Judge: Lisa R. Jaskol, Case: 20STCV04316, Date: 2023-09-29 Tentative Ruling

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Case Number: 20STCV04316    Hearing Date: January 22, 2024    Dept: 28

Having considered the moving, opposing, and reply papers, the Court rules as follows. 

BACKGROUND 

On February 3, 2020, Plaintiff Eusebio Hernandez (“Plaintiff”) filed this action against Defendants Bigge Crane and Rigging Co. (“Bigge”) and Does 1-50 for negligence. 

On March 25, 2020, Bigge filed an answer. 

On June 24, 2020, Plaintiff amended the complaint to include Defendant Mr. Crane, Inc. as Doe 21 (“Mr. Crane”).  On July 27, 2020, Mr. Crane filed an answer. 

On September 11, 2023, Mr. Crane filed a motion for summary judgment to be heard on December 1, 2023. On November 17, 2023, Plaintiff filed an opposition. On November 22, 2023, Mr. Crane filed a reply. The Court continued the hearing on the motion to January 22, 2024. 

Trial is currently scheduled for April 19, 2024. 

PARTIES’ REQUESTS 

Mr. Crane requests that the Court grant summary judgment. 

Plaintiff requests that the Court deny summary judgment. 

MR. CRANE'S EVIDENTIARY OBJECTIONS 

          Sustained. 

LEGAL STANDARD 

A.   Summary judgment  

“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’”  (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Aguilar, supra, 25 Cal.4th at p. 850.)  

          When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action.  (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.”  (Id. at p. 855, original emphasis.)  

          “Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.”  (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)  

          In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party.  (Aguilar, supra, 25 Cal.4th at p. 843.)  

B. Negligence and premises liability 

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.) 

DISCUSSION 

A.   The complaint 

The complaint alleges the following: 

On November 1, 2021, Plaintiff was working as a landscaper for subcontractor Earthscapes Landscapes, Inc. (“Earthscapes”) at a condominium construction project (“project”). Earthscapes was building gardens at the project. This involved using a crane to carry bags of dirt that weighed over one ton to the floors where outdoor landscaping terraces were being built. 

Plaintiff was assigned to the task of securing and/or hooking the bags of dirt onto the crane while he stood on the platform of a flatbed truck. During one of the lifts, the Bigge crane operator failed to communicate with the crane’s ground support crew to ensure it was safe to lift the bags. The crane operator lifted the bags before Plaintiff got off the flatbed truck’s platform, causing the bags to bump/push Plaintiff off the truck bed and onto the ground. Plaintiff fell on his hip/side, suffering injuries. 

B.   Undisputed facts 

Plaintiff was employed by Earthscapes as a laborer.  The project at issue, called “La Perla,” was a multi-story residential condominium project located at 400 Broadway in Los Angeles. 

The project’s general contractor, Swinerton, hired Earthscapes as a contractor to perform the landscaping for the project.  Earthscapes’ crew at the project consisted of about 4 or 5 workers, included Plaintiff and Earthscapes’ on-site foreman Antonio Soto (“Soto”).  Earthscapes’ employees’ duties at the project included installing gardens and/or planters on various building floor levels. Plaintiff and other Earthscapes workers filled these gardens and/or planters with dirt. 

At the start of each workday, Soto conducted a safety meeting or team huddle to go over the crew's daily duties. 

Swinerton contracted with Bigge to deliver and assemble a tower crane and provide a crane operator to be utilized by Swinerton’s subcontractors for construction and material deliveries. 

Earthscapes hired Mr. Crane to perform rigging and signaling services for Earthscapes’ equipment and material deliveries at the project.  Only certified riggers and signalmen are allowed to perform this job. None of Earthscapes’ employees were certified crane riggers or signalmen. 

On the days that Mr. Crane assisted Earthscapes at the project, Mr. Crane’s workers were Stacey St. Duran (“St. Duran”) and Mike Dillard (“Dillard”).  St. Duran was a foreman. (The parties dispute whether Dillard was a foreman.)  During the crane lift work, Dillard would be on the ground floor and St. Duran would be on the receiving floor. 

Dillard (“Dillard”) was a journeyman ironworker and certified rigger and signalman.  Mr. Crane had assigned Dillard to provide rigging and signaling services for Earthscapes’ deliveries utilizing the on-site tower crane operated by Bigge. 

Dillard’s role for Mr. Crane at La Perla involved signaling to the crane operator and “rigging”—securing loads to the crane’s hook via heavy cables large, 1.5-ton bags of soil as they were delivered on the ground floor via flatbed trucks so they could be hoisted to upper floors, where Earthscapes’ employees were stationed to receive the loads and transfer the soil to planters. Once Dillard determined that the load was secure, he would signal to Bigge’s tower crane operator via radio that the load was ready to be hoisted to upper floors.  Dillard did not communicate with Soto, Plaintiff’s foreman, during the lifts. 

Dillard was responsible for making sure that the bags of soil were hooked correctly. 

