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This case was last updated from Los Angeles County Superior Courts on 06/09/2019 at 04:46:34 (UTC).

CHASE HOLLOWAY ET AL VS MARUICHI AMERICAN CORPORATION

Case Summary

On 10/31/2017 CHASE HOLLOWAY filed a Personal Injury - Other Personal Injury lawsuit against MARUICHI AMERICAN CORPORATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MARGARET MILLER BERNAL and MARC D. GROSS. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1620

  • Filing Date:

    10/31/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MARGARET MILLER BERNAL

MARC D. GROSS

 

Party Details

Plaintiffs

CHASE HOLLOWAY A MINOR BY AND THROUGH

EXPRESS SERVICES INC.

ANDREA VELEKEI AS THE ADMINISTRATOR OF

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

MARUICHI AMERICAN CORPORATION

DOES 1-100

GENERAL HOIST CORP. ROE 1

KONECRANES INC.

Guardian Ad Litem

VELEKEI ANDREA

Minor

HOLLOWAY CHASE

Attorney/Law Firm Details

Minor and Plaintiff Attorneys

GIRARDI | KEESE

MOHAMADI ASHKAHN TERRENCE

DUNKIN CRAIG LEE

DONNELL BRAD K.

Defendant and Respondent Attorneys

PYLES BRYAN DAVID

CABODI K.J

SMALL HENSTRIDGE CABODI & PYLES LLP

AMEELE KEITH MICHAEL

Cross Plaintiff Attorney

VONGCHANGLOR NICOLE

Cross Defendant Attorney

NIEMEYER TREVIS JOSEPH

 

Court Documents

Civil Case Cover Sheet

10/31/2017: Civil Case Cover Sheet

Unknown

11/13/2017: Unknown

DECLARATION OF BRYAN D. PYLES IN SUPPORT OF MARUICHI AMERICAN CORPORATION'S DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT

4/16/2018: DECLARATION OF BRYAN D. PYLES IN SUPPORT OF MARUICHI AMERICAN CORPORATION'S DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT

NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE AND EXEMPLARY DAMAGES, AND CERTAIN OTHER ALLEGATIONS / PRAYERS FROM FIRST AMENDED COMPLAINT ICCP 435

4/16/2018: NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE AND EXEMPLARY DAMAGES, AND CERTAIN OTHER ALLEGATIONS / PRAYERS FROM FIRST AMENDED COMPLAINT ICCP 435

Unknown

4/16/2018: Unknown

Unknown

5/10/2018: Unknown

MARUICHI AMERICAN CORPORATION'S REPLY TO PLAINTIFFS' OPPOSITION TO DEMURRER TO TUE FIRST AMENDED COMPLAINT

5/17/2018: MARUICHI AMERICAN CORPORATION'S REPLY TO PLAINTIFFS' OPPOSITION TO DEMURRER TO TUE FIRST AMENDED COMPLAINT

Unknown

6/7/2018: Unknown

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MARUICHI AMERICAN CORPORATION'S DEMURRER TO PLAINTIFFS' SECOND AMENDED COMPLAINT

7/13/2018: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MARUICHI AMERICAN CORPORATION'S DEMURRER TO PLAINTIFFS' SECOND AMENDED COMPLAINT

ORDER TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT

8/15/2018: ORDER TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT

Minute Order

8/15/2018: Minute Order

Minute Order

8/15/2018: Minute Order

Case Management Statement

1/14/2019: Case Management Statement

Minute Order

1/29/2019: Minute Order

Unknown

3/4/2019: Unknown

Unknown

3/4/2019: Unknown

Notice

3/11/2019: Notice

Amendment to Cross-Complaint

5/16/2019: Amendment to Cross-Complaint

79 More Documents Available

 

Docket Entries

  • 05/16/2019
  • Amendment to Cross-Complaint (Fictitious/Incorrect Name); Filed by Maruichi American Corporation (Cross-Complainant)

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  • 05/06/2019
  • Notice of Ruling; Filed by Maruichi American Corporation (Defendant)

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  • 04/30/2019
  • at 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Order to Show Cause Re: (regarding answer/responsive pleading to all operative pleadings) - Held

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  • 04/30/2019
  • at 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Status Conference (of cases BC708121 and BC681620 being related/consolidated) - Held

