penalties are owed because Hill was an
independent contractor rather than a Walmart employee.
Alternatively, Walmart argued that no penalties are owed
because there was a good-faith dispute as to Hill’s
employment status. The district court concluded that
disputes of material fact prevented it from deciding whether
Hill had performed her work as an employee but granted
summary judgment to Walmart based on its good faith
defense.
We affirm. It is undisputed that Hill modeled for
Walmart for a total of fifteen days over the course of a year,
and that she performed her services as a freelancer in
sporadic one- or two-day increments. Along with other
indicators that Hill was an independent contractor, the
limited and irregular nature of her work made it reasonable
for Walmart to believe that Hill was not an employee, and,
as a result, that she was not entitled to immediate payment at
the conclusion of each photo shoot. That is enough for
Walmart’s good-faith defense to succeed.
6 HILL V. WALMART
BACKGROUND
I. LEGAL FRAMEWORK
In California, “[i]f an employer discharges an employee,
the wages earned and unpaid at the time of discharge are due
and payable immediately.” Cal. Lab. Code § 201(a).
“Discharge” includes not only involuntary termination, but
also releasing an employee after she has “complet[ed] the
specific job assignment or time duration for which [she] was
hired.” Smith v. Super. Ct., 137 P.3d 218, 229 (Cal. 2006)
(L’Oreal). California Labor Code § 203(a) provides that if
an employer “willfully” fails to pay wages upon discharge,
the employee’s wages “shall continue as a penalty” from the
discharge date for up to thirty days.
“A willful failure to pay wages within the meaning of
[§ 203] occurs when an employer intentionally fails to pay
wages . . . when [they] are due.” 8 C.C.R. § 13520.
“However, a good faith dispute that any wages are due will
preclude imposition of waiting time penalties under
[§ 203].” Id.
II. FACTUAL AND PROCEDURAL BACKGROUND
Hill appeared in ten photo shoots organized by Walmart
in San Francisco between July 2016 and August 2017. She
worked for a total of fifteen days during this time, in non-
consecutive periods of one or two days. Hill claims that this
amounted to ten separate instances of employment and that
she was “discharged” at the end of each photo shoot.
During this time, Hill was represented by Scout Talent
Management Agency. Walmart had a contract with Scout
whereby it agreed to pay Scout a daily flat rate for each day
of modeling services, which was to be passed along to Hill,
HILL V. WALMART 7
plus a commission. Scout was required to send Walmart
invoices, which were payable within thirty days. Walmart
and Scout’s contract specified that Scout and its “personnel”
were independent contractors.
In July 2019, Hill sued Walmart in the San Francisco
Superior Court, claiming that Walmart violated the
California Labor Code provisions discussed above by failing
to pay her immediately after each photo shoot ended. She
sought more than $540,000 in penalties. Walmart removed
the case to federal court based on diversity of citizenship. It
also filed a third-party complaint against Scout.
In November 2020, Walmart moved for summary
judgment on Hill’s claims. The district court denied
summary judgment on Walmart’s defense that Hill was an
independent contractor outside the protection of the relevant
Labor Code provisions, concluding that Hill had raised a
triable question of fact about whether she was an employee.
The district court noted, for example, that Walmart
controlled when the photo shoots occurred and nearly every
aspect of Hill’s appearance, including her clothing, hair,
makeup, and nails. Though Walmart argued that Hill used
her “discretion and expertise as a model in making poses,”
the record showed that she was given highly specific
instructions about which poses to strike.
However, the district court granted summary judgment
on Walmart’s defense that there was a good-faith dispute
about whether Hill was an independent contractor, reasoning
that the short length of time Hill worked for Walmart and the
fact that she had also worked for other companies, among
other factors, made it objectively reasonable for Walmart to
believe Hill was not an employee.
8 HILL V. WALMART
Hill timely appealed. We review the district court’s
grant of summary judgment de novo. Oswalt v. Resolute
Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011).
