[00:00:00] Speaker 04:
Thank you.

[00:00:01] Speaker 04:
Good morning, your honor.

[00:00:02] Speaker 04:
May it please the court, I'm JP Camp.

[00:00:04] Speaker 04:
I represent the appellant, Amy Buchanan, who is also in the courtroom with us today.

[00:00:09] Speaker 04:
I would like to reserve two minutes for rebuttal, if I could.

[00:00:16] Speaker 04:
This is our second time before this court.

[00:00:19] Speaker 04:
The first time was about whether or not the two offices of Watkins and Lutofsky could be an integrated enterprise.

[00:00:26] Speaker 04:
That was remanded and the district court in this case found that the two offices are an integrated enterprise and also that under California's ABC test that Susan Watkins and Nancy Lutofsky are employees rather than independent contractors.

[00:00:42] Speaker 04:
The issue here is whether or not we have numerosity, whether or not we have the sufficient number of employees to make Watkins and Latofsky an employer under 42 USC section 1211, I'm sorry, 1211, 5A.

[00:01:01] Speaker 04:
That requires there to be 15,

[00:01:04] Speaker 04:
or more employees in each of 20 working days, I'm sorry, 15 or more employees on each working day for 20 or more calendar weeks in the current year or the previous year.

[00:01:17] Speaker 04:
The year that we're really looking at here is 2017.

[00:01:19] Speaker 04:
2016, I think we've excluded 2016 as meeting the criteria, but 2017.

[00:01:28] Speaker 03:
So we're only looking at 2017.

[00:01:30] Speaker 04:
It's my understanding as I look back at it.

[00:01:33] Speaker 01:
Yes Just begin by asking In your briefing you seem to sort of have criticisms about reliance on both exhibit J and exhibit M I guess it would just be helpful for me if you could say what set of data you would like us to rely on

[00:01:54] Speaker 04:
I'm not sure what what below we relied on exhibit J which had been produced in discovery exhibit M had not been produced and only showed up in the summary judgment briefing was there any was there any data that underlay exhibit M that you didn't have access to and discovery.

[00:02:10] Speaker 04:
There was.

[00:02:11] Speaker 04:
The Exhibit M includes information on employees that were only there partial weeks and therefore you wouldn't count them for that week.

[00:02:22] Speaker 04:
When certain people left and didn't leave, we did not have that information prior to seeing it in Exhibit M.

[00:02:27] Speaker 03:
Did you ask the district court for alternative relief, like giving you a chance to reopen discovery if you needed it to challenge that information?

[00:02:42] Speaker 04:
No, we did object to the exhibit, but we did not ask for that type of relief for further discovery.

[00:02:49] Speaker 01:
It looks to me like

[00:02:51] Speaker 01:
I think the column three on Exhibit M, the number of employees at pay date, is actually the same data that's contained in Exhibit J. It's similar.

[00:03:05] Speaker 04:
My understanding of them is that they broke it down to a weekly level, whereas Exhibit J, I believe, is every two weeks because they were doing pay periods every two weeks.

[00:03:14] Speaker 04:
And so that's, I think, what the main distinction is.

[00:03:17] Speaker 01:
OK.

[00:03:18] Speaker 01:
But otherwise, is there

[00:03:21] Speaker 01:
Is there some difference that you're aware of between that column on exhibit M and?

[00:03:25] Speaker 04:
In terms of the number, I don't recall seeing anything that was particularly different.

[00:03:32] Speaker 04:
The main issue is that when you add Susan Watkins and Nancy Latofsky as the district court did, but then you add Jake Latofsky, who was employed throughout that.

[00:03:42] Speaker 04:
We learned this by subpoenaing the payroll protection plan records.

[00:03:47] Speaker 04:
It was submitted to the bank and Jake Latofsky shows up as an employee there with employer number 14, which is lower than Amy's employee number 39.

[00:03:56] Speaker 04:
And in the deposition, his mother, Nancy Latofsky, said that he'd worked there while going to school.

[00:04:02] Speaker 03:
I'm looking at her depot er 185 and she does say the question was does your son work for the firm he did work for the firm when I don't recall the dates do you remember approximately how many years ago he started no he worked on and off different times summer you know and as if I'm correct and please tell me if I'm not correct I don't recall that there was any kind of a declaration from the son right.

