Filed 2/28/ 23 Schwade v. South Pasadena Rehabilitation Center LLC CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b ). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

PATRICIA SCHWADE

,

Plaintiff and Appellant

,

v.

SOUT H PASADENA REHABILITATION CENTER LLC
et al.

,

Defendants and Respondents

. B 3 1 4052

(Los Angeles County Super. Ct. No. BC694824 )

APPEAL from a judgment of the Superior Court of Los Angeles County. Amy D. Hogue , Judge

. Affirmed

.

Ma tern Law Group, Matthew J. Matern, Mikael H. Stahle, Kiran Prasad and Irina A. Kirnosova for Plaintiff and Appellant

.
Munger, Tolles & Olson, Joseph D. Lee, Margaret G. Maraschino

, Stephen A. Hylas and Jessica O. Laird for Defendants and Respondent s

.

__ _________________

__________

_2 Following the termination of her employment by South Pasadena Care Center, LLC (Care Center) at its skilled nursing facility (the facility) , plaintiff and appellant Patricia Schwade brought this action against Care Center and its owners, as well as the former owners of the facility

. The former owner
d efendants 1 moved for summary judgment (Code Civ. Proc., § 437c), arguing that they were not plaintiff’s employer . The trial court agreed and granted them summary judgment. Plai ntiff appeals, contending that the trial court erred in finding that the former owner defendants were not plaintiff’s joint employers

. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Parties Rehab Center operated the facility in Pasadena on Mission
S treet until August 2015. Brius Management was the manager of Rehab Center before it ceased operations. Rechnitz is the chief
executive officer of Brius Management and an owner of Brius, LLC, a separate entity. 2 In August 2015, Rehab Center transferred op erations of the facility to Care Center. Care Center is a separate entity from Rehab Center owned and controlled exclusively by Elliot Zemel

1 The former owner defendants include defendants and respondents South Pasadena Rehabilitation Center, LLC (Rehab Center), Brius Management Co. (Brius Management), Brius, LLC, and Shlomo Rechnitz (Rechnitz).

2 While Rehab Center had a license with the California Department of Public Health (CDPH), Rechnitz, Brius Management, and Brius were not named on the license.3

(Zemel) and Yehuda Schmukler (Schmukler) , who were not
affiliated with Rehab Center.
II. Factual Background
A. Transfer of operations to Care Center On August 10, 2015, Rehab Center transferred “operational and financial responsibility ” of the facility to Care Center pursuant to a Management and Operations Transfer Agreement (MOTA) signed by the parties. The MOTA was needed because “California law requires a license from the State Department of Public Health (CDPH) in order to operate or manage skilled nursing facilit ies ,” and Care Center had not yet obtained a license. ( California Advocates for Nursing Home Refo rm v. Ar a g ó n (2021) 60 Cal.App.5th 500, 504 ( Ar a g ó n ).) The MOTA required Care Center to submit a change of ownership application with th e CDPF, “pursuant to which [it would] obtain its own license,” as mandated by California law. Care Center filed its ap plication shortly after the transfe r and received a license on November 23, 2015. On that date, the MOTA expired. While the transfer was processing, however, Rehab Center remained on the facility’s license. The MOTA accordingly sought
to ensure that dur ing the transition period, the facility was operated “in compliance with the Lease and applicable law and in a manner which does not jeopardize the health and welfare of the
residents of the [f]acility. ” To achieve these purposes, the MOTA delegated certa in responsibilities to Care Center while also providing that Rehab Center had a right to “confer and consult” with Care Center on business matters related to the facility and, as the law requires, remained “ultimately responsible for the daily operational decisions and the care delivered to the residents4

at the [f] acility,” while the MOTA was in effect. 3 The MOTA expressly provided that Rehab Center’s “ultimate responsibility shall not relieve [Care Center] from its obligations” under the
MOTA.
Care Cente r’s obligations also included hiring “all employees whom [Care Center] determine[d] to be necessary to effectively and efficiently operate the [f] acility,” 4 and responsibility over “all aspects of administration of employees, including hiring, training, su pervision, and termination.” Thus, the MOTA required Care Center to provide benefits, maintain payroll, issue paychecks, and withhold taxes for employees. In contrast, the MOTA required Rehab Center to “terminate all of
the [f] acility employees

. . . on the day immediately prior to [August 10, 2015].” Rehab Center adhered to this requirement and ceased all operations and terminated all of its employees on August 9, 2015. According to the former owner defendants, as of August 9, 2015,
Rehab Center had no operational or financial involvement with the facility or with Care Center, and no Rehab Center employee

3 This provision parallels the basic requirements of California law. (See, e.g., Ar a g ó n , supra , 60 Cal.App.5th at

p. 510 [“the licensee is still ultimately responsible” for a facility “even if m anagement companies are running the day

- to

- day operations”].)

4 Regarding employment, Care Center advised Rehab Center that it “ intend [ ed ] to offer employment to at least 2/3 of the employees of the [f]acility”; “in reliance on such statements [Rehab Cent er and Care Center] agreed that a closure notice” would not be provided.5

worked at or for the facility. Rather, Care Center made all decisions regarding employment at the facility after that day, including who to hire and fire. According to plaintiff, certain text messages between Amy Johnson (Johnson) , the vice president of regional operations for Rockport Healthcare Services (Rockport) 5 and the person most qualified to testify on behalf of Brius Management and Brius, and
Zemel evidence the former owner defendants’ continued involvement in the day

- to

- day operations of the facility. These text messages concern the transferring of nurses from one location to the facility. Plaintiff also contends that “Rehab Center supplied Care Center employees, including [ plaintiff ]

, with the employee handbook it had implemented when it was the sole owner and operator of the [f] acility.”
B. Care Center employs plaintiff On or about September 1, 2015, Care Center hired plaintiff
to work at the facility. 6 It employed her until it terminated her employment in May 2017. During that entire period, Care Center controlled all aspects of plaintiff’s employment.

