Judge Stephen P. Pfahler, Case Number: 20STCV19456, Date: 2023-05-10 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 20STCV19456, Date: 2023-05-10 Tentative Ruling

Case Number: 20STCV19456 Hearing Date: July 20, 2023 Dept: F49

Dept. F-49

Date: 7-20-23

Case #20STCV19456

Trial Date: 10-9-23

INDEPENDENT MEDICAL EXAMINATION

MOVING PARTY: Defendant, Hugo Osoy

RESPONDING PARTY: Plaintiff, Pablo Padron

RELIEF REQUESTED

Motion for Additional Independent Medical Examination

SUMMARY OF ACTION

Plaintiff Pablo Padron alleges performing construction remodeling work at 13755 Merchant Ave., Sylmar, when he fell off a ladder and sustained injuries. Plaintiff was working at the direction of defendant Hugo Osoy, and alleges Osoy failed to maintain a workers’ compensation policy at the time of the incident.

On May 21, 2020, Plaintiff filed a complaint for breach of statutory obligation, negligence, and premises liability. Defendants answered the complaint on August 19, 2020. On December 30, 2022, the action was reassigned to Department 49.

RULING: Denied.

Defendant Hugo Osoy moves for an additional independent medical examination in order to conduct both neurological examinations by physician, Dr. David Gerhet. Defendants bring the motion based on the scope of claimed injuries (traumatic brain injury) and refusal of plaintiff to stipulate to the subject examination.

Plaintiff in opposition counters the sought after second examination is unnecessarily duplicative. The parties already agreed to a second neuropsychological examination scheduled for July 12, 2023. Thus, the proposed examination would constitute a third examination. Defendants in reply reiterate the neurological injury claims, and deny any redundancy in the examinations.

Defendant moves for an additional examination on the brain injury claims on grounds that the second examination will address different aspects of the claimed injuries, specifically the post surgical recovery. Plaintiff underwent a neurosurgical examination prior to surgery; the subject examination seeks a neurological review.

The motion is supported by the declaration of counsel regarding the claimed injuries and sought after scope of treatment. [Declaration of Emily Zinn.] Dr. Gehret also submits a declaration regarding the proposed scope of the examination and basis for the proposed examination.

Past injuries outside the subject controversy are not subject to examination. (Doyle v. Superior Court (1996) 50 Cal.App.4th 1878, 1887; Reuter v. Superior Court (1979) 93 Cal.App.3d 332, 341.). A party may seek additional examinations on the subject areas in controversy upon a showing of good cause. (Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.)

The parties apparently agree that the current brain injury claims are present and relevant to the current damages claim. Nevertheless, nothing in the motion addresses the agreed upon follow-up examination represented as having occurred on July 12, 2023. More importantly, it’s not sufficiently clear, even with the argument in reply denying any redundancy, how the subject examination materially differs from the agreed upon second examination. In other words, while the differences between neurosurgical and neurological examinations remain apparent, it appears more prudent to allow the agreed upon examination to proceed first thereby allowing a determination for any neurological examination or reduced scope of examination.

The motion is therefore denied without prejudice.

“The court shall impose a monetary sanction … against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand for a physical examination, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2032.250, subd. (b).) Plaintiff makes no request for sanctions.

Motion to Compel Further Responses set for October 9, 2023.

Defendant to provide notice.

Dept. F-49

Date: 7-20-23 c/f 6-14-23

Case #20STCV19456

Trial Date: 10-9-23

SUMMARY JUDGMENT/SUMMARY ADJUDICATION

MOVING PARTY: Defendant, Hugo Osoy

RESPONDING PARTY: Plaintiff, Pablo Padron

RELIEF REQUESTED

Motion for Summary Judgment/Summary Adjudication

SUMMARY OF ACTION

RULING: Granted

Evidentiary Objection to “moving papers in their entirety”: Overruled.

· As addressed in the standard below, the pleadings frame the issues, and the court adheres to the standard of review for summary judgment/summary adjudication. Evidentiary objection to the factual and procedural foundation of a motion is not a basis for exclusion or disqualification of a motion.

Evidentiary Objections to the “separate statement”: Overruled.

· Plaintiff offers substantive factual arguments to the separate statement, again exceeding the purpose of evidentiary objections.

· The evidentiary objections are not correctly formatted. (Cal. Rules of Court, rule 3.1354(b).)

Evidentiary Objections to the Declaration of Arredondo: Sustained. (Cal. Rules Court, rule 3.1110(g).)

Evidentiary Objections to Declaration of Brad Wong: Overruled.