[00:04:30] Speaker 03:
No.

[00:04:31] Speaker 03:
So how does the fact that at some time or other he worked for the firm without knowing what the dates were, how does that get you to the finish line?

[00:04:41] Speaker 04:
Well, under the Walters versus Metropolitan Educational Enterprises case, 519 U.S.

[00:04:47] Speaker 04:
Section 202, I'm sorry, 519 U.S.

[00:04:51] Speaker 04:
202, 1997 case, Supreme Court held that what's important is whether or not there's an employment relationship.

[00:04:58] Speaker 04:
And there's no, because,

[00:05:02] Speaker 04:
Jay Kulitovsky is still showing up in 2020 when they're applying for PPP loans.

[00:05:11] Speaker 04:
He's showing up as an employee there and we know from mother's testimony that he worked there before and we don't have any information that his employment relationship was ever terminated.

[00:05:20] Speaker 03:
But you don't have any, there was nothing in the record about a particular week that he worked or particular days in a week?

[00:05:28] Speaker 04:
I know but and that's the point is under the Walters case that that doesn't matter all that there needs to be as an employment relationship was was there anything in the record about his own availability.

[00:05:42] Speaker 03:
I mean, why he couldn't have been deposed or a declaration obtained?

[00:05:48] Speaker 03:
I mean, is there anything in the record that gives a reason like he had moved out of the jurisdiction of the court, we can't get in touch with him, mom doesn't know where he is or anything like that?

[00:05:58] Speaker 04:
No, nothing like that.

[00:05:59] Speaker 04:
I think the main thing is what we learned about him so late in the process, when we subpoenaed the PPP records and then took the deposition, Ms.

[00:06:08] Speaker 04:
Latovsky was sort of toward the end, I believe, of the reopened

[00:06:10] Speaker 04:
I think that the record establishes through the mother's testimony over it.

[00:06:28] Speaker 04:
Miss Latofsky's testimony and the PPP records that he had an employment relationship that was ongoing.

[00:06:35] Speaker 04:
He just worked periodically.

[00:06:37] Speaker 01:
Do you need Jake to be counted in order to prevail?

[00:06:40] Speaker 04:
it certainly gives us a lot more weeks.

[00:06:45] Speaker 04:
The way that we counted it, I think that we do make, I think we came up with 27.

[00:06:53] Speaker 04:
But when you add 3 to all of the different dates, which would be, I'm sorry.

[00:07:02] Speaker 04:
I'm sorry, go ahead.

[00:07:04] Speaker 04:
I mean, just as to as to as to Jake.

[00:07:11] Speaker 04:
I mean, just as to as to as to as to

[00:07:25] Speaker 04:
Originally, I don't think we counted him and we came up to 27.

[00:07:30] Speaker 03:
But your view as to the plaintiff is that no matter how long somebody is on medical leave and not working at all and not coming in, that they still count.

[00:07:42] Speaker 04:
That's what the Walters case would say.

[00:07:44] Speaker 03:
Well, that's your interpretation is that somebody is on medical leave no matter how long it is that they count.

[00:07:51] Speaker 04:
as long as they maintain an employment relationship.

[00:07:55] Speaker 04:
And I don't think that Watkins, even as of yesterday in state court, they were saying, well, we never terminated her employment.

[00:08:01] Speaker 04:
So all the way through at least the end of November, 2017, which is the date that we attribute the termination of Ms.

[00:08:09] Speaker 04:
Buchanan's employment, she continued working and was on leave.

[00:08:13] Speaker 02:
As I understand it, she was on medical leave, Ms.

[00:08:16] Speaker 02:
Buchanan, in May of 2017.

[00:08:19] Speaker 02:
through November 30th of 2017, is that correct?

[00:08:23] Speaker 02:
That's the dates that we... And you interpreted the termination of employment because she was taken off of the employer's medical insurance plan?

[00:08:32] Speaker 04:
That's right.

[00:08:32] Speaker 04:
She received a COBRA letter notifying her that she contacted that they had taken her off of the insurance.

[00:08:38] Speaker 04:
This was right after she had made a wage complaint to the labor commissioner.

