Peng v. F.M. Tarbell Co. CA2/2 ( 2020 )

Filed 12/24/20 Peng v. F.M. Tarbell Co. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
BO PENG, B304763
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCP00416)
v.
F.M. TARBELL CO.,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Edward B. Moreton, Jr., Judge. Affirmed.
Bo Peng, in pro. per., for Plaintiff and Appellant.
August Law Group and Benjamin K. Griffin for Defendant
and Respondent.
******
A licensed real estate agent filed a claim with the labor
commissioner for unpaid commissions earned on the sale of two
properties, and for waiting time penalties, against the real estate
company with whom he had signed an “Independent Contractor
Agreement.” The commissioner rejected his claim on the ground
that the agent was an independent contractor rather than an
employee entitled to unpaid wages. The agent sought an appeal
de novo before the superior court, and the superior court denied
his claim on the same grounds. We conclude this was correct,
and that none of the issues the agent raises on appeal have merit.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Bo Peng (plaintiff) is a licensed real estate agent. In April
2015, he signed an Independent Contractor Agreement (the
agreement) with F.M. Tarbell Company (Tarbell). In the
agreement, plaintiff agreed that (1) he was associating with
Tarbell solely as an independent contractor and not as an
“employ[ee],” (2) his “only remuneration” would be the
commissions he earned for facilitating the sale or purchase of real
estate, and (3) he would “not be treated as an employee for state
and federal tax purposes.”
In November 2017, Tarbell terminated the independent
contractor arrangement with plaintiff.
II. Procedural Background
A. Proceedings before the labor commissioner
In August 2018, plaintiff filed a complaint with the labor
commissioner seeking unpaid “commission earnings of
2
1
$20,168.01” pursuant to Labor Code section 201 as well as
“waiting time penalties” pursuant to section 203. The $20,168.01
pertains to the commissions he claims to have earned on the sale
of two properties in October and November 2017.
Following a hearing in January 2019, a hearing officer for
the labor commissioner denied plaintiff’s claim. The hearing
officer determined that plaintiff was not entitled to unpaid wages
or waiting time penalties because he was not an “employee” of
Tarbell. In making this determination, the court ruled that
plaintiff’s arrangement with Tarbell satisfied the three-part test
set forth in Business and Professions Code section 10032 and
Unemployment Insurance Code section 650 for determining
whether “licensed real estate” agents are “independent
contractors”—namely, that (1) plaintiff was a licensed real estate
agent, (2) plaintiff was paid solely by commission, not an hourly
wage, and (3) plaintiff and Tarbell had a written contract
designating plaintiff as an “independent contractor” and not an
employee for tax purposes.
B. “De novo appeal” before the superior court
In February 2019, plaintiff filed a complaint with the
superior court seeking “[o]ther judicial review”—namely, an
“appeal de novo” pursuant to section 98.2.
The trial court set the matter for trial on November 6,
2019. Although the parties filed separate sets of pretrial
documents, they appeared on the date set for trial without
complying with the trial court’s courtroom-specific rule to file a
binder containing a joint witness list, exhibit list, jury
instructions and verdict form. The court ordered the parties back
1 All further statutory references are to the Labor Code
unless otherwise indicated.
3
a week later, but they once again had not complied with the
court’s standing order. At that hearing, the court “explain[ed]” to
plaintiff why his “separately submitted trial documents d[id] not
comply” with “the Court’s Standing Order[s].” The court then
issued an order to show cause to sanction plaintiff $500 because
his “separately submitted trial documents” did not comply with
the court’s courtroom-specific rule. The court set the hearing on
the order to show cause and set a new date for trial on January
15, 2020.
On January 15, 2020, the trial court held a hearing on its
proposed sanctions. Following consideration of plaintiff’s written
response to the order to show cause, and following the hearing,
the court found “no cause why sanctions against [p]laintiff should
not be imposed.” The same day, the court ruled that plaintiff was
not entitled to a jury trial in his appeal de novo because “[t]he de
novo appeal provided by Labor Code [section] 98.2 is a special
proceeding, created by statute, to which no right to a jury trial
. . . attach[es].”
On January 16, 2020, the trial court conducted a bench
trial. After plaintiff presented his case-in-chief, Tarbell moved
for a directed verdict under Code of Civil Procedure section 631.8.
The trial court granted the motion, later explaining that plaintiff
was not entitled to unpaid wages or waiting time penalties
because the undisputed facts showed that he was an
“independent contractor” under the three-part test set forth in
Business and Professions Code section 10032 and Unemployment
Insurance Code section 650.
C. Appeal
Following the entry of judgment in favor of Tarbell,
plaintiff filed this timely appeal.
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DISCUSSION
On appeal, plaintiff argues that the trial court (1) erred in
denying his claim for relief on the merits, (2) wrongly denied him
the right to a jury trial, (3) erred in sanctioning him for not
complying with its local rule, and (4) committed several other
errors.
I. Ruling on the Merits
Our Legislature has created a specific rule for courts to use
when “determin[ing]” whether a “real estate licensee” is an
“employee or independent contractor” “for statutory purposes.”