ANALYSIS
I. LEGAL STANDARDS
To prevail on its summary judgment motion, Walmart
had to show that “there is no genuine issue as to any material
fact and [that it] is entitled to judgment as a matter of law”
on its good-faith defense. Fed. R. Civ. P. 56(a). “A genuine
issue of material fact will be absent if, upon viewing the
evidence and inferences which may be drawn therefrom in
the light most favorable to the adverse party, the movant is
clearly entitled to prevail as a matter of law. Summary
judgment is inappropriate if a reasonable juror, drawing all
inferences in favor of the nonmoving party, could return a
verdict in the nonmoving party’s favor.” James River Ins.
Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir.
2008) (cleaned up).
California law applies in this diversity case. See
Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 889
(9th Cir. 2010). In the absence of controlling authority by
the California Supreme Court, “we follow decisions of the
California Court of Appeal unless there is convincing
evidence that the California Supreme Court would hold
otherwise.” Id.II. AVAILABILITY OF GOOD-FAITH DEFENSE
At the threshold, Hill argues that Walmart is foreclosed
from raising a good-faith defense based on mistakenly
classifying an employee as an independent contractor. We
disagree.
HILL V. WALMART 9
To reiterate, “a good faith dispute that any wages are due
will preclude imposition of waiting time penalties under
[§ 203].” 8 C.C.R. § 13520. Hill argues that this defense
does not apply here because it requires “a good faith dispute
that any wages are due” under § 203, and Walmart does not
dispute that some wages are due; Walmart just disputes when
those wages are due.
That argument fails. Although neither party raised this
point, “wages” and “payment” are not necessarily the same
thing under the California Labor Code. For purposes of the
statutes involved here, “wages” are specifically defined as
“all amounts for labor performed by employees.” Cal. Lab.
Code § 200(a) (emphasis added) (applying this definition to
“this article,” meaning Cal. Lab. Code §§ 200–244); see also
id. § 203(a) (referring to “wages of an employee”). So,
while there is no dispute that Walmart had to pay Hill,
Walmart’s contention that Hill is an independent contractor
necessarily conflicts with the idea that there were “any
wages due” within the meaning of § 203 or 8 C.C.R.
§ 13520.
Moreover, 8 C.C.R. § 13520 explains that “[a] ‘good
faith dispute’ that any wages are due occurs when an
employer presents a defense, based in law or fact which, if
successful, would preclude any recovery on the part of the
employee.” Id. It is undisputed that if Hill were an
independent contractor, then she would not be an
“employee” entitled to an immediate payment of wages upon
discharge pursuant to Labor Code § 201(a) or to recover
penalties from Walmart pursuant to § 203. Consequently,
Walmart’s argument that Hill was an independent contractor
is a “good faith dispute that any wages are due.” See also
Amaral v. Cintas Corp. No. 2, 163 Cal. App. 4th 1157, 1202
(2008) (employer had good-faith defense because its “legal
10 HILL V. WALMART
obligations” were “unclear,” and the arguments it made for
its ultimately incorrect legal position were not “unreasonable
or frivolous”); Barnhill v. Robert Saunders & Co., 125 Cal.
App. 3d 1, 8 (1981) (legal ambiguity is a valid basis for a
good-faith defense).
Along more general lines, Hill also argues that allowing
a good-faith defense here would reward ignorance of the law
and undermine § 203’s role in incentivizing timely payment
of wages. But the fact that § 203 only punishes “willful”
conduct suggests that the legislature only intended to impose
penalties on employers who lack a good excuse for
withholding payment to discharged employees. See, e.g.,
Amaral, 163 Cal. App. 4th at 1202 (employer’s failure to pay
timely wages was not willful because it arose out of a
mistake of law that was not “unreasonable or frivolous”).
An important rationale behind allowing a good faith defense
in this context is to prevent employers from being
“penalized” in genuine cases of “uncertainty.” Barnhill,
125 Cal. App. 3d at 8; see also Amaral, 163 Cal. App. 4th at
1201 (“Barnhill’s holding was memorialized in [8 C.C.R.
§] 13520.”). So, to the extent that Walmart has raised such
an ambiguity about Hill’s employment status, allowing a
good-faith defense here amply serves the balance struck by
the applicable statutes and regulations between incentivizing
prompt payment of wages and shielding innocent mistakes
from penalties.