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  • 04/30/2019
  • at 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Trial Setting Conference - Held

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  • 04/30/2019
  • at 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Case Management Conference (trial setting conference) - Held

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  • 04/30/2019
  • Minute Order ((Order to Show Cause Re: regarding answer/responsive pleading ...)); Filed by Clerk

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  • 04/18/2019
  • Case Management Statement; Filed by Maruichi American Corporation (Cross-Complainant)

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  • 03/26/2019
  • Answer to Cross-Complaint; Filed by Maruichi American Corporation (Defendant)

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  • 03/11/2019
  • Notice (of Entry of Ruling and Order); Filed by Maruichi American Corporation (Defendant)

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124 More Docket Entries
  • 11/22/2017
  • Application ; Filed by Plaintiff/Petitioner

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  • 11/22/2017
  • Application-Miscellaneous (FOR CHASE HOLLOWAY GUARDIAN AD LITEM ); Filed by Attorney for Pltf/Petnr

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  • 11/13/2017
  • Receipt (RE JURY FEES $150.00 ); Filed by Attorney for Plaintiff/Petitioner

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  • 11/13/2017
  • CIVIL DEPOSIT

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  • 11/13/2017
  • Receipt; Filed by Chase Holloway (Legacy Party)

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  • 10/31/2017
  • PLAINTIFFS' COMPLAINT FOR DAMAGES

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  • 10/31/2017
  • Complaint

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  • 10/31/2017
  • Civil Case Cover Sheet; Filed by CHASE HOLLOWAY, a minor by and through (Plaintiff)

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  • 10/31/2017
  • Complaint; Filed by ANDREA VELEKEI as the Administrator of (Plaintiff); CHASE HOLLOWAY, a minor by and through (Plaintiff)

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  • 10/31/2017
  • Complaint; Filed by ANDREA VELEKEI as the Administrator of (Plaintiff); CHASE HOLLOWAY, a minor by and through (Plaintiff)

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Tentative Rulings

Case Number: BC681620    Hearing Date: March 02, 2021    Dept: C

HOLLOWAY, et al. v. MARUICHI AMERICAN CORPORATION

CASE NO.: BC681620

HEARING: 3/2/21 @ 10:30 AM

#3

TENTATIVE ORDER

Defendant Maruichi American Corporation’s motion to compel defendant Konecranes, Inc.’s further responses to second sets of special interrogatories is DENIED.

Opposing Party to give NOTICE.

Defendant Maruichi American Corporation (“Mariuchi”) moves to compel Defendant Konecranes, Inc.’s further responses to special interrogatories pursuant to CCP § 2030.300.

CCP § 2030.300 allows a party to file a motion compelling further answers to interrogatories if it finds that the response is inadequate, incomplete, or evasive, or an objection in the response is without merit or too general. The motion shall be accompanied with a meet and confer declaration. (CCP § 2030.300(b).)

The court finds Defendant did not properly meet and confer in good faith.

On 6/24/20, Maruichi’s counsel and Konecranes’ counsel participated in a telephone meet and confer. (Vongchanglor Decl., ¶ 11.) Counsels agreed to resolve all remaining discovery disputes after the hearings on both Maruichi and Konecranes’ motions for summary judgment. (Id.) After the teleconference, Konecranes granted Maruichi multiple extensions to extend any deadline for its motion to compel. (Id. at ¶¶ 12-13.) On 7/8/20, Maruichi requested a deadline of 8/28/20 because it “would like to have the deadline pushed until after the court rules on each motion for summary judgment.” (Id. at ¶ 14.) The following day, on 7/9/20, Maruichi applied ex parte to specially set its motion. Konecranes’s counsel granted the extension to 8/28/20, and asked that the ex parte be taken off calendar. (Id., Ex. L.) In response, Maruichi’s counsel stated for the first time that it needed further responses to oppose Konecranes’s motion for summary judgment. (Id., Ex. M.) Konecranes’s counsel responded that a proper meet and confer is required, and reminded Maruichi’s counsel that the parties agreed to resolve any discovery disputes after the hearings on the motions for summary judgment, and that a further meet and confer on outstanding discovery issues is required. (Id., Ex. N.) Since 6/24/20, Maruichi has not engaged in any further meet and confer efforts to resolve the discovery dispute. (Id., ¶ 23.)

