Filed 6/22/20; Modified and certified for pub. 7/14/20 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ALYOSHA MATTEI et al.,

Plaintiffs and Appellants,

v.

CORPORATE MANAGEMENT 

SOLUTIONS, INC., et al.,

Defendants and 

Respondents.

 B291377

 (Los Angeles County

 Super. Ct. No. BC650798)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Dalila Corral Lyons, Judge. Reversed and 

remanded.

Harris & Ruble, Alan Harris, David Zelenski and Min Ji 

Gal for Plaintiffs and Appellants.

Rosen Saba, Ryan D. Saba, Elizabeth L. Bradley and 

Tyler C. Vanderpool for Defendants and Respondents.

______________________
2

Alyosha Mattei, Greg Jensen, Scott Todd and Janos Csoma, 

all members of the International Alliance of Theatrical Stage 

Employees, Moving Picture Technicians, Artists and Allied Crafts 

(IATSE), sued Corporate Management Solutions, Inc. and its 

owner and president, Anthony Low (collectively CMS), for wageand-hour violations under the California Labor Code incurred in 

the 2016 production of a television commercial for Ulta Beauty, 

Inc., which operates a chain of beauty stores. The superior court 

granted CMS’s motion for summary judgment on the ground it 

was not an employer of the four IATSE members. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Mattei and his colleagues are lighting technicians who 

belong to Local 728 of IATSE and have worked on numerous 

television commercial productions. The production of television 

commercials has traditionally been governed by a series of 

collective bargaining agreements between IATSE and the 

Association of Independent Commercial Producers, Inc. (AICP): 

The Ulta Beauty commercial was produced in June 2016 under 

the 2016 Commercial Production Agreement (CPA or 

Agreement). CMS is a member of AICP and a signatory to the 

CPA. The CPA, among other provisions, bars IATSE members 

from working on non-union television commercial productions.

The Ulta Beauty commercial was developed by MullenLowe 

U.S., Inc., an advertising agency, which hired Diktator US, LLC 

to produce the commercial. Because Diktator was not a CPA 

signatory, Diktator paid CMS $2,000 to borrow CMS’s signatory 

status to enable it to hire union crewmembers.1 According to 

1 The written contract between CMS and Diktator was not 

produced for reasons not disclosed in the record. Low described 
3

Low, this practice is common in the industry and is a large part 

of CMS’s business.2 When hired to provide signatory services, 

CMS does not set the wages, hours or working conditions for the 

employees on the production (most of which are already set by 

the CPA), hire or fire them or provide the location or any 

instrumentalities for the production. CMS is not a payroll 

company and does not issue payroll. Instead, the non-signatory 

production company submits timecards to the payroll service 

(selected by the client), which generates a “payroll edit” listing all 

calculations for wages, payroll taxes and benefits that is sent to 

both CMS and the non-signatory production company. The nonsignatory production company reviews those documents; and, 

once approved, CMS sends the company an invoice for the exact 

amount of the approved payroll invoice, plus CMS’s fee. The nonsignatory production company then remits payment to CMS. 

Upon receipt, CMS notifies the payroll company, which 

CMS’s typical agreement in his deposition: Generally, the terms 

require CMS to administer the below-the-line crew payroll 

(including all union payroll and pension and health care 

contributions, payroll taxes, workers’ compensation and 

processing fees) once the crew is engaged to render services on 

the production until the crew is paid its final wages. The nonsignatory production company agrees to adhere to the terms and 

conditions of all applicable collective bargaining agreements, 

including the AICP-IATSE CPA, and to pay CMS a fee for its 

services. Diktator paid CMS $2,000 for its signatory services. 

2 CMS also provides production services when requested. In 

those situations, CMS assists the production company in paying 

bills and managing production funds and by providing financial, 

accounting and insurance services to the production company. 

CMS did not provide those services to Diktator. 
4

withdraws the wages from CMS’s account and pays the 

employees.

