Judge: Daniel M. Crowley, Case: 20STCV11623, Date: 2022-08-30 Tentative Ruling

Case Number: 20STCV11623    Hearing Date: August 30, 2022    Dept: 28

Defendants UMG Recordings, Inc. and Interscope Records’ Motion for Summary Judgment

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

BACKGROUND

On March 23, 2020, Plaintiff Saige Madison Harary (“Plaintiff”) filed this action against Defendants Interscope Records, a division of UMG Recordings, Inc. (“IR”), Lathan Moses Echols (“Echols”) and Erik Cabral (“Cabral”) for motor vehicle negligence and general negligence. Plaintiff later amended the complaint to include Defendants Hidden Pictures, LLC (“HP”), Mogul Vision, LLC (“MV”), Mogul Vision Music, LLC (“MVM”), Sara Shiri Fauer (“Fauer”), Lil Mosey, LLC (“Lil Mosey”), Joshua Marshall (“Marshall”), UMG Recordings, Inc. (“UMG”) and Lil Mosey IP Holdings, LLC (“IP Holdings”).

On May 13, 2020, IR and Cabral filed an answer and a Cross-Complaint against Roes 1-100 for indemnity, contribution, apportionment of fault, breach of contract regarding duty to defend, breach of contract regarding duty to indemnify and declaratory relief. 

On December 16, 2020, the clerk entered default against Echols.

On May 24, 2021, UMG filed an answer.

On June 1, 2021, MV, MVM, Lil Mosey, IP Holdings and Marshall filed an answer. 

On July 21, 2021, HP and Fauer filed an answer and a Cross-Complaint against Roes 101-200 for indemnity, contribution and apportionment of fault.

On April 21, 2022, IR and UMG (“Moving Defendants”) filed a Motion for Summary Judgment to be heard on July 5, 2022. The Court continued the hearing on the motion to August 30, 2022. On June 17, 2022, Plaintiff filed an opposition. On August 19, 2022, Cabral filed an opposition. Echols, MV, MVM, Marshall, Lil Mosey and IP Holdings (collectively “Opposing Defendants”) all filed an opposition that same day. HP and Fauer also filed an opposition. On August 25 and 26, 2022, Moving Defendants filed replies.

Trial is currently set for October 19, 2022.

PARTY’S REQUESTS

Moving Defendants request the Court grant summary judgment as there are no triable issues of material fact.

Plaintiff, Cabral, Echols, MV, MVM, Marshall, Lil Mosey, IP Holdings, HP and Fauer request the Court deny the motion.

OBJECTIONS

Moving Defendants’  Objections to Opposing Defendants:

Sustained: 1, 5, 7

Overruled: 2, 3, 4, 6

Moving Defendants’ Objections to Plaintiff:

All are OVERRULED.

Opposing Defendants Objections to Moving Defendants:

Sustained: 5

Overruled: 1, 2, 3, 4

Hidden Pictures Objections to Moving Defendants:

Sustained: 1

Plaintiff’s Objections to Moving Defendants:

Sustained: 1

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 Section 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.)

“It is a settled rule of the law of agency that a principal is responsible to third persons for the ordinary contracts and obligations of his agent with third persons made in the course of the business of the agency and within the scope of the agent’s powers as such, although made in the name of the agent and not purporting to be other than his own personal obligation or contract.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1178.)

A party is considered to be an independent contractor if, and only if, the following conditions are met: 1) the person is free from the control and direction of the hiring entity in connection with the performance of the work; 2) the person performs work that is outside of the hiring entity’s business; and 3) the person is customarily engaged in an independently established trade, occupation, or business of the same nature as the work being performed. Labor Code § 2775. Agency is only established when the agent is actually employed by the principal. California Civil Code § 2299.

DISCUSSION

Plaintiff alleges she was injured when a dune buggy negligently driven by Echols was overturned, landing on her hand.

Motor Vehicle Negligence

Plaintiff alleges that Echols was operating the dune buggy in the course and scope of employment with Moving Defendants and that Moving Defendants entrusted the dune buggy to Echols. Moving Defendants argue that Echols was an independent contractor, rather than an employee or agent of Moving Defendants. This is supported by their recording agreement with Echols, which sites that Echols is an independent contractor of UMG. (UMF 4.) An individual is considered to be an independent contractor if, and only if, that person is free from the control and direction of the hiring entity, the person performs work that is outside the hiring entity’s business, and the person is engaged in an independently established business. Here, Moving Defendants have provided a proper basis for the assertion that Echols was acting an independent contractor. Echols signed a contractor to provide a certain amount of recorded music and music videos; it was not an indefinite contract for continuous employment. (UMF 3-4.) Echols and UMR had mutual rights to approve the subject music video, meaning that neither party had complete control and direction over the other. (UMF 5.) No party opposes this classification.

