Judge Michelle C. Kim, Case 21STCV07150 2023-05-23 Tentative Ruling

On February 23, 2021, Plaintiff Stacey Adair (“Plaintiff”) filed this action against Defendants Sony Pictures Entertainment Inc. ("SPE") and Sony Pictures Studios Inc. (“SPS”) alleging a cause of action for negligence based on injuries sustained when a prop board fell and struck Plaintiff.

On August 25, 2022, Plaintiff amended the Complaint to substitute Defendant Remote Broadcasting, Inc. (“RBI”) as Doe 1.

Summary judgment is proper “if all the papers submitted 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.” (CCP § 437c(c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at § 437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “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” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (CCP § 437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) However, “when discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, certain of these stern requirements applicable in a normal case are relaxed or altered in their operation.” (Ibid.) “The reasons for this attitude toward the legitimate products of discovery are clear. As the law recognizes in other contexts (see Evid. Code, §§ 1220–1230) admissions against interest have a very high credibility value. This is especially true when, as in this case, the admission is obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts. Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.” (Id. at 22.)

Defendants argue that the undisputed material facts show that Plaintiff cannot establish duty, breach, or causation against SPE or SPS. As against RBI, Defendants argue that exclusive remedy doctrine bars any liability by it.

Defendants present evidence that they did not own, control, manage, or lease the site location for the prop scoreboard which allegedly fell on and struck Plaintiff on the date of the incident. (UMF, No. 5). Defendants SPE and SPS did not own, manufacture, design, deliver, install, or set-up the prop scoreboard. (UMF, Nos. 6, 7, 11). Defendants SPE and SPS also did not design or maintain the subject scoreboard, let alone any other props used during the production of an episode of "The Goldbergs" at Hamilton High School on the date of the incident. (UMF, Nos. 13, 15). No employees of Defendants SPE and SPS were present during the production and filming of an episode of "The Goldbergs" at Hamilton High School in Los Angeles, California on the date of the incident, including at the time the incident occurred. (UMF, No. 16). The subject incident occurred when the scoreboard prop was knocked over due to high winds, i.e., an Act of God, and the weather conditions were windy on the date of the subject incident. (UMF, No. 3).

Based on the foregoing evidence, the Court finds that Defendants have met their initial burden as to duty, breach, and causation. Plaintiff has not opposed the motion.

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 ibid.) 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 ibid.; 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. (Ibid.) “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.)

“When an employer lends an employee to another employer and relinquishes to the borrowing employer some right of control over the employee's activities, a ‘special employment relationship’ arises between the borrowing employer and the employee.” (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492. See Riley v. Southwest Marine, Inc. (1988) 203 Cal.App.3d 1242, 1247–1248. The borrowed employee is “held to have two employers—his original or ‘general’ employer and a second, the ‘special’ employer.” [Citations.] In this dual employer situation, the employee is generally limited to a statutory workers' compensation remedy for injuries he receives in the course of his employment with the special employer; he may not bring a separate tort action against either employer.” (Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848, 856-857.)

Defendant RBI argues the exclusive remedy doctrine bars Plaintiff’s action against it because it was Plaintiff’s special employer at the time of the incident, which occurred while Plaintiff was acting within the course and scope of her employment.

RBI presents evidence that it produces the television series "The Goldbergs," and was the production company therefor on March 8, 2019. (UMF, No. 2). On March 8, 2019, an episode of "The Goldbergs" was filmed at Hamilton High School in Los Angeles, California; one of the scenes in said episode was filmed outdoors at or near the football field and involved the use of a prop scoreboard during the production thereof which allegedly struck Plaintiff during filming of "The Goldbergs" on March 8, 2019. (UMF, No. 3). The payroll services agreement regarding the production of "The Goldbergs" is structured as an Employer of Record ("EOR") deal, such that payroll administrator, Entertainment Partners ("EP") is the employer of record for actors and extras performing work on "The Goldbergs." Central Casting loaned Plaintiff out to RBI to allow RBI to act as Plaintiff's special employer with respect to the production of "The Goldbergs" on March 8, 2019. RBI paid for Plaintiff's services through EP. (UMF, No. 18). Plaintiff was employed by RBI at the time she suffered her alleged injuries while performing services on the set of "The Goldbergs" on March 8, 2019. (UMF, No. 19). RBI paid for workers' compensation insurance, which covered any injuries that Plaintiff and other individuals involved with the production of "The Goldbergs" might suffer, including on March 8, 2019, as administered through payroll administrator EP; in signing up with EP for the series, RBI paid a workers' compensation fringe fee that is a percentage of gross payroll. (UMF, No. 20). RBI's records show that Plaintiff has received, and continues to receive, workers' compensation benefits for treatment of the injuries she allegedly suffered on March 8, 2019. (UMF, No. 21). RBI exclusively controlled, supervised, and directed the work Plaintiff performed during the provision of her services for "The Goldbergs," as well as the scope, manner, and method in which Plaintiff's work was performed on the date of the incident, March 8, 2019; furthermore, RBI had the obligation to pay Plaintiff for her services, which it did through EP. (UMF, No. 22).Thus, the evidence shows that RBI was Plaintiff's special employer and that the incident happened while Plaintiff was in the course and scope of her employment. Accordingly, Defendant has met its initial burden to show that the claim is barred by the exclusivity doctrine. Plaintiff has not opposed.

Hon. Michelle C. Kim

Judge of the Superior Court