Sportsman v. A Place for Rover, Inc.

537 F.Supp.3d 1081

Melanie SPORTSMAN, Plaintiff,

v.A PLACE FOR ROVER, INC., Defendant.

Case No. 19-cv-03053-WHO

United States District Court, N.D. California.

Signed May 6, 2021

Joel Benjamin Young, Steven Gregory Tidrick, The Tidrick Law Firm, Oakland, CA, for Plaintiff.

John Prescott LeCrone, Scott Robert Commerson, Vandana Kapur, Marissa Marie Franco, Paul Rodriguez, Davis Wright Tremaine LLP, Los Angeles, CA, Stephen Michael Rummage, Pro Hac Vice, Davis Wright Tremaine LLP, Seattle, WA, for Defendant.

ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

Re: Dkt. Nos. 65, 66

William H. Orrick, United States District Judge

Plaintiff Melanie Sportsman brought this action under the Private Attorneys General Act of 2004, California Labor Code § 2698 et seq. ("PAGA"), on behalf of herself and others who have worked for defendant A Place for Rover, Inc. ("Rover") as pet care providers. She seeks to recover civil penalties pursuant to PAGA arising from Rover's misclassification of pet care providers as independent contractors. Before me are cross motions for summary judgment on whether Sportsman has been properly classified as an independent contractor.

Under both the ABC test of Dynamex Operations W. v. Superior Ct. , 4 Cal.5th 903, 232 Cal.Rptr.3d 1, 416 P.3d 1 (2018), codified by the California legislature in California Labor Code § 2775, and the factor test of S. G. Borello & Sons, Inc. v. Department of Industrial Relations , 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399 (1989), the undisputed evidence establishes that Sportsman was an independent contractor and not an employee of Rover. She had complete control over which pet care services to offer, what rate to charge for each service, where to provide the services, how to provide the services, and if and when to provide the services by setting her own schedule and deciding whether to accept a booking request. She used her Rover profile to advertise her services and distinguished herself from other service providers, holding herself out as operating an independent business.

The level of control and customization she retained demonstrates that Rover operates very differently from other gig economy companies. Rover's platform more closely resembles an online marketplace that allows service providers to promote their services and connect with prospective buyers. Sportsman's arguments to the contrary are not convincing and do not raise a genuine dispute of material fact sufficient to prevent summary judgment in Rover's favor. For these reasons, Rover's motion for summary judgment is GRANTED and Sportsman's motion for summary judgment is DENIED.

BACKGROUND

Through its website and mobile app, Rover offers and sells services that are performed by workers whom it refers to as "service providers," "pet sitters," "sitters," or "dog walkers" (collectively "Pet Care Providers"). See Declaration of John P. LeCrone in Support of Defendant A Place For Rover, Inc.’s Motion for Summary Judgment ("LeCrone Decl.") [Dkt. No. 67], Ex. C (Chang 30(b)(6) Dep. at 14:1–5, 18:10–20:4). Purchasers of these services are referred to as "Pet Owners." Id. at 15:18–24. The services include: (i) "dog walking" for 30-minute increments; (ii) "doggy day care" in the Pet Care Provider's home; (iii) "dog boarding" in the Pet Care Provider's home; (iv) "house sitting," animal care in the Pet Owner's home on a per day basis; and (v) "drop-in visit," 30-minute check-ins at the Pet Owner's home (collectively, "Pet Care Services"). See Declaration of Steven Tidrick in Support of Plaintiff's Motion for Summary Judgment ("Tidrick Decl.") [Dkt. No. 66-2], Ex. 32 (Rover webpage "FAQs from Sitters and Dog Walkers New to Rover" at 1–2).

To use Rover's platform, Pet Owners and Pet Care Providers create their own profiles and agree to Rover's user agreement, the Terms of Service ("TOS"). Declaration of Jenna White in Support of Motion for Summary Judgment ("White Decl.") [Dkt. No. 68] ¶ 5; see id. , Ex. Z (January 31, 2017 TOS). In their profiles, Pet Care Providers can select which of the five Pet Care Services they want to offer, the rates to charge for each service, the type of cancellation policy associated with each service (ranging from flexible to strict), the geographic area where they want to provide services, and their availability. See LeCrone Decl., Ex. O (Sportsman Rover Profile). Pet Care Providers can also limit the size, weight, breed, type and number of pets for which they will accept a booking. Id. ; see also Tidrick Decl., Ex. 24 (Rover webpage "A Part-Time Job For College Students: Make Money as a Pet Sitter" at 2–3). Pet Owners can view Pet Care Provider profiles on the Rover platform and contact them through the platform to request a booking for services.

