1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 NANCY BARR, Case No.: 19-cv-1887-MMA (MDD) 11

NOTICE AND ORDER REQUIRING

12 Plaintiff, SUPPLEMENTAL BRIEFING RE: v. DEFENDANT’S MOTION FOR 13 SUMMARY JUDGMENT

LABORATORY CORPORATION OF

14 AMERICA HOLDINGS, et al., [Doc. No. 26] 15 Defendants. 16 17 18 On March 22, 2021, Defendant Laboratory Corporation of America Holdings 19 (“Labcorp”) filed a motion for summary judgment. Labcorp seeks summary judgment on 20 all four of Plaintiff’s claims. In briefing the first cause of action—a claim for retaliation 21 under California Labor Code § 1102.5(b)—Labcorp assumed, for the sole purpose of 22 summary judgment, that Plaintiff was an employee of Labcorp. See Doc. No. 26 at 17 23 n.2.1 That said, the parties dispute Plaintiff’s status as an employee versus an 24 independent contractor. Compare id.; with Doc. No. 47 at 9. 25 The distinction is important, and the issue is ripe for adjudication. As a threshold 26 matter, a claim for retaliation under California Labor Code § 1102.5(b) can only be 27 28 1 || brought by an employee against their employer. See, e.g., Bennett v. Rancho Cal. Water 2 || Dist., 35 Cal. App. 5th 908, 921 (2019) (explaining that a “prerequisite to asserting a 3 || violation of Labor Code section 1102.5 is the existence of an employer-employee 4 || relationship at the time the allegedly retaliatory action occurred”) (internal citation and 5 || quotation marks omitted). Whether a person is an employee or an independent 6 || contractor—when the underlying facts concerning the relationship are undisputed—is a 7 || question of law. See Alexander v. FedEx Ground Package Sys., 765 F.3d 981, 988 (9th 8 || Cir. 2014); see also Ruiz v. Affinity Logistics Corp., 754 F.3d 1093, 1099 (9th Cir. 2014) 9 || (citing S.G. Borello & Sons, Inc. v. Dep't of Industrial Relations, 48 Cal. 3d 341 (1989). 10 Having reviewed the parties’ briefing and respective evidence, the key underlying 11 || facts regarding the nature of Plaintiff's work for Labcorp appear to be undisputed, i.e., 12 || the terms of the services agreement, Plaintiff's responsibilities, and Labcorp’s control. 13 || The only issue is how those facts relate to the law, namely, whether Plaintiff qualifies as 14 employee under the Borello factors. See S. G. Borello & Sons, Inc. v. Dep’t of Indus. 15 || Relations, 48 Cal. 3d 341, 354 (1989). Presumably due to Defendant’s limited 16 concession regarding Plaintiff's status, the parties have not briefed this issue. 17 Accordingly, the Court concludes that supplemental briefing is warranted and 18 || DIRECTS the parties to file supplemental briefs, not to exceed ten (10) pages, on the 19 issue of Plaintiff's status as an employee or independent contractor, on or before 20 || August 13,2021. The Court will not accept additional evidence and the parties are 21 || directed to rely on and provide accurate citations to the evidence previously submitted on 22 ||summary judgment. 23 IT IS SO ORDERED. 24 || Dated: August 5, 2021 25 Mitek MM - Lilt 26 HON. MICHAEL M. ANELLO 57 United States District Judge 28