Judge: Malcolm Mackey, Case: 19STCV23612, Date: 2023-01-04 Tentative Ruling

Case Number: 19STCV23612    Hearing Date: January 4, 2023    Dept: 55

LORENZO v. LOS MORALES TRUCKING, INC.                                19STCV23612

Hearing Date:  1/4/23  Dept. 55

#9:   MOTION FOR SUMMARY JUDGMENT.

Notice:  Okay

Opposition

MP:  Defendant RIVERA TRUCKING, LLC.

RP:   Plaintiffs

Summary

On 7/3/19, plaintiffs filed the lead action, Lorenzo v. Los Morales (19STCV23612) against the trucking defendants.

On 3/30/20, plaintiffs filed the Complaint, Lorenzo v. LAUSD (20STCV12415), against LAUSD and others.

On 1/13/21, this lead case was ordered consolidated for all purposes with 20STCV23961 and 20STCV12415.

On 2/3/21, plaintiffs filed the Second Amended Complaint, regarding separately filed wrongful death lawsuits that arise out of the same double fatal pedestrian accident. Allegedly, plaintiffs are the parents of two sisters who died in April 2019, after being run over by a dump truck, while they were pedestrians in a crosswalk, on route to middle school, due to the failure to provide for previously school-arranged crossing guards for student safety on particularly dangerous streets near the school, at a time a substitute crossing guard was needed.

On 4/2/21, GREEN DOT PUBLIC SCHOOLS CALIFORNIA and GREEN DOT PUBLIC SCHOOLS NATIONAL were added as DOE defendants 1 and 2, to the Second Amended Complaint.

On 7/16/21, Defendant/Cross-Complainant LOS ANGELES UNIFIED SCHOOL DISTRICT (LAUSD) filed an official form Cross-Complaint against GREEN DOT PUBLIC SCHOOLS CALIFORNIA, GREEN DOT PUBLIC SCHOOLS NATIONAL,  ORIVERA TRUCKING, LLC; LOS MORALES TRUCKING INC; GLOBAL HAWK INSURANCE COMPANY RISK RETENTION GROUP; and STANLEY RANDLE.  The causes of action are:  1)  Indemnification, 2) Apportionment of Fault and 3) Declaratory Relief.

On 6/15/21, the Court overruled the Demurrer of LAUSD, and, on 10/6/21, the Court of Appeal summarily denied an unopposed petition for writ of mandate filed 8/16/21, by Defendant LAUSD, which had requested to overturn the demurrer ruling.

The Complaint in consolidated case number 20STCV23961 alleges that GLOBAL CENTURY, as insurance broker, was used by THANDI as a device to broker insurance policies between California trucking insureds, like LOS MORALES, a small trucking company, and the non-California-admitted, insolvent insurer, Global Hawk, provided a policy for indemnity in the event of catastrophic loss, but now the Lorenzo plaintiffs are unlikely to receive any compensation from GLOBAL HAWK’S liquidation proceedings.

MP Position

Moving party requests an order granting summary judgment against plaintiffs, on bases including the following:

·         There are no facts showing that moving Defendant RIVERA TRUCKING, LLC. has any relationship to the subject truck driver, the subject contractor, the subject vehicle, or the subject incident.

·         Specifically, Defendant CALEX ENGINEERING, INC. hired Defendant COMMODITY TRUCKING ACQUISITIION, LLC dba DISPATCH TRANSPORTATION (“CTA”) for hauling services that contracted some services out to Defendant LOS MORALES TRUCKING, INC. that performed those services with its vehicles and its employed driver, Defendant STANLEY RANDLE.

·         Moving Defendant cannot be liable under a theory of respondeat superior.  At the time of the incident, Mr. Randle was driving his work truck from home to a staging area for his first load, and was not yet performing work for the employer.

·         Neither Los Morales Trucking nor Mr. Randle were under moving defendants direction or control.

RP Position

Opposing parties advocate denying, for reasons including the following:

·         Defendant Rivera Trucking, among other things, owes a non-delegable duty to Plaintiffs as a “Regulated hirer.”

·         Although hirer defendants Calex, Commodity, and Rivera Trucking may act through a contractor such as Los Morales, and its employee, Randle, they are vicariously liable for Randle’s negligence, because the underlying activities (exporting dirt, operating double dumps) are highly regulated activities involving an unreasonable risk of harm which can only be lawfully carried out under a public franchise or authority.