5 Rockport provides administrative services to various skilled nursing facilities. Johnson declared that before August 10, 2015, Rockport provided such services to Rehab Center, inc luding its assistance with winding down Rehab Center’s operations. Plaintiff’s assertion that Johnson was the vice president of Rehab Center is misleading and wholly unsupported by the appellate record.

6 At her deposition , plaintiff admitted that she do es not recall communicating with anyone from Rehab Center; nor can she identify anyone who worked for Rehab Center.6 1. Recruitment In August 2015, Care Center’s owners, Zemel and Schmukler, recru ited plaintiff and her colleagues from an unrelated nursing facility. Care Center hired the group “as a team” after taking th em on a tour of the facility.

2. Hiring Care Center’s first administrator, Dolores Diehl (Diehl), told plaintiff that she was hired. Either Diehl or Care Center’s director of staff development informed p laintiff of her salary.

3. Onboarding Care Center employees gave p laintiff a two

- day orientation, during which she received policies and training materials. Those
materials ide ntify Care Center as the issuing entity. Plaintiff later signed other documents, including Care Center’s employee handbook, although p laintiff denies that she
received the handbook. Plaintiff is unaware of anyone besides Care Center issuing such documents or implementing policies governing her employment.

4. Supervision Diehl (and later, her replacement Mr. Tucker) was

p laintiff’s supervisor. If p laintiff had issues, such as problems with a colleague, she took them to Diehl or Mr. Tucker. She
knows of n obody else she would have told of such issues.

5. Pay
Care Center collected p laintiff’s time records and provided her with paychecks. These records all identify Care Center as

p laintiff’s employer, and p laintiff is not aware of any other entity that paid her or tracked her hours. If her paycheck did not come or she missed a meal break, she would have informed Diehl or7

Mr. Tucker, or “the bookkeeper” who “worked for Zemel and
Schmukler.”

6. Materials Care Center provided p laintiff with a phone, a printer

photocopier, and other supplies she used to work. It also gave her a name tag, which her Care Center supervisor required her to

wear. 7. Assignments, Scheduling, and Performance
Review
Care Center employees trained p laintiff, set her work schedule, assi gned her work, responded to her time off requests,
and evaluated her performance.

8. Termination of employment On or around May 5, 2017, Mr. Tucker , on behalf of Care Center, terminated p laintiff ’s employment

. Plaintiff knows of no
one else involved in that decision or who had authority to
terminate her.

9. Plaintiff identifies Care Center as her employer
After p laintiff

’s employment was terminated, she identified Care Center as her sole employer on an unemployment application and her resume. She nev er represented to a later employer that she was employed at the f acility by anyone other
than Care Center.
III. Procedural History
A. Pleadings
O n February 16, 2018, plaintiff initiated this lawsuit, asserting individual and class claims under the Labor Code against Care Center, Zemel, and Schmukler, as well as Rechnitz

, Brius Management, and Brius

. A year later, she added Rehab
Center as a Doe defendant.8 As is relevant to the issues in this appeal, the first
amended complaint , which is the operative pl eading, allege s that the former owner defendants and Care Center were plaintiff’s joint employers, formed an integrated enterprise, and/or were alter egos of one another during the transitionary period when plaintiff was first hired and when Rehab Center w as the sole
license holder.
B. Motion for summary judgment
On October 23, 2020

, the f ormer o wner d efendants moved for summary judgment on the ground that they were not

p laintiff’s employer.
C. Plaintiff’s opposition On March 2, 2021, plaintiff filed h er opposition to the motion for summary judgment. Her principal contention was that there was a triable issue of fact regarding the former owner defendants’ status as her employer, as an integrated enterprise and as alter egos. Her opposition identified and discussed certain evidence, including Johnson’s text messages with Zemel and copies of employee handbooks. But, plaintiff’s counsel failed to attach to her declaration copies of those text messages and handbooks, both of which were exhibits to particu lar deposition transcripts. Plaintiff also omitted evidence supporting her claim that the former owner defendants were liable based upon theories of integrated enterprise and alter ego, even though that evidence was discussed in her opposition brief and i n her supporting separate statement.
D. Reply On March 16, 2021, the former owner defendants filed their reply brief, noting that plaintiff had failed to attach copies of9

evidence referenced in the opposition brief and separate
statement. The movants n onetheless addressed those exhibits in their reply brief, arguing why they did not raise a triable issue of
material fact.
E. Plaintiff’s file a notice of errata On April 8, 2021, the day before the scheduled hearing, plaintiff filed a notice of errat a and attached the four omitted exhibits for the trial court to review. Plaintiff requested that the trial court continue the hearing on the motion “to consider the attached exhibits and provide [the former owner defendants] with the opportunity to addres s” them.
F. Trial court order and judgment At the April 9, 2021, hearing, the trial court stated that it
had received the notice of errata and asked whether the former owner defendants had received the filing. Counsel responded: “And just for the purpo ses of putting it on the record, we do object to the newly