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(§§ 2775, subd. (b) , 2778 [requiring courts to use the legal test
set forth in Business and Professions Code 10032, subdivision (b),
when that test applies]; Bus. & Prof. Code, § 10032, subd. (b)
[specifying the test to use when determining whether a “licensed”
“real estate salesperson” is an “employee” or an “independent
contractor”].) That test provides that a licensed real estate
salesperson is an independent contractor (rather than an
employee) if (1) “[t]he individual is licensed” as a real estate
salesperson, (2) “[s]ubstantially all of [his] remuneration . . . for
[his] services . . . is directly related to sales . . . rather than to the
number of hours worked,” and (3) he has “performed” his
“services” “pursuant to a written contract between that
individual and the person for whom the services are performed
and the contract provides that the individual will not be treated
as an employee with respect to those services for state tax
purposes.” (Unemp. Ins. Code, § 650; Bus. & Prof. Code, § 10032,
2
This statute took effect immediately after being signed by
the Governor on September 4, 2020. (Stats. 2020, ch. 38, § 2.)
The language now found in section 2775 was previously located
in section 2750.3. (Ibid.)
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subd. (b) [adopting test set forth in Unemployment Insurance
Code section 650].)
Applying this rule, substantial evidence supports the trial
court’s ruling, when granting Tarbell’s Code of Civil Procedure
section 631.8 motion, that plaintiff is an independent contractor.
(Fink v. Shemtov (2012) 210 Cal.App.4th 599, 608 [“An order
granting a defense motion for judgment under Code of Civil
Procedure section 631.8 in a nonjury trial is reviewed under the
substantial evidence standard”].) Contrary to what plaintiff
argues, the undisputed facts establish that the above described
three-part test applies here because plaintiff is seeking to
establish his status as an “employee” “for statutory purposes”—
namely, to show that he is entitled to his unpaid wages under
section 201 and to waiting time penalties under section 203.
(§§ 201, 203.) The undisputed facts also establish that plaintiff is
an “independent contractor” under that three-part test: It is
undisputed that he was a licensed real estate salesperson; it is
undisputed that he was paid solely through commissions; and it
is undisputed that his written agreement with Tarbell designated
him as an “independent contractor” and explicitly provided that
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he would not be treated as an employee for tax purposes.
II. Denial of the Right to a Jury Trial
Section 98.2 entitles a party to “seek review” of the labor
commissioner’s ruling in the superior court, “where the appeal
shall be heard de novo.” (§ 98.2, subd. (a).) No published case
has yet decided whether a litigant is entitled to a jury trial in this
3 For the first time at oral argument, plaintiff specifically
argued that he was coerced into signing the written agreement.
But this argument is unsupported by any evidence.
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“de novo appeal.” We will not weigh in on the issue either. That
is because, even if we assume for purposes of argument that a
litigant is generally entitled to a jury trial in a “de novo appeal”
under section 98.2, plaintiff was not so entitled in this case. He is
not because a plaintiff whose case cannot survive a nonsuit has
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no right to a jury’s consideration of his case. (Campbell v.
General Motors Corp. (1982) 32 Cal.3d 112, 117-118 [noting that
the appropriate grant of a nonsuit motion properly “serves to take
a case from the jury’s consideration”]; cf. City of Livermore v.
Baca (2012) 205 Cal.App.4th 1460, 1473 [improper grant of a
nonsuit “denies parties their right to a jury trial”]; Ajaxo Inc. v.
E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 63.)
Plaintiff’s case could not survive a motion for a nonsuit. A
nonsuit may be granted after a plaintiff has completed his
opening statement only if the court, after accepting all of the
stated facts as true and drawing all reasonable inferences from
those facts, concludes “‘as a matter of law there will be no
evidence of sufficient substantiality to support a judgment’” for
the plaintiff. (Code Civ. Proc., § 581c; Russell v. Soldinger (1976)
59 Cal.App.3d 633, 640; Rokos v. Peck (1986) 182 Cal.App.3d 604,
611; Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958,
965.) As described above, the undisputed facts presented at trial
established that plaintiff was an “independent contractor” not
entitled to relief. What is more, and as the trial court found, “[n]o
evidence at trial provide[d] a basis to conclude that plaintiff
. . . was an employee” of Tarbell. We must accept the court’s
representation as true because plaintiff provided no reporter’s
4 Because the parties’ initial briefs did not discuss the effect
of a nonsuit motion, we invited supplemental briefing on this
issue.
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transcript from the trial. (Jameson v. Desta (2018) 5 Cal.5th 594,
609 [“‘Failure to provide an adequate record on an issue requires
that the issue be resolved against [the appellant]’ [citation]”].)
Because, on the facts presented, plaintiff was not entitled to have
a jury hear his case, the trial court did not violate the right to a
jury trial that we assume he generally has in a “de novo appeal”
under section 98.2.
