On 02/09/2018 ZACH MARCIANO filed a Personal Injury - Other Personal Injury lawsuit against PINNACLE NETWORKING SERVICES INC. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judge overseeing this case is LAURA A. SEIGLE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Los Angeles, California
LAURA A. SEIGLE
LICAM 500 LLC
PINNACLE NETWORKING SERVICES INC.
DOES 1 TO 25
MATUSEK HENRY JOHN II ESQ.
LEONARD EDWARD R. ESQ.
10/9/2020: Substitution of Attorney
7/10/2020: Declaration - DECLARATION OF JULEE M. FRITSCH IN SUPPORT OF DEFENDANT PINNACLE NETWORKING SERVICES, INC.'S REPLY TO OPPOSITION TO MOTION FOR 15 SUMMARY JUDGMENT
7/17/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT FILED BY PINNACLE NETW...)
4/10/2020: Notice - NOTICE OF CONTINUANCE OF DEFENDANT'S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR ADMISSIONS, SET ONE FROM PLAINTIFF ZACH MARCIANO
3/18/2020: Notice - NOTICE OF CONTINUANCE OF DEFENDANT'S MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET TWO FROM PLAINTIFF ZACH MARICANO
3/16/2020: Opposition - OPPOSITION TO MOTION TO COMPEL FURTHER RESPONSES
3/16/2020: Separate Statement
12/20/2019: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO MOTION FOR PROTECTIVE ORDER; REQUEST FOR MONETARY AND/OR ISSUE SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIRES; DECLARATION OF COUNSEL
12/10/2019: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))
12/5/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR A PROTECTIVE ORDER TO STA...)
12/5/2019: Notice of Ruling
11/1/2019: Notice - NOTICE OF CONTINUANCE OF DEFENDANT'S MOTION TO COMPEL FURTHER RESPONSES TO REQUEST FOR ADMISSIONS, SET ONE FROM PLAINTIFF ZACH MARCIANO
10/23/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION NOTICE OF MOTION AND MOTION T...)
10/24/2019: Notice of Ruling
6/6/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL OR IN THE A...)
6/6/2019: Ex Parte Application - EX PARTE APPLICATION DEFENDANT PINNACLE NETWORKING SERVICES, INC.'S EX PARTE TO CONTINUE TRIAL OR IN THE ALTERNATIVE, SHORTENED TIME TO HEAR DEFENDANT'S MOTION TO CONTINUE TRIAL
6/7/2019: Notice - NOTICE NOTICE OF CONTINUED TRIAL AND FSC DATES
7/30/2018: PROOF OF SERVICE SUMMONS -
Hearing08/09/2021 at 09:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Jury TrialRead MoreRead Less
Hearing07/29/2021 at 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Final Status ConferenceRead MoreRead Less
DocketSubstitution of Attorney; Filed by Pinnacle Networking Services, Inc. (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department B; Case Management Conference - HeldRead MoreRead Less
DocketMinute Order ( (Case Management Conference)); Filed by ClerkRead MoreRead Less
DocketCase Management Statement; Filed by Zach Marciano (Plaintiff)Read MoreRead Less
DocketCase Management Statement; Filed by Pinnacle Networking Services, Inc. (Defendant)Read MoreRead Less
DocketNotice of Ruling; Filed by Pinnacle Networking Services, Inc. (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department B; Hearing on Motion to Compel (Further responses to Special Interrogatories filed by Attorney for Defendant Pinnacle Networking Services, Inc.) - Not Held - Taken Off Calendar by PartyRead MoreRead Less
Docketat 08:30 AM in Department B; Hearing on Motion to Compel (Further Responses to Request for Production filed by Attorney for Defendant Pinnacle Networking Services, Inc.) - Not Held - Taken Off Calendar by PartyRead MoreRead Less
DocketReceipt; Filed by Pinnacle Networking Services, Inc. (Defendant)Read MoreRead Less
DocketNotice (of Posting Jury Fees); Filed by Pinnacle Networking Services, Inc. (Defendant)Read MoreRead Less
DocketAnswer; Filed by Pinnacle Networking Services, Inc. (Defendant)Read MoreRead Less
DocketANSWER TO COMPLAINT; DEMAND FOR JURY TRIALRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketProof-Service/Summons; Filed by Zach Marciano (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
DocketComplaint; Filed by Zach Marciano (Plaintiff)Read MoreRead Less
Case Number: BC693665 Hearing Date: July 17, 2020 Dept: NCB
North Central District
pinnacle networking services, inc., et al.,
Case No.: BC693665
Hearing Date: July 17, 2020
[TENTATIVE] order RE:
motion for summary judgment, or in the alternative, summary adjudication
A. Allegations of the Operative Complaints
Plaintiff Zach Marciano (“Plaintiff”) alleges that on February 22, 2016, he was injured on Defendants Pinnacle Networking Services, Inc. and Licam 500, LLC’s property located at 500 State St., Glendale, CA 91203. He alleges that he was an unlicensed contractor/employee of Defendants. He alleges he was working on a gate on Defendants’ premises when he sustained injuries to his left hand.
