Opinion
B223852, B223853, B223856
02-15-2012
MICHELLE COLQUITT et al., Plaintiffs and Appellants, v. AT&T SERVICES, INC., Defendant and Respondent.
Eisenberg & Associates, Michael B. Eisenberg and Joshua M. Arnold for Plaintiffs and Appellants. Miller Law Group, Lisa C. Hamasaki, Joseph P. Mascovich and Noah Levin for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. Nos. BC394665, BC394666, BC394667)
APPEALS from judgments of the Superior Court of Los Angeles County, David L. Minning, Judge. Affirmed.
Eisenberg & Associates, Michael B. Eisenberg and Joshua M. Arnold for Plaintiffs and Appellants.
Miller Law Group, Lisa C. Hamasaki, Joseph P. Mascovich and Noah Levin for Defendant and Respondent.
INTRODUCTION
Plaintiffs Michelle Colquitt (Colquitt), Inishia White (White) and Tainesha Arrant (Arrant) appeal from summary judgments in favor of defendant AT&T Services, Inc.We affirm.
AT&T was erroneously sued as AT&T Corporation and AT&T Solutions, Inc.
FACTUAL AND PROCEDURAL BACKGROUND
A. Plaintiffs' Complaints
Plaintiffs filed complaints against AT&T, Trinity Grand Marketing, LLC (Trinity), US Media Xchange (USMX) and Timothy Peoples (Peoples) for sexual harassment under the Fair Employment and Housing Act (FEHA, Gov. Code, § 12940 et seq.). They alleged that they were employed as sales representatives by AT&T, Trinity and USMX. Peoples was a supervisor "of the corporate defendant." Peoples sexually harassed plaintiffs and created a hostile work environment. The corporate defendants should have known about the harassment and failed to remedy it. As a result, plaintiffs were terminated or forced to quit their jobs. They sought damages for the sexual harassment plus lost wages. B. AT&T's Motion for Summary Judgment
AT&T moved for summary judgment on the grounds plaintiffs were not its employees, Peoples was not its agent, and it did not know about or ratify Peoples' alleged harassment. In support of its motion, AT&T presented the following evidence:
AT&T's West Region has a program through which it contracts with local vendors, who become AT&T Authorized Solutions Providers (ASPs). The ASPs sell AT&T products and services door-to-door. ASPs receive a commission based on the products and services sold.
On June 16, 2006, AT&T and Trinity, doing business as USMX, entered into a dealer agreement whereby USMX, identified in the agreement as the Dealer, became an ASP. The agreement specifically provided in paragraph 4:
We use USMX throughout the opinion to refer to both USMX and Trinity.
"a) The relationship between the Parties is that of independent contractors. Dealer and any authorized SubDealer are independent businesses and will perform all of its or their respective obligations as independent contractors. Neither is an agent or employee of the other, except as described in subparagraphs b and c below. Each Party is solely responsible for all matters relating to compensation and benefits of its respective personnel and Dealer's personnel shall be considered solely the employees of Dealer and not employees or agents of AT&T. Except for the rights and obligations of each Party pursuant to this Agreement, neither Party has any right or any authority to enter into any contract or undertaking in the name of or for the account of the other, or to assume or create any obligation of any kind, express or implied, on behalf of the other. Dealer shall at no time represent itself as AT&T or any of its Affiliates; provided, however, Dealer may represent itself as an authorized sales representative of AT&T with respect to the Services. Dealer shall conduct its business at its own initiative, responsibility and expense. Dealer shall be responsible for its and its SubDealers' own acts and omissions, and those of its and their employees, agents, subordinates, and contractors during the performance of Dealer's obligations under this Agreement.
"b) Notwithstanding the foregoing, when AT&T confirms customer eligibility for Services, Dealer shall be considered the agent of AT&T solely for purposes of receiving and safeguarding such eligibility information, with the limited powers described herein and no others. . . .
"c) AT&T hereby appoints Dealer as an authorized sales representative, to market, promote the sale of, and be the procuring cause of Orders for Services, and only within the [specified] Market Area(s) . . . ."
According to Beverly Hoffman (Hoffman), Senior Manager, Quality Assurance— Methods and Procedures, for AT&T, AT&T and USMX shared no common directors, officers or management personnel. AT&T's human resources personnel and policies and procedures manual did not apply to USMX employees. AT&T did not have any input into USMX's personnel decisions, including hiring, supervision and compensation. When AT&T verified sales reported by USMX, it paid USMX a lump sum; it did not pay USMX's individual employees or independent contractors.
