Pending - Other Pending
Personal Injury - Other Personal Injury
MARK H. EPSTEIN
THOMAS D. LONG
INSURANCE COMPANY OF THE WEST
DEL AMO CONSTRUCTION INC.
ENGEL HOLDINGS INC. AKA CABRILLO ELEVATOR
ENGEL HOLDINGS INC. DBA CABRILLO HOIST
RUSSELL CONSTRUCTION SERVICES INC.
EASTON W. DOUGLAS
FERRIS JOHN SCOTT
SCALABRINI GARY E.
EILER JAMES O.
SCALABRINI GARY EDWARD
WOLLMAN RUSSELL S
5/20/2022: Notice of Ruling
5/4/2022: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)
5/4/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER) OF 05/04/2022
4/27/2022: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY ADJUDICATION FILED BY PLAINTIFF)
8/24/2021: Response - RESPONSE RESPONSE TO SEPARATE STATEMENT
8/24/2021: Proof of Service (not Summons and Complaint)
8/24/2021: Declaration - DECLARATION DECLARATION OF GARY SCALABRINI
8/24/2021: Declaration - DECLARATION DECLARATION OF JONATHAN MERE
8/24/2021: Opposition - OPPOSITION OPPOSITION TO MOTION
9/3/2021: Reply - REPLY REPLY TO DEFENDANT DEL AMO CONSTRUCTION, INC.'S ADDITIONAL FACTS TO SEPARATE STATEMENT
9/3/2021: Reply - REPLY REPLY TO CROSS-DEFENDANT'S OPPOSITION TO CROSS COMPLAINANT'S MOTION FOR SUMMARY ADJUDICATION
9/9/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR SUMMARY JUDGMENT AS TO DEFENDANT/CROSS ...) OF 09/09/2021
9/9/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT AS TO DEFENDANT/CROSS ...)
9/9/2021: Notice of Case Reassignment/Vacate Hearings
9/10/2021: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW)
9/10/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW) OF 09/10/2021
9/13/2021: Notice - NOTICE COURT ORDER RE TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT
9/15/2021: Order - ORDER NOTICE OF ASSIGNMENT OF CASES FOR ALL PURPOSES
Hearing11/14/2022 at 10:00 AM in Department 207 at 9355 Burton Way, Beverly Hills, CA 90210; Jury TrialRead MoreRead Less
Hearing11/04/2022 at 09:30 AM in Department 207 at 9355 Burton Way, Beverly Hills, CA 90210; Final Status ConferenceRead MoreRead Less
Hearing08/03/2022 at 08:30 AM in Department 207 at 9355 Burton Way, Beverly Hills, CA 90210; Post-Mediation Status ConferenceRead MoreRead Less
DocketNotice of Ruling; Filed by Steven Gonzalez (Plaintiff)Read MoreRead Less
Docketat 2:18 PM in Department 207, Helen Zukin, Presiding; Ruling on Submitted MatterRead MoreRead Less
DocketMinute Order ( (Ruling on Submitted Matter)); Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ((Ruling on Submitted Matter) of 05/04/2022); Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department 207, Helen Zukin, Presiding; Hearing on Motion for Summary Adjudication (filed by Plaintiff) - Held - Taken under SubmissionRead MoreRead Less
DocketMinute Order ( (Hearing on Motion for Summary Adjudication filed by Plaintiff)); Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department 207, Helen Zukin, Presiding; Hearing on Motion for Summary Adjudication (filed by Plaintiff) - Not Held - Advanced and Continued - by CourtRead MoreRead Less
DocketProof of Service by Substituted Service; Filed by Steven Gonzalez (Plaintiff)Read MoreRead Less
DocketProof of Service by Substituted Service; Filed by Steven Gonzalez (Plaintiff)Read MoreRead Less
DocketProof of Personal Service; Filed by Steven Gonzalez (Plaintiff)Read MoreRead Less
DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Dates); Filed by ClerkRead MoreRead Less
DocketPI General Order; Filed by ClerkRead MoreRead Less
DocketSummons (on Complaint); Filed by Steven Gonzalez (Plaintiff)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by Steven Gonzalez (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by Steven Gonzalez (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by INSURANCE COMPANY OF THE WEST (Plaintiff)Read MoreRead Less
DocketNotice of Case Assignment - Unlimited Civil Case; Filed by ClerkRead MoreRead Less
