Judge Daniel M. Crowley, Case 19STCV30210 2023-01-30 Tentative Ruling

Judge: Daniel M. Crowley, Case: 19STCV30210, Date: 2023-01-30 Tentative Ruling

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Case Number: 19STCV30210 Hearing Date: January 30, 2023 Dept: 28

Defendant Ricky Romo Entrerprises's Motion for Summary Judgment

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On August 26, 2019, Plaintiff Jose Luis Arreola (“Plaintiff”) filed this action against Defendant Ricky Romo Enterprises (“Defendant”) for general negligence and premises liability. On October 7, 2019, Defendant filed an answer.

On June 17, 2021, Defendant filed a Motion for Summary Judgment to be heard on October 8, 2021. The Court continued the hearing on the motion to January 30, 2023. On January 17, 2023, Plaintiff filed an opposition. On January 25, 2023, Defendant filed a reply.

Trial is scheduled for March 22, 2023.

PARTY’S REQUESTS

Defendant requests the Court grant summary judgment on the basis that Plaintiff’s claims are barred by worker’s compensation.

Plaintiff requests the Court deny summary judgment.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)

Workers’ compensation is the sole remedy of an injury proximately caused by employee’s employment, during a time in which the employee was performing a service stemming from their employment. Labor Code § 3600. The injury cannot be caused by intoxication, self-infliction, or the injured party’s own aggression, but can be the result of the actions of another employee acting within the scope of his or her employment. Id. Labor Code § 3602(a) provides: “[w]here the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer.” This includes both physical and emotional injuries. (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 161.)

“[I]njuries sustained by an employee while going to or from his place of work upon premises owned or controlled by his employer are deemed to arise out of and in the course of the employment.” (Lewis v. Workers’ Comp. Appeals Bd. (1975) 15 Ca.3d 559, 562.)

“The combination of a personal act performed outside of regular working hours with the performance of acts in furtherance of the employer's business does not defeat a finding that the employee was acting in the course of his or her employment.” (Wright v. Beverly Fabrics, Inc. (2002) 95 Cal.App. 4^th, 346 354-355.) Acts of “personal convenience” are within course of employment if they are reasonably contemplated by employment. (Price v. Workers’ Comp. Appeals Bd. (1984) 37 Cal.3d 559, 568.) The court has found that among other factors, where the accident occurred on an employer’s premises while using the employer’s equipment for the employee’s own personal comfort, and where the employer expressly or impliedly permitted the employee to use the equipment, the injury arose out of and occurred in the course of the employee’s employment. (Lizama v. Workmen's Comp. Appeals Bd. (1974) 40 Cal.App.3d 363.)

DISCUSSION

Judicial Notice

The Court takes notice of the request documents, pursuant to Evidence Code Sections 452(c) and 452(d).

MSJ

Plaintiff alleges that he slipped and fell on Defendant’s premises. At the time, Plaintiff was an employee of Defendant and had finished a work shift at the subject premises. (UMF 12.) He was heading to the restroom to change out of his work uniform after eating his free employee meal. (UMF 2, 13-15.) Plaintiff filed a Workers’ Compensation claim, requesting compensation for the injuries that are subject to the lawsuit.

Although Plaintiff was technically clocked out at the time of the injury, Plaintiff’s injury should still be recoverable under Worker’s Compensation. Plaintiff was still on the subject premises in his work uniform. He had just finished his free meal—a benefit given to Defendant’s employees—and was heading to the restroom to change before leaving. This may be construed as either a personal act in furtherance of employer’s business—eating the provided meal and then changing after finishing a shift—or it may be considered an injury sustained while going from the place and premises of his employment. Regardless, the Court finds that this injury poses a strong enough connection to Plaintiff’s status as Defendant’s employee to invoke Labor Code § 3602. The burden shifts to Plaintiff.

Plaintiff argues he was not acting in the course of his employment, as he has been off the clock for approximately an hour. The mere fact Plaintiff was on the premises is not sufficient to establish the incident arose out of Plaintiff’s employment. Plaintiff cites to Wright v. State of California (2015) 233 Cal.App.4th 1218. Wright found that an employee, who was compelled to leave from a special “employee only” point of access, was subject to Labor Code § 3602 because she was compelled to use the entrance that exited into a hazardous condition as a result of her employment. This is distinct from this case. Plaintiff had finished his shift and eaten his free meal. (UMF 16.) He had made personal phone calls, indicating he was no longer acting as an employee. (UMF 16.) He was going to change in the restrooms accessible to both customer and employees. (UMF 18.) Nothing about this particular restroom or dangerous condition specifically resulted from his employment.

In addition, Plaintiff was not obligated to change before leaving the subject premises; he merely preferred to change before going home. (UMF 17.) While Defendant’s employees were required to be in uniform prior to clocking in, there was no requirement that they arrive and leave the premises in or out of Uniform. (UMF 21-23.) Plaintiff’s choice to change before going home was a personal choice, not out arising out his employment specifically.

The Court notes that Defendant has failed to allege an affirmative defense based on the exclusive remedy of Workers’ Compensation. In a common law action for damages, a defendant must affirmatively plead the exclusive remedy of workers' compensation. (Rowland v. County of Sonoma (1990) 220 Cal.App.3d 331, 334.) Defendant argues, nonetheless, that there is an exception to this general rule: “An exception to the duty to affirmatively plead a workers' compensation defense exists if the complaint directly or indirectly alleges facts indicating an employment relationship. (Doney v. Tambouratgis, [(1979) 23 Cal.3d [91] at pp. 97-98.) If the complaint or the record otherwise demonstrates an employment relationship, and if the jurisdiction of the Workers' Compensation Appeals Board is truly exclusive, then the trial court's jurisdiction is limited to a determination of the jurisdictional issue. (Rowland v. County of Sonoma, supra, 220 Cal.App.3d at 335. Here, however, the Complaint makes no reference to Plaintiff had Defendant having any employment relationship. The Complaint alleges only that Plaintiff was a patron on Defendant’s premises; there is no allegation of any employment. Accordingly, the Court finds that Defendant may not move for summary adjudication of an affirmative defense it did not plead.

CONCLUSION

Defendant Ricky Romo Entreprises's Motion for Summary Judgment is DENIED.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.