Filed 8/11/14 Espinoza v. Dole Fresh Vegetables CA2/6
                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


BLANCA ESPINOZA, ET AL.,                                                  2d Civil No. B250880
                                                                 (Super. Ct. No. 56-2010-381812-CU-OE-
     Plaintiffs and Appellants,                                                    VTA)
                                                                             (Ventura County)
v.

DOLE FRESH VEGETABLES, INC.,

     Defendant and Respondent.


          Blanca Espinoza, Norma Santos, and Geronimo Flores appeal from the judgment
entered in favor of respondent Dole Fresh Vegetables, Inc. (Dole), after the trial court
granted Dole's motion for summary judgment. Appellants were employees of Four
Seasons Produce Packing Company, Inc. (Four Seasons), a licensed farm labor contractor
that provided services to Dole. Dole was in the business of harvesting, packing and
transporting fresh produce. Appellants brought a class action against Four Seasons and
Dole. They contended that defendants had committed wage and hour violations while
jointly employing them and members of the class. We conclude that there are no triable
issues of material fact whether Dole was appellants' joint employer. We also conclude
that appellants cannot establish that Dole was their joint employer. Accordingly, we
affirm.
                                         Background
       In November 2006 Dole and Four Seasons signed a document entitled "Custom
Harvesting and Packing Agreement" (the Contract). Four Seasons agreed, "as an
independent contractor," to "provide all labor and all equipment necessary for the harvest,
packing and transportation of the Product grown for Dole."
       The operative pleading, appellants' first amended complaint (the complaint),
consists of eight causes of action. It names Four Seasons and Dole as defendants. The
complaint alleges that "Defendants jointly employed [appellants] and the class members .
. . and maintained and enforced" various "unlawful practices and policies . . . in violation
of California minimum statutory wage and hour protections . . . ."
       In support of its motion for summary judgment, Dole submitted a separate
statement of undisputed material facts. Appellants filed their own separate statement in
which they asserted that Dole had hired the workers and had delegated to Four Seasons,
via the Contract, its employer responsibilities and authority. In its order granting Dole's
motion for summary judgment, the trial court concluded that Dole was not appellants'
"joint employer."
                                     Standard of Review
       A "motion for summary judgment shall be granted if all the papers submitted show
that there is no triable issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) "To determine
whether triable issues of fact do exist, we independently review the record that was
before the trial court when it ruled on [Dole's] motion. [Citations.] In so doing, we view
the evidence in the light most favorable to [appellants] as the losing [party], resolving
evidentiary doubts and ambiguities in their favor. [Citation.]" (Martinez v.
Combs (2010) 49 Cal.4th 35, 68 (Martinez).)
       "[F]rom commencement to conclusion, the party moving for summary judgment
bears the burden of persuasion that there is no triable issue of material fact and that he is
entitled to judgment as a matter of law. . . . There is a triable issue of material fact if, and
only if, the evidence would allow a reasonable trier of fact to find the underlying fact in

                                                   .2
favor of the party opposing the motion in accordance with the applicable standard of
proof. . . . A defendant [moving for summary judgment] bears the burden of persuasion
that 'one or more elements of' the 'cause of action' in question 'cannot be established,' or
that 'there is a complete defense' thereto. [Citation.]" (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 850, fns. omitted.)
       A defendant moving for summary judgment also "bears an initial burden of
production to make a prima facie showing of the nonexistence of any triable issue of
material fact . . . ." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)
Where, as here, the burden of proof at trial is by a preponderance of the evidence, the
defendant must "present evidence that would require a reasonable trier of fact not to find
any underlying material fact more likely than not . . . ."1 (Id., at p. 845.) If the
defendant carries this burden, the burden of production shifts to the plaintiff "to make a
prima facie showing of the existence of a triable issue of material fact." (Id., at p. 850.)
The plaintiff must present evidence that would allow a reasonable trier of fact to find the
underlying material fact more likely than not. (Id., at p. 852.) "[I]f the court concludes
that the plaintiff's evidence or inferences raise a triable issue of material fact, it must
conclude its consideration and deny the defendants' motion." (Id., at p. 856.)
       "We must presume the judgment is correct . . . ." (Jones v. Department of
Corrections and Rehabilitation (2007) 152 Cal.App.4th 1367, 1376.) Thus, "[o]n review
of a summary judgment, the appellant has the burden of showing error, even if he did not
bear the burden in the trial court. [Citation.]" (Claudio v. Regents of University of
California (2005) 134 Cal.App.4th 224, 230.)
                          Dole Was Entitled to Summary Judgment
       "Summary judgment cannot be granted on a ground not raised by the pleadings.
[Citation.] Conversely, summary judgment cannot be denied on a ground not raised by
the pleadings. [Citations.]" (Bostrom v. County of San Bernardino (1995) 35