On November 1, 2019 and for several days before that, Soto (Earthscapes’ on-site foreman) assigned Plaintiff to assist Dillard on the ground floor with Mr. Crane’s rigging operations. Prior to the accident, Plaintiff had been hooking and unhooking soil bags for several days. 

St. Duran (a foreman for Mr. Crane) did not know that: (1) Plaintiff was assisting Dillard at the time of the accident, (2) who assigned Plaintiff to assist Dillard, and (3) what Plaintiff’s job was as it pertains to crane lifts. 

While Dillard and Plaintiff worked together on the ground floor, other Earthscapes employees including Soto were working on the upper floors. 

Plaintiff had no training or certification as a rigger or signalman.  He received no training for guiding and positioning loads for a safe lift. It was not his responsibility to determine whether the rigging was done correctly. He was there to assist Dillard with the rigging operation. 

On November 1, 2019, Soto was on the 11th floor of the building and did not have radio contact with Plaintiff.  Every time a truck arrived with landscaping materials to be lifted, an Earthscapes employee located on the ground floor called Soto from the ground floor to inform him of the truck’s arrival. 

Plaintiff was standing on the back of a flatbed truck about four feet off the ground, hooking bags of dirt to the crane rigging so that they could be lifted.  Plaintiff testified at his deposition that he was attempting to hook a fourth bag of dirt when it struck him, knocking him off the truck. Plaintiff contends this caused him to fall onto his left side across a swing stage and injure his side, back, and tooth. 

Plaintiff filed a workers’ compensation claim based on the accident with Earthscapes’ insurer, which has paid $157,137.26 in benefits for Plaintiff’s medical treatment and lost time from work/disability. 

C.   Mr. Crane has not carried its initial summary judgment burden 

Mr. Crane argues that Plaintiff’s claim is barred by the exclusive remedy of workers’ compensation because Plaintiff was Mr. Crane’s “special employee” for purposes of the loading operation during which the accident occurred and Plaintiff was injured in the course and scope of that special employment. 

In particular, Mr. Crane asserts that Earthscapes assigned Plaintiff to work under Dillard’s direction and to follow Dillard’s instructions regarding the craning work.  As a result, Mr. Crane contends, Plaintiff was under Mr. Crane’s control when he was injured. 

“An employee may have two employers for purposes of workers' compensation.”  (Angelotti v. The Walt Disney Co. (2011) 192 Cal.App.4th 1394, 1403 (Angelotti).) “ ‘ “Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employers—his original or ‘general’ employer and a second, the ‘special’ employer.” [Citation.]’ ”  (Ibid., quoting Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174 (Kowalski).)  “Both the general and special employer are responsible for providing workers' compensation benefits, and both are protected by the exclusivity rule.”  (Id. at pp. 1403-1404.) 

“The principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the desired result.” (Angelotti, supra, 192 Cal.App.4th at p. 1404, citing S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350 (Borello).)  “A secondary factor also constituting strong evidence in support of an employment relationship is the right to discharge at will without cause.”  (Ibid.) 

“Other secondary factors to consider in determining whether an employment relationship exists include whether the person performing services is engaged in a distinct occupation or business; whether the work is usually done under the direction of the principal or by a specialist without supervision; whether the work requires a particular skill; whether the principal or the worker supplies the instrumentalities, tools, and place of work; whether the worker has an opportunity for profit or loss depending on his or her managerial skill; the duration of the work; whether payment is by time or by the job; whether the work is a part of the regular business of the principal; and whether the parties believe they are creating an employment relationship.” (Angelotti, supra, 192 Cal.App.4th at p. 1404, citing Borello, supra, 48 Cal.3d at pp. 351, 355.) 

“ ‘ “Generally, ... the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.” [Citation.]’ ” (Angelotti, supra, 192 Cal.App.4th at p. 1404, quoting Borello, supra, 48 Cal.3d at p. 351.) The label used by the parties is not dispositive. (Ibid.)  “Instead, ‘[t]he nature of the work, and the overall arrangement between the parties, must be examined’ while keeping in mind the protective purposes of the workers' compensation law.” (Ibid., quoting Borello, supra, 48 Cal.3d at p. 353.) 

“The existence of an employment relationship is a question for the trier of fact, but can be decided by the court as a matter of law if the evidence supports only one reasonable conclusion. (Angelotti, supra, 192 Cal.App.4th at p. 1404, quoting Borello, supra, 48 Cal.3d at p. 349.) 

Mr. Crane has not carried its initial burden on summary judgment of proving that Plaintiff was Mr. Crane's special employee.  The undisputed evidence shows only that Plaintiff was assigned to work with Dillard, Mr. Crane’s employee.  Mr. Crane has not shown that it controlled the manner in which Plaintiff carried out this work. 

The Court denies the motion. 

CONCLUSION 

The Court DENIES Defendant Mr. Crane, Inc.’s motion for summary judgment. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.