WOOD, SMITH. HENNING HERMAN LLP Attorneys at Law 10960 WILSHIRE BOULEVARD. 18'" FLOOR LOS ANGELES, CALIFORNIA 90024-3804 TELEPHONE 310-461-7600 9 11'. '71ORIGINAL Brian L. Hoffman (State Bar No. 150824) Su erio?g?tEflg l0""3 1 9 ngeles James A. Chortaman (State Bar No. 292891) . com WOOD, SMITH, HENNING BERIIVIAN LLP APR .2 2018 10960 Wilshire Boulevard, 18th oor - 811 . Los Angeles California 90024 3804 ?a L'Rinixuecunveminer/Clerk of C00 Phone: 310-481-7600 0 Fax: 310-481-7650 3! 6w 1 \T-y-Depun . gnp- pa- Attorneys for Defendants, NEA DELIVERY, AMAZON.COM, APOSTOLOS MAGULIOTIS (ERRONEOUSLY NAMED AND SERVED AS APOSTOLOS and AMAZON LOGISTICS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT AARON YOUNG, Case No. BC621762 [Assigned for All Purposes to Judge Patricia Plaintiff, D. Nieto, Dept. 2] v. DEFEN-DANTS AMAZON.COM INC. AND AMAZON LOGISTICS, NEA DELIVERY, AMAZON.COM, REPLY TO OPPOSITION APOSTOLOS MARGUIOTIS, and TO MOTION FOR SUMMARY DOES 1 through 100, inclusive, JUDGMENT Defendants. [Filed Concurrently with Reply to Plaintist Opposition to Defendants' Separate Statement of Undisputed Material Facts; Reply to Plaintiffs Separate Statement of UndiSputed Material Facts in Support of Opposition to Motion for Summary Judgment, Objections to Plaintiff's Evidence, and [Proposed] Order Re: Defendant's Evidentiary Objections] Date: - April 27, 2018 Time: 1:30 pm. Dept: 2 Reservation No.: 170725237206 Action Filed: May 26, 2016 Trial Date: September 11, 2018 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: Defendants, AMAZON.COM, INC. and AMAZON LOGISTICS, INC., (hereinafter DEFENDANTS AMAZON.COM, INC. AND AMAZON LOGISTICS, REPLY TO OPPOSITION T0 MOTION FOR SUMMARY JUDGMENT l? WOOD, SMITH, HENNING 8. BERMAN LLP Attorneys at Law 10960 WILSHIRE BOULEVARD. 18'" FLOOR LOS ANGELES. CALIFORNIA 90024-3804 TELEPHONE 310-481-7600 0 FAX310-481-7650 h. v} 431?. 1*1? y- 525:; \DOO'xlam-sometimes collectively referred to as "Amazon Defendants") hereby submit the following Reply to Plaintiffs Opposition to the Amazon Defendants? Motion for Summary Judgment. MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In opposition to the Amazon Defendant's Motion for Summary Judgment, Plaintiff has attempted to allege that the nature of the relationship between Amazon.com, Inc., Amazon Logistics, Inc., NBA Delivery, LLC, and Apostolos Maguliotis lends itself to the inference that at the time of the incident, Apostolos Maguliotis was working as an agent and/or employee of the Amazon Defendants. Plaintiff?s Opposition relies on the repetitive and ineffective argument that the Amazon Defendants exercised some control over the means by which Apostolos Maguliotis was to perform his job duties, thereby creating a triable issue of material fact as to whether Apostolos Maguliotis was an agent and/or employee of the Amazon Defendants. . As set forth below, the Amazon Defendants can exercise a certain measure of control for a de?nite and restricted purpose without incurring the responsibilities, or acquiring the immunities of a master, with respect to the person controlled. Based on all of the facts, the only inference that can be drawn is that Apostolos Maguliotis was an independent contractor rather than an employee or agent of the Amazon Defendants. Accordingly, Plaintiff has failed to raise a triable issue of material fact, and the Amazon Defendants? Motion for Summary Judgment should be granted. 11. PLAINTIFF HAS FAILED TO ESTABLISH THAT A TRIABLE ISSUE OF MATERIAL FACT EXISTS Plaintiff has failed to establish that a triable issue of material fact exists. The general rule-to which there are numerous exceptions-is that the hirer of an independent contractor is not liable to third parties for the contractor's negligence. (F onseca v. County of Orange (1972) 28 Cal. App. 3d 361, 365.) Whether a person is an employee or an independent contractor is ordinarily a question of fact, but if from all the facts only one inference may be drawn it is a question of law. (Brose v. Union- Tribune Publishing Co. (1986) 183 Cal. App. 3d 1079, 1081.) Here, as in Millsap v. Federal Express Corp. (1991) 15 Cal.3d 600, 674, the only inference which can be raised from the facts is that Apostolos Maguliotis was at all times, and acted at all times, as an employee of NBA Delivery, LLC -2- DEFENDANTS AMAZONCOM, INC. AND AMAZON LOGISTICS, REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT WOOD. SMITH. HENNING 8: HERMAN LLP Attorneys at Law 10960 WILSHIRE BOULEVARD. 