[00:08:42] Speaker 04:
right after that they they took her off the insurance and she understood that along with receiving Cobra that she was now

[00:08:52] Speaker 04:
no longer employed.

[00:08:53] Speaker 02:
So even if she was not being paid on payroll during that medical leave, she was on the employer's group insurance medical plan?

[00:09:02] Speaker 02:
That's correct.

[00:09:02] Speaker 02:
Was she receiving any other benefits from the employer during that time?

[00:09:06] Speaker 04:
No, they were talking back and forth a little bit.

[00:09:09] Speaker 04:
She wanted to come back to work part-time and they were concerned whether or not that was going to work.

[00:09:13] Speaker 04:
That was happening in August.

[00:09:14] Speaker 04:
September they took her off the insurance plan initially.

[00:09:18] Speaker 04:
She called them, they put her back on, but then in November they took her off permanently.

[00:09:24] Speaker 04:
So that's why.

[00:09:25] Speaker 02:
So let's set aside Jake for one moment.

[00:09:29] Speaker 02:
It seems when you're looking, if one looks at exhibit M in the different columns,

[00:09:35] Speaker 02:
And I know you agree with the district court about adding the two employees, Nancy and Susan.

[00:09:46] Speaker 02:
If you were to add Amy Buchanan plus three during her medical leave, depending on which column you use, that seems to me to come out to different results.

[00:10:00] Speaker 02:
So if you use the, under exhibit M, the number of employees at the week start, if you add three to that number when Buchanan was on medical leave, you get to 18.

[00:10:15] Speaker 02:
But if you do it at the pay date start, I counted I think 21 or 22 weeks.

[00:10:23] Speaker 02:
Does that jive with the numbers that you have come up with?

[00:10:26] Speaker 02:
Because there have been different numbers and I think there was a bit of a muddle that you may be including Jake, but even if you set aside Jake, you may get past 20 weeks with just those three.

[00:10:36] Speaker 04:
Yes, and there are a number of ways that you can count that.

[00:10:40] Speaker 04:
And one of the ways we counted, we did come up with 27 doing it without Jake, but I believe it was without Jake.

[00:10:49] Speaker 04:
But yes, I mean, and that's the main thrust of the appeal is that there are genuine issues of material fact here that should have precluded summary judgment because there are factual questions about

[00:11:01] Speaker 04:
these documents and these records.

[00:11:04] Speaker 02:
Did the district court explain why the court was relying on the column that related to the week's start date?

[00:11:14] Speaker 02:
I have to admit, I don't recall that specifically.

[00:11:18] Speaker 04:
I don't recall that specifically, I'm sorry.

[00:11:23] Speaker 03:
All right, counsel, you're out of time, but we've taken up a lot of your time with questions, so we'll give you two minutes for rebuttal.

[00:11:29] Speaker 04:
Thank you.

[00:11:38] Speaker 00:
question.

[00:11:38] Speaker 00:
Good morning.

[00:11:38] Speaker 00:
May it please the court.

[00:11:40] Speaker 00:
I'm Daniel Watkins, representing the respondent.

[00:11:43] Speaker 00:
We believe that the court to district court did properly determined plaintiffs failed to present sufficient evidence establishing a tribal issue on the question of 15 employees.

[00:11:54] Speaker 00:
I would like to just briefly touch on the court's questions regarding discovery and go back to the procedure that was in place to discuss

[00:12:06] Speaker 00:
When we came up on the first motion for summary judgment with respect to integrated enterprise, this court sent it back to the district court for determination on the number of employees.

[00:12:17] Speaker 00:
The district court requested additional briefing on that issue, and after the briefing, then reopened discovery.

[00:12:25] Speaker 00:
She denied the motion for summary judgment, the first one without prejudice, and reopened discovery for the purposes of determining the 15 count.

[00:12:34] Speaker 00:
At that time, Exhibit M had been provided to, on two separate occasions, the plaintiff or appellant now, for them to use and to question on in that discovery process.

[00:12:46] Speaker 00:
They did what they did with it and discovery closed.

[00:12:49] Speaker 00:
Exhibit M was then again presented as part of the second motion for summary judgment.