Evidentiary Objections to the Declaration of Mark Burns: Overruled.

Evidentiary Objections to Declaration of Arash Zabetian: Overruled (Code Civ. Proc., § 437c, subd. (q).).

Evidentiary Objections to Deposition Transcript of Arredondo: Overruled (Code Civ. Proc., § 437c, subd. (q).).

Evidentiary Objection to Exhibits 11 & 12c: Sustained.

Request for Judicial Notice: Denied.

The court declines to take judicial notice of a compendium of exhibits for any content presented within said exhibits for their truthfulness. Plaintiff may present authority in the memorandum of points and authorities, and any evidence pursuant to the evidentiary rules for admission of exhibits in a summary judgment proceeding.

Defendant Hugo Osoy moves for summary judgment or alternatively summary adjudication on the complaint of plaintiff Pablo Padron on grounds that the entire action is barred by the workers’ compensation exclusivity rule, and/or that Defendant was not negligent in any way with regards to the provision of the ladder.

Plaintiff Pablo Padron in opposition first challenges the lack of an affirmative defense for workers’ compensation doctrine, insufficient factual support to shift the burden, the inapplicability of workers’ compensation exclusivity doctrine, failure to procure workers’ compensation coverage for Plaintiff, and equitable estoppel barring any judgment on the complaint. As for the negligence claim, Plaintiff challenges the failure to negate each and every theory of liability pled. Finally, Plaintiff concludes with an argument of spoliation, due to the disposal of the ladder, which entitles Plaintiff to an “adverse evidentiary inference” against Defendant.

Defendant in reply asserts no workers compensation claim affirmative defense was required given Plaintiff’s own complaint alleging a claim alleging workers compensation exclusivity. Defendant next asserts that the operative homeowner insurance contains policy workers’ compensation coverage. Defendant reiterates the applicability of the workers’ compensation defense based on the contract for work of more than 52 hours and for payment of more than $100. Workers’ Compensation remains available. Defendant denies any application of Cal-OSHA requirements. Defendant denies any negligence based on a denial of any provision of a defective ladder or conduct causing or contributing to the fall. Finally, denies any spoliation.

Summary Judgment Standard

The pleadings frame the issues for motions, “since it is those allegations to which the motion must respond. (Citation.)” (Scolinos v. Kolts (1995) 37 Cal. App. 4th 635, 640-641; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382-383; Jordan-Lyon Prods., LTD., v. Cineplex Odeon Corp. (1994) 29 Cal.App.4th 1459, 1472.) Fire only remains named in the first cause of action for negligence in the second amended complaint based on the alleged failure of insurance agent Vivian Garcia to obtain sufficient coverage with Farmers Group, Inc. (Fire).

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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 “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.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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.” (Ibid.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inference that may be drawn form that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, 159 Cal.App.4th at 467; see also Code Civ. Proc., § 437c, subd. (c).) “An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.” (Lyons v. Security Pacific National Bank (1995) 40 Cal.App.4th 1001, 1041 (citation omitted).)

The parties agree with the identification of defendant Osoy as both homeowner 13755 Merchant Ave., Sylmar, and employer at all relevant times. The parties however dispute the application of the workers’ compensation exclusivity statute, and the definition of employment in the subject action.

Procedural Standard

An “answer to a complaint must include ‘[a] statement of any new matter constituting a defense.’ The phrase ‘new matter’ refers to something relied on by a defendant which is not put in issue by the plaintiff. [Citation.] Thus, where matters are not responsive to essential allegations of the complaint, they must be raised in the answer as ‘new matter.’ [Citation.] Where, however, the answer sets forth facts showing some essential allegation of the complaint is not true, such facts are not ‘new matter,’ but only a traverse.” (Walsh v. West Valley Mission Community College District (1998) 66 Cal.App.4th 1532, 1546 (italics original).)

“Generally, a party must raise an issue as an affirmative defense where the matter is not responsive to essential allegations of the complaint. [Citations omitted.] Thus, where a defendant relies on facts not put in issue by the plaintiff, the defendant must plead such facts as an affirmative defense.” (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 698; South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733–734.) A party must allege any and all affirmative defenses or risk waiver. (Cal. Code Civ. Proc., § 430.80(a); See Roy v. Superior Court of County of San Bernardino (2005) 127 Cal.App.4th 337, 345.)

