Opinion
B314927
04-26-2023
MICHAEL MALINARIC, Plaintiff and Appellant, v. CAREISMATIC BRANDS, INC., Defendant and Respondent.
Law Offices of Timothy Hall, Timothy A. Hall; Excelsior Law and Roger Y. Muse for Plaintiff and Appellant. Michelman & Robinson, Lara A.H. Shortz, Reuben A. Ginsburg, Derrick M. Fong-Stemple; Littler Mendelson and Stacey F. Blank for Defendant and Respondent.
NOT TO BE PUBLISHED
Appeal from the judgment of the Superior Court of Los Angeles County Super. Ct. No. 20STCV03942, Stephen I. Goorvitch, Judge.
Law Offices of Timothy Hall, Timothy A. Hall; Excelsior Law and Roger Y. Muse for Plaintiff and Appellant.
Michelman & Robinson, Lara A.H. Shortz, Reuben A. Ginsburg, Derrick M. Fong-Stemple; Littler Mendelson and Stacey F. Blank for Defendant and Respondent.
ROTHSCHILD, P. J.
Plaintiff and appellant Michael Malinaric (Malinaric) worked as a model for defendant and respondent Careismatic Brands, Inc. (Careismatic), a health care apparel manufacturer and distributor, at a one-day photo shoot in August 2017. Malinaric's talent agency failed to invoice Careismatic for his work at the shoot until June 2018. Careismatic promptly paid the invoice.
Careismatic changed its named from "Strategic Partners, Inc." to "Careismatic Brands, Inc." in December 2019.
A year and a half later, Malinaric sued Careismatic. He alleged that he had performed his work at the photo shoot as Careismatic's employee, and that Careismatic's "willful[ ] fail[ure] to pay" him immediately at the conclusion of the shoot entitled him to $54,000 in waiting time penalties under Labor Code section 203.(§ 203, subd. (a).) Careismatic moved for summary judgment, arguing that (1) Malinaric was an independent contractor, and (2) even if Malinaric was an employee, any failure to pay was not "willful" because Careismatic reasonably believed-under the employment classification standard set forth in S. G. Borello &Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello)-that Malinaric was an independent contractor. The trial court granted Careismatic's motion on both grounds.
All unspecified statutory references are to the Labor Code. Section 203, subdivision (a) provides, in relevant part: "If an employer willfully fails to pay . . . any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced." (§ 203, subd. (a).)
Malinaric asks us to reverse the trial court's judgment. We decline to do so, because we agree that Careismatic's good-faith independent contractor defense precludes a finding of willfulness under section 203. We therefore affirm.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
We summarize here only the facts and procedural history relevant to our resolution of this appeal.
Malinaric earns his living by modeling. He usually works with talent agencies to find work; however, at times, he finds modeling jobs on his own. In August 2017, Model Two Management, LLC (Model Two) served as Malinaric's talent agency, assisting him in booking modeling jobs.
On August 11, 2017, Lindsay Barton, Careismatic's marketing operations manager, emailed Model Two, indicating that Careismatic was interested in meeting Malinaric to determine whether to hire him for a photo shoot scheduled for August 28, 2017. Malinaric met with Careismatic representatives on August 15, 2017, and later that day, Barton emailed Model Two, informing the agency that Careismatic wished to hire Malinaric for the August 28 shoot. Model Two responded by proposing a fee of $1,800 for Malinaric's modeling work at the photo shoot, and Careismatic accepted Model Two's proposal. Also on August 15, 2017, Model Two provided Malinaric with a "call sheet" from Careismatic, which included the time, date, and location of the shoot; instructions to arrive unshaven; and a note that Malinaric should call Barton if he had any questions on the day of the job. Careismatic did not provide Malinaric with any other training or hiring materials, such as an Internal Revenue Service (IRS) Form W-9.
As agreed, Malinaric performed modeling services for Careismatic at the scheduled August 28 photo shoot. Stylists hired by Careismatic selected clothing and accessories for Malinaric's use during the shoot, and a photographer hired by Careismatic provided direction to Malinaric.
Nothing in the record indicates that Malinaric requested payment of his $1,800 fee at the conclusion of the job. Model Two then neglected to invoice Careismatic for Malinaric's services until June 14, 2018, nearly 10 months following the shoot. Model Two's cover email transmitting the invoice apologized for the delay:
"Lindsay, How are you? [O]ur accounting dep[ar]t[ment] just picked up that I did not send you an invoice for Michael M[alinaric] August 28, 2017. I am so sorry for that. Please see attached. THANK YOU SO MUCH."
