Judge: Lee S. Arian, Case: 22STCV07522, Date: 2025-01-02 Tentative Ruling
Case Number: 22STCV07522 Hearing Date: January 2, 2025 Dept: 27
Hon. Lee S. Arian, Dept 27
MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION
Hearing Date: 1/2/25
CASE NO./NAME: 22STCV07522 ADA TRAN vs MVM
GRADING AND DEMOLITION INC., et al.
Moving Party: Defendants Ross Barbey and Mark Barbey
Responding Party: Plaintiff
Notice: Sufficient
Ruling: The Court will Hear Argument
Background
On
March 2, 2022, Plaintiff Ada Tran filed this personal injury case pleading
causes of action for (1) motor vehicle negligence and (2) general negligence,
as well as negligence per se. Plaintiff alleges that on February 9, 2022,
Defendant Marvin Jose Vigil Martinez was operating a 2018 Ford F250 that
collided with Plaintiff, who was a pedestrian at the intersection of Garvey
Avenue and Muscatel Avenue in Rosemead, California.
In
2023, Plaintiff amended her complaint to name Defendant Ross Barbey as Doe 1
and Defendant Mark Barbey as Doe 2. Plaintiff alleges the Barbeys
(collectively, “Defendants”) operated a motor vehicle, employed the persons who
operated a motor vehicle in the course of their employment, owned a motor
vehicle that was operated with their permission, entrusted a motor vehicle, and
were agents and employees of other defendants.
On
October 9, 2024, Defendants moved the Court for summary judgment on the basis
that Martinez is not an employee of the Barbeys and that Martinez was
performing personal activities outside the scope of employment at the time of
the accident. Trial is currently set for February 6, 2025.
Legal Standard
In reviewing a motion for summary judgment or
adjudication, courts must apply a three-step analysis: “(1) identify the issues
framed by the pleadings; (2) determine whether the moving party has negated the
opponent’s claims; and (3) determine whether the opposition has demonstrated
the existence of a triable, material factual issue.”¿(Hinesley v.
Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)
“[T]he initial burden is always on the moving party to make
a prima facia 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 or summary adjudication “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, or that there
is a complete defense to the cause of action.”¿(Code Civ. Proc., §
437c, subd. (p)(2).)¿If the moving party
fails to carry its burden, the inquiry is over, and the motion must be denied.
(See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91
Cal.App.4th 454, 468.)¿Even if the moving
party does carry its burden, the non-moving party will still defeat the motion
by presenting evidence of a triable issue of material fact. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)
To meet this burden of showing a cause of action cannot
be established, a defendant must show not only “that the plaintiff does not
possess needed evidence” but also that “the plaintiff cannot reasonably
obtain needed evidence.”¿(Aguilar, supra,
25 Cal.4th at p. 854.)¿It is insufficient
for the defendant to merely point out the absence of evidence.¿(Gaggero v. Yura
(2003) 108 Cal.App.4th 884, 891.)¿The defendant “must
also produce evidence that the plaintiff cannot reasonably obtain evidence to
support his or her claim.”¿(Ibid.)¿The supporting
evidence can be in the form of affidavits, declarations, admissions,
depositions, answers to interrogatories, and matters of which judicial notice
may be taken.¿(Aguilar, supra, 25
Cal.4th at p. 855.)
“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.” (Code Civ. Proc.,
§ 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or
denials of its pleadings to show that a triable issue of material fact exists,
but instead, “shall set forth the specific facts showing that a triable issue
of material fact exists as to the cause of action.”¿(Ibid.)¿“If the plaintiff
cannot do so, summary judgment should be granted.”¿(Avivi v. Centro
Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)
The court must “liberally construe
the evidence in support of the party opposing summary judgment and resolve all
doubts concerning the evidence in favor of that party,” including “all
inferences reasonably drawn therefrom.”¿(Yanowitz v.
L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra,
25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must
therefore consider what inferences favoring the opposing party a factfinder
could reasonably draw from the evidence.¿While viewing the evidence
in this manner, the court must bear in mind that its primary function is to
identify issues rather than to determine issues.¿[Citation.]¿Only when the
inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is
in conflict, the factual issues must be resolved by trial.”¿(Binder v. Aetna
Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿Further, “the trial
court may not weigh the evidence in the manner of a factfinder to determine
whose version is more likely true.¿[Citation.]¿Nor may the trial
court grant summary judgment based on the court’s evaluation of credibility.
