Opinion
B164097.
10-30-2003
FRANCINE LAPENSEE, Plaintiff and Appellant, v. EMPIRE PROPERTIES et al., Defendants and Respondents.
Law Offices of Odion Leslie Okojie, Odion L. Okojie and Nnogo C. Obiamiwe for Plaintiff and Appellant. Musick, Peeler & Garrett and Juan A. Torres for Defendants and Respondents.
This is a wrongful termination action against two individuals and two entities, with the plaintiff claiming that all four defendants were her employers. Two defendants (one individual and his related entity) moved for summary judgment on the ground that they were not the plaintiffs employers. The trial court granted the motion, ignored the fact that there are two cross-complaints, and purported to enter a final judgment. We dismiss the plaintiffs appeal from that non-appealable judgment, treat the appeal as a petition for an extraordinary writ only insofar as necessary to direct the trial court to vacate the judgment, and offer some guidance for the parties and the trial court on remand.
FACTS
A.
In September 1999, Francine Lapensee became the resident manager of Del Valle Terrace Apartments. Lapensee was hired by Linda Mallory, the property manager of the apartment complex, which was and is owned by Empire Properties, LLC. Mallory left later that year but Lapensee remained on the job.
In January 2000, Dave Hortze (doing business as Napa Properties) replaced Mallory as Empire Properties property manager. A written contract between Hortze and Empire Properties gave Hortze the authority to hire, supervise and discharge "a resident manager . . . to assist [him] in the accomplishment of [his] duties," and Empire Properties agreed to pay all costs for a resident manager (including salary, payroll taxes, and workers compensation insurance). Under the agreement, the resident manager was to be Hortzes "employee[] or independent contractor[]," with Hortze having "complete authority" over "selection and termination."
Lapensee stayed on as resident manager until June 2001, at which time her employment was terminated by Hortze. Throughout the period of Lapensees employment, her wages, payroll taxes, and insurance were paid by Empire Properties.
B.
In early 2002, Lapensee sued Hortze, his company (Napa Properties), Empire Properties, and Steve Hartunian (Empire Properties owner) for damages on various theories — hostile work environment, gender discrimination, harassment, nonpayment of wages, and wrongful termination in violation of public policy — and alleged that all four defendants were her "managers and employers." Hortze and Napa Properties answered the complaint and cross-complained against Hartunian (but not Empire Properties). Empire Properties and Hartunian answered, cross-complained against Hortze and Napa Properties, then moved for summary judgment vis-à-vis Lapensees complaint or, in the alternative, summary adjudication of issues, on the ground that Lapensee was not their employee. At the same time, Hartunian moved for summary judgment vis-à-vis the cross-complaint filed by Hortze and Napa Properties.
Neither Hortze nor Napa moved for summary judgment, and they are not parties to this appeal.
In support of their motion, Empire Properties and Hartunian presented Empire Properties contract with Hortze, Lapensees deposition testimony, and Hartunians declaration to show that it was Hortze, not Empire Properties or Hartunian, who controlled Lapensees day-to-day activities. In opposition, Lapensee presented her own declaration in which she stated that she worked for both individuals and both entities, that she had been hired by Hartunian and Mallory (Hortzes predecessor), and that she was at all times paid by Empire Properties, LLC. The record does not disclose whether Hortze or Napa Properties opposed Hartunians challenge to their cross-complaint.
The motion filed by Empire Properties and Hartunian was granted, but the trial court did not rule on the separate motion filed by Hartunian vis-à-vis the cross-complaint. A "judgment" was nevertheless entered in favor of Empire Properties and Hartunian, and Lapensee now purports to appeal from that judgment.
Although the Civil Register Report included in a supplemental appendix suggests there were "partial dismissals" of parts of one or both cross-complaints, the dismissals are not in the record, leaving us with only the cross-complaints and the undecided motion attacking Hortzes cross-complaint. There is no reporters transcript, and there is no basis for an assumption on our part that both cross-complaints were dismissed.
DISCUSSION
In related arguments, Lapensee contends she raised triable issues of material fact about whether (I) Empire Properties and Hartunian were both her employers "for purposes of [the] wages and hours laws [because they] transferred management responsibilities" to Hortze, and (II) the contract with Hortze cannot "absolve [Empire Properties and Hartunian] from liability to [Lapensee] for sexual harassment and unpaid wage claims." As we explain, there are several problems with this appeal and with the proceedings in the trial court, not the least of which is the fact that the appeal is from a non-appealable order.
