This case was last updated from Los Angeles County Superior Courts on 11/23/2019 at 01:30:14 (UTC).

ALEJANDRO SILVA VS WARREN RESOURCES OF CALIFORNIA, INC.

Case Summary

On 04/07/2015 ALEJANDRO SILVA filed a Personal Injury - Other Personal Injury lawsuit against WARREN RESOURCES OF CALIFORNIA, INC. This case was filed in Los Angeles County Superior Courts, Governor George Deukmejian Courthouse located in Los Angeles, California. The Judges overseeing this case are HOWARD L. HALM, ROBERT B. BROADBELT, RANDOLPH M. HAMMOCK, DEIRDRE HILL, ROSS KLEIN, DENNIS J. LANDIN, MICHAEL P. VICENCIA and DEBRE K. WEINTRAUB. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8022

  • Filing Date:

    04/07/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Governor George Deukmejian Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

HOWARD L. HALM

ROBERT B. BROADBELT

RANDOLPH M. HAMMOCK

DEIRDRE HILL

ROSS KLEIN

DENNIS J. LANDIN

MICHAEL P. VICENCIA

DEBRE K. WEINTRAUB

 

Party Details

Plaintiffs and Petitioners

SILVA ALEJANDRO

ALEJANDRO SILVA

JIMENEZ JACOB RUBEN

Claimants

TRAVELERS PROPERTY CASUALTY COMPANY OF

CYPRESS INSURANCE COMPANY

Defendants, Respondents and Cross Plaintiffs

C&S WELDING INC.

DOES 1 TO 100

JOHN GUZMAN CRANE SERVICE

WARREN RESOURCES OF CALIFORNIA INC.

WARREN E&P INC.

DANNY LUCEV (DOE 1)

JOHN GUZMON CRANE SERVICES

OIL WARREN

JACOB JIMINEZ DOE2

WARREN E & P INC.

C & S WELDING INC.

LUCEV DANIEL

Defendants, Respondents and Cross Defendants

JOHN GUZMAN CRANE SERVICE

WARREN E&P INC.

CRANE GUZMAN

GUZMAN CRANE

WARREN E & P INC.

C & S WELDING INC.

ROES 1 TO 50

22 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LAW OFFICE OF BENJAMIN P. WASSERMAN

BERGLUND & JOHNSON LAW GROUP

LAW OFFICES OF BERGLUND & JOHNSON

MAKLEY ROBERT EUGENE JR

BENJAMIN P. WASSERMAN LAW OFFICE OF

WASSERMAN BENJAMIN P.

MAKLEY ROBERT E.

Defendant, Respondent and Cross Plaintiff Attorneys

BINNING MICHAEL W. ESQ.

VEATCH CARLSON LLP

LARRY F. PEAKE ESQ.

WALL WALL & PEAKE

LAW OFFICE OF MICHAEL W. BINNING

BERGLUND & JOHNSON

WARREN E & P INC.

MICHAEL W. BINNING LAW OFFICE OF

MIZEN SCOTT STEVEN

PEAKE LARRY F. ESQ.

LARRY F. PEAKE APLC

Other Attorneys

DEBIASO JOHN RODNEY

KENNY EUGENE PATRICK

8 More Attorneys Available

 

Court Documents

Separate Statement - SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

8/23/2019: Separate Statement - SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Notice of Ruling

9/25/2019: Notice of Ruling

Response - RESPONSE TO DEFENDANTS C&S WELDING, INC. AND DANIEL LUCEV'S SEPARATE STATEMENT AND SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF OPPOSITION TO DEFENDANTS C&S WELDING, INC. A

10/29/2019: Response - RESPONSE TO DEFENDANTS C&S WELDING, INC. AND DANIEL LUCEV'S SEPARATE STATEMENT AND SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF OPPOSITION TO DEFENDANTS C&S WELDING, INC. A

Declaration - DECLARATION OF BENJAMIN WASSERMAN IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

10/29/2019: Declaration - DECLARATION OF BENJAMIN WASSERMAN IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Objection - OBJECTION TO DECLARATION OF PLAINTIFF ALEJANDRO SILVA SUBMITTED IN OPPOSITION

11/6/2019: Objection - OBJECTION TO DECLARATION OF PLAINTIFF ALEJANDRO SILVA SUBMITTED IN OPPOSITION

Other - - Association Of Attorney

11/30/2018: Other - - Association Of Attorney

Answer

2/4/2019: Answer

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL PSYCHIATRIC MENTAL EXAM)

