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This case was last updated from Los Angeles County Superior Courts on 04/19/2021 at 07:01:41 (UTC).

MARCH LEVIN VS CARISSA TIMM ET AL

Case Summary

On 07/11/2017 MARCH LEVIN filed a Personal Injury - Motor Vehicle lawsuit against CARISSA TIMM. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are STEPHEN I. GOORVITCH and MICHAEL E. WHITAKER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8005

  • Filing Date:

    07/11/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

STEPHEN I. GOORVITCH

MICHAEL E. WHITAKER

 

Party Details

Plaintiff and Petitioner

LEVIN MARC

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

DOES 1 THROUGH 25

TIMM CARISSA

WORLD CLOWN ASSOCIATION

THANKKER JAYINI

BUBBLEMANIA & COMPANY

REEVES JAMES ALAN

FERRI JOSEPH

THAKKER JAYINI

FERRI [DOE 3] JOSEPH

BUBBLEMANIA & COMPANY A CALIFORNIA LIMITED LIABILITY COMPANY

WORLD CLOWN ASSOCIATION A DELAWARE CORPORATION

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

WEINSTEIN ZEV Y.

SCHWIMER MICHAEL EVAN

WEINSTEIN ZEV YONI

Defendant, Respondent and Cross Defendant Attorneys

HARTSUYKER STRATMAN & WILLIAMS-ABREGO

VEATCH CARLSON LLP

ORLAND JAMES

KANG CHRISTINA

ZUREK RONALD

LEVENSON BRUCE EDWARD

MCLAIN MICHAEL ANTHONY

CASEY DEMIAN M

COLLINSON LISA D.

MACKEY ROBERT THOMAS

Defendant and Respondent Attorney

HARTSUYKER STRATMAN & WILLIAMS-ABREGO

Defendant, Cross Plaintiff and Cross Defendant Attorneys

KANG CHRISTINA

ZUREK RONALD

MCLAIN MICHAEL ANTHONY

CASEY DEMIAN M

MORRIS JEFFREY M

LEEPER JENNIFER STRANGE

 

Court Documents

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO COMPEL DISCOVERY (NOT "FURTHER DISCOVERY")) OF 04/09/2021

4/9/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION TO COMPEL DISCOVERY (NOT "FURTHER DISCOVERY")) OF 04/09/2021

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

4/2/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Response - RESPONSE TO PLAINTIFFS ADDITIONAL MATERIAL FACTS AND SUPPORTING EVIDENCE

3/26/2021: Response - RESPONSE TO PLAINTIFFS ADDITIONAL MATERIAL FACTS AND SUPPORTING EVIDENCE

Opposition - OPPOSITION TO DEFENDANT BUBBLEMANIA'S MOTION FOR SUMMARY JUDGMENT

3/19/2021: Opposition - OPPOSITION TO DEFENDANT BUBBLEMANIA'S MOTION FOR SUMMARY JUDGMENT

Informal Discovery Conference Form for Personal Injury Courts

3/11/2021: Informal Discovery Conference Form for Personal Injury Courts

Ex Parte Application - EX PARTE APPLICATION DEFENDANT/CROSSCOMPLAINANT/ CROSS-DEFENDANT CARISSA TIMMS EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR HEARING ON HER MOTION TO COMPEL THE DEPOSIT

2/3/2021: Ex Parte Application - EX PARTE APPLICATION DEFENDANT/CROSSCOMPLAINANT/ CROSS-DEFENDANT CARISSA TIMMS EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR HEARING ON HER MOTION TO COMPEL THE DEPOSIT

Proof of Personal Service

1/19/2021: Proof of Personal Service

Notice - NOTICE DEFENDANT JOSEPH FERRIS COMPENDIUM OF DOCUMENTARY EVIDENCE IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT

1/15/2021: Notice - NOTICE DEFENDANT JOSEPH FERRIS COMPENDIUM OF DOCUMENTARY EVIDENCE IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT

Cross-Complaint

11/20/2020: Cross-Complaint

Answer

5/28/2020: Answer

Association of Attorney

6/3/2020: Association of Attorney

Notice of Posting of Jury Fees

4/3/2020: Notice of Posting of Jury Fees

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES

9/26/2019: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES

Answer - ANSWER TO CROSS-COMPLAINT

8/30/2019: Answer - ANSWER TO CROSS-COMPLAINT

Summons - SUMMONS CROSS-COMPLAINT

8/30/2019: Summons - SUMMONS CROSS-COMPLAINT

Proof of Service by Substituted Service

7/30/2019: Proof of Service by Substituted Service

Amended Complaint - AMENDED COMPLAINT 1ST

6/28/2019: Amended Complaint - AMENDED COMPLAINT 1ST

Civil Case Cover Sheet -

7/11/2017: Civil Case Cover Sheet -

90 More Documents Available

 

Docket Entries

  • 11/10/2021
  • Hearing11/10/2021 at 08:30 AM in Department 32 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 10/27/2021
  • Hearing10/27/2021 at 10:00 AM in Department 32 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 06/23/2021
  • Hearing06/23/2021 at 14:30 PM in Department 32 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 04/22/2021
  • Hearing04/22/2021 at 08:30 AM in Department 32 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Consolidate

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  • 04/15/2021
  • DocketReply (TO OPPOSITION TO MOTION TO CONSOLIDATE); Filed by Jayini Thakker (Defendant)

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  • 04/09/2021
  • Docketat 08:30 AM in Department 32, Michael E. Whitaker, Presiding; Hearing on Motion to Transfer - Not Held - Taken Off Calendar by Party

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  • 04/09/2021
  • Docketat 08:30 AM in Department 32, Michael E. Whitaker, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held - Motion Granted

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  • 04/09/2021
  • DocketOpposition (to Defendant Thakker's Motion to Consolidate); Filed by Marc Levin (Plaintiff)

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  • 04/09/2021
  • DocketCertificate of Mailing for ((Hearing on Motion to Compel Discovery (not "Further Discovery")) of 04/09/2021); Filed by Clerk

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  • 04/09/2021
  • DocketMinute Order ( (Hearing on Motion to Compel Discovery (not "Further Discovery"))); Filed by Clerk

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117 More Docket Entries
  • 11/27/2017
  • DocketAnswer; Filed by Carissa Timm (Defendant)

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  • 11/27/2017
  • DocketDemand for Jury Trial; Filed by Carissa Timm (Defendant)

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  • 11/27/2017
  • DocketDEMAND FOR JURY TRIAL

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  • 11/27/2017
  • DocketANSWER TO COMPLAINT

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  • 11/02/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 11/02/2017
  • DocketProof-Service/Summons; Filed by Marc Levin (Plaintiff)

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  • 07/11/2017
  • DocketSummons; Filed by Marc Levin (Plaintiff)

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  • 07/11/2017
  • DocketCivil Case Cover Sheet

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  • 07/11/2017
  • DocketComplaint; Filed by Marc Levin (Plaintiff)

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  • 07/11/2017
  • DocketComplaint

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Tentative Rulings

Case Number: BC668005    Hearing Date: April 22, 2021    Dept: 32

PLEASE NOTE: Parties who intend to submit on this tentative must send an email to the court at sscdept32@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear in-person or remotely.

TENTATIVE RULING

DEPARTMENT

32

HEARING DATE

April 22, 2021

CASE NUMBER

BC668005

MOTION

Motion to Consolidate

MOVING PARTY:

Defendant Jayini Thakker

OPPOSING PARTY:

Plaintiff Marc Levin

MOTION

Defendant Jayini Thakker (“Defendant”) moves to consolidate this case with Greenspan v. Thakker (Super. Ct. L.A. County, 2019, No. 19STCV19025) for all purposes. Plaintiff opposes the motion.

ANALYSIS

Per Local Rule 3.3, subdivision (g), “Cases may not be consolidated unless they are in the same department. A motion to consolidate two or more cases may be noticed and heard after the cases, initially filed in different departments, have been related into a single department, or if the cases were already assigned to that department.” (Super. Ct. L.A. County, Local Rules, rule 3.3(g)(1).) Once the Court relates the cases, the Court may consolidate the actions and order a joint trial on matters that “involv[e] a common question of law or fact.”  (Code Civ. Proc., § 1048, subd. (a).)

Contrary to Defendant’s representation in the moving papers, the Court has not related these cases. In fact, the Court deemed Greenspan v. Thakker (Super. Ct. L.A. County, 2019, No. 19STCV19025) not related to this case in its order of December 23, 2019. Consequently, Greenspan v. Thakker (Super. Ct. L.A. County, 2019, No. 19STCV19025) is not pending in this department, but rather in Department 29.

