Filed 6/22/20; Modified and certified for pub. 7/14/20 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                               DIVISION SEVEN


ALYOSHA MATTEI et al.,                              B291377

        Plaintiffs and Appellants,                  (Los Angeles County
                                                    Super. Ct. No. BC650798)
        v.

CORPORATE MANAGEMENT
SOLUTIONS, INC., et al.,

        Defendants and
        Respondents.


      APPEAL from a judgment of the Superior Court of
Los Angeles County, Dalila Corral Lyons, Judge. Reversed and
remanded.
      Harris & Ruble, Alan Harris, David Zelenski and Min Ji
Gal for Plaintiffs and Appellants.
      Rosen Saba, Ryan D. Saba, Elizabeth L. Bradley and
Tyler C. Vanderpool for Defendants and Respondents.
                      ______________________
       Alyosha Mattei, Greg Jensen, Scott Todd and Janos Csoma,
all members of the International Alliance of Theatrical Stage
Employees, Moving Picture Technicians, Artists and Allied Crafts
(IATSE), sued Corporate Management Solutions, Inc. and its
owner and president, Anthony Low (collectively CMS), for wage-
and-hour violations under the California Labor Code incurred in
the 2016 production of a television commercial for Ulta Beauty,
Inc., which operates a chain of beauty stores. The superior court
granted CMS’s motion for summary judgment on the ground it
was not an employer of the four IATSE members. We reverse.
       FACTUAL AND PROCEDURAL BACKGROUND
       Mattei and his colleagues are lighting technicians who
belong to Local 728 of IATSE and have worked on numerous
television commercial productions. The production of television
commercials has traditionally been governed by a series of
collective bargaining agreements between IATSE and the
Association of Independent Commercial Producers, Inc. (AICP):
The Ulta Beauty commercial was produced in June 2016 under
the 2016 Commercial Production Agreement (CPA or
Agreement). CMS is a member of AICP and a signatory to the
CPA. The CPA, among other provisions, bars IATSE members
from working on non-union television commercial productions.
       The Ulta Beauty commercial was developed by MullenLowe
U.S., Inc., an advertising agency, which hired Diktator US, LLC
to produce the commercial. Because Diktator was not a CPA
signatory, Diktator paid CMS $2,000 to borrow CMS’s signatory
status to enable it to hire union crewmembers.1 According to


1    The written contract between CMS and Diktator was not
produced for reasons not disclosed in the record. Low described




                                2
Low, this practice is common in the industry and is a large part
of CMS’s business.2 When hired to provide signatory services,
CMS does not set the wages, hours or working conditions for the
employees on the production (most of which are already set by
the CPA), hire or fire them or provide the location or any
instrumentalities for the production. CMS is not a payroll
company and does not issue payroll. Instead, the non-signatory
production company submits timecards to the payroll service
(selected by the client), which generates a “payroll edit” listing all
calculations for wages, payroll taxes and benefits that is sent to
both CMS and the non-signatory production company. The non-
signatory production company reviews those documents; and,
once approved, CMS sends the company an invoice for the exact
amount of the approved payroll invoice, plus CMS’s fee. The non-
signatory production company then remits payment to CMS.
Upon receipt, CMS notifies the payroll company, which


CMS’s typical agreement in his deposition: Generally, the terms
require CMS to administer the below-the-line crew payroll
(including all union payroll and pension and health care
contributions, payroll taxes, workers’ compensation and
processing fees) once the crew is engaged to render services on
the production until the crew is paid its final wages. The non-
signatory production company agrees to adhere to the terms and
conditions of all applicable collective bargaining agreements,
including the AICP-IATSE CPA, and to pay CMS a fee for its
services. Diktator paid CMS $2,000 for its signatory services.
2      CMS also provides production services when requested. In
those situations, CMS assists the production company in paying
bills and managing production funds and by providing financial,
accounting and insurance services to the production company.
CMS did not provide those services to Diktator.