On June 26, 2018, Careismatic remitted payment to Model Two in the full amount of the invoice, consisting of the $1,800 fee for Malinaric and an additional $360 agency fee.
A year and a half later, on January 30, 2020, Malinaric filed a complaint against Careismatic that asserted a single cause of action under section 203. Malinaric alleged that he worked at the August 2017 photo shoot as Careismatic's employee, and that Careismatic's "willful" 10-month delay in remitting payment entitled him to $1,800 in damages for unpaid wages and $54,000 in waiting time penalties.
On April 14, 2021, Careismatic filed a motion for summary judgment, arguing that (1) Malinaric was an independent contractor, and (2) even if Malinaric was an employee, Careismatic did not "willfully" fail to timely pay his wages. In support of the motion, Careismatic submitted a declaration from Barton, along with several emails and other supporting documents. Malinaric opposed the motion, filing his own supporting declaration and documentary evidence. He also filed evidentiary objections to portions of the Barton declaration. Along with its subsequent reply in support of the motion, Careismatic filed objections to Malinaric's evidence.
On June 28, 2021, the trial court heard the motion and then took the matter under submission. In a written ruling issued later that day, it granted summary judgment for Careismatic on both grounds raised in the motion. The ruling did not address the parties' evidentiary objections.
Consistent with its ruling, the court then entered judgment in favor of Careismatic. Malinaric timely appealed.
DISCUSSION
A. Standard of Review
"We review a trial court's granting summary judgment de novo, 'considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and [correctly] sustained.' [Citation.] We 'liberally constru[e] the evidence in support of the party opposing summary judgment and resolv[e] doubts concerning the evidence in favor of that party.' [Citation.]" (Peralta v. The Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1034.)
"When a defendant moves for summary judgment on the ground there is an affirmative defense to the action, the burden shifts to the plaintiff to show there is one or more triable issues of material fact regarding the defense after the defendant meets the burden of establishing all the elements of the affirmative defense." (Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484; Code Civ. Proc., § 437c, subds. (o)(2) &(p)(2).)
B. The Trial Court Properly Granted Summary Judgment Based on the Absence of a Willful Violation
"Labor Code section 203 empowers a court to award 'an employee who is discharged or who quits' a penalty equal to up to 30 days' worth of the employee's wages '[i]f an employer willfully fails to pay' the employee['s] full wages immediately (if discharged) or within 72 hours (if he or she quits)." (Diaz v. Grill Concepts Services, Inc. (2018) 23 Cal.App.5th 859, 867 (Diaz), italics omitted.) "It is called a waiting time penalty because it is awarded for effectively making the employee wait for his or her final paycheck." (Ibid.)
"A good faith dispute that any wages are due will preclude imposition of waiting time penalties." (Cal. Code Regs., tit. 8, § 13520.) Such a dispute "occurs when an employer presents a defense, based in law or fact which, if successful, would preclude any recovery on the part of the employee." (Id., subd. (a).) "A good faith dispute can exist even if the employer's proffered defense is 'ultimately unsuccessful,' but not if the defense is also 'unsupported by any evidence, [is] unreasonable, or [is] presented in bad faith.' [Citation.]" (Diaz, supra, 23 Cal.App.5th at p. 868; see Cal. Code Regs., tit. 8, § 13520, subd. (a) ["[t]he fact that a defense is ultimately unsuccessful will not preclude a finding that a good faith dispute did exist"].)
Because section 200 defines "wages" for purposes of section 203 as "all amounts for labor performed by employees" (§ 200, subd. (a), italics added), "a good-faith mistake about a worker's employment status is a defense to the imposition of waiting-time penalties." (Hill v. Walmart Inc. (2022) 32 F.4th 811, 817 (Hill) [applying California law in granting summary judgment based on Walmart's good-faith belief that plaintiff, who modeled in 10 photo shoots for Walmart, was an independent contractor]; see also Armenta v. Osmose, Inc. (2005) 135 Cal.App.4th 314, 325 ["[a] good faith belief in a legal defense will preclude a finding of willfulness [under section 203]"].)
Malinaric's attempts to distinguish Hill fail. None of the purported factual distinctions to which he points-such as the absence in the instant record of a formal written contract between the parties-is sufficient to render Hill inapposite. Nor do we find persuasive Malinaric's arguments that we should disregard Hill because of differences between the federal and California summary judgment standards, because Hill is not binding on this court, and because state courts are the final arbiters of the meaning of state law. Regardless of its binding effect, we may and do rely on its reasoning. (See Coleman v. Medtronic, Inc. (2014) 223 Cal.App.4th 413, 428-429.)