Accordingly, the Court denies the motion to consolidate. Defendant is to give notice of this order, and file a proof of service of such.

Case Number: BC668005    Hearing Date: April 9, 2021    Dept: 32

PLEASE NOTE: Parties who intend to submit on this tentative must send an email to the court at sscdept32@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear in-person or remotely.

TENTATIVE RULING

DEPARTMENT

32

HEARING DATE

April 9, 2021

CASE NUMBER

BC668005

MOTION

Motion to Compel Deposition

MOVING PARTY

Defendant Carissa Timm

OPPOSING PARTY

Deponent Harriet Greenspan

MOTION

Defendant Carissa Timm (“Defendant”) moves to compel Deponent Harriet Greenspan (“Deponent”) to appear for deposition. Deponent opposes the motion.

ANALYSIS

Code of Civil Procedure section 1987.1 provides, “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by [a party or a witness] . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1.)

Here, Deponent is the romantic partner of Plaintiff Marc Levin (“Plaintiff”). Plaintiff’s counsel agreed to accept service of subpoena and this motion on behalf of Deponent. Deponent objects to appearing for deposition in this matter on the basis that she has already appeared for deposition.

A person is subject to deposition once by “any . . . party who has been served with a deposition notice . . . .” (Code Civ. Proc., § 2025.610, subd. (a).) Here, Deponent appeared for deposition in Greenspan v. Thakker (Super. Ct. L.A. County, 2019, No. 19STCV19025). However, Defendant is not a party to that action. As such, Defendant is free to depose Deponent without limitations, regardless of whether Deponent testified in Greenspan v. Thakker (Super. Ct. L.A. County, 2019, No. 19STCV19025).

In opposition, Deponent argues that the Court cannot compel Deponent to appear for deposition because Defendant took Deponent’s deposition off calendar. Deponent had indicated she would not voluntarily appear for deposition. (See Declaration of Amanda D. McGee, Exhibits M, N.) Defendant was not required to take a certificate of non-appearance prior to compelling Deponent’s appearance at deposition. (See Civ. Code, § 3532.)

Deponent also notes that she agreed to appear for deposition after Defendant filed this motion. However, Deponent “reserve[ed] objections to be made if or when appropriate based on the questioning.” (Declaration of Michael Schwimer, Exhibit A.) While Deponent certainly has the right to object to any deposition questions, the Court notes that it is improper to refuse to respond to deposition questions on any basis except for privilege. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013.)

The Court concludes that Deponent’s refusal to appear for deposition without conditions and Deponent’s opposition to the motion, are without substantial justification and not in good faith. (Code Civ. Proc., § 1987.2, subd. (a).) Thus, the Court imposes monetary sanctions against Deponent’s counsel, Michael Schwimer, in the amount of $760, which represents four hours of attorney time to prepare this motion and attend the hearing at $175 per hour, plus the filing fee.

CONCLUSION AND ORDER

Accordingly, the Court grants Defendant’s motion to compel Deponent to appear for deposition, and orders Deponent to appear for deposition within 30 days of notice of this order, unless Defendant stipulates otherwise. In addition, the Court orders Deponent’s counsel, Michael Schwimer, to pay monetary sanctions in the amount of $760 to Defendant, by and through counsel, within 30 days of notice of this order.

Defendant is ordered to provide notice of this order and file a proof of service of such.

Case Number: BC668005    Hearing Date: April 6, 2021    Dept: 32

PLEASE NOTE: Parties who intend to submit on this tentative must send an email to the court at sscdept32@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear in-person or remotely.

TENTATIVE RULING

DEPARTMENT

32

HEARING DATE

April 6, 2021

CASE NUMBER

BC668005

MOTION

Motion for Summary Judgment, or in the alternative Motion for Summary Adjudication

MOVING PARTIES:

Defendant Joseph Ferri

OPPOSING PARTY:

Plaintiff Mark Levin

MOVING PAPERS:

  1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities
  2. Declaration of Joseph Ferri in Support of Motion for Summary Judgment
  3. Declaration of Demian Casey in Support of Motion for Summary Judgment
  4. Compendium of Documentary Evidence in Support of Motion for Summary Judgment
  5. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment

OPPOSITION PAPERS:

 