- submitted evidence as untimely and would move to
strike the notice of errata for that reason and in violation of due process rights. [¶] But we’re also prepared to discuss it, Y our H onor, which i s why we don’t think these new documents make a
difference.” The trial court then inquired as to how the exhibits “would raise a triable issue of fact.” Plaintiff responded that the
evidence created triable issues on the former owner defendants’ “rights a nd ability and, indeed, obligation under the law to control the operations and the management decisions” at the facility. She also contended that the MOTA evidenced Rehab Center’s control over the “day

- to

- day operational decisions.” After taking the matte r under submission, partly to review the omitted evidence, the trial court granted the former owner10

defendants’ motion . In a 28

- page order, the trial court found it undisputed that the former owner defendants did not employ plaintiff. And, p laintiff coul d not show an employment relationship under a joint employer, integrated enterprise, or alter ego theory. In so doing, the trial court sustained the f ormer

o wner d efendants’ objection to several documents that p laintiff filed late, including an employee h andbook and Johnson’s text

messages with Zemel . But, the trial court went on to consider the
late

- filed evidence: “Even if the documents were admissible, the Court concludes they do not raise a triable issue of whether [the former owner defendants] exerc ised control over [plaintiff’s] wages, hours, or working conditions, suffered or permitted her to work, or engaged her.” Judgment was entered on May 18, 2021.
G. Appeal This timely appeal ensued.

DISCUSSION
I. Late

- filed Evidence in Support of Plaintif f’s O pposition The parties devote much of their appellate briefs to the question of whether the trial court properly refused to consider plaintiff’s late

- filed evidence. We need not decide this issue. Notwithstanding plaintiff’s argument to the contrary , it is evident from both the reporter’s transcript and the trial court’s lengthy and detailed minute order that it did consider the belatedly filed evidence. 7 We too consider the evidence that was belatedly filed with the trial court.

7 Curiously, plaintiff also concedes in her opening brief that the trial court “explicitly addressed” the evidence in its order granting sum mary judgment.11

II. Trial C

ourt P r operly G ranted S ummary J udgment
A. Standard of review

“ Summary judgment is subject to de novo review. To analyze the issues, ‘ we follow the traditional three

- step analysis.

“ We first identify the issues framed by the pleadings, since it is these allega tions to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents ’ claim and justify a judgment in the

movant ’ s favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citation.] ” [Citation.] ’ [Citation.]” ( Kaney v. Custance (2022) 74 Cal.App.5th 201, 213.)

“ In ‘ reviewing the trial court ’ s decision to grant summary judgment, we liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts about the evidence in that party ’ s favor. [Citation.] ’ [Citation.] ‘ [W]e
must draw from the evidence all reasonable inferences in the light most favorable to the party opposing summary judgment. [Citation.] ’ [Citation.]” ( Kaney v. Custance

, supra , 74 Cal.App.5th at p. 213.)
B. No evidence that the former owner defendants were plaintiff’s employer As set forth above, plaintiff ’s claims stem from alleged
violations of the Labor Code. “[N]o generally applicable rule of law imposes on anyone other than an employer a duty to pay wages.” ( Martinez v. Combs (2010) 49 Cal.4th 35, 49 ( Martinez ) .) Accordingly, to maintain each of her causes of action, p laintiff was required to show that each of the f ormer ow ner d efendants was her employer. ( Taylor v. Fin ancial Casualty & Surety, Inc.12

(2021) 67 Cal.App.5th 966, 984 ( Taylor ) ; see Cal. Code Regs., tit. 8, § 11050, subd. 2(E).)
To establ ish an employment relationship, p laintiff was required to introduce evidence that each of the f ormer o wner d efendants (1) “exercise[d] control over [her] wages, hours, or working conditions;” (2) engaged her, thereby creating a common law employment relati onship; or (3) “suffer[ed] or permit[ted]”
her to work. ( Martinez

, supra , 49 Cal.4th at p. 64 .)

1. None of the former owner defendants exercised control over plaintiff’s wages, hours, or working conditions Under the “control” test, a plaintiff must show that the
defendant had the right to exercise control over her employment. (See Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal

. 4th 522, 531.) “What matters is whether the hirer ‘retains all

necessary control’ over its operations.” ( Ibid .) In Martin ez , for example, the California Supreme Court held that farm workers were not jointly employed by produce merchants because the farmer alone “hired and fired plaintiffs, trained and supervised them, determined their rate and manner of pay

. . . , and set t heir hours, telling them when and where to report to work and when
to take breaks.” ( Martinez

, supra , 49 Cal.4th at p. 72.)
The same is true here. As set forth above, Care Center
alone recruited p laintiff, hired her, onboarded and trained her,
set her sc hedule and addressed her time off requests, set workplace policies, assigned her tasks, supervised her and reviewed her performance, set her pay, provided her paychecks,13

required her to wear a name tag, provided her materials to do her job, and ultimately exercised its authority to terminate her. 8 Thus, p laintiff failed to raise a triable issue of fact regarding the “control” test. (See Martinez

, supra , 49 Cal.4th at

p. 71 [affirming summary judgment for defendant where “[t]he undisputed facts

. . . show t hat another entity alone controlled plaintiffs’ wages, hours and working conditions”]; Curry v. Equilon Enterprises, LLC (2018) 23 Cal.App.5th 289, 302

– 303 ( Curry ) [where another entity “was responsible for hiring, firing, disciplining, training, and compe nsating” the plaintiff

- employee

, “had control over [the plaintiff

- employee’s] wages and hours,” and
controlled “the tasks [the plaintiff

- employee] was made to perform, and the conditions in which she performed them,” the defendant “ha[d] met its burden of establishing there [was] not a triable issue of fact concerning [defendant] being [the plaintiff

employee’s] employer”]

. ) On appeal, p laintiff suggests that a few particular
documents

— namely, Care Center’s handbook, some
mischaracterized text messages, and the MOTA 9

— created a

8 Although arguably not dispositive, we note that plaintiff specifically conceded that she could not identify any admissible evidence of any of the former owner defendants hiring her, paying her

, controlling her working conditions, or suffer ing or permitting her to work. (See Martinez

, supra , 49 Cal.4th at p. 76 [ “[n]o evidence suggest[ed] [the farmer’s] employees viewed the field representatives as their supervisors or believed they owed their obedience to anyone but [the farmer] and his f oremen” ].)