[Citation.]” (Id. at p. 840; see also Weiss v. People ex rel.
Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding
motions for summary judgment or summary adjudication may not weigh the evidence
but must instead view it in the light most favorable to the opposing party and
draw all reasonable inferences in favor of that party”].)
Undisputed Facts
·
Defendants, who are brothers, own the
property located at 2424 Muscatel Ave., Rosemead, California (the “Property”).
·
Defendants no longer wanted the pool at
the Property prompting Ross Barbey to conduct an online search to find a pool
demolishing company.
·
Ross Barbey found a website for pool demolishing
and called the phone number listed on the site. The phone number connected Ross
Barbey to Defendant Marvin Jose Vigil Martinez, and the two discussed what a
price quote would be to have a pool removed.
·
Ross Barbey approved the quote provided
by Marvin Jose Vigil Martinez.
·
The pool demolition work commenced at
the Property in or about the beginning of February 2022.
·
Before and during the pool demolition
project, Marvin Jose Vigil Martinez provided Ross Barbey with MVM Grading and
Demolition’s contractor license upon request. The license was also used to
obtain permits for the pool demolition, as authorized by MVM’s owner,
Christopher Decampli.
·
Marvin Vigil Martinez did not have a
valid contractors license at the time of the incident.
The
Incident
·
On February 9, 2022, Defendant Martinez
was driving a 2018 Ford F250 that collided with Plaintiff, who was a pedestrian
at the intersection of Garvey Avenue and Muscatel Avenue, in Rosemead,
California.
·
At the time of the incident, Defendant Bernard
Toth was the owner of the vehicle operated by Defendant Martinez that hit
Plaintiff Ada Tran.
·
At the time of the incident, Defendant
Martinez was headed to a trailer supply company to purchase a spare tire and
extra lights.
Evidentiary
Ruling
Although
Plaintiff filed a response to Defendants’ evidentiary objection, Defendants’
objection were not filed with the Court and therefore not considered by the
Court.
Discussion
It
is undisputed that Defendants did not operate the subject vehicle, did not own
the subject vehicle, and that the accident did not occur on their property, nor
were they present at the time of the accident. Defendants argue that the only
remaining theory of liability asserted against them is that they were the
employers of Defendant Martinez at the time of the incident. Plaintiff does not
contest this in her opposition. Thus, the core issue for this motion is whether
Martinez was an employee of the Defendants for purposes of vicarious liability
and whether Defendant Martinez was acting within the scope of employment at the
time of the incident.
Employment Status
Regarding
Defendant Martinez’s employment status, Defendants rely on Labor Code section
2750.5, arguing that Defendant Martinez was not their employee, but rather an
employee of MVM Grading.
Labor
Code section 2750.5 provides:
There
is a rebuttable presumption affecting the burden of proof that a worker
performing services for which a license is required pursuant to Chapter 9
(commencing with Section 7000) of Division 3 of the Business and Professions
Code, or who is performing such services for a person who is required to obtain
such a license is an employee rather than an independent contractor. Proof of
independent contractor status includes satisfactory proof of these factors:
(a) That
the individual has the right to control and discretion as to the manner of
performance of the contract for services in that the result of the work and not
the means by which it is accomplished is the primary factor bargained for.
(b) That
the individual is customarily engaged in an independently established business.
(c) That
the individual’s independent contractor status is bona fide and not a
subterfuge to avoid employee status. A bona fide independent contractor status
is further evidenced by the presence of cumulative factors such as substantial
investment other than personal services in the business, holding out to be in
business for oneself, bargaining for a contract to complete a specific project
for compensation by project rather than by time, control over the time and
place the work is performed, supplying the tools or instrumentalities used in
the work other than tools and instrumentalities normally and customarily
provided by employees, hiring employees, performing work that is not ordinarily
in the course of the principal’s work, performing work that requires a
particular skill, holding a license pursuant to the Business and Professions
Code, the intent by the parties that the work relationship is of an independent
contractor status, or that the relationship is not severable or terminable at
will by the principal but gives rise to an action for breach of contract.
In
addition to the factors contained in subdivisions (a), (b), and (c), any person
performing any function or activity for which a license is required pursuant to
Chapter 9 (commencing with Section 7000) of Division 3 of the Business and
Professions Code shall hold a valid contractors’ license as a condition of
having independent contractor status.
1. Applicability
of Labor Code Section 2750.5
The
Court is not convinced that Labor Code section 2750.5 is the appropriate
standard to determine employee status for purposes of vicarious liability.
Section 2750.5 is typically applied in the context of workers' compensation
claims or situations where unlicensed contractors assert employee status in
tort actions. Its application outside those contexts, particularly in cases
involving third-party injuries, is uncertain.
In
State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1985) 40
Cal.3d 5, 15, the Court interpreted the penultimate paragraph of section 2750.5
to mean that unlicensed contractors injured on the job cannot be considered
independent contractors and are instead deemed employees of the hiring party by
operation of law. However, this interpretation was limited to determining
whether an unlicensed contractor injured while remodeling a homeowner's house
could qualify as an employee for purposes of workers' compensation benefits
under the homeowner's insurance policy.
In
the context of tort liability, the Supreme Court in Ramirez v. Nelson
(2008) 44 Cal.4th 908, 916, acknowledged the unresolved nature of this issue:
“The question whether an unlicensed contractor's worker must be deemed a
homeowner-hirer’s employee under Labor Code section 2750.5 for purposes of tort
liability is neither an easy nor settled one.” While Ramirez refrained
from definitively resolving this question, earlier appellate cases applied
section 2750.5 to hold homeowners liable for torts involving unlicensed
contractors. For example, in Mendoza v. Brodeur (2006) 142 Cal.App.4th
72, a homeowner was deemed the employer of an unlicensed roofer injured while
replacing the roof of the homeowner's residential property, thereby
establishing tort liability under section 2750.5. Similarly, in Rosas v.
Dishong (1998) 67 Cal.App.4th 815, homeowners who hired an unlicensed
landscaper to trim a tree branch over 15 feet high were deemed employers under
section 2750.5, as the task required a contractor's license.
This
case differs significantly from Mendoza,
Rosas, and other
cases involving Labor Code section 2750.5, as it involves a pedestrian injured
in an auto accident caused by a worker driving a vehicle purportedly within the
scope of employment rather than a worker injured while performing a project for
their hiring party. Cases involving section 2750.5 primarily address disputes
where an injured worker sues the hiring party for workers’ compensation
benefits or tort liability related to their own injury. The statute has not
been historically applied to third-party claims, such as auto accident lawsuits
seeking to impose vicarious liability on a hiring party.
The
moving parties have not provided the Court with sufficient legal authority to
establish that this statute offers the appropriate framework for determining
employment status in the context of a third-party claim based on vicarious
liability. Nonetheless, it is the only
framework presented by Defendants, so the Court hereby analyzes the motion under
that framework.
2. Vicarious
Liability
To
defeat liability under the theory of vicarious liability, Defendants must
establish that Martinez was not their employee. Defendants argue that Martinez
may be an employee of MVM Grading, the alleged general contractor, and cite
case law to support this position. Specifically, Defendants reference Neighbor
v. Buzz Oates Enterprises (1992) 217 Cal.App.3d 325, 329, which holds that
an unlicensed subcontractor is deemed an employee of the general contractor.
Similarly, Labor Code section 2750.5 conclusively establishes that a general
contractor is the employer of unlicensed subcontractors and their employees (Hunt
Building Corp. v. Bernick (2000) 79 Cal.App.4th 213, 221; Sanders
Construction Co., Inc. v. Cerda (2009) 175 Cal.App.4th 430, 434–435).
While
this argument seeks to establish an employment relationship between Martinez
and MVM Grading, it fails to address whether Martinez might also be an employee
of the moving defendants under a dual employment theory. Labor Code section
2750.5 does not preclude the possibility of dual employment, nor has Defendant provided
any legal authority that when a general contractor is deemed the employer of an
unlicensed worker, it automatically excludes the homeowners from also being
considered employers. Therefore, Defendant's argument that Martinez is an
employee of MVM Grading does not, by itself, negate the possibility that
Martinez is also an employee of the moving defendants. Without more, the
inference that Martinez is not an employee of Defendants is insufficiently
supported.
a. Dual Employment Relationship
To
the contrary, a dual employment relationship exists within the context of Labor
Code section 2750.5. This principle is referenced in Neighbor, 217
Cal.App.3d at 333 and discussed in greater detail in subsequent case law.
In
Heiman v. Workers' Comp. Appeals Bd. (2007) 149 Cal.App.4th 724, Pegasus
Properties, a property management company, hired Hruby, an unlicensed
contractor, to install rain gutters in a condominium's common area. Hruby
subsequently hired Freddy Aguilera to perform the work for $65 per day. On
Aguilera’s first day, a rain gutter he was installing fell and caused injury.
The Court held that Aguilera was deemed an employee of both Hruby, the
unlicensed subcontractor, and Pegasus Properties, the principal contractor,
under section 2750.5.
The
Court in Heiman determined that Pegasus, not the condominium owners, was
a dual employer of Aguilera along with Hruby. The decision rested on the
absence of evidence showing direct involvement by the condominium owners in
hiring or supervising Hruby. The only evidence in the record was an invoice
from Hruby billed to Pegasus, and testimony confirmed that the agreement for
the rain gutter installation was exclusively between Hruby and Pegasus. Hruby
further testified that he dealt solely with Pegasus and did not recall any
contact with the condominium owners or involvement from them in payment or
supervision. These facts supported the conclusion that Pegasus acted
independently in hiring Hruby and was, therefore, Aguilera’s employer under the
dual employment doctrine. (Heiman, 149 Cal.App.4th at 738.
The
facts here closely resemble the dual employment situation discussed in Heiman.
Similar
to Pegasus in Heiman, Defendant Ross Barbey directly hired defendant
Martinez for the project through communications with Martinez rather than MVM
Grading’s principal, Christopher DeCampli. (AUF 1, 2.) Ross Barbey received an
estimate for the entire scope of work directly from MVM Machinery, the entity
owned and operated by Martinez. (AUF 5, 6, 16.) These facts demonstrate that Ross
Barbey played a direct and active role in selecting Martinez and defining the
scope of work, akin to Pegasus’s role in hiring and directing Hruby.
In
Heiman, the court emphasized the lack of evidence showing involvement by
the condominium owners in hiring the contractor. Similarly, in this case, there
is no written contract between Ross Barbey and MVM Grading, and Ross Barbey had
no communication with DeCampli, the licensed contractor associated with MVM
Grading. (AUF 2.) The only written estimate and invoice for the project came
from MVM Machinery. (AUF 5, 30.) Further, Ross Barbey paid both Martinez via
MVM Machinery and MVM Grading at Martinez’s request. It is not the case that
Barbey paid MVM Grading, which then paid Martinez. (AUF 28-29.)
Plaintiff
has presented sufficient evidence to raise a triable issue of fact regarding whether
a dual employment relationship existed. The evidence demonstrates that
Martinez, an unlicensed contractor, was hired by Barbey to perform substantive
work on the pool demolition project, while MVM Grading’s involvement was
limited to pulling permits. The evidence does not support the theory that MVM
Grading hired Martinez independently of Barbey’s involvement. Instead, it shows
that Barbey directly engaged Martinez, defined the scope of work, and
communicated extensively with him about the project.
Assuming
Labor Code section 2750’s application here (as Defendants actually argued), an
unlicensed contractor performing work requiring a license is presumed to be an
employee of the hiring party. Ross Barbey directly hired Martinez. MVM
Grading’s limited role in obtaining permits does not necessarily absolve Barbey
of liability, as section 2750.5 places responsibility on the party hiring and
exerting control over the unlicensed contractor. Barbey’s active role in
hiring, paying, and defining the scope of work for Martinez raises a triable
issue of fact regarding a dual employment relationship.
Scope
of Employment
Under
the doctrine of respondeat superior, an employer may be held liable for torts
committed by an employee within the scope of employment. (Mary M. v. City of
Los Angeles (1991) 54 Cal.3d 202.) However, purely personal activities fall
outside the scope of employment.
Defendants
have raised sufficient facts to meet their initial burden on summary judgment
that Martinez was acting outside the scope of his employment at the time of the
incident. Specifically, Defendant Martinez
indicated he was running personal errands with his fried, including heading to
the trailer supply store to obtain a tire and extra lights. (SSUF Nos. 7-9). On the way to the trailer store, Marvin Jose
Vigil Martinez’s friend had to use the restroom. (SSUF No. 7-9, 22). Martinez
stopped at the Property so that his friend could use the porta-potty. (SSUF No.
22-23). After his friend used the porta-potty, Martinez proceeded with his trip
to the trailer supply store when the incident occurred. (SSUF No. 45).
Plaintiff
contends a triable issue of fact exists as to whether Martinez’s trip to the
trailer supply store was purely personal.
She points to evidence that the trailer had been used for MVM machinery
related to work at the Property in the month prior to the collision. Further, Plaintiff
points to evidence that the work for Defendants was the only active project for
MVM Machinery at the time of the incident. (Martinez Depo. at 24:5–10.)
California
courts use "two tests ... ‘for scope of employment under the respondeat
superior doctrine.’ [Citation.] ‘Under one test, the employer is liable if the
activities that caused the employee to become an instrument 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. [Citation.]’ [Citation.] The second test
... provides ‘an employee's conduct is within the scope of ... employment if
(1) the act performed was either required or incident to [the employee's]
duties or (2) the employee's misconduct could be reasonably foreseen by the
employer in any event.’” (Perez v. City of San Francisco, (2022) 75
Cal.App.5th 826, 833.)
The
Court will hear argument on the issue of scope of employment.
Estoppel
Defendants
further argue that Plaintiff is estopped from claiming that Marvin Martinez was
an employee of the defendants because Martinez misrepresented himself as a
licensed, bonded, and insured contractor. Citing Chin v. Namvar (2008)
166 Cal.App.4th 994, defendants contend that Martinez’s misrepresentation bars
Plaintiff from asserting that Martinez was an employee.
However,
in Chin, the court held that “one who misrepresents himself as a
licensed contractor is estopped from asserting that his unlicensed status makes
him an employee under the statute.” (Chin v. Namvar, supra, at 1004.)
The party to be estopped must have used false language or conduct to induce
another to take action they otherwise would not have taken, resulting in harm.
(Id.) Plaintiff correctly argues that
Plaintiff did not make any misrepresentation.
Rather, any alleged misrepresentation was made solely by Martinez, and
under Chin, only Martinez could be estopped from asserting employee
status.
Affirmative
Conduct
Defendant
argues that, under common law, a person who hires an independent contractor is
generally not liable for injuries caused by the contractor’s negligence because
the hirer has no control over how the contractor performs the work (Delgadillo
v. Television Center, Inc. (2018) 20 Cal.App.5th 1078, 1086; SeaBright
Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 598)). Property owners
are not liable for injuries sustained by a contractor’s employees unless the
property owner’s affirmative conduct contributed to the injuries. (Id.)
Defendant asserts that there is no evidence of affirmative conduct by Ross or
Mark Barbey that contributed to the incident, thereby precluding liability.
The
problem with this argument is it assumes Martinez is an independent contractor
for the homeowners. However, Defendants themselves argued that the Labor Code establishes
that Martinez was not acting as an independent contractor. As analyzed above, Plaintiff has raised a
triable issue of fact regarding the homeowners’ dual employment status, where
Martinez could be considered an employee of the homeowners under Labor Code
section 2750.5. While the Court may not fully accept Labor Code section 2750.5
as the definitive framework for determining employee status in the context of
vicarious liability, Defendant has failed to provide evidence or legal
authority under other applicable tests to demonstrate that Martinez is not an
employee of the homeowners.
Conclusion
Defendants
took the position that Labor Code section 2750.5 is the appropriate framework
for determining employment status for their potential vicarious liability. The Court is not certain that is the correct
framework, but, assuming so, Defendants did not show how, as Plaintiff persuasively
argues, Martinez’s employment with MVM Grading precludes him from being an
employee of the moving Defendants. Plaintiff raised a triable issue of fact as
to whether Defendants could be dual employers of Martinez.
The
Court will hear argument on the issue of scope of employment.