For these reasons, we conclude that a good-faith mistake
about a worker’s employment status is a defense to the
imposition of waiting-time penalties pursuant to § 203. 1
1
We observe that this holding is consistent with the apparent
consensus view among federal district courts in California. See, e.g.,
HILL V. WALMART 11
III. MERITS OF GOOD-FAITH DEFENSE
The next question is whether, based on undisputed
material facts, Walmart has raised a good-faith dispute about
Hill’s employment status. The fact that Walmart did not
prevail at the summary judgment stage on its primary
defense that Hill was an independent contractor is irrelevant
to this question because “[t]he fact that a defense is
ultimately unsuccessful will not preclude a finding that a
good faith dispute did exist.” 8 C.C.R. § 13520.
Instead, the operative question is simply whether, based
on the state of the law when Hill’s photo shoots occurred,
Walmart has presented an objectively reasonable defense
that is not marred by bad-faith conduct. That is because
“[d]efenses presented which, under all the circumstances,
are unsupported by any evidence, are unreasonable, or are
presented in bad faith, will preclude a finding of a ‘good faith
dispute.’” Id. “This regulation imposes an objective
standard. The appearance of the language ‘or are presented
in bad faith’ in the list of circumstances precluding a finding
of a good faith dispute does not render the test a subjective
one, but indicates that subjective bad faith may be of
evidentiary value in the objective bad faith analysis.”
Maldonado v. Epsilon Plastics, Inc., 22 Cal. App. 5th 1308,
1332 (2018) (citations and internal quotation marks
omitted). Unless there is evidence of subjective bad faith, it
is “beside the point” that Walmart may have only
“formulated” its independent contractor arguments during
litigation. See Amaral, 163 Cal. App. 4th at 1204.
Villalpando v. Exel Direct Inc., No. 12-CV-04137-JCS, 2015 WL
5179486, at *36–37 (N.D. Cal. Sept. 3, 2015) (collecting cases and
granting summary judgment to employer on § 203 claim).
12 HILL V. WALMART
A. Bad Faith
To start, nothing in the record suggests “bad faith” on
Walmart’s part. For example, there is no evidence that
Walmart knew that Hill was an employee but decided to take
longer than it should have to pay her, or that Hill ever
brought up late payment issues before filing suit. Cf.
Armenta v. Osmose, Inc., 135 Cal. App. 4th 314, 325–26
(2005) (evidence that employer “was aware” it was
underpaying its employees supported finding of willfulness
despite ambiguity in the law). To the contrary, Hill admitted
in her deposition that she never asked Walmart to pay her
more quickly or to pay her directly rather than sending
payments to Scout. It is also undisputed that Walmart paid
Hill in full for her work; the only issue is the timing of the
payments. Hill’s counsel largely conceded these points at
oral argument.
In a cursory attempt to show bad faith, Hill says that
Walmart’s contract with Scout evinces “subterfuge” because
it declares Scout’s personnel to be independent contractors
while also allowing Walmart significant control over Hill’s
work. However, she cites no authority suggesting it is
improper to include standard language in a contract stating
that neither party views the other’s personnel as its
employees, nor does she cite any evidence that Walmart
included this provision while (for instance) privately
believing Hill was an employee. At best, Hill’s argument
amounts to mere speculation that Walmart was acting in bad
faith, which is insufficient to defeat summary judgment.
See, e.g., Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081–
82 (9th Cir. 1996) (“[M]ere allegation and speculation do not
create a factual dispute for purposes of summary
judgment.”).
HILL V. WALMART 13
B. Reasonableness
The remaining question is whether a reasonable jury
could find that Walmart’s independent contractor defense
was unreasonable or unsupported by evidence. Answering
this question requires us to first identify the relevant test (or
tests) for an employment relationship under California law.
i. Applicable Test for Employment Relationship
The parties have directed us to two tests for an
employment relationship under California law. The first is
the common law test, which is derived from S. G. Borello &
Sons, Inc. v. Department of Industrial Relations, 769 P.2d
399 (Cal. 1989). Under the common law, “[t]he principal
test of an employment relationship is whether the person to
whom service is rendered has the right to control the manner
and means of accomplishing the result desired.” Id. at 404(quoting Tieberg v. Unemployment Ins. App. Bd., 471 P.2d
975, 977 (Cal. 1970)) (alteration in original). While the right
to control is the most important factor, it is not the only one.
