                                                                           FILED
                            NOT FOR PUBLICATION                             APR 27 2010

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




                            FOR THE NINTH CIRCUIT



JOSEPH DIANDA, individually, and on              No. 08-56981
behalf of all others similarly situated,
                                                 D.C. No. 2:08-cv-01220-VBF-
              Plaintiff - Appellant,             FFM

  v.
                                                 MEMORANDUM *
PDEI, INC., a California Corporation;
REACTOR FILMS, INC., a California
Corporation,

              Defendants - Appellees.



                  Appeal from the United States District Court
                       for the Central District of California
                 Valerie Baker Fairbank, District Judge, Presiding

                             Submitted April 6, 2010 **
                               Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: PREGERSON and THOMPSON, Circuit Judges, and GRAHAM, Senior
District Judge.***

      Plaintiff-appellant Joseph Dianda worked for two days as a “best boy” in the

production of a television commercial, but was allegedly paid three days late.

Dianda sued the production company and PDEI, Inc. (“PDEI”) for various

violations under the Fair Labor Standards Act (“FLSA”) and California law. The

defendants moved to dismiss the action. The district court denied the motion as to

the production company, but granted the motion as to PDEI after determining that

PDEI was not Dianda’s “employer” under the FLSA or California law. Dianda

appeals. We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.1

I.    “Employer” Status Under California’s Labor Code and FLSA

      The essence of the test for “employer” status under the California Labor

Code is “whether the principal has the right to control the manner and means by

which the worker accomplishes the work.” Estrada v. FedEx Ground Package

Sys., Inc., 64 Cal. Rptr. 3d 327, 335 (Cal. Ct. App. 2007). FLSA’s test is broader,

asking whether the “individual [here, PDEI] exercises control over the nature and



          ***
             The Honorable James L. Graham, Senior United States District Judge
for the Southern District of Ohio, sitting by designation.
      1
         See our decision in Serino v. Payday California, Inc., No. 08-56940, slip.
op. (9th Cir. 2010), which raises the same issues.

                                          2
structure of the employment relationship.” Boucher v. Shaw, 572 F.3d 1087, 1090-

91 (9th Cir. 2009) (quotation marks omitted).

      Dianda has not shown that PDEI had the right to control the details of his

work or that PDEI exercised control over his employment relationship. In his

deposition, Dianda admitted that PDEI did not tell him how to do his job, PDEI did

not hire him, PDEI did not terminate him, PDEI never communicated with him in

any way, and Dianda never took instructions or directions from PDEI concerning

the commercial. Nonetheless, Dianda argues that his pay stub and W-2 form

identify PDEI as the “employer.” However, “[t]he parties’ label is not dispositive

and will be ignored if their actual conduct establishes a different relationship.”

Estrada, 64 Cal. Rptr. 3d at 335-36. See also Real v. Driscoll Strawberry Assocs.,

Inc., 603 F.2d 748, 755 (9th Cir. 1979) (“Economic realities, not contractual labels,

determine employment status for the remedial purposes of the FLSA.”).2

Furthermore, PDEI’s alleged use of its own account to pay wages and PDEI’s

maintenance of payroll records are explainable as part of the service it provides as

a payroll company. See, e.g., Moreau v. Air France, 356 F.3d 942, 950-52



      2
         Dianda appears to contend that he and PDEI entered into an implied or
express contractual relationship establishing PDEI as his employer. Any such
contract is irrelevant, as Dianda does not argue that these supposed contracts gave
PDEI control over the employment relationship or control over Dianda’s work.

                                           3
(9th Cir. 2004) (determining that Air France was not a joint employer of contracted

service workers where Air France’s involvement was to ensure compliance with

regulatory requirements).

II.   Dianda’s Additional Contentions

      Dianda argues that PDEI should be equitably estopped from denying its

employer status. This argument fails because Dianda cannot reasonably claim

ignorance of the fact that PDEI was not his employer. See Laird v. Capital

Cities/ABC, Inc., 80 Cal. Rptr. 2d 454, 464 (Cal. Ct. App. 1998).

      Dianda also argues he was denied a full opportunity to rebut PDEI’s factual

assertions prior to the district court’s dismissal without oral argument. This is

belied by Dianda’s filing of at least eight opposition documents before the

dismissal.

      AFFIRMED.




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