In the case of the Ulta Beauty commercial, this process 

failed because MullenLowe, Diktator’s client, did not pay 

Diktator on time for the costs of the production. Diktator, in 

turn, could not deposit funds for the wages with CMS. Seeking 

payment, Low spoke with several representatives of Diktator but 

ultimately declined to advance the wages due on the production.3 

The employees were forced to wait several weeks past the due 

date, prescribed by Labor Code sections 201.5 and 204, for the 

wages they had earned on the production. 

Mattei and his colleagues sued MullenLowe, Diktator and 

CMS for various Labor Code violations, including late payment of 

wages.4 They contend CMS, as a signatory to the CPA, was 

defined as an employer and bound by the CPA’s terms to pay its 

employees on a timely basis, even if Diktator did not provide it 

3 Low acknowledged CMS had advanced payment for some 

clients in the past, including Paramount Pictures, but he was not 

familiar with Diktator and did not want to advance funds he did 

not know would be repaid.

4 The operative first amended complaint asserts causes of 

action for violations of Labor Code sections 203, 510 and 1194 for 

failure to pay timely minimum wages and overtime, section 226 

for failure to provide a proper wage statement identifying the 

legal name of the employer and section 2698 for civil penalties on 

behalf of the plaintiffs individually and as representatives of the 

State of California and all aggrieved employees, as permitted by 

PAGA, the Labor Code Private Attorneys General Act of 2004 

(Lab. Code, § 2698 et seq.). Low was added as a defendant in the 

first amended complaint. MullenLowe, Diktator and other 

individual defendants are not parties to this appeal.
5

with the necessary funds. From the employees’ perspective, both 

CMS and Diktator were listed as the production companies on 

their call sheets; and CMS was listed as the customer of the 

payroll company on their payroll stubs.5 Mattei stated he 

understood CMS to be a union signatory producer responsible for 

payment of wages under the CPA. 

Low knew CMS was listed as one of the production 

companies on the call sheets. CMS’s director of business affairs, 

Cathryn Hacker, acknowledged it is routine to list employers at 

the top of the call sheet.6 Low also admitted that CMS, by 

lending its signatory status to Diktator, stood in for Diktator with 

respect to the CPA. 

Based on these facts, the superior court determined that 

CMS was not an employer within the meaning of the applicable 

Industrial Welfare Commission (IWC) wage order7 or under 

5 The payroll stub also lists the payroll company as the 

“employer of record,” which Low acknowledged was common. 

Payroll companies are not joint employers under well-established 

case law. (See Futrell v. Payday California, Inc. (2010) 

190 Cal.App.4th 1419, 1435; see also Goonewardene v. ADP, LLC 

(2019) 6 Cal.5th 817, 821-822 [independent payroll services 

company not liable to employees of client on claims of third-party 

contract beneficiary, negligence and negligent 

misrepresentation].)

6 In her role as director of business affairs Hacker 

“administrates the signatory division of CMS.” 

7 IWC wage order No. 12-2001 governs the motion picture 

industry, including the production of television commercials. 

(See Cal. Code Regs., tit. 8, § 11120, subd. (2)(K).) In its ruling 

the superior court incorrectly identified IWC wage order 
6

common law. The court granted summary judgment in favor of 

CMS and Low and entered judgment against Mattei, Jensen, 

Todd and Csoma. 

DISCUSSION

1. Standard of Review

A motion for summary judgment is properly granted only 

when “all the papers submitted show that there is no triable 

issue as to any material fact and that the moving party is entitled 

to a judgment as a matter of law.” (Code Civ. Proc., § 437c, 

subd. (c); see Regents of University of California v. Superior Court

(2018) 4 Cal.5th 607, 618.) We review a grant of summary 

judgment de novo and decide independently whether the facts not 

subject to triable dispute warrant judgment for the moving party 

as a matter of law. (Hampton v. County of San Diego (2015) 

62 Cal.4th 340, 347; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 

610, 618.) The evidence is viewed in the light most favorable to 

the nonmoving party. (Ennabe v. Manosa (2014) 58 Cal.4th 697, 

703; Schachter, at p. 618.)

When a defendant moves for summary judgment in a 

situation in which the plaintiff at trial would have the burden of 

proof by a preponderance of the evidence, the defendant may, but 

need not, present evidence that conclusively negates an element 

of the plaintiff’s cause of action. Alternatively, the defendant 

may present evidence to “‘show[] that one or more elements of the 

cause of action . . . cannot be established’ by the plaintiff.” 