   1
    "[A]s a general rule, the party desiring relief bears the burden of proof by a
preponderance of the evidence." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at
p. 866.)
                                                   .3
Cal.App.4th 1654, 1663.) The complaint predicates Dole's liability upon its status as a
joint employer of appellants. The determinative question, therefore, concerns the
existence of triable issues of material fact whether Dole and Four Seasons jointly
employed appellants.
          In considering this question, we rely upon definitions of the employment
relationship in "the Industrial Welfare Commission's (IWC) wage order No. 14–2001,
entitled 'Order Regulating Wages, Hours, and Working Conditions in Agricultural
Occupations' (Cal.Code Regs., tit. 8, § 11140), commonly known as Wage Order No.
14 . . . ." (Martinez, supra, 49 Cal.4th at p. 42.) "The Legislature has delegated to the
IWC broad authority over wages, hours and working conditions [citation] . . . ." (Id., at
p. 64.) "In actions . . . to recover unpaid minimum wages, the IWC's wage orders do
generally define the employment relationship, and thus who may be liable." (Id., at
p. 52.)
          The term "['t]o employ['] . . . under the IWC's definition, has three alternative
definitions. It means: [1] to exercise control [either directly or indirectly or through an
agent or any other person] over the wages, hours or working conditions, or [2] to suffer
or permit to work, or [3] to engage, thereby creating a common law employment
relationship." (Martinez, supra, 49 Cal.4th at p. 64; see also Cal.Code Regs., tit. 8, §
11140, subd. 2(C), (F).)2 Appellants discuss only the first and second definitions. We
therefore confine our analysis to these definitions.
          As to the first definition, Dole satisfied its "initial burden of production to make a
prima facie showing" that it did not exercise control, either directly or indirectly or
through an agent or any other person, over appellants' wages, hours, or working
conditions. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) In its separate
statement of undisputed material facts, Dole asserted, and appellants did not dispute, that

 2
   "The California Code of Regulations incorrectly designates section 2(F) of Wage
Order No. 14 as subdivision 2(G) of title 8, section 11140. This opinion cites section
11140's subdivisions as if they were correctly numbered to conform to those of the wage
order." (Martinez, supra, 49 Cal.4th at p. 48, fn. 9.)

                                                    .4
Four Seasons had hired its employees, trained them, supervised them, told them when
and where to work and when to take meal and rest breaks, issued all paychecks, decided
when and how much to pay its employees, purchased workers' compensation insurance,
decided who would be promoted or disciplined, and provided its employees with the
tools, clothing, and equipment needed to perform their work.
       Moreover, the Contract provided that Four Seasons "will have complete control
over the harvesting, packing and transportation of the Product" and "will be solely
responsible for all decisions regarding hiring, retention, disciplining and/or termination of
its employees." Four Seasons will establish "in its sole discretion" the employees'
"[w]ages, hours, and working conditions . . . subject only to its obligation to comply with
all federal state, and local laws." In addition, Four Seasons "will provide all supervision
and transportation of its work force" and will supply "all legally required protective
equipment." The Contract emphasized that the parties "are independent contractors and
that this Agreement does not . . . create a partnership or joint venture between them."
       Under the second definition of "to employ," (suffer or permit to work), "[a]
proprietor who knows that persons are working in his or her business without having
been formally hired, or while being paid less than the minimum wage, clearly suffers or
permits that work by failing to prevent it while having the power to do so." (Martinez,
supra, 49 Cal.4th at p. 69.) As to this definition, Dole also satisfied its "initial burden of
production to make a prima facie showing of the nonexistence of any triable issue of
material fact . . . ." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) Dole
did not suffer or permit appellants to "work because [pursuant to the Contract and Dole's
statement of undisputed material facts, it did not have] the power to prevent [appellants]
from working. [Four Seasons] had the exclusive power to hire and fire [its] workers, to
set their wages and hours, and to tell them when and where to report to work."
(Martinez, supra, 49 Cal.4th at p. 70.) "Perhaps [Dole] . . . might as a practical matter
have forced [Four Seasons] to lay off workers or to divert their labor to other projects . . .
by withdrawing its business. But any [harvester such as Dole] might force similar
choices on a [farm labor contractor such as Four Seasons] by withdrawing [its] business.

