                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 14 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

DARLENE HOYT,                                    No. 11-55663

              Plaintiff - Appellant,             D.C. No. 3:07-cv-01733-BEN-
                                                 RBB
  v.

CAREER SYSTEMS DEVELOPMENT                       MEMORANDUM *
CORPORATION,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                       Argued and Submitted August 8, 2012
                               Pasadena, California

Before: REINHARDT, SILVERMAN, and WARDLAW, Circuit Judges.

       Plaintiff Darlene Hoyt appeals the judgment entered in favor of Defendant

Career System Development Corporation. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiff asserts that the district court erred in its instruction to the jury

regarding the “right to control.” We disagree. The district court properly

instructed the jury that, though the right to control is the most important factor in

determining whether a worker is an employee or an independent contractor, it is

not the only factor. Under California law, the jury was required to consider

secondary factors, such as whether the right to discharge at will existed, if

specialized skills were needed for the work, and who supplied the tools and place

of work. See S.G. Borello & Sons, Inc. v. Dep’t of Indus. Relations, 769 P.2d 399,

404, 408–09 (Cal. 1989). In any event, the district court’s instructions told the jury

only that the additional factors may show that she was an employee. Thus, it is

difficult to see how Plaintiff could have been prejudiced by that instruction.

      Plaintiff also argues that the district court erred when it granted summary

judgment on her Unruh Civil Rights Act claim. We again disagree. Here, unlike

in Payne v. Anaheim Memorial Medical Center, Inc., 30 Cal. Rptr. 3d 230, 244–45

(Ct. App. 2005), Plaintiff was compensated for work and Defendant directed that

work. Because the Unruh Act only applies to discrimination by a business

establishment “in the course of furnishing goods, services or facilities to its clients,

patrons or customers” and Plaintiff was none of these, the district court correctly

granted summary judgment on Plaintiff’s Unruh Act claim. See Alcorn v. Anbro


                                            2
Eng’g, Inc., 468 P.2d 216, 219–20 (Cal. 1970); see also Johnson v. Riverside

Healthcare Sys., LP, 534 F.3d 1116, 1125–26 (9th Cir. 2008).

      AFFIRMED.




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