Case Number: *******3161 Hearing Date: March 22, 2021 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
DEL AMO CONSTRUCTION, INC., ET AL.,
CASE NO: *******3161
[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO COMPEL COMPLIANCE WITH DEMAND FOR PRODUCTION OF DOCUMENTS
March 22, 2021
Plaintiff, Steven Gonzalez (“Plaintiff”) served request for production of documents (“RPDs”), set one, on Defendant, Del Amo Construction, Inc. (“Defendant”) on 7/20/20. In response to RPDs 2, 3, 5, 6, 8, 9, 10, 11, 12, 14, 15, 16, 17, 20, 21, 23, 29, 33, 34, 36, 39, 44, 46, and 47, Defendant asserted various objections and then indicated an intent to produce copies of responsive documents. Plaintiff asserts that after Defendant did not produce any documents, he met and conferred with Defendant but no documents have been provided. Plaintiff now moves to compel Defendant to provide responses.
CCP ; 3031.320(a) states: “If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.”
Here, Plaintiff’s evidence shows Defendant represented that documents would be provided in response to the subject RPDs but failed to do so. As of 3/18/21, no opposition to the motion has been filed.
The motion is unopposed and granted. Defendant is ordered to provide a copy of all documents responsive to RPDs, set one, 2, 3, 5, 6, 8, 9, 10, 11, 12, 14, 15, 16, 17, 20, 21, 23, 29, 33, 34, 36, 39, 44, 46, and 47. Defendant must provide responses within ten days.
“[T]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”
Plaintiff requests sanctions of $2,935.00 against Defendant. The court awards Plaintiff two hours for meeting and conferring, one hour for drafting the motion and 0.5 hours for appearing at the hearing all at the reasonable rate of $250 per hour, for a total of attorney’s fees of $700. Further, the court awards Plaintiff the $60 motion filing fee as costs.
Sanctions are sought and imposed against Defendant and Defendant’s attorney of record, jointly and severally. They are ordered to pay sanctions to Plaintiff, by and through counsel of record, in the total amount of $760, within twenty days.
Plaintiff is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at firstname.lastname@example.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 22nd day of March, 2021
Hon. Thomas D. Long
Judge of the Superior Court
Case Number: *******3161 Hearing Date: September 9, 2021 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT
DEL AMO CONSTRUCTION, INC., ET AL.,
Case No.: *******3161 (c/w 20STCV08828)
ORDER TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT
INITIAL NOTE: This is not a tentative ruling. It is being posted with the tentative rulings to give Counsel notice not to appear. This is a final order and the case is being transferred.
AFTER REVIEW OF THE COURT FILE, THE COURT MAKES THE FOLLOWING ORDER:
Department 31 of the Personal Injury Court has determined that the above entitled consolidated actions are complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.
AT THE DIRECTION OF DEPARTMENT 1:
This case is hereby transferred and reassigned to the following Independent Calendar Court in
Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.
UPON RECEIPT OF THIS NOTICE, COUNSEL FOR PLAINTIFF SHALL GIVE NOTICE TO ALL PARTIES OF RECORD.
COUNSEL ARE TO NOTE THAT EVEN IF THE CASE SUMMARY STILLS SHOWS DEPARTMENT 31 WITH FUTURE HEARINGS, COUNSEL ARE TO CONSIDER THEM TO BE OFF CALENDAR UNTIL RESET IN THE NEW DEPARTMENT ASSIGNED EITHER BY THE COURT STAFF OR THROUGH THE COURT’S RESERVATION SYSTEM BY MOVING PARTY.
DATED: September 9, 2021 ___________________________
Hon. Audra Mori
Judge of the Superior Court
Case Number: *******3161 Hearing Date: November 16, 2021 Dept: 207
THE COURT GRANTS PLAINTIFF’S MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT.