                                                  .5
Such a business relationship, standing alone, does not transform [Dole] into the employer
of [Four Seasons'] workforce." (Ibid.)
       Since Dole carried its burden of production to make a prima facie showing that it
was not appellants' joint employer, the burden of production shifted to appellants "to
make a prima facie showing of the existence of a triable issue of material fact . . . ."
(Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) Appellants were required
to "present evidence that would allow a reasonable trier of fact to find in [their] favor on
the [joint employer] issue by a preponderance of the evidence, that is, to find [it] . . .
more likely than not [that Dole was their joint employer]." (Id., at p. 852.) If appellants
failed to meet their burden of production, the joint employer "issue is not triable—that is,
it may not be submitted to a trier of fact for determination in favor of either [appellants]
or [Dole], but must be taken from the trier of fact and resolved by the court itself in
[Dole's] favor and against [appellants]." (Id., at p. 857.)
       Appellants did not carry their burden of production. In their separate statement of
material facts, appellants merely asserted that Dole had "hired temporary labor to
harvest" its product and had "delegated" to Four Seasons its "employer responsibilities"
and authority over wages, hours, and working conditions. These conclusionary
allegations are not statements of fact; they are a theory of liability. "To avoid summary
judgment, admissible evidence presented to the trial court, not merely claims or theories,
must reveal a triable, material factual issue. . . . Moreover, the opposition to summary
judgment will be deemed insufficient when it is essentially conclusionary . . . ." (Wiz
Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 11.)
       In support of their theory that Dole had hired the workers and delegated its
employer responsibilities and authority to Four Seasons, appellants referenced the
Contract and no other evidence. The Contract does not support the theory. As noted
above, the Contract states that Four Seasons "will be solely responsible for all decisions
regarding hiring, retention, disciplining and/or termination of its employees," that it "will
provide all supervision . . . of its work force," and that "[w]ages, hours, and working
conditions of [Four Seasons'] employees will be established in its sole discretion . . . ."

                                                  .6
(Italics added.) In response to appellants' separate statement of material facts, Dole
quoted the above provisions of the Contract and stated, "There is no dispute as to the
language in the Harvesting Contract."
       Appellants' assertion that Dole had hired the workers conflicts with their responses
to Dole's separate statement of undisputed material facts. Appellants said it was
"undisputed" that "[w]hen Plaintiff Espinoza was hired, the Four Seasons supervisor
called her on her cell phone and hired her." Appellants also said it was "undisputed" that
"Four Seasons hired its own employees."
       In eight footnotes of their opening brief, appellants make numerous references to
the record in an attempt to show that there are triable issues of material fact whether Dole
was a joint employer. But none of these evidentiary references was included in
appellants' separate statement of facts. That statement was required to set forth material
facts "followed by a reference to the supporting evidence." (Code Civ. Proc., § 437c,
subd. (b)(3); see also Cal. Rules of Court, rule 3.1350(f); Collins v. Hertz Corp. (2006)
144 Cal.App.4th 64, 72.)
       In ruling on a motion for summary judgment, the trial court has discretion whether
to consider evidence that is not referenced in a party's separate statement. (Wall Street
Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1189-1191; San
Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 314-
316.) "[W]e review the decision to consider or not consider this evidence for an abuse of
that discretion." (Id., at p. 316.)
       The trial court apparently relied on the parties' separate statements and did not
consider the evidence referred to in the eight footnotes of appellants' opening brief. The
record does not include a reporter's transcript of the hearing on the motion for summary
judgment. In its order granting the motion, the trial court said that its "determination is
based upon Defendant Dole's Undisputed Material Facts Nos. 1-31, which were
designated as undisputed by [appellants] in [their] Statement Opposing Defendant's
Statement of Material Facts." The court set forth each of the 31 undisputed facts and did
not mention any other evidence.