Accordingly, the motion is DENIED for failure to engage in reasonable and good faith meet and confer efforts.

The parties are ORDERED to further meet and confer on the discovery at issue.

The court has reviewed the parties’ separate statements, and to guide the parties in their efforts to informally resolve their discovery issues, the court finds that the interrogatories are not irrelevant or burdensome. However, the interrogatories can be clarified and vague or ambiguous words can be further defined and narrowed.

Case Number: BC681620    Hearing Date: August 25, 2020    Dept: C

HOLLOWAY, et al. v. MARUICHI AMERICAN CORPORATION

CASE NO.: BC681620

HEARING: 8/25/20

JUDGE: OLIVIA ROSALES

[Remote appearances are encouraged and will be given priority.]

#11

TENTATIVE ORDER

Defendant/Cross-Defendant Konecranes, Inc.’s motion for summary judgment is DENIED.

Plaintiffs to give NOTICE.

Evidentiary Objections

Plaintiff’s objections to Nullmeyer declaration are overruled.

Konecranes’ objections to the RJN are sustained. Konecranes’ objections to Aumais declaration are overruled.

Complaint

The Second Amended Complaint, filed on 6/7/18, alleges that Decedent Chad Holloway had gone up on a catwalk to repair an inoperable crane. However, Defendant Maruichi failed to provide safe access so Decedent was forced to access the crane from the rails. As a result of this dangerous condition, Decedent was crushed between the bridge and the steel pillar at the end of the rail track. Plaintiff Chase Holloway (minor) and Plaintiff Andrea Velekei asserts causes of action for:

1. Negligence (v. Maruichi)

2. Wrongful Death (v. Maruichi)

3. Strict Products Liability for Manufacture and Design Defect (v. Konecranes)

4. Strict Products Liability for Failure to Warn (v. Konecranes)

MSJ

Defendant/Cross-Defendant Konecranes, Inc. moves for summary judgment on Plaintiffs’ Complaint and Maruichi’s Cross-Complaint.

A defendant moving for summary judgment/adjudication has met its burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP 437c(p)(2).)

Konecranes contends that the strict products liability claim against it fails because Konecranes was not part of the chain of distribution, and causation fails because the VFD was not a substantial cause of Plaintiff’s injury.

“The doctrine of strict products liability imposes strict liability in tort on all of the participants in the chain of distribution of a defective product.” (Bostick v. Flex Equip. Co. (2007) 147 Cal.App.4th 80, 88.) The chain of distribution includes manufacturers, wholesalers, and retailers. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 560.) Under California strict products liability law, a defendant cannot be liable for products it did not manufacture, design, or supply. (O’Neil v. Crane Co.(2012) 53 Cal.4th 335.)

Courts have repeatedly refused to extend the strict products liability doctrine to those who merely provide services. (Pena v. Sita World Travel, Inc. (1978) 88 Cal.App.3d 642, 644; see e.g. Monte Vista Develop. Corp., 226 Cal.App.3d 1681; see e.g. Endicott v. Nissan Motor Corp. (1977) 73 Cal.App.3d 917, 930 - the Court concluded that “[a]s a mere provider of services Installer is not liable for defects in the product.”)

Konecranes submits the following evidence:

· Decedent Chad Holloway sustained fatal injuries when he was struck by Mill 3 Crane No. 4 while he was exiting the catwalk after supervising two Maruichi American Corporation maintenance workers repairing Mill 2 Crane No. 3 on 11/29/16. (Defense Separate Statement (DSS) 1.)

· Konecranes did not manufacture, design, market, advertise, install, and/or sell Mill 2 Crane No. 3 (“Crane No. 3”) or Mill 3 Crane No. 4 (“Crane No. 4”). (DSS 9.)

· The cranes were installed by General Hoist, a company that is no longer in business. (DSS 10.)

· Konecranes did not manufacture, design, market, advertise, and/or sell the variable frequency drive (“VFD”) installed on Crane No. 3 at the time of the incident. (DSS 11.)

· Konecranes only installed the VFD in February 2015 that was manufactured by Power Electronics. (DSS 12.)

