Judge: Theodore R. Howard, Case: 21-1211860, Date: 2023-01-05 Tentative Ruling

The Motion for Summary Judgment brought by Defendant, Illusions Unlimited Inc., dba Illusions Unlimited Salon (“Illusions”) is DENIED.

The court’s sole function on a motion for summary judgment is issue-finding, not issue-determination.  The judge must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.”  CCP § 437c(c) (emphasis added); see Zavala v. Arce (1997) 58 Cal.App.4th 915, 926 (citing text); Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 (citing text).

A court may not make credibility determinations or weigh the evidence on a motion for summary judgment or adjudication, and all evidentiary conflicts are to be resolved against the moving party.  McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.

Here, Illusions seeks summary judgment in its favor and against Plaintiff, Mischa Denton (“Plaintiff”) as to Plaintiff’s causes of action for negligence and negligent supervision asserted against it in Plaintiff’s complaint.  Illusions contends that it cannot be vicariously liable for the acts of Briana Molano (“Molano”) because Molano was an independent contractor, and not an employee of Illusions.

Under the doctrine of “respondeat superior,” an employer may be vicariously liable for an employee’s tortious acts committed within the scope of the employment.  CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1260.  Although an employer may be vicariously liable for the negligent acts of its employees, as a general rule, hirers cannot be held vicariously liable for the wrongdoing of their independent contractors.  Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1107; A. Teichert & Son, Inc. v. Sup.Ct. (Gumpert) (1986) 179 Cal.App.3d 657, 661-662.

Whether a person is an employee or an independent contractor is ordinarily a question of fact which may only be resolved as a matter of law if from all the facts only one inference may be drawn.  Angelotti v. Walt Disney Co. (2011) 192 Cal.App.4th 1394, 1404; Michael v. Denbeste Transp., Inc. (2006) 137 Cal.App.4th 1082, 1093.

The general approach to determine whether a worker is an employee is set forth in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350-351.

The court finds Illusions has sustained its initial burden of establishing that the first cause of action for negligence asserted against it has no merit.  Based on Illusions’ proffered evidence, it can be reasonably inferred that Molano was an independent contractor and, thus, Illusions cannot be vicariously liable for Molano’s conduct.  See Illusions’ Statement of Undisputed Material Facts (“UMF”) Nos. 16, 18, 19, 22, 29, 33, 34, 36, 38-42; see also, Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1107; A. Teichert & Son, Inc. v. Sup.Ct. (Gumpert) (1986) 179 Cal.App.3d 657, 661-662 

Because Illusions met its initial burden, the burden shifted to Plaintiff to produce evidence demonstrating the existence of a triable issue of fact as to whether Molano was an employee of Illusions.  Code Civ. Proc., § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851.  Plaintiff has met this burden.  Under the Borello approach, Plaintiff’s evidence could support a reasoned inference that Molano was Illusions’ employee at the time of the subject incident.  See Plaintiff’s Additional Statement of Material Facts and Supporting Evidence (“PMF”) Nos. 9, 14, 17-24, 26, 28, 35, 39-47, 49-57; see also, Borello, supra.

Plaintiff offered evidence showing that Molano is not engaged in a distinct occupation or business, separate from her work with Illusions (PMF 18-24, 26); Molano’s work is part of the regular business of Illusions (PMF 9, 52-57); Illusions exercised direction over some aspects of Molano’s work (PMF 14, 28, 35, 39); the length of time Molano is to perform services for Illusions is indefinite and no notice is required to discharge Molano (PMF 17); and Illusions supplies many of the instrumentalities and tools and provides the place of work for Molano (PMF 43-47).  The foregoing factors, taken as a whole, can support a reasonable inference that an employment relationship between Molano and Illusions existed.

The court notes that the right to control is not the exclusive determinant of employee status.  See Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 303.  The cases consistently endorse a multi-factor test that considers not only the right of control, but also secondary factors such as those listed in Borello.  Id.  Here, the court finds the totality of the evidence cited above is sufficient to raise a triable issue as to the existence of an employment relationship.

Accordingly, the motion is DENIED as to the negligence cause of action.  Because triable issues exist regarding the negligence cause of action and thus summary judgment is not warranted, the court need not reach the parties’ arguments regarding the negligent supervision cause of action.

Plaintiff’s request for judicial notice is GRANTED.  Evid. Code § 452(h); People v. Morales (2018) 25 Cal.App.5th 502, fn 7.

Illusions’ evidentiary objections are OVERRULED as to the objections labeled 14, 18-21, 39-43, 46-47, 49, and 52-53.  The court declines to rule on the remaining objections as they are not material to the disposition of the motion.  C.C.P. § 437(c)(q).

Plaintiff to give notice.