and that she was setting forth the reasons why she has a trial or a fact was ruling the way she was ruling but this was a summary judgment motion not a trial on the merits and i think that when you look at the evidence that was presented in opposition to the summary judgment construing that as the court was required to do in light most favorable to my client the party opposing the motion that evidence was more than ample to support a finding that there was an employer employee relationship and i think that district court simply ignored the evidence that we presented to bolster her decision that it wasn't enough as a matter of law and that was her error on a summary judgment destructive as enunciated by the california supreme court martinez versus colmes to employ then under the he sees definition has three alternative definitions i exercise control over the wages hours or working conditions or to suffer or permit to work or to engage thereby creating were joint employees at both and prize in drilled yeah that was the allegation that they were both employers under the law that employers yes and there's no question that that there was it was an employee one of them read and we settled with that enterprise we settle with enterprise and the reason that you want him to be a joint employee of drill tech as well is what why because they have the money enterprise who has nobody single owner you know there they don't have the ability to to remedy the violations that occurred and those violations occurred under drill tax watch so so so you do say as long as the defendant controlled any one of those things you mention they're an employer and that's what martinez court holds their alternative definitions were the by the way i like to reserve five minutes i thank you i apologize for not doing that earlier so there are alternative definitions you exercise control over the wages hours or working conditions and then the second test suffer permit to work which means you have the ability to prevent them from even being on your side and clearly we have evidence for both in terms of the control of the working conditions and hours we have test we have testimony in the record with respect to the issue of control is set the drill trick company men had the power to tell willis what to do and what not to do what the stop doing if he made a recommendation it is certain mud fluids they could say no we're not going to do it do this if that's not controlling the work working conditions of the mud man what is  and what to do and how to do it it's direct supervision it now and in terms of the the elements of the hours we have testimony about when he was told to do it how how to do it to add more that they they had the power to and did schedule willis to do other work when to come down to the well they could wake him up and did wake him up in the middle of the night and said no we'll get an emergency come down and do it did they call him directly yes he was on he was on site in a trailer and so he was basically there twenty four seven and they could call him down whenever they wanted to and did if you wanted to leave the premises to get their permission and they could say no we want you here so that certainly control of the working conditions if they can say when you can leave when what when you you know when you can sleep when you have to wake up and do what we tell you to do enterprise but they could basically say enterprise we don't want him on any of our wells so he's big basically blackballed in the case law says if you can do that you have the ability  drill tech is hired by lynn to basically be the operator of the drill site they're in charge of every aspect of the drill site all the subplots read the machinery and dig the holes and exactly there is that they ma contractor in this case typically you know you don't have a general contractor telling a carpenter ok to use a two by four not a four by six or a two by six or eight by twelve to put his framing up but that's exactly what happens here and we put in the record when my guy would make recommendations as to the quality or the consistency of the mud the drilling fluids food the company man drill techs guy would say no i don't want you to do that i want you to do this that's direct working condition control and supervision you can get more than that that's the same thing but and i'm trying to end it to something that i used to know something about they don't know anything about anyone but about the construction site where you have a general contractor in this country and the general contractor tells the subcontractors when they're supposed to do their work the plumbing contractor doesn't treat people on until their general contractor says that you come but those ploy the plumbers of the plumbing some contractor working for the plumbing some subcontractors working for the general control that's the formality of the situation but the law says you look through formalities to substance and that's why the three part  c recognized by the court in martina's says that you don't have to have a formal you're the w two employee who gets who if that's the only employer right know the court said you look to exercise control over the wages hours or working conditions it doesn't say you have to be actually receive your paycheck right it's a substantive thing it's substance not form and that's what the whole point is otherwise you could have a general contractor basically minute lead in micromanaging every sub which is exactly what happened as alleged in the evidence shows in this case that the  general so to speak was supervising every aspect but didn't leave it to ok you handle yours we're not going to get involved with this thing they were intimately involved and told our guy what to do what fluids to use what  tractors on the site there probably were but there that wasn't the focus of our kids i have four minutes and twenty five seconds all reserved all right thank you good morning your honour's may please accord or call on behalf of the defendant and respondent realtek your honor i think your focus on the workplace setting is an important one and it is in the record what is actually going on at a drill site as a let me clarify a little bit there is one owner operator and that owner operator as you said contracts with enterprise to provide drilling mud services engineering services there are multiple other tractors in the record at least six or seven all doing distinct tasks tool shape or drill drill runner different categories all have to work together the well site coordinator which is my client drill tech is hired directly by the owner operator so we have a situation here and in the contract what their responsibilities are and this is what the record bears out they are basically like a traffic warden or they coordinate the different functions that go on at the site and they make sure that things are on schedule and that is their job now the fact is in this case the plaintiffs are trying to create an employment relationship in their scenario that i have never seen in any case law under a joint employment arrangement and that