· Maruichi hired Konecranes to perform preventative maintenance routine inspections, and repairs to the subject cranes. (DSS 13-14.)

· Maruichi workers typically attempted to troubleshoot any issues with the cranes first; if they were unable to successfully repair the cranes, then they would contact an outside maintenance company to perform the repairs.. (DSS 15-16.)

· On 11/29/16, Crane No.3 was inoperable due to issues with the VFD. (DSS 19.) The VFD controls and adjusts the speed of the electric motor. (DSS 20.)

· Around 5:30 a.m., Decedent, along with two Maruichi maintenance specialists, walked onto the catwalk to repair Crane No. 3. (DSS 21.)

· Crane No. 3 and Crane No. 4 are parallel to each other. (DSS 22.)

· While the two maintenance workers were attempting to repair Crane No. 3, Mr. Holloway exited the area of Crane No. 3. (DSS 23.)

· Crane operator, Martin Jaimes (operating Crane No. 4) did not see Decedent on the rail and his crane collided with Decedent causing him to sustain fatal injuries. (DSS 25.)

· No one informed Jaimes that Crane No. 3 was having issues, that maintenance workers were on the catwalk repairing the adjacent crane, and that he should lock out tag out his crane while the repairs were being made. (DSS 26.)

· Maruichi does not have any policies or procedures to perform lock out tagouts on parallel cranes that are being repaired. (DSS 27.)

· Maruichi also does not have any policies or procedures requiring a crane operator to refrain from operating his crane while repairs are being performed on parallel cranes. (DSS 28.)

In opposition, Plaintiffs present the following evidence:

· Konecranes employed at least two "salesperson[s]" and their job included “selling” both “parts” and “new equipment” to “customers.” (Plaintiff’s Separate Statement (“PSS”) 34, 35.)

· On 2/6/15, Maruichi’s purchase order to Konecranes was to not just install but also “order” the VFD for Crane 3. (PSS 71.)

· The invoice on 2/13/15 in response to Maruichi’s purchase order was for a “fixed price” by Konecranes to “actually supply” and then install the VFD that was on Crane 3. (DSS 11.)

· Konecranes purchased the VFD from Power Electronics. (PSS 68, 70.)

· Konecranes did “actually supply” and sold to Maruichi the VFD. (DSS 12, 30.)

· Konecranes dba Crane Pro Parts, Inc., is in the business of selling, supplying and distributing replacement parts for cranes. (Aumais Decl, Exs. G-H.)

· The VFD was defective prior to the incident and the entire VFD was replaced after Decedent’s death. (PSS 41-45, 67.)

· Konecranes also provided crane operator training to Maruichi crane operators. (PSS 49-56.)

· VFD problems caused Crane 3 to be inoperable, making the access ladder unusable, requiring Decedent to use an alternative route for existing on the rail. (Disputed DSS 19, 21, 25; PSS 61.)

· Crane 4 did not “lock out tag out” consistent with Konecranes’ crane operator safety training. (Disputed DSS 26, PSS 56.)

Strict liability applies to manufacturers, “retailers and others in the chain of distribution.” (Bostick v. Flex Equip. Co. (2007) 147 Cal.App.4th 80, 101.) The seller must be “engaged in the business of selling.” (Monte Vista Develop. Corp. (1991) 226 Cal.App.3d 1681, 1687.)

The court finds that triable issues exist regarding whether Konecranes is a seller engaged in the business of selling crane parts, and whether the VFD that Konecranes sold and installed was defective.

The court further finds that triable issues exist regarding whether Konecranes caused the accident and/or whether the crane operator’s action was a superseding cause. Konecranes has not demonstrated that the superseding cause was “so highly extraordinary as to be unforeseeable.” (Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 18.) Further, as with causation, foreseeability is generally a matter for the trier of fact. (Id. at 19.)

Here, triable issues exist regarding whether the defective VFD caused Decedent to exit the crane using an alternative route on the rail, placing him in the exact location where Crane 4 collided with Decedent.

As such, triable issues also exist regarding whether Konecranes is liable on the cross-complaint for equitable indemnity, contribution, comparative fault and declaratory relief. Triable issues exist regarding Konecranes’ crane operator safety training.

Motion is DENIED.