                                  3
withdraws the wages from CMS’s account and pays the
employees.
       In the case of the Ulta Beauty commercial, this process
failed because MullenLowe, Diktator’s client, did not pay
Diktator on time for the costs of the production. Diktator, in
turn, could not deposit funds for the wages with CMS. Seeking
payment, Low spoke with several representatives of Diktator but
ultimately declined to advance the wages due on the production.3
The employees were forced to wait several weeks past the due
date, prescribed by Labor Code sections 201.5 and 204, for the
wages they had earned on the production.
       Mattei and his colleagues sued MullenLowe, Diktator and
CMS for various Labor Code violations, including late payment of
wages.4 They contend CMS, as a signatory to the CPA, was
defined as an employer and bound by the CPA’s terms to pay its
employees on a timely basis, even if Diktator did not provide it


3     Low acknowledged CMS had advanced payment for some
clients in the past, including Paramount Pictures, but he was not
familiar with Diktator and did not want to advance funds he did
not know would be repaid.
4      The operative first amended complaint asserts causes of
action for violations of Labor Code sections 203, 510 and 1194 for
failure to pay timely minimum wages and overtime, section 226
for failure to provide a proper wage statement identifying the
legal name of the employer and section 2698 for civil penalties on
behalf of the plaintiffs individually and as representatives of the
State of California and all aggrieved employees, as permitted by
PAGA, the Labor Code Private Attorneys General Act of 2004
(Lab. Code, § 2698 et seq.). Low was added as a defendant in the
first amended complaint. MullenLowe, Diktator and other
individual defendants are not parties to this appeal.




                                 4
with the necessary funds. From the employees’ perspective, both
CMS and Diktator were listed as the production companies on
their call sheets; and CMS was listed as the customer of the
payroll company on their payroll stubs.5 Mattei stated he
understood CMS to be a union signatory producer responsible for
payment of wages under the CPA.
       Low knew CMS was listed as one of the production
companies on the call sheets. CMS’s director of business affairs,
Cathryn Hacker, acknowledged it is routine to list employers at
the top of the call sheet.6 Low also admitted that CMS, by
lending its signatory status to Diktator, stood in for Diktator with
respect to the CPA.
       Based on these facts, the superior court determined that
CMS was not an employer within the meaning of the applicable
Industrial Welfare Commission (IWC) wage order7 or under



5     The payroll stub also lists the payroll company as the
“employer of record,” which Low acknowledged was common.
Payroll companies are not joint employers under well-established
case law. (See Futrell v. Payday California, Inc. (2010)
190 Cal.App.4th 1419, 1435; see also Goonewardene v. ADP, LLC
(2019) 6 Cal.5th 817, 821-822 [independent payroll services
company not liable to employees of client on claims of third-party
contract beneficiary, negligence and negligent
misrepresentation].)
6    In her role as director of business affairs Hacker
“administrates the signatory division of CMS.”
7     IWC wage order No. 12-2001 governs the motion picture
industry, including the production of television commercials.
(See Cal. Code Regs., tit. 8, § 11120, subd. (2)(K).) In its ruling
the superior court incorrectly identified IWC wage order




                                  5
common law. The court granted summary judgment in favor of
CMS and Low and entered judgment against Mattei, Jensen,
Todd and Csoma.
                          DISCUSSION
      1. Standard of Review
       A motion for summary judgment is properly granted only
when “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); see Regents of University of California v. Superior Court
(2018) 4 Cal.5th 607, 618.) We review a grant of summary
judgment de novo and decide independently whether the facts not
subject to triable dispute warrant judgment for the moving party
as a matter of law. (Hampton v. County of San Diego (2015)
62 Cal.4th 340, 347; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th
610, 618.) The evidence is viewed in the light most favorable to
the nonmoving party. (Ennabe v. Manosa (2014) 58 Cal.4th 697,
703; Schachter, at p. 618.)
       When a defendant moves for summary judgment in a
situation in which the plaintiff at trial would have the burden of
proof by a preponderance of the evidence, the defendant may, but
need not, present evidence that conclusively negates an element
of the plaintiff’s cause of action. Alternatively, the defendant
may present evidence to “‘show[] that one or more elements of the
cause of action . . . cannot be established’ by the plaintiff.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see
Code Civ. Proc., § 437c, subd. (p)(2).) “‘“‘The moving party bears


No. 11-2001, which governs the broadcasting industry. The
definition of an employer is the same under both wage orders.