Thus, "the operative question" before us is "whether, based on the state of the law when [Malinaric's] photo shoot[ ] occurred, [Careismatic] has presented an objectively reasonable defense that is not marred by bad-faith conduct." (See Hill, supra, 32 F.4th at p. 817.) We conclude that Careismatic has done so by presenting a good-faith defense that Malinaric was an independent contractor under the then valid employment classification standard set forth in Borello.
1. Careismatic's Reliance on Borello Is Reasonable, Given Uncertainty in the Law Prior to 2020
Careismatic argues that, at the time of the August 2017 photo shoot, the multifactor Borello standard applied to employment classification determinations in actions brought under section 203. Because the law governing such classification determinations was in flux before section 2775 (formerly section 2750.3) took effect in January 2020, we conclude that Careismatic's reliance on Borello in asserting its independent contractor defense is reasonable.
The Legislature enacted former section 2750.3 in September 2019, and it took effect on January 1, 2020. (Stats. 2019, ch. 296, § 2.) The Legislature subsequently repealed section 2750.3 and replaced it with section 2775, effective September 4, 2020. (Stats. 2020, ch. 38, § 2.) These changes did not substantively alter the statutory provisions relevant to this appeal. For simplicity, we refer hereafter only to section 2775.
Under section 2775, the "ABC test" articulated in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (Dynamex) now governs employment classification determinations "for purposes of all benefits to which employees are entitled under the Unemployment Insurance Code, the Labor Code, and all applicable wage orders," subject to certain exceptions not relevant here. (People v. Uber Technologies, Inc. (2020) 56 Cal.App.5th 266, 278 (Uber).) Before the Legislature enacted section 2775, however, courts disagreed concerning the scope of the ABC test's application. (See Hill, supra, 32 F.4th at p. 820.) As recently as 2019, some courts concluded that "the Borello standard rather than the ABC test should apply to claims under the Labor Code that are not based upon wage order violations"-such as Malinaric's standalone claim under section 203. (Parada v. East Coast Transport Inc. (2021) 62 Cal.App.5th 692, 699, fn. 2 (Parada), citing Gonzales v. San Gabriel Transit, Inc. (2019) 40 Cal.App.5th 1131, 1157, review dism. Mar. 17, 2021, S259027 (Gonzales) &Garcia v. Border Transportation Group, LLC (2018) 28 Cal.App.5th 558, 571 (Garcia).)
The ABC test requires a court to "presume[ ] the existence of an employer-employee relationship" unless an employer establishes each of the following three elements: "(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact, (B) that the worker performs work that is outside the usual course of the hiring entity's business, and (C) that the worker is customarily engaged in an independently established trade, occupation, or business." (Hill, supra, 32 F.4th at p. 819, citing Dynamex, supra, 4 Cal.5th at pp. 916-917.)
"[W]age orders are constitutionally authorized, quasilegislative regulations" promulgated by the (now defunded) Industrial Welfare Commission (IWC). (Dynamex, supra, 4 Cal.5th at pp. 914, fn. 3 & 936, fn. 14.)
Although Malinaric's complaint contains no reference to any wage order, he now makes the conclusory assertion that "wage order No. 4-2001, which specifically includes 'models' within its scope," applies here. (Capitalization omitted.) Malinaric, however, "cannot successfully resist [Careismatic's summary judgment] motion based on allegations that are not contained in the complaint." (Heritage Marketing & Ins. Services, Inc. v. Chrustawka (2008) 160 Cal.App.4th 754, 764.) Moreover, wage order No. 4-2001 does not set forth or discuss any rules governing the timing of wage payments (see Cal. Code Regs., tit. 8, § 11040), and Malinaric fails to explain how his section 203 claim concerning allegedly untimely payments is based on the wage order.
Notwithstanding this recent disagreement in the courts, Malinaric insists that Careismatic's reliance on Borello is unreasonable because-years prior to the August 2017 photo shoot-the test set forth in Martinez v. Combs (2010) 49 Cal.4th 35 (Martinez) replaced the Borello standard for purposes of section 203 actions. Section 2775, he argues, merely codified existing law on this point.