is because there is one critical issue that's missing here and that is there is no relationship between drill tech and enterprise there is no contract there is no parent subsidiary relationship they are completely separate peer compan and the only reason they happen to work together is because they both get hired by lynn berry on certain drill sites and happen to be working there together so drill tech is eric ordinary coordinating functions and enterprises they're doing it's so it's so  and the suck contractor so to speak in this in this situation something they're both they're both separate sub contractors exactly and the reason why that is important your honour's is because there's a critical missing link in plaint argument we says well the mud men were told what to do or they were told when to do this and by the way plaintiffs mr willis his declaration really is inconsistent with a large portion of his deposition testimony which clearly set out his his work functions and really explained it more as a collaborative type environment which is what it is he would do is test in his testimony said it was you alone who who knew how to run your test because your personal knowledge yes and it was you alone who knew how to draw the samples for the mud testing yes and you alone created the reports because your personal knowledge yes and then he goes on to explain that we would discuss with the with the well coordinator as well as other subcontractors the tool shape or the drill bit operator how is this working what's going on what's the best way to do this so now mr willis in his declaration tries to transform of those conversations into i was being told what to do by the well site coordinator and the reason i know i was being told what to do is because he was the boss man he was the head guy it's a circular argument it's all semantics and we know it's semantics is because there's no authority and that's the important part there's no authority either contractual or otherwise for the well state coordinator to do anything to mr willis other then report things to the owner operator and that's actually within the contract of the owner operator lynn berry an enterprise that the owner operator has the ability to remove enterprise people from the site but that's it and of course your honor drill tech has no ability to hire fire discipline demote or otherwise discipline in any way the enterprise mud men so we have a situation here where the definition of to be an employee under california law under the martina's test which which poses counsel set forth are being stretched and construed in such an unrealistic way that clearly case law did not anticipate it and we know that just from a common sense perspective because if you follow this to its logical extreme you basically have any client service relationship becoming an employer one where a client is over perhaps i know i have it in my field of work an overbearing client telling an associate what to do all the time calling five times a day i want the brief written this way  i want you available at this point in time what's to distinguish that from this well i'll tell you it's even it's even more of a closer to an employer relationship in that case because there actually is a contract so i was kind of in my mind thinking well what's a what's an analogy distinct real techs contract is basically to coordinate the war part of it's work is to see when  fire and again at the most what plentiful rup will say to is this idea that you can run someone off the site now this is speculative there's no evidence this is ever actually done and who that might have been done to but now mr willis  claiming well drill to could run people off the site and again that's just a reporting function to the operator who then has the ability to do what they're going to do or the direct employer is going to have the ability to do what they're going to do much like a law firm would do if a client complained about an associates performance so i think that's a lynchpin here and the case law actually supports this interpretation if you look at martinez yes those that the test the tests that were set out in the court very carefully went through numerous factors here so to exercise control over the wages hours or working conditions and in martina's that was interpreted to mean authority to hire fire train in the performance of job duties determine the rate and manner of pay and negotiate pay rates and set the hours for the employees and here we have none of those scenarios in it's undisputed in the record that enterprise alone hired and fire willis enterprise alone the term the rates of pay paid him and provided benefits to him enterprise assigned him to the specifics well sites that he worked at he didn't just work at sites where real tech work he worked at other sites owned by other owner operators so it's so enterprise is a self sustaining employer taking in a different job sites enterprise alone control the work schedule of willis that's a deposition say of mr wilson self said they control my work schedule  they drill tech could not hire fire discipline willis enterprise alone trained willis willis admitted there was no training from drill tech enterprise alone provided tools for to willis in order to do his job he says there was other items of equipment brought to the site but he doesn't claim that any of the indoor actually used by him the direct supervisor of willis was from enterprise and that wills admitted that in his deposition and of course enterprise has no documentation whatsoever about personal records payroll records anything else associated with mr willis or with and we're trying to counter him i'm sorry we're talking to california we're time a california right law right now that's the martinez case the seminal supreme court decision the second prong of that is the sufferer or permit standard and that again hinges on it's not in a enough to just know someone is working and to allow it otherwise you can see the definition becomes twos the key there and martinez says this is it hinges on the ability to force or prevent someone from working and again here realtek did not have that ability they simply didn't know there was nothing in the condo in a well there was no contract for them to have any power and again a reporting relationship does not turn a what is otherwise a pure relationship into a joint employment one and if you actually look at the facts of the martinez case it's helpful as well because in that case there was more i'll submit there were more incidence of control in martina's in summary judgment was granted in that case than ours and in that case there was a farming operation that was deemed to be with the will admitted to be the employer of farmers working in a strawberry field and the workers were claiming that  the produce merchants that were contracted with by the farmer were it was a joint employer of the farm so martinez went through the analysis in that case and looked at the undisputed facts again looking at whether there was control over the wages hours or working conditions and whether the workers were suffered