This case was last updated from Los Angeles County Superior Courts on 10/09/2020 at 05:43:52 (UTC).

MICAH RIVOIRE VS TIMUR ISHKOV ET AL

Case Summary

On 05/16/2018 MICAH RIVOIRE filed a Personal Injury - Motor Vehicle lawsuit against TIMUR ISHKOV. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are JON R. TAKASUGI, HOLLY E. KENDIG and THOMAS D. LONG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6362

  • Filing Date:

    05/16/2018

  • 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

JON R. TAKASUGI

HOLLY E. KENDIG

THOMAS D. LONG

 

Party Details

Plaintiff and Petitioner

RIVOIRE MICAH

Defendants, Respondents and Cross Defendants

BARRAGAN ESQUIVEL SAUL

CEJAALTAMIRANO ARTURO

ISHKOV TIMUR

DOES 1 TO 25

POGHOSYAN ARTASH

LION GATE TRANSPORT

ARTASH POGHOSYAN DBA LION GATE TRANSPORT

RETAIL MARKETING SERVICES INC.

UBER TECHNOLOGIES INC. A CORPORATION

CALIFORNIA GROCERS ASSOCIATION A CORPORATION

CITYWIDE CART RECOVERY

MOES 1 THROUGH 25

Defendants, Respondents and Cross Plaintiffs

ISHKOV TIMUR

ARTASH POGHOSYAN DBA LION GATE TRANSPORT

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

WADDINGTON MICHAEL ESQ.

ROSE ADAM

WADDINGTON MICHAEL JOSEPH ESQ.

Defendant and Respondent Attorneys

BREMER KEITH G. ESQ.

VALDEZ LARRY T.

HURWITZ ANDRES C.

HURWITZ ANDRES CECILIO

MAKI KEVIN MICHAEL

GOLUB BETH ISAACS

Cross Plaintiff Attorney

OFFENHAUSER TYLER DAVIS

Defendant and Cross Defendant Attorney

VALDEZ LARRY T.

 

Court Documents

Answer

8/5/2020: Answer

Declaration - DECLARATION DECLARATION OF WADDINGTON IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

7/24/2020: Declaration - DECLARATION DECLARATION OF WADDINGTON IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Opposition - OPPOSITION OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

7/24/2020: Opposition - OPPOSITION OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Opposition - OPPOSITION PLAINTIFF'S OBJECTIONS TO AMENDED DECLARATION OF VELASQUEZ & [P] ORDER-07-24-20.PDF

7/24/2020: Opposition - OPPOSITION PLAINTIFF'S OBJECTIONS TO AMENDED DECLARATION OF VELASQUEZ & [P] ORDER-07-24-20.PDF

Objection - OBJECTION PLAINTIFF'S OBJECTIONS TO AMENDED DECLARATION OF DODSON & [PROPOSED] ORDER

7/24/2020: Objection - OBJECTION PLAINTIFF'S OBJECTIONS TO AMENDED DECLARATION OF DODSON & [PROPOSED] ORDER

Opposition - OPPOSITION OPPOSITION TO SEPARATE STATEMENT OF UNDISPUTED FACTS

7/24/2020: Opposition - OPPOSITION OPPOSITION TO SEPARATE STATEMENT OF UNDISPUTED FACTS

Declaration - DECLARATION AMENDED DECLARATION OF DODSON

5/6/2020: Declaration - DECLARATION AMENDED DECLARATION OF DODSON

Motion for Summary Judgment

4/1/2020: Motion for Summary Judgment

Separate Statement

4/1/2020: Separate Statement

Declaration - DECLARATION OF CONNER J. HOLDSWORTH IN SUPPORT OF UNOPPOSED EX PARTE APPLICATION

11/21/2019: Declaration - DECLARATION OF CONNER J. HOLDSWORTH IN SUPPORT OF UNOPPOSED EX PARTE APPLICATION

Proof of Service (not Summons and Complaint)

11/21/2019: Proof of Service (not Summons and Complaint)

Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT'S UNOPPOSED EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES

11/21/2019: Memorandum of Points & Authorities - MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF DEFENDANT'S UNOPPOSED EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES

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

11/25/2019: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL AND ALL RELATED DATES