Case Number: BC681620    Hearing Date: August 18, 2020    Dept: C

CHASE HOLLOWAY VS MARUICHI AMERICAN CORP

CASE NO.: BC681620

HEARING: 8/18/20

JUDGE: OLIVIA ROSALES

#9

TENTATIVE ORDER

Defendant KONEKRANE INC’S Motion for Summary Judgment or alternatively Summary Adjudication is CONTINUED to Tuesday, August 25, 2020 at 1:30 p.m. in Dept. SE-C.

Moving Party to give NOTICE.

Case Number: BC681620    Hearing Date: August 11, 2020    Dept: C

HOLLOWAY, et al. v. MARUICHI AMERICAN CORPORATION

CASE NO.:  BC681620

HEARING: 8/11/20

JUDGE: OLIVIA ROSALES

[Remote appearances are encouraged and will be given priority.]

#8

TENTATIVE ORDER

Defendant Maruichi American Corporation’s motion for summary judgment against the second amended complaint of plaintiffs is DENIED.

Plaintiffs to give NOTICE.

Objections

Plaintiffs’ objections to the RJN are sustained.  Plaintiffs’ Objections 1-24 to Maruichi’s Evidence are overruled.  Plaintiff’s objections to new evidence submitted in reply are overruled as to Ex. 20 – court finds the evidence supplements evidence submitted in the moving papers; and sustained as to Ex. 21. 

Defendant’s Objections at 3:14 – 5:20 are overruled.

Complaint

The Second Amended Complaint, filed on 6/7/18, alleges that Decedent Chad Holloway had gone up on a catwalk to repair an inoperable crane.  However, Defendant Maruichi failed to provide safe access so Decedent was forced to access the crane from the rails.  As a result of this dangerous condition, Decedent was crushed between the bridge and the steel pillar at the end of the rail track.  Plaintiff Chase Holloway (minor) and Plaintiff Andrea Velekei asserts causes of action for:

1. Negligence (v. Maruichi)

2. Wrongful Death (v. Maruichi)

3. Strict Products Liability for Manufacture and Design Defect (v. Konecranes)

4. Strict Products Liability for Failure to Warn (v. Konecranes)

MSJ

Defendant Maruichi moves for summary judgment on the ground that the action is barred by the exclusivity provisions of worker’s compensation.

A defendant moving for summary judgment/adjudication has met its burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP 437c(p)(2).)

California courts have consistently held that a worker’s claim against an employer is barred by the exclusive remedy doctrine, no matter how this claim is pled.  (See Ruiz v. Cabrera (2002) 98 Cal. App.4th 1198; Ashdown v. Ameron Internat. Corp. (2000) 83 Cal.App.4th 868 [wrongful death action against employer barred]; Miller v. King (1993) 19 Cal.App.4th 1732.)

“The possibility of dual employment is well recognized in the case law. "Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employers -- his original or 'general' employer and a second, the 'special' employer." … If general and special employment exist, "the injured workman can look to both employers for [workers'] compensation benefits. If workmen's compensation is available, it constitutes, with an exception not pertinent here, the workman's sole remedy against the employer. (Lab. Code, § 3601.)  Thus where there is dual employment the workman is barred from maintaining an action for damages against either employer."…

In determining whether a special employment relationship exists, the primary consideration is whether the special employer has "'[t]he right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not ....'" However, "[w]hether the right to control existed or was exercised is generally a question of fact to be resolved from the reasonable inferences to be drawn from the circumstances shown. And 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."

Evidence that the alleged special employer has the power to discharge a worker "is strong evidence of the existence of a special employment relationship. The payment of wages is not, however, determinative." Other factors to be taken into consideration are "the nature of the services, whether skilled or unskilled, whether the work is part of the employer's regular business, the duration of the employment period, ... and who supplies the work tools."  Evidence that (1) the employee provides unskilled labor, (2) the work he performs is part of the employer's regular business, (3) the employment period is lengthy, and (4) the employer provides the tools and equipment used, tends to indicate the existence of special employment. Conversely, evidence to the contrary negates existence of a special employment relationship. In addition, consideration must be given to whether the worker consented to the employment relationship, either expressly or impliedly, and to whether the parties believed they were creating the employer-employee relationship.” (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 177-179.)  Mere instruction on the results to be achieved will not suffice. (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 496.)