9 The MOTA is discussed at length in section 2.a., infra

.14

triable issue. However, none of those documents are sufficient to establish that Rehab Center or any other f ormer o wner d efendant

controlled p laintiff’s employment. 10

a. Handbook At most, the record shows that Care Center used a
handb ook that was similar to the one Rehab Center had previously used, and that Johnson, who was never employed by Rehab Center, sent the handbook to Zemel before the sale
because a “ union representative asked for it.” There was no evidence, however, that Reha b Center required or even suggested that Care Center use its prior policies. Thus, as the trial court correctly held, “[e]ven assuming Care Center did use Rehab Center’s employee handbook, this fact does not raise a triable
issue as to whether Rehab Cente r exercised control over [ p laintiff’s] wages, hours, or working conditions.” This is quite different from the cases that p laintiff cites

, each of which involved an entity that imposed or enforced policies. ( Castaneda v. Ensign Group, Inc. (2014) 229
Cal.A pp.4th 1015, 1022 ( Castaneda ) [parent provided “policy and training videos” that subsidiary was required to show to employees]; Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 11

– 12 [FedEx controlled “every

10 As noted during oral argument, plaintiff often conflates the former owner defendants by referring to them collectively and generically throughout her briefs as “Defendants.” She do es not explain or argue how these documents demonstrate that each of the four former owner defendants was her joint employer.15

exquisite detail of the dr ivers’ performance, including the color of their socks and the style of their hair”].)

b. Text m essages Plaintiff relies heavily upon a late

- 2016 text message exchange between Zemel, Care Center’s owner, and Johnson. Johnson is repeatedly and incorrectly described as “Rehab Center’s Vice President of Operations.” However, p laintiff cites
no evidence that Johnson ever held this role or was ever employed by Rehab Center, and the undisputed evidence
establishes that she simply was not. 11 T hus, text messages sent by Johnson do not compel a finding that Rehab Center had
control over p laintiff’s employment. In any event , the text messages do not show Rehab Center exercising any control over p laintiff because the messages have nothing to do with her. Rather, th ey related to Care Center’s
recruitment of a handful of third

- party nurses from an unrelated facility, over a year after p laintiff was hired and long after Rehab Center had ceased all operations. 12 The text messages also do not show that Rehab Center had

an unexercised “right” to control Care Center’s employees more

11 Johnson testified that she worked for Rockport, a separate entity that provides services to many different nursing facilities. She previously provided these services at the f acility prior to its sale.

12 Plaintiff’s assertion that “the text messages showed that Rehab Center was transferring employees from its other locations to the Facility” is not supported by any evidence . In f act, plaintiff directs us to no evidence that Rehab Center ever had any other locations.16

broadly. (See Ayala v. Antelope Valley Newspapers, Inc.

, supra , 59 Cal.4th at p. 531.) Johnson’s messages merely mention a “friendly agreement,” and indicate to Zemel that there wa s one nurse f rom an unrelated facility that Johnson would “rather [Care Center] not take.” These messages, at most, frame a request, and do not assert some control that Johnson ha d the authority to exercise. Nothing in the record shows that Johnson

, on behalf of the former owner defendants, had power over Zemel or anyone else at Care Center over a year after the transition of operational control of the facility had been completed . In fact, Zemel testified that Care Center alone had power to determine
who to hire and fire after the sale.

2. None of the f

ormer o wner d efendants m eet s the

c ommon l aw t est a s p laintiff’s e mployer The California Supreme Court has explained that under “traditional common law principles” that apply in determining whether an employment relat ionship exists, courts have long “emphasized ‘the control exercised by the employer over the employee’s performance of employment duties.’” ( Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 499 ( Patterson ) .) Like the “control” test, which is deriv ed from the wage orders, the common law “requires ‘a comprehensive and immediate level of ‘day

- to

- day’ authority’ over matters such as hiring, firing, direction, supervision, and discipline of the employee.” ( Ibid .) As with the control test, p laintiff has not introduced and cannot introduce evidence that any of the f ormer o wner d efendants had control over her own “hiring, firing, direction, supervision, and discipline

. ” ( Patterson

, supra , 60 Cal.4th at

p. 499 [ruling that in the absence of evidence of suc h control, “Domino’s lacked the general control of an ‘employer’

. . . over17

relevant day

- to

- day aspects of the employment”’].) In the absence of such evidence, none of the former owner defendants meets the common law test as plaintiff’s employer.