[00:12:54] Speaker 00:
information available to them as to whether there was information available to them in discovery that form the basis of the suck.

[00:13:02] Speaker 00:
Exhibit M is a summary of personnel files and payroll records.

[00:13:06] Speaker 00:
They had the payroll records and they had the availability to ask for the personnel files when discovery was reopened and did not.

[00:13:14] Speaker 00:
to the left, which addresses the number of employees.

[00:13:16] Speaker 00:
So the court did properly consider exhibit them and properly counted the weeks on exhibit them.

[00:13:20] Speaker 00:
And to address the court's question on which column applies the column to the left, which addresses the

[00:13:30] Speaker 00:
those pay dates are on two-week intervals, which makes it difficult to establish what the number of employees was in between those pay dates.

[00:13:39] Speaker 00:
Column to the far right at the end of each week identifies the number of employees that were employed at the end of that week to give you a count.

[00:13:48] Speaker 02:
Why do you think Mr. Watkins that that would not be a tribal issue as to which is the appropriate payroll data that should be used?

[00:14:00] Speaker 02:
If one results in being below the threshold for ADA coverage and the other one exceeds it, why isn't that an issue that should be tried before the court?

[00:14:13] Speaker 00:
because the question is whether or not there were 15 employees for each week of 20 weeks in that year.

[00:14:19] Speaker 00:
The column to the right analyzes that.

[00:14:21] Speaker 00:
The column to the left does not.

[00:14:23] Speaker 00:
And there is no question of fact when it comes to column, the right column, the plaintiffs have not presented that.

[00:14:29] Speaker 00:
They have not presented any scenario where there are more than 15 employees for more than 20 weeks.

[00:14:37] Speaker 00:
But the scenario is right there.

[00:14:38] Speaker 02:
It's in one of the columns.

[00:14:40] Speaker 02:
And then if we look at the Supreme Court's language, it says the ultimate touchstone is whether the employer has an employment relationship.

[00:14:53] Speaker 02:
And if people are being paid, even if over a two-week cycle, and they have an employment relationship, and that results in something that exceeds the 20-week count, why isn't that something that, at a minimum, the District Court should have addressed why she was choosing one column versus the other?

[00:15:10] Speaker 00:
there's no evidence to suggest, well, let me back up.

[00:15:13] Speaker 00:
The two columns work together.

[00:15:16] Speaker 00:
The column to the right helps define the number of employees identified at each pay period.

[00:15:22] Speaker 00:
And there's reasons stated as to why that number might be different.

[00:15:26] Speaker 00:
For example, one employee left on such date, another employee joined on such date.

[00:15:30] Speaker 00:
So the employment

[00:15:32] Speaker 00:
relationship with the number of employees is identified and available for the plaintiff and propellant to have gone into that and discovered they did not.

[00:15:41] Speaker 00:
So the exhibit M provides an explanation.

[00:15:43] Speaker 00:
There is no other evidence to say that no, these aren't the number of employees at the end of each week.

[00:15:49] Speaker 02:
But Walters, as I read it, did not accept the notion that an employment relationship has to be someone being paid on that day.

[00:16:00] Speaker 02:
It's the employment relationship.

[00:16:02] Speaker 02:
It's not necessarily being compensated on a given day.

[00:16:05] Speaker 02:
And so if the first column suggests an employment relationship because over a two-week cycle an employee is being paid, it seems to me that that could be a basis to provide ADA coverage.

[00:16:19] Speaker 02:
So if you're looking at the Walter's language, you know,

[00:16:24] Speaker 02:
Under the interpretation we adopt, all one needs to know about a given employee for a given year is whether the employee started or ended employment during that year, and if so, when.

[00:16:35] Speaker 02:
He is counted for each working day after a viable end before departure.

[00:16:40] Speaker 02:
That language would seem to potentially encompass the first column as well as the second.

[00:16:46] Speaker 00:
But it would require to exclude the evidence in the second column and the explanation of employment for each of the employees.

[00:16:53] Speaker 00:
If the left column identifies an employee who is being paid, let's just say on March 1st, and yet on March 8th, that employee is no longer employed, column to the right identifies that.

[00:17:04] Speaker 00:
So the next pay period, if somebody else came in, they might have the same number, but it wouldn't necessarily reflect who was employed during those weeks.