A brief review of the law's evolution in this area demonstrates that Malinaric's contentions are unsupported. Prior to Dynamex, courts viewed the 1989 Borello opinion "as the seminal California decision on [the] subject" of employment classification. (Dynamex, supra, 4 Cal.5th at p. 929.) In 2018, Dynamex held that the ABC test-not the Borello standard-governs classification determinations in certain cases involving alleged violations of IWC wage orders. (Id. at pp. 916-917.)
The analysis in Dynamex relies heavily on the 2010 decision in Martinez, in which the Supreme Court determined that certain produce merchants did not qualify as "employers" for purposes of the farm worker plaintiffs' wage claims under section 1194. (Dynamex, supra, 4 Cal.5th at pp. 935-940.) "Martinez did not directly involve the issue of whether the workers in question were employees or independent contractors" (id. at p. 935); instead, it held that the IWC "ha[d] the authority, in promulgating its wage orders, to define the standard for determining when an entity is to be considered an employer for purposes of the applicable wage order." (Id. at pp. 942-943.) The court held further that, under the IWC's definition, the phrase "[t]o employ" has "three alternative definitions," one of which is to" 'suffer, or permit to work.'" (Martinez, supra, 49 Cal.4th at p. 64.) The court then applied the IWC definition of "to employ" in analyzing plaintiffs' section 1194 claims, explaining that "a worker who sues under section 1194 for unpaid minimum wages actually sues to enforce the applicable wage order," because the underlying wage order fixes the amount of the minimum wage. (Martinez, supra, at p. 64.)
Malinaric notes that, following Martinez, some courts "applied the IWC wage order definition of 'employee' to claims brought under . . . section 203." (See Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419, 1423-1425, 1431-1435; Goonewardene v. ADP, LLC (2016) 5 Cal.App.5th 154, 166-167, revd. and remanded on other grounds on Feb. 7, 2019, S238941; Kao v. Holiday (2017) 12 Cal.App.5th 947, 954-957.) He urges that, as a result, Careismatic's reliance on Borello in analyzing its August 2017 relationship with Malinaric for purposes of section 203 is unreasonable.
But nothing in Martinez indicates that it announced a new employment classification test applicable to all claims under the Labor Code. (See Hill, supra, 32 F.4th at p. 820 ["the language in Martinez . . . suggest[s] [its] scope is limited to wage-order cases"].) Moreover, Dynamex expressly declined to "reach the question of whether the ABC test should apply to [non-wage order] claims under the Labor Code." (Parada, supra, 62 Cal.App.5th at p. 699, fn. 2, citing Dynamex, supra, 4 Cal.5th at pp. 916, fn. 5 &942.) And in Dynamex's wake, some courts concluded that the Borello standard continued to govern Labor Code claims "not based upon wage order violations." (Parada, supra, at p. 699, fn. 2, citing Gonzales, supra, 40 Cal.App.5th at p. 1157 &Garcia, supra, 28 Cal.App.5th at p. 571.)
Malinaric is incorrect that Garcia's discussion of non-wage order claims consists merely of unpublished dicta. (See Vendor Surveillance Corp. v. Henning (2021) 62 Cal.App.5th 59, 69 (Vendor) ["in Garcia, this court held that although Dynamex applied to the plaintiff's wage order claims, Borello applied to non-wage order claims involving overtime, wrongful termination, and waiting time penalties"].)
We therefore disagree with Malinaric that the law on this point was settled in 2017, and we necessarily reject Malinaric's related argument that when section 2775 took effect in January 2020, it merely codified existing, settled law. Although section 2785 explains that section 2775 "is declaratory of . . . existing law with regard to wage orders of the [IWC] and violations of [the Labor Code] relating to wage orders" (§ 2785, subd. (a), italics added), section 2775's application of the ABC test to the entirety of the Labor Code constituted an expansion of the holdings in Martinez and Dynamex. (See Uber, supra, 56 Cal.App.5th at p. 278 ["while the Dynamex court repeatedly emphasized that the controversy before it-and implicitly its holding-was limited to the wage and hour context [citation], the Legislature made clear that it was broadly adopting the Dynamex holding for purposes of all benefits to which employees are entitled under the Unemployment Insurance Code, the Labor Code, and all applicable wage orders"]; accord, Vendor, supra, 62 Cal.App.5th at pp. 73-74.) In any case, legislative changes post the occurrence in question cannot defeat that a prior action is taken in good faith.
Accordingly, given the unsettled state of the law concerning classification determinations in section 203 actions prior to 2020, we conclude that Careismatic's reliance on the Borello standard is reasonable.