Additionally, Moving Defendants argue they did not own or control the subject dune buggy, and did not entrust it to Echols. The dune buggy was owned by Cabral, who gave Echols permission to drive it. (UMF 16.) Moving Defendants were never a party who was given control over the vehicle. As such, Moving Defendants cannot be liable for negligent entrustment.

Plaintiff argues that as Moving Defendants had a controlling representative on site for the entirety of the production, Moving Defendants did retain control over the subject vehicle. As opposed to owners, they were lessee who allowed Echols to drive, despite having the authority to prevent such actions.

Cabral opposes the motion on the basis that the facts regarding whether Cabral gave permission are in dispute. Cabral argues that he did not give Plaintiff or Echols permission to drive the subject vehicle. (ECUMF 26-27.) He further alleges that Plaintiff’s description of the man who did give permission did not match with Cabral’s own appearance. (ECUMF 25.)

As the party who gave permission to Plaintiff and Echols to operate the vehicle is still in dispute, the Court finds that there is insufficient evidence to establish there is no dispute as to material fact over who controlled the subject vehicle at the time of the incident. The Court denies the motion as to this issue.

Negligence

Plaintiff’s cause of action for negligence is based on the allegations that Moving Defendants had a duty to make sure the video production was being done in a safe manner, that they knew Echols was under the influence of marijuana, and that they failed to assess the safety of the area. Moving Defendants allege that they did not have a duty, as their contract with HP provides that HP was to control, oversee, supervise and direct the production. (UMF 7.) This included the rental of the dune buggy.

Plaintiff and Opposing Defendants argue that, regardless of his status as an independent contractor, Moving Defendants retained control over the worksite in such a manner where they may be held liable for negligence. Opposing Defendants argue that Moving Defendants approved a treatment for the music video, including its shooting location as well as the use of the subject vehicle. (DMF 21.) At all times, Opposing Defendants retained authority to authorize or halt production, and gave instructions while on the shoot. (DMF 12, 26.)

HP argues HP’s control over production is in dispute. First, they note that the sole basis for the alleged undisputed fact is Moving Defendant’s attorney’s declaration, which provides no further foundation. HP argues further that Moving Defendants affirmatively retained control over the shoot. They specifically note that Vincenza Conticchio (“Conticchio”) acted as a video commissioner for the subject music video. As the video commissioner, Conticchio was on set all day and, among various tasks, was in charge of making sure production stayed on schedule. (HPAUMF 5, 34.) She provided instructions to Echols and had the authority to halt production should there be a safety issue. (HPAUMF 6-7.)

Moving Defendants argue in response that overseeing production and giving directions does not suffice to show control over production. Under case law, it mut be shown that the controlling party is controlling the methods or the work or the manner in which the contractor’s employees perform the operative details of the tasks. (Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 275.) The Court does not find that the undisputed material facts provide that Moving Defendants did not have this type of control. If Conticchio was able to halt production and request that it stay on schedule, Conticchio had an advanced level of control that may qualify as being able to control methods of work. Given that Conticchio could halt unsafe activity, this implies that Conticchio had some authority over how tasks were accomplished.

Moving Defendants further argue here was no breach of duty as Plaintiff has admitted the cause of the incident was Echols driving—meaning that there were no potentially relevant defects with the elements Moving Defendants did control that would have caused the incident. (UMF 14.) Opposing Defendants allege that Moving Defendants were responsible for ensuring Mosey did not drive during the shoot but failed to provide notice to Mosey as such. In allowing him to drive, Moving Defendants thus created an unsafe driving condition. (DMF 33.) This was further cemented by the fact that Moving Defendants were on notice that Mosey was an unlicensed and inexperienced driver, going so far as to hold a safety meeting to establish Mosey was not to drive the ATV. (DMF 31-32.) In addition, if Moving Defendants continued to have control over the set, that includes ensuring people were working safely on set. Based on the above, the Court finds that there is both a dispute of material facts and insufficient evidence to grant a motion for summary judgment. The Court denies the motion on both issues.

CONCLUSION

Defendants UMG Recordings, Inc. and Interscope Records’ 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.