4/15/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL PSYCHIATRIC MENTAL EXAM)

Motion to Compel - MOTION TO COMPEL FOR LEAVE FOR PAIN MANAGEMENT EXAM

4/22/2019: Motion to Compel - MOTION TO COMPEL FOR LEAVE FOR PAIN MANAGEMENT EXAM

Reply - REPLY TO OBJECTIONS TO MOTION FOR LEAVE FOR PAIN MANAGEMENT EXAM

5/9/2019: Reply - REPLY TO OBJECTIONS TO MOTION FOR LEAVE FOR PAIN MANAGEMENT EXAM

Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

6/25/2019: Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Separate Statement

6/25/2019: Separate Statement

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -

4/7/2015: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -

SUMMONS CROSS-COMPLAINT

7/6/2015: SUMMONS CROSS-COMPLAINT

OSC SUBMITTAL OF WARREN RESOURCES OF CALIFORNIA, INC. RE: STATUS OF BANKRUPTCY OF ALL WARREN RELATED ENTITIES

3/27/2017: OSC SUBMITTAL OF WARREN RESOURCES OF CALIFORNIA, INC. RE: STATUS OF BANKRUPTCY OF ALL WARREN RELATED ENTITIES

NOTICE OF FURTHER STATUS CONFERENCE

4/13/2017: NOTICE OF FURTHER STATUS CONFERENCE

Minute Order -

7/14/2017: Minute Order -

NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION

10/20/2017: NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION

129 More Documents Available

 

Docket Entries

  • 04/22/2020
  • Hearing04/22/2020 at 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Jury Trial

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  • 04/15/2020
  • Hearing04/15/2020 at 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Final Status Conference

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  • 03/06/2020
  • Hearing03/06/2020 at 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Post-Mediation Status Conference

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  • 12/10/2019
  • Hearing12/10/2019 at 10:00 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion for Summary Judgment

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  • 12/06/2019
  • Hearing12/06/2019 at 10:00 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion for Leave to File a Cross-Complaint

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  • 11/12/2019
  • Docketat 08:30 AM in Department B; Hearing on Ex Parte Application (for Order Advancing Hearing Date) - Held - Motion Granted

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  • 11/12/2019
  • Docketat 08:30 AM in Department B; Hearing on Motion for Summary Judgment (of Defendant C&S & Lucev as to plaintiff Silva) - Not Held - Continued - Court's Motion

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  • 11/12/2019
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment of Defendant C&S & Luc...)); Filed by Clerk

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  • 11/12/2019
  • DocketMinute Order ( (Hearing on Ex Parte Application for Order Advancing Hearing Date)); Filed by Clerk

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  • 11/08/2019
  • DocketMotion for Leave to File a Cross-Complaint; Filed by John Guzman Crane Service, Inc. (Defendant)

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378 More Docket Entries
  • 05/28/2015
  • DocketProof-Service/Summons; Filed by Alejandro Silva (Plaintiff)

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  • 05/28/2015
  • DocketProof-Service/Summons; Filed by ALEJANDRO SILVA (Plaintiff); Alejandro Silva (Plaintiff)

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  • 04/07/2015
  • DocketSummons Filed (on Plaintiff Alejandro Silva's Complaint ); Filed by Attorney for Plaintiff/Petitioner

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  • 04/07/2015
  • DocketComplaint (for Plaintiff Alejandro Silva ); Filed by Attorney for Plaintiff/Petitioner

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  • 04/07/2015
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 04/07/2015
  • DocketSUMMONS

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  • 04/07/2015
  • DocketSummons; Filed by Alejandro Silva (Plaintiff)

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  • 04/07/2015
  • DocketComplaint Filed (SUMMONS ISSUED ); Filed by Attorney for Plaintiff

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  • 04/07/2015
  • DocketSummons; Filed by null

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  • 04/07/2015
  • DocketComplaint filed-Summons Issued; Filed by null

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Tentative Rulings

Case Number: BC578022    Hearing Date: January 09, 2020    Dept: B

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

ALEJANDRO SILVA,

Plaintiff,

Case No.:

BC578022

vs.

[Tentative] RULING

WARREN RESOURCES OF CALIFORNIA, INC., et al.,

Defendants.

Hearing Date: January 9, 2020

Moving Parties: Defendants C&S Welding, Inc. and Daniel Luch aka Daniel Lucev

Responding Party: (1) Plaintiff Alejandro Silva, (2) defendant John Guzman Crane Service, Inc.