Plaintiff makes two arguments in response. First, he
contends that the trial court—prior to its ultimate ruling that
plaintiff had no right to a jury trial—had ordered plaintiff to post
jury fees and issued minute orders that referred to this case as
being set for a “jury trial.” This is true, but beside the point. If,
as we have assumed, plaintiff had a general right to a jury trial
under section 98.2 but did not have that right in this specific case
due to his inability to surmount a nonsuit, then the trial court’s
initial orders requiring him to post jury fees and setting this case
for a jury trial were correct. Whether the court’s ultimate order
denying him a right to a jury trial cited to the correct reason for
doing so does not matter because our job is to review the court’s
ruling, not its reasoning. (People v. Chism (2014) 58 Cal.4th
1266, 1295, fn. 12.) Second, plaintiff suggests that he is entitled
to a jury trial in pursuit of the additional remedies he seeks in
his “de novo appeal”—namely, emotional distress and punitive
damages. Whether or not seeking these additional damages is
appropriate in a “de novo appeal,” the basis for them—namely,
that they are appropriate because Tarbell violated his statutory
right to seek unpaid wages and waiting time penalties—remains
the same: It still hinges on whether he is an independent
contractor “for statutory purposes,” and the evidence indisputably
establishes that he is, thereby entitling Tarbell to a nonsuit on
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that ground (and obviating the right to a jury trial we have
assumed he has under section 98.2).
III. Sanction Award
In pertinent part, Code of Civil Procedure section 575.2
authorizes a court, “on its own motion,” to “impose . . . penalties”
against a party (including sanctions) if a “party . . . in pro se[]
fails to comply with” any requirements of the court’s “[l]ocal
rules” (including “a rule that applies solely to cases in [a] judge’s
courtroom”) as long as the party is afforded “prior notice . . . and
an opportunity to be heard.” (Code Civ. Proc. §§ 575.2, subd. (a),
575.1, subd. (c); Rietveld v. Rosebud Storage Partners (2004) 121
Cal.App.4th 250, 257 [holding that “monetary sanctions” are
appropriate under Code of Civil Procedure section 575.2].)
The trial court did not abuse its discretion in imposing a
$500 monetary sanction against plaintiff for violating its
courtroom-specific rule requiring the joint filing of pretrial
documents. (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1291-
1292.) There is no dispute that plaintiff filed only separate
documents, and did not participate in filing joint documents. The
court had also “explain[ed]” to defendant why his “separately
submitted documents” did not comply with the court’s courtroom-
specific rule. Because there is no reporter’s transcript
contradicting the minute order summarizing the court’s
courtroom-specific rule, we must presume that the rule, as the
minute order suggests, required the filing of joint trial
documents. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130,
1133 [“all intendments and presumptions are indulged in favor of
(an order’s) correctness”].) Additionally, plaintiff had ample
notice of the sanctions order because the trial court issued it at
the November 13 hearing at which he was present, and he had an
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opportunity to respond in writing and be heard at the January
15, 2020 hearing.
Plaintiff attacks the sanctions order with three further
arguments. First, he argues that the trial court was wrong to
issue sanctions on its own motion rather than in response to a
motion by Tarbell. However, sanctions under Code of Civil
Procedure section 575.2 may be made on the court’s own motion.
(Code Civ. Proc., § 575.2, subd. (a) [so noting].) Second, plaintiff
asserts that the sanctions order is invalid because Tarbell was
not sanctioned and it also did not file joint pretrial documents.
Whether the court erred in not sanctioning Tarbell does not call
into question whether it erred in sanctioning plaintiff. Further,
we may presume—and, in the absence of any record to the
contrary, must presume—that the trial court had a reason for
drawing this distinction, which is likely that plaintiff’s failure to
cooperate prevented both parties from filing joint trial
documents. Sanctioning the party more responsible for
noncompliance with a rule is not an abuse of discretion. Third,
plaintiff contends that the trial court’s order did not comply with
the procedural requirements for issuing sanctions under Code of
Civil Procedure section 177.5 (for violation of court orders) or
California Rules of Court, rule 2.30 (for violation of the California
Rules of Court). Because the court’s sanctions order is valid
under Code of Civil Procedure section 575.2, whether it is also
valid under other provisions is irrelevant.
IV. Remaining Challenges
Plaintiff raises several further challenges to the trial
court’s rulings, including that (1) the trial court was biased
against him (because it signed proposed orders drafted by
Tarbell, because its sanctions order was motivated by vengeance,
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because it issued rulings against plaintiff, and because its
decision on the merits was “full of lies from start to finish”), (2)
Tarbell’s lawyer engaged in misconduct by re-labeling the names
of plaintiff’s exhibits on the exhibit list and by committing
perjury no fewer than three times, and (3) the trial court erred in
excluding witnesses and in not ruling that plaintiff’s agreement
with Tarbell was invalid. Plaintiff has waived these challenges
by not supporting them with reasoned argument. (Cahill v. San
Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) And
from what we can tell from the portions of the trial record
included in the record on appeal, plaintiff’s challenges also lack
merit.
DISPOSITION
The judgment is affirmed. Tarbell is entitled to its costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.
CHAVEZ
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