Plaintiff properly argues the general standard regarding the pleadings framing of issues for consideration in a motion for summary judgment/summary adjudication. A review of the 28 affirmative defenses listed in the answer to the operative complaint in fact lacks any address of the workers’ compensation exclusivity standard. An argument can be made that in certain contexts the workers’ compensation exclusivity supports the finding of a traverse, thereby not requiring an affirmative defense. The workers’ compensation exclusivity defense in fact allows for contextual consideration, even in the absence of the explicit defense. The subject situation was addressed by the California Supreme Court, which states in relevant part:

“It has long been established in this jurisdiction that, generally speaking, a defendant in a civil action who claims to be one of that class of persons protected from an action at law by the provisions of the Workers' Compensation Act bears the burden of pleading and proving, as an affirmative defense to the action, the existence of the conditions of compensation set forth in the statute which are necessary to its application.[] (Citations.) ‘The employee is pursuing a common law remedy which existed before the enactment of the statute and which continues to exist in cases not covered by the statute. It is incumbent upon the employer to prove that the Workmen's Compensation Act is a bar to the employee's ordinary remedy.’ (Citation.)

“An exception to this general rule of pleading and proof by the defendant appears in the situation where the complaint affirmatively alleges facts indicating coverage by the act. Then, unless the complaint goes on to state additional facts which would negative the application of the act, no civil action will lie and the complaint is subject to a general demurrer. (Citations.)”

(Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96–98.)

Plaintiff preemptively challenges the exception to the workers’ compensation rule articulated by the California Supreme Court. The court examines the operative complaint. Plaintiff concedes to a “de facto” employment relationship, but maintains said term of employment falls within exclusion from the rule based on an allegation for work of less than 52 hours preceding the date of the injury. [Comp., ¶¶ 19-20, 24.]

Injury claims are subject to the exclusive provisions of the Workers’ Compensation statutory provisions, where the injury to the employee occurs as a result of a “service growing out of and incidental” to employment, and the employee is “acting within the course” of employment. (Lab. Code, §§ 3600, subd. (a)(2), 3602; Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 813.) The injury must cause a disability and/or require medical attention. (Gomez v. Acquistapace (1996) 50 Cal.App.4th 740, 748.)

The circumstances of the injury causing event place Plaintiff within the purview of consideration for the workers’ compensation exclusivity rule. The court considers the dispute over whether Plaintiff qualified as a statutorily defined employee.

“‘Employee’ means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes: … (d) Except as provided in paragraph (8) of subdivision (a) of Section 3352, any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant.” (Lab. Code, § 3351.) “‘Employee,’ excludes the following: … (8) A person described in subdivision (d) of Section 3351 whose employment by the employer to be held liable, during the 90 calendar days immediately preceding the date of injury … comes within either of the following descriptions: (A) The employment was, or was contracted to be, for less than 52 hours. (B) The employment was, or was contracted to be, for wages of not more than one hundred dollars ($100).” (Lab. Code, § 3352, subd. (a).)

Again, Plaintiff in the operative complaint specifically alleges an employment term of less than 52 hours in the preceding 90 days. [Comp., ¶ 19.] The motion for summary judgment contends the contract was both for more than $100, with an 80 hour time estimate. While the answer specifically lacks the affirmative defense, the court finds the preemptive address by Plaintiff in the operative complaint placed the issue of exclusivity at issue, thereby allowing Defendant to raise claim in defense via summary judgment. (Doney v. Tambouratgis, supra, 23 Cal.3d at pp. 96–98.) (Even if the defense were excluded, Defendant may also seek leave to amend the answer, thereby potentially reserving the defense for trial, though the court need not address this argument.) The court therefore considers the merits of the motion.

Exclusion

Defendant relies on the plain language of the statute for a determination of exclusion based on the 80-hour work time estimate. [Declaration of David Mendoza, Ex. C: Deposition of Pablo Padron, 53:2-4, 57:2-6, 128:18-23, 130:10-12.] Plaintiff was on the job for at least four to five days, plus weekend afternoon time at the time of the accident. [Id., 63:20-25, 66:22-24, 74:25-75:2.] Plaintiff admits to receiving at least $1,000. [Id., 130:10-12; see Declaration of Arash Zabetian, Compendium of Exhibits, Ex. 4: Deposition of Hugo Osoy (vol. II), 106:20-23, 161:8-21 [Payment of $980 to $1,000 at $400/day for payment of 2.5 days].]

Plaintiff counters with both an argument that Defendant must show both more than 52 hours of employment AND payment of more than $100, and a challenge to any showing of said requirements. Plaintiff relies on said supporting argument with an assertion that Plaintiff only “planned” to spend 10-12 days, but Plaintiff in fact only worked two to two and one-half days before the incident. [Declaration of Arash Zabetian, Compendium of Exhibits, Ex. 4: Deposition of Hugo Osoy, 107:10-14 [three to four days]; (Declaration of Pablo Padron, ¶ 4 also attests to this representation, but remains excluded pursuant to the evidentiary objections).]