The form complaint, filed February 9, 2018, alleges causes of action for: (1) premises liability; and (2) general negligence.
B. Motion on Calendar
On September 19, 2019 Defendant Pinnacle Networking Services Inc. (“PNS”) a motion for summary judgment or, in the alternative, for summary adjudication in its favor and against Plaintiff on the ground that Plaintiff’s action is barred by the exclusive remedy rule and there are no triable issues of material fact. Alternatively, PNS moves for summary adjudication on the following issues:
On April 13, 2020, Plaintiff filed an opposition.
On July 10, 2020, PNS filed a reply brief.
REQUEST FOR JUDICIAL NOTICE
PNS requests judicial notice of Plaintiff’s complaint filed in this action. The request is granted. (Evid. Code, §452(d).)
With the reply brief, PNS submitted evidentiary objections to Plaintiff’s evidence in support of the opposition. PNS objects to Exhibits 3 and 4 of the declaration of PNS’s PMQs Joe Lorenzo and Arica Simpson, arguing they include irrelevant pages. Objections 1 and 2 are overruled.
A. Exclusive Remedy Rule
California's Workers' Compensation Act provides an employee's exclusive remedy against his or her employer for injuries arising out of and in the course of employment. (Wright v. State of California The injury must have: (1) arisen out of the employment, which relates to the origin or cause of the injury; and (2) occurred in the course of the employment, which relates to the time and place of the injury. (Id.)
PNS argues that Plaintiff was an independent contractor. However, PNS also argues that if Plaintiff claims he is an employee, then he is covered under the exclusive remedy rule and this action is barred because he did not have a valid license to perform gate repair work and PNS’s worker’s compensation policy was in full force at the time of the incident. (MSJ at pp.10-11.)
PNS provides the following facts. Plaintiff admits that he was an unlicensed contractor. (Fact 7.) Plaintiff alleges in his complaint and testified at his deposition that his left hand was injured on February 22, 2016 while working on the gate of PNS’s premises. (Fact 9; Fritsch Decl., Ex. A [Compl. at pp.4-5], Ex. B [Pl.’s Depo. at pp.80-81].) Plaintiff was not told when he had to repair PNS’s electronic gate and he provided his own tools for the repair. (Fact 17; Pl.’s Depo. at pp.55-56, 85.) At the time of the incident, PNS had worker’s compensation insurance. (Fact 20; Simpson Decl., Ex. F [PNS’s Worker’s Compensation Insurance Policy].)
The Court does not find that PNS has upheld its initial burden.
First, PNS has not established its initial burden in showing that Plaintiff is an employee of PNS. PNS argues that Plaintiff was an independent contractor but argues that “if” Plaintiff is an employee, then he is covered by PNS’s worker’s compensation insurance and the exclusive remedy rule applies. Rather than establishing that Plaintiff is an employee, PNS appears to try to be proving in its motion and separate statement papers that Plaintiff is an independent contractor. (See MSJ at pp.10-11; PNS Fact 17.) In establishing whether the exclusive remedy rule applies, PNS must first show that the injury arose out of the employment.
While Plaintiff argues that he was an employee under the circumstances of this case (see Opp. at p.6 [citing Bus. & Profs. Code, §7026]), the burden did not shift to Plaintiff to establish such facts or raise a triable issue of material fact on the issue of whether he was an employee versus an independent contractor.
Second, PNS argues that it had a worker’s compensation insurance policy that was operative at the time of the injury. (PNS Fact 20.) However, even if it did have worker’s compensation insurance and assuming PNS did not deny that Plaintiff was an employee, Plaintiff provides evidence showing that Travelers denied his claim for worker’s compensation benefits, stating: “we are unable to accept your claim for workers compensation benefits because you were not an employee of our insured at the time of your claimed injury. Therefore your injury did not arise out of the employment for which we would provide benefits. … We are also denying your claim as we have no medical evidence to support a work related injury.” (Matusek Decl., ¶2, Ex. 1 [8/2/16 Travelers’ Denial Letter] [italics added].) Thus, this again raises the same issues discussed above as well as raises a triable issue of material fact on the exclusive remedy rule.
The motion is denied as to Issues 1 and 2.
B. Firefighter’s Rule or Primary Assumption of the Risk Doctrine
Generally, persons are liable for injuries they cause to others as a result of their failure to use due care. (Harry v. Ring the Alarm, LLC (2019) 34 Cal.App.5th 749, 758.) The doctrine of primary assumption of the risk is an exception to this general duty of care. (Id.) This doctrine applies when the defendant owes no duty to guard against a particular risk of harm. (Id. at 759.) It completely bars a plaintiff’s claim for recovery only when it can be established that, because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care. (Id.) The doctrine normally extends to those engaged in hazardous work. (Id. [e.g., firefighters, police, veterinarians, commercial kennel workers, health care worker, etc.].)