Defendant contends that Chase Holloway was its “special employee,” and as such, Plaintiffs’ claims are barred by the exclusive remedy provisions of the Workers’ Compensation Act per Lab. Code § 3602.  Defendant submits the following evidence:

· Holloway told Andrea Velekei, his partner and the mother of their son, Chase, that he had spoken with George Georgescu at Maruichi because Holloway wanted to become employed at Maruichi.  (Defense Separate Statement (“DSS”) 13.)

· Georgescu administered a test to Holloway to confirm Holloway’s qualifications for working at Maruichi’s Santa Fe Springs plant.  (DSS 15.)

· Holloway told Andrea Velekei he applied for a job at Maruichi.  (DSS 16.)

· Georgescu informed Maria Anderson of his desire to bring Holloway into Maruichi as an employee (DSS 17, 19) and told her that he had given a test to Chad Holloway.  (DSS 18.)

· Anderson informed Georgescu the hiring of Holloway had to be done through an agency per standard practice for all employees at Maruichi. (DSS 20.)

· Holloway was directed to apply for employment at Maruichi through Express Services, Inc. (“Express”) (DSS 21.)

· Express is a staffing provider agency.  (DSS 27, 48.) Express defines a “Staffing Agency” as an entity which provides temporary placement for employees with clients who need temporary services.  (DSS 47.)  

· Holloway was told to advise Express he was referred to them by Maria Anderson at Maruichi.  (DSS 28.)

· Express would provide a pool of candidates for whatever staffing needs Maruichi required.  (DSS 44.)

· Express entered into a Staffing Agreement (“Agreement”) with Maruichi dated February 4, 2016.  (DSS 46.) The Agreement sets forth the terms of the agreement between Express and Maruichi.  (DSS 51.) The Agreement states: 1) “We appreciate your business and look forward to the opportunity to support you with outstanding professional employment services in consideration of your agreement to the following terms and conditions” (DSS 52), 2) “We recruit and assign associates to you to perform the job duties you specify” (DSS 53), 3) “All services performed by our associates shall be under your direction, supervision and control...” (DSS 54), and 4) “You supervise, direct, and control the work performed by Express associates, and assume responsibility for all operational results, including losses or damage to property or data in the care, custody, or control of an Express associate.”  (DSS 56.)  Express agreed to hire associates and then assign them to Maruichi to perform jobs specified, directed, controlled, and supervised by Maruichi.  (DSS 58.)

· Express hired Chad Holloway as an Express Associate.  (DSS 59.) Express then assigned Holloway to Maruichi based on job duties specified by Maruichi.  (DSS 60.) 

· Express’s services for Maruichi included preparation of all employment documents and paperwork, background checks, references, and verifications, and review of prior work experience or education.  (DSS 30.) 

· Holloway told Andrea Velekei he got the job at Maruichi (DSS 31) as a maintenance supervisor.  (DSS 32.)

· Maruichi has only one shift for manufacturing at its plant (DSS 33) with the work schedule of all temporary employees set by Maruichi. (DSS 34.) If a work schedule required overtime by a temporary employee, the Maruichi Maintenance Manager (Georgescu) sets the schedule for overtime.  (DSS 35.)  Maruichi decides which employees work on particular days.  (DSS 36.)

· Holloway was issued a time card by Maruichi, and using that time card Holloway clocked in to work every morning and clocked out at the end of each work day, having a set work week of Monday through Saturday.  (DSS 37.)  Holloway had a specific start time for working at Maruichi, leaving his residence each morning at 4:30 a.m.  (DSS 38.)  

· Holloway told Andrea Velekei he was being trained by George at Maruichi. (DSS 39.) Holloway took orders from his superior at Maruichi, maintenance manager, George Georgescu.  (DSS 40-42.)

· Express and Maruichi both considered Holloway to be under the direction, control, and supervision of Special Employer Maruichi on the date of the incident giving rise to this lawsuit.  (DSS 61, 66.)  

· Express and Maruichi both considered Express to be the General Employer (DSS 62) and Maruichi to be the Special Employer (DSS 63). Express and Maruichi both believe they were the Dual Employers of Chad Holloway at the time of the incident giving rise to this lawsuit.  (DSS 64.)  Chad Holloway was placed at both Express and Maruichi as a Temporary Employee.  (DSS 65, 66, 81.) 