                                 6
the burden of showing the court that the plaintiff “has not
established, and cannot reasonably expect to establish,”’ the
elements of his or her cause of action.”’” (Ennabe v. Manosa,
supra, 58 Cal.4th at p. 705; accord, Wilson v. 21st Century Ins.
Co. (2007) 42 Cal.4th 713, 720; Kahn v. East Side Union High
School Dist. (2003) 31 Cal.4th 990, 1002-1003 [“the defendant
must present evidence that would preclude a reasonable trier of
fact from finding that it was more likely than not that the
material fact was true [citation], or the defendant must establish
that an element of the claim cannot be established, by presenting
evidence that the plaintiff ‘does not possess and cannot
reasonably obtain, needed evidence’”].)
      2. CMS Failed To Demonstrate It Is Not an Employer
         Within the Meaning of IWC Wage Order No. 12-2001
         a. The broad IWC definition of employer
        To impose liability for violations of the Labor Code, the
plaintiffs must show that CMS is an employer as defined in wage
order No. 12-2001. (See Martinez v. Combs (2010) 49 Cal.4th 35,
52 (Martinez).) Each wage order defines the term “employ” as “to
engage, suffer, or permit to work,” and the term “employer” as
any person “who directly or indirectly, or through an agent or any
other person, employs or exercises control over the wages, hours,
or working conditions of any person.” (E.g., Cal. Code Regs.,
tit. 8, § 11120, subd. 2(D), (F).) “To employ, then, under the
IWC’s definition, has three alternative definitions. It means:
(a) to exercise control over the wages, hours or working
conditions, or (b) to suffer or permit to work, or (c) to engage,
thereby creating a common law employment relationship.”
Martinez, at p. 64.) “‘“The question of whether an employment
relationship exists ‘“is generally a question reserved for the trier




                                 7
of fact.”’ . . . This remains true ‘[w]here the evidence, though not
in conflict, permits conflicting inferences.’ . . . However, if neither
the evidence nor inferences are in conflict, then the question of
whether an employment relationship exists becomes a question of
law.”’” (Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176,
1187.)
       In Martinez the Supreme Court examined the wage order
definition of employer to determine whether farmworkers who
complained of Labor Code violations could sue a produce
merchant as a joint employer with the grower who had hired
them. (Martinez, supra, 49 Cal.4th at pp. 42-43.) Although the
Court concluded the produce merchant was not a joint employer,
it acknowledged multiple entities may be employers where they
“control different aspects of the employment relationship. This
occurs, for example, when one entity (such as a temporary
employment agency) hires and pays a worker, and another entity
supervises the work.” (Id. at p. 76; see Duffey v. Tender Heart
Home Care Agency, LLC (2019) 31 Cal.App.5th 232, 254
[definition of employment is “‘phrased . . . in the alternative (i.e.,
“wages, hours, or working conditions”),’ and thus control over any
one of the three creates an employment relationship”; triable
issue of fact as to whether placement agency exercised control
over wages]; Castaneda v. Ensign Group, Inc. (2014)
229 Cal.App.4th 1015, 1019 [“[a]n entity that controls the
business enterprise may be an employer even if it did not ‘directly
hire, fire or supervise’ the employees”; triable issue of fact as to
defendant’s control].) “Joint employment occurs when two or
more persons engage the services of an employee in an enterprise
in which the employee is subject to the control of both.” (In-Home
Supportive Services v. Workers’ Comp. Appeals Bd. (1984)




