Judge Jill Feeney, Case BC712456 2022-08-17 Tentative Ruling

This is an action for negligence, loss of consortium and battery arising from a workplace accident which took place in January 2017. Plaintiffs Patrick Gallaway and Amber Gallaway filed their Complaint against Black Entertainment Television, LLC, Mar Vista Entertainment, LLC, Silverscreen Pictures Entertainment, Inc., and Danielle Mone Truitt on June 29, 2018.

Moving Defendants seek summary judgment on the grounds that (1) Plaintiffs’ cause of action for negligence against Silverscreen Pictures Entertainment, Inc. is barred by the Labor Code exclusive remedy rule, (2) the cause of action for negligence against Danielle Mone Truitt is barred by the Labor Code excessive remedy rule, (3) the cause of action for negligence against Mar Vista Entertainment is without merit because Mar Vista was not negligent, owed no duty to Plaintiffs, and does not have respondeat superior liability; and (4) the cause of action for battery against Danielle Mone Truitt is without merit because she did not act with the intent to cause Plaintiff Patrick Gallaway to be injured

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).)

The Workers Compensation Act (“WCA”) governs compensation to employees for injuries incurred in the course and scope of their employment. (See Cal. Const., art. XIV, § 4; Cal. Labor Code, § 3201; Charles J. Vacanti, M.D., Inc. v. State Compensation Insurance Fund (2001) 24 Cal.4th 800, 810.) Compensation under the WCA is an employee’s exclusive remedy against an employer for injuries sustained out of and in the course of employment. (See Cal. Labor Code, §§ 3600(a), 3602(a).)

Whether exclusivity bars a cause of action against an employer depends on whether the alleged injury falls within the scope of the exclusive remedy provisions. (See Charles J. Vacanti, M.D., Inc., supra, 24 Cal.4th at 811.) The exclusive remedy provisions apply only in cases of industrial personal injury or death. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.) The exclusive remedy provisions do not apply where the dual capacity doctrine applies. (See id.) The dual capacity doctrine applies where the injury stems from an employer-employee relationship that is distinct and invokes a different set of obligations than the employer’s usual duties to its employee. (See id.; Cole v. Fair Oaks Fire Protection District (1987) 43 Cal.3d 148, 161-62.) Causes of action predicated upon an injury that is collateral to or derivative of an injury compensable by the exclusive remedies of the WCA may be subject to the exclusivity bar. (Id.) “While common law tort claims are generally preempted [citation], claims for separate injuries under distinct statutory schemes are not.” (Veguez v. Governing Board of Long Beach Unified School District (2005) 127 Cal.App.4th 406, 418.)

Subject to certain exceptions, employees may not sue their employers or coworkers for injuries suffered in a workplace as they were limited to the exclusive remedies of the Workers’ Compensation system. (See Lab. Code, §§ 3601, 3602.) An employee may maintain a tort action against his or her employer for workplace injuries resulting from a willful physical assault by the employer. (See id., § 3602(b); Herrick v. Quality Hotels, Inns & Resorts, Inc. (1993) 19 Cal.App.4th 1608, 1617.) An employer generally cannot be held vicariously liable for damages resulting from a coworker’s physical act of aggression, unless the employer ratifies or directs the coworker’s act. (See Herrick, supra, 19 Cal.App.4th at 1618.)

Here, Moving Defendants’ evidence shows that Plaintiff Patrick Gallaway was injured while working as a stunt performer for the television series, “Rebel.” (UMF No. 2.) Silverscreen is a production company that was hired as an independent contractor by Mar Vista Entertainment, LLC to be the production company for the series. (UMF Nos. 3-5.) Silverscreen owns Project Rebel The Series, Inc., and formed the company for the sole purpose of fulfilling Silverscreen’s obligations as the production company for “Rebel.” (UMF No. 7; Kyle Depo, p.50:12-51:3.) Project Rebel The Series, Inc. hired Gallaway to perform as a stunt actor on an episode of “Rebel.” (UMF No. 8.) Project Rebel the Series, Inc. controlled and specified Gallaway’s workdays, location, and hours. (UMF No. 9.)

Project Rebel the Series, Inc. procured worker’s compensation coverage that applies to the incident. (UMF No. 17.) After he was injured, Plaintiff Patrick Gallaway made and continues to pursue a workers’ compensation claim in which he is claiming workers’ compensation benefits. (UMF No. 18. Gallaway Depo., p. 33:14-20.)