and permitted to work by the produce emerge merchants and in that case the protos merchants had contracts with the farmer and they did have some control  over the wages to the extent that they relied on the merchants for payments that's what the martinez case said the protos mergence merchants actually made assurances to the farm workers that they were making payments to the farmer to encourage them to keep working and on certain situations the merchants were in the fields merchant represented as were in the fields on harvesting days explaining how they wanted the strawberries picked how they wanted him picked and they demonstrated the packing style to those workers they would also check the pack strawberries to make their own compliance and then would talk to counsel evaluate discipline however you want to describe it talk to the farm workers about how they need to be picking those and they would actually talk directly to the labor laborers pointing out mistakes in the packing or if there were rotten or green berries in the packing supreme court upheld summary judgment in that case for the pros mercians it shows you that there is that the control element is central and in that case at the end of the case the court in looking at this the sufferer and permit standard indicated indicated that the the fact that the protests merchants didn't have the right to direct the laborers work was central whether or not the there was a perceived direction or not because then we go down a slippery slope i think as your owners can see in anyone can tell anyone else what to do maybe it's a request maybe it's a recommendation we also cited in the case law the definitions of supervisor under the n l r b and fee which i think are instructive now even the tests set out here supervises not enough under any of the tests  these tests look but in those cases clearly it acknowledges the fact that many people are going to be told what to do in a workplace and it does not create a supervisory relationship martinez case is a little different because they were working side by side respect to that day to day well i would submit that they were out on the in the field that's the record that said the representatives were out there and they were telling them what to do so in a sense they were they were in the field together i'm a mud testing task which is what the mud engineer really quickly i have one minute left the f l s a part of the case i think is even easier to address and that's where the court was even more thorough in looking at the economic realities because if you look at the economic realities here clearly with no relationship i think it falls flat right there the case that is most on point is them are ok some who've been saying that correctly and no are you ninth circuit decision which found that w airline contracted with baggage handlers and other service providers at the airport again had a lot of on hands control gave direction as to what they wanted their summary judgment again was upheld for the airline based on the fact that the airline couldn't hire or fire the employees they didn't have employment records they didn't set or control the work schedules and they didn't establish conditions upon which the employees would receive payments so again the fact that there may be some quote unquote control in the form of a directive here or there is not dispositive and summary judgment i think was appropriately upheld in this case  your honor i had a question about the the how the operation ran and it's true there was an owner operator and let's take a look at the evidence of what the owner operator said as to the company  also though the drug say the well said supervisors who were the drill tech people this is what lynn said in a declaration the monday engineers who worked at lynn drilling locations are supervised by company m direct supervision here by plane itself by the statements of lent itself saying we hire drill tick to supervise all the subs this is not just come here do your job this is come here and do the job we were running the show that's why the call of drill site runners drill site supervisors managers a rant every operation of that business to the federal of thor to morrow is not a political it was a federal case not applying california law and here let's take a look at the issue of what they could control what they told them to do it wasn't just light they were taken some suggestions they told them what to do mr willis testified in the declaration the drill take company men had the power to tell them what to do and could stop him from doing something that was different that they wanted done when w test he'd make recommendations the drug company man could make the final decision about what to do or what not to do there were times when they told will say they disagreed with him and told not to add materials that he recommended and did different materials and he had to follow their instructions because they ran and that's controlling the operations that's controlling the working c say and that in i think that the court got it wrong and counsel has it wrong in the sense of there are there are looking at these common law indicia of employment well that's after martina's this it doesn't matter you look at the wage or requirements which is control the hours clearly here when they come in wake up at night come and do this work right now because we need it it's an emergency you can't go into town if you want to unless  our permission to do this this test this way yeah you recommended that we do this no i want you to do something else i want you to do something else and that's clearly control of the working conditions in terms of the sufferer permit issue there's no dispute i think the district court recognized that they had the ability to prevent them to basically kick them off the site and thereby prevent them from working and that's that's undisputed in the record that they had that ability and it wasn't all speculation mr willis testified that drill tech company men told him that they had run off mud men from drill sites before and then if you were run off by one company drill site manager you could not expect to get any other jobs with any other drill tech company men because they would not use you well that's the ability to prevent you from working directly or indirectly it doesn't help you don't have to have the power to do it in the briefly in the taurus lopez vs make case in one circuit case the court said that it's the right directly or indirectly to hire fire and they talked about the facts and that case how you can control the harvest schedule and the number of workers needed and invoice when to begin harvest and which days were suitable  harvest day off that was enough under the ninth circuit said to find a support join employment in again finally were not here after a trial on the merits where the district court judge was the finder  fact and she considered all this evidence were here in a summary judgment and clearly the evidence before the court is sufficient to support a fine and by a jury that there was an employment relationship under the