Opinion
Page 1542c
162 Cal.App.4th 1542c __ Cal.Rptr.3d__ ANTELOPE VALLEY PRESS, Plaintiff and Appellant, v. STEVE POIZNER, as INSURANCE COMMISSIONER, etc., et al., Defendants and Respondents STATE COMPENSATION INSURANCE FUND, Real Party in Interest. B198139 California Court of Appeal, Second District, Third Division May 30, 2008Los Angeles County Super. Ct. No. MS005119
[Modification of opinion (162 Cal.App.4th 839;___Cal.Rptr.3d___) upon denial of rehearing.]
THE COURT.
The opinion in this case that was certified for publication and filed on April 30, 2008 (162 Cal.App.4th 839;___Cal.Rptr.3d___) is modified in the following manner, and the petition for rehearing is DENIED:
On page 15 of the opinion [162 Cal.App.4th 850, advance report, fn. 12], by footnote add the following paragraph to footnote 12 as a second paragraph in that footnote:
We reject AVP’s contention that the court’s analysis in JKH Enterprises is flawed. AVP asserts that JKH Enterprises did not “consider fully” the decision in Interstate Brands v. Unemployment Ins. Appeals Bd., supra, 26 Cal.3d 770, 773 [775], where the Supreme Court had affirmed the trial court’s determination that certain of the employees of Interstate Brands were not entitled to unemployment insurance benefits, and held that it was proper for the trial court to apply the independent judgment test in reviewing the evidence produced at an administrative hearing because the case affected a fundamental vested right of the employer. We note that the Supreme Court denied review in JKH Enterprises. We also note that the Interstate Brands court did not address the question whether the subject workers were employees or independent contractors. Their employee status was admitted by Interstate Brands. However, Borello did address that issue, and there the Supreme Court simply stated that “[t]he determination of employee or independent-contractor status is one of fact if dependent upon the resolution of disputed evidence or inferences, and the [administrative agency’s] decision [on that status issue] must be upheld if substantially supported.” (Borello, supra, 48 Cal.3d at p. 349, italics added.) The Borello court did not state whether the question of worker status involves or affects a fundamental vested right. As noted in footnote 13, post, the evidence in this case is disputed. Therefore, in deciding this appeal in favor of upholding the Commissioner’s decision that the carriers are employees and not independent
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contractors for purposes of workers’ compensation insurance, we did so by addressing the question whether that decision is substantially supported by the evidence in the administrative record.
There is no change in the judgment.