The argument depends heavily on the prior language of the statute under Labor Code section 3352, subdivision (h), and otherwise dismissively addresses the changes brought under subdivision (a)(8). A court interpreting the prior language stated the standard for statutory review: The “court is directed to ‘liberally construe’ the statutes ‘with the purpose of extending their benefits for the protection of persons injured in the course of their employment.’ (§ 3202.) In the solution of a problem such as this, our inquiry must be: ‘Is the employment unmistakably excluded by the terms of the act?’” (Stewart v. Workers' Comp. Appeals Bd. (1985) 172 Cal.App.3d 351, 355.) The court finds no basis to deviate from this standard, but also notes the lack of authority interpreting the latest amendment.

Under the prior language, Plaintiff correctly states the actual hours worked standard, though the court disagrees with the condition that actual hours and payment of over $100 are both required conditions. (Zaragoza v. Ibarra (2009) 174 Cal.App.4th 1012, 1016; Ramirez v. Nelson (2008) 44 Cal.4th 908, 914 [“the decedent had not worked the required 52 hours for the Nelsons, nor earned $100 during the 90 calendar days immediately preceding his death, so as to bring him within the special statutory definition of an “employee” eligible for workers' compensation benefits]; Cedillo v. Workers' Comp. Appeals Bd. (2003) 106 Cal.App.4th 227, 234.)

The court also agrees with Plaintiff’s argument regarding the vagueness of establishing the amount of hours worked on the project. An estimate is not the equivalent of actual hours worked. Furthermore, while portions of Plaintiff’s deposition transcript indicates four to five days at the home, it’s not clear from the context whether the represented period was strictly for the subject sky light work, given the later testimony admitting to payment of $980 to $1,000 for 2 to 2.5 days of work at $400/hour. At a minimum, the confusion, or even conflict of evidence, only constitutes a disputed fact over time spent. Under the old standard, the “or” would render Plaintiff excluded given the undisputed payment of over $100.

The court however finds no basis of applicability of the prior standard, and instead considers the current statutory language. “Our fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. (Citation.) We begin by examining the statutory language, giving the words their usual and ordinary meaning. (Citation.) If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs. (Citations.) If, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. (Citations.) In such circumstances, we ‘select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.’ [Citation.]’ (Citations.)” (Day v. City of Fontana (2001) 25 Cal.4th 268, 272 (internal quotation marks omitted.)

The plain language of Labor Code section both specifically includes the word “either” under both the (A) and (B) sections meaning one or the other, not both is required to establish an exclusion. Once again: “‘Employee,’ excludes the following: … (8) A person described in subdivision (d) of Section 3351 whose employment by the employer to be held liable, during the 90 calendar days immediately preceding the date of injury … comes within either of the following descriptions: (A) The employment was, or was contracted to be, for less than 52 hours. (B) The employment was, or was contracted to be, for wages of not more than one hundred dollars ($100).” (Lab. Code, § 3352, subd. (a) (emphasis added).)

As noted above, it remains undisputed that Plaintiff was paid more than $100. On this basis alone, the court finds Plaintiff an employee for purposes of the workers’ compensation statute. Again, even acknowledging the vagueness in the hours spent working on the home, it still remains undisputed that Plaintiff contracted for more than 52 hours of work. The court declines to disregard the plain language of the statute, “or was contracted to be” based on reliance of the prior statute. The court finds no ambiguity in this language. The court therefore finds Plaintiff an employee on the basis of the contract as well, and no exemption from the statute under Labor Code section 3352, subdivision (a)(8).

The court declines to address Plaintiff’s arguments regarding the homeowners’ insurance provisions given the finding of workers’ compensation exclusion. The court also finds no basis of estoppel from asserting workers’ compensation exclusivity simply based on Defendant’s alleged knowledge of the injury and inability of Plaintiff to continue working. Nothing in the evidence cited in reliance indicates an intentional act to deprive Plaintiff of rights to bring a workers’ compensation claim with the insurer or even actual deprivation of said claim, even if the claim information was not provided. [Osoy Depo., 126:13-14, 148:24-149:3, 160:19-25, 161:8-162:8; Zabetian Dec., Ex. 13: Responses to Request for Admissions (set four), numbers 47-48.] (Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24, 35–36.) In other words, the issue of whether Plaintiff can collect workers’ compensation is not at issue in the subject motion. The court only determines whether the claim is subject to workers’ compensation exclusivity in the subject action. (Ibid.) Plaintiff may tender the claims to the homeowner insurer and address any such concerns with the Workers’ Compensation Board.