Motion for Summary Judgment

The court considered the moving, opposition, and reply papers.

RULING

The motion is DENIED.

BACKGROUND

On April 7, 2015, plaintiff Alejandro Silva filed a complaint against Warren Resources of California, Inc., John Guzman Crane Service, and C&S Welding, Inc. for general negligence and premises liability.

LEGAL AUTHORITY

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. Atlantic 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” CCP § 437c(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.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“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 inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

DISCUSSION

Defendants C&S Welding (“C&S”) and Daniel Luch aka Daniel Lucev (“Lucev”) request summary judgment in their favor and against plaintiff on the complaint on the ground there are no triable issues of material fact and, as a matter of law, they are entitled to judgment in their favor.

In the complaint, plaintiff alleges that defendants so negligently, carelessly, and recklessly designed, constructed, built, maintained, repaired supervised, and operated their facilities and premises, so as to allow a defective and dangerous condition on the premises, presenting a foreseeable risk to plaintiff and causing plaintiff to suffer and sustain a major and substantial injury. Defendants so negligently, carelessly, and recklessly hired, trained, and supervised their employees so as to cause, in preparation for a line flushing, at a well site, the valve at the well location to be opened, allowing pressure to escape from the line and travel into the vacuum truck hose. This pressure exceeded the rating for the cam lock fitting from the truck, causing a failure of the fitting and allowing the loose end of the hose to strike the plaintiff in his right leg and shin bone, thus causing plaintiff to sustain major and substantial injuries.

Defendants argue that plaintiff’s exclusive remedy against C&S and Lucev is in worker’s compensation because, for purposes of the pipeline flushing project at the Warren E&P site, defendant Lucev was Warren E&P’s special employee and Warren E&P was Lucev’s special employer.

Defendant Lucev

“Apart from certain exceptions . . . , the ‘exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment’ is benefits under the workers’ compensation laws. (§3601, subd. (a).) This statutory restriction does not affect the employee’s rights to tort damages from individuals or entities with whom the employee has no employment relationship. (§3852; . . .) If [the individual defendants] were independent contractors rather than special employees, . . . [plaintiff’s] claim is not barred by workers’ compensation exclusivity. (See, e.g., S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) [workers’ compensation exclusivity does not apply to independent contractors].).” Caso v. Nimrod Productions, Inc. (2008) 163 Cal. App. 4th 881, 888.

“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. ‘Once a special employment relationship is identified, two consequences ensue: (1) the special employer’s liability for workers’ compensation coverage to the employee, and (2) the employer’s [and its other employees’] immunity from a common law tort action, the latter consequence flowing from the exclusivity of the compensation remedy embodied in Labor Code section 3601.’” Id. (citations omitted).

“In order to be deemed a special or borrowed employee, the special employer must play a significant supervisory role over the work of the injured person in the particular operation being performed at the time of the injury.” Collins v. Union Pacific Railroad Co. (2012) 207 Cal. App. 4th 867, 879 (citation omitted).

The Court of Appeal in Collins further stated:

“The determination of whether a worker is a borrowed servant is accomplished by ascertaining who has the power to control and direct the servants in the performance of their work, distinguishing between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking. There is thus a distinction between ‘authoritative direction and control’ by a railroad, and the ‘minimum cooperation necessary to carry out a coordinated undertaking’ which does not amount to control or supervision. The control need not be exercised; it is sufficient if the right to direct the details of the work is present.” Id. at 879 (citations omitted).

“In addition to the alleged special employer’s control over the employee, there are a number of other factors relevant to deciding whether a special employment relationship existed. The existence of a special employment relationship may be supported by evidence that (1) the alleged special employer paid wages to the employee, (2) the alleged special employer had the power to discharge the employee, (3) the work performed by the employee was unskilled, (4) the work tools were provided by the alleged special employer, (5) the work was part of the alleged special employer’s regular business, (6) the employee expressly or impliedly consented to a special employment relationship, (7) the parties believed they were creating a special employment relationship, and (8) the alleged special employment period was lengthy.” Brassinga v. City of Mountain View (1998) 66 Cal. App. 4th 195, 217 (citations omitted).

“On the other hand, a special relationship may be negated by evidence that ‘[t]he employee is (1) not paid by and cannot be discharged by the borrower, (2) a skilled worker with substantial control over operational details, (3) not engaged in the borrower’s usual business, (4) employed for only a brief period of time, and (5) using tools and equipment furnished by the lending employer.’” Id. at 217 (citation omitted).