  1. Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities
  2. Plaintiff’s Separate Statement in Opposition to Motion for Summary Judgment
  3. Compendium of Exhibits in Support of Opposition to Motion for Summary Judgment
  4. Plaintiff’s Objections to Defendant Joseph Ferri’s Evidence

REPLY PAPERS:

  1. Reply of Defendant to Plaintiff’s Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities
  2. Defendant’s Reponses to Plaintiff’s Additional Material Facts

BACKGROUND

Plaintiff Marc Levin (“Plaintiff”) filed this action based on injuries he sustained in a motor vehicle collision. Before the accident, Defendant Carissa Timm (“Timm”) had performed a bubble show for children. The clients for which Timm performed the bubble show hired Timm through Defendant Bubblemania and Company LA LLC (“Bubblemania”). Defendant Joseph Ferri (“Defendant”) is the owner and managing member of Bubblemania. Defendant moves for summary judgment on Plaintiff’s complaint, or, in the alternative, for summary adjudication of the causes of action for negligence and negligence per se.

ANALYSIS

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.]  There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

Defendant argues he is not liable in his individual capacity. Defendant advances his own declaration. In it, Defendant states that Bubblemania hired Timm to perform bubble shows as an independent contractor. (Declaration of Joseph Ferri, ¶ 3; Compendium of Documentary Evidence in Support of Motion for Summary Judgment, Exhibit C.)

Defendant also advances Timm’s deposition testimony. At deposition, Timm testified that she worked for Bubblemania as an independent contractor. (Compendium of Documentary Evidence in Support of Motion for Summary Judgment, Exhibit B, p. 10.) Timm testified that she was driving home from a bubble show at the time of the accident. (Compendium of Documentary Evidence in Support of Motion for Summary Judgment, Exhibit B, p. 15.)

Defendant’s evidence meets his burden to show that he is not liable for Timm’s alleged negligence in the underlying motor vehicle collision because Timm was an independent contractor for Bubblemania, and was not working for Defendant. Accordingly, Defendant has shifted the burden to Plaintiff to raise triable issues of material fact as to whether Defendant is liable for Timm’s negligence.

In opposition, Plaintiff argues that Defendant may be liable as the alter ego of Bubblemania, and requests a continuance. If the party opposing a summary judgment submits declarations that show that evidence “may exist but cannot, for reasons stated, then be presented, the court shall deny the motion,” or continue it for a reasonable period, or “make any other order as may be just.”  (Code Civ. Proc., § 437c, subd. (h).) The opposing party's declarations must include: facts to support the argument that controverting evidence may exist and why the information sought is essential to opposing the motion; the specific reasons why the party cannot present the evidence before the current deadline to file opposition papers; an estimate of the time necessary to obtain such evidence; and the specific procedures the opposing party intends to use to seek the evidence.  (Code Civ. Proc. § 437c, subd. (h).) The grant of a continuance is “‘virtually mandated’” if the opposing party makes the required showing. (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34.)

Plaintiff advances the declaration of his counsel, Mitch Rosensweig (“Counsel”). Counsel states that Plaintiff needs to take the deposition of Defendant to investigate whether Defendant is the alter ego of Bubblemania. Counsel states that Plaintiff was unable to depose Defendant prior to filing the opposition because of “other pressing discovery issues . . . .” (Declaration of Mitch Rosensweig.) Counsel’s declaration is conclusory and unspecific. Nonetheless, the relevance of Defendant’s deposition to a determination of whether Defendant is the alter ego of Bubblemania is clear.

As such, the Court continues the matter to June 23, 2021 at 2:30 PM. Plaintiff may file a supplemental opposition on or before June 4, 2021 and Defendant may file a supplemental reply on or before June 14, 2021. Plaintiff’s supplemental opposition is to be limited to the issue of whether Defendant is the alter ego of Bubblemania, and thus, the supplemental evidence, if any, advanced by Plaintiff is to be limited to the issue of whether Defendant is the alter ego of Bubblemania.

Defendant is ordered to provide notice of this order and file a proof of service of such.

Case Number: BC668005    Hearing Date: April 2, 2021    Dept: 32

PLEASE NOTE: Parties who intend to submit on this tentative must send an email to the court at sscdept32@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear in-person or remotely.

