Posts tagged "Costa"

Da Costa, et al. v. Vanguard Cleaning Systems, Inc. (Lawyers Weekly No. 09-021-17)

COMMONWEALTH OF MASSACHUSETTS   MIDDLESEX, ss.                                                                                        SUPERIOR COURT                                                                                                                        CIVIL ACTION 15-04743   LUIZ THOMAZ DA COSTA & others[1] vs.   VANGUARD CLEANING SYSTEMS, INC.   MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT   The plaintiffs, Luiz Thomaz Da Costa and others, and the defendant, Vanguard Cleaning Systems, Inc. (“Vanguard”), have filed cross motions for summary judgment seeking a ruling on the plaintiffs’ employment classification status under the laws of Massachusetts and Connecticut in connection with commercial cleaning work which the plaintiffs claim they performed on behalf of Vanguard. G.L. c. 149, § 148B; Conn. Gen. Stat. § 31-222(a)(1)(B).  After hearing, and upon review and consideration, the plaintiffs’ cross-motion for summary judgment is ALLOWED, and Vanguard’s cross-motion for summary judgment is DENIED. BACKGROUND   The undisputed facts, and any disputed facts viewed in the light most favorable to the non-moving party, are as follows.  Additional facts are reserved for discussion below.[2] Vanguard is a corporation headquartered in California that operates a three-tier franchise system selling commercial cleaning services.  Vanguard sells licenses to use its name and trademarked Vanguard Cleaning Systems in defined geographic areas to regional master franchisees.  Regional master franchisees, in turn, enter into franchise agreements with unit franchisees, which conduct commercial cleaning. [3]  Vanguard receives four percent of regional master franchisees’ gross revenue, which consists of payments for commercial cleaning and fees levied on unit franchisees.[4]  Vanguard solicits business through national sales bids, and offers quotes to prospective customers on its website; Vanguard’s website forwards cleaning account leads to regional master franchisees. Regional master franchisees implement Vanguard’s commercial cleaning framework.  Vanguard provides regional master franchisees with extensive operating instructions, forms, and templates.  Vanguard authored the franchise agreements that regional master franchisees and unit franchisees execute, but is a non-signatory to these agreements.  Vanguard also drafted the franchise disclosure document, operations manual, cleaning safety manual, and commercial cleaning information manual.  Additionally, Vanguard supplies regional master franchisees with accounting software and templates, which include franchise agreements and account acceptance forms. Unit franchisees must meet current and future standards outlined in Vanguard’s operations manual.  Vanguard requires that unit franchisees form independent entities to conduct cleaning services.  Vanguard prohibits unit franchisees from billing client accounts for cleaning supplies; unit franchisees must purchase their own supplies.  Vanguard imposes minimum standard service requirements, along with detailed instructions on how to clean commercial spaces.  Vanguard also requires that unit franchisees attend a mandatory training program, and emphasizes that unit franchisees are subject to Vanguard’s quality control standards. Vanguard outlines a series of inspections and oversight methods in its operations manual.  For example, Vanguard representatives routinely conduct room-by-room quality control inspections if the client […]

Read more...