13?? FLOOR LOS ANGELES. CALIFORNIA 90024-3504 TELEPHONE 310-481-7600 0 FAX 310-481-7650 as sir-r: n. an law-independent contractor with regard to Amazon.com, Inc. and Amazon Logistics, Inc. The most signi?cant factor in determining the existence of an employer-independent contractor relationship is the right to control the manner and means by which the work is tobe performed. (Millsap v. Fed. Express Corp. (1991), 227 Cal. App. 3d 425, 431.) If control may be exercised only as to the result of the work and not the means by which it is accomplished, an independent contractor relationship is established. Id. at 431. The Court in Millsap went further, stating that, "We do not view the facts that NCE instructed Pence to 'be careful' or that NCE demanded that he show that he in fact delivered the packages by submitted con?rmation forms, as indicating that NCE exercised the type of control over Pence's actions as to make him its employee. Id. at 432. Nor do we see that any of the other facts asserted by NCE raise a triable issue as to whether Pence was anything but an independent contractor compensated on a piecemeal basis for deliveries made. When one person is per?ering work in which another is bene?cially interested, the latter is permitted to exercise a certain measure of control for a de?nite and restricted purpose without incurring the responsibilities or acquiring the immunities of a master, with respect to the person controlled. (emphasis added.) Even one who is interested primarily in the result to be accomplished by certain work is ordinarily permitted to retain some interest in the manner in which the work is done without rendering himself subject to the peculiar liabilities which are imposed by law upon an employer. (emphasis added.) (Bohanon v. James McClatchy Pub. Co. (1936) 16 Cal.App.2d 188, 199; and see, also, Fleming v. Foothill?Montrose Ledger (1977) 71 Cal.App.3d 681, 686.) A similar example arose in Bohanon v. James McClatchy Pub. Co. (1936) 16 Cal.App.2d 188, 199, wherein a newspaper deliverer was deemed an independent contractor notwithstanding that the newspaper company de?ned his route; prohibited him from distributing any other newspaper or periodical within his designated territory; demanded that he deliver the papers at the earliest possible time; prohibited him from selling, assigning or transferring any part of his route to another; use his best efforts to increase circulation; or follow a number of other like directions or prohibitions. I As stated above, plaintiff?s Opposition exclusively relies on the repetitive and ineffective DEFENDANTS AMAZONCOM, INC. AND AMAZON LOGISTICS, REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT WOOD. SMITH, HENNING 8. BERMAN LLP in FLOOR LOS ANGELES. CALIFORNIA 90024?3604 TELEPHONE 310-481-7600 0 Attorneys at Law 10960 WILSHIRE BOULEVARD. 18 all 1. Free" Hc'r. LII-BU) @90qu argument?that the Amazon Defendants exercised control over some of the means by which Apostolos Maguliotis was to perform his duties. Among this control, was the fact that Apostolos Maguliotis 'showed up to work at a warehouse facility not owned by Delivery, LLC, used the DORA handheld scanning device, and delivered packages to customers containing goods ordered from Amazon. Simply put, the fact that Amazon Logistics, Inc. exercised a certain measure of control to ensure the end result of Apostolos Maguliotis' work the delivery of packages) does not create a triable issue of material fact. The bottom line is that Apostolos Maguliotis was employed by NBA Delivery, LLC as a.delivery driver and he worked out of the distribution center known as in Inglewood, California, where he would retrieve his packages for delivery and begin his delivery route. The delivery routes for NBA Delivery, LLC delivery drivers were set by Amazon Logistics, Inc., but the drivers could elect to take different delivery routes on their own volition. Per its ordinary course of business, and its custom and practice, NEA Delivery, LLC screened, hired, trained, employed, and paid Apostolos Maguliotis to work as a delivery driver. NEA Delivery, LLC paid Apostolos Maguliotis as a delivery driver on an hourly basis, based on the time he would clock-in and clock-out. At all times, and on September 27, 201 5, NBA Delivery, LLC had its own liability insurance to cover the negligent acts of its employees, which included, but was not limited to, any negligent acts by Apostolos Maguliotis. It is abundantly clear that the AmazOn Defendants should not be named parties in this litigation and that Apostolos Maguliotis was an employee of NBA Delivery, LLC at the time of the incident that is the subject of this incident, and certainly not an employee or agent of the Amazon Defendants. Therefore, the Amazon Defendants? Motion for Summary Judgment should be granted. 