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            © Daniel B. Wolfberg
Rolling Hills Estates California Attorney At Law
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The evidence in that case was that the pizza franchise owner directed and controlled the number, nature and type of pizzas to be delivered, the time when the deliveries would take place, the persons and locations to whom they would be delivered and the price to be charged. The only evidence offered in support of a finding that the deliveryman was an independent contractor was that he provided his own car, expenses and insurance, factors identified in the case law as secondary factors. The court concluded that the deliveryman "was subject to . . . total control as to all aspects of his job. When he reported to work, how long he worked, when he made deliveries and to whom and for what purpose were all dictated and controlled by [the franchise owner] . . . [The deliveryman's] only responsibility was to deliver, collect the money and return. Finally, [the franchise owner] retained the express contractual right to terminate the relationship at any time and without cause." (Toyota Motor Sales, supra, 220 Cal.App.3d at p. 877.) In both cases, the right to fire indicated that the work was controlled and instructions had to be obeyed. Neither case concerned a professional like Varisco, who exercised his skill and discretion without oversight, and reported directly to a client. Gateway could "instruct" Varisco to sign a new contract, and terminated the agreement when he would not do so, but Gateway did not control his work, and the at-will clause does not mean that it did.