Frederick J. Costa, III (Costa), a managing member of USMX, verified that AT&T and USMX shared no common directors, officers or management personnel. He added that USMX did not hire employees to sell AT&T products and services but entered into independent contractor agreements with individuals interested in selling the AT&T products and services through USMX. USMX received commissions from AT&T for the sale of its products and services, and AT&T had no input into the percentage of those commissions paid to USMX's independent contractors. Costa added that AT&T authorized USMX to use the ASP logo only; USMX was responsible for purchasing badges and shirts displaying the logo.
In the summer of 2007, plaintiffs filled out USMX applications. Each then entered into an "Independent Contractor Agreement" with USMX. The agreements do not mention AT&T and identify the company for whom they would be working as "US Media Xchange, LTD."
Plaintiffs were supervised or evaluated by Peoples, Renee Carter (Carter) and Elizabeth Moore (Moore). Costa verified that Peoples, Carter and Moore had independent contractor agreements with USMX. According to Hoffmann, AT&T did not make any personnel decisions—such as hiring, supervising, scheduling or compensating—regarding Peoples or Moore or maintain personnel files on them.
Peoples admitted he was not an employee of AT&T. Moore stated in her declaration that she "was employed as a general manager by [USMX] and AT&T."
Carter and Moore provided plaintiffs order forms, badges and shirts with an AT&T logo. The badges identified each plaintiff as an "AT&T Solution Provider" and an "Authorized Sales Vendor." The shirts identified each plaintiff as an "AT&T Solution Provider." Hoffman stated that AT&T did not pay for or provide the shirts or badges. The language used on them was different than that used on AT&T badges, which simply identified the wearer as an "employee." USMX was authorized to use the ASP version of AT&T's logo only, and it was authorized to use it on clothing and badges. It was not authorized to use it on business cards, and any such use by USMX independent contractors was unauthorized.
AT&T had a problem with USMX salespeople's unauthorized use of business cards that displayed the AT&T logo rather than the AT&T ASP logo.
When plaintiffs experienced sexual harassment by Peoples, they reported it to Costa, Moore and other USMX personnel. When nothing was done about the harassment, White and Arrant resigned, and Colquitt was terminated. C. Plaintiffs' Opposition to Summary Judgment
As will be discussed below, many of the "facts" set forth in plaintiffs' separate statements of disputed and undisputed facts were nothing more than speculation or hearsay, unsupported by any evidence. Accordingly, our discussion of plaintiffs' opposition to summary judgment contains plaintiff's undisputed facts supported by admissible evidence as well as AT&T's responses to plaintiffs' separate statement supported by the evidence.
About August 2007, plaintiffs went to a USMX orientation meeting. The meeting was led by Moore and Peoples, who was Moore's supervisor.
During their training, plaintiffs received documents describing the AT&T products and services they would be selling. They received training materials which AT&T prepared and distributed to its vendors. They received order forms prepared and supplied by AT&T. They received badges and shirts identifying them as AT&T Solution Providers. An unidentified man told them about AT&T's dress code.
Moore was one of the people who trained plaintiffs, and plaintiffs reported their hours to Moore or Peoples. Plaintiffs were paid with invoices which had an AT&T logo on them. However, the invoices were created by USMX personnel on USMX computers, and AT&T played no part in their creation.
Plaintiffs were required to complete their sales by calling them in to the third party vendor hired by AT&T to operate a call center to handle sales. The call center was open during specified hours from Monday to Saturday. However, plaintiffs were allowed to set their own working hours and then complete the sales when the call center was open.
The agreement between AT&T and USMX specified the geographical area in which USMX salespeople would work. At times, AT&T asked its vendors to emphasize certain products in certain areas. The agreement also set forth an expectation that USMX salespeople would aim for an average of four sales per day, at least one of which was to be of DSL service.
Phillip Chan (Chan), who worked for AT&T, noted that he had problems working with USMX, specifically "fraud issues." USMX would report that it had a team of people working in a certain location, but Chan would be unable to find them or any call reports indicating they had contacted customers in the area.
Chan was able to look at AT&T's sales records for evidence of fraud. If he found such evidence, he would relay the information to the vendor, so the vendor could take steps to get the fraudulent activity to stop. If a particular agent continued committing fraudulent activity and the vendor refused to take action to stop it, Chan could mechanically lock that agent's sales out of the system, preventing the agent from selling AT&T products. D. The Trial Court's Ruling
In granting AT&T's summary judgment motion, the trial court found that "all of the evidence supports [AT&T's] claim that it was not [plaintiffs'] employer. The Dealer Agreement entered into between [AT&T] and [USMX] expressly provided" that their relationship was one of independent contractors.