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see 

Code Civ. Proc., § 437c, subd. (p)(2).) “‘“‘The moving party bears 

No. 11-2001, which governs the broadcasting industry. The 

definition of an employer is the same under both wage orders.
7

the burden of showing the court that the plaintiff “has not 

established, and cannot reasonably expect to establish,”’ the 

elements of his or her cause of action.”’” (Ennabe v. Manosa,

supra, 58 Cal.4th at p. 705; accord, Wilson v. 21st Century Ins. 

Co. (2007) 42 Cal.4th 713, 720; Kahn v. East Side Union High 

School Dist. (2003) 31 Cal.4th 990, 1002-1003 [“the defendant 

must present evidence that would preclude a reasonable trier of 

fact from finding that it was more likely than not that the 

material fact was true [citation], or the defendant must establish 

that an element of the claim cannot be established, by presenting 

evidence that the plaintiff ‘does not possess and cannot 

reasonably obtain, needed evidence’”].)

2. CMS Failed To Demonstrate It Is Not an Employer 

Within the Meaning of IWC Wage Order No. 12-2001

a. The broad IWC definition of employer

To impose liability for violations of the Labor Code, the 

plaintiffs must show that CMS is an employer as defined in wage 

order No. 12-2001. (See Martinez v. Combs (2010) 49 Cal.4th 35, 

52 (Martinez).) Each wage order defines the term “employ” as “to 

engage, suffer, or permit to work,” and the term “employer” as 

any person “who directly or indirectly, or through an agent or any 

other person, employs or exercises control over the wages, hours, 

or working conditions of any person.” (E.g., Cal. Code Regs., 

tit. 8, § 11120, subd. 2(D), (F).) “To employ, then, under the 

IWC’s definition, has three alternative definitions. It means: 

(a) to exercise control over the wages, hours or working 

conditions, or (b) to suffer or permit to work, or (c) to engage, 

thereby creating a common law employment relationship.” 

Martinez, at p. 64.) “‘“The question of whether an employment 

relationship exists ‘“is generally a question reserved for the trier 
8

of fact.”’ . . . This remains true ‘[w]here the evidence, though not 

in conflict, permits conflicting inferences.’ . . . However, if neither 

the evidence nor inferences are in conflict, then the question of 

whether an employment relationship exists becomes a question of 

law.”’” (Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 

1187.)

In Martinez the Supreme Court examined the wage order 

definition of employer to determine whether farmworkers who 

complained of Labor Code violations could sue a produce 

merchant as a joint employer with the grower who had hired 

them. (Martinez, supra, 49 Cal.4th at pp. 42-43.) Although the 

Court concluded the produce merchant was not a joint employer, 

it acknowledged multiple entities may be employers where they 

“control different aspects of the employment relationship. This 

occurs, for example, when one entity (such as a temporary 

employment agency) hires and pays a worker, and another entity 

supervises the work.” (Id. at p. 76; see Duffey v. Tender Heart 

Home Care Agency, LLC (2019) 31 Cal.App.5th 232, 254 

[definition of employment is “‘phrased . . . in the alternative (i.e., 

“wages, hours, or working conditions”),’ and thus control over any 

one of the three creates an employment relationship”; triable 

issue of fact as to whether placement agency exercised control 

over wages]; Castaneda v. Ensign Group, Inc. (2014)

229 Cal.App.4th 1015, 1019 [“[a]n entity that controls the 

business enterprise may be an employer even if it did not ‘directly 

hire, fire or supervise’ the employees”; triable issue of fact as to 

defendant’s control].) “Joint employment occurs when two or 

more persons engage the services of an employee in an enterprise 

in which the employee is subject to the control of both.” (In-Home 

Supportive Services v. Workers’ Comp. Appeals Bd. (1984) 
9

152 Cal.App.3d 720, 732; accord, Guerrero v. Superior Court

(2013) 213 Cal.App.4th 912, 917, 955.) 

