On 01/08/2018 a Personal Injury - Other Personal Injury case was filed by PABLO ORTIZ against MARCOS PAVON in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
CHRISTOPHER K. LUI
DOES 1 TO 25
CALIFORNIA NEWSPAPER DISTRIBUTORS PROGRAM
7/11/2019: Separate Statement
4/13/2018: Defendant's Claim and Order to Go to Small Claims Court (Small Claims)
7/3/2018: CIVIL DEPOSIT
7/3/2018: NOTICE OF DEPOSIT OF JURY FEES BY DEFENDANT CALIFORNIA NEWSPAPER DISTRIBUTORS PROGRAM, SUED AND SERVED AS BWS DISTRIBUTING, LLC, DOE 11
12/31/2018: Notice of Deposit - Jury
3/21/2019: Stipulation and Order
5/10/2018: Notice and Acknowledgment of Receipt
4/13/2018: Defendant's Claim and Order to Go to Small Claims Court (Small Claims)
4/19/2018: ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
3/13/2018: PROOF OF SERVICE SUMMONS
2/20/2018: Amendment to Complaint (Fictitious/Incorrect Name)
2/22/2018: DECLARATION OF NON SERVICE
3/7/2018: DECLARATION OF NON SERVICE
1/8/2018: COMPLAINT FOR DAMAGES FOR PERSONAL INJURIES; DEMAND FOR JURY TRIAL
Hearingat 08:30 AM in Department 4A at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE DismissalRead MoreRead Less
Hearingat 08:30 AM in Department 4A at 312 North Spring Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearingat 10:00 AM in Department 4A at 312 North Spring Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Hearingat 13:30 PM in Department 4A at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary JudgmentRead MoreRead Less
DocketDeclaration (Declaration of Carla J.Gagne in Support of Motion Summary Judgment by BWS Distributing, LLC); Filed by BWS Distributing, LLC (Doe 11) (Defendant)Read MoreRead Less
DocketMotion for Summary Judgment; Filed by BWS Distributing, LLC (Doe 11) (Defendant)Read MoreRead Less
DocketDeclaration (Declaration of Bret Sandy in Support of Motion for Summary Judgment by Defendant BWS Distributing, LLC); Filed by BWS Distributing, LLC (Doe 11) (Defendant)Read MoreRead Less
DocketSeparate Statement; Filed by BWS Distributing, LLC (Doe 11) (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Jury Trial - Not Held - Continued - StipulationRead MoreRead Less
Docketat 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Continued - StipulationRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketDeclaration; Filed by Pablo Ortiz (Plaintiff)Read MoreRead Less
DocketDECLARATION OF NON SERVICERead MoreRead Less
DocketDeclaration; Filed by Pablo Ortiz (Plaintiff)Read MoreRead Less
DocketDECLARATION OF NON SERVICERead MoreRead Less
DocketAmendment to Complaint; Filed by Pablo Ortiz (Plaintiff)Read MoreRead Less
DocketAmendment to Complaint (Fictitious Name)Read MoreRead Less
DocketComplaint; Filed by Pablo Ortiz (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT FOR DAMAGES FOR PERSONAL INJURIES; DEMAND FOR JURY TRIALRead MoreRead Less
Case Number: BC689328 Hearing Date: November 13, 2019 Dept: 4A
Motion for Summary Judgment
Having considered the moving, opposing and reply papers, the Court rules as follows.
On January 8, 2018, Plaintiff Pablo Ortiz (“Plaintiff”) filed a complaint against Defendants Marcos Pavon, Jeannette Pavon, and California Newspaper Distributors Program alleging negligence for Defendant Marcos Pavon striking Plaintiff with a shopping cart while delivering newspapers on January 10, 2016.
On February 20, 2018, Plaintiff renamed Doe 11 as Defendant BWS Distributing, LLC.
On July 11, 2019, Defendant BWS Distributing, LLC filed a motion for summary judgment pursuant to California Code of Civil Procedure section 437c.
The parties stipulated to continue the hearing on Defendant BWS Distributing, LLC’s motion for summary judgment twice, resulting in a November 13, 2019 hearing date.
Trial is set for January 21, 2020.
Defendant BWS Distributing, LLC (“BWS”) asks the Court to enter summary judgment against Plaintiff and in favor of BWS because BWS was not involved in the subject incident and Defendant Marcos Pavon is not the employee, agent or ostensible of BWS.