                                  8
152 Cal.App.3d 720, 732; accord, Guerrero v. Superior Court
(2013) 213 Cal.App.4th 912, 917, 955.)
       Describing the second prong of the IWC definition of
employer, the Supreme Court observed, “The verbs ‘to suffer’ and
‘to permit’ . . . are terms of art in employment law.” (Martinez,
supra, 49 Cal.4th at p. 64.) The “suffer or permit” definition,
used in wage orders since 1916, has its roots in the language of
early 20th-century statutes prohibiting child labor. (Id. at p. 69.)
“Statutes so phrased were generally understood to impose
liability on the proprietor of a business who knew child labor was
occurring in the enterprise but failed to prevent it, despite the
absence of a common law employment relationship.” (Ibid.) As
the Court explained, this “historical meaning continues to be
highly relevant today: 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.” (Id. at p. 69; accord, Dynamex Operations
West, Inc. v. Superior Court (2018) 4 Cal.5th 903, 939.) The basis
for liability under this definition is thus a defendant’s failure “to
prevent the unlawful condition” or “‘to perform the duty of seeing
to it that the prohibited condition does not exist.’” (Martinez, at
p. 69, italics omitted.) It “‘rest[s] upon principles wholly distinct
from those relating to master and servant’” (id. at p. 69) and
“reache[s] irregular working arrangements the proprietor of a
business might otherwise disavow with impunity” (id. at p. 58).
Thus, the definition of “employer” is “broad enough to reach
through straw men and other sham arrangements to impose
liability for wages on the actual employer.” (Id. at p. 71; see
Dynamex, at p. 953 [“wage orders are the type of remedial




                                  9
legislation that must be liberally construed in a manner that
serves its remedial purposes”]; Augustus v. ABM Security
Services, Inc. (2016) 2 Cal.5th 257, 262 [“we liberally construe the
Labor Code and wage orders to favor the protection of
employees”].)
       The third prong, “to engage,” embodies the common law
definition of the employer-employee relationship and, again,
harkens back to the exercise of control. (Martinez, supra,
49 Cal.4th at p. 64 [“the verb ‘to engage’ has no other apparent
meaning in the present context than its plain, ordinary sense of
‘to employ,’ that is, to create a common law employment
relationship”]; accord, Turman v. Superior Court (2017)
17 Cal.App.5th 969, 986.) “Under the common law, ‘“[t]he
principal test of an employment relationship is whether the
person to whom service is rendered has the right to control the
manner and means of accomplishing the result desired.”’” (Ayala
v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531.)
“Significantly, what matters under the common law is not how
much control a hirer exercises, but how much control the hirer
retains the right to exercise.” (Id. at p. 533.) “In cases where
there is a written contract, to answer that question without full
examination of the contract will be virtually impossible.” (Id. at
p. 535, citing Tieberg v. Unemployment Ins. App. Bd. (1970)
2 Cal.3d 943, 952 [written agreements are a “significant factor” in
assessing the right to control]; Grant v. Woods (1977)
71 Cal.App.3d 647, 653 [“[w]ritten agreements are of probative
significance” in evaluating the extent of a hirer’s right to
control].) “‘“[T]he fact that a certain amount of freedom of action
is inherent in the nature of the work does not change the




                                10
character of the employment where the employer has general
supervision and control over it.”’” (Ayala, at p. 531.)
         b. CMS has failed to establish the AICP-IATSE CPA
            permits a signatory to avoid its responsibilities as an
            employer when it lends its signatory status to a non-
            signatory producer
      The Mattei parties contend the CPA bound CMS as a
signatory to fulfill its obligations as an employer whether or not
Diktator supervised the production, a position CMS disputes and
the superior court ignored. Accordingly, we are required to
evaluate whether the CPA permits signatories who lend their
signatory status to non-signatory production companies to avoid
responsibility for wage and hour violations suffered by IATSE-
member employees on those projects.
      By its own terms,8 the CPA “is binding on those commercial
production companies that have consented . . . in writing to be

