Judge Jill Feeney, Case 20STCV12616 2022-09-08 Tentative Ruling

Judge: Jill Feeney, Case: 20STCV12616, Date: 2022-09-08 Tentative Ruling

Case Number: 20STCV12616 Hearing Date: September 8, 2022 Dept: 30

Department 30, Spring Street Courthouse

September 8, 2022

20STCV12616

Motion for Summary Judgment filed by Defendant Mark Five Services, Inc.

DECISION

The motion is denied.

Moving party is ordered to provide notice.

Background

This is an action for motor vehicle negligence wrongful death arising from a vehicle-cyclist collision which took place in May 2019 and resulted in the death of Kori Sue Powers. Plaintiffs Dakoda Clifford through her Guardian Ad Litem Dustin Clifford, and River Nehen, a minor through her Guardian Ad Litem Ron Nehen, filed their Complaint against Defendants Mark Five Services, Inc. and Javier Soriano Maldonado on March 30, 2020.

On June 21, 2022, Defendant Mark Five Services, Inc. (“Mark Five”) filed its motion for summary judgment or for summary adjudication in the alternative.

Summary

Moving Arguments

Mark Five argues Plaintiffs’ causes of action for motor vehicle negligence, negligence, and survival action fail because Mark Five was not the employer of Maldonado and cannot be held vicariously liable for Maldonado’s conduct at the time of the accident. Mark Five also argues that the going and coming rule applies in this case.

Opposing Arguments

Plaintiffs argue that there are triable issues of material fact over whether Maldonado was Defendant’s employee. Additionally, the going and coming rule does not apply because Maldonado was in the middle of his cleaning route for Mark Five and the vehicle use exception applies.

Reply Arguments

None.

Judicial Notice

Mark Five requests judicial notice of Plaintiffs’ Complaint. The request is denied because it is unnecessary. The Court may always refer to the pleadings in the matter at hand.

Evidentiary Objections

Plaintiffs filed objections to Mark Five’s evidence.

The following objections are overruled: 1, 2, 3, 4.

Legal Standard

Summary Judgment Standard

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure 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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., section 437c(p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., section 437c(c).)

Negligence and Wrongful Death

“The elements of a cause of action for wrongful death are a tort, such as negligence, and resulting death.” (Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 685.)

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128, internal quotations omitted.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.)

Respondeat Superior

“[R]espondeat superior liability attaches if the activities that cause[d] the employee to become an instrumentality of danger to others’ were undertaken with the employer’s permission and were of some benefit to the employer or, in the absence of proof of benefit, the activities constituted a customary incident of employment.” (Purton v. Marriott International., Inc. (2013) 218 Cal.App.4th 499,509. Because it can be difficult to demonstrate “that a corporation is directly liable for the actions of its employees or agents,” respondeat superior “can allow a plaintiff to proceed against a corporation that could have been liable under a burdensome direct liability theory.” (Presbyterian Camp & Conference Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 515) “‘Employee[s]’ include most persons ‘in the service of an employer under any ... contract of hire’ ..., but do not include independent contractors.” (S. G. Borello & Sons, Inc. v. Dept. of Indus. Rel. (1989) 48 Cal.3d 341, 349, 256 (Borello).)

Discussion

Employee vs. Independent Contractor

Borello provides guidance for determining whether individuals at issue were employees or independent contractors. “Whether a common law employer-employee relationship exists turns foremost on the degree of a hirer’s right to control how the end result is achieved.” (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 528 [173 Cal.Rptr.3d 332,327 P.3d 165].) However, “the ‘control-of-work-details’ test…must be applied with deference to the purposes of the protective legislation” and that the “nature of the work, and the overall arrangement between the parties, must be examined to determine whether they come within the ‘history and fundamental purposes’ of the statute.” (S. G. Borello & Sons, Inc., 48 Cal.3d at p. 353.) These secondary factors include:

(a) whether the one performing services is engaged in a distinct occupation or business;

(b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;

(d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;

(e) the length of time for which the services are to be performed;

(f) the method of payment, whether by the time or by the job;

(g)whether or not the work is a part of the regular business of the principal; and

(h)whether or not the parties believe they are creating the relationship of employer-employee. (Ayala, 59 Cal.4th at p. 532.)

“Generally, . . . the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.” (S. G. Borello & Sons, Inc., 48 Cal.3d at p. 351 (internal citations omitted).)