Answer

10/31/2019: Answer

Answer - ANSWER TO CROSS-COMPLAINT

3/26/2019: Answer - ANSWER TO CROSS-COMPLAINT

Summons - Summons on Complaint

2/1/2019: Summons - Summons on Complaint

Proof of Personal Service

2/15/2019: Proof of Personal Service

SUMMONS -

5/16/2018: SUMMONS -

45 More Documents Available

 

Docket Entries

  • 06/30/2021
  • Hearing06/30/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 06/16/2021
  • Hearing06/16/2021 at 10:00 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 05/17/2021
  • Hearing05/17/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE Dismissal

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  • 08/07/2020
  • Docketat 08:30 AM in Department 31, Thomas D. Long, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 08/07/2020
  • Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Trial Setting Conference - Held

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  • 08/07/2020
  • Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion for Summary Judgment - Held

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  • 08/07/2020
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment; Trial Setting Conference)); Filed by Clerk

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  • 08/05/2020
  • DocketAnswer; Filed by Arturo Cejaaltamirano (Cross-Defendant)

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  • 07/31/2020
  • DocketReply (to Opposition to MSJ); Filed by Retail Marketing Services, Inc. (Defendant); Citywide Cart Recovery (Defendant)

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  • 07/31/2020
  • DocketReply (to Response to Opposition to Separate Statement); Filed by Retail Marketing Services, Inc. (Defendant); Citywide Cart Recovery (Defendant)

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53 More Docket Entries
  • 02/13/2019
  • DocketProof of Personal Service; Filed by Timur Ishkov (Cross-Complainant)

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  • 02/01/2019
  • DocketCross-Complaint; Filed by Artash Poghosyan dba Lion Gate Transport (Cross-Complainant); Timur Ishkov (Cross-Complainant); Artash Poghosyan dba Lion Gate Transport (Defendant) et al.

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  • 02/01/2019
  • DocketSummons (on Complaint); Filed by Artash Poghosyan dba Lion Gate Transport (Defendant); Timur Ishkov (Defendant)

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  • 01/07/2019
  • DocketAssociation of Attorney; Filed by Micah Rivoire (Plaintiff)

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  • 06/19/2018
  • DocketAnswer; Filed by Artash Poghosyan dba Lion Gate Transport (Defendant); Timur Ishkov (Defendant)

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  • 06/19/2018
  • DocketARTASH POGHOSYAN DBA LION GATE TRANSPORT AND TIMUR ISHKOV'S ANSWER TO THE COMPLAINT OF MICAH REESE RIVOIRE

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  • 05/16/2018
  • DocketComplaint; Filed by Micah Rivoire (Plaintiff)

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  • 05/16/2018
  • DocketCIVIL DEPOSIT

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  • 05/16/2018
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 05/16/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC706362    Hearing Date: August 07, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MICAH RIVOIRE,

Plaintiff(s),

vs.

TIMUR ISHKOV, ET AL.,

Defendant(s).

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CASE NO: BC706362

[TENTATIVE] ORDER GRANTING IN PART DEFENDANTS CITYWIDE CART RECOVERY AND RETAIL MARKETING SERVICES’ MOTION FOR SUMMARY JUDGMENT

Dept. 31

1:30 p.m.

August 7, 2020

 

  1. Background

    Plaintiff, Micah Reese Rivoire filed this action against Defendants, Timur Ishkov; Esquivel Saul Barragan; Artash Poghosyan DBA Lion Gate Transport; Arutro Cejaaltamirano and Does 1 to 25 for damages arising out of a motor vehicle vs. pedestrian incident. On 8/23/19, Plaintiff filed an Amendment to Complaint naming Retail Marketing Services, Inc. as Doe 1, and filed an Amendment to Complaint on 10/16/19, naming Citywide Cart Recovery as Doe 4.

    Plaintiff alleges that on 5/17/16, Defendant Saul Barragan (“Barragan”) was driving when he attempted to make a left turn, when Timor Ishkov, who was driving for Uber at the time, collided with Barragan. Plaintiffs alleges that Ishkov’s vehicle then veered into the crosswalk and struck Plaintiff, who was walking in the crosswalk. Plaintiff further alleges that Barragan was an employee for Citywide Cart Recovery and Retail Marketing Services, Inc. at the time of the incident.