Our Supreme Court has held that Dynamex applies retroactively. (See Vazquez v. Jan-Pro Franchising Internat., Inc. (2021) 10 Cal.5th 944, 948.) But because Dynamex's holding is limited to claims based upon wage orders, its retroactive application does not impact our analysis of Malinaric's standalone section 203 claim.
2. Under Borello, Careismatic's Independent Contractor Defense Is Reasonable and Supported by Undisputed Evidence
Applying the Borello standard, we conclude that Careismatic's independent contractor defense is sufficiently reasonable and factually supported to preclude a finding of willfulness under section 203.
Under Borello, "the extent of the hirer's right to control the work is the foremost consideration in assessing whether a common law employer-employee relationship exists." (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 532.) Borello, however, also instructs that courts may consider a variety of secondary factors in determining "which classification (employee or independent contractor) best effectuates the underlying legislative intent and objective of the statutory scheme at issue." (Dynamex, supra, 4 Cal.5th at p. 934.) These factors include:
"(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee." (Borello, supra, 48 Cal.3d at p. 351 .)
Finally, Borello cautions that" '[t]he individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.' [Citation.]" (Borello, supra, 48 Cal.3d at p. 351.) "[T]he dispositive circumstances [therefore] may vary from case to case." (Id. at p. 354.)
Here, the undisputed facts demonstrate that Careismatic had the right to, and did, exercise a substantial degree of control over Malinaric: Careismatic selected the date, time, and location for the photo shoot; provided Malinaric with instructions for the job via a "call sheet"; and hired stylists and photographers who provided further direction to him during the shoot. In addition, Malinaric understood that he could be discharged without cause. But many of the secondary Borello factors weigh against classifying
Malinaric as Careismatic's employee. The record establishes, for example, that Malinaric, a model, is "engaged in a distinct occupation or business" from Careismatic, an apparel manufacturer. Malinaric performed modeling services for Careismatic only once, for a single day. Careismatic paid Malinaric by the job, rather than by the hour. And Careismatic never provided Malinaric with employee hiring documentation, such as IRS Forms W-9 and W-4.
Although the record at times refers to Malinaric's $1,800 fee as a daily rate, he concedes that payment was "for [the] modeling work at the job."
Accordingly, we conclude "there were some reasonable grounds for [Careismatic] to believe that [Malinaric] was an independent contractor, which is sufficient for a good-faith dispute." (See Hill, supra, 32 F.4th at p. 821; accord, Cal. Code Regs., tit. 8, § 13520, subd. (a) ["[t]he fact that a defense is ultimately unsuccessful will not preclude a finding that a good faith dispute did exist"].) We note further that our conclusion is consistent with the Legislature's apparent intent to impose waiting time penalties only "on employers who lack a good excuse for withholding payment to discharged employees." (Hill, supra, 32 F.4th at p. 816.)
None of Malinaric's remaining arguments alters our conclusion. Malinaric first contends that Careismatic failed to meet its summary judgment burden because much of its evidence comes in the form of the purportedly "self-serving" Barton declaration. (Boldface omitted.) We agree with Careismatic, however, that a declaration is not inadmissible or ineffective as evidence merely because the declarant is affiliated with a party. (See Greshko v. County of Los Angeles (1987) 194 Cal.App.3d 822,835 ["[t]he testimony of an interested party is competent and admissible"].) In addition, we are unpersuaded by Malinaric's contentions that the Barton declaration contains improper legal conclusions and irrelevant evidence. Barton's statements that "Careismatic did not intend to create an employment relationship with Malinaric," and that "Careismatic did not believe it had created an employment relationship with Malinaric" are factual assertions, rather than legal conclusions. And Barton's statements that Careismatic did not provide employee training, hiring, or related materials to Malinaric are relevant, as they provide further evidentiary support for Careismatic's assertion that it did not believe that the parties had created an employment relationship. We also find unconvincing Malinaric's related arguments that Careismatic has failed to support its arguments with "proper citations to the appellate record" and that "[i]nferences reasonably deducible from the evidence . . . raise[ ] triable issues of material fact." (Boldface, italics &underscoring omitted.) Malinaric fails to explain any such inferences or to identify any such disputed facts.
We note, in contrast, that Malinaric urges us to credit the legal conclusion in his own declaration that "[w]henever [he] books modeling jobs, [he is] an employee of the entity [he] work[s] for, and not an independent contractor." Even if credited, Malinaric's testimony on this point is insufficient to create a triable issue of fact concerning the reasonableness of Careismatic's independent contractor defense because Malinaric "points to no evidence that [he] expressed this belief to [Careismatic]." (See Hill, supra, 32 F.4th at p. 821, fn. 5.)