a. The MOTA does n ot e stablish t hat t he
f ormer o wner d efendants h ad c ontrol o ver p laintiff’s e mployment Effectively conceding that she cannot establish actual control over her employment by any of the f ormer o wner d efendants, p laintiff argues that she “was not requi red” to prove
this element because Rehab Center had a theoretical “right to control” based on the MOTA provision giving Rehab Center “the right to confer and consult with [Care Center]” on various business “matters, concerning the operation of the [f] acili ty” for a
few months after the f acility was transferred while Rehab Center
remained on the f

acility’s license. Th is argument, however,
misconstrues both the terms of the MOTA as well as the common law employment test. As an initial matter, far from granti ng Rehab Center a right to control employees at the f acility, the MOTA assigned all such responsibility to Care Center. It expressly provide d that Rehab Center would terminate all of its own employees before the
transfer occurred. Thereafter, Care Center was responsible for hiring “all employees whom [Care Center] determine[d] to be necessary to effectively and efficiently operate the [f] acility.” The MOTA also provided that Care Center “shall be responsible for all aspects of administration of employees , including hiring, training, supervision, and termination,” as well as for providing all benefits, maintaining payroll records, issuing paychecks, and withholding taxes for its employees at the f acility. Plaintiff
admitted that she had no reason to belie ve that the terms of the MOTA “impacted [her] job duties,” or her “working conditions” ;18

nor could she point to any evidence showing that Rehab Center’s responsibility to ensure patient care resulted in any exercise of control over her day

- to

- day work.
In a ddition, a party’s contractual right to oversee or ensure quality control at a business generally is not sufficient to create a triable fact that the party exercised control over the business’s employees. (See, e.g., Curry

, supra , 23 Cal.App.5th at p p

. 29 4
, 304; Salazar v. McDonald’s Corp. (9th Cir. 2019) 944 F.3d 1024,
1029

– 1030 [holding that McDonald’s did not employ its franchisee’s employees because, although it had the ability to provide oversight and quality control of its franchisee’s restaurants, i t did “not retain ‘a general right of control’ over ‘day

- to

- day aspects’ of work at the franchises,” and its
“involvement in its franchises and with workers at the franchises

. . . [did] not represent control over wages, hours, or working
conditions” ]; Hen derson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111, 1115

– 1116, 1121, 1123.) The cases cited by plaintiff prove the same point. For example, in Medina v. Equilon Enterprises, LLC (2021) 68 Cal.App.5th 868, 878 ( Medina ) , the court found a joint

e mployment relationship based upon significant evidence of the putative joint employer ’s power to control beyond its contractual right to oversee or ensure quality control: the plaintiff testified
that the putative joint employer’s trainers had directly
th reatened to fire him and had caused other station operators to
be fired . In other words, there was direct control over the plaintiff’s employment. The contract also set forth “extremely detailed technical instructions” that were mandatory for station

own ers . ( Id . at p. 879.)19 In contrast here, there is no evidence of the former owner defendants’ control over plaintiff’s employment. And, the terms
of the contract in Medina are a far cry from Rehab Center’s mere ability to “confer and consult” under the MO TA. Mattei v. Corporate Management Solutions, Inc. (2020) 52 Cal.App.5th 116 ( Mattei ) is also distinguishable. That case involved a collective bargaining agreement where the signatory (CMS) lent its status to a third party to allow the third party to
hire union crewmembers. ( Id

. at p. 120

. ) CMS was a defined employer under the terms of the collective bargaining agreement and bound to pay its employees on a timely basis. ( Id . at p. 121.) Nothing in the collective bargaining agreement “relieve[d] signato ries of their responsibility

. . . when they ‘len[t]’ their signatory status to a nonsignatory.” ( Id . at p. 126.) Under these
circumstances

, “ CMS remained an employer with all concomitant responsibilities imposed by that agreement.” ( Id . at p. 127.)
T he re was also evidence of CMS participating in hiring decisions, listing jobs associated with the production with the call steward, identifying itself as a “joint producer,” administering payroll, and collecting and paying union dues on behalf of employees. ( Mattei , supra, 52 Cal.App.5th at p. 128.) Here, in contra s t, the MOTA is not vague as to which entity is responsible for employees, but rather expressly delegates “all aspects” of administering employees to Care Center. There is no agreement that adhere s the former owner defendants to plaintiff in any way. Furthermore, no such evidence of actual control by Rehab
Center exists. In fact, other than repeatedly citing a single MOTA provision providing for the right to “confer and consult,”

p laintiff points to no evidence showing that Rehab Center had a20

right to control her employment. As the trial court correctly explained, she only put forth the handbook and the text messages, which , as set forth above, do not create a triable issue
that Rehab Center contr olled her employment.

b. State l icensing r egulations d id n ot g ive
Rehab Center the r ight to c ontrol p laintiff’s e mployment The trial court also properly rejected p laintiff’s argument that Rehab Center’s obligation to comply with patient care regulations a s the f

acility’s licensee somehow transformed Rehab Center into the “employer” of all individuals who performed
services at the f

acility. The Fifth District rejected a similar argument in a different regulatory context in Taylor

, supra , 67 Cal.App.5th at p age 979. There, the plaintiffs argued that a surety that contracted with their direct employer, a bail bond company named Hotline, jointly employed them because it retained certain regulatory responsibilities, such as facing penalties if a defendant faile d to appear in court, and took actions related to those responsibilities, such as performing audits, “ensur[ing] bond paperwork was in
order

, ” and seeking “status updates [from Hotline] on forfeitures.” ( Id . at pp. 989, 993, 1003.) The Taylor court held that nothing in the regulations or contracts between Hotline and the surety gave the surety “the right to control the means and manner of Hotline’s employees day