TENTATIVE RULING

DEPARTMENT

32

HEARING DATE

April 2, 2021

CASE NUMBER

BC668005

MOTION

Motion for Summary Judgment, or in the alternative Motion for Summary Adjudication

MOVING PARTIES:

Defendant Bubblemania and Company LA LLC

OPPOSING PARTY:

Plaintiff Mark Levin

MOVING PAPERS:

  1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities
  2. Declaration of Joseph Ferri in Support of Motion for Summary Judgment
  3. Declaration of Demian Casey in Support of Motion for Summary Judgment
  4. Compendium of Documentary Evidence in Support of Motion for Summary Judgment
  5. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment

OPPOSITION PAPERS:

  1. Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities
  2. Plaintiff’s Separate Statement in Opposition to Motion for Summary Judgment
  3. Compendium of Exhibits in Support of Opposition to Motion for Summary Judgment

REPLY PAPERS:

  1. Defendant’s Reply to Plaintiff’s Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities
  2. Defendant’s Responses to Plaintiff’s Additional Material Facts

BACKGROUND

Plaintiff Marc Levin (“Plaintiff”) filed this action based on injuries he sustained in a motor vehicle collision. Before the accident, Defendant Carissa Timm (“Timm”) had performed a bubble show for children. The clients for which Timm performed the bubble show hired Timm through Defendant Bubblemania and Company LA LLC (“Defendant”). Defendant moves for summary judgment on Plaintiff’s complaint, or, in the alternative, for summary adjudication on the causes of action for negligence and negligence per se.

ANALYSIS

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.]  There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

1. INDEPENDENT CONTRACTOR OR EMPLOYEE –THE APPLICABLE TEST

Plaintiff argues that in determining whether Timm is Defendant’s employee the Court should apply the test (ABC Test) set forth in Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903 (hereafter Dynamex). On the other hand, Defendant contends that the test (Control of Details Test) set forth in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (hereafter Borello) should be applied in determining whether Timm is an independent contractor or employee.

In Dynamex, the California Supreme Court held “unless the hiring entity establishes (A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact, (B) that the worker performs work that is outside the usual course of the hiring entity's business, and (C) that the worker is customarily engaged in an independently established trade, occupation, or business, the worker should be considered an employee and the hiring business an employer under the suffer or permit to work standard in wage orders. The hiring entity's failure to prove any one of these three prerequisites will be sufficient in itself to establish that the worker is an included employee, rather than an excluded independent contractor, for purposes of the wage order.”  (Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, 964.)  

The California Supreme Court further “decide[d] what standard applies, under California law, in determining whether workers should be classified as employees or as independent contractors for purposes of California wage orders, which impose obligations relating to the minimum wages, maximum hours, and a limited number of very basic working conditions (such as minimally required meal and rest breaks) of California employees.”  (Dynamex, supra, 4 Cal.5th at pp. 913-914, emphasis in original.)  Here, Plaintiff has not sued under a wage order, but rather for personal injuries.[1]

 

The Dynamex court discussed the decision in Borello “at length.”  (Dynamex, supra, 4 Cal.5th at pp. 929-935.)  The California Supreme Court stated that the test set forth in Borello “is widely utilized in other contexts for distinguishing between employees and independent contractors . . . , and that the court’s decision in Dynamex rests on the distinct and particularly expansive definition of employment in a wage order.”  (Dynamex, supra, 4 Cal.5th at p. 948 [cleaned-up].)  Moreover, in Garcia v. Border Transportation Group, LLC., the Court of Appeal held that “In the absence of an argument that the statutory purposes underlying those claims compel application of a different standard, we conclude Borello furnishes the proper standard as to Garcia’s non-wage-order claims.” (Garcia v. Border Transportation Group, LLC (2018) 28 Cal.App.5th 558, 571; see also Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 303 [applying the Borello standard to determine worker classification for purposes of vicarious liability arising from a motor vehicle accident].)

In short, the Dynamex court did not specifically overrule Borello, and accordingly, this Court finds that the Borello Control of Details Test for determining whether an employment relationship exists between Defendant and Timm is controlling here.

The distinction between independent contractors and employees arose at common law to limit one's vicarious liability for the misconduct of a person rendering service to him. The principal's supervisory power was crucial in that context because the extent to which the employer had a right to control the details of the service activities was highly relevant to the question whether the employer ought to be legally liable for them. Thus, the “control of details” test became the principal measure of the servant's status for common law purposes.