Concerning the right to control, “What matters is whether the hirer retains all necessary control over its operations.” (Ayala, 59 Cal. 4th at 531, internal citations omitted.) “[C]ontrol over how a result is achieved lies at the heart of the common law test for employment… [W]hat matters under the common law is not how much control a hirer exercises, but how much control the hirer retains the right to exercise.” (Id. at p. 533.) “[T]hat a certain amount of freedom of action is inherent in the nature of the work does not change the character of the employment where the employer has general supervision and control over it.” (Id. at p. 531.) “The strongest evidence of the right to control is whether the hirer can discharge the worker without cause, because ‘[t]he power of the principal to terminate the services of the agent gives him the means of controlling the agent’s activities.’’’ (Id.)

Defendant’s evidence shows that Decedent was killed after being struck by a 2006 Toyota Tundra driven by Defendant Javier Maldonado. (UMF Nos. 1-2.) Maldonado was driving to a gas station at the time of the accident. (UMF No. 3; Maldonado Depo., 99:7-9.) Maldonado owns and operates a parking lot sweeping business, Five Star Sweeping, which provides services maintaining shopping centers, day porters, pressure washing, and parking lot sweeping. (UMF Nos. 4-5.)

Mark Five subcontracted Maldonado in January 2019. (UMF No. 8.) Either Mark Five or Maldonado could terminate the Subcontract Agreement. (UMF No. 10.) Mark Five did not train Maldonado. (UMF No. 6.) Mark Five did not supervise or control how Maldonado worked. (UMF Nos. 11, 13.) Mark Five did not supply equipment or tools for the parking lot sweeping jobs and did not require subcontractors to have trucks equipped with vacuums. (UMF Nos. 15-16.) Mark Five issued a form 1099 to Maldonado and did not pay him by the hour. (UMF Nos. 18-19.) Maldonado paid for all vehicle repairs and maintenance and was not reimbursed for gas or mileage. (UMF Nos. 20-21.) Mark Five provides subcontractors, including Maldonado, with the parking lot addresses and the scope of the work required by Mark Five’s customers. (UMF No. 6.) Maldonado could accept or reject parking lot sweeping jobs offered by Mark Five. (UMF No. 7; Stephens Depo., 42:20-25, 76:4-13, 78:12-15.)

Here, Mark Five’s evidence demonstrates that Maldonado was an independent contractor, rather than an employee. The contract between the parties mainly requires Maldonado to have insurance and does not address other rights. (Defendant’s Evidence, Exh. B.) According to the agreement, Mark Five subcontracted Five Star Sweeping to perform the work. (Id.) Mark Five allowed Maldonado to bid on work by conveying basic information including the addresses of the parking lots, the days of the week a lot needed to be cleaned, and the amount to be charged. Maldonado had discretion to turn down the work and to negotiate for more payment:

“Q: And how often does Mark Five Services offer you additional lots to clean and you decline to clean these lots?

A: Maybe once ever – maybe once every two to three months.

…

Q: And what is the reasoning why you didn’t take the jobs over the last two months?

A: It’s too far from my route. It would take me longer to get there. The time getting there is actually longer than the actual job.”

(Maldonado Depo., 81:7-18.)

“Q: All right. So do you ever negotiate that – the price per lot?

A: Yes, I do. When I don’t agree with the amount, it’s not enough, yeah, I charge more.”

(Maldonado Depo., 76:10-13.) Additionally, Mark Five relies on subcontractors like Maldonado to exercise judgment in performing their duties and does not provide instructions on how the work must be performed:

“Q: So how would he know to clean those areas if they weren’t communicated through you and/or Mark Five Services?

A: That’s – that’s his experience. So if a corner needs to be blown, that’s something that he knows to do that. That wouldn’t come from me.”

(Maldonado Depo., 45:9-22.) Aside from conveying basic information about the work, subcontractors like Maldonado are free to turn down the work, complete the work without instructions from Mark Five, can independently negotiate prices, and exercise judgment over how the work is completed. Based on the evidence provided, Defendant Mark Five has met its burden.

Now, turning to the evidence presented by Plaintiffs. The Court finds that as set forth below Plaintiffs have demonstrated that there are some genuine issues of material fact regarding the Borello factors.

The most important factor under Borello is the right to control, specifically the right to terminate without cause. Robert Stephens, President of Defendant Mark Five, testified that Mark Five had the power to terminate Maldonado’s contract at will. (Stephens Depo: 57:10-12).