This action is an injury case. On September 21, 2018, Plaintiff was injured when a 2000-pound elevator counterweight struck his body. Plaintiff did not die, but his right arm was crushed and nearly severed. As a result of this incident, Plaintiff filed this action against Defendants alleging negligence, negligence per se, and punitive damages.
Plaintiff now seeks to file his First Amended Complaint to add a second cause of action against Defendants for negligence pursuant to Labor Code section 3700 et seq.
Motion for Leave to Filed Amended Cross-Complaint Standard
Code of Civil Procedure section 473, subdivision (a) provides, in relevant part, “[t]he court may . . . in its discretion, after notice to the adverse party, allow, upon any terms that may be just, an amendment to any pleading or proceeding[.]” (Code Civ. Proc., ; 473, subd. (a); see also Code Civ. Proc., ; 576 [“[a]ny judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order”].) Permissible amendments include the addition of new causes of action as well as the addition of new parties. (Code Civ. Proc., ;; 426.50, 473, subd. (a).)
The court has broad discretion to permit amendments to pleadings, and “the court’s discretion will usually be exercised liberally to permit amendment of the pleadings.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) “The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Ibid.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend . . . .” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.)
Pursuant to California Rules of Court, rule 3.1324, subdivision (b), a separate declaration must accompany a motion for leave to amend and must specify: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier. (Cal. Rules of Court, rule 3.1324, subd. (b).)
a. Plaintiff’s Motion Not Barred by the Statute of Limitations
Defendants contend that the relevant statute of limitations have run on the Plaintiff’s proposed claim for negligence under Labor Code 3700. Generally, however, an amended complaint filed after the statute of limitations has run that alleges new causes of action “relates back” to the original complaint if it is based on: (1) the same general facts; (2) seeks recovery against the same defendant; (3) for the same injuries; and refers to the same incident. (Barrington v. A.H. Robins Co. (1985) 39 C3d 146, 150; Norgart v. Upjohn Co. (1999) 21 C4th 383, 408-409; Scholes v. Lambirth Trucking Co. (2017) 10 CA5th 590, 597-598.)
Here, Plaintiff seeks to only add a new cause of action for negligence under the Labor Code based on the same general facts seeking recovery against the same defendant for the same injuries arising out of the same incident. Plaintiff does not attempt to add any additional parties nor facts. The Court find that the relation doctrine applies in this case and that Plaintiff is not barred by the statute of limitations to file his First Amended Complaint.
b. Declaration Pursuant to CRC Rule 3.1324(b) Satisfied
Plaintiff has filed the declaration of Mani S. Navab. The declaration sufficiently specifies the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reason why the request for amendment was not made earlier. After completing discovery and discovering that Del Amo was uninsured to cover Plaintiff for any workers compensation benefits, Plaintiff recognized a new cause of action for violating Labor Code 3700. (Navab, ¶ 9.) Plaintiff contends that Defendants violated Labor Code 3700. These facts satisfy CRC Rule 3.1324(b).
The Court finds that the Plaintiff is permitted to file his First Amended Complaint in order to add a cause of action for negligence pursuant to Labor Code section 3700.
Case Number: *******3161 Hearing Date: December 14, 2021 Dept: 207
THE COURT GRANTS SUMMARY ADJUDICATION FOR PUNITIVE DAMAGES, OTHERWISE THE COURT DENIES THE MOTION FOR SUMMARY JUDGMENT.
This action is a personal injury case. On September 21, 2018, Plaintiff Steven Gonzalez (“Plaintiff”) was injured when a 2000-pound elevator counterweight struck his body. Plaintiff did not die, but his right arm was crushed and nearly severed. As a result of this incident, Plaintiff filed this action against Defendants alleging negligence, negligence per se, and punitive damages.
Defendant Del Amo Construction, Inc., (“Defendant”) now files its Motion for Summary Judgment or, in the alternative, summary adjudication.