[00:17:11] Speaker 03:
Council could you address whether we should count Jake and whether we should count plaintiff?

[00:17:19] Speaker 00:
Yes, and we'll start with Jake.

[00:17:22] Speaker 00:
Jake should not be counted.

[00:17:23] Speaker 00:
First point of appellant first raised the issue of counting Jake on appeal.

[00:17:28] Speaker 00:
Jake was not argued to be counted in the motion for summary judgment.

[00:17:33] Speaker 00:
But more important, there is no evidence whatsoever that Mr. Jake Latovsky was employed in 2016 or 2017.

[00:17:42] Speaker 00:
From what I'm hearing from the appellant, it sounds like once employed, always employed.

[00:17:46] Speaker 00:
But that's not the case.

[00:17:48] Speaker 00:
There needs to be some type of active component to an employment relationship.

[00:17:52] Speaker 00:
And if Mr. Latofsky is employed in 2020, Jake Latofsky, as evidenced by the PPP documents, there's nothing to suggest that he worked in 2016 or 2017.

[00:18:02] Speaker 00:
They had an opportunity to question Ms.

[00:18:05] Speaker 00:
Latofsky further on that.

[00:18:07] Speaker 00:
They had an opportunity to talk to Jake Latofsky, and they did not.

[00:18:10] Speaker 00:
there's not a piece of evidence, not a statement from the plaintiff, not a statement from anybody in the case that suggests Mr. Latofsky was employed in 2016 or 27.

[00:18:22] Speaker 02:
Before you answer the question about the plaintiff, when did Jake ever show up on the payroll records and when, if so?

[00:18:32] Speaker 00:
before the court, it's 2020.

[00:18:33] Speaker 00:
We didn't investigate it as part of the motion for summary judgment.

[00:18:37] Speaker 00:
What we do know is he's not an employee being paid in 2016 and 2017 because he's not listed on the payroll records for those years, which are in evidence.

[00:18:48] Speaker 00:
The first that he shows up as being a paid employee is in 2020 under the PPP documents.

[00:18:54] Speaker 00:
That's what's before the court.

[00:18:55] Speaker 00:
And I honestly don't know the history of Mr. Letovsky's employment as they stand here.

[00:19:00] Speaker 00:
And if you want to finish.

[00:19:03] Speaker 00:
I'm sorry.

[00:19:05] Speaker 00:
I'm sorry.

[00:19:06] Speaker 00:
I'm sorry.

[00:19:07] Speaker 00:
I'm sorry.

[00:19:08] Speaker 00:
I'm sorry.

[00:19:09] Speaker 00:
I'm sorry.

[00:19:10] Speaker 00:
I'm sorry.

[00:19:11] Speaker 00:
I'm sorry.

[00:19:12] Speaker 00:
I'm sorry.

[00:19:15] Speaker 00:
I'm sorry.

[00:19:16] Speaker 00:
I'm sorry.

[00:19:17] Speaker 00:
I'm sorry.

[00:19:18] Speaker 00:
I'm sorry.

[00:19:19] Speaker 00:
I'm sorry.

[00:19:21] Speaker 00:
I'm sorry.

[00:19:21] Speaker 00:
I'm sorry.

[00:19:24] Speaker 00:
I'm sorry.

[00:19:26] Speaker 00:
I'm sorry.

[00:19:27] Speaker 00:
I'm sorry.

[00:19:30] Speaker 00:
I'm sorry.

[00:19:31] Speaker 00:
I'm sorry.

[00:19:32] Speaker 00:
So even if we add three people, if we add her in, so we include Mrs. Latofsky, Mrs. Watkins, and the plaintiff from May 17 to November 30, we still land with 14 additional weeks plus the three from the beginning of 2017, and that's how we get to 17.

[00:19:50] Speaker 02:
But can I ask this?

[00:19:51] Speaker 02:
What is your view as to whether there was an employment relationship with the plaintiff during her medical leave?

[00:19:58] Speaker 00:
We're not disputing that she was employed.

[00:20:01] Speaker 00:
She was on leave and employed.

[00:20:03] Speaker 00:
We did not terminate her, and that's part of our plan.