- to

- day work.” ( Id . at pp. 993, 996.) Rather, the contracts gave Hotline “ ‘ exclusive control ’ over its agency and employees” ( id . at p. 992), and there was no evidence “demonstrating [the surety] had input into the hiring, firing, or payment of fugitive recovery personnel, dictated how such personnel accomplished their work, or supervised that work .” ( Id . at p. 1003.)21 The same is true here. The regulations cited by p laintiff show only that while it was named on the license, Rehab Center retained responsibility for ensuring a lawful level of patient care. ( See Taylor

, supra , 67 Cal.App.5th at p. 9 89.) These regulatory
duties , however, did not give Rehab Center control over Care Center’s employees. (See id . at p. 998.) Like the contract in Taylor , the MOTA also disavows Rehab Center’s control over employees, instead expressly delegating that resp onsibility to
Care Center. Plaintiff incorrectly argues that Rehab Center was not permitted to delegate its responsibility under Cal ifornia Code of Regulations

, t itle 22, section 72501 to provide adequate personnel to ensure patient care

. (See Ar a g ó n , sup ra , 60 Cal.App.5th at

pp. 511

– 512 [a licensee may lawfully delegate management of the “day

- to

- day operations” of a skilled nursing facility to a management company].) In any event

, p laintiff’s argument that a licensee’s duties are “nondelegable” has no bea ring on employer status. As the trial court correctly explained, Rehab Center’s nondelegable duties related to its potential liability “in a private action under the patients’ bill of rights,” not in a private action by Care Center’s employees under the L abor Code. (See, e.g., Cal ifornia Assn. of Health Facilities v. Dep ar t ment of Health Serv ices (1997) 16 Cal.4th 284, 302.)
Plaintiff’s contention that Rehab Center had the “ motive ” to control Care Center’s employees is equally irrelevant. Not only
did p l aintiff fail to raise this argument below ( Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1406 [failure to raise a point in the trial court constitutes a waiver on appeal] ) , but she cites no California law that confers “employer” status on an entity that22

could be “motivated” to care about the performance of another entity’s employees. ( Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) Citing Medina

, supra , 68 Cal.App. 5th 868 , p laintiff argues that Rehab Center imposed “extremely detailed techni cal instructions” regarding patient care on workers at the f acility based on various state regulations that apply to skilled nursing
facilities. But nothing in Medina suggests that the existence of

state

- imposed regulations governing the operation of a nu rsing facility can establish the requisite control over that facility’s workers and establish an employment relationship

— especially when the law provides that a licensee subject to those regulations may retain a management company to operate its facility, which can, in turn, hire its own employees. (See Ar a g ó n , supra , 60 Cal.App.5th at p. 504.) Finally, Guerrero v. Superior Court (2013) 213 Cal.App.4th 912 does not compel a different result. In that case, the petitioner was employed to provide in

- home sup port services to eligible recipients in Sonoma County (County) under the In

- Home Support Services Act (IHSS) . ( Id . at p. 917.) She was not paid for services she rendered to a program recipient, “despite a comprehensive scheme of federal and California st atutes, implemented within the County through enactment of local ordinances that spell out the responsibilities of County and the Sonoma County In

- Home Supportive Services Public Authority (Public Authority) for establishing and monitoring IHSS providers’ wages, hours, and conditions of employment.” ( Ibid .) The petitioner filed suit against the County and Public Authority; they demurred, and the trial court sustained their demurrer without leave to amend on the grounds that the County and23

Public Authority were not her employers or joint employers. ( Id

. at pp. 917

– 918.) The Court of Appeal held that the trial court erred. ( Guerrero v. Superior Court

, supra , 213 Cal.App.4th at p. 918.) The court reasoned that because the County and Public Authority
exerci sed considerable control over the structure and conditions of the petitioner’s employment, the petitioner’s pleading survived the demurrer stage of the litigation. ( Id . at pp. 937, 949.) Here, in contrast, there is no comprehensive legislative scheme (or anything for that mat t er) that gives the former owner defendants control over the conditions of plaintiff’s employment. And there is no evidence that they exercised any such control.

3. N one of the f

ormer o wner d efendants s uffered or

p ermitted p laintif

f to w ork Finally, the trial court correctly found that p laintiff did not establish a triable issue under the “suffer or permit” test. “ [ T ] he basis of liability” under this test “is the defendant’s knowledge of
and failure to prevent the work from occurri ng.” ( Martinez

, supra , 49 Cal.4th at p. 70; see also Futrell v. Payday California,
Inc. (2010) 190 Cal.App.4th 1419, 1434 [defendant was not the plaintiff’s employer because there was no evidence that it “had the power to either cause him to work or preve nt him from working”].) Plaintiff did not address the “suffer or permit” test in the trial court and has never before suggested that the f ormer o wner d efendants had the ability to “block” p laintiff from working. Setting that procedural obstacle aside , the undisputed evidence
establishe s that the f

ormer o wner d efendants were unable to prevent p laintiff from working because , as set forth above, Rehab24

Center ceased operations before p laintiff started working and had no authority over p laintiff’s schedule or w ork.
Plaintiff continues to rely upon Johnson’s text messages, arguing that they establish Rehab Center’s authority to prevent Care Center’s employees from working. But nothing in these text messages suggest s that Johnson or Rehab Center had such
authorit y. Plaintiff also argues that the “suffer or permit” test is intended to reach “sham arrangements” where the actual employer is a “straw man

