Judge Elaine W. Mandel, Case 20STCV19986 2022-09-09 Tentative Ruling

Judge: Elaine W. Mandel, Case: 20STCV19986, Date: 2022-09-09 Tentative Ruling

Case Number: 20STCV19986 Hearing Date: September 9, 2022 Dept: P

Tentative Ruling
Merlo v. H&R Block Tax Company, Case No. 20STCV19986
Hearing Date September 9, 2022
Defendants Deutsch L.A., Inc., HRB Tax Group, Inc. and Caviar LA, LLC’s

Plaintiff Merlo alleges brain injury while filming a commercial for defendant H&R Block, arguing she was required to repeatedly strike her head against a desk. Merlo sues for unfair business practices and negligence. Defendants HRB Tax Group, Inc., advertising agency Deutsch L.A and producer Caviar move for summary judgment.

Defendants’ Objections: All OVERRULED.

HRB/Negligence
Under Privette, the hirer of an independent contractor is not liable for injuries suffered by an employee of the contractor. E.g., Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256, 264. This does not apply when there is a concealed hazard, or a hirer retained and exercised control over the work. Id. pgs. 271, 274-275; Kinsman v. Unocal Corporation (2005) 37 Cal.4th 659.

HRB argues it is not liable under Privette/Sandoval because it hired independent contractors Deutsch and Caviar to produce the commercial. HRB argues it did not retain or exercise control over plaintiff’s work. HRB separate statement Nos. 2-5. HRB hired Deutsche and Caviar as independent contractors, played no role in determining how the commercial would be produced and retained no control over anything plaintiff did during filming. HRB separate statement nos. 3-4. HRB provides evidence it had no ownership interest over the studio where the commercial was filmed. HRB separate statement no. 8. This is sufficient to shift the summary judgment burden.

Merlo argues HRB is liable for the acts of Deutsch under principal-agent law. This fails to address the narrowing of principal-agent liability of Sandoval and its application to the Privette rule. Merlo argues Privette/Sandoval does not apply because “when the independent contract [SIC] is acting as an agent of hirer, the hirer may be liable for the agent’s torts[.]” Opposition at pg. 6. An independent contractor, by definition, acts as its hirer’s agent. Under Sandoval and Privette, this principal-agent liability is narrowed when an independent contractor’s own employee is injured at work.

Merlo claims the “concealed hazard” exception applies. As explained in Sandoval and Kinsman, supra, the “concealed hazard” exception only applies to “landowner-hirers.” Sandoval, supra, at 271. HRB provides evidence it had no possessory or ownership interest over the jobsite; Merlo provided no contrary evidence. HRB separate statement No. 7. HRB is not a “landowner-hirer,” and Merlo failed to establish a triable issue of fact as to the concealed hazard exception.

Merlo next argues a triable issue of fact as to the “retained control” exception. Merlo argues HRB retained control thorough its agent Deustch. If a hirer could retain control through an agent, this purported exception would swallow the Privette rule. The “retained control” exception requires the hirer to directly retain control, not to control the injured employee or the contracted work through an independent contractor, such as Deutsch. See Sandoval, supra, at 275-276. HRB presented evidence it did not retain control over the production or Merlo’s work. Merlo failed to present contrary evidence. Privette/Sandoval applies, and there is no evidence that either exception applies. GRANTED as to HRB.

Deutsch and Caviar/Negligence
California workers’ compensation law is an employee’s sole remedy against their employer for a workplace injury. Collins v. Union Pacific Railroad Company (2012) 207 Cal.App.4th 867, 877. The principal test of an employer/employee relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired. Johnson v. Berkofsky-Barret Prods. (1989) 211 Cal.App.3d 1067, 1072. Other factors to be considered include whether the alleged employee supplied the tools or location of employment and whether the alleged employee was dischargeable at will. Id.

Deutsch and Caviar argue Merlo was their employee, presenting evidence she was under the direction and control of the producer and agency, the agency and producer could discharge her at will, and the producer and agency provided the location and equipment for the commercial. Defendants’ separate statement 18-30. These are indicia of employment, sufficient to fulfill Deutsch and Caviar’s initial summary judgment burden.

Merlo provides evidence that Extreme Reach/Talent Partners was her direct employer. Merlo Separate Statement No. 33. Extreme Reach is listed as Merlo’s employer on the filming call sheet, and Extreme is listed as her employer in Merlo’s prior worker’s compensation case. Id. 33 and 41.

In reply, Deutsch and Caviar argue Merlo had more than one employer and Merlo presents no evidence that Deutsch and Caviar were not co-employers. That Extreme was listed as Merlo’s employer on the call sheet creates a question of material fact. Merlo’s declaration that Extreme was her employer is supported by her knowledge and experience. This is sufficient to create a triable issue of fact as to the existence of an employment relationship between Merlo and Deutsch/Caviar. DENIED as to Deutsch and Caviar.

Unfair Competition/Unfair Business Practices
A claim under Bus. and Profs. Code §17200 et. seq. requires plaintiff to allege economic injury, defined as a loss of money or property. Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 323-324. An unfair competition action cannot be used as a substitute for a damage claim to seek compensation for a physical injury or other non-economic loss. Korea Supply Company v. Lockheed Martin Corporation (2003) 29 Cal.4th 1134, 1150-1151.

Defendants argue Merlo only presents evidence of physical injury, not economic injury. Defendants fulfill their initial burden on summary judgment. In opposition, Merlo presents no evidence of an economic injury and does not address defendants’ argument. GRANTED as to all defendants.