Posted by Massachusetts Legal Resources - October 25, 2017 at 7:32 pm

Categories: News   Tags: , , , , , , ,

Commonwealth v. Costa (Lawyers Weekly No. 11-190-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   14-P-911                          ­          Appeals Court   COMMONWEALTH  vs.  THOMAS J. COSTA. No. 14-P-911. Bristol.     May 8, 2015. – December 17, 2015.   Present:  Green, Milkey, & Maldonado, JJ. Motor Vehicle, Operating under the influence.  Evidence, Breathalyzer test.  Practice, Criminal, Reopening of evidence, Recalling witness, Judicial discretion, Failure to make objection, Failure to object.     Complaint received and sworn to in the Taunton Division of the District Court Department on July 23, 2012.   The case was heard by Thomas L. Finigan, J.     Justin D. Cohen for the defendant. Corey T. Mastin, Assistant District Attorney, for the Commonwealth.      MALDONADO, J.  After a bench trial, the defendant was convicted of operating a motor vehicle while under the influence of alcohol, G. L. c. 90, § 24(1)(a)(1).  On appeal, he asserts that (1) the breathalyzer test results were inadmissible because the Commonwealth did not follow certain regulations, (2) the judge erred by reopening the case to take additional evidence on the breathalyzer test after both parties had rested, and (3) the evidence was insufficient to support the conviction.  We affirm. Inadmissibility of the breathalyzer.  Regulations promulgated by the Executive Office of Public Safety govern how alcohol breath tests are to be administered and how breathalyzers should be maintained.  See G. L. c. 90, § 24K.  “For a breathalyzer test result to be valid and admissible in evidence, the Commonwealth must demonstrate compliance with those regulations that ‘go to the accuracy of the [breath testing] device or manner in which the [breathalyzer] test was performed.’”  Commonwealth v. Hourican, 85 Mass. App. Ct. 408, 411 (2014), quoting from Commonwealth v. Kelley, 39 Mass. App. Ct. 448, 453 (1995). The regulations require “periodic testing” to check the breathalyzer’s function.  “[P]rior to the admission of a breathalyzer result, the Commonwealth must prove . . . compliance with[] the requirements of a periodic testing program.”  Commonwealth v. Barbeau, 411 Mass. 782, 786 (1992).  The periodic tests must be done at a minimum “whenever the calibration standard [here, cylinders of gas, see 501 Code Mass. Regs. § 2.11(3) (2010)] is replaced and after the breath test device is certified by OAT [the office of alcohol testing].”[1],[2]  501 Code Mass. Regs. § 2.12(2) (2010).  Each periodic test consists of “five calibration standard analysis tests.”  501 Code Mass. Regs. § 2.12(1) (2010).  A calibration standard analysis test is a reading by the breathalyzer […]

Read more...

Posted by Massachusetts Legal Resources - December 17, 2015 at 4:13 pm

Categories: News   Tags: , , , ,

Commonwealth v. Costa (Lawyers Weekly No. 10-116-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11828   COMMONWEALTH  vs.  LOUIS R. COSTA.       Suffolk.     May 5, 2015. – July 9, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.   Constitutional Law, Sentence, Cruel and unusual punishment, Parole.  Due Process of Law, Sentence, Parole.  Parole.  Homicide.  Practice, Criminal, Sentence, Parole, Capital case.     Civil action commenced in the Supreme Judicial Court for the county of Suffolk on November 28, 2014.   The case reported by Hines, J.     David J. Apfel (Katherine C. Sadeck with him) for the defendant. John P. Zanini, Assistant District Attorney, for the Commonwealth. Benjamin H. Keehn, Committee for Public Counsel Services, for Committee for Public Counsel Services & another, amici curiae, submitted a brief. John H. Cunha, Jr., & Charles Allan Hope, for James Costello, amicus curiae, submitted a brief. LENK, J.  In Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012) (Miller), the United States Supreme Court held that the imposition of mandatory life sentences without the possibility of parole on individuals who were under the age of eighteen at the time of their crimes (juvenile offenders) violates the Eighth Amendment to the United States Constitution’s prohibition on “cruel and unusual punishments.”  Approximately one year later, in Diatchenko v. District Attorney for the Suffolk Dist., 466 Mass. 655, 666 (2013) (Diatchenko), S.C., 471 Mass. 12 (2015), this court held that Miller applies retroactively to cases on collateral appeal.  We also went beyond the Court’s holding in Miller and determined that art. 26 of the Massachusetts Declaration of Rights, which prohibits “cruel or unusual punishments,” bars even the discretionary imposition of a sentence of life without the possibility of parole on juvenile offenders.  Id. at 671. Prior to our decision in Diatchenko, juvenile offenders convicted of murder in the first degree in the Commonwealth received mandatory sentences of life without the possibility of parole, like adult offenders convicted of the same offense.  Id. at 667.  Our decision in Diatchenko invalidated the sentences of all juvenile offenders sentenced under that sentencing scheme, to the extent to which those sentences rendered the offenders ineligible for parole.  Id.  In Diatchenko and Commonwealth v. Brown, 466 Mass. 676 (2013) (Brown), decided on the same day as Diatchenko, we determined that the proper remedy was to excise from the sentencing statute, when applied to juvenile offenders, the provision regarding […]

Read more...

Posted by Massachusetts Legal Resources - July 9, 2015 at 7:49 pm

Categories: News   Tags: , , , ,