Much 20th-century legislation for the protection of “employees” has adopted the “independent contractor” distinction as an express or implied limitation on coverage. The Act plainly states the exclusion of “independent contractors” and inserts the common law “control-of-work” test in the statutory definition. The cases extend these principles to other “employee” legislation as well. Following common law tradition, California decisions applying such statutes uniformly declare that the principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.

However, the courts have long recognized that the “control” test, applied rigidly and in isolation, is often of little use in evaluating the infinite variety of service arrangements. While conceding that the right to control work details is the “most important” or “most significant” consideration, the authorities also endorse several “secondary” indicia of the nature of a service relationship.

Thus, we have noted that strong evidence in support of an employment relationship is the right to discharge at will, without cause. Additional factors have been derived principally from the Restatement Second of Agency. These include (a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee. Generally, the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.

(Borello, supra, 48 Cal.3d at pp. 350–351, citations omitted [cleaned-up].) Further, the Borello court stated that “Besides the ‘right to control the work, the court should consider factors such as (1) the alleged employee's opportunity for profit or loss depending on his managerial skill; (2) the alleged employee's investment in equipment or materials required for his task, or his employment of helpers; (3) whether the service rendered requires a special skill; (4) the degree of permanence of the working relationship; and (5) whether the service rendered is an integral part of the alleged employer's business” in determining whether an employment relationship exists.  (Id. at pp. 354-355.)

Here, Defendant advances the declaration of Joseph Ferri (“Ferri”), who is Defendant’s owner and managing member. Ferri states that Defendant hired Timm to perform bubble shows as an independent contractor. (Declaration of Joseph Ferri, ¶ 3; Compendium of Documentary Evidence in Support of Motion for Summary Judgment, Exhibit C.) Defendant also advances Timm’s deposition testimony. At deposition, Timm testified that she worked for Defendant as an independent contractor. (Compendium of Documentary Evidence in Support of Motion for Summary Judgment, Exhibit B, p. 10:8-11.) Thus, Defendant’s evidence meets its burden to show that Timm is an independent contractor, not an employee. Thus, Defendant shifted the burden of production to Plaintiff to raise triable issues of material fact on the issue of whether Timm is an independent contractor or employee of Defendant.

Plaintiff advances Timm’s deposition testimony. At deposition, Timm testified that she wore a polo shirt with Defendant’s logo to perform the bubble shows. (Compendium of Exhibits in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment, Exhibit A, p. 15:10-12.) Plaintiff also points out that the agreement between Defendant and Timm states that Defendant “has developed methods including copyright protected written scripts and choreography, educational and entertainment techniques for performing and presenting the topic of soap bubbles, which enhance the educational experience of the audience[.]” (Compendium of Documentary Evidence in Support of Motion for Summary Judgment, Exhibit C, p. 1.) Defendant specified that Timm would use this method in performances. (Compendium of Documentary Evidence in Support of Motion for Summary Judgment, Exhibit C, p. 2.) The agreement further provides that Timm cannot perform bubble shows on her own, or behalf of anyone other than Defendant. (Compendium of Documentary Evidence in Support of Motion for Summary Judgment, Exhibit C, pp. 6-7.)

Although the evidence suggests that Defendant exerted a degree of control over Timm’s performance of bubble shows, and that the performance of the bubble shows is an integral part of Defendant’s business, the Court finds that the evidence proffered by Plaintiff falls short in raising a triable issue of material fact as to whether Timm is an employee of Defendant . (See Plaintiff’s Additional Disputed Facts in Opposition to Defendant’s Motion for Summary Judgment (hereafter “AMF”), Nos. 16 -23[2]) As such, the Court finds that as a matter of law, Timm is an independent contractor for Defendant and in turn, Defendant is not liable for any of Timm’s alleged negligent acts. (See Privette v. Superior Court (1993) 5 Cal.4th 689, 693[“At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work”]; Johnson v. Tosco Corp. (1991) 1 Cal.App.4th 123, 131 [“The general rule is that an employer of an independent contractor is not liable for the negligence of the contractor or its employees but the exceptions to the rule have become so numerous that it has been said that the rule is ‘general’ only in the sense that it is applied where no good reason is found for departing from it].)