Describing the second prong of the IWC definition of 

employer, the Supreme Court observed, “The verbs ‘to suffer’ and 

‘to permit’ . . . are terms of art in employment law.” (Martinez, 

supra, 49 Cal.4th at p. 64.) The “suffer or permit” definition, 

used in wage orders since 1916, has its roots in the language of 

early 20th-century statutes prohibiting child labor. (Id. at p. 69.) 

“Statutes so phrased were generally understood to impose 

liability on the proprietor of a business who knew child labor was 

occurring in the enterprise but failed to prevent it, despite the 

absence of a common law employment relationship.” (Ibid.) As 

the Court explained, this “historical meaning continues to be 

highly relevant today: A proprietor who knows that persons are 

working in his or her business without having been formally 

hired, or while being paid less than the minimum wage, clearly 

suffers or permits that work by failing to prevent it, while having 

the power to do so.” (Id. at p. 69; accord, Dynamex Operations 

West, Inc. v. Superior Court (2018) 4 Cal.5th 903, 939.) The basis 

for liability under this definition is thus a defendant’s failure “to 

prevent the unlawful condition” or “‘to perform the duty of seeing 

to it that the prohibited condition does not exist.’” (Martinez, at 

p. 69, italics omitted.) It “‘rest[s] upon principles wholly distinct 

from those relating to master and servant’” (id. at p. 69) and 

“reache[s] irregular working arrangements the proprietor of a 

business might otherwise disavow with impunity” (id. at p. 58). 

Thus, the definition of “employer” is “broad enough to reach 

through straw men and other sham arrangements to impose 

liability for wages on the actual employer.” (Id. at p. 71; see 

Dynamex, at p. 953 [“wage orders are the type of remedial 
10

legislation that must be liberally construed in a manner that 

serves its remedial purposes”]; Augustus v. ABM Security 

Services, Inc. (2016) 2 Cal.5th 257, 262 [“we liberally construe the 

Labor Code and wage orders to favor the protection of 

employees”].)

The third prong, “to engage,” embodies the common law 

definition of the employer-employee relationship and, again, 

harkens back to the exercise of control. (Martinez, supra,

49 Cal.4th at p. 64 [“the verb ‘to engage’ has no other apparent 

meaning in the present context than its plain, ordinary sense of 

‘to employ,’ that is, to create a common law employment 

relationship”]; accord, Turman v. Superior Court (2017) 

17 Cal.App.5th 969, 986.) “Under the common law, ‘“[t]he 

principal test of an employment relationship is whether the 

person to whom service is rendered has the right to control the 

manner and means of accomplishing the result desired.”’” (Ayala 

v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531.)

“Significantly, what matters under the common law is not how 

much control a hirer exercises, but how much control the hirer 

retains the right to exercise.” (Id. at p. 533.) “In cases where 

there is a written contract, to answer that question without full 

examination of the contract will be virtually impossible.” (Id. at 

p. 535, citing Tieberg v. Unemployment Ins. App. Bd. (1970) 

2 Cal.3d 943, 952 [written agreements are a “significant factor” in 

assessing the right to control]; Grant v. Woods (1977) 

71 Cal.App.3d 647, 653 [“[w]ritten agreements are of probative 

significance” in evaluating the extent of a hirer’s right to 

control].) “‘“[T]he fact that a certain amount of freedom of action 

is inherent in the nature of the work does not change the 
11

character of the employment where the employer has general 

supervision and control over it.”’” (Ayala, at p. 531.) 

b. CMS has failed to establish the AICP-IATSE CPA 

permits a signatory to avoid its responsibilities as an 

employer when it lends its signatory status to a nonsignatory producer

The Mattei parties contend the CPA bound CMS as a 

signatory to fulfill its obligations as an employer whether or not

Diktator supervised the production, a position CMS disputes and 

the superior court ignored. Accordingly, we are required to 

evaluate whether the CPA permits signatories who lend their 

signatory status to non-signatory production companies to avoid 

responsibility for wage and hour violations suffered by IATSEmember employees on those projects. 

