Bastida v. Zairi

ELIEL BASTIDA, Plaintiff and Respondent, v. ORI ZAIRI, Defendant and Appellant.

B301319

California Court of Appeals, Second District, Fifth Division

September 29, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. SC123961, Craig D. Karlan, Judge. Affirmed.

Leo Fasen for Defendant and Appellant.

Law Offices of Michael P. Kade and Michael P. Kade for Plaintiff and Respondent.

RUBIN P. J.

Defendant Ori Zairi, individually and doing business as Econo Landscape Service and Equery, Inc., appeals from the trial court's award of unpaid wages to plaintiff Eliel Bastida. Defendant contends the trial court erred in finding that plaintiff was defendant's employee. Defendant also asserts the award was inconsistent with the court's finding that defendant did not breach the parties' contract or violate the Labor Code's overtime requirements. Finally, defendant challenges the court's award of attorney's fees to plaintiff as lacking substantial evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2014, defendant, a licensed contractor, orally agreed with plaintiff, a gardener, “to place a bid for brush clearance” with the City of Los Angeles Fire Department. Under their agreement, defendant would present bids to the City, and plaintiff would perform the brush clearance work. The City awarded defendant multiple projects and plaintiff and other workers cleared the brush. The City in turn paid defendant over $50, 000. Defendant paid the wages to the other workers. He did not pay plaintiff. When the work was almost completed, defendant informed plaintiff “there was no money to pay [him] for any of the work performed.” Plaintiff then purportedly agreed to split any profit. Defendant did not pay plaintiff his “share ” and plaintiff sued.

The operative complaint alleged ten causes of action for breach of oral contract for employment or partnership, common count - quantum meruit, breach of the covenant of good faith and fair dealing, fraud, unfair business practices under Business and Professions Code section 17200, and five violations of the Labor Code for failure to pay overtime wages, meal periods, rest periods, waiting time penalties, and an accounting of wages.

The court conducted a nonjury trial over several days in June and July 2018. There is no reporter's transcript of the proceedings, so we summarize the testimony according to the court's settled statement which is in the record. Plaintiff's testimony was that defendant said that plaintiff was defendant's employee and would be paid $35/hour. The City contract with defendant provided that laborers were to be paid no less than $30 per hour. Plaintiff worked in excess of 12 hours per day for defendant on the City contract for 47 days between June 2, 2014 to November 26, 2014.

Defendant testified that plaintiff was not an employee, but that defendant and plaintiff had entered into a joint venture agreement under which plaintiff would do the brush clearance work, and defendant would advance the expenses. The parties would then split the profit equally. Defendant admitted he knew plaintiff was not a licensed contractor, and he did not secure a joint venture license as required by the Business and Professions Code. (See Bus. & Prof. Code, § 7029.1, subd. (a) [“it is unlawful for two or more licensees... to be awarded a contract jointly or otherwise act as a contractor without first having secured a joint venture license”].) The only evidence of the purported joint venture that defendant offered to the court consisted of “text messages from December 2014 near the completion of all brush clearance work... and after defendant called plaintiff and informed him there was no money to pay plaintiff for any of the work performed.” Defendant admitted he did not pay plaintiff any part of what the City had paid him.

At the close of trial, the court issued an oral tentative decision which, according to a minute order, “explain[ed] that any purported joint venture contract is unlawful. $30 an hour as an employee per written proposal submitted to the City by the defendant [sic].... [T]he Court agreed in its Tentative Decision that several statutes inured to Plaintiff's benefit (and Defendant's detriment).” The court granted the defendant's request for a statement of decision “regarding 1) if there was a joint venture agreement and 2) if there was a joint venture agreement, are there any damages.” After reviewing plaintiff's proposed statement of decision and defendant's objections, the court issued a statement of decision. Although a minute order indicates a copy of the statement of decision was “attached hereto, ” the statement of decision is not in the record on appeal.^[1]

The record on appeal does not conclusively establish which of the causes of action plaintiff prevailed on at trial. According to the judgment, the trial court awarded plaintiff $11, 280 for 47 eight-hour shifts at the rate of $30 per hour, $8, 460 in overtime at the rate of $45 per hour for 4-hour shifts each day during the period, $3, 906.52 in interest, and $41 000 in attorney's fees. The amount of unpaid wages and overtime awarded corresponded with plaintiff's claims that he worked for defendant for 47 days at a minimum of 12 hours a day, and the City's contract required defendant to pay workers at least $30 an hour. The trial court also awarded plaintiff his attorney's fees.

Defendant timely appealed from the judgment and attorney's fee award.

DISCUSSION

1. Inadequate Record

According to defendant, the court ruled in favor of plaintiff only on his cause of action for waiting time penalties, and by extension, found for defendant on plaintiff's causes of action for, among other things, breach of employment contract and violation of the Labor Code's overtime requirements. Defendant argues the judgment was inconsistent with the court's findings. We do not reach this issue because defendant has provided an inadequate record for our review.

The record contains neither a minute order nor a statement of decision that explains how the trial court decided each cause of action. The judgment itself expressly awards plaintiff wages [“eight hour shifts”], overtime, interest and attorney's fees, and designates the categories of the award in those words. Such an award is consistent with several causes of action in plaintiff's complaint.

Defendant supports his claim that the court found for plaintiff only on his claim for waiting time penalties, by pointing to the minute order granting plaintiff's motion for attorney's fees which states in part, plaintiff “prevailed on one cause of action at trial: his ninth cause of action for Labor Code violation - waiting time penalties. Defendants prevailed on the remaining nine causes of action.” A core principle of appellate jurisprudence is that a judgment is presumed correct. (See Gateway Bank, F.S.B. v. Metaxas (2021) 65 Cal.App.5th 71, 92.) Defendant does not overcome this presumption when he omits all direct evidence of the trial court's ruling, instead, and relies on a singular reference in a collateral order. More to the point, the trial court's calculation of damages can only by explained by the court's finding that plaintiff prevailed on his claims for unpaid wages and overtime. The judgment does not state or imply the court made any award for waiting time penalties. Given the state of the record, we give little significance to the court's remark about waiting time penalties. Instead we look at the face of the judgment, a judgment that awards plaintiff damages for failure to pay wages and overtime and suffers from no internal inconsistency.

2. Defendant Has Not Shown the Trial Court Erred in Finding an Employee Relationship

Defendant argues the trial court erred in finding that plaintiff was his employee. He asserts the record established no employee relationship existed because plaintiff made an “unequivocal admission at trial, under penalty of perjury, regarding his joint venture agreement” with defendant. According to the settled statement, plaintiff's “admission” was as follows: near the completion of the brush clearance work and after defendant told plaintiff “there was no money to pay Plaintiff for any of the work performed, ” plaintiff texted defendant and agreed to “the division of a 50/50 split of profits between them.” Defendant cites no legal authority for the proposition that an after-the-fact agreement to split profits after an employer refuses to pay contractual wages (embodied in defendant's agreement with the City of Los Angeles) changes an employment relationship into one of joint venture. Nor does the record compel a finding of joint venture as a matter of law. “An essential element of a... joint venture is the right of joint participation in the management and control of the business. Absent such right, the mere fact that one party is to receive benefits in consideration of services rendered... does not, as a matter of law, make him a partner or joint venturer.” (Kaljian v. Menezes (1995) 36 Cal.App.4th 573, 586.)

Defendant directs our attention to Labor Code section 2750.5 (section 2750.5) to support his purported joint venture argument. That is turning the statute on its head. “There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor.” The statute goes on to list various factors the court is to consider in deciding whether there is an employment relationship. Defendant claims he...