    Defendants Citywide Cart Recovery (“Citywide”) and Retail Marketing Services, Inc. (“RMS”) (collectively “Defendants”) now move for summary judgment.

  2. Motion for Summary Judgment

  1. Moving Argument

Citywide and RMS argue that at the time of the incident, Barragan was self-employed as a retriever of shopping carts and worked as an independent contractor retained by Citywide, who was contracted to recover shopping carts by RMS. Citywide and RMS argue that Barragan is not an employee of either Citywide or RMS, and that even if Barragan was found to be an employee, Barragan was not in the course or scope of employment at the time of the incident. Citywide and RMS contend that the evidence establishes that Barragan was an independent contractor and neither Citywide nor RMS exercised any control over the means or manner of performance of the work he did. Additionally, RMS contends that it is further insulated from liability because its contract with Citywide explicitly stated that Citywide is an independent contractor and that RMS was not exercising any control over how Citywide did its work recovering shopping carts. Moreover, Citywide and RMS contend even if found to be an employee, Barragan was not acting in the scope of his employment because while Barragan was on his way to pick up forms used for his business at the time of the incident, Barragan was not required to pick them up at that time or date and the materials were merely incidental to his job.

  1. Opposing Argument

Plaintiff avers that Barragan was an employee of both Citywide and RMS, and that Barragan was in the course and scope of his employment at the time of the accident. First, Plaintiff argues the manner and means by which the Citywide and RMS controlled Barragan in his performing his shopping cart retrieval duties makes him an employee under either the test derived from S.G. Borello & Sons, Inc. v Dept. of Industrial Relations (1989) 48 Cal.3d 341, or under Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903. Plaintiff argues this is established because although Citywide did not directly control Barragan’s work, they set his schedule, directed him to particular worksites, could fire him at will, and Barragan was paid directly by Citywide. Second, under the doctrine of respondeat superior, Citywide and RMS are vicariously liable for Barragan's negligence because he was acting within the scope of his employment at the time of the accident because he got into an accident while driving a vehicle that he only used for the retrieval of shopping carts, with shopping carts still on the back of his truck, while he was traveling to retrieve a form book from his supervisor that was required by Citywide and RMS and necessary for him to get paid for doing his job, that his supervisor told him to get, twice, at two different grocery stores serviced by Defendants.

  1. Evidentiary Objections

Plaintiff, in opposition, filed 9 objections to the amended declaration of Jose Velasquez and 3 objections to the amended declaration of Matthew Dodson.

As to Plaintiff’s Objections to Amended Declaration of Jose Velasquez, the court rules as follows: Objection No. 2 is sustained, as it is an improper legal conclusion; Objection No. 3 is sustained since it lacks foundation and is a legal conclusion, and Objection No. 4 is sustained, as the contract referred to speaks for itself. Objection No. 9 is sustained. The testimony refers to an exhibit B that is not attached to the declaration. Objections 1 and 5-8 are overruled. Objection 1 addresses a clerical error that make no difference to the substance of the testimony.

As to Plaintiff’s Objections to Amended Declaration of Matthew Dodson, the court rules as follows: Objection No. 1 is sustained as it is an improper legal conclusion. Objections 2-3 are overruled.

As to Plaintiff’s Objections to the Declaration of Saul Barragan, they are all sustained.

Furthermore, on 7/24/20, Defendant Uber Technologies, Inc. filed its own objections to Defendant Citywide and RMS’s separate statement of material facts. Objections to a separate statement are improper. (Cal. Rules of Code, rule 3.1354(b).) The court, therefore, declines to rule on the purported objections.

  1. Burdens on Summary Judgment

The Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66.

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

  1. There is a Triable Issue of Fact as to whether Barragan was Citywide’s Independent Contractor. There is No Evidence that Barragan was RMS’s Employee.

Citywide and RMS assert that they are entitled to summary judgment in this matter because Barragan was an independent contractor at the time of the incident, not their employee.

The landmark test for determining whether an individual is an employee or an independent contractor was articulated in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341. There, the California Supreme Court held that courts should look to numerous factors to determine whether there is an employment relationship.