By its own terms,8 the CPA “is binding on those commercial 

production companies that have consented . . . in writing to be 

8 “Under long-standing contract law, a ‘contract must be so 

interpreted as to give effect to the mutual intention of the parties 

as it existed at the time of contracting, so far as the same is 

ascertainable and lawful.’” (Hess v. Ford Motor Co. (2002) 

27 Cal.4th 516, 524.) That intent is interpreted according to 

objective, rather than subjective, criteria (Wolf v. Walt Disney 

Pictures & Television (2008) 162 Cal.App.4th 1107, 1126); and the 

“intention of the parties is to be ascertained from the writing 

alone, if possible” (Civ. Code, § 1639; see Hess, at p. 524). 

Nevertheless, “[a] contract may be explained by reference to the 

circumstances under which it was made, and the matter to which 

it relates.” (Civ. Code, § 1647; see Hess, at p. 524.) 

“‘An ambiguity exists when a party can identify an 

alternative, semantically reasonable, candidate of meaning of a 

writing. [Citations.] An ambiguity can be patent, arising from 

the face of the writing, or latent, based on extrinsic evidence.’” 
12

bound hereby (‘Employer’ or ‘Employers’),” in other words, 

signatories like CMS. “Employers are engaged in the physical 

production of commercials pursuant to contracts with advertising 

agencies and/or advertisers.” The CPA “is intended to recognize 

and address the special needs of the commercial production 

process. It is the intent of the parties hereto that this 

Agreement[] establish the wages and working conditions 

applicable to technicians and artisans employed in the production 

of commercials.” The CPA describes in detail the minimum 

wages to be paid to employees (Art. XXV), the accumulation of 

overtime pay (Art. XV), the cancellation of calls (Art. XX), the 

duration of the work day and work week (Art. XIV), the provision 

of rest periods (Art. XVI) and meals (Art. XVIII) and travel to 

locations (Art. XIX). The CPA also requires employers to make 

pension and welfare contributions on behalf of employees 

(Art. XXII) and charges employers with the responsibility to 

ensure that safety standards are maintained during production 

(Art. XIII, § 1(b)).

What the CPA does not appear to do is relieve signatories 

of their responsibility to ensure compliance with these detailed 

provisions when they “lend” their signatory status to a nonsignatory production company. Nothing in the CPA expressly 

addresses the scenario here. To be sure, CMS cites in support of 

(Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 

1351, 1357; accord, Eriksson v. Nunnink (2015) 233 Cal.App.4th 

708, 722; see Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 

384, 391 [“‘[a]n ambiguity arises when language is reasonably 

susceptible of more than one application to material facts’”].) 

“Courts will not strain to create an ambiguity where none exists.” 

(Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18-19.)
13

its position Article XII, section 1, of the CPA, which states, “The 

parties recognize that there are factors and requirements unique 

to the making of television commercials for the advertising 

industry which may result in the Employer having no effective 

control over portions of pre-production or post-production work 

covered by this Agreement. Under [s]uch circumstances, where 

the Employer does not control the assignment of work, the 

Employer shall not be responsible or liable under this Agreement 

for the performance of such work.” This section, however, is 

expressly limited to pre- and post-production work, which is not 

involved in the Labor Code violations alleged here, and implies by 

negative pregnant that an employer like CMS is responsible 

under the CPA for the performance of work during the production 

phase of a television commercial regardless of the lack of control. 

CMS has provided no other facts to support its assertion 

that signatories can lend their status without remaining liable 

for employee wage and hour violations. Indeed, notwithstanding 

Low’s suggestion that Diktator alone agreed to be bound by the 

CPA in the missing contract between the two parties,9 Hacker 

9 We view CMS’s failure to produce its contract with Diktator 

or any sample contract from the same time period with 

skepticism. (See Evid. Code, § 412 [“If weaker and less 

satisfactory evidence is offered when it was within the power of 

the party to produce stronger and more satisfactory evidence, the 

evidence offered should be viewed with distrust”].) “The 

paradigmatic example of the application of Evidence Code 

section 412 is where a party has documentation of an event, but 

instead offers oral testimony by a potentially biased witness. The 

witness’s testimony may be viewed ‘“with distrust”’ under the 

statute.” (Orange County Water Dist. v. Alcoa Global Fasteners, 

Inc. (2017) 12 Cal.App.5th 252, 363; see Pelayo v. J.J. Lee 
14

acknowledged having seen the contract and stated it provided 

that both CMS and Diktator would adhere to the terms and 

conditions of the CPA. 

