NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 17 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALEY RAE PAVILLARD, an individual, No. 22-55442

Plaintiff-Appellee, D.C. No. v. 2:21-cv-01306-RGK-E

IGNITE INTERNATIONAL, LTD., a Wyoming limited company, MEMORANDUM*

Defendant-third-party- plaintiff-Appellant,

v.

JOSH RYAN, DBA Josh Ryan Photography;

L.A. MODELS, INC.,

Third-party-defendants.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted October 20, 2023 Pasadena, California

Before: PAEZ and H.A. THOMAS, Circuit Judges, and R. COLLINS,** District

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

Ignite International, Ltd. (“Ignite”) appeals the district court’s denial of its

renewed motion for judgment as a matter of law (“JMOL”). We have jurisdiction

under 28 U.S.C. § 1291. We review de novo a district court’s denial of a renewed

motion for JMOL. Harper v. City of Los Angeles, 533 F.3d 1010, 1021 (9th Cir.

2008). A renewed motion for JMOL should be denied if the jury’s verdict “is

supported by substantial evidence, which is evidence adequate to support the jury’s

conclusion, even if it is also possible to draw a contrary conclusion.” Id. (quoting

Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002)). We affirm.

1. Ignite argues that Caley Rae Pavillard presented insufficient evidence to

support the jury’s finding that she was Ignite’s employee. Under California law,

workers are presumed to be employees unless a hiring entity can show:

(A) The person 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) The person performs work that was outside the usual course of the hiring entity’s business. (C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

Cal. Lab. Code § 2775(b)(1). All three elements must be satisfied to defeat the

** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation.

2 presumption that a worker is an employee. Id.

There was substantial evidence to support the jury’s conclusion that

Pavillard was an employee because she was not free from Ignite’s control or

direction in connection with the work she performed for Ignite. Pavillard testified

that Ignite set the time for the photoshoot and determined when the shoot was to

end. Pavillard also testified that she could not leave for breaks, perform other

work, or control her physical appearance during the shoot. Although the record

also contains evidence that could have supported a contrary finding, this is not

sufficient to overturn the jury’s verdict. To prevail, Ignite needed to show that the

evidence permitted “only one reasonable conclusion, and that conclusion [was]

contrary to the jury’s verdict.” Harper, 553 F.3d at 1021 (internal quotations

omitted). Ignite did not make that showing.

2. Ignite argues that it “was entitled as a matter of law to assert a good faith

defense” and that the district court erred when it failed to recognize this defense to

the alleged willfulness of Ignite’s conduct pursuant to California Labor Code

§ 203. The presence of a good-faith dispute, however, is a question of fact. See

Maldonado v. Epsilon Plastics, Inc., 22 Cal. App. 5th 1308, 1332, 232 Cal. Rptr.

3d 461, 478 (Cal. Ct. App. 2018). As discussed, there was substantial evidence to

support the jury’s conclusion that Pavillard was an employee. The district court

correctly determined that there was sufficient evidence to support the jury’s

3 conclusion that Ignite had notice of its obligation to pay Pavillard and willfully

failed to do so.

Moreover, to the extent Ignite attempts to argue that the jury was not

properly instructed, the parties did not request a good-faith dispute instruction in

their proposed jury instructions. Ignite did not object to the jury instructions that

were given, and it does not meaningfully advance on appeal the argument that the

jury was not properly instructed. Accordingly, any challenge to the willfulness

determination is waived. See Patel v. City of Los Angeles, 72 F.4th 1103, 1106 n.5

(9th Cir. 2023) (declining to review an issue when a plaintiff did not argue

“specifically and distinctly” that the district court erred).

AFFIRMED. 1

1 Pavillard’s motion to take judicial notice (Dkt. No. 29) is DENIED.

4