[T]he 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 “[s]trong evidence in support of an employment relationship is the right to discharge at will, without cause. [Citations.]” (Tieberg, supra, 2 Cal.3d at p. 949, quoting Empire Star Mines, supra, 28 Cal.2d at p. 43.) 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. [Citation.] “Generally, ... the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.” [Citation.]

(Id. at 350-51.)

Consequently, the right to control is a key factor in determining whether a person is an employee or an independent contractor, but it is not the only factor. (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 303.) “The determination of employee or independent-contractor status is one of fact if dependent upon the resolution of disputed evidence or inferences . . . . If the evidence is undisputed, the question becomes one of law.” (Id. at 349; see also Brose v. Union-Tribune Publishing Co. (1986) 183 Cal.App.3d 1079, 1081 [Whether a person is an employee or an independent contractor is ordinarily a question of fact but if from all the facts only one inference may be drawn it is a question of law.”].)

As an initial note, regarding Plaintiff’s argument that Citywide and RMS had an employee relationship with Barragan under the test specified in Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, the Dynamex Court explicitly stated:

The issue in this case relates to the resolution of the employee or independent contractor question in one specific context. Here we must decide 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, 4 Cal.5th at pp. 913-14 (emphasis added).)

This case, however, does not involve any allegations involving California wage orders. The court, thus, will analyze Defendants and Barragan’s relationship under the test stated in Borello.

Here, Citywide and RMS argue that Barragan’s work involved driving around his territory to pickup and return shopping carts to their respective retails store, and that Barragan utilized his own pickup truck for this work and worked alone and set whatever hours he decided to work. (UMF 6, 12, 14.) Citywide and RMS contend that no control was exercised over how Barragan did this or when, with the exception that he had to work six days a week for his assigned stores. (UMF 13, 15-17.) Furthermore, Citywide and RMS contend that Barragan had his own business, and that Barragan was free to engage in other work. (UMF 18, 20.) In addition, Defendants argue that RMS is further removed from liability because RMS had a contract with Citywide that stated that Citywide was an independent contractor, and that RMS exercised no control over how Citywide recovered shopping carts. (UMF 7-8.) Defendants argue that RMS had no contact with Barragan at any time and was not involved in any decision to utilize him to recover shopping carts. (UMF 7, 11.) Defendants provide that RMS is a sizeable company with various other services other than shopping cart recovery and performs tasks for over 6000 markets in the State of California. (Mot. Dodson Amended ¿¿ Decl. 3-5.)

Plaintiff, in opposition, argues that under the Borello test, the fact that Defendants did not control the precise nature of the work is of little relevance, as the work did not require a high degree of skill, education, or oversight. Plaintiff further argues that the evidence establishes that Citywide could terminate Barragan at any time; that Barragan was required to come into work every day and did not have the ability to work as he pleased; that Defendants set his schedule, directed him to particular worksites, could fire him at will, and Barragan was paid directly by Citywide. Moreover, concerning RMS, Plaintiff avers conditions that RMS controlled and directed of the work include: (1) the geographical area the driver is required to retrieve and return the carts, (2) the specific carts the worker is required to retrieve, (3) the type of ramp required to unload carts, (4) the logo the driver is required to display on vehicles used to retrieve and return carts, (5) the type of phone the driver is required to have, (6) the phone app the driver is required to use, (7) the operating system the driver’s phone must have, (8) the paper ticket and form book the driver must use, (9) the type of licenses the driver is required to have, and (10) the type of insurance required to be maintained. Plaintiffs contends that as a result, Defendants exercised enough control over Barragan to establish that he was not free from direction and control in the performance of his job duties.