“The question of whether a special employment relationship exists is generally a question of fact reserved for the jury.” Collins, supra, 207 Cal. App. 4th at 878 (citation omitted). “[S]pecial employment is most often resolved on the basis of ‘reasonable inferences to be drawn from the circumstances shown.’ Where the evidence, though not in conflict, permits conflicting inferences, . . . ‘the existence or nonexistence of the special employment relationship barring the injured employee’s action at law is generally a question reserved for the trier of fact.’ However, if neither the evidence nor inferences are in conflict, then the question of whether an employment relationship exists becomes a question of law which may be resolved by summary judgment.” Brassinga, supra, 66 Cal. App. 4th at 217 (citations and internal quotations omitted).

The parties do not dispute that on April 28, 2014, plaintiff sustained injury while working at an oil well at the Warren E&P site located in Wilmington. Defendants’ Separate Statement of Undisputed Material Facts (“DUMF”) 1. At the time of the subject incident, plaintiff Silva was an employee of Warren E&P. DUMF 2. At the time of the accident, Warren E&P and C&S Welding had a standing Master Service Agreement where C&S would provide C&S personnel to Warren E&P at an hourly rate for work on Warren E&P’s project. DUMF 4. On the day of the subject accident, C&S provided Daniel Lucev and Ephrin Lorenzo to Warren E&P for labor as mechanics on the pipeline flushing project at the designated hourly rate. DUMF 5. Lucev had been working on the pipe flushing project at Warren E&P site for approximately two weeks prior to the accident. DUMF 6.

The parties also do not dispute that prior to commencing the work, a pre-job safety meeting was held, including Warren E&P Lead Mechanic Fabian Orcino, Warren E&P superintendent Alan Veith, plaintiff, Daniel Lucev, Ephrin Lorenzo, Carlos Lopez, and Jacob Jimenez. DUMF 7.

Defendants present evidence that at that meeting, it was discussed that plaintiff would go to the well head end of the line to supervise the set up for the connection of the water truck hose to the pipeline along with Lucev and Jimenez. It was further discussed that Orcino would go to the manifold end of the line along with Lorenzo and Lopez and that Orcino would check at his end to determine if there was any pressure in the line in order to notify plaintiff by cell phone when it was clear for plaintiff’s end of the line to open the valve and begin pumping water into the pipeline. Fabian Orcino decl., ¶5. As per the pre-job safety training, Orcino was to provide supervision and direction to Lorenzo at the end of the line and plaintiff was to provide supervision and direction of Lucev at the end of his line. Id., ¶6.

Defendants further assert that with regard to the pipeline flushing project, the C&S workers involved, including Lucev, were instructed by Warren E&P as to the work being performed, including the process of checking a pipeline for pre-existing pressure. Id., ¶9.

Plaintiff stated in his deposition that he supervised Lucev to “[m]ake sure the job was good.” Silva depo., at 30. Plaintiff provided work assignments to Lucev. Id., at 30, 31. Lucev performed work under plaintiff’s control and supervision. Id., at 30, 31. On the date of the incident, plaintiff testified that he was the supervisor for the flushing of the pipeline for his group, including Lucev. Id., at 178. Lucev performed his work under plaintiff’s supervision, direction, and control. Id., at 178-179. It was plaintiff’s understanding that C&S labor, including Lucev, for flushing of the pipeline, worked under the direction and control of Warren E&P. Id., at 185. Plaintiff provided Lucev with his work assignment with respect to flushing the pipeline that was being done on the day of the incident. Id.

In opposition, plaintiff argues that C&S and Lucev were independent contractors and not special employer or special employee. Plaintiff presents his declaration, which states that on April 8, 2014, at no time during the meetings was Lucev given instruction as to the details of the work he would perform. Plaintiff’s decl., ¶15. The April 8, 2014 meeting was a general safety review and discussion of the outcome to be achieved, that is, the flushing and clean-out of the pipelines. Id., ¶16. On April 8, 2014, Lucev was responsible for determining whether there was pre-existing pressure in the pipeline, and if none were present, then he would set up his hose connection to the well head pipeline. Jimenez was responsible for the hose set up to the tanker truck used to flush water through the pipeline. As the team leader, plaintiff’s responsibility was to oversee the set up and provide the go-ahead for opening the valve or pipeline once clearance was received from the opposite side or manifold side of pipeline via cell phone communication. Id., ¶18. He did not supervise or provide detailed instruction of control as to the manner and method of Lucev’s job duties or responsibilities. Plaintiff only provided general observation and overview of the process, with the specific responsibility of providing the verbal command to proceed with the flushing process after the “all clear” call. Id., ¶19.