Plaintiffs have also demonstrated genuine issues of material fact with respect to the other Borello factors as set forth below.

(a) whether the one performing services is engaged in a distinct occupation or business;

Mark Five’s own workforce included employees who operated parking lot sweepers like Maldonado. (SSAMF Nos. 7-8 and 11.)

(b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;

Because Mark Five hired parking lot sweepers as employees, this indicates that the work does not require an outside specialist. Moreover, Mark Five had the right to check and supervise Maldonado’s work. (SSAMF No. 27)

The skill required in parking lot sweeping is menial because it involves picking up garbage, pressure washing, changing garbage cans, and sweeping, which are not specialized skills. (SSAMF Nos. 12 and 13.)

(d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;

Mark Five supplied all the parking lots that Maldonado cleaned (SSAMF No. 25.)

(e) the length of time for which the services are to be performed;

In 2019, Maldonado had performed services for Mark Five for over 15 years. Moreover, Maldonado did not perform work for any other entity. (SSMF Nos. 22-25 and 32.)

(f) the method of payment, whether by the time or by the job;

Mark Five paid Maldonado monthly. (SSMF No. 26.)

(g) whether or not the work is a part of the regular business of the principal;

Maldonado’s work was part of the regular business of Mark Five, which provided shopping center maintenance services.

(h) whether or not the parties believe they are creating the relationship of employer-employee:

Maldonado and Mark Five both believed Maldonado was an independent contractor. Plaintiff notes that the written agreement was not translated for Maldonado who does not read English. (SSAMF Nos. 28 and 48-53.)

Course and Scope of Employment

Defendant Mark Five contends that even if Maldonado was its employee, he was not acting within the course and scope of his employment at the time of the accident.

Defendant argues that Maldonado’s conduct falls within the “going and coming” rule because he was driving to a gas station at the time of the accident. Defendant further argues that the required vehicle exception does not apply.

Generally, under the “going-and-coming” rule, one is not within the course and scope of employment while commuting to or from work; however, there is an exception to this rule, as stated in Lobo v. Tamco (2010) 182 Cal.App.4th 297. Thus, under the “required-vehicle” exception, an employee is within the course and scope of his employment while commuting “if the use of a personally owned vehicle is either an express or implied condition of employment or if the employee has agreed, expressly or implicitly, to make the vehicle available as an accommodation to the employer and the employer has reasonably come to rely upon its use and to expect the employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment.” (Id. at p. 301, internal citations omitted.)

Assuming arguendo that Defendant Mark Five met its burden on this issue, Plaintiffs have demonstrated that there is a genuine issue of material fact.

Here, Plaintiffs have brought forward evidence that the going and coming rule does not apply. At the time of the accident, Maldonado was driving a route consisting of 23 separate (noncontiguous) parking lots to clean for Defendant Mark Five. (SSAMF Nos. 38-40.) On the day in question, Maldonado had completed three of the parking lots and was going to get gas before completing the additional 20 lots on the list for the day. (SSAF No. 38.) The going and coming rule applies in cases where an employee ordinarily works at a particular location and the job duties do not ordinarily include driving on the job. (Huntsinger v. Glass Containers Corp. (1972) 22 Cal.App.3d 803, 809-810; Hinojosa v. Workmen's Comp. Appeals Bd. (1972) 8 Cal.3d 150, 157.) The rule focuses on the commute to work. Here, there is a genuine issue of material fact with regard to this issue because Maldonado was not commuting to or from home and regularly drove as part of his work duties.

Assuming that the going and coming rule did apply, Plaintiffs have demonstrated the existence of a genuine issue of material fact with respect to the application of the required vehicle use exception. Here, Plaintiffs have provided evidence that Maldonado’s own vehicle was an essential instrumentality for the completion of the job duties as he could not have completed the work otherwise. (SSAMF No. 43.) Moreover, Plaintiffs have provided evidence that Maldonado made his own vehicle available for numerous years as an accommodation and that Defendant Mark Five relied upon this accommodation as it was fully aware of the large number of parking lots assigned to Maldonado spanning an area that would require the use of a motor vehicle. (SSMF Nos. 15, 17 19, 21 and 43-47.)

Negligent Hiring and Training

The Court declines to discuss this theory of liability as it does not dispose of a cause of action.