Judge: Anne Hwang, Case: 22STCV14648, Date: 2024-02-21 Tentative Ruling

Case Number: 22STCV14648    Hearing Date: February 21, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.      Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities: Declaration of Gina E. Och

2.      Separate Statement of Undisputed Material Facts

3.      Compendium of Exhibits in Support

OPPOSITION PAPERS

1.      None filed.

REPLY PAPERS

1.      None filed.

BACKGROUND

On February 23, 2023, Plaintiff Benjamin Pastrano (“Plaintiff”), by and through his guardian ad litem, filed a second amended complaint (“SAC”) against Defendants Pro-A Motors, Inc., Employbridge LLC, Real Time Staffing Services, LLC dba Select Staffing, Washington Building, Inc., and Does 1 to 20 for negligence and premises liability. Plaintiff alleges that on February 8, 2022, while working at a warehouse he fell off a loading dock and suffered injuries. (SAC ¶ 14–15.)

Defendant Pro-A Motors, Inc. (“Defendant”) now moves for summary judgment against Plaintiff arguing that no triable issue of fact exists. Defendant argues that Plaintiff was a temporary employee provided by Select Staffing, a staffing agency. Based on the facts provided in support of this motion, Defendant argues that Plaintiff’s employment fell under the “dual employment” or “special employer doctrine.” Therefore, Plaintiff’s exclusive remedy is worker’s compensation. No opposition has been filed.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)                       

DISCUSSION

Negligence and Premises Liability

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.)

Generally, workers’ compensation is the exclusive remedy against an employer for injury of an employee occurring in the course and scope of employment. (Labor Code §§ 3600, 3601.) Further, the claim of an employee does not affect the employee’s claim or right of action for damages resulting from the injury against any person other than the employer. (Labor Code § 3852.) 

Workers’ compensation law recognizes that there may be cases of “special/dual employment” – i.e., where any employer “lends” or “hires out” an employee to another employer. (See Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492.) If both the original (“general”) employer and the “borrowing” (“special”) employer have the right to exercise certain powers of control over the employee, the employee has two employers. Consequently, the employee is generally limited to workers’ compensation remedies for injuries sustained in the course of the “special employment” and may not bring a civil action against either employer. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174; Caso v. Nimrod Productions, Inc. (2008) 163 Cal.App.4th 881, 888-894; Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848, 856-857.)  

Whether a “special employment” relationship exists is tested primarily by whether the supposed special employer has the right to control and direct the detailed activities of the alleged employee or the manner and method in which the work is performed. (Kowalski, supra, 23 Cal.3d at 175; Collins v. Union Pac. R.R. Co. (2012) 207 Cal.App.4th 867, 879; see also Santa Cruz Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575, 582–83 [noting that in cases where the general employer is a temporary employment agency, a special employment relationship is typically found].)

Courts also consider several secondary factors in making the determination. In addition to control, “[t]he existence of a special employment relationship may be supported by evidence that (1) the alleged special employer paid wages to the employee, (2) the alleged special employer had the power to discharge the employee, (3) the work performed by the employee was unskilled, (4) the work tools were provided by the alleged special employer, (5) the work was part of the alleged special employer's regular business, (6) the employee expressly or impliedly consented to a special employment relationship, (7) the parties believed they were creating a special employment relationship, and (8) the alleged special employment period was lengthy. [Citations.]” (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 217.)

On the other hand, a “special employment” relationship may be negated by such factors as: the worker is skilled and has substantial control over operational details; the worker is not engaged in the borrower's usual business; the work is only for a brief period of time; the worker uses his or her own tools or equipment rather than those of the lending employer; and the borrower neither pays the worker nor has the right to discharge him or her. (See Marsh, supra, 26 Cal.3d at 492; Caso, supra, 163 Cal.App.4th at 889-893.)

