KISS loses summary judgment motion against hairstylist

Members of the rock band KISS lost a bid for summary judgment against claims of unpaid wages to a hairdresser on their touring crew who said he was fired for expressing concern over unsafe COVID regulations during tours in 2021 and 2022.

Los Angeles County Judge Armen Tamzarian rejected arguments by the band and management that the plaintiff was an independent contractor, not a full-time employee. David Mathews v. Gene Simmons et al., 23STCV03952 (L.A. Super. Ct., filed Feb. 22, 2023).

"The record demonstrates triable issues of fact on whether plaintiff was an employee," Tamzarian wrote Tuesday, citing a three-part test under Labor Code § 2775.

Plaintiff Dave Mathews is represented by Patricio T. Barrera of Barrera & Associates Attorneys in El Segundo and David M. Saldana of Excelsis Law PC in Burbank.

Saldana said the team was pleased with the result.

"The judge took a hard look at the case law statutes and decided, as we hoped he would, that California law takes a very strong policy position to protect employees," Saldana said in an interview. "He applied that to this case and threw out those motions for summary adjudication, so now we've got a trial to prepare for."

Defendants in the case include band members Gene Simmons and Paul Stanley, as well as manager "Doc" McGhee and the band's touring entity, known as GAPP. They are represented by Barry E. Mallen and Jennifer R. Komsky of Levinson Arshonsky Kurtz & Komsky LLP in Sherman Oaks.

Counsel for the defense did not respond to requests for comment by press time on Wednesday.

Mathews, the band's hairdresser from 1992 to 2022, filed a wrongful termination lawsuit in December 2023.

"The real crux of the case is wrongful termination based on Mr. Mathews complaining repeatedly that there was a lack of enforcement of COVID protocols, and that people were getting sick," Saldana said.

Not only did Mathews fall ill, the lawsuit claimed, but so did band members and other crew members, including one who died after McGhee failed to timely arrange transport to a hospital.

The defense filed motions for summary adjudication on all causes of action in May, claiming that Mathews was an independent contractor and that the state labor codes he sued under had no reach outside of California, making them irrelevant to events occurring on tour.

The motions cited an "ABC" test for determining if a worker is an independent contractor. Dynamex Operations, Inc. v. Superior Court, 4 Cal.5th 903 (2018).

The test stipulates that workers are independent if they are free from control of the employing entity, perform work outside of the entity's usual course of business and customarily engage in independent trade of a similar nature to the work in question, as outlined in Labor Code § 2775.

"It is undisputed that plaintiff performed services for GAPP as a hair stylist, performed his services without training from, or instruction, or supervision of the Defendants, dictated his own travel arrangements and, unlike other crew members classified as employees, invoiced GAPP for his services," one the defense's motions read, noting that Mathews was free to leave concert venues when not engaged in hair styling services.

In Tuesday's hearing, however, Tamzarian found that Mathews' work was part of the band's normal course of business.

"Unlike most bands, KISS's usual course of business involved maintaining each member's distinctive appearance," he wrote. "A reasonable factfinder could conclude plaintiff's job handling the band's wigs and haircare was part of the usual course of defendants' business."

Tamzarian further ruled that Mathews' side businesses in real estate development and celebrity merchandise sales were not similar to his work with KISS under the Labor Code, and that state employee protections extend to work performed elsewhere.

"Defendants rely on the premise that plaintiff did not disclose any violation of California or federal law," he wrote. "But rather than presenting evidence that plaintiff did not disclose any such violation, they rely on legal arguments that none of the statutes or regulations the first amended complaint alleges he complained about applied. Defendants do not submit affirmative evidence that plaintiff never disclosed any violation of California or federal law."