A.
Subdivision (a)(1) of section 904.1 of the Code of Civil Procedure codifies the common law "one judgment" rule by providing that an appeal may be taken from "a judgment" other than "an interlocutory judgment . . . ." This means that an appeal lies only from a final judgment that terminates the trial court proceedings by completely disposing of the matter in controversy, leaving no issue for future consideration. (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697; Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304 [a judgment is final "when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined"].) Substance trumps form, and a judgment labeled "final" is not appealable when it does not remove the prevailing party from the entire case. (Jackson v. Wells Fargo Bank (1997) 54 Cal.App.4th 240, 244; Nicholson v. Henderson (1944) 25 Cal.2d 375, 381; Angell v. Superior Court (1999) 73 Cal.App.4th 691, 698 [when a judgment resolves a complaint, but does not dispose of a cross-complaint involving one or more of the same parties, the judgment is not final and is not appealable]; see also Kantor v. Housing Authority (1992) 8 Cal.App.4th 424, 429; Daon Corp. v. Place Homeowners Assn. (1989) 207 Cal.App.3d 1449, 1456.)
Since both cross-complaints survive the purported judgment, the judgment is neither final nor appealable. And although we have the power to treat this appeal as a petition for an extraordinary writ (Angell v. Superior Court, supra, 73 Cal.App.4th at p. 698), we do not view this as an appropriate case to do so — except to the extent necessary to direct the trial court to vacate the "judgment" and to suggest that it reconsider the motions with the following rules in mind.
As a general rule, a purported appeal from a non-appealable order or judgment is treated as a petition for a writ of mandate only when the briefs and record contain in substance all the elements prescribed by rule 56 of the California Rules of Court for an original proceeding, and where there are extraordinary circumstances justifying the exercise of that discretionary power. (Angell v. Superior Court, supra, 73 Cal.App.4th at p. 698.) Neither requirement is met in this case.
B.
There is no dispute about the existence of the agreement between Empire Properties and Hortze, or about its terms, and there is no dispute about the fact that Lapensees wages were paid by Empire Properties. There is no dispute about the fact that she was hired by Hortzes predecessor and fired by Hortze.
On the other hand, there is absolutely no evidence to support Lapensees conclusory assertion that, contrary to Hartunians declaration, he was one of her employers, and she has not offered any evidence or authority to suggest that Hartunian (rather than Empire Properties) had personally employed her within the meaning of any statute or regulation. It follows that, as between Lapensee and Hartunian, Hartunians motion for summary adjudication should have been granted.
C.
Empire Properties status is another story. It paid Lapensees wages, withheld taxes, provided unemployment and disability insurance, and (at least indirectly through Hortze) controlled her activities and the manner in which she performed her duties. Since Empire Properties will be treated as her employer if it is shown that, by itself or jointly with Hortze, it had "some power, not necessarily complete, of direction and control," there are triable issues of fact with regard to Lapensees claims. (Cf. Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848, 857.)
Since Lapensee was not a party to the written contract between Empire Properties and Hortze, that agreement adds little to this discussion. Although the contract is relevant to show that Hortze had the right to direct Lapensees work (Tieberg v. Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943, 952), the agreement does not expressly deprive Empire Properties of the right to override Hortzes decisions, and it specifically obligates Empire Properties to pay Lapensees wages, payroll taxes, bonuses, and other benefits. Of course, there is also the fact that Lapensees employment began before Hortze became the property manager, leaving questions (unanswered by Empire Properties) about direction and control during the period between property managers, and about whether anyone was supervising Lapensee during that time.
In any event, the contract is not conclusive (Tieberg v. Unemployment Ins. App. Bd., supra, 2 Cal.3d at p. 952), and the relevant point now is that there are triable issues of material fact concerning Lapensees claim that, alone or with Hortze, Empire Properties was her employer. (Cf. Torres-Lopez v. May (9th Cir. 1997) 111 F.3d 633, 639; Bonnette v. California Health and Welfare Agency (9th Cir. 1983) 704 F.2d 1465, 1469.) For this reason, Empire Properties motion should have been denied.
DISPOSITION
The judgment is vacated and the cause is remanded to the trial court. The appeal is dismissed. The parties are to pay their own costs of this "appeal."
We concur: SPENCER, P.J. and MALLANO, J.