, ” suggesting that there was some sort of sham arrangement here. However

, p laintiff cites no evidence
of a sham or that shows that Care Center is not a legitimate employer. Rather, t he undisputed evidence establishes that the parties entered into the MOTA so that Rehab Center could delegate to Care Center the responsibility to manage the f acility through a common, val id, and enforceable type of management agreement. (See Ar a

g ó n , supra , 60 Cal.App.5th at p. 504.)
C. Plaintiff f

ailed to p resent a t riable i ssue as to i ntegrated

e nterprise Initially, we note that the parties dispute whether plaintiff may rely upon the in tegrated enterprise theory. A ssuming that an integrated enterprise argument is available, “an employee who seeks to hold” an entity liable for another entity’s actions under an integrated enterprise theory bears a “heavy burden” to show that the entities, which are “presumed to have separate existences,” in fact “constitute a single employer.” ( Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 737 ( Laird )

, criticized on other grounds by Reid v. Google, Inc. (2010)
50 Cal.4th 512.) To meet that burden, p laintiff was required to satisfy four prongs: (1) interrelation of operations; (2) common25

management; (3) common ownership or financial control; and (4) centralized control of labor relations. ( I bi d .) Plaintiff did not present evidence meeting any of them.

1. N o e vidence s howing i nterrelation of o perations The interrelation of operations prong requires p laintiff to
show “ ‘“ a degree” ’” of control of Care Center’s operations “ ‘“ that exceeds the control normally exercised by a parent corporation ” ’ ” over a subsidiary. ( Maddock v. KB Homes, Inc. (C.D. Cal. 2007) 631 F.Supp.2d 1226, 1239 ( Maddock ) .) Factors include whether a parent company “kept [the subsidiary’s] books, issued its paychecks, or paid its bills,” and whether the companies had
shared employees, headquarters, or office space. ( Laird

, supra , 68 Cal.App.4th at p. 739.) None of these factors is present here. Not only are the
f ormer o wner d efendants not a parent entity to Care Center, but

p laintiff offers no evidence that any of the f orm er o wner d efendants kept Care Center’s books, issued its paychecks, or paid its bills. 13 Indeed, after Rehab Center ceased operations on August 9, 2015, it “neither had employees nor shared employees with Care Center,” “did not share offices with Care Cent er,” did

13 Plaintiff claims that “Rehab Center presumably ‘paid the bills ’ ‘ since the MOTA provided for it to “ensure that ‘the levels of supplies and inventory at the Facility , including without limitation, perishable food, non

- perishable food, central supplies linen, housekeeping and other supplies’ met requirements ‘under applicable law.’” This argument omits the adjacent language providing that Rehab Center was only obligat ed to supply the f acility on the day it was initially transferred to Care Center (“on the Operations Transfer Date”).26

not “receive any revenue from Care Center’s operations,” and had
no “access to Care Center’s financial information.” Plaintiff’s argument that Rehab Center shared addresses with Care Center because a corporate form listed the Mission
Street addres s is purely conclusory and unsupported by evidence. The form does not show that Rehab Center operated out of that address after selling the f acility to Care Center

. 14 And, while shared addresses can be a factor supporting interrelation of operations, the cases p laintiff cites involved significant additional evidence of interrelated operations not present here. (See Perry Farms, Inc. v. Agricultural Labor Relations Bd. (1978)
86 Cal.App.3d 448, 465 [owner owned “all stock” in subsidiary, “ma[de] all of the material decisions” for it, and “establish[ed] and negotiate[d] the deals in which the two corporate entities participate[d]”]; Taylor v. Shippers Transport Express, Inc. (C.D. Cal., Sept. 30, 2014, No. CV 13

- 02092 BRO (PLAx)) 2014 U.S.
Dist. Lexis 18006 1 [one company managed the other’s accounts payable, accounts receivable, and payroll]; Van Norman v. Harman Management Corp. (N.D. Cal., July 6, 1995, No. C93

- 2880 MHP) 1995 U.S. Dist. Lexis 9970 [one company kept the other’s books and personnel records an d issued its paychecks].) Finally, p laintiff contends that Johnson’s text messages “showed that Rehab Center was transferring employees from its other locations to the Facility” without citing any evidence that Rehab Center had any other locations. Not on ly is there no
evidence of such “other locations,” but, as set forth above,

14 Johnson testified at her deposition that she had no reason to believe that Rehab Center maintained a business at the facility address, now owned and operated by Care Center. She guessed that the address on the form was a “typo.”27

p laintiff merely speculates that Johnson’s messages were sent on behalf of Rehab Center, which, at that time, had ceased all operations. (See Silva v. See’s Candy Shops, Inc. (201 6)
7 Cal.App.5th 235, 246 [“An ‘issue of fact

. . . is not created by

“ speculation, conjecture, imagination or guess work ” ’”] , overruled in part on other grounds in Donohue v. AMN Services, LLC (2021)
11 Cal. 5th 58, 77

. )

2. No e vidence of c ommon o wnersh ip, m anagement
,

o r f inancial c ontrol Even though common ownership is “never enough” on its own, it is typically required of an integrated enterprise. ( Laird

, supra , 68 Cal.App.4th at p. 73 8 .) As the trial court correctly found, there is no common ownersh ip here. 15 Since its inception, Care Center has been solely and exclusively operated, maintained and controlled by Zemel and Schmukler. Zemel and Schmukler have no ownership interest in any of the f ormer o wner d efendant entities

. Likewise, Rechnitz has n o ownership interest in Care Center; neither do Brius Management, Brius, or Rehab
Center. Plaintiff even admitted that she has “no information” related to the alleged business relationships between the f ormer

o wner d efendants and Care Center.