A. PECULIAR RISK DOCTRINE

The peculiar risk doctrine is an exception to the general rule. “Under the peculiar risk doctrine, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor's negligent performance of the work causes injuries to others.” (Privette v. Superior Court, supra, 5 Cal.4th at p. 691.) The reason for the peculiar risk doctrine is to prevent a party from escaping liability for inherently dangerous activities by hiring independent contractors to undertake the inherently dangerous activities on its behalf. (Id. at pp. 693-694.) An inherently dangerous activity “must involve some special hazard resulting from the nature of the work done, which calls for special precautions.” (Stark v. Weeks Real Estate (1979) 94 Cal.App.3d 965, 972.)

Here, Defendant’s evidence shows that the peculiar risk doctrine does not apply because Defendant did not hire Timm to perform inherently dangerous activities. Plaintiff claims he sustained injuries as a result of Timm’s negligence in driving her vehicle. Motor vehicle negligence is not a special hazard that requires special precautions. Accordingly, Defendant has shifted the burden to Plaintiff to raise triable issues of material fact as to whether Defendant is liable for Timm’s negligence. But Plaintiff has not proffered evidence to raise any triable issue of material fact regarding the application of the peculiar risk doctrine.

B. COLLATERAL NEGLIGENCE

“The employer of an independent contractor is not liable for the “collateral” or “casual” negligence by an employee of the independent contractor. The Restatement's rule concerning collateral negligence in section 426 reads in relevant part as follows: An employer of an independent contractor . . . is not liable for physical harm caused by any negligence of the contractor if (a) the contractor's negligence consists solely in the improper manner in which he does the work; (b) it creates a risk of such harm which is not inherent in or normal to the work; and (c) the employer had no reason to contemplate the contractor's negligence when the contract was made.” (LaCount v. Henzel Phelps Constr. Co. (1978) 79 Cal.App.3d 754, 764–765 [cleaned-up].)

Here, Defendant’s evidence establishes that the alleged negligence by Timm is collateral. (See Defendant’s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (hereafter UMF) Nos. 1-4.) First, Timm’s alleged negligence is centered on her unsafe operation of a vehicle while driving to her residence after completing a performance. Second, the risk of Timm driving a vehicle in an unsafe manner when she is returning to her residence is not inherent in or normal to the performance of a bubble show for which Timm was contracted to perform. Third, Defendant had no reason to contemplate that Timm would drive a vehicle in an unsafe manner when it entered into the agreement with Timm, or after Timm performed an act per her agreement with Defendant.

Accordingly, Defendant has shifted the burden to Plaintiff to raise triable issues of material fact as to whether Defendant is liable for Timm’s negligence. But Plaintiff has not proffered evidence to raise any triable issue of material fact regarding whether Timm’s alleged negligence is not collateral.

2. GOING AND COMING RULE

In Ducey v. Argo Sales Co., the plaintiffs sued Argo Sales, the employer of Dolores Glass who was the driver of a vehicle that collided with the plaintiffs’ vehicle. The plaintiffs asserted “that Glass was acting in the scope of her employment at the time of the fatal accident and that Argo Sales was consequently liable for the resulting injuries under “respondeat superior” principles. Evidence at trial revealed that Glass had been employed by Argo Sales for almost 20 years to clean model homes at various locations in San Jose, Alameda and Union City and that she regularly drove up to 45 miles from her residence to such model homes several days a week; the accident in this case occurred when Glass was returning home after performing her job.” (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 714.) In affirming the judgement in favor of Argo Sales, the California Supreme Court held that:

Under the doctrine of respondeat superior, an employer is liable for the torts of his employees committed within the scope of their employment. The burden of proof is on the plaintiff to demonstrate that the negligent act was committed within the scope of employment. Whether an act is within the scope of employment is a question of fact. Under the so-called “going and coming rule,” an employee is not regarded as acting within the scope of his employment while going to or coming from his place of work. The courts, however, have recognized several exceptions to the “going and coming” rule.

(Id. at pp. 721-722, citations omitted.) “The courts have recognized an exception to the “going and coming” rule where the employer compensates the employee for travel time. An exception has also been recognized where a negligent act was committed while the employee was engaged in a special errand for the employer. . . . The “going and coming” rule has also been held inapplicable, however, in cases where the employer requires an employee to furnish a vehicle for transportation on the job.” (Id. at pp. 722–723.)