[00:20:07] Speaker 03:
So you're conceding that she should be counted?

[00:20:11] Speaker 00:
Yes, for the purposes of the number, yes.

[00:20:15] Speaker 00:
And with that, it's 17, as the district court accurately determined.

[00:20:22] Speaker 00:
All right.

[00:20:23] Speaker 00:
So just, I did want to, if I didn't say this, I did want to correct

[00:20:29] Speaker 00:
I would like to make a statement that was made.

[00:20:32] Speaker 00:
As it relates to Mrs. Watkins and Mrs. Letovsky, there has been no actual determination that they were, in fact, employees.

[00:20:39] Speaker 00:
All that's been determined is a tribal issue of fact on that question.

[00:20:43] Speaker 00:
And as we look to and so we include them in on the count for exhibit M. And as we look to exhibit M, again, it's a summary of documents that were

[00:20:57] Speaker 00:
that the plaintiff could have looked at and done their own counts on, and they could have challenged the respondent on those counts and the discovery process that was specifically opened by the district court for this purpose.

[00:21:09] Speaker 00:
And with that, for pending any further questions, we'll submit.

[00:21:13] Speaker 03:
All right.

[00:21:14] Speaker 00:
Thank you.

[00:21:14] Speaker 00:
Thank you.

[00:21:27] Speaker 04:
Your honors exhibit M was not produced until the summary judgment briefing.

[00:21:33] Speaker 04:
There's no baits number on it.

[00:21:34] Speaker 04:
We never received that's why we objected to it.

[00:21:39] Speaker 04:
Jake Latofsky was raised in the summary judgment briefing.

[00:21:43] Speaker 04:
particularly you can see it, I reproduced it on page 5 of our reply brief from ECF number 72 in the district court's docket where we do raise the issue of Jake Latofsky.

[00:21:55] Speaker 04:
So that was not raised for the first time on appeal.

[00:21:58] Speaker 04:
It's right there in the summary judgment briefing.

[00:22:01] Speaker 04:
His mother stated, and this is Nancy Letovsky, that he worked on and off the firm at Summers and at various times while he was in school.

[00:22:10] Speaker 04:
She also testified about he was working at the City of Irvine for about a year and a half.

[00:22:14] Speaker 04:
This is when we were taking her deposition.

[00:22:17] Speaker 04:
and that prior to that, he was still in school.

[00:22:23] Speaker 04:
So he was still in school during this time period.

[00:22:25] Speaker 04:
He worked throughout that time frame.

[00:22:28] Speaker 04:
His employee numbers, number 14, was very low.

[00:22:32] Speaker 04:
They've never shown anywhere where he was terminated.

[00:22:35] Speaker 04:
I did ask specifically in deposition about the dates that he worked.

[00:22:39] Speaker 04:
They weren't able to tell me.

[00:22:40] Speaker 04:
I asked specifically, you know, when did he start?

[00:22:44] Speaker 04:
When did he finish?

[00:22:45] Speaker 04:
The information just was not forthcoming.

[00:22:48] Speaker 04:
And we also request, I think, the responses to

[00:22:54] Speaker 04:
to the request for production of documents are in the record where we asked for all of the information about these employees and didn't receive it all.

[00:23:03] Speaker 04:
So it's not like we didn't ask at all.

[00:23:06] Speaker 04:
We did not take Jake Latofsky's deposition or that in the reopen discovery period.

[00:23:12] Speaker 04:
That's true.

[00:23:13] Speaker 04:
But it's not like we didn't ask at all.

[00:23:15] Speaker 04:
And when you count him, particularly, we're way over the threshold of 15 employees for each of the 20 weeks in 2017.

[00:23:23] Speaker 04:
And even without him, as Judge Sanchez mentioned, you can make a count.

[00:23:27] Speaker 04:
It comes up to that.

[00:23:28] Speaker 04:
So there are at least questions of material fact.

[00:23:31] Speaker 04:
Thank you.

[00:23:32] Speaker 03:
Thank you.

[00:23:33] Speaker 03:
We thank counsel for their arguments.

[00:23:34] Speaker 03:
And the case just argued is submitted.

[00:23:37] Speaker 03:
With that case, we move to the next case on the argument calendar.