CMS has also failed to support its position with evidence of 

industry practice.10 As a signatory to all of the major guilds and 

unions involved in the production of motion pictures and 

television commercials, CMS is presumably aware of the policies 

of those guilds and unions with respect to this question but has 

pointed us to none that could aid our interpretation of the CPA.11 

In sum, in light of the clear language of the CPA, absent 

evidence its obligations were extinguished when CMS lent its 

signatory status to Diktator, CMS remained an employer with all 

concomitant responsibilities imposed by that agreement. 

Management, Inc. (2009) 174 Cal.App.4th 484, 495 [failure to 

produce summons]; Vallbona v. Springer (1996) 43 Cal.App.4th 

1525, 1537 [failure to produce documentation of financial 

liabilities]; Largey v. Intrastate Radiotelephone, Inc. (1982)

136 Cal.App.3d 660, 672 [failure to produce corporate records 

concerning board meetings].) 

10 We invited IATSE, AICP, the California Employment 

Lawyers Association and the California Employment Law 

Council to file amicus curiae briefs addressing whether a 

signatory producer lending its status to a non-signatory producer 

may avoid the responsibilities of an employer imposed by the 

CPA and IWC wage order No. 12-2001. Only the AICP responded 

to our request and declined to file a brief. 

11 Low stated in his deposition that CMS has several 

competitors that offer SAG-AFTRA signatory services but could 

only name one that offers IATSE signatory services. 
15

c. A triable issue of fact exists as to CMS’s right to 

control aspects of the production and its failure to 

ensure compliance with the CPA

Both the CPA and the Diktator-CMS contract, as that 

missing contract was described by Hacker, imposed on CMS the 

obligation to ensure that Mattei and his colleagues were provided 

with the protections guaranteed by the CPA, including timely 

payment of wages.12 In particular, these contractual obligations 

not only established the wages and conditions of work for IATSE 

members, but also enabled Diktator to hire IATSE members 

under the aegis of CMS’s signatory status, conferring upon each 

an element of control over the hiring of employees. CMS, as a 

signatory, was able to list the production with the IATSE Local 

728’s call steward (the mechanism for hiring Mattei and his 

12 CMS has submitted a copy of an administrative law judge’s 

decision finding that another IATSE member who worked on the 

Ulta Beauty commercial was employed solely by Diktator and not 

also by CMS. That decision does not mention the CPA or the 

contractual relationship between Diktator and CMS. As the 

Supreme Court has explained, “[S]o long as we exercise our 

independent judgment, we may consider the DLSE’s [(Division of 

Labor Standards Enforcement)] interpretation and the reasons 

the DLSE proffered in support of it, and we may adopt the 

DLSE’s interpretation as our own if we are persuaded that it is 

correct.” (Alvarado v. Dart Container Corp. of California (2018) 

4 Cal.5th 542, 561.) Likewise, we may reject a position taken by 

the DLSE if we find its rationale unconvincing. “While the 

DLSE’s construction of a statute is entitled to consideration and 

respect, it is not binding and it is ultimately for the judiciary to 

interpret th[e] statute.” (Murphy v. Kenneth Cole Productions, 

Inc. (2007) 40 Cal.4th 1094, 1106, fn. 7, citing Yamaha Corp. of 

America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7-8.) 
16

colleagues) and was listed with Diktator as a joint producer on 

employee call sheets. In addition, CMS administered the belowthe-line payroll and ensured that the proper benefit and union 

dues would be withdrawn and paid into the IATSE benefit pools. 

By sharing control with Diktator, a trier of fact could conclude 

CMS was a joint employer with Diktator. 

A trier of fact could also find CMS was an employer under 

the suffer-or-permit prong of the IWC definition. By virtue of its 

contractual rights and obligations, CMS was in a position “to 

prevent the unlawful condition” of violations of the CPA and “‘to 

perform the duty of seeing to it that the prohibited condition does 

not exist.’” (Martinez, supra, 49 Cal.4th at p. 69, italics omitted.) 