Similarly, the Second District Court of Appeal held that “An employee's commute to and from the workplace is generally not considered to be within the course and scope of employment. While an employer's vicarious liability for the torts of its employees is well established, courts have recognized that an employee's commute to and from work is ordinarily considered outside the scope of employment so that the employer is not liable for the employee's torts committed during the employee's commute. This rule, commonly referred to as the ‘going and coming rule,’ is grounded in the notion that the employment relationship is suspended from the time the employee leaves until he returns, or that in commuting he is not rendering service to his employer.” (Newland v. County of Los Angeles (2018) 24 Cal.App.5th 676, 685–686 [cleaned-up].)

Here, Defendant produced evidence that Timm was driving home after completing a bubble show at the time of the subject accident. (UMF Nos. 1-2 & 3.) Defendant also advances evidence that at time of the subject accident, Timm was not performing any duties for Defendant and was not compensated for mileage. (UMF No. 6.) Consequently, Defendant met its initial burden of production to establish that it is shielded from liability based upon the “going and coming rule,” shifting the burden of production to Plaintiff.

In opposition, Plaintiff claims that “Bubblemania would provide Timm with all the equipment needed for the Bubble Show. Bubblemania would reimburse Defendant Timm for mileage on a per mile basis” citing to the Deposition of Timm, 46:16-47:5. (AMF No. 23.)

However, the cited evidence does not support the first sentence of AMF No. 23, and although Timm testified that Defendant has reimbursed her for mileage, she did not recall if she was paid for mileage for the performance she completed on the day of the subject accident. More important, Plaintiff has not proffered evidence to establish that any of the exceptions to the “going and coming rule” are applicable. First, there is no evidence that Timm was compensated by Defendant for her “travel time.” Second, there is no evidence that Timm was engaged in a special errand for Defendant at the time of the subject accident. Third, there is no evidence that Defendant required Timm to use a vehicle in performing her duties under their agreement. Moreover, the agreement between Defendant and Timm has no provisions compelling Defendant to compensate Timm for her travel time or mileage to or from performances, or requiring Timm to use or furnish a vehicle when fulfilling the terms of the agreement. (Compendium of Documentary Evidence in Support of Motion for Summary Judgment, Exhibit C.)

Yet Plaintiff argues that Hinojosa v. Workmens’ Compensation Appeals Bd. (1972) 8 Cal.3d 150; Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956; and Huntsinger v. Fell (1972) 22 Cal.App.3d 803, compel the rejection of the “going and coming rule” in this case. But those cases are distinguishable because the employees in Hinojosa, Hinman and Huntsinger were either required by the employers to drive or use a vehicle on the day of the accident or was providing a specific benefit to the employers every time the employee had a car available at or for work. None of the factual scenarios in Hinojosa, Hinman and Huntsinger are found in this case.

Notwithstanding the Court’s finding that Timm is an independent contractor as a matter of law, the Court finds that there are no triable issues of material fact as to the application of the “going and coming rule” to absolve Defendant of liability for Timm’s alleged negligence toward Plaintiff. As a matter of law, Defendant is not liable under the doctrine of respondeat superior, for Timm’s alleged negligent acts even if she is considered to be an employee of Defendant as opposed to an independent contractor. In short, the “going and coming rule” is applicable based upon the evidence.

CONCLUSION AND ORDER

Considering the evidence proffered by Plaintiff and Defendant and viewing said evidence most favorably to Plaintiff, the Court finds that there are no triable issues of material fact. The Court further finds that as a matter of law Timm is an independent contractor and thus Defendant is not liable for Timm’s alleged negligence, and even if Timm is an employee of Defendant, the “going and coming rule” absolves Defendant from the alleged negligence of Timm. In addition, the Court finds that Plaintiff has failed to meet his burden of production in establishing that there are triable issues of material fact as to whether Defendant is liable for Timm’s alleged negligence.

Therefore, the Court grants Defendant’s motion for summary judgment. Defendant is ordered to give notice of the Court’s order, and to file a proof of service of such.


[1] Generally, “[A]n opinion is not authority for a proposition not therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)

[2] As to AMF No. 23, Plaintiff failed to support in part this AMF. Specifically, the cited evidence does not support the proposition that “Bubblemania would provide Timm with all of the equipment needed for the Bubble show.” In addition, the evidence cited does not support the proposition that Timm was reimbursed for mileage for the show she performed before the subject accident.

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