8      “Under long-standing contract law, a ‘contract must be so
interpreted as to give effect to the mutual intention of the parties
as it existed at the time of contracting, so far as the same is
ascertainable and lawful.’” (Hess v. Ford Motor Co. (2002)
27 Cal.4th 516, 524.) That intent is interpreted according to
objective, rather than subjective, criteria (Wolf v. Walt Disney
Pictures & Television (2008) 162 Cal.App.4th 1107, 1126); and the
“intention of the parties is to be ascertained from the writing
alone, if possible” (Civ. Code, § 1639; see Hess, at p. 524).
Nevertheless, “[a] contract may be explained by reference to the
circumstances under which it was made, and the matter to which
it relates.” (Civ. Code, § 1647; see Hess, at p. 524.)
      “‘An ambiguity exists when a party can identify an
alternative, semantically reasonable, candidate of meaning of a
writing. [Citations.] An ambiguity can be patent, arising from
the face of the writing, or latent, based on extrinsic evidence.’”




                                 11
bound hereby (‘Employer’ or ‘Employers’),” in other words,
signatories like CMS. “Employers are engaged in the physical
production of commercials pursuant to contracts with advertising
agencies and/or advertisers.” The CPA “is intended to recognize
and address the special needs of the commercial production
process. It is the intent of the parties hereto that this
Agreement[] establish the wages and working conditions
applicable to technicians and artisans employed in the production
of commercials.” The CPA describes in detail the minimum
wages to be paid to employees (Art. XXV), the accumulation of
overtime pay (Art. XV), the cancellation of calls (Art. XX), the
duration of the work day and work week (Art. XIV), the provision
of rest periods (Art. XVI) and meals (Art. XVIII) and travel to
locations (Art. XIX). The CPA also requires employers to make
pension and welfare contributions on behalf of employees
(Art. XXII) and charges employers with the responsibility to
ensure that safety standards are maintained during production
(Art. XIII, § 1(b)).
       What the CPA does not appear to do is relieve signatories
of their responsibility to ensure compliance with these detailed
provisions when they “lend” their signatory status to a non-
signatory production company. Nothing in the CPA expressly
addresses the scenario here. To be sure, CMS cites in support of


(Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th
1351, 1357; accord, Eriksson v. Nunnink (2015) 233 Cal.App.4th
708, 722; see Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th
384, 391 [“‘[a]n ambiguity arises when language is reasonably
susceptible of more than one application to material facts’”].)
“Courts will not strain to create an ambiguity where none exists.”
(Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18-19.)




                                12
its position Article XII, section 1, of the CPA, which states, “The
parties recognize that there are factors and requirements unique
to the making of television commercials for the advertising
industry which may result in the Employer having no effective
control over portions of pre-production or post-production work
covered by this Agreement. Under [s]uch circumstances, where
the Employer does not control the assignment of work, the
Employer shall not be responsible or liable under this Agreement
for the performance of such work.” This section, however, is
expressly limited to pre- and post-production work, which is not
involved in the Labor Code violations alleged here, and implies by
negative pregnant that an employer like CMS is responsible
under the CPA for the performance of work during the production
phase of a television commercial regardless of the lack of control.
       CMS has provided no other facts to support its assertion
that signatories can lend their status without remaining liable
for employee wage and hour violations. Indeed, notwithstanding
Low’s suggestion that Diktator alone agreed to be bound by the
CPA in the missing contract between the two parties,9 Hacker


9      We view CMS’s failure to produce its contract with Diktator
or any sample contract from the same time period with
skepticism. (See Evid. Code, § 412 [“If weaker and less
satisfactory evidence is offered when it was within the power of
the party to produce stronger and more satisfactory evidence, the
evidence offered should be viewed with distrust”].) “The
paradigmatic example of the application of Evidence Code
section 412 is where a party has documentation of an event, but
instead offers oral testimony by a potentially biased witness. The
witness’s testimony may be viewed ‘“with distrust”’ under the
statute.” (Orange County Water Dist. v. Alcoa Global Fasteners,
Inc. (2017) 12 Cal.App.5th 252, 363; see Pelayo v. J.J. Lee




                                13
acknowledged having seen the contract and stated it provided
that both CMS and Diktator would adhere to the terms and
conditions of the CPA.
      CMS has also failed to support its position with evidence of
industry practice.10 As a signatory to all of the major guilds and
unions involved in the production of motion pictures and
television commercials, CMS is presumably aware of the policies
of those guilds and unions with respect to this question but has
pointed us to none that could aid our interpretation of the CPA.11
      In sum, in light of the clear language of the CPA, absent
evidence its obligations were extinguished when CMS lent its
signatory status to Diktator, CMS remained an employer with all
concomitant responsibilities imposed by that agreement.