In opposition, defendant John Guzman Crane Service, Inc. contends that moving defendants’ argument that Lucev is a “special employee” is in direct contravention of the Master Services Agreement (“MSA”) between C&S Welding and Warren E&P. The MSA states:

SECTION IIIndependent Contractor Status

“The Contractor and Contractor Personnel shall be and hereby are independent contractors with respect to all Services, and shall act as independent contractors at all times during the term of this Agreement. Neither the Contractor nor the Contractor Personnel shall be deemed, for any purpose whatsoever, to be an agent, servant, employee or representative of the Company. The Contractor shall retain and exercise the authority and right to direct and control the manner in which all Services are performed for the Company; however, the Company retains the right to provide general instructions to and observe the Contractor in the performance of all Services performed hereunder. The Contractor shall have no right or authority to supervise, instruct or give orders to any of the Company’s employees, agents, representatives, consultants or subcontractors, and all such persons shall be and remain under the Company’s direct and sole supervision and control at all times. . . . The Contractor understands that, as an independent contractor, the Company does not provide to the Contractor or Contractor Personnel any benefits such as medical insurance, dental insurance, vacation plans, savings or retirement plans or any other similar benefit.”

. . . .

SECTION VII “Contractor’s Responsibilities and Warranties”

A. Unless otherwise provided in a Service Order, the Contractor shall furnish, at is sole cost, expense and risk, any and all machinery, equipment, tools, repairs, spare parts, automobile(s), transportation, supplies, goods, materials and any other items necessary for the performance and timely completion of the Services. . . .

In reply, defendants argue that the evidence is undisputed that plaintiff and Warren E&P controlled, directed, and supervised Lucev’s work on the project. As to the MSA, “[a]lthough the terms of a contract may specify that a special employer retains the right to control the details of an individual’s work or purports to establish an employment relationship, ‘the terminology used in an agreement is not conclusive . . . eve in the absence of fraud or mistake.’ . . . a contract is not conclusive evidence of the existence of the right to control.” Kowalski v. Shell Oil Co. (1979) 23 Cal. 3d 168, 176-77. Moving defendants argue also that as to plaintiff’s declaration, it is contrary to his deposition testimony.

The court finds that there are triable issues of material fact as to whether Lucev is a “special employee” of Warren E&P, including if and to what extent, Warren E&P controlled, directed, and supervised Lucev’s work on the project. Some factors favor the existence of a special relationship while others tend to negate the existence of a special relationship, including the MSA. “The conflicting inferences that arose from these facts precluded summary judgment.” Brassinga, supra, 66 Cal. App. 4th at 218.

Defendant C&S Welding

As stated above, there are triable issues of material fact as to whether C&S’s employee Lucev is a “special employee.” Further, the evidence indicates that C&S is an independent contractor, and thus not entitled to the protections of workers’ compensation exclusivity. See Caso, supra. Further, even if Lucev were a “special employee,” there are triable issues of material fact as to whether C&S retained some control of Lucev and thus liable under a respondeat superior theory. See Caso, supra, at 893 (“[A]lthough Caso cannot sue the individual defendants because he and they were co-employees, he is not an employee of the loan-out corporations and is thus not precluded by the workers’ compensation exclusivity doctrine from suing any of the corporate defendants under a respondeat superior theory.”).

The court finds that defendants have not met their burden of showing that workers’ compensation exclusivity bars plaintiff’s cause of action for negligence. In any event, plaintiff has proffered sufficient evidence to raise triable issues of material fact.

Evidentiary objections

Plaintiff’s objections are ruled on as follows: OVERRULED as to Nos. 1-11, 13-16; SUSTAINED as to No. 12, 17, 18, 19, 20.

Defendant John Guzman Crane Service, Inc.’s objections are ruled on as follows: OVERRULED as to Nos. 1-4, 6-8; SUSTAINED as to Nos. 5, 9, 10, 11.

Defendants C&S Welding and Lucev’s objections are ruled on as follows: As to the declaration of Benjamin Wasserman, Exh. 2, the objection is OVERRULED. As to the declaration of plaintiff Silva, SUSTAINED as to Nos. 1, 2, 3, 4; OVERRULED as to No. 5.

The motion for summary judgment is therefore DENIED.

Moving defendants are ordered to give notice of the ruling.

Case Number: BC578022    Hearing Date: December 06, 2019    Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

ALEJANDRO SILVA,

Plaintiff,

Case No.:

BC578022

c/w BC596823

vs.