The chokehold stunt Plaintiff Patrick Gallaway performed when he was injured was choreographed by William Washington, a professional and competent stunt coordinator. (UMF No. 36.) Washington educated and instructed Truitt and Gallaway on how to perform the fake chokehold stunt. (UMF No. 37.) Prior to the incident, Truitt did not apply too much force to the neck of actor Michael Masisni. (Masini Decl., ¶¶6-7.) Masini did not require a stunt double to perform the fake chokehold in his place. (Id.) At the time of the incident, Truitt performed a maneuver where she dropped her elbow to Gallaway’s upper back or neck in accordance with the choreography and instructions she received from the stunt coordinator. (UMF No. 53; Truit Decl., ¶¶9-11.) Truitt did not intend to injure Gallaway and met him for the first time on set. (UMF No. 54; Truitt Decl., ¶¶14-15.)

Moving Defendants meet their burden of proving that Gallaway and Truitt were both employees of Project Rebel The Series, Inc., owned by Silverscreen, which was in turn an independent contractor hired by Mar Vista, at the time of the incident and were performing a stunt within the course and scope of their employment. The evidence also shows Truitt did not intend to injure Gallaway during the incident because she had only met him on set and was following the stunt coordinator’s instructions. Thus, Gallaway is precluded from suing Silverscreen and Truitt for injuries he sustained in the workplace. The burden shifts to Gallaway.

Plaintiff Patrick Gallaway did not respond to this motion for summary judgment and fails to meet burden to show that triable issues of material fact exist over whether his claims against Mar Vista, Silverscreen and Truitt are barred by Labor Code sections 3600 and 3602.

“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.)

“[W]hen employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594.) “By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract.” (Id. at pp. 601-602. Additionally, “a hirer generally has no duty to act to protect the contractor’s employee when the contractor fails in that task.” (Id. at p. 602 (citation omitted).) The Privette doctrine applies when the party that hired the contractor failed to comply with workplace safety requirements concerning the precise subject matter of the contract, and the injury is alleged to have occurred as a consequence of that failure. (Id. at p. 594.) “It would be unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over the safety at the worksite. In fairness, . . . the imposition of tort liability depends on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor’s employee.” (Kinsman v. Unocal (2005) 37 Cal.4th 659, 670.)

The general rule will bar a plaintiffs’ action against the hirer unless a specific exception applies. Under the Hooker exception to the Privette doctrine, the hirer of an independent contractor may be liable to the employee of the independent contractor only if Plaintiff can establish that the hirer: (1) retained control over the operative details of the contracted work, and (2) exercised that control in a way that affirmatively contributed to the plaintiff’s injuries. (Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, 202.)

The retained control must be “over the methods of the work or the manner in which the contractor’s employees perform the operative details of their tasks.” (Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 275 (citation omitted).) Broad powers of supervision and control with respect to the results of the work do not qualify as retained control. (Id.) The key issue is not whether the hirer retained control over safety conditions at the worksite, but rather whether the hirer “retained a sufficient degree of control over the manner of performing the contracted work.” (Id.)

“[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)

In addition to actually retaining control, a hirer must exercise that control in a way that affirmatively contributes to the injury. (Id. at 276) A hirer actually exercises control when it involves itself “such that the contractor is not entirely free to do the work in the contractor’s own manner.” (Id.) Affirmative contribution means that the “the hirer’s exercise of retained control contributes to the injury in a way that isn’t merely derivative of the contractor’s contribution to the injury.” “Where the contractor’s conduct is the immediate cause of injury, the affirmative contribution requirement can be satisfied only if the hirer in some respected induced -not just failed to prevent-the contractor’s injury-causing conduct. (Id. at 277)

Here, as previously established, Plaintiff Patrick Gallaway was employed by Project Rebel The Series, Inc., which is owned by Silverscreen. (UMF Nos. 3-5, 7-9.) Silverscreen is an independent contractor hired by Mar Vista Entertainment. (Id.) Though Mar Vista retained rights to supervise, direct, and control day-to-day activities for the project, it did not exercise those rights and instead relied on Silverscreen to perform day-to-day activities. (UMF No. 41.) Silverscreen controlled Gallaway’s workdays, location, and hours. (UMF No. 11.) Mar Vista did not provide any safety in regard to stunt performances on the project. (UMF Nos. 44-45.)

Moving Defendants meet their burden of proving Gallaway was hired by Project Rebel the Series, Inc., a subsidiary of Silverscreen, which is an independent contractor hired by Mar Vista. Mar Vista did not exercise any control over the day-to-day activities of filming and did not provide safety regarding stunt performances on the project. Mar Vista may not be held liable for Gallaway’s injuries because he is the employee of an independent contractor and has not shown that Mar Vista retained and exercised control over the manner in which Project Rebel the Series, Inc. performed the work.

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

Here, as established above, Truitt did not intend to injure Gallaway because she was following the directions of the stunt coordinator when performing the stunt. Additionally, Truitt had only just met Gallaway on set and had no animosity toward him. (Truitt Decl., ¶15.) Thus, Moving Defendants meet their burden of showing Truitt did not intend to harm Gallaway. The burden shifts to Plaintiff who fails to meet his burden because he did not oppose this motion.