Once a Pet Owner and a Pet Care Provider have agreed to a particular arrangement, the booking is made through the Rover platform. White Decl. ¶ 12. The Pet Care Provider can decide whether to accept, decline, ignore, to cancel a booking request. Id. ; LeCrone Decl., Ex. B (Sportsman Dep. at 38:23–39:4, 46:12–48:17). After building a client list through Rover, a Pet Care Provider can set her account to "Repeat only," limiting requests to existing clients. White Decl. ¶ 10. The Pet Owner is charged at the time both parties confirm the booking. Id. ¶ 17. Rover charges the Pet Owner's credit card on file and holds the funds until 24 to 48 hours after the end date of the booking. Id. Rover then deducts a service fee (between 15% and 25% depending on the profile approval date) before remitting payment to the Pet Care Provider. Id. ¶¶ 17–18; January 31, 2017 TOS at §§ 10.2–10.3; Tidrick Decl., Ex. 37 (Rover webpage "What are the service fees?").

Sportsman's use of the Rover platform is detailed in the discussion below. In sum, she created her account in May 2017 and worked as a Pet Care Provider from August 2017 to April 2019, while taking classes at a community college. Sportsman Dep. at 29:12–31:25, 23:10–24:9. Setting her own schedule, she offered boarding, drop-in visits, doggy day care and dog walking services, and add-on services like dog bathing, in Fresno, California. Id. at 35:9–36:21, 37:17–39:4, 52:24–53, 97:2–101:20; Sportsman Rover Profile at 1–2. She fixed her rate for boarding at $35 per night, drop-in visits at $25 per visit, doggy day care at $30 per day, and dog-walking at $20 per walk. Id. at 40:7–41:10, 65:13–66:18, 93:7–95:9; Sportsman Rover Profile at 1–3. She would lower her rates "[b]ased on if [she] was having a slow period." Sportsman Depo. at 60:14-61:16. She chose a "strict" cancellation policy for dog boarding and drop-in visits but chose a "flexible" cancellation policy for dog walking and doggy day care. Sportsman Rover Profile at 3. She advertised that she could host dogs between 0–40 pounds, with up to three dogs a day, and could sit cats and dogs of any size in a Pet Owner's home.

Id. at 2; Sportsman Dep. at 33:17–34:25, 47:11–48:17, 63:4–64:2, 66:24–69:13.

On February 24, 2021, the parties filed cross motions for summary judgment on whether Sportsman has been properly classified as an independent contractor. See Defendant's Motion for Summary Judgment ("Rover MSJ") [Dkt. No. 65]; Plaintiff's Motion for Summary Judgment ("Sportsman MSJ") [Dkt. No. 66]. I heard argument on March 31, 2021.

LEGAL STANDARD

Summary judgment on a claim or defense is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the non-moving party's claim, or to a defense on which the non-moving party will bear the burden of persuasion at trial. See Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant has made this showing, the burden then shifts to the party opposing summary judgment to identify "specific facts showing there is a genuine issue for trial." Id. The party opposing summary judgment must present affirmative evidence from which a jury could return a verdict in that party's favor. Anderson v. Liberty Lobby , 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

On summary judgment, the court draws all reasonable factual inferences in favor of the non-movant. Id. at 255, 106 S.Ct. 2505. In deciding the motion, "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. However, conclusory and speculative testimony does not raise genuine issues of fact and is insufficient to defeat summary judgment. See Thornhill Publ'g Co., Inc. v. GTE Corp. , 594 F.2d 730, 738 (9th Cir. 1979).

DISCUSSION

I. EVIDENTIARY OBJECTIONS AND REQUESTS FOR JUDICIAL NOTICE

As a preliminary matter, I address the parties’ evidentiary objections. I only address the main objections that are relevant to resolution of the motions before me.

Rover moves to strike Sportsman's declaration submitted in support of her motion for summary judgment on grounds that it contains self-serving assertions, legal arguments, and conclusory statements with no factual support. Defendant's Opposition to Plaintiff's Motion of Summary Judgment ("Rover Oppo.") [Dkt. No. 79] 9; see Declaration of Melanie Sportsman ("Sportsman Decl.") [Dkt. No. 66-1]. It also moves to strike the declaration she submitted in support of her opposition to Rover's motion for summary judgment for the same reasons. Defendant's Reply in Support of Motion for Summary Judgment ("Rover Reply") [Dkt. No. 87] 4; see Supplemental Declaration of Melanie Sportsman ("Suppl. Sportsman Decl.") [Dkt. No. 84-1].

Sportsman responds that Rover cannot deny the authenticity of Exhibit B to her declaration, Rover's webpage entitled "How do I review my payments from my Rover bookings?". Plaintiff's Reply in Support of Motion for...