Bowman v. Wyatt, 186 Cal.App.4th 286 (2010)

Plaintiff Barry A. Bowman filed this case after suffering devastating injuries when his motorcycle collided with a dump truck owned and operated by Tommie Wyatt, Jr. The collision occurred shortly after Wyatt had delivered a load of asphalt to a work site of the City of Los Angeles with which Wyatt was under contract. The jury found that Wyatt was an employee of the city and returned a verdict in Bowman’s favor in the amount of $15.7 million. On appeal, the city argued that the trial court had misinstructed the jury on the factors it should consider in determining whether Wyatt was an employee or independent contractor of the city.

The Court of Appeal agreed and reversed the judgment as to the city, holding that jury instruction CACI No. 3704 incorrectly states the law because it instructs a jury that the right of control, by itself, is dispositive in determining employee (as opposed to independent contractor) status and does not take into account other factors such as whether the worker is engaged in a distinct occupation or business, the skill required in the particular occupation, whether the worker supplies the tools and the place of work, the length of time for which the services are to be performed, etc. Cf. Tverberg v. Fillner Constr., Inc., 2010 WL 2557558 (Cal. S. Ct. 2010) (independent contractor may not hold hiring party vicariously liable for injuries resulting from contractor’s own failure to effectively guard against risks inherent in the contracted work).

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Photo of Tony Oncidi Tony Oncidi

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including…

Anthony J. Oncidi is the co-chair of the Labor & Employment Law Department and heads the West Coast Labor & Employment group in the firm’s Los Angeles office.

Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection. A substantial portion of Tony’s practice involves the defense of employers in large class actions, employment discrimination, harassment and wrongful termination litigation in state and federal court as well as arbitration proceedings, including FINRA matters.

Tony is recognized as a leading lawyer by such highly respected publications and organizations as the Los Angeles Daily JournalThe Hollywood Reporter, and Chambers USA, which gives him the highest possible rating (“Band 1”) for Labor & Employment.  According to Chambers USA, clients say Tony is “brilliant at what he does… He is even keeled, has a high emotional IQ, is a great legal writer and orator, and never gives up.” Other clients report:  “Tony has an outstanding reputation” and he is “smart, cost effective and appropriately aggressive.” Tony is hailed as “outstanding,” particularly for his “ability to merge top-shelf lawyerly advice with pragmatic business acumen.” He is highly respected in the industry, with other commentators lauding him as a “phenomenal strategist” and “one of the top employment litigators in the country.”

“Tony is the author of the treatise titled Employment Discrimination Depositions (Juris Pub’g 2020;, co-author of Proskauer on Privacy (PLI 2020), and, since 1990, has been a regular columnist for the official publication of the Labor and Employment Law Section of the State Bar of California and the Los Angeles Daily Journal.

Tony has been a featured guest on Fox 11 News and CBS News in Los Angeles. He has been interviewed and quoted by leading national media outlets such as The National Law JournalBloomberg News, The New York Times, and Newsweek and Time magazines. Tony is a frequent speaker on employment law topics for large and small groups of employers and their counsel, including the Society for Human Resource Management (“SHRM”), PIHRA, the National CLE Conference, National Business Institute, the Employment Round Table of Southern California (Board Member), the Council on Education in Management, the Institute for Corporate Counsel, the State Bar of California, the California Continuing Education of the Bar Program and the Los Angeles and Beverly Hills Bar Associations. He has testified as an expert witness regarding wage and hour issues as well as the California Fair Employment and Housing Act and has served as a faculty member of the National Employment Law Institute. He has served as an arbitrator in an employment discrimination matter.

Tony is an appointed Hearing Examiner for the Los Angeles Police Commission Board of Rights and has served as an Adjunct Professor of Law and a guest lecturer at USC Law School and a guest lecturer at UCLA Law School.