Defendant also challenges any showing of negligence based on the provision of the ladder. Plaintiff challenges the motion on grounds that Defendant fails to shift the burden of proof on “any” theories of negligence. Plaintiff additionally contends triable issues of material fact exist on the negligence claim.

“In such action it is presumed that the injury to the employee was a direct result and grew out of the negligence of the employer, and the burden of proof is upon the employer, to rebut the presumption of negligence. It is not a defense to the employer that the employee was guilty of contributory negligence, or assumed the risk of the hazard complained of, or that the injury was caused by the negligence of a fellow servant. No contract or regulation shall restore to the employer any of the foregoing defenses. [¶] This section shall not apply to any employer of an employee, as defined in subdivision (d) of Section 3351, with respect to such employee, but shall apply to employers of employees described in subdivision (b) of Section 3715, with respect to such employees.” (Lab. Code, § 3708.)

The relevant statutory section provides numerous criteria definitions of an employee. The court addresses the specific section identified in Labor Code Section 3708. “‘Employee’ means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and includes: … (d) Except as provided in paragraph (8) of subdivision (a) of Section 3352, any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant.” (Lab. Code, § 3351.) Once again: “‘Employee,’ excludes the following: … (8) A person described in subdivision (d) of Section 3351 whose employment by the employer to be held liable, during the 90 calendar days immediately preceding the date of injury … comes within either of the following descriptions: (A) The employment was, or was contracted to be, for less than 52 hours. (B) The employment was, or was contracted to be, for wages of not more than one hundred dollars ($100).” (Lab. Code, § 3352, subd. (a).)

“Notwithstanding this section or any other provision of this chapter except Section 3708, any person described in subdivision (d) of Section 3351 who is … (3) engaged in casual employment where the work contemplated is to be completed in not less than 10 working days, without regard to the number of persons employed, and where the total labor cost of the work is not less than one hundred dollars ($100) (which amount shall not include charges other than for personal services), shall be entitled … to proceed[] against his or her employer by civil action in the courts as provided in Section 3706. …” (Lab. Code, § 3715, subdivision (b).)

Plaintiff depends on the presumption of negligence under Labor Code section 3708, which requires a finding of application of Labor Code sections 3351 and 3715, subdivision (b), and no employee exemption under Labor Code section 3552, subdivision (a)(8). [Comp., ¶ 40.] Plaintiff additionally adds that he was hired for work requiring a contractors’ license, but was never licensed, thereby also contributing to the finding of employee rather than independent contractor status. “There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required … 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.” (Lab. Code, § 2750.5.) [Comp., ¶¶ 40-42.]

As addressed above, the court finds Plaintiff was an employee and therefore subject to workers’ compensation exclusion. Also previously raised, nothing in the subject action establishes a lack of available workers’ compensation insurance from the homeowner policy. The court therefore finds the subject claim also precluded, as all claims for liability are subject to workers’ compensation.

“Ordinarily, when an employee sustains a worksite injury, the exclusive remedy against his or her employer is provided by the workers' compensation law, and the employer is immune from a suit for damages. (§§ 3600, 3601, 3602, subd. (a).) But if the employer has not secured workers' compensation coverage or its equivalent, an injured employee may bring a civil suit against his or her employer. (§ 3706; Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 982-987, 101 Cal.Rptr.2d 325.) … [¶] When an employee of a contractor is injured, and the contractor is unlicensed and uninsured at the time of injury, the injured employee's recourse may be against not only the contractor, but also against the landowner who hired the contractor, as an additional employer.” (Vebr v. Culp (2015) 241 Cal.App.4th 1044, 1051–1052.) Again, the court declines to consider the existence of the terms of the homeowners’ insurance policy and tender of the claim. The court finds no basis for allowing the claim to otherwise proceed simply based on speculation regarding the workers’ compensation policy claim result.

The Cal-OSHA requirements are otherwise subsumed within the negligence claim, and therefore subject to the workers’ compensation exclusivity holding. The court declines to consider the spoliation of evidence argument, as such consideration is not the province of a motion for summary judgment.

The motion for summary judgment is therefore GRANTED.

Motion to Compel Further Responses set October 9, 2023, and jury trial are vacated. Defendant to submit a judgment.

Defendant to provide notice.