Further, "the evidence shows that both [plaintiffs] and . . . Peoples entered into 'Independent Contractor' agreements with" USMX, and AT&T was not a party or signatory to those agreements. In addition, all of the people who hired, trained and supervised plaintiffs, including Moore, were independent contractors of USMX. USMX determined plaintiffs' compensation. The court found no evidence that AT&T "controlled or scheduled [plaintiffs'] work, working conditions, hours, duties, geographic areas or assignments."
The court observed that White and Arrant each were claiming there were triable issues of fact as to whether they were employees of AT&T "because she believed that she was and other people at [USMX] told her that she was. . . . However, these self-serving and hearsay statements fall short of establishing triable issues as to an employment relationship between [White and Arrant] and [AT&T]." Additionally, that USMX was authorized to use AT&T's logo on its badges and clothing did not create a triable issue of fact, since this authorization was pursuant to the Dealer agreement and there was no evidence AT&T paid for these items. Similarly, that the AT&T logo appeared on the plaintiffs' paychecks did not create a triable issue of fact since no one from AT&T assisted in creating the paychecks.
The court also noted that "the mere fact the Dealer Agreement set forth the terms of what products could be sold by [USMX] does not mean that Plaintiff[s were] employed by AT&T." White herself "admitted that she could typically choose the hours that she wanted to work every day and that she didn't have a specific geographic area assigned to her . . . refut[ing] her claim that AT&T controlled her work in such a manner that would constitute an employment relationship."
Colquitt claimed "there are triable issues as to whether she was an employee of AT&T because her contractor agreement with [USMX] indicated that she would be working directly for AT&T . . . . As to the reference to AT&T on her contractor agreement, which is handwritten in the space provided for Plaintiff's residence, this hardly indicates that Plaintiff 'would be working directly for AT&T.' Nowhere else in the agreement is AT&T even mentioned."
Finally, the court observed that the fact plaintiffs believed they were employees of AT&T, believed that AT&T and USMX were one company, and referred "to everyone as 'employees of AT&T'" "does not make it true. Plaintiff[s have] failed to present any evidence that refutes the overwhelming evidence supporting [AT&T's] claim that it was not [plaintiffs'] employer."
DISCUSSION
A. Standard of Review
Summary judgment properly is granted if there is no question of fact and the issues raised by the pleadings may be decided as a matter of law. (Code Civ. Proc., § 437c, subd. (c) ; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) To secure summary judgment, a moving defendant may show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 849.) The defendant must "demonstrate that under no hypothesis is there a material factual issue requiring a trial." (Rosenblum v. Safeco Ins. Co. (2005) 126 Cal.App.4th 847, 856; accord, Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
Code of Civil Procedure section 437c, subdivision (c), provides: "The 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. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact."
Once the moving defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of fact exists as to the cause of action or the defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849.) All doubts as to the propriety of granting the motion are resolved in favor of the opposing party. (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)
On appeal, we exercise our independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) Inasmuch as the grant or denial of a motion for summary judgment strictly involves questions of law, we must reevaluate the legal significance and effect of the parties' moving and opposing papers. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, disapproved on another ground in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1245.) We may uphold the judgment on any correct legal theory, even if the trial court relied on a different theory to reach the same conclusion. (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.)
The papers submitted by the parties must set forth evidentiary facts. (Sheppard v. Morgan Keegan & Co. (1990) 218 Cal.App.3d 61, 67; see also Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874.) Mere conclusions of law or fact, without evidentiary facts to support them, are insufficient to satisfy the evidentiary requirements for a summary judgment." (Perkins v. Howard(1991) 232 Cal.App.3d 708, 713; Sesma v. Cueto (1982) 129 Cal.App.3d 108, 113.) B. Whether Summary Judgment Was Erroneous Given the Fact-Specific Inquiry Necessary to Determine Whether an Employment Relationship Exists
In determining whether a company is an employer for purposes of FEHA, there are a number of factors to consider. "'No one factor is decisive. [Citation.]' [Citations.] '[T]he precise contours of an employment relationship can only be established by a careful factual inquiry.' [Citation.]" (Vernon v. State of California (2004) 116 Cal.App.4th 114, 125.)
The factors to be considered in making the determination "include payment of salary or other employment benefits and Social Security taxes, the ownership of the equipment necessary to performance of the job, the location where the work is performed, the obligation of the defendant to train the employee, the authority of the defendant to hire, transfer, promote, discipline or discharge the employee, the authority to establish work schedules and assignments, [and] the defendant's discretion to determine the amount of compensation earned by the employee . . . ." (Vernon v. State of California, supra, 116 Cal.App.4th at p. 125.)