The Court SUSTAINS Plaintiff’s objections to portions of Brian Murphy’s Declaration.
The role of summary judgment is to enable courts to determine whether the parties’ pleadings and allegations establish triable issues of fact that need to be resolved at trial. (Aguilar v. Atlantic Richfield Co., (Cal. 2001) 25 Cal. 4th 826, 843.) Under Code Civil Procedure section 437c subsection (c), the court must grant the motion for summary judgment if the pleadings show that there is no triable issue to any material fact and the moving party is entitled to judgment as a matter of law. (Id.)
The moving party has the burden of proving that there are no triable issues of fact. The defendant moving for summary judgment must show that a cause of action has no merit, either by proving that one or more of the elements of a plaintiff’s cause of action cannot be established, or by establishing an affirmative defense to that cause of action. (Cal. Civ. Proc. ; 437c(o)). Courts must consider all the evidence and all the inferences reasonably drawn therefrom. (Aguilar at 843.). The evidence is viewed in the light most favorable to the opposing party. (Id.)
Once the defendant has met the burden of negating an element or establishing an affirmative defense, the burden shifts to the plaintiff to show a triable issue of one or more material facts exists as to cause of action or defense. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence that goes beyond mere speculation. (Cal. Civ. Proc. ; 437c(p)(2)).
Here, Defendant moves for summary judgment or summary adjudication on two grounds: (1) Plaintiff’s claims lack merit because they are barred by the exclusivity provisions of the California Workers’ Compensation Act; and (2) Plaintiff’s claim for punitive damages lacks merit because punitive damages or exemplary damages are not available under Plaintiff’s claims for negligence and negligence per se.
Workers’ Compensation Exclusivity
“When an employer lends an employee to another employer and relinquishes to the borrowing employer some right of control over the employee's activities, a ‘special employment relationship’ arises between the borrowing employer and the employee. [Citation.] ‘Once a special employment is identified, two consequences ensue: (1) the special employer’s liability for workers’ compensation coverage to the employee, and (2) the employer’s [and its other employees’] immunity from a common law tort action, the latter consequence flowing from the exclusivity of the compensation remedy embodied in Labor Code section 3601.’ [Citations.]” (Caso v. Nimrod Productions, Inc. (2008) 163 Cal.App.4th 881, 888.)
“In determining whether a special employment relationship exists, the primary consideration is whether the special employer has ‘[t]he right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not . . .’’’ [Citations.]” (Id. at pp. 888-889.)
“The decision turns on ‘(1) whether the borrowing employer's control over the employee and the work he is performing extends beyond mere suggestion of details or cooperation; (2) whether the employee is performing the special employer’s work; (3) whether there was an agreement, understanding, or meeting of the minds between the original and special employer; (4) whether the employee acquiesced in the new work situation; (5) whether the original employer terminated [its] relationship with the employee; (6) whether the special employer furnished the tools and place for performance; (7) whether the new employment was over a considerable length of time; (8) whether the borrowing employer had the right to fire the employee and (9) whether the borrowing employer had the obligation to pay the employee.’ [Citation.] Circumstances tending to negate the existence of a special employment relationship include situations in which ‘[t]he employee is (1) not paid by and cannot be discharged by the borrower, (2) a skilled worker with substantial control over operational details, (3) not engaged in the borrower’s usual business, (4) employed for only a brief period of time, and (5) using tools and equipment furnished by the lending employer.’ [Citation.]” (Ibid.)
“Whether a special employment relationship exists generally is a question of fact. [Citation.] If neither the facts nor inferences are in conflict, however, the question is one of law that may be decided on summary judgment. [Citations.]” (Ibid.)
Defendant contends it was Plaintiff’s special employer on the date of the subject incident. Russell provided Plaintiff to Defendant to work on the project. Defendant submits evidence in the form of declarations it controlled Plaintiff’s work and provided Plaintiff the tools and equipment necessary to perform his work. Defendant further asserts it had the right to terminate Plaintiff’s employment on the project. Defendant argues all these facts show it was Plaintiff’s special employer.