                                                 .7
        The trial court did not abuse its discretion in not considering the evidence referred
to in the eight footnotes. As Dole shows at pages 30-46 of its brief, this evidence is
complex. "[T]he rules dictating the content and format for separate statements submitted
by moving and responding parties 'permit trial courts to expeditiously review complex
motions for . . . summary judgment to determine quickly and efficiently whether material
facts are disputed.' [Citations.]" (Collins v. Hertz Corp., supra, 144 Cal.App.4th at p.
72.) Where a party's separate statement fails to set forth the facts, " ' "it is no answer to
say the facts set out in the supporting evidence or memoranda of points and authorities
are sufficient. 'Such an argument does not aid the trial court at all since it then has to cull
through often discursive argument to determine what is admitted, what is contested, and
where the evidence on each side of the issue is located.' " [Citations.]' " (Mills v.
Forestex Co. (2003) 108 Cal.App.4th 625, 640-641.)
       In any event, appellants have forfeited their contention that a triable issue of
material fact exists based on the eight footnotes of record references in their opening
brief. Appellants do not set forth or discuss the facts disclosed by the record references.
Their contention, therefore, is devoid of any factual analysis. "It is an established rule of
appellate procedure that an appellant must present a factual analysis and legal authority
on each point made or the argument may be deemed waived. [Citations.]" People ex rel.
Dept. of Alcoholic Beverage Control v. Miller Brewing Co. (2002) 104 Cal.App.4th 1189,
1200; accord, Placer County Local Agency Formation Com'n v. Nevada County Local
Agency Formation Com'n (2006) 135 Cal.App.4th 793, 814 ["We need not address
points in appellate briefs that are unsupported by adequate factual or legal analysis"].)
       Furthermore, many of the record references are to appellants' memorandum of
points and authorities filed in support of their opposition to the motion for summary
judgment. ["A]n appellant may not simply incorporate by reference arguments made in
papers filed in the trial court rather than brief the arguments on appeal. [Citation.] Such
arguments are not considered on appeal. [Citation.]" People ex rel. Dept. of Alcoholic
Beverage Control v. Miller Brewing Co., supra, 104 Cal.App.4th at p. 1200.)


                                                  .8
         Dole therefore bore its burden of persuasion that there is no triable issue of
material fact and that it is entitled to judgment as a matter of law. Appellants cannot
establish their claim that Dole was a joint employer of Four Seasons' workforce. "[A]
reasonable trier of fact could not find for [appellants]." (Aguilar v. Atlantic Richfield Co.,
supra, 25 Cal.4th at p. 857.)
         We agree with Dole that "[t]o accept [appellants'] 'delegation' logic would mean
that every time a grower enters into a contract with a farm labor contractor for harvesting
activities, the grower (the alleged delegator) is automatically the joint employer of the
farm labor contractor's employees." Appellants assert: "It is difficult to imagine a
scenario where the grower would not be a joint employer with the FLC [farm labor
contractor] who supplies labor to harvest and or/process the grower's crops." "[R]ules of
liability as broad as those [appellants] advocate are appropriately left to the Legislature."
(Martinez, supra, 49 Cal.4th at p. 71.) As our Supreme Court noted in Martinez, the only
situation where the legislature has imposed such broad liability is in garment
manufacturing: " 'To ensure that employees are paid for all hours worked, a person
engaged in garment manufacturing, as defined in [Labor Code] Section 2671, who
contracts with another person for the performance of garment manufacturing operations
shall guarantee payment of the applicable minimum wage and overtime compensation, as
required by law, that are due from that other person to its employees that perform those
operations.' ([Lab. Code,] § 2673.1, subd. (a).)" (Id., at p. 71, fn. 46.)
         Arredondo v. Delano Farms Company (E.D.Cal. 2013) 922 F.Supp.2d 1071, is
distinguishable. There, the court concluded that Delano Farms, a grower of table grapes,
and two farm labor contractors jointly employed the plaintiff farm workers. The court
decided that Delano Farms exercised control over the plaintiffs' wages because it and the
contractors had "expressly negotiated and set plaintiffs' rate of pay as part of their
contract." (Id., at p.1088.) Here, in contrast, the Contract provides that Four Seasons
will establish "in its sole discretion" the employees' "[w]ages, hours, and working
conditions . . . subject only to its obligation to comply with all federal state, and local
laws."

                                                   .9
       In determining that Delano Farms was a joint employer, the court also considered
that, instead of pooling their "income from various sources and [paying] employee wages
from that fund," the contractors "appeared to pay [their] employees directly from the
funds [they] received from Delano Farms when employees were working for Delano
Farms." (Ibid.) A similar arrangement did not occur here. Ramon Del Real, the owner
of Four Seasons, declared that Four Seasons has performed services for "various
companies unrelated to Dole . . . ." It "combines the revenue it receives from all sources .
. . and . . . pays its employees out of those combined revenues and assets."
                                        Disposition
       The judgment is affirmed. Dole shall recover its costs on appeal.
              NOT TO BE PUBLISHED.



                                                        YEGAN, J.

  We concur:



              GILBERT, P.J.



              PERREN, J.




                                                .10
                                    Henry J. Walsh, Judge

                           Superior Court County of Ventura

                          ______________________________


             Marlin & Salrzman; Louis M. Marlin, Stephen P. O'Dell. For Appellant.


             Nava & Gomez; Santos Gomez and Cesar H. Nava, for Appellant.


             Patrick J. Grady, John M. Scheppach; Allem, Matkins, Leck, Gamble,
Mallory & Natsis, for Respondent.




                                              .11