· Express and Maruichi intended Maruichi to control all aspects of Chad Holloway’s work at Maruichi.  (DSS 67.) 

· Holloway was paid for work at Maruichi based upon timecards submitted by Holloway to Maruichi, the timecards then approved by Maruichi and submitted to Express.  (DSS 68.)  Maruichi would then be billed by Express based on the timecards submitted to Express by Maruichi.  (DSS 69.) Maruichi would then pay Express upon receipt of a bill from Express. (DSS 70.)  

· At the time of Holloway’s injury giving rise to this lawsuit, Holloway was working at Maruichi as Maruichi’s special employee while under the control, direction, and supervision of Maruichi. (DSS 76.)

· Had the incident not occurred, Maruichi would have hired Chad Holloway as a permanent employee.  (DSS 77-78, 85.)

· Maruichi provided to Holloway all equipment, materials, and tools he would need to perform his job at Maruichi.  (DSS 79.)

· Maruichi provided to Mr. Holloway all safety equipment he required to work at Maruichi, including safety hats, gloves, and glasses/goggles.  (DSS 80.)

· Mr. Holloway had been working at Maruichi for less than the 90-day probationary period (DSS 83) and was still a temporary employee of Maruichi (DSS 84). 

The court finds Defendant has met its burden of producing evidence demonstrating that Holloway was a special employee, who was working under the control, direction, and supervision of Maruichi, and whose tools and equipment were provided by Maruichi.

The burden now shifts to Plaintiff to produce evidence that would create a triable issue of material fact.  Plaintiff contends Holloway was an independent contractor.  Plaintiff presents the following evidence:

· The Agreement did not provide that Maruichi could fire, terminate, or discharge an Express associate.  (Plaintiff’s Separate Statement (“PSS”) 102.)  If someone is not working out, Maruichi sends them back to the temporary placement agency.  (PSS 123.)

· Holloway's responsibility was to oversee repairs by Maruichi maintenance technicians.  (PSS 103, 107.)

· Holloway was tested to confirm his electrician qualifications.  (Disputed DSS 15, PSS 115.)

· When Crane 3 broke  down on the day of the incident, Holloway was the supervisor who went up on the catwalk to figure out  what was going on with Crane 3. (PSS 105, 109.) 

· Georgescu did not know what was happening at the time, and he did not know who went up on the catwalk. (PSS 106. 109.)

· Maruichi gives employee handbooks to its employees (PSS 112), but Maruichi never gave Holloway an employee handbook (PSS 117.)

· Maruichi never directly compensated Mr. Holloway and never withheld taxes.  (PSS 120.) 

· Holloway was paid by Express as an Express associate on assignment at Maruichi.  (Disputed DSS 68.)  

· Maruichi paid Express, not Holloway. (PSS 111.)

· Holloway had to provide his own steel-toed boots.  (Disputed DSS 79, 80; PSS 121.)

· Holloway never gained employee status at Maruichi. (PSS 116.)

· Holloway had been assigned to Maruichi for approximately 40 days. (Disputed DSS 83.)

The court finds that Plaintiff has submitted sufficient evidence, creating a triable issue as to whether Plaintiff was a “special/dual employee” of Maruichi as opposed to solely being an “employee” of Express.

Plaintiffs have submitted evidence that Holloway was on Express’s payroll (Disputed DSS 72), owns his own steel-toed safety boots (PSS 121), performs a skilled job (PSS 113, 115 – electrician skills) with supervisory authority (PSS 103), and there is a distinction between the right to “hire and discharge” an employee versus the right to “replace” a worker.  Here, Plaintiffs have presented evidence that Maruichi had the right to “return” Holloway to Express, and Express would provide a replacement.  (PSS 96.)  Finally, the existence of a special relationship is negated if the worker was assigned “for only a brief period of time.”  (Marsh v. Tilley Steel Co. (1980) 26 Cal.App.3d 486, 492.)  Here, Holloway had been assigned to Maruichi for approximately 40 days.  (Disputed DSS 83.)

Accordingly, the court finds that triable issues exist regarding whether Holloway had a special employee relationship with Maruichi.  Summary judgment is DENIED.

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