Plaintiff, however, submits evidence to contradict Defendant controlled his work. The evidence submitted by Plaintiff shows a lack of supervision by Defendant and control for the specialty trade of hoist operation and maintenance. Plaintiff has set forth evidence Russell Construction visited the project holding weekly or bi-weekly safety training for Russell Construction employees, and Plaintiff believed Cavanzon, his supervisor from Russell, was his lead supervisor. Defendant did not provide training to Plaintiff for the assignment of hoist management and Plaintiff brought his own personal protection equipment, tool belt, and tools. Finally, Plaintiff submits evidence Russell did not terminate its employer-employee relationship with Plaintiff and has the ability to terminate his employment..
The disputed facts make it difficult to make a clear determination Plaintiff was a special employee of Defendant as a matter of law. Rather, issues of material fact exist which could lead reasonable minds to come to differing conclusions as to the nature of the employment relationship Defendant held over Plaintiff. Defendant has failed to establish no issue of material fact exists as to whether Plaintiff was its special employee at the time of the subject accident. As such, it cannot be determined at this time that Plaintiff was Defendant’s special employee for application of the workers’ compensation exclusivity rule because issues of fact exist as to whether Defendant controlled the manner and method of Plaintiff’s work. The Court denies Defendant’s request for summary judgment on this ground.
Plaintiff further argues that even if Defendant was found to be his special employer, the exclusivity provisions of the Workers’ Compensation Act do not apply because Defendant was uninsured. The Court does not address this argument, nor whether the exclusivity provision applies, because the Court finds there are triable issues of material fact as to the nature of the employment relationship Defendant held over Plaintiff.
Punitive Damages or Exemplary Damages
A party may move for summary adjudication of a claim for punitive damages. (Code Civ. Proc. ; 437c, ;subd. (f).) ; ; ;
Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code ; 3294.) The terms are defined as: ; ;
1. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. ; ;
2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. ; ;
3. “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the ;defendant of thereby depriving a person of property or legal rights or otherwise causing injury. ; ;
Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court ;(1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. ;(2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court ;(1994) 8 Cal.4th 704, 713 (“College Hospital”).) ; ; Summary judgment or summary adjudication on the issue of punitive damages is proper only when no reasonable jury could find the plaintiff's evidence to be clear and convincing proof of malice, fraud, or oppression. (Butte Fire Cases (2018) 24 Cal.App.5th 1150, (July 26, 2018), modified on denial of rehearing, review denied.)
Defendant submits evidence negating Plaintiff’s allegation that Defendant used day laborers to maintain the elevator to save money. Defendant’s construction contract was on a cost-plus basis, meaning there was no financial incentive for Defendant to use laborers to maintain and operate the elevator as a cost-saving measure. Defendant also argues Plaintiff’s claim for negligence does not support a claim for punitive damages.
Plaintiff submits evidence, notwithstanding Defendant’s claim the contract was on a cost-plus basis, that it was saving $75 per hour having Plaintiff do the work and not someone who was trained and experienced in the operation and maintenance of the hoist.
In Butte Fire Cases, the defendants hired contractors and delegated training responsibility to them. (Butte Fire Cases (2018) 24 Cal.App.5th 1150, as modified on denial of reh'g (July 26, 2018).) Plaintiffs there argued the company as a whole acted despicably, and with willful and conscious disregard for the rights and safety of others, by deciding, as a matter of corporate policy, to abdicate responsibility for risk management control. (Ibid.) The Court of Appeal refused to hold that an unsuccessful risk management policy necessarily reflects a conscious and willful company decision to ignore or disregard the risk to others. (Id. at 1173.) That court stated, “[a]lthough plaintiffs need not produce a ‘smoking gun,’ they must nevertheless present evidence that permits a clear and convincing inference that within the corporate hierarchy authorized persons acted despicably in willful and conscious disregard of the rights or safety of others.” (Ibid.)