Management, Inc. (2009) 174 Cal.App.4th 484, 495 [failure to
produce summons]; Vallbona v. Springer (1996) 43 Cal.App.4th
1525, 1537 [failure to produce documentation of financial
liabilities]; Largey v. Intrastate Radiotelephone, Inc. (1982)
136 Cal.App.3d 660, 672 [failure to produce corporate records
concerning board meetings].)
10    We invited IATSE, AICP, the California Employment
Lawyers Association and the California Employment Law
Council to file amicus curiae briefs addressing whether a
signatory producer lending its status to a non-signatory producer
may avoid the responsibilities of an employer imposed by the
CPA and IWC wage order No. 12-2001. Only the AICP responded
to our request and declined to file a brief.
11    Low stated in his deposition that CMS has several
competitors that offer SAG-AFTRA signatory services but could
only name one that offers IATSE signatory services.




                                14
         c. A triable issue of fact exists as to CMS’s right to
            control aspects of the production and its failure to
            ensure compliance with the CPA
      Both the CPA and the Diktator-CMS contract, as that
missing contract was described by Hacker, imposed on CMS the
obligation to ensure that Mattei and his colleagues were provided
with the protections guaranteed by the CPA, including timely
payment of wages.12 In particular, these contractual obligations
not only established the wages and conditions of work for IATSE
members, but also enabled Diktator to hire IATSE members
under the aegis of CMS’s signatory status, conferring upon each
an element of control over the hiring of employees. CMS, as a
signatory, was able to list the production with the IATSE Local
728’s call steward (the mechanism for hiring Mattei and his


12     CMS has submitted a copy of an administrative law judge’s
decision finding that another IATSE member who worked on the
Ulta Beauty commercial was employed solely by Diktator and not
also by CMS. That decision does not mention the CPA or the
contractual relationship between Diktator and CMS. As the
Supreme Court has explained, “[S]o long as we exercise our
independent judgment, we may consider the DLSE’s [(Division of
Labor Standards Enforcement)] interpretation and the reasons
the DLSE proffered in support of it, and we may adopt the
DLSE’s interpretation as our own if we are persuaded that it is
correct.” (Alvarado v. Dart Container Corp. of California (2018)
4 Cal.5th 542, 561.) Likewise, we may reject a position taken by
the DLSE if we find its rationale unconvincing. “While the
DLSE’s construction of a statute is entitled to consideration and
respect, it is not binding and it is ultimately for the judiciary to
interpret th[e] statute.” (Murphy v. Kenneth Cole Productions,
Inc. (2007) 40 Cal.4th 1094, 1106, fn. 7, citing Yamaha Corp. of
America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8.)




                                 15
colleagues) and was listed with Diktator as a joint producer on
employee call sheets. In addition, CMS administered the below-
the-line payroll and ensured that the proper benefit and union
dues would be withdrawn and paid into the IATSE benefit pools.
By sharing control with Diktator, a trier of fact could conclude
CMS was a joint employer with Diktator.
       A trier of fact could also find CMS was an employer under
the suffer-or-permit prong of the IWC definition. By virtue of its
contractual rights and obligations, CMS was in a position “to
prevent the unlawful condition” of violations of the CPA and “‘to
perform the duty of seeing to it that the prohibited condition does
not exist.’” (Martinez, supra, 49 Cal.4th at p. 69, italics omitted.)
CMS appeared not to have this control only because it chose to
shut its eyes during productions, thus fostering the perception it
was not an employer. That is exactly the type of sham
arrangement the suffer-or-permit standard was intended to
prevent.
       The decision in Futrell v. Payday California, Inc. (2010)
190 Cal.App.4th 1419 (Futrell), on which CMS heavily relies,
does not suggest a different result. In Futrell the plaintiff, a
security guard who had worked on several television commercials
produced by Reactor Films, Inc., sued Reactor and its payroll
company, Payday California, Inc., for wage and hour violations
under the Labor Code on behalf of himself and others who had
provided traffic and crowd control services. (Id. at pp. 1424-
1425.) The court of appeal affirmed summary judgment in favor
of the payroll company, finding Futrell had failed to raise a
triable issue of fact Payday was its joint employer. Applying
Martinez, the court found no evidence Payday exercised any
control over Futrell’s hours or working conditions. (Futrell, at




