(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
2. Even if an agreement appears unambiguous, the Court must consider extrinsic evidence disclosing a latent ambiguity. [Wolf v. Superior Court (2004) 114 CA4th 1343, 1351]
3. No weighing of evidence. Matters going to the weight or credibility of evidence must be disregarded. One witness opposing the motion is sufficient to controvert a dozen supporting the motion. [Mann. V. Cracchiolo (1985) 38 C3d 18, 39; Binder v. Aetna (1999) 75 CA4th 832, 840]
4. Uncontroverted declarations must be accepted as true. [CCP $437c(e)]
5. The Court must consider not only plaintiff’s direct evidence but also all inferences that can be reasonably drawn from plaintiff’s evidence. A reasonable inference is sufficient to create a triable issue of fact and defeat a motion for summary judgment. [Hulett v. Farmers (1992) 10 CA4th 1051, 1059]
6. No weighing of reasonable inferences. [Aguilar v. Atlantic Richfield (2001) 25 C4th 826, 856]
7. Plaintiff’s declarations and evidence opposing the motion must be liberally construed, but defendant’s declarations and evidence are to be strictly construed. This reflects the cautious judicial attitude about granting summary judgment and depriving the plaintiff with the right of trial. [D’Amico v. Board of Medical Examiners (1974) 11 C3d 1, 21; Binder v. Aetna (1999) 75 CA4th 832, 839; Powell v. Kleinman (2007) 151 CA4th 112, 125 – 126]
Applying the above rules to the case at bar, defendant’s motion should be denied.
A. Ample Disputed Material Facts Exist to Deny the Motion
As set forth by plaintiff in Plaintiffs’ Separate Statement of Disputed and Undisputed Facts, plaintiff’s Statement of Additional Facts in Support of Plaintiff’s Causes of Action, and based on the declaration of Nancy Smythe and the depositions taken in this case, there are many material facts in dispute. Those facts include, but are not limited to, the following:
1. Nancy Smythe was an employee of ABC. As stated in Empire Star v. California (1946) 28C2d 33, 43, the right to direct another in their work is the most important element creating an employer-employee relationship. When Smythe returned to work for ABC in 2006 ABC’s CEO Chan had the right to direct and control how she did her job. [Smythe depo, at 19:16 -20:24; Chan depo, 123:18-20, quoted here:] (See Part 4 of 14.)
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