As to Citywide’s relationship with Barragan and the question of Citywide’s control over Barragan’s work, an employee status may still exist where “[a] certain amount of ... freedom is inherent in the work. (Air Couriers Int'l v. Emp't Dev. Dept. (2007) 150 Cal.App.4th 923, 934.) The contract signed by Citywide and Barragan states that Barragan was to be assigned to a particular territory, and Defendants assert that Plaintiff was required to work 6 days per week for his assigned stores. (UMF 13; see Mot. Amended Velasquez Decl. Exh. A.) Further, the contract provides that Barragan could not be absent from his territory for more than one month and required a month written notice before the absence, that Barragan was responsible for collecting shopping carts reported in his territory within 24 hours, that Citywide could fine Barragan $175 if it was reported Barragan was not using the ramp on his truck to unload shopping carts, and that Citywide would send the cart locations to Barragan. (Mot. Amended Velasquez Decl. Exh. A.) Although the contract does not provide set hours that Barragan was required to work, Citywide seemingly retained a good deal of control over Barragan when he was working. Citywide instructed Barragan not to do certain things- improperly unload carts from his truck without using a ramp- and affirmatively instructed Barragan to do other things- collect carts within 24 hours after Citywide reported the location to Barragan.

What is more, the contract states specific reasons that Barragan can be immediately terminated for, which include failing to collect carts in his territory, properly using the ramp to unload carts from his truck, and using proper language and good personal manners when interacting with Citywide’s clients. (Mot. Amended Velasquez Decl. Exh. A.) Additionally, the contract also provided that either Citywide or Barragan could terminate the contract at any time without cause with 30 days’ notice. (See Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531 (“Perhaps the strongest evidence of the right to control is whether the hirer can discharge the worker without cause, because ‘[t]he power of the principal to terminate the services of the agent gives him the means of controlling the agent's activities.’”).)

Similarly, several secondary factors show there is a triable issue as to whether Barragan was Citywide’s employee. For example, it appears the work performed by Barragan was wholly integrated into Citywide’s business, and Citywide has not shown that retrieving shopping carts requires special skill, which is something independent contractors tend to have. (Estrada v. FedEx Ground Package System, Inc. (2007) 154 Cal.App.4th 1, 9; See JKH Enters. v. Dep't of Indus. Relations (2006) 142 Cal.App.4th 1046, 1064-65.) Finally, although Citywide contends that Defendants and Barragan referred to Barragan’s status as an independent contractor, and the contract signed by Citywide and Barragan provide that it is a being entered into between Citywide and an independent contractor, “[t]he label placed by the parties on their relationship is not dispositive.” (S. G. Borello, 48 Cal.3d 341, 349.)

Based on the foregoing, there is a triable issue of fact as to whether Barragan was an independent contractor for Citywide at the time of the incident.

As to RMS’s contention that Barragan was at most its independent contractor, Plaintiff only cites to the contract between Citywide and RMS, and the contract between Citywide and Barragan in arguing Barragan was also RMS’s employee. (Mot. Amended Dodson Decl. Exh. A, Amended Velasquez Decl. Exh. A.) However, there is no evidence that RMS had any role in hiring Barragan or otherwise controlling the manner Barragan completed the subject work. While Plaintiff argues that RMS’s shopping cart retrieval business model is based on RMS controlling almost every aspect of the manner and means that drivers perform their duties, there is no evidence that RMS had or exerted any such control over Barragan at any time. This evidence suggests only that Citywide retained significant control over its operations, including who to hire.

Therefore, the evidence establishes that Barragan was not RMS’s employee at the time of the incident.

  1. Course and Scope of Employment

Even if Barragan is found to be Citywide’s employee, Citywide avers that Barragan as a matter of law was not in the course and scope of his employment at the time of the incident.

“Under the theory of respondeat superior, an employer is vicariously liable, irrespective of fault, for the tortious conduct of its employees within the scope of their employment.” (Jorge v. Culinary Institute of America (2016) 3 Cal.App.5th 382, 396.) “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. [Citations.] 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 [citation], or that in commuting he is not rendering service to his employer.’ ” ” (Id. at 397.)

“There are several exceptions to the going and coming rule, however, that if applicable will result in an employer being liable for its employee's tortious conduct that occurs during the commute. [Citations.] These exceptions typically arise ‘where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force.’ [Citations.] But this means not just any trivial benefit to the employer, but a benefit ‘sufficient enough to justify making the employer responsible for the risks inherent in the travel.’ ” (Id. at 397-98.)

For example, “‘exceptions will be made to the “going and coming” rule where the trip involves an incidental benefit to the employer, not common to commute trips by ordinary members of the work force.’” (Jeewarat v. Warner Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427, 435-36.)