Next, Malinaric contends that Borello's "regular part of [the] business" and "skilled profession" factors support his classification as an employee. But the Barton declaration-the sole evidence on which Malinaric relies in arguing that hiring models is a "regular part" of Careismatic's business-is silent concerning the frequency with which Careismatic engages models and conducts photo shoots. Malinaric similarly fails to support his contention that "modeling is not a 'skilled profession'" with a citation to a declaration or any other evidence.
Malinaric's final argument-that Smith v. Superior Court (2006) 39 Cal.4th 77 and Zaremba v. Miller (1980) 113 Cal.App.3d Supp. 1 (Zaremba) render Careismatic's defense unreasonable- also fails. Neither case establishes that models always must be classified as employees as a matter of law. Smith held only that an employee-there, a hair model-is "discharge[d]" for purposes of section 203's waiting time penalty provisions after the completion of a specific job assignment. (Smith, supra, 39 Cal.4th at p. 81.) The Smith court did not analyze the model's employment status because the employer moved for summary judgment only on the ground that no "discharge" had occurred, and it conceded the model was an employee for purposes of the motion. (Ibid.)
In Zaremba, the court held that the plaintiff-model was an employee entitled to waiting time penalties from the defendant-photographer primarily because of the degree of control the photographer exercised over him. (Zaremba, supra, 113 Cal.App.3d Supp. at p. 5.) But Zaremba is not, as Malinaric contends, a binding "decision by the California Supreme Court." It is a decision of the appellate department of the superior court. (Ibid.) Moreover, "Zaremba contained stronger indicators of an employment relationship in respects other than control over work," than those present here, including that "the plaintiff in Zaremba was engaged in the photographer's primary business (photography), [and] was paid at an hourly rate." (Hill, supra, 32 F.4th at p. 822, citing Zaremba, supra, 113 Cal.App.3d Supp. at p. 4.)
Thus, although Smith and Zaremba may support classifying Malinaric as an employee, they do not establish that Careismatic's independent contractor defense is objectively unreasonable. (See Hill, supra, 32 F.4th at p. 823 [although Smith and Zaremba "may cast doubt on the strength" of Walmart's independent contractor defense, "they do not defeat Walmart's good-faith argument"]; Cal. Code Regs., tit. 8, § 13520, subd. (a) ["[t]he fact that a defense is ultimately unsuccessful will not preclude a finding that a good faith dispute did exist"].)
We note that, in 2019, the Legislature enacted section 201.6, which defines as a "[p]rint shoot employee" any "individual hired for a period of limited duration to render services relating to or supporting a still image shoot, including film or digital photography, for use in print, digital, or internet media." (§ 201.6, subd. (a)(1).) Malinaric, however, does not contend that this section applies retroactively to his work at the August 2017 photo shoot. Nor, as we discuss earlier, can later legislation bear on whether an earlier action was taken in good faith.
3. The Record Contains No Evidence of Bad Faith
Finally, we conclude that Careismatic's reasonable independent contractor defense "is not marred by bad-faith conduct." (Hill, supra, 32 F.4th at p. 817.) "For example, there is no evidence that [Careismatic] knew that [Malinaric] was an employee but decided to take longer than it should have to pay [him], or that [Malinaric] ever brought up late payment issues before filing suit." (Ibid.) To the contrary, Careismatic has offered undisputed evidence that it acted in good faith on its belief that Malinaric was an independent contractor by promptly paying for his services upon receiving Model Two's invoice. And Malinaric points to nothing in the record indicating that Careismatic has" 'presented [its defense] in bad faith.'" (Diaz, supra, 23 Cal.App.5th at p. 868.)
Accordingly, we conclude that Careismatic's good-faith independent contractor defense precludes the finding of willfulness required to award Malinaric waiting time penalties under section 203.
In light of this conclusion, we need not resolve whether the trial court erred in determining that Malinaric performed his work at the August 2017 photo shoot as an independent contractor. We also need not address Malinaric's arguments that talent agencies do not employ models; that employees cannot waive their right to timely payment under the Labor Code; and that "ignorance of the law cannot support a finding that an employer's failure to timely pay wages was not willful." (Boldface omitted.)
DISPOSITION
We affirm the August 10, 2021 judgment. Careismatic is awarded its costs on appeal.
We concur: CHANEY, J., WEINGART, J.