·         The “Regulated hirer” exception imputes liability to the hirer of an independent contractor when the work delegated to the contractor involves an unreasonable risk of harm to others and can lawfully be performed only under a license or franchise granted by public authority. (Vargas v. FMI (2015) 233 Cal.App.4th 638, 652-654; Serna v. Pettey Leach (2003) 110 Cal.App.4th 1475, 1486; Eli v. Murphy (1952) 39 Cal.2d 598, 599-601; Taylor v. Oakland Scavenger (1941) 17 Cal.2d 594; Rest.2d Torts 428; California Practice Guide (Rutter) Personal Injury at ¶ 2:890.)

·         Randle’s operation of the double dump directly arises out the exportation of dirt from the 100 Grand jobsite, which can only be done pursuant to the City issued Exportation Permit. (Ex. 2, Exportation Permit.) The City of Los Angeles requirements involve City approval of the type of hauling equipment, the truck staging areas, and the exportation of dirt haul routes. (Los Angeles Municipal Code § 91.7006.7.2; 91.7006.7.5.)

·         Also, there is substantial evidence of a partnership/joint venture between Commodity and Rivera. Rivera is certified as a “Women’s Business Enterprise” meaning it had at least 51% ownership by women. The 100 Grand project required the involvement of a woman owned business. Commodity brought Rivera Trucking into the project, at the request of Calex, specifically so that Calex could get the requisite minority credits it needed. (PAMF 63; Ex. 10, Sullivan depo.at 35:24-36:2, 42:22-43:15.) Rivera Trucking was thus involved as an intermediary between Calex (exporter) and Commodity (truck broker), to satisfy a requirement to have a certain number of minority-owned companies involved in the project.

·         The going-and-coming rule is inapposite.  The hirer Defendants, (Core/Related, Calex, Commodity and Rivera) all derived substantial benefit from Randle bringing empty trailers to the job.  Randle could not bring his personal vehicle from home, or any vehicle other than a tractor towing two empty trailers. As explained by Commodity’s PMQ, if a driver showed up with a tractor only with no trailers, they would not be sent to 100 Grand. (PAMF 79; Ex. 6, Briones depo. at 36:20-37:2 “They’re of no use – they’re of no use to us.”) There were no empty trailers at the 100 Grand jobsite; the value in what the truckers bring is the trailers to be filled. (PAMF 80; Ex. 6, Briones depo. at 136:6-13.)

·         “The special-errand exception to the going-and-coming rule is stated as follows: ‘If the employee is not simply on his way from his home to his normal place of work or returning from said place to his home for his own purpose, but is coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer, the employee is considered to be in the scope of his employment from the time that he starts on the errand until he has returned or until he deviates there from for personal reasons’ ” (Moradi v. Marsh (2013) 219 Cal.App.4th 886, 906.)

Tentative Ruling

The motion is denied.

There is a regulated hirer exception to the general rule of nonliability for hirers of independent contractors.  Secci v. United Independant Taxi Drivers, Inc. (2017) 8 Cal. App. 5th 846, 860.  Cf.  Vargas v. FMI, Inc. (2015) 233 Cal.App.4th 638, 644  (trucking business regulated by Department of Transportation could not delegate responsibility to independent contractor drivers).

Here, the Court determines that moving party did not meet the initial burden to prove nonliability for hiring an independent contractor driving a tractor to the worksite, and there are triable issues of material fact, as to each issue raised, including whether (1)  hirer defendant Rivera Trucking  effectively contracted with Los Morales and became subject to vicarious liability operating double dumps related to regulated activities involving an unreasonable risk of harm lawfully carried out under a public authority  (e.g., opposing sep. stmnt., addl. facts 58-60, 84-87, and proof referenced thereat), and (2) Mr. Randle was in the course and scope of his employment in bringing a requested tractor hauling two trailers as distinguished from merely transporting to a workplace  (e.g., sep. stmnts., fact 16, and proof referenced thereat).

Finally, the Court has considered the filed evidentiary objections in making its ruling.  As to summary judgment motions, judges need only rule on evidentiary objections deemed material to the disposition.  CCP §437c(Q).