AT&T presented evidence that it did not hire, train, supervise, or compensate plaintiffs. Rather, it had an independent contractor agreement with USMX, which in turn had independent contractor agreements with plaintiffs. AT&T did not pay for plaintiffs' uniforms or badges. AT&T authorized USMX to use the AT&T ASP logo on the uniforms and badges it provided to plaintiffs; this logo was different from the one AT&T used for its own employees. AT&T provided USMX with materials relating to the products and services it authorized USMX to sell, but it did not provide training to the salespeople regarding those products and services. All the foregoing support a conclusion that AT&T was not plaintiffs' employer. (Vernon v. State of California, supra, 116 Cal.App.4th at p. 125.)
Much of plaintiffs' claim of employment by AT&T is based on the statement by Moore in her declaration that "I was employed as a general manager by US Media and AT&T from about July 2007 until October 2007." As the trial court observed, saying one is an employee of AT&T "does not make it true." Plaintiffs presented no evidence that AT&T hired Moore, paid Moore or exercised any control over her work. AT&T, on the other hand, presented evidence that Moore had an independent contractor agreement with USMX. AT&T did not make any personnel decisions—such as hiring, supervising, scheduling or compensating—regarding Moore or maintain a personnel file on her.
As stated above, on summary judgment the parties must submit papers containing evidentiary facts, rather than conclusions of fact or law. (Perkins v. Howard, supra, 232 Cal.App.3d at p. 713; Sheppard v. Morgan Keegan & Co., supra, 218 Cal.App.3d at p. 67.) Moore's declaration that she was an employee of AT&T, without any evidentiary facts establishing the employment relationship, was a mere conclusion of law or fact which we do not consider in determining whether summary judgment properly was granted. (Buxbaum v. Aetna Life & Casualty Co. (2002) 103 Cal.App.4th 434, 448.)
Other "facts" relied upon by plaintiffs are simply incorrect or taken out of context. For example, plaintiffs state that they "were given documents prepared by AT&T, as well as an AT&T badge and shirt," adding that "AT&T acknowledged that it approved the use of these badges and logos." The evidence showed that AT&T provided documents describing its products and services to USMX, which was to sell those products and services pursuant to its Dealer Agreement with AT&T. The evidence showed that it was USMX which provided plaintiffs with badges and shirts containing the AT&T ASP logo, which AT&T authorized USMX to do under the Dealer Agreement, and these badges and shirts were different from the items AT&T provided to its employees. To paraphrase the trial court, calling the items "an AT&T badge and shirt" does not make it so. None of the "facts" cited by plaintiffs find support in the record or create a triable issue of fact as to whether plaintiffs were employed by AT&T.
The record also established that AT&T paid USMX for products sold, and USMX set the compensation for the individual salespeople and paid them. While plaintiffs were paid with invoices which had an AT&T logo on them, the invoices were created by USMX personnel on USMX computers, and AT&T played no part in their creation.
That AT&T's call center had specific hours of operation did not establish that AT&T set plaintiffs' schedules. If AT&T discovered that a salesperson was recording fraudulent sales it could mechanically locked that person's sales out of the system, preventing the agent from selling AT&T products. That did not terminate the salesperson's contract with USMX or subject the salesperson to discipline, however. Thus, AT&T's ability to block sales from a particular salesperson did not establish that it had an employer's ability to discipline or terminate and employee.
Plaintiffs also argue that the independent contractor label placed on the relationship between AT&T and USMX is not dispositive (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349), and "the day-to-day reality was that AT&T employed [USMX] salespeople." We disagree. The evidence showed that AT&T used an independent contractor, USMX, to sell its products, and it was that independent contractor who employed the salespeople. C. Whether AT&T Failed to Offer Compelling Arguments or a Proper Separate Statement of Facts in Support of its Summary Judgment Motion
Plaintiffs first assert that AT&T's arguments ignored the facts of the case. Specifically, AT&T argued that plaintiffs "were not employees because they did not work at an AT&T location." However, plaintiffs assert, "[t]here is considerable evidence that [plaintiffs'] training location was an AT&T location, since all bulletins and signs on the wall were AT&T related."
Plaintiffs point to no evidence AT&T owned, leased or otherwise controlled the training location. Since USMX sold AT&T products and services, the presence of AT&T bulletins and signs on the wall was consistent with the training location being a USMX facility. A bar may have beer signs on the wall, but that does not make it a brewery.