[Tentative] RULING

WARREN RESOURCES OF CALIFORNIA, INC., et al.,

Defendants.

Hearing Date: December 6, 2019

Moving Parties: Defendant John Guzman Crane Service, Inc.

Responding Party: (1) Warren E&P, Inc.; (2) defendant C&S Welding, Inc. and Daniel Luch aka Daniel Lucev

Motion for Leave to File a Cross-Complaint

The court considered the moving papers, oppositions, and untimely reply.

RULING

The motion is GRANTED.

BACKGROUND

On April 7, 2015, plaintiff Alejandro Silva filed a complaint against Warren Resources of California, Inc., John Guzman Crane Service, and C&S Welding, Inc. for general negligence and premises liability.

On July 6, 2015, C&S Welding filed a cross-complaint against Warren E&P.

Warren E&P filed cross-complaints against C&S Welding and Guzman Crane for express and equitable comparative indemnity and contribution.

On September 19, 2019, the court granted Warren Resources of California, Inc.’s motion for summary judgment.

Trial is set for April 22, 2020.

LEGAL STANDARD

CCP §426.50 states that, “A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave. . . to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon terms as may be just to the parties, leave . . . to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.”

CCP §428.10 states that, “A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth either or both of the following: . . . (b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.”

CCP § 428.50 states, “(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint.

(b) Any other cross-complaint may be filed at any time before the court has set a date for trial.

(c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action.”

“If the proposed cross-complaint is permissive . . ., leave of court may be granted ‘in the interest of justice’ at any time during the course of the action (CCP §428.50(c)). On the other hand, if the proposed cross-complaint is compulsory . . ., leave must be granted so long as defendant is acting in good faith (CCP §426.50 . . .).” Weil & Brown, Civ. Proc. Before Trial, ¶6:555.

“The declarations of defendant’s counsel should show that it would be ‘in the interest of justice’ to grant leave to file; and some reasonable excuse why the cross-complaint was not filed earlier (mistake, inadvertence, excusable neglect . . . or most commonly, recent discovery of new facts).” Id., ¶6:562.

DISCUSSION

Defendant John Guzman Crane Service, Inc. seeks leave to file a cross-complaint against Warren E&P, Inc., C&S Welding, Inc., Daniel Lucev, and Roes 1-5 GCA Production Services, Inc., U.S. Security Associates, Inc., and Roes 1 through 50 for express indemnity, breach of contract, equitable indemnity, contribution, and declaratory relief.

Defendant contends that it and Warren E&P entered into a Master Services Agreement, which provides for express indemnity. Defendant also asserts that C&S Welding, Inc. and Warren E&P entered into a Master Services Agreement, whereby C&S Welding provided Warren E&P with contractor personnel who were skilled in their trades and trained in safety. On the date of the subject incident, C&S provided Warren E&P with mechanic Daniel Lucev who is believed to be the individual who prematurely opened the pressurized valve.

Defendant contends that defense counsel is the third firm to represent John Guzman Crane Service and that only recently did defense counsel discover that a cross-complaint had not been filed.

In opposition, Warren E&P contends that the proposed cross-complaint is permissive and not compulsory, and that it would be not be in the interest of justice to allow Guzman Crane to file it. Warren E&P argues that it would be prejudiced. Warren E&P further argues that the motion is untimely.

In opposition, C&S Welding and Lucev argues that unwarranted delay is grounds to deny leave to file a cross-complaint.

“As with defendant’s claims against plaintiff, if the cross-defendant has a claim for affirmative relief against the cross-complainant arising out of the ‘same transaction or series of transactions’ set forth in the cross-complaint, that claim must be asserted (by cross-complaint to the cross-complaint), or it is waived.” Cal. Rutter Guide: Civ. Proc. Before Trial, at 6:581. Here, the proposed cross-complaint is seeking affirmative relief against cross-complainants. Thus, it is compulsory. Defendant has shown that it is not acting in bad faith. Defense counsel states in her declaration that Guzman Crane was previously represented by two other firms. Her firm substituted in the action on July 1, 2019. She states “[o]nly recently did it become apparent to current defense counsel that neither of the prior defense counsel” had filed a cross-complaint. Further, she states, “[i]t remains unclear to me why neither of the previous firms” filed such a cross-complaint. She opines that it appears that prior counsel’s failure to file a cross-complaint was an inadvertent error.

The motion is therefore GRANTED.

Moving defendant is ordered to give notice of this ruling.