Yessayan v. Fedex Ground

Full title: Aryan YESSAYAN, individually and on behalf of all others similarly…

Court: United States Court of Appeals, Ninth Circuit

Date published: Nov 25, 2008

301 F. App'x 716 (9th Cir. 2008)

Opinion

No. 07-55855.

Submitted November 21, 2008.^_

_ The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed November 25, 2008.

William F. Salle, Esq., Glendale, CA, Steven G. Pearl, Esq., Encino, CA, Lionel Z. Glancy, Esq., Marc L. Godino, Esq., Glancy Binkow Goldberg LLP, Los Angeles, CA, for Plaintiff-Appellant.

Robert M. Schwartz, Esq., O'Melveny Myers, LLP, Los Angeles, CA, Michael T. Sansbury, Esq., Spotswood Sansom Sansbury LLC, Emily J. Tidmore, Esq., Robert K. Spotswood, Esq., Kenneth D. Sansom, Esq., Birmingham, AL, Chris A. Hollinger, Esq., O'Melveny Myers, LLP, San Francisco, CA, for Defendant-Appellee.

Appeal from the United States District Court for the Central District of California, Edward Rafeedie, District Judge, Presiding. D.C. No. CV-05-08872-ER.

Before: GRABER and CLIFTON, Circuit Judges, and TRAGER,^__ District Judge.

__ The Honorable David G. Trager, Senior United States District Judge for the Eastern District of New York, sitting by designation.

MEMORANDUM^___

___ This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Plaintiff Aryan Yessayan appeals the summary judgment entered in favor of Defendant FedEx. We affirm.

We have jurisdiction because Plaintiff's appeal was timely. It was filed within 30 days after the district court's judgment was entered on the civil docket.

The district court did not err in holding that FedEx was not Plaintiff's dual employer. Under the California Supreme Court's dual employment test in Kowalski v. Shell Oil Co., 23 Cal.3d 168, 151 Cal. Rptr. 671, 588 P.2d 811 (1979), the "paramount" consideration is whether FedEx had the "right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not." Id., 151 Cal.Rptr. 671, 588 P.2d at 815-16 (internal quotation marks omitted). Other factors to be considered are who has the power to discharge a worker, who pays wages, what is the nature of the services, whether the work is part of the employer's regular business, what is the duration of the employment period, and who supplies the work tools. Id., 151 Cal.Rptr. 671, 588 P.2d at 816-17.

Even viewing the facts in the light most favorable to Plaintiff, it is clear that Torossian, and not FedEx, had substantial control over Plaintiff's work activities. In light of this fact, the uniform and grooming rules promulgated by FedEx are insignificant. The other Kowalski factors, on balance, also weigh in favor of FedEx.

AFFIRMED.