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Lapensee v. Empire Properties10/30/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
This is a wrongful termination action against two individuals and two entities, with the plaintiff claiming that all four defendants were her employers. Two defendants (one individual and his related entity) moved for summary judgment on the ground that they were not the plaintiff's employers. The trial court granted the motion, ignored the fact that there are two cross-complaints, and purported to enter a final judgment. We dismiss the plaintiff's appeal from that non-appealable judgment, treat the appeal as a petition for an extraordinary writ only insofar as necessary to direct the trial court to vacate the judgment, and offer some guidance for the parties and the trial court on remand.
FACTS
A.
In September 1999, Francine Lapensee became the resident manager of Del Valle Terrace Apartments. Lapensee was hired by Linda Mallory, the property manager of the apartment complex, which was and is owned by Empire Properties, LLC. Mallory left later that year but Lapensee remained on the job.
In January 2000, Dave Hortze (doing business as Napa Properties) replaced Mallory as Empire Properties' property manager. A written contract between Hortze and Empire Properties gave Hortze the authority to hire, supervise and discharge "a resident manager . . . to assist in the accomplishment of duties," and Empire Properties agreed to pay all costs for a resident manager (including salary, payroll taxes, and workers' compensation insurance). Under the agreement, the resident manager was to be Hortze's "employee or independent contractor ," with Hortze having "complete authority" over "selection and termination."
Lapensee stayed on as resident manager until June 2001, at which time her employment was terminated by Hortze. Throughout the period of Lapensee's employment, her wages, payroll taxes, and insurance were paid by Empire Properties.
B.
In early 2002, Lapensee sued Hortze, his company (Napa Properties), Empire Properties, and Steve Hartunian (Empire Properties' owner) for damages on various theories -- hostile work environment, gender discrimination, harassment, nonpayment of wages, and wrongful termination in violation of public policy -- and alleged that all four defendants were her "managers and employers." Hortze and Napa Properties answered the complaint and cross-complained against Hartunian (but not Empire Properties). Empire Properties and Hartunian answered, cross-complained against Hortze and Napa Properties, then moved for summary judgment vis-à-vis Lapensee's complaint or, in the alternative, summary adjudication of issues, on the ground that Lapensee was not their employee. At the same time, Hartunian moved for summary judgment vis-à-vis the cross-complaint filed by Hortze and Napa Properties.
In support of their motion, Empire Properties and Hartunian presented Empire Properties' contract with Hortze, Lapensee's deposition testimony, and Hartunian's declaration to show that it was Hortze, not Empire Properties or Hartunian, who controlled Lapensee's day-to-day activities. In opposition, Lapensee presented her own declaration in which she stated that she worked for both individuals and both entities, that she had been hired by Hartunian and Mallory (Hortze's predecessor), and that she was at all times paid by Empire Properties, LLC. The recor
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