                                 16
p. 1431.) Moreover, the services Payday performed with respect
to his wages were ministerial: “Writing on a clean slate, we
conclude that ‘control over wages’ means that a person or entity
has the power or authority to negotiate and set an employee’s
rate of pay, and not that a person or entity is physically involved
in the preparation of an employee’s paycheck.” (Id. at p. 1432.)
Similarly, under the suffer-or-permit prong, the court found no
evidence Payday had allowed Futrell to suffer work, because
there was no evidence Payday had “the power to either cause him
to work or prevent him from working.” (Id. at p. 1434.) Finally,
as a matter of common law, Payday did not control the details of
Futrell’s work. (Id. at pp. 1434-1435.)
       Futrell provides no support to CMS because Futrell was not
a union member and Payday was not a party to a collective
bargaining agreement governing wages, hours and working
conditions of union employees. Payday performed ministerially
as a payroll processing company. As a signatory to the CPA,
CMS bore an entirely different obligation to the union members
who have sued here. There are triable issues of fact related to
CMS’s right to control the hiring of employees, as well as any
obligations by CMS to ensure compliance with the terms of the
CPA. Accordingly, the superior court erred in granting summary
judgment against Mattei and his colleagues.




                                17
                          DISPOSITION
      The judgment is reversed, and the cause remanded with
directions to enter an order denying CMS and Low’s motion for
summary judgment. Mattei, Jensen, Todd and Csoma are to
recover their costs on appeal.




                                        PERLUSS, P. J.

     We concur:



           FEUER, J.



           DILLON, J.*




*     Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.




                              18
Filed 7/14/20
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION SEVEN


ALYOSHA MATTEI et al.,                 B291377

       Plaintiffs and Appellants,      (Los Angeles County
                                       Super. Ct. No. BC650798)
       v.
                                     ORDER MODIFYING
CORPORATE MANAGEMENT                 OPINION AND
SOLUTIONS, INC., et al.,             CERTIFYING OPINION
                                     FOR PUBLICATION
       Defendants and                (NO CHANGE IN THE
       Respondents.                  APPELLATE JUDGMENT)




       THE COURT:
       It is ordered that the opinion filed herein on June 22, 2020
be modified as follows:
       1. On page 2, in the opening paragraph, the last sentence,
“We reverse” is deleted and the following sentence is inserted in
its place:
       Because CMS failed to demonstrate it is not an employer
       within the meaning of that term in the governing
       Industrial Welfare Commission wage order, we reverse.

      2. On page 14, first full paragraph, the second sentence is
modified, keeping footnote 11, to read as follows:
      As a signatory to the agreements with all of the major
      guilds and unions involved in the production of motion
      pictures and television commercials, CMS is presumably
      aware of the policies of those guilds and unions with
      respect to this question but has pointed us to none that
      could aid our interpretation of the CPA.11

      The opinion in the above-entitled matter was not certified
for publication in the Official Reports. For good cause it now
appears that the opinion should be published in the Official
Reports, and it is so ordered.
      There is no change in the appellate judgment.

____________________________________________________________
                                                          *
    PERLUSS, P. J.         FEUER, J.           DILLON, J.




*Judge of the Los Angeles County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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