When an employee is engaged in a “special errand” or a “special mission” for the employer it will negate the “going and coming rule.” [Citations.] An employee “ ‘coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer ... is considered to be in the scope of his employment from the time that he starts on the errand until he has returned or until he deviates therefrom for personal reasons.’ ” [Citations.] The employer is “liable for torts committed by its employee while traveling to accomplish a special errand because the errand benefits the employer. [Citation.]”

(Id. at 436.) This exception applies to an employee called to work to perform a special task at an irregular time. (Id.) Further, the “special errand” rule covers any activity that indirectly or incidentally benefits the employer: e.g., picking up or returning tools used on the job; or a trip during which the employee responds to a service call for the employer's business; or a trip to attend an out-of-town business conference. (See Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1036-37.)

In this case, Citywide contends there is no evidence that Barragan was required to work or pick up the claim forms on the date of the incident. Citywide contends that Barragan was subject to all the same risks of traffic on that date regardless of any affiliation with Citywide. Further, Citywide provides that Barragan has stated that he was not working or in the course and scope of employment with anyone. Citywide, in reply, argues this case is analogous to Robbins v. Yellow Cab Co. (1979) 85 Cal.App.2d 811, where a woman went to pick up her paycheck from her place of employment before her shift began, but slipped and fell on her way out of the premises. It was determined that she was not in the course and scope of her employment at the time of the incident. The Court noted,

She could have received her pay check at the commencement of her shift that evening. Instead, she took advantage of the liberal policy of respondent and entered the premises at 3 o'clock in the afternoon. Such policy was for the convenience of its employees, not of respondent. The procurement of her check … was an extra-curricular endeavor by her in no way related to her employment. Appellant herein might just as readily have been subjected to the hazard of the washrack even though she had never worked a day for respondent. Thus her injury was neither one ‘arising out of and in the course of the employment,’ nor while she was ‘performing service growing out of and incidental to his employment,’ nor ‘proximately caused by the employment.’

(Robbins, 85 Cal.App.2d at 815.) Citywide further cites to Pierson v. Helmerieh & Payne International Drilling Co (2016) 4 Cal.App.5th 608, where the Court held that driving another employee to a place of work does not provide an exception to the going and coming rule.

In opposition, Plaintiff argues that Barragan was acting within the course and scope of his employment because he got into an accident while driving a vehicle that he used only to retrieve shopping carts, while he was traveling to pick up claim forms from his supervisor that Citywide required, were necessary for Barragan to get paid, and his supervisor told him to pick up twice at two different grocery stores serviced by Citywide.

Although Citywide contends that Barragan was not required to work on the day of the incident, the evidence suggests the incident occurred while Barragan was driving to meet his alleged supervisor at the store the supervisor told Barragan to meet him at. (Opp. Waddington Decl. 3, Exh. A p. 20:1-7.) Unlike in Robbins v. Yellow Cab Co. 85 Cal.App.2d at 815, where the employee who went to pick up her paycheck for her own convenience when she not required was determined to not be engaged in a special errand for her employer, Barragan was on his way to pick up the claim forms Citywide required he used to do his work and get paid. (See Mot. Amended Velasquez Decl. ¿ 6, Exh. A; Mot. Seal Decl. ¿ 4, Exh. B p. 69:16-23.) Dissimilar from a paycheck, the claim forms where not solely for Barragan’s benefit. While Barragan was not required to work on the day of the incident, the special errand exception may be applicable to an employee called to perform a task at an irregular time. (Jeewarat, 177 Cal.App.4th at 436.) These facts indicate that Barragan was engaged in performing a part of his duties of work in going to the store instructed to by his supervisor to pickup claim forms he required to perform his work the following day, which benefitted Citywide. (See Caldwell, 176 Cal.App.3d at 1036-37.)

Accordingly, there is a triable issue of fact regarding whether Barragan was acting within the course and scope of his employment with Citywide when the incident occurred.

  1. Conclusion

The motion for summary judgment is granted as to Defendant RMS only. The motion is denied as to Defendant Citywide.

Moving Defendants are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@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 remotely.

 

Dated this 7th day of August, 2020

Hon. Thomas D. Long

Judge of the Superior Court