Id. Rather, Borello instructs courts to consider the following
“secondary indicia” to determine “the nature of a service
relationship:”
(a) whether the one performing services is
engaged in a distinct occupation or business;
(b) the kind of occupation, with reference to
whether, in the locality, the work is usually
done under the direction of the principal or by
a specialist without supervision; (c) the skill
required in the particular occupation;
(d) whether the principal or the worker
supplies the instrumentalities, tools, and the
place of work for the person doing the work;
(e) the length of time for which the services
14 HILL V. WALMART
are to be performed; (f) the method of
payment, whether by the time or by the job;
(g) whether or not the work is a part of the
regular business of the principal; and
(h) whether or not the parties believe they are
creating the relationship of employer-
employee.
Id. (citing, inter alia, Restatement (Second) of Agency
§ 220). The importance due to each individual factor is case-
specific. See, e.g., Germann v. Workers’ Comp. Appeals
Bd., 123 Cal. App. 3d 776, 783 (1981).
The second test for employment originated with the
California Industrial Welfare Commission (IWC), which “is
the state agency empowered to formulate regulations
(known as wage orders) governing employment in the State
of California.” Tidewater Marine W., Inc. v. Bradshaw,
14 Cal. 4th 557, 561 (1996). The principal California
Supreme Court opinions explaining this test are Martinez v.
Combs, 231 P.3d 259 (Cal. 2010), and Dynamex Operations
West, Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018).
Martinez held that “[t]o employ . . . under the IWC’s
definition, has three alternative definitions. It 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.” 231 P.3d at 278. The first definition is
relatively self-explanatory, and the third definition directly
incorporates the common-law test, see Salazar v.
McDonald’s Corp., 944 F.3d 1024, 1032 (9th Cir. 2019).
As for the second definition, Dynamex held that courts
should apply the “ABC test” to determine whether the
“suffer or permit to work” standard has been met. 416 P.3d
HILL V. WALMART 15
at 40. That test presumes the existence of an employer-
employee relationship “[u]nless the hiring entity
establishes” all three of the following:
(A) that the worker is free from the control
and direction of the hiring entity in
connection with the performance of the work,
both under the contract for the performance
of the work and in fact, (B) that the worker
performs work that is outside the usual course
of the hiring entity's business, and (C) that the
worker is customarily engaged in an
independently established trade, occupation,
or business[.]
Id. Although Dynamex was decided after the events giving
rise to this case, the California Supreme Court has held that
it applies retroactively. Vazquez v. Jan-Pro Franchising
Int’l, Inc., 478 P.3d 1207, 1209 (Cal. 2021). 2
Despite Hill’s arguments to the contrary, we conclude
that only the Borello test is relevant to our analysis.
Martinez and Dynamex “did not purport to replace the
Borello standard in every instance where a worker must be
classified as either an independent contractor or an employee
for purposes of enforcing California’s labor protections.”
Cal. Trucking Ass’n v. Su, 903 F.3d 953, 959 n.4 (9th Cir.
2018). Both cases make clear that they only apply to cases
governed by IWC wage orders. See Dynamex, 416 P.3d
at 35–36; Martinez, 231 P.3d at 269. Along these lines, the
California Court of Appeal has recently held that for “Labor
2
Additionally, in September 2019, the California legislature
codified the ABC test via Assembly Bill 5. However, neither party
contends that this legislation applies retroactively here.
16 HILL V. WALMART
Code claims that are not either rooted in one or more wage
orders, or predicated on conduct alleged to have violated a
wage order, the Borello test remains appropriate.” Gonzales
v. San Gabriel Transit, Inc. 40 Cal. App. 5th 1131, 1157
(2019), review dismissed, 481 P.3d 1144 (Cal. 2021); see
also Garcia v. Border Transp. Grp., LLC, 28 Cal. App. 5th
558, 571 (2018) (“There is no reason to apply the ABC test
categorically to every working relationship, particularly
when Borello appears to remain the standard for worker’s
compensation . . . . Borello furnishes the proper standard as
to [the plaintiff’s] non-wage-order claims.”); 3 Parada v. E.