“Where the evidence, though not in conflict, permits conflicting inferences, the existence or nonexistence of the special employment relationship barring the injured employee's action at law is generally a question reserved for the trier of fact.” [Citation.] ‘However, if neither the evidence nor inferences are in conflict, then the question of whether an employment relationship exists becomes a question of law which may be resolved by summary judgment.’ [Citation.]” (Brassinga, supra, 66 Cal.App.4th at 217.)

Here, Defendant sets forth the following facts:

-          During the morning shift on February 8, 2022, at approximately 11:30 a.m., and while he was working as a janitor. plaintiff BENJAMIN PASTRANO by and through his Guardian Ad Litem GABRIELA MENDEZ fell off the loading dock at Pro-A, which is located at 6423 E. Washington Blvd., Commerce, CA 90040. (UMF 1.)

-          Pro-A had a workers compensation insurance policy that covered plaintiff's injury at Pro-A. (UMF 3.)

-          In February 2022, Pro-A employed temporary workers from Select Staffing, a staffing agency. (UMF 5.)

-          Before the February 2022 incident, Pro-A assigned to the temporary employees, who worked at Pro-A and received from Select Staffing, similar job titles, duties, and responsibilities as the permanent employees hired by Pro-A. (UMF 6.)

-          Under the 2018 "Service Letter," between Employbridge Southwest, LLC dba Select Staffing and with Pro-A, Pro-A was to, inter alia, supervise, manage the day-to-day activities of, and provide appropriate information, training, and safety equipment to the temporary employees, who worked at Pro-A and received from Select Staffing. (UMF 10.)

-          Plaintiff had steady employment with Pro-A for a number of years, perhaps as early as 2016, and did so without asking Select Staffing's permission. (UMF 11.)

-          According to Pro-A, plaintiffs working hours at Pro-A were from 8:30 a.m. to about 5:00 p.m. or 6:00 p.m., which was overtime. (UMF 12.)

-          Pro-A authorized overtime for plaintiff. (UMF 13.)

-          Plaintiff worked at Pro-A from Monday through Friday. (UMF 14.)

-          Plaintiff had to punch a clock at Pro-A just the same as all permanent employees. (UMF 15.)

-          With respect to plaintiff, Pro-A asked Select Staffing for a general laborer, not a janitor, but Pro-A eventually assigned plaintiff to do janitorial work and explained his job duties to plaintiff at ProA. (UMF 16.)

-          Pro-A did not ask Select Staffing permission to assign plaintiff work at ProA or to train plaintiff by Pro-A. (UMF 17.)

-          Plaintiff worked at Pro-A as a janitor, who performed janitorial cleaning, and occasionally loaded or unloaded parts at the warehouse. (UMF 18.)

-          Before the February 2022 incident, plaintiff received job training and safety training by Pro-A at Pro-A. (UMF 19.)

-          Before the February 2022 incident, Pro-A gave instruction to and directed plaintiff what to do on the job, including daily supervision while on the job. (UMF 20.)

-          Before the February 2022 incident, Pro-A supplied plaintiff with equipment, such as Pine-Sol, soap, paper, a mop, a broom, and a dustpan, to perform his job at Pro-A. (UMF 21.)

-          Before the February 2022 incident, Pro-A had the authority to discipline plaintiff and to fire plaintiff without need for Select Staffing's authority, permission, or approval. (UMF 23.)

Here, Defendant has met its initial burden to show that it had the right to control and direct Plaintiff’s work. Additionally, Defendant has established that it could discharge Plaintiff, the work he was performing was unskilled, and Defendant provided Plaintiff’s work tools. Based on this evidence and the resulting inferences, a special employment relationship existed. Therefore, Plaintiff’s exclusive remedy is through worker’s compensation. The burden now shifts to Plaintiff to establish a triable issue of fact. Since Plaintiff does not oppose, he fails to meet his burden and the motion for summary judgment is granted.

CONCLUSION AND ORDER

Based on the foregoing, Defendant Pro-A Motors, Inc.’s Motion for Summary Judgment is GRANTED. Defendant shall file a proposed judgment within 10 days. 

            Defendant shall give notice of the Court’s order and file a proof of service of such.