INTRODUCTION
NATURE OF THE JOB
At the time of my termination , I had been driving for Skycar for three and one half years. I started in February of 2001 and was terminated on August the second of 2004.
This was the first time that I had ever driven for a living.
Ruth Kardashian, was the owner of Skycar and she is the one who interviewed me. I was asked for a DMV report, was given a map reading test, and went out on a training run the next day. Training consisted on riding along with another driver for one day. The next day I started work.Each day I was assigned a car. Most of the cars were
Lincoln Town Cars, but also a couple of station wagons. Each driver was given a cell phone for the day with which we communicated with the dispatcher. We were not allowed to pick up fares off of the street. Almost all of the fares were to and from LAX. We were told the amount of the fare for each customer. At the end of the trip, we collect the fare and waited at the airport to be called for the next order. At the end of the day we turned in a waybill where we recorded information on the customer's trip including mileage and the amount of the fare.Our pay consisted of the amount of the fares we collected less 55 percent which went to Skycar. Five dollars were collected towards
a $500 deposit to go against potential damage to the cars. I broke a tail light on one of the cars and was charged $450. The drivers paid for the gas. Skycar paid for the oil and car washes. Maintenance and repairs were done at SkyCar's own repair shop. When a customer paid by credit card, he or she was told that there was a mandatory 20% gratuity. Skycar collected half of the credit card gratuities. We were given neither W-2's or 1099's at the end of the year. Drivers were told that they were independent contractors, despite the fact that Skycar owned all of the cars and cell phones, and dictated when where and how the job was done.Ruth Kardashian's daughter,
Laura Nelson, owns Metropolitan Express (Metro). Metro is an airport shuttle service. Both Metro and Skycar shared the same office at 7135 Manchester Blvd. Westchester and a dedicated repair shop in Marina del Rey. Ruth Kardashian ran Skycar until January 2004, at which time Laura Nelson took over.Laura's first act as either the new management or owner was to take
another $5 per day in the form of an administrative fee from each driver.. This amounted to a reduction of wages of between 10 to 15 %. When some of the drivers complained, they were told that if they didn't like it they could leave. A couple of long term employees were fired in the first month. It was this in part that caused me to look into whether or not we were averaging minimum wage. My research lead me to discover that the California Minimum Wage did not include gratuities. Without counting gratuities I was making below minimum wage. I contacted the Division of Labor Standards Enforcement(DSLE) in downtown Los Angeles. They told me to keep a calendar of my daily income which I did. In June or July I went back to DSLE, this time the Long Beach office. I made a formal complaint, and they said that they would assign it to a case worker, who would contact the employer by mail. They said that the employer did not have to accept DSLE ruling and that they could appeal to the Superior Court. Considering Laura Nelson's personality I didn't think that there was a good chance that she would accept their ruling. During this period of time the Democrats and Republican's were fighting over the budget bill. The sticking point was over the Republican's demand to rescind a law that effected the right of an employee to sue his boss. The Republicans called it the "sue your boss" law, LC §2699. Believing that if I filed a complaint before any changes were made, I could preserve my rights under the then law, quickly filed a complaint in the Torrance, Superior Court. I told the case worker in Long Beach, that I had filed the complaint, and she said that she would cancel their case. She also said that a letter to SkyCar had already been sent out.Knowing that if Laura Nelson got the letter she might terminate me, I started carrying a small digital recorder with me. On. August 2, 2004 at the end of my shift Laura Nelson confronted me about the letter from DSLE. When I confirmed that I was the one who had made the complaint, she terminated me. Luckily, I
Having been fired I applied for
unemployment. Since, SkyCar denied my being an employee, my application was denied. I appealed this and the administrative judge ruled in my favor, determining that my job met the criteria of an employee..After being fired, I had the complaint served upon Laura Nelson as an individual and as an officer or general manager of SkyCar, Inc. I also made some discover requests upon SkyCar in the form of a records inspection demand, form interrogatories, and a request for admissions. I also started to work on and do research into amending the complaint to include
retaliation, waiting time penalty, and wrongful dischare in violation of public policy. I made three rough drafts of the amended complaint: 1 2 3
While doing research for these complaints, I discovered case law that said that a corporation could only be represented by an attorney. Laura Nelson answered in pro per, but it was only good for herself as an individual. That meant that SkyCar, Inc. was in default. Fearing that an amended complaint could "open up" the default on SkyCar, Inc., I decided to suspend making a motion to amend the complaint. I believed that if I got a default judgement against SkyCar, Inc., that I could later file a separate complaint on the retaliation and wrongful discharge actions.
Since there was no response to my discovery requests, I made a motion to compel, along with a request for entry of default, and a
request for a default judgment against SkyCar Inc. Notices that I had sent to SkyCar were being returned. 1 2 3. The hand writing on these letters matched the handwriting on Laura's answer to the complaint. I made and filed declarations in regards to these returned letters. I have been informed by a friend of mine who is still working there, that she had been telling creditors the SkyCar had gone out of business. She also returned a letter from DSLE in the same fashion. DSLE is probably investigating SkyCar for unpaid taxes after I won my case with EDD.
Judge Matusinka ruled in my
first hearing that my proof of service was defective and vacated my entry of default. No explanation as to what the defect was, was made. Researching the issue of proper service, I came to the conclusion that the service was proper. I made an exparte request for clarification and reconsideration. At this hearing the judge said that I needed to make a noticed motion for such a request. At this hearing, defendant Laura Nelson made an appearance The judge asked her if she was or had been an officer of SkyCar. Inc. Laura Nelson denied this, and made the preposterous claim that SkyCar, Inc. the corporation had gone out of business, and that she was now running a business called SkyCar as a sole proprietor. She claimed that it was a different business even though it had the same address. I thought that the judge would laugh at this, but instead ruled that I had not made service upon SkyCar the corporation, and admonished me for trying to serve a company that had gone out of business.I made one last
motion for reconsideration, while thinking about petitioning the Appellate Court for a writ of mandate to compel the entry of default. The judge this time denied the request without dignifying it with an explation.I decided not to appeal and had Ruth Kardashian served as an agent of SkyCar, Inc.
Issue: Has SkyCar, Inc. gone out of business as Laura Nelson stated in
the case conference February 18, 2005?