Coast Transp. Inc., 62 Cal. App. 5th 692, 699 n.2 (2021)
(citing Gonzalez and Garcia).
Hill did not allege that Walmart violated any wage order,
and she does not cite to any case contradicting the Court of
Appeal decisions cited above or otherwise applying the IWC
test outside the wage-order context. But even if the IWC test
did somehow apply, Walmart would still be entitled to raise
a good-faith defense because it would have been reasonable
for Walmart to conclude that only the Borello test governed
its relationship with Hill in light of the language in Martinez
and Dynamex suggesting their scope is limited to wage-order
cases. See Amaral, 163 Cal. App. 4th at 1202 (reasonable
mistake of law sufficient for good-faith defense).
Consequently, we need only discuss whether Walmart
would have had good reason to believe that Hill was an
independent contractor under the Borello test.
3
In Garcia, “both parties agree[d] Dyanamex applie[d],” but the
Court of Appeal applied Borello anyway because neither party
“identifie[d] a basis to use the ABC test in evaluating non-wage-order
claims.” 28 Cal. App. 5th at 571. However, seemingly due to inadequate
argument from the parties, Garcia confined this holding to its particular
facts. See id. at 571 & n.11.
HILL V. WALMART 17
ii. Application of the Good-Faith and Borello
Tests
At this point, we are equipped to state—and resolve—
the ultimate issue before us: based on the undisputed
material facts, and the state of California employment law in
2016 and 2017, 4 did Walmart have reasonable grounds to
believe Hill was an independent contractor? We believe so.
To be sure, Hill has put forth evidence that Walmart
exercised significant control over her activities. Walmart
selected Hill to model some of its products after she was
photographed and measured at a “casting meeting,” and her
information was passed on to a member of Walmart’s
creative team. Before each photo shoot, Walmart sent
instructions to Hill regarding her clothing, hair, nails,
makeup, and general appearance. Walmart provided the
clothing Hill was to wear for the shoots, which included
shoes, dresses, undergarments, swimwear, and other items.
Onsite stylists, producers, photographers, and other
personnel chose the outfits and told Hill how to pose. When
the shoots concluded, Hill returned the garments to Walmart.
On the other hand, Hill arranged and paid for her own
travel, and deducted her travel and other expenses—ranging
from payments for getting her nails done to gym
4
We note that the events of this case took place before Cal. Lab.
Code § 201.6 was enacted. That statute defines a “print shoot employee”
as “an individual hired for a period of limited duration to render services
relating to or supporting a still image shoot, including film or digital
photography, for use in print, digital, or internet media,” and states that
such employees are “entitled to receive payment of the wages earned and
unpaid at the time of termination by the next regular payday.” The
parties did not highlight this statute as relevant on appeal, and so we do
not address it further.
18 HILL V. WALMART
membership fees—as business expenses on her tax returns.
Walmart did not provide Hill with a Form W-2, which
reports an employee’s annual wages for federal income tax
purposes. She also provided modeling services for other
companies during the relevant yearlong period and was “free
to decline any bookings from Walmart.” This suggests that
Hill was engaged in a “distinct occupation or business.” The
“length of time” Hill was employed—fifteen total days, each
time in one- or two-day increments—also argues against
employment status, as do the facts that she was paid a flat
daily rate rather than an hourly wage and that, at the end of
each shoot, she was asked to sign a voucher acknowledging
that she would be paid for the use of her likeness. Moreover,
Walmart did not provide Hill with tax forms, an employee
handbook, or other trappings of a traditional employment
relationship. Apart from the voucher acknowledging her
services had been performed, Hill did not sign any Walmart
documents. All these facts would have suggested to
Walmart that the parties did not believe they were forming
an employment relationship (the last Borello factor). 5
These unrebutted facts in the record also suggest that
another Borello factor—“whether or not the work is a part of
the regular business of the principal”—weighs against
employment status, or at most is neutral. Walmart is
primarily a retailer. Although her modeling services were
intended to be used to market products on Walmart’s
website, Hill has not shown that taking photographs of
5
Hill testified in her deposition that she “was under the impression”
that she was a Walmart employee during her photo shoots. However,
because Hill points to no evidence that she expressed this belief to
Walmart (as discussed in Part IIII.A), this testimony does not create a
factual question as to the reasonableness of Walmart’s good-faith
defense with respect to the final Borello factor.