Similarly, Plaintiff’s evidence here does not rise to the level of a callous and conscious disregard of the potential risk to others. Plaintiff submits evidence that Defendant hired subcontractors and delegated training responsibility to them. Plaintiff also argues that Defendant did this to increase profits. The Court here finds Plaintiff’s evidence does not rise to the level of clear and convincing proof that Defendant acted despicably in willful and conscious disregard of the rights or safety of others. Defendant has met its burden of showing no genuine issue of material fact exists that Plaintiff is not entitled to punitive damages.
Defendant’s motion for summary adjudication for Plaintiff’s negligence claims is DENIED. Defendant’s Motion for summary adjudication for punitive damages is GRANTED. Defendant is ordered to give notice.
Case Number: *******3161 Hearing Date: April 27, 2022 Dept: 207
DEL AMO CONSTRUCTION, INC., et al.
Case No.: *******3161
Hearing Date: 4/27/22
Trial Date: 11/14/22
[TENTATIVE] RULING RE:
Plaintiff’s Motion for Summary Adjudication against Defendant Del Amo Construction, Inc.
This action is a personal injury case. On September 21, 2018, Plaintiff Steven Gonzalez (“Plaintiff”) was injured when a 2000-pound elevator counterweight struck his body. Plaintiff did not die, but his right arm was crushed and nearly severed. As a result of this incident, Plaintiff filed this action against multiple defendants, alleging negligence, negligence per se, and punitive damages.
On March 25, 2021, Defendant Del Amo Construction, Inc., (“Defendant”) filed a motion for summary judgment or, in the alternative, summary adjudication seeking an order finding (1) that Plaintiff’s claims are barred by the exclusivity provisions of the California Workers’ Compensation Act, and (2) that Plaintiff could not establish a claim for punitive damages. In its December 14, 2021, ruling on that motion, the Court granted Defendant’s motion as to Plaintiff’s claim for punitive damages and denied it as to whether Plaintiff’s claims were barred under the California Workers’ Compensation Act. The Court found that, as a threshold matter, the applicability of the Workers’ Compensation Act required a determination that Defendant was Plaintiff’s employer. As Plaintiff was primarily employed by Russell Construction (“Russell”), who lent Plaintiff’s services to Defendant on the project, the Court determined whether there was any triable issue of fact as to whether a “special relationship” arose between Plaintiff and Defendant under the 14-factor test enumerated in Caso v. Nimrod Productions, Inc. (2008) 163 Cal.App.4th 881, 888.
In finding that a triable issue of fact did remain as to the relationship between Plaintiff and Defendant, the Court noted that Defendant had submitted evidence showing that it was Plaintiff’s special employer, and Plaintiff had submitted evidence showing that Russell, not Defendant, was his sole employer. Finding a triable issue of fact as to the relationship between Plaintiff and Defendant, the Court denied Defendant’s motion for summary judgment or adjudication as to the applicability of the Workers’ Compensation Act to bar Plaintiff’s claims against it.
On January 25, 2022, Plaintiff filed the instant motion seeking summary adjudication of Defendant’s Fifteenth and Sixteenth affirmative defenses that it had secured the payment of compensation within the meaning of Labor Code 3700 and 3706, and maintained workers’ compensation insurance.
Request for Judicial Notice
Defendant requests that the Court take judicial notice of its December 14, 2021, order denying Defendant’s motion for summary judgment, or, alternatively, summary adjudication pursuant to Evidence Code 452(c). Defendant’s request is unopposed and is GRANTED by the Court.
Objections to Evidence
Plaintiff’s objections to the Declaration of Elizabeth Silberlicht are OVERRULED.
Summary Adjudication Standard
A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See CCP 437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) A party moving for summary adjudication bears the burden of persuasion that there are no triable issues of material facts. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.
In analyzing motions for summary adjudication, the court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 (Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party”).) A motion for summary adjudication must be denied where the moving party's evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387).
As an initial matter, Defendant argues that Plaintiff’s motion improperly seeks summary adjudication of individual issues and not an entire cause of action or affirmative defense. (Opposition at 4.) While not expressly indicated in Plaintiff’s notice of motion, the Court agrees with Plaintiff that these issues are, in fact, Defendant’s Fifteenth and Sixteenth affirmative defenses. (Reply at 4.) Accordingly, the Court finds that Plaintiff’s motion is procedurally proper and will address it on its merits.