15 Plaintiff argues that a sublease agreement, under which Care Center subleased the f acility to Rehab Center while the MOTA was in effect somehow shows common ow nership or management. But

, as the sublease provides , Care Center entered into that agreement so Rehab Center would “remain in legal possession of the [f] acility so that [Rehab Center’s] license to operate the [f] acility [would] remain in effect.” That d oes not show that the f

ormer o wner d efendants and Care Center had ownership or management in common

.28 Urging us to find a triable issue of fact, plaintiff again
relies up on mischaracterized text messages and a claim that Rehab Center was obligated to provide the f acility with supplies. But she cannot dispute that Care Center has never shared managers with any of the f ormer o wner d efendants. Plaintiff reported to Diehl and Mr. Tucker

, who worked exclusively for
Care Center. And as noted above, none of the f ormer o wner d efendants had any financial control over Care Center

— Rehab Center did not “receive any revenue from Care Center’s operations,” and had no “access to Care Center’s financial
information.”

3. No e vidence of c entralized c ontrol of l abor r elations The last prong, centralized control of labor relations, requires p laintiff to show that the f ormer o wner d efe ndants “control[led] the day

- to

- day employment decisions of” Care Center and “made the final decisions regarding employment matters related to [ p laintiff].” ( Laird

, supra , 68 Cal.App.4th at

p. 738.) The trial court correctly concluded that p laintiff did not show this factor

. After all, the evidence shows that Care Center
alone controlled p laintiff’s day

- to

- day employment. Other than continuing to mischaracterize Johnson’s text

messages, p laintiff again points to Rehab Center’s obligations
under the MOTA as evidence of centralized control. But a general right to oversee operations is insufficient to show control

over p laintiff’s day

- to

- day employment. (See Maddock

, supra , 631 F.Supp.2d at p. 1242 [“evidence that KB Home provided unspecified guidance to m anagement personnel

. . . and helped them to complete a ‘strategic plan’ does not demonstrate that KB Home had any involvement in the day

- to

- day personnel decisions”].)29 D

. Plaintiff f

ailed to p resent a t riable i ssue as to h er a lter

e go th eory Alter ego is “an extreme remedy, sparingly used.” ( Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 539 ( Sonora Diamond ) .) Courts invoke the doctrine only in “narrowly defined circumstances” where “one corporation uses another to perpetrate fraud, c ircumvent a statute, or accomplish some other wrongful or inequitable purpose.” ( Gopal v. Kaiser Foundation Health Plan, Inc. (2016) 248 Cal.App.4th 425, 431.) Establishing liability based on an alter ego theory

— to the extent such a theory is even cogniz able 16

— requires that the p laintiff demonstrate two
essential elements: (1) “a unity of interest and ownership

. . . [such] that the separate personalities of the corporation and the [individual] do not in reality exist

, ” and (2) “an inequitable
result if the acts in question are treated as those of the corporation alone.” ( Sonora Diamond

, supra , 83 Cal.App.4th at

pp. 538

– 539 .) Without evidence of these elements, “the alter ego
doctrine cannot be invoked .” ( Id . at p. 539.) Here, p laintiff adduced no evid ence of legal or equitable ownership, which is dispositive on its own. ( SEC v. Hickey (9th Cir. 2003) 322 F.3d 1123, 1128 [ “[o]wnership is a pre

- requisite to alter ego liability, and not a mere ‘factor’ or ‘guideline’” ] .) Even if common ownership were no t required, p laintiff’s contention that Care Center is a “mere instrumentality” of Rehab
Center is without merit. That standard “envisions pervasive

16 As the trial court acknowledged, the doctrine may not apply to Labor Code claims because the statut ory scheme is broad enough to impose liability on “oth er persons.” (See Atempa v. Pedrazzani (2018) 27 Cal.App.5th 809, 824

– 826.) We express no opinion on this issue.30

control” that “ ‘ dictates every facet of the subsidiary’s business

— from broad policy decisions to routine matters of day

- to

- day operation. ’ ” ( Ranza v. Nike, Inc. (9th Cir. 2015) 793 F.3d 1059,
1073 ( Ranza ) .) Plaintiff did not provide any such evidence. She cannot show that Rehab Center and Care Center disregarded corporate formalities or commingled funds. (See Sonora
Diamond

, supra , 83 Cal.App.4th at p. 538 [listing factors].) Instead, she cites only the same evidence

— the MOTA, the corporate form, the mischaracterized text messages, and the fact that Care Center chose to use Rehab Center’s prior handbook. None of these documents show that Rehab Center had any control over Care Center at all, much less that it dictated every
facet of its business. Plaintiff fares no better on the second prong. She presents no evidence there would be an “inequitable result” if her sole employer, Care Center, is treated as such. ( Sonora Diamond

, supra , 83 Cal.App.4th at p. 53 8 .) Her only argument is tha t California’s wage

- and

- hour laws are important as a matter of public policy. But no public policy supports requiring enti ties to pay people they did not employ. And the type of case has no effect on the alter ego analysis

— the “ ‘“ requisite element of fraud under the alter ego theory must come from an inequitable use of the corporate form itself as a sham, and not from the un derlying
claim. ”’ ” ( MacRae v. HCR Manor Care Services, LLC (C.D. Cal., Sept. 14, 2017, No. SA CV 14

- 0715 DOC (RNB)) 2017 U.S. Dist.
L exis 226097 p. *13.)31 DISPOSITION
The judgment is affirmed

. The former owner d efendants

are entitled to costs on appeal.
N OT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

_____________________, Acting P. J. ASHMANN

- GERST

We concur:

________________________, J. CHAVEZ

________________________, J. HOFFSTADT