The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)
“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)
The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff.¿ (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) or principal is vicariously liable for its employee’s or agent’s torts committed within the scope of employment. (Debbie Reynolds Prof. Rehearsal Studios v. Superior Court (1994) 25 Cal.App.4th 222, 226.)
Employers are generally not liable for the torts of their independent contractors. (A. Teichert & Son, Inc. v. Superior Court (1986) 179 Cal.App.3d 657, 660-661.) There are a variety of factors used to determine whether there is an employee-employer relationship. (S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal.3d 341, 350-351.) “The principal test of employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the desired result. [Citations.] A secondary factor also constituting strong evidence in support of an employment relationship is the right to discharge at will without cause.” (Agelotti v. The Walt Disney Co. (2011) 192 Cal.App.4th 1394, 1404.)
“Other secondary factors to consider in determining whether an employment relationship exists include whether the person performing services is engaged in a distinct occupation or business; whether the work it usually done under the direction of the principal or by a specialist without supervision; whether the work requires a particular skill; whether the principal or the worker supplies the instrumentalities, tools, and place of work; whether the worker has an opportunity for profit or loss depending on his or her managerial skill; the duration of the work; whether payment is by time or by the job; whether the work is a part of the regular business of the principal; and whether the parties believe they are creating an employment relationship.” (Ibid.)
“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 p. 351 (citation omitted).) Id. at p. 349.) Agelotti, supra, 192 Cal.App.4th at p. 1404.)
“Actual agency typically arises by express agreement. [Citations.] . . . Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act. [Citation.] The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on his behalf and subject to his control. [Citations.] Thus, the formation of an agency relationship is a bilateral matter. Words or conduct by both principal and agent are necessary to create the relationship.” (Secci v. United Independent Taxi Drivers, Inc. (2017) 8 Cal.App.5th 846, 855 (citations and quotations omitted.) Many of the same factors used to determine if there is an employee-employer relationship is used to determine whether there is an agency relationship. (See ibid.)
BWS first argues that it cannot be held directly liable for any injury to Plaintiff because it was not involved in the incident that led to Plaintiff’s injury. Specifically, BSW submitted evidence that it is an independent distributor of newspapers which receives, stores and arranges for the delivery of newspapers from its distribution center, which is Pasadena, far from the Wal-Mart store where Plaintiff was injured. (Separate Statement, Undisputed Fact [SSUF] No. 2, 5, 6.) BWS’s showing is sufficient to satisfy its burden of showing that it is entitled to summary judgment in its favor on Plaintiff’s theory that BWS’s direct negligence causes her injury.
In response, Plaintiff Submitted facts seeking to establish that BWS breached its duty of care to Plaintiff. Plaintiff's material facts include that BWS acknowledged that delivery drivers might cause injury to a member of the public and, for this very reason, included in its Independent Contractor Distribution Agreement ("Agreement") a requirement that its delivery drivers, including Defendant Jeanette Pavon, maintain accident insurance coverage and provide proof of that insurance to BWS. (Plaintiff's Material Facts [PMF] Nos. 56, 77-78, 82-84.) BWS had no procedure in place to ensure that his newspapers would not be distributed to delivery drivers until they had provided such proof of insurance. (PMF 85.) The Agreement permits and anticipates that BWS's delivery drivers may employ others, like Defendant Marcus Pavon, to assist in delivering the newspapers and requires that these assistants be covered by the accident insurance maintained by the independent contractor. (PMF 46, 55, 56.)
The Court finds that Plaintiff's showing is insufficient to defeat the BWS's motion for summary judgment because it fails to demonstrate either that BWS engaged in affirmative misconduct, or misfeasance, that caused Plaintiff's injury, or in the alternative, that BWS has a special relationship with plaintiff such that mere nonfeasance would give rise to a breach of the duty arising from that relationship. Plaintiff's allegations amount to the charge that BWS failed to ensure that its contractor, Defendant Jeanette Pavon, maintained accident insurance. As such, the allegation constitutes an accusation of nonfeasance. “Liability for nonfeasance is limited to situations in which there is a special relationship that creates a duty to act.” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202 (citations omitted).) In this case, there is no basis for the Court to find a special relationship between BWS and Plaintiff in connection with the former’s newspaper distribution services. Accordingly, BWS is entitled to judgment as a matter of law on plaintiff's theory of direct negligence by the BWS.