111. THE DECLARATION OF RICHARD NYHAN CONTAINS ADMISSIBLE EVIDENCE THAT PROPERLY CHARACTERIZES THE RELATIONSHIP BETWEEN THE PARTIES 'The declaration of Richard Nyhan contains admissible evidence that properly characterizes the relationship between the Defendants in this case. With regard to Motions for Summary Judgment, California Code of Civil Procedure 437c(b)(1) states, in pertinent part, as follows: LEGAL: lO390?00l918969718.l DEFENDANTS AMAZON.COM, INC. AND AMAZON LOGISTICS, REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT WOOD. SMITH. HENNING 8. BERMAN LLP Attorneys at Law 10960 BOULEVARD. 18"" FLOOR LOS ANGELES. CALIFORNIA 90024-3804 TELEPHONE 310-481-7600 0 FAX 310-461-7650 "The motion shall be supported by af?davits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken." Throughout Plaintiffs Opposition, Plaintiff repeatedly claims that the declaration of Richard Nyhan in Support of the Amazon Defendants' Motion for Summary Judgment is inadmissible. However, Plaintiff fails to establish valid legal grounds as to why the declaration is inadmissible, other than invalid arguments that Mr. Nyhan lacks personal knowledge and there is insuf?cient foundation. The reality, which cannot be re?ned, is that Mr. Nyhan drafted his declaration based on his own personal knowledge of the relationship between NEA Delivery, LLC, the Amazon Defendants, and Apostolos Maguliotis, and his experience as the General Manager of NBA Delivery, LLC for over three years. As the General Manager of NBA Delivery, LLC, Mr. Nyhan handles employee oversight and development, oversees recruiting, and works withNEA Delivery, LLC's professional employer organization. In addition, he is responsible for ensuring packages are delivered as scheduled, ensuring the payroll is up-to-date, ensuring the ?eet vehicles are up-to-date, and reviewing metrics. Moreover, as part of his job responsibilities, he develops account management strategies and is in charge of the account management for Amazon Logistics, Inc. and is privy to all contract negotiations and contractual relations between NEA Delivery, LLC and Amazon Logistics, Inc. He is familiar with the contractual relationship between NEA Delivery, LLC and Amazon Logistics, Inc., both currently, and at all times relevant to this lawsuit. The legal grounds upon which Plaintiff attempts to refute the evidentiary legitimacy of Mr. Nyhan's declaration are improper. Accordingly, Mr. Nyhan's declaration contains valid, admissible evidence and the information contained therein should not be stricken. In -5- DEFENDANTS AMAZONCOM, INC. AND AMAZON LOGISTICS, REPLY TO PLAINTIFF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT WOOD. SMITH, HENNING HERMAN LLP Attomeys at Law 10960 WILSHIRE BOULEVARD. 18'? FLOOR LOS ANGELES. CALIFORNIA 90024?3804 TELEPHONE 310-481-7600 0 FAX 310-481-7650 {In rii'r'r. w. 41?. haIV. CONCLUSION Based upon the foregoing, the Amazon Defendants respectfully request this Court grant their Motion for Summary Judgment Or, in the alternative, Summary Adjudication and enter judgment in their favor and against Plaintiff. DATED: April 20, 2018 8.1 76NING BERMAN LLP 1/ ig?Ath HOFFMAN ES A. CHORTANIAN Attomeys? or Defendants, NEA DELIVERY, AMAZONCOM, APOSTOLOS MAGULIOTIS (ERRONEOUSLY NAMED AND SERVED AS APOSTOLOS and AMAZON LOGISTICS, INC. -6- DEFENDANTS AMAZONCOM, INC. AND AMAZON LOGISTICS, REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT WOOD, SMITH, HENNING BERMAN LLP Attorneys at Law 10960 WILSHIRE BOULEVARD. 18?? FLOOR Los ANGELES. CALIFORNIA 90024?3304 TELEPHONE 310-481-7600 0 sumo-4814650 (:11 {as 47?? $52-31 Mr. 016? sonoxicxmaw'm PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of eighteen years and not a party to the within action. My business address is 5000 Birch Street, Suite 8500, Newport Beach, CA 92660. On April 20, 2018, I served the following document(s) described as DEFENDANTS AMAZON.COM INC. AND AMAZON LOGISTICS, REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT on the interested parties in this action as follows: Eric Bryan Seuthe, Esq. Law Of?ces of Eric Bryan Seuthe Assoc. 445 S. Beverly Drive Beverly Hills, CA 90212 Tel: (310) 277-8020 Fax: (310) 551-1644 Attorneys for Plaintiff, Aaron Young BY FEDEX: I deposited such document(s) in a box or other facility regularly maintained by FedEx, or delivered such document(s) to a courier or driver authorized by FedEx to receive documents, in an enveIOpe or package designated by FedEx with delivery fees paid or provided for, addressed to the person(s) being served. I-declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on April 20, 2018, at Newport Beach, California. 1' an; .Christopheh-L Ee?ng . LEGAL: 0390-0019/8969718. -7- DEFENDANTS AMAZONCOM, INC. AND AMAZON LOGISTICS, REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT