Judge: Lee W. Tsao, Case: 22NWCV00987, Date: 2024-11-07 Tentative Ruling

Case Number: 22NWCV00987    Hearing Date: November 7, 2024    Dept: C

WOOLSEY v. SECURITY PAVING COMPANY, INC.

CASE NO.:  22NWCV00987

HEARING:  11/07/24

#4

Defendants’ Motion for Reconsideration of this Court’s July 10, 2024 Order Denying Defendants’ Motions for Summary Judgment/Adjudication is DENIED.

On its own motion, the Court will reconsider the portion of its July 10, 2024 Order denying Defendant RECYCLED BASE MATERIALS, INC.’s Motion for Summary Judgment, or alternatively, Summary Adjudication.  Defendant RECYCLED BASE MATERIALS, INC.’s Motion for Summary Judgment, or alternatively, Summary Adjudication is GRANTED. 

Defendants to give notice.

Background

This personal injury action was filed on October 12, 2022 by Plaintiffs DAVID WOOLSEY, individually and as Successor in Interest to the Estate of MATTHEW WOOLSEY; and SUZANNE WOOLSEY, individually and as Successor in Interest to the Estate of MATTHEW WOOLSEY (collectively “Plaintiffs”). The operative First Amended Complaint (“FAC”) was filed on September 6, 2023. The FAC alleges the following relevant facts: “On or about April 13, 2022, Decedent, who was 23 years old at the time, was working for defendant RECYLCED BASE MATERIALS, INC. utilizing the SUBJECT PRODUCT that was owned and operated by defendant SECURITY PAVING COMPANY, INC. at a worksite owned and operated by defendant BLUE DIAMOND MATERIALS, BLUE DIAMOND INGLEWOOD ASPHALT CORPORATION, and/or SULLY-MILLER CONTRACTING COMPANY located at 5625 Southern Ave., South Gate, CA 90280.” (FAC ¶15.) “While at the worksite, Decedent was working with the SUBJECT PRODUCT and his right arm was caught and pulled into the machine. Decedent attempted to pull his arm out of SUBJECT PRODUCT but was unsuccessful. His arm was finally able to be removed when the SUBJECT PRODUCT was turned off.” (FAC ¶16.) “On or about April 19, 2022, Decedent passed away as a result of injuries he sustained that were caused by the SUBJECT PRODUCT.” (FAC ¶17.)

The FAC asserts the following causes of action:

(1)  Negligence;

(2)  Negligence – Premises Liability;

(3)  Strict Products Liability;

(4)  Negligent Products Liability;

(5)  Breach of Warranty;

(6)  Negligence;

(7)  Negligence;

(8)  Wrongful Death; and

(9)  Survival Action

On July 9, 2024, this Court heard, and took under submission, the following Motions: (1) Defendant RECYCLED BASE MATERIALS, INC.’s (“RBM”) Motion for Summary Judgment, or alternatively, Summary Adjudication; (2) Defendant SECURITY PAVING COMPANY, INC.’s (“Security”) Motion for Summary Judgment, or alternatively, Summary Adjudication; and (3) Defendant SULLY-MILLER CONTRACTING COMPANY’s (“Sully-Miller”) Motion for Summary Judgment, or alternatively Summary Adjudication.

On July 10, 2024, this Court DENIED Defendants RBM and Security’s Motions for Summary Judgment, or alternatively, Summary Judgment; and took Sully-Miller Company’s Motion for Summary Judgment, or alternatively, Summary Adjudication OFF-CALENDAR.

Defendants RBM and Security (collectively “Defendants”) now move for reconsideration of this Court’s July 10, 2024 Order denying their Motions for Summary Judgment, or in the alternative, Summary Adjudication under CCP §1008. Defendants argue that reconsideration is warranted because “[i]n opposition to Defendants’ Motion, Plaintiffs presented the Declaration of Plaintiff David Woolsey, which served as the primary basis for opposing Defendants’ Motions, and which included statements that are in direction contradiction to deposition testimony given by Mr. Woolsey on July 8, 2024, one day prior to the hearing.[¶] This Motion is made pursuant to Code of Civil Procure 1008 on the grounds that new evidence provided via deposition by Plaintiff David Woolsey on July 8, 2024 demonstrates the Declaration of David Woolsey should be rejected and that the Defendants’ Motions for Summary Judgment, or in the alternative, Summary Adjudication, should be granted.” (Notice 2:3-13.)

In Opposition, Plaintiffs argue that (1) Defendants’ Motion does not meet the statutory prerequisites permitting reconsideration; (2) the second deposition of David Woolsey does not contradict the Declaration of David Woolsey and is not “new” or “different”; and (3) even assuming the facts are “new” they do not establish that summary judgment is warranted.

Legal Standard

Under CCP §1008, the Court may entertain a motion for reconsideration based on a showing of new or different facts, law, or circumstances. (CCP §1008.)  “New or different facts” means facts that the moving party could not, with reasonable diligence, have discovered or produced earlier (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198.) Under CCP §1008, the burden “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Superior Court (Wall St. Network, Ltd. (2005) 135 Cal.App.4th 206, 212-213.) As a result, a party seeking reconsideration must provide a satisfactory explanation for failing to present the information at the first hearing, and motion for reconsideration is properly denied where it is based on evidence that could have been presented in connection with the original motion. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 647, 690; Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460.)

Discussion

Defendants do not meet the statutory requirements required to support a Motion for Reconsideration. Defendants maintain that reconsideration is warranted because “new facts” were discovered on July 8, 2024 during the second deposition of David Woolsey— a day before the hearing.

Defendants do not explain why their arguments could not have been raised, briefed, or addressed, with reasonable diligence, prior to or at the July 9, 2024, hearing. It is undisputed that the second deposition of David Woolsey occurred a day before the Summary Judgment hearing.  All parties were given the opportunity to argue their respective positions at the July 9, 2024 hearing. At no time during the July 9, 2024 hearing did Defendants seek a continuance of the hearing, or otherwise argue that David Woolsey’s Declaration in Opposition to the Motions conflicted with his most recent deposition testimony.  

Setting aside Defendants’ lack of reasonable diligence, the Court determines that the motion fails on the merits.  Defendants argue that Woolsey’s July 8, 2024 deposition testimony contradicted certain statements in his declaration which this Court relied upon in denying Defendants’ motions for summary judgment.  Specifically, Defendants proffer the following portions of Woolsey’s July 8, 2024 testimony:

·       The work being done by Matthew was part of the regular business of Security Paving. (Haas Decl., ¶4, Exh. B, 26:9-27:25; 36:8-15);

·       Security Paving had the right to terminate Matthew’s employment, not just the right to have him removed from the job site. (Haas Decl., ¶ 4, Exh. B, 64:5-20; 65:1-8; 66:4-9; 66:11-67:9);

·       The kind of work performed by Matthew is usually done under the direction of a supervisor rather than by a specialist working without supervision. (Haas Decl., ¶ 4, Exh. B, 26:2-4);

·       The kind of work performed by Matthew does not require specialized or professional skill. (Haas Decl., ¶ 4, Exh. B, 57:15-59:7; 66:8-9);

·       Matthew expressly or by implication, consented to the special employment with Security Paving. (Haas Decl., ¶ 4, Exh. B, 62:22-63:15); and

·       Matthew and Security Paving believed that they had a special employment relationship. (Haas Decl., ¶ 4, Exh. B, 62:22-63:15).

The Court determines that such evidence fails to establish, as a matter of law, that no triable issue of material fact exists as to whether Matthew Woolsey was a special employee of Security.  Defendants do not overcome evidence proffered by Plaintiffs that under the Master Labor Agreement (“MLA”), when the Union dispatches a member to work for a company (here Matthew to RBM), the employee works under that company’s direction and that company is responsible for supervising the employee’s work. (PSS No. 26.) Thus, the MLA is evidence that Matthew Woolsey could not be lent to Security, and he could not consent to an employment relationship with Security.  Because an employee loses the right to sue a special employer for negligence, “courts have usually been vigilant in insisting upon a showing of a deliberate and informed consent by the employee before employment relation will be held a bar to common-law suit.” (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 178, fn. 10.)

The Motion for Reconsideration under CCP §1008 is DENIED. Defendants fail to identify any new facts, circumstances, or law to properly state a Motion for Reconsideration under CCP §1008.

However, the Court is persuaded that it should reconsider, on its own motion, the portion of its July 10, 2024 Order denying Defendant RBM’s Motion for Summary Judgment, or alternatively Summary Adjudication. (See Le Francois v. Goel (2005) 35 Cal.4th 1094.) Defendants point out that Matthew Woolsey’s employment with RBM was never a fact in dispute. (See, e.g., Complaint, ¶¶43-44; Woolsey Decl., ¶5.) Defendants renew their argument that the workers’ compensation exclusivity doctrine precludes this civil suit against RBM.  Defendants’ argument is well taken.  The record before the Court as of the July 9, 2024 hearing date demonstrates that RBM’s Motion for Summary Judgment, or alternatively, Summary Adjudication ought to have been granted. 

Thus, on its own motion, the Court reconsiders and hereby GRANTS Defendant Recycled Base Material, Inc.’s Motion for Summary Judgment, or alternatively, Summary Adjudication.