BWS focuses a significant portion of its motion on arguing its entitlement to summary judgment on Plaintiff’s theory that BWS should be held vicariously liable for her injury. In support of its motion, BWS argues that Defendant Marcus Pavon cannot be considered its employee, agent or ostensible agent as a matter of law.
BWS’s undisputed material facts establish the following. BWS is an independent distributor of single copy newspapers. (UMF No. 2, p. 2:7-2:10.) BWS arranges for the delivery of newspapers through delivery persons like Defendant Jeanette Pavon, whom
BWS’s undisputed material facts also establish the following. BWS does not provide benefits to the delivery persons, such as unemployment or workers compensation, and it does not withhold taxes from their paychecks. (UMF No. 10, p. 3:18-3:24.) Delivery persons are responsible for state/federal income, social security and unemployment taxes. (Ibid.) BWS provides independent contractors with 1099 tax forms at the end of each year. (UMF No. 11, p. 3:25-3:27.)
BWS’s undisputed material facts further establish the following. Delivery persons supply their own vehicles, gas, insurance, and any other items necessary to complete deliveries. (UMF No. 12, p. 4:3-4:8.) Delivery persons assume the cost of any necessary car repairs if they choose to deliver product through the use of a car. (UMF No. 13, p. 4:9-4:12.) BWS does not instruct delivery persons how to make deliveries. (UMF No. 14, p. 4:13-4:15.)
BWS’s undisputed material facts additionally establish the following. Defendant Jeanette Pavon entered into an Independent Contractor Distribution Agreement (“Agreement”) with BWS on October 5, 2015. (UMF No. 25, pp. 7:10-7:14.) The Agreement states BWS “is only interested in the end result: delivery of product to businesses by agreed upon delivery deadlines. [BWS] is not interested in the details of how [Defendant Jeanette Pavon] performs its distribution agreement. The manner, means and details of delivery are to be decided by the [Defendant Jeanette Pavon].” (UMF No. 18, p. 5:4-5:16.) The Agreement obliges Defendant Jeanette Pavon to pick up product, deliver undamaged product by deadlines, and comply with reasonable storage and banding requirements. (UMF No. 19, p. 5:17-5:25.) The Agreement obliges BWS to provide product and pay a negotiated fee. (UMF No. 21, p. 6:7-6:11.) Defendant Jeanette Pavon is paid per route at a pre-negotiated fee. (UMF No. 22, p. 6:12-6:16.)
BWS’s undisputed material facts establish additional aspects of the Agreement. The Agreement states Defendant Jeanette Pavon is not required to attend BWS’s employee company meetings, is not subject to BWS’s employee rules, and is free to ignore any and all suggestions BWS may offer. (UMF No. 20, pp. 5:26-6:6.) Defendant Jeanette Pavon has the discretion of providing the workforce necessary to accomplish the delivery according to the Agreement. (UMF No. 23, p. 6:17-6:26.) The Agreement states such workforce is under the exclusive authority and control of Defendant Jeanette Pavon. (Ibid.) The Agreement states Defendant Jeanette Pavon is solely responsible for property damage, bodily injury, or death caused by the Defendant Jeanette Pavon, her agents, and her employees. (UMF No. 24, p. 7:3-7:8.)
BMS’s undisputed material facts lastly establish the following. Plaintiff alleges that Defendant Marcos Pavon struck Plaintiff’s foot with a shopping cart on January 10, 2016. (UMF No. 38, p. 10:3-10:9.) Plaintiff alleges Defendant Marcos Pavon was acting on behalf of Defendant Jeanette Pavon and BWS at the time of Plaintiff’s injury. (UMF No. 40, p. 10:21-10:24.) Defendant Marcos Pavon is Defendant Jeanette Pavon’s father. (UMF No. 26, p. 7:15-7:16.) Defendant Marcos Pavon had no relationship with BWS at the time of the alleged incident on January 10, 2016. (UMF No. 28, p. 7:20-7:24.) Defendant Marcos Pavon was part of Defendant Jeanette Pavon’s workforce and was under the exclusive authority and control of Defendant Jeanette Pavon at the time of the incident. (UMF No. 29, p. 7:25-7:28.)
With regard to the possibility of an ostensible agency relationship, BWS submitted facts that negated any communications between BWS and Defendant Marcos Pavon establishing an agency relationship. (UMF No. 34.) Further, Plaintiff testified that he did not know the identity of the person pushing the shopping cart, much less who employed him. (UMF 33-35.) Defendant Marcos Pavon was not wearing a BWS uniform. (UMF 15.) Finally, Plaintiff did not even know who BWS at the time of the incident. (UMF 36.)