CMS appeared not to have this control only because it chose to 

shut its eyes during productions, thus fostering the perception it 

was not an employer. That is exactly the type of sham 

arrangement the suffer-or-permit standard was intended to 

prevent. 

The decision in Futrell v. Payday California, Inc. (2010) 

190 Cal.App.4th 1419 (Futrell), on which CMS heavily relies, 

does not suggest a different result. In Futrell the plaintiff, a 

security guard who had worked on several television commercials 

produced by Reactor Films, Inc., sued Reactor and its payroll 

company, Payday California, Inc., for wage and hour violations 

under the Labor Code on behalf of himself and others who had 

provided traffic and crowd control services. (Id. at pp. 1424-

1425.) The court of appeal affirmed summary judgment in favor 

of the payroll company, finding Futrell had failed to raise a 

triable issue of fact Payday was its joint employer. Applying 

Martinez, the court found no evidence Payday exercised any 

control over Futrell’s hours or working conditions. (Futrell, at 
17

p. 1431.) Moreover, the services Payday performed with respect 

to his wages were ministerial: “Writing on a clean slate, we 

conclude that ‘control over wages’ means that a person or entity 

has the power or authority to negotiate and set an employee’s 

rate of pay, and not that a person or entity is physically involved 

in the preparation of an employee’s paycheck.” (Id. at p. 1432.) 

Similarly, under the suffer-or-permit prong, the court found no 

evidence Payday had allowed Futrell to suffer work, because 

there was no evidence Payday had “the power to either cause him 

to work or prevent him from working.” (Id. at p. 1434.) Finally, 

as a matter of common law, Payday did not control the details of 

Futrell’s work. (Id. at pp. 1434-1435.)

Futrell provides no support to CMS because Futrell was not 

a union member and Payday was not a party to a collective 

bargaining agreement governing wages, hours and working 

conditions of union employees. Payday performed ministerially 

as a payroll processing company. As a signatory to the CPA, 

CMS bore an entirely different obligation to the union members 

who have sued here. There are triable issues of fact related to 

CMS’s right to control the hiring of employees, as well as any 

obligations by CMS to ensure compliance with the terms of the 

CPA. Accordingly, the superior court erred in granting summary 

judgment against Mattei and his colleagues.
18

DISPOSITION

The judgment is reversed, and the cause remanded with 

directions to enter an order denying CMS and Low’s motion for 

summary judgment. Mattei, Jensen, Todd and Csoma are to 

recover their costs on appeal.

PERLUSS, P. J.

We concur:

FEUER, J. 

DILLON, J.*

* Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.
Filed 7/14/20 

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ALYOSHA MATTEI et al.,

Plaintiffs and Appellants,

v.

CORPORATE MANAGEMENT 

SOLUTIONS, INC., et al.,

Defendants and 

Respondents.

 B291377

 (Los Angeles County

 Super. Ct. No. BC650798)

ORDER MODIFYING 

OPINION AND 

CERTIFYING OPINION 

FOR PUBLICATION 

(NO CHANGE IN THE

APPELLATE JUDGMENT)

THE COURT: 

It is ordered that the opinion filed herein on June 22, 2020 

be modified as follows: 

1. On page 2, in the opening paragraph, the last sentence, 

“We reverse” is deleted and the following sentence is inserted in 

its place: 

Because CMS failed to demonstrate it is not an employer 

within the meaning of that term in the governing 

Industrial Welfare Commission wage order, we reverse. 

2. On page 14, first full paragraph, the second sentence is 

modified, keeping footnote 11, to read as follows: 

As a signatory to the agreements with all of the major 

guilds and unions involved in the production of motion 
2

pictures and television commercials, CMS is presumably 

aware of the policies of those guilds and unions with 

respect to this question but has pointed us to none that 

could aid our interpretation of the CPA.11 

The opinion in the above-entitled matter was not certified 

for publication in the Official Reports. For good cause it now 

appears that the opinion should be published in the Official 

Reports, and it is so ordered. 

There is no change in the appellate judgment.

____________________________________________________________

 PERLUSS, P. J. FEUER, J. DILLON, J.* 

* Judge of the Los Angeles County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.