1. Relationship Between Plaintiff and Defendant
Defendant argues that the viability of the affirmative defenses which Plaintiff has challenged through the instant motion for summary adjudication necessarily depend, in the first instance, on whether Defendant was Plaintiff’s special employer at the time of his injury. (Opposition at 6.) The Court agrees. Plaintiff contends that, for the purposes of ruling on his motion, the Court can find that no triable issue of fact remains as to Defendant’s status as Plaintiff’s employer point because Defendant has, through requests for admission in discovery, admitted that it was Plaintiff’s joint employer with Russell. (Motion at 1.) Defendant claims that the Court’s December 14, 2021, ruling finding a triable issue of material fact as to Plaintiff’s employment relationship with Defendant necessarily precludes Plaintiff from obtaining summary adjudication of Defendant’s affirmative defenses for the same reasons. (Opposition at 5-6.)
While Defendant does not state so explicitly, it appears to be relying on the doctrine of judicial estoppel. “The concept of judicial estoppel prevents a party from asserting a position in a judicial proceeding that is contrary or inconsistent with a position previously asserted in a prior proceeding. The purpose is to protect the integrity of the judicial process and not the parties of the lawsuit.” (International Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, 350.) Judicial estoppel “is invoked to prevent a party from changing its position over the course of judicial proceedings when such positional changes have an adverse impact on the judicial process.” (Id., quoting Russell v. Rolfs (9th Cir.1990) 893 F.2d 1033, 1037.) Judicial estoppel “is a doctrine invoked by courts in their discretion.” (Id.) “[T]he doctrine should apply when: (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. [Citations.]” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.)
In opposing Defendant’s prior motion for summary judgment or adjudication, Plaintiff took the position that “on almost every legal factor a jury should consider factual issues exist as to whether or not Del Amo was Plaintiff’s special employer.” (Plaintiff’s Opposition at 15.) Now, in bringing his own motion for summary adjudication, Plaintiff argues that because Defendant “has Admitted that it is in fact plaintiff’s special or joint employer … for purposes of this motion, that fact is conclusively established.” (Reply at 3.)
This is not a situation where Plaintiff has changed his mind and is now conceding that Defendant was his special employer. Rather, in his Reply, Plaintiff explicitly states that he “agrees with the court’s earlier ruling that there is a triable issue of material fact as to whether or not [Defendant] was plaintiff’s special employer.” (Reply at 3.) Plaintiff further states that he will stipulate that Defendant was his special employer if, and only if, the Court “is inclined to grant plaintiff’s MSA.” (Id.)
The Court finds that on such facts, the elements of judicial estoppel have been satisfied: (1) Plaintiff has taken two positions, (2) in judicial proceedings on motions for summary adjudication, (3) was successful in asserting that triable issues of material fact remain as to his employment status with Defendant, (4) which is totally inconsistent with the finding urged here that there is no such triable issue of material fact as to that relationship in the context of Plaintiff’s motion, and (5) his prior position was not taken as a result of ignorance, fraud, or mistake, but rather is explicitly claimed by him to be the correct statement of the evidence before the Court. None of the cases cited by Plaintiff regarding the effect of admitting a fact in response to a request for admission concerned the application of judicial estoppel to such admissions, and thus are not relevant to the question of whether Plaintiff is judicially estopped from contradicting his prior position and evidence.
Plaintiff cannot have it both ways and claim there is no triable issue of fact as to his employment status with Defendant for purposes of his own motion for summary adjudication, but there are such triable issues as to that same fact for purposes of Defendant’s motion. Accordingly, the Court finds that Plaintiff is judicially estopped from claiming that no triable issue of material fact exists as to the question of whether Defendant was his special employer at the time of the accident. For the reasons set forth in its prior December 14, 2021, ruling, the Court finds that a triable issue of material fact exists as to whether Defendant was Plaintiff’s employer. On that basis alone, Plaintiff’s motion for summary adjudication must fail.