The Court finds BMS has met its burden. Its undisputed facts show that BWS had neither an employee-employer relationship nor agency relationship with Defendant Marcos Pavon. Instead, the facts show Defendant Marcos Pavon was part of Defendant Jeanette Pavon’s workforce. The Agreement does not bind Jeanette Pavon’s workforce, including Defendant Marcos Pavon, to the same terms that Jeanette Pavon agreed to. There are no facts showing Defendant Marco Pavon was BWS’s agent or employee. As such, the burden shifts to Plaintiff.
Plaintiff’s material facts establish the following. BWS’s CEO hired Defendant Jeanette Pavon at the suggestion of Defendant Marcos Pavon. (PMF Nos. 68, 72, pp. 24:15-24:20, 25:12-25:19.) BWS provided instructions to Defendant Jeanette Pavon to stuff inserts into the newspapers that were delivered, to collect money from racks and stores, and to avoid altering the newspapers or including unauthorized advertisements and inserts into the newspapers. (PMF 43-44, 47-49.) Under the Agreement, BWS shall provide a fee statement itemizing all delivery debits and credits for the preceding 14 day period, along with the payment owed to the contractor. (PMF 51.) BWS is also entitled to perform and result verification audit and receive other end result verification data to ensure the contractor's compliance with the terms of the Agreement. (PMF 52.) BWS is entitled to reduce payment based on the percentage of the delivery that was completed by the agreed-upon deadline and may terminate the Agreement in the event the contractor breaches its obligations. (PMF 53-54.) Under the Agreement, the contractor must make deliveries only in vehicles under his control and direction or under the control and direction of the contractor's designated agents, employees, and/or subcontractors. (PMF 55.) The contractor must maintain accident insurance and must treat the agreed-upon fees as confidential. (PMF 56, 58.)
Plaintiff also offered evidence that both BWS and defendant Jeanette Pavon were in the business of delivering newspapers, and that BWS provided a new delivery route list each day. (PMF 62-63). BWS hires delivery drivers, like defendant Jeanette Pavon, as a regular part of its distribution business. (PMF 64.) It had approximately 12 delivery drivers as of January 2016, all of whom signed the same Agreement that was signed by defendant Jeanette Pavon, who had no input into the drafting of that Agreement. (PMF 65, 76.) As of January 2016, BWS held no employee meetings and had no written rules for its employees. (PMF 65-67.) The CEO of BWS could give input to delivery drivers but rarely did. (PMF 68.) The agreement between BWS and Defendant Jeanette Pavon had no specific temporal scope and could be terminated by either party. (PMF 69-70.)
The Court finds that Plaintiff has not submitted sufficient facts that give rise to a material dispute about whether BWS had an employment or agency relationship with Defendant Marcus Pavon. The facts offered do not tend to show that BWS had the authority to exercise any control over the manner or means to be used by Defendant Jeannette Pavon or her workforce in accomplishing their work under the Agreement. Restrictions on adding inserts or making alterations to newspapers, directions to insert advertisements, instructions to collect money, and the like reflect the details of service for which BWS contracted with Defendant Jeannette Pavon and other deliverers. That BWS's contractors were required to use their own vehicles, furnish their own gas oil and liability insurance, and received no employee benefits of any sort from BWS are all facts that support a conclusion that neither of the Pavon defendants could be considered employees or agents of BWS. While the Court finds that newspaper delivery is unskilled work, not a distinct profession, and that both BWS and its contractors participated in the process of newspaper distribution and delivery, these facts are insufficient standing alone to give rise to a triable issue of fact as to whether Defendant Marcus Pavon was an employee or agent of BWS.
Because an assessment of the factors relevant to the employee/independent contractor inquiry tips so decidedly in favor of the absence of an employment relationship between Defendant Marcus Pavon and BWS, the Court finds that Plaintiff has failed to demonstrate a triable issue of fact that would preclude summary judgment in favor of BWS. Nor has Plaintiff submitted any facts at all tending to rebut BWS’s showing that there was no ostensible agency relationship between Defendant Marcus Pavon and BWS.
The motion for summary judgment is GRANTED.
Moving Defendant BWS is ordered to give notice of this ruling.