The firefighter’s rule is a subset of the doctrine of primary assumption of the risk. (Harry, supra, 34 Cal.App.5th at 759.) Under the firefighter’s rule, a member of the public who negligently starts a fire owes no duty of care to assure that the firefighter who is summoned to combat the fire is not injured thereby. (Id.) Similarly, a person whose conduct precipitates the intervention of a police officer owes no duty of care to the officer with respect to the original negligence that caused the officer’s intervention. (Id.) The firefighter’s rule is applicable where the risk of injury is inherent in the plaintiff’s occupation and the plaintiff is injured by the very hazard he was hired to confront. (Id. at 760-761.)
However, the Supreme Court has “never held that the doctrine of the assumption of the risk relieves all persons of a duty of care to workers engaged in a hazardous occupation.” (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538.)
PNS argues that Plaintiff, an electronic gate repairman, was in the best and only position to take the necessary safety precautions and protective measures to avoid the gate chain running over his fingers while he was repairing the gate. PNS cites to Plaintiff’s deposition wherein Plaintiff testified that he only unplugged the gate but did not turn off the electricity at the motherboard. (PNS Fact 11-12.) Plaintiff testified that he only recently learned what the “log out-tag out” was. (PNS Fact 21.) PNS argues that Plaintiff failed to turn off the electricity while working and thus it was his fault for being injured, such that PNS should not be liable. (MSJ at p.13.) PNS also argues that Plaintiff felt comfortable repairing PNS’s gate, had fixed 10-20 gates prior to PNS’s gate, and repaired gates after the incident. (PNS Fact 14, 18, 19.) Thus, PNS argues that Plaintiff knew the risk of repairing electronic gates when the electricity was on.
However, the Court does not find that the firefighter’s rule applies in this case or that this case fits under the primary assumption of the risk doctrine. While PNS cites to various case law, PNS has not provided any case law with a comparable fact pattern regarding a broken gate or something similar thereto. (See MSJ at pp.12-13; Neighbarger, supra, 8 Cal.4th 532 [safety employees trained in firefighting may sue third-party, not the employer, for injuries caused by the third party’s negligence in starting a fire]; Priebe v. Nelson (2006) 39 Cal.4th 1112 [kennel worker assumed risk of being bitten by dog and was barred from recovery from dog owner].) As such, PNS has failed to identify any public policy reasons compelling the use of the firefighter’s rule in this case. (Harry, supra, 34 Cal.App.5th at 761.) Further, as pointed out by Plaintiff, he has not sued PNS for breaking its own gate (i.e., the original negligence of PNS that caused Plaintiff to be hired to repair the gate).
In addition, although Plaintiff was a gate repairman and may have certain knowledge about repairing gates, it could be said that the property owner PNS too was in the best position to evaluate available safety options and protect against the risks of the electronic gate moving. Plaintiff testified in his deposition that he unplugged the gate from the outlet and did not touch the on and off switch on the motherboard. (Pl.’s Depo. at 81:5-9.) He testified that he did not have an answer as to why he unplugged it versus turning it all the way off but stated that he typically would just unplug the gate. If the gate had a battery backup, he would also disconnect the batteries. (Id. at 81:15-21.) He stated that PNS’s gate did not have a battery backup and thus he just unplugged it. (Id. at 81:21-24.) Plaintiff provides PNS’s PMK deposition testimony, who stated that he did not know if Plaintiff had access to the electrical room door to do the work or if anyone turned off the electricity, and that he wanted to leave the electricity on so he could test the gate. (Matusek Decl., Ex. 4 [Joe Delorenzo and Arica Simpson Depo. at pp.47-48].) Here, there are triable issues of material fact regarding whether Plaintiff was in fact the best person to take necessary safety and protective measure during the repair. Further, the issue of whether PNS acted reasonably in accordance with a duty of care is a jury question under comparative fault principles. (Harry v. Ring the Alarm, LLC
The motion is denied as to Issues 3 and 4.
The elements of a premises liability claim and negligence claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)
PNS argues that Plaintiff cannot establish the elements that it owed Plaintiff a duty of care and that any breach of that duty caused Plaintiff’s damages based on allegations of inadequate lighting and problems with the gate’s electrical wiring. PNS argues that Plaintiff only unplugged the cord at the outlet, did not turn off the power at the motherboard, and had sufficient lighting when repairing the gate. (PNS Fact 10-12.)
Although PNS has shown that Plaintiff admitted that he had adequate lighting when performing the work, PNS has not established that this was the only basis for Plaintiff’s claim for premises liability and negligence against PNS. Further, as discussed above, there are triable issues of material fact regarding whether PNS properly warned or took precautions to turn off the power