2. Triable Issues of Fact Remain as to Whether Defendant Obtained Workers’ Compensation for Plaintiff
Moreover, ignoring the issue of judicial estoppel would not yield a different result. Plaintiff’s motion turns on the question of whether Defendant obtained requisite workers’ compensation insurance for Plaintiff such that it can avail itself of the affirmative defenses that would bar Plaintiff’s claims against it under the exclusivity provisions of the California Workers’ Compensation Act.
The Court finds that Plaintiff carried its initial burden as the moving party under Code Civ. Proc. 437(p)(1). Plaintiff has presented evidence that Defendant’s workers’ compensation insurance policy with Zurich did not include the classifications for general laborers or elevator maintenance mechanics or operators as employees covered by the policy. (UMF Nos. 6.A, 6.B.) Plaintiff has also presented evidence that Zurich would have denied a workers’ compensation claim submitted by Plaintiff. (UMF Nos. 6.U, 6.P.) Anticipating that Defendant would argue that it had an agreement with Plaintiff’s primary employer, Russell, to provide workers’ compensation benefits to Plaintiff in accordance with Labor Code 3602(d)(1), Plaintiff has also presented evidence from Russell’s president that it never had an agreement with Russell such that Russell agreed to provide workers’ compensation insurance that would cover Defendant’s employees. (UMF Nos. 6.Z, 6.EE-FF.)
In response, Defendant alleges that it did have a valid agreement with Russell under Labor Code 3602(d)(1), pointing to deposition testimony from Russell’s president that there was an agreement between Defendant and Russell that Russell obtain workers’ compensation coverage for the employees that Russell provided to Defendant to work on the project. (Ex. G to Scalabrini Decl. at 111:18-24.) Defendant also submitted a declaration from its Construction Risk and Insurance Specialist, Elizabeth Silberlicht, who attests that there was an agreement between Russell and Defendant to provide workers’ compensation coverage “with respect to any and all employees provided to [Defendant] by Russell to work on the Project.” (Silberlicht Decl. at 4.) Defendant contends that this agreement was satisfied by Defendants’ requirement that Russell provide a certificate of insurance showing that it had “obtained workers’ compensation insurance for its workers on the Project.” (Id. at 5.)
Defendant further alleges that Plaintiff is covered under Defendant’s own workers’ compensation insurance through Zurich. In support of its argument, Defendant cites to Campos Food Fair v. Superior Court (1987) 193 Cal.App.3d 965, 968 which held that “The standard workers' compensation insurance policy provides that all employees are eligible for benefits unless specifically excluded.” Defendant points out that its policy with Zurich did not specifically exclude Plaintiff, and thus he should be deemed to be covered by that policy.
Defendant further argues that the Zurich policy contained a provision by which Zurich would provide coverage to any of Defendant’s employees regardless of classification through assignment of proper classifications, rates, and premiums through subsequent endorsements to the policy. (Opposition at 13-14.) Defendant argues that the deposition testimony from Zurich’s person most knowledgeable stating that Zurich would deny a workers’ compensation claim filed by Plaintiff is not dispositive of the issue as that deponent admitted that she did not know whether this provision would extend coverage to an employee whose classification was otherwise not enumerated as covered in the policy. (Ex. H to Scalabrini Decl. at 85:21-86:16.)
On the record before it, the Court finds that Defendant has met its burden under Code Civ. Proc. 437c(p)(1) of showing that triable issues of fact remain as to whether Defendant obtained workers’ compensation insurance to cover Plaintiff, either through an agreement with Russell pursuant to Labor Code 3602(d)(1) or through its own policy with Zurich. Accordingly, Plaintiff is not entitled to summary adjudication as to Defendant’s Fifteenth and Sixteenth affirmative defenses.
Plaintiff’s motion for summary adjudication is DENIED. Plaintiff is to give notice.
Dated: April 27, 2022
Judge of the Superior Court
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