Plaintiffs next claim that the summary judgment motion relied heavily on unreliable declarations. In support of this claim, they point to one inconsistency between the declaration and deposition testimony of AT&T representative James Beck, one inconsistency between the declaration and deposition testimony of Hoffman, and one witness's deposition testimony that Costa was untrustworthy.
Plaintiffs cite no authority to suggest that an inconsistency between a declaration and deposition testimony, or conflicts in the evidence, preclude a grant of summary judgment. As a general rule, the court "shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court." (Code Civ. Proc., § 437c, subd. (c).) Where there is a conflict between a declaration and deposition testimony, the court may simply ignore the conflicting declaration. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-21; Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 382.)
Plaintiffs also argue that the summary judgment motion "relied heavily on a separate statement of facts which repeatedly and improperly failed to state the ultimate fact." Plaintiffs list six of AT&T's undisputed facts which refer to testimony rather than ultimate fact. For example, undisputed fact number 35 states, "Peoples admitted that he was not an AT&T employee," rather than, "Peoples was not an AT&T employee."
Plaintiffs rely on Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, in which the separate statement of undisputed facts contained statements of what witnesses said or perceived about events, rather than setting forth the events themselves. (Id. at pp. 105-106.) The court stated its belief that "trial courts have the inherent power to strike proposed 'undisputed facts' that fail to comply with the statutory requirements and that are formulated so as to impede rather than aid an orderly determination whether the case presents triable material issues of fact. If such an order leaves the required separate statement insufficient to support the motion, the court is justified in denying the motion on that basis." (Id. at p. 106.)
Plaintiffs point to nothing in the record indicating that they brought the claimed deficiencies to the trial court's attention. The trial court clearly did not find the improperly phrased undisputed facts to impede its ability to determine whether a triable issue of material fact existed, and neither do we. As the court in Reeves stated, "Here, however, the court reached the merits of the [summary judgment] motion, and we will do likewise." (Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 106.) D. Whether the Trial Court Erred in Denying a Continuance
Plaintiffs discuss their counsel's attempts to depose Costa. They then state that their "counsel believed that . . . examining Costa will further reveal that AT&T and [USMX] jointly-employed [plaintiffs], and so declared in his declaration to the trial court." The only citation to the record supporting their claim of error is to the declaration of their counsel in support of their opposition to summary judgment. They do not refer us to any motion for a continuance, supporting affidavits, or the trial court's ruling.
"It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 318.) Meeting this burden requires citations to the record to direct the court to the pertinent evidence or other matters in the record which demonstrate reversible error. (Cal. Rules of Court, rule 8.204(a)(1); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115; Culbertson v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710.) It also requires citation to relevant authority and argument. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.) It is not the responsibility of this court to comb the appellate record for facts, or to conduct legal research in search of authority, to support the contentions on appeal. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768; see also Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1301.)
Plaintiffs have failed to meet their burden of demonstrating reversible error. Specifically, they have failed to demonstrate that they met the conditions of Code of Civil Procedure section 437c, subdivision (h), entitling them to a continuance (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 313-314; Wachs v. Curry (1993) 13 Cal.App.4th 616, 623). Accordingly, their claim of error is forfeited on appeal. (Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546.) E. Whether the Transcript of the Hearing on the Summary Judgment Motion Demonstrates that the Motion Was Improperly Granted
Code of Civil Procedure section 437c, subdivision (h), provides: "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just."
Plaintiffs contend that the transcript of the hearing on the summary judgment motion demonstrates that the trial court improperly weighed the evidence. During argument, plaintiffs' counsel inquired whether the court considered Moore's declaration. The trial court said it did not remember, "It didn't make a big impact on me if [I] did."
This one comment does not demonstrate that the trial court improperly weighed conflicting evidence rather than determining whether a triable issue of fact existed. All it demonstrates is that the trial court could not remember reading that particular one-page declaration when reviewing the hundreds of pages of papers submitted in support of and opposition to the motion.
Plaintiffs finally contend that the transcript of the hearing demonstrates that "AT&T tried to downplay and was forced to acknowledge the extent to which their managers oversaw sales of door-to-door employees such as [plaintiffs]." Argument by counsel is not evidence, and does not provide a basis upon which to grant or deny summary judgment. (See Code Civ. Proc., § 437c, subd. (c).) As previously discussed, the evidence submitted on the motion supported the grant of summary judgment.
DISPOSITION
The judgments are affirmed. AT&T is to recover its costs on appeal.
JACKSON, J.
We concur:
PERLUSS, P. J.
ZELON, J.