FILED

NOT FOR PUBLICATION APR 27 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

AMANDA SERINO; ALBERTO No. 08-56940

CASTELLANOS; DAVE HAWK;

VANCE LORENZINI; BRUCE MIYAKI; D.C. No. 2:07-cv-05029-VBF-

DUSTIN POULTON; JASON SMITH; FFM

KENNETH VENABLE; TAD YENA

WINE,

MEMORANDUM *

Plaintiffs - Appellants,

v.

PAYDAY CALIFORNIA, INC., a California Corporation; RON RENAUD, an individual; MICHAEL ROMERSA, an individual,

Defendants - Appellees,

and

STEVE CHASE, an individual,

Defendant.

Appeal from the United States District Court

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 for the Central District of California Valerie Baker Fairbank, District Judge, Presiding

Submitted April 6, 2010 ** Pasadena, California

Before: PREGERSON and THOMPSON, Circuit Judges, and GRAHAM, Senior District Judge.***

The plaintiffs-appellants contend they were paid late or not at all for services

rendered in the production of television commercials in 2003 and 2004. They filed

suit against Payday California, Inc. (“Payday”) and its president Ron Renaud,

among others, alleging various violations under the Fair Labor Standards Act

(“FLSA”) and California law. The district court dismissed the claims as to Payday

and Ron Renaud on the ground that no reasonable trier of fact would find that

Payday or Renaud was the plaintiffs’ “employer.” We have jurisdiction under 28

U.S.C. § 1291, and we AFFIRM.1

I. “Employer” Status Under California’s Labor Code and FLSA

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable James L. Graham, Senior United States District Judge for the Southern District of Ohio, sitting by designation. 1 See our decision in Dianda v. PDEI, Inc., No. 08-56981, slip. op. (9th Cir. 2010), which raises the same issues.

2 The essence of the test for “employer” status under the California Labor

Code is “whether the principal has the right to control the manner and means by

which the worker accomplishes the work.” Estrada v. FedEx Ground Package

Sys., Inc., 64 Cal. Rptr. 3d 327, 335 (Cal. Ct. App. 2007). FLSA’s test is broader,

asking whether the “individual [here, Payday] exercises control over the nature and

structure of the employment relationship.” Boucher v. Shaw, 572 F.3d 1087, 1090-

91 (9th Cir. 2009) (quotation marks omitted).

The plaintiffs have put forth no evidence that Payday had the right to control

the details of the plaintiffs’ work or that Payday exercised control over their

employment relationship. Instead, the plaintiffs point to several documents that

arguably identify Payday as the “employer”–pay stubs, W-2 forms, and form

contracts entered into by payroll companies closely associated with Payday.

However, “[t]he parties’ label is not dispositive and will be ignored if their actual

conduct establishes a different relationship.” Estrada, 64 Cal. Rptr. 3d at 335-36.

See also Real v. Driscoll Strawberry Assocs., Inc., 603 F.2d 748, 755 (9th Cir.

1979) (“Economic realities, not contractual labels, determine employment status

for the remedial purposes of the FLSA.”).

The plaintiffs also contend that Payday paid wages from its own funds and

maintained payroll records. Although this evidence might be relevant in assessing

3 employer status, Bonnette v. Cal. Health & Welfare Agency, 704 F.2d 1465, 1470

(9th Cir. 1983) (listing several factors for evaluating joint employer status under

FLSA), these allegations, alone, are not sufficient to establish such status. Indeed,

these actions are explainable as part of the payroll service provided by Payday.

See, e.g., Moreau v. Air France, 356 F.3d 942, 950-52 (9th Cir. 2004) (determining

that Air France was not a joint employer of contracted service workers where Air

France’s involvement was to ensure compliance with regulatory requirements).2

II. “Employer” Status by Estoppel

The plaintiffs contend that Payday is equitably estopped from denying its

employer status. This argument fails because the plaintiffs cannot reasonably

claim ignorance of the fact that Payday was not their employer. See Laird v.

Capital Cities/ABC, Inc., 80 Cal. Rptr. 2d 454, 464 (Cal. Ct. App. 1998). The

plaintiffs were hired by the production companies, received instruction from

production company personnel, and communicated solely with the production

company, except as to ministerial payroll matters.

2 The plaintiffs cite to the Internal Revenue Code, the Code of Federal Regulations, and court opinions interpreting these provisions; however, these sources do not bear on the definition of “employer” under either the FLSA or California law.

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CONCLUSION

Because Payday cannot be found to be the plaintiffs’ “employer” under the

FLSA or the California Labor Code, we AFFIRM the district court’s dismissal of

those claims against Payday. We also AFFIRM the district court’s dismissal of the

FLSA claims against Ron Renaud, who is only implicated because of his

involvement with Payday. Additionally, because the plaintiffs’ claims under

§ 17200 of the California Business and Professions Code are predicated upon

violations of the California Labor Code, we AFFIRM the district court’s dismissal

of those claims as well.

AFFIRMED.

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