HILL V. WALMART 19
models is a regular part of Walmart’s business, as opposed
to an activity conducted on an as-needed basis.
Consequently, there were some reasonable grounds for
Walmart to believe that Hill was an independent contractor,
which is sufficient for a good-faith dispute.
iii. Hill’s Counterarguments
Hill cites three cases that she contends lend support to
her position but that are not enough to render unreasonable
Walmart’s belief that Hill was a contractor. The first case is
Zaremba v. Miller, which involved facts that are similar to
those here:
Plaintiff, a model, sued defendant, a
photographer, for damages pursuant to Labor
Code section 203 for failure to timely pay his
wages. Plaintiff used an agent (Dennis) to
find work for him. The agent also billed for
plaintiff’s services, collected the payments,
deducted his fee, and sent the balance to
plaintiff. Dennis secured the present job for
plaintiff with defendant. Plaintiff called
defendant and was told where and when to
appear and what to wear. On arrival, plaintiff
was told to wear a butcher’s apron that was
provided and where to stand and what to do.
Testimony was introduced that the model had
to follow the directions of the photographer
or he would be fired.
113 Cal. App. 3d Supp. 1, 4 (App. Dep’t Super. Ct. 1980).
The court held that the “plaintiff was an employee” entitled
to waiting time penalties because of the degree of control the
photographer exercised over him. Id. at 5.
20 HILL V. WALMART
However, this case does not help Hill as much as she
might like. First, Zaremba involved a direct working
relationship between the putative employer and putative
employee. Here, in contrast, Hill has failed to show that
Walmart exercised the same level of direct control over her
activities. Walmart has provided an unrebutted declaration
stating that the producer and others involved in the photo
shoots were generally freelancers, not Walmart employees.
This suggests that even if Walmart had general oversight
over Hill’s activities and control over the outcome of her
photo shoots, it was relying on outside contractors to handle
the details of Hill’s work.
Hill argues that Walmart’s declaration is deficient
because it states that Walmart “generally” used freelancers
that were “typically” provided by outside agencies, but does
not adequately provide details about Hill’s specific shoots.
Hill, however, has put forward no evidence that would be
admissible at trial and that could establish that Walmart
deviated meaningfully from its usual practice. 6 See Fed. R.
Civ. P. 56(c) & (e); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986) (“[T]here is no issue for trial
unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party. If the
evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” (citations
omitted)); Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773
(9th Cir. 2002) (“A trial court can only consider admissible
6
In her deposition, Hill testified that she believed these personnel
were Walmart employees because the photo shoots took place on
Walmart’s premises and because a photographer, stylist, and producer
told her that they worked for Walmart. Both in the district court and on
appeal, Walmart has objected to the admissibility of the statements made
to Hill on the basis that they are hearsay and speculation. Hill does not
dispute that this testimony is inadmissible in her briefs.
HILL V. WALMART 21
evidence in ruling on a motion for summary judgment.”); see
also C.A.R. Transp. Brokerage Co. v. Darden Restaurants,
Inc., 213 F.3d 474, 480–81 (9th Cir. 2000) (holding plaintiff
failed to raise “a genuine issue for trial” because it did not
counter evidence supporting a defense to its claims). The
fact that other participants in the photo shoot worked on
Walmart’s premises is equally consistent with either
employee or freelancer status.
Second, Zaremba contained stronger indicators of an
employment relationship in respects other than control over
work. Hill was paid a daily flat rate, was not directly
engaged in Walmart’s retail business, and was paid
indirectly through Scout. Conversely, the plaintiff in
Zaremba was engaged in the photographer’s primary
business (photography), was paid at an hourly rate, and
received payment directly. See 113 Cal. App. 3d. Supp. at 4.
Finally, even if we were to minimize the importance of
these distinctions, Zaremba is not a sufficiently authoritative
statement of California law to foreclose the possibility that
Hill was a contractor. It was decided by the appellate
department of the Los Angeles Superior Court, not by the
California Court of Appeal or Supreme Court. This means
that it is binding at most only on the Los Angeles Superior
Court, and not in San Francisco where the events in this case
took place. See, e.g., People v. Corners, 176 Cal. App. 3d
139, 146 (1985) (“[A] decision of the Appellate Department
of the San Francisco Superior Court is not binding upon the
Butte County Superior Court nor upon this court . . . .”).
While Zaremba may still be cited for its persuasive value,
our court has indicated that individual appellate department
opinions are not authoritative. See Edgerly v. City & Cnty.
of San Francisco, 713 F.3d 976, 982–83 (9th Cir. 2013).
Consequently, Zaremba is not a definitive statement of
22 HILL V. WALMART
California employment law as it applies to models (at least
outside of Los Angeles). 7
The second case cited by Hill—L’Oreal, supra, 137 P.3d
218, decided by the California Supreme Court—involved a
model that was hired for a one-day job, and cited Zaremba
approvingly for the general proposition that control is the
most important factor in the employment test. See 137 P.3d
at 222–23. But L’Oreal did not hold the models are
employees as a matter of law; it held only that an employee
is “discharged” for purposes of § 203’s waiting time penalty
provisions either when the employee is fired or “when an
employer releases an employee after completion of a specific
job assignment or time duration for which the employee was
hired.” Id. at 220. The employer had moved for summary
judgment only on the grounds that no “discharge” had
occurred, and “[f]or purposes of its motion, . . . conceded
plaintiff was its employee and not an independent
contractor.” Id. As a result, the question of the model’s
employment status was never before the court.
Finally, in the district court, Hill relied on Tieberg v.
Unemployment Insurance Appeals Board, 471 P.2d 975(Cal. 1970), which held that certain television writers were
employees. As here, there was some evidence that the
7
We also note that Zaremba is a very old case, predating Borello by
almost a decade and the events at issue here by more than thirty years.
Hill says Zaremba was a “seminal case” proving that “professional
models render their services as employees” as a matter of law, but she
identifies no more recent case holding that that is true, and we have not
found one. Our independent research indicates that Zaremba has only
been cited by ten other cases in over forty years (including in the district
court’s order here). None of those cases cite it for the proposition that
“models render their services as employees” as a matter of law. These
facts further undermine Zaremba’s value as an authority.
HILL V. WALMART 23
writers were independent contractors, including the facts that
they were “engaged in a distinct occupation, that their work
involves skill, that they do not work on [the employer’s]
premises, that they [were] employed only to write a
particular play, and that they [were] paid by the job rather
than by the hour.” Id. at 982 (cleaned up). Nonetheless, this
was all overridden by “ample independent evidence that the
employer ha[d] the right to control the actual details of the
writers’ work and that it exercise[d] this right.” Id.However, a “significant factor” in Tieberg was that
“there [was] an agreement between the purported employer
and employee setting forth the details of their relationship.”
Id. at 981 (distinguishing two other cases on this ground).
Beyond the fact that the agreement gave the employer
significant control over the writers’ activities, the
“agreement referred to the writers as employees throughout
and contained other provisions, such as those relating to [a]
pension plan, which would be appropriate only if the writers
were employees.” Id. This was a “strong” indicator of an
employment relationship. Id. A similar employment
agreement is not involved in this case. 8 Indeed, Walmart’s
agreement with Scout says the opposite.
Ultimately, while these cases may cast doubt on the
strength of Walmart’s independent contractor defense, they
are not similar or (for Zaremba) authoritative enough to
8
It is also worth noting that one of Tieberg’s main holdings was that
the trial court erred in treating control as “the sole factor” relevant to
determining employment status. Id. at 979. “[T]he right to control and
direct the individual who performs services as to the details and means
by which the result is accomplished is the most important consideration
but not the only element in determining whether an employment
relationship has been created.” Id. at 980.
24 HILL V. WALMART
render that defense unreasonable. Consequently, they do not
defeat Walmart’s good-faith argument.
CONCLUSION
We agree with the district court that Walmart has raised
a good-faith dispute as to whether it was Hill’s employer.
Because that provides a sufficient defense to Hill’s claims,
and because Hill has not identified a material factual dispute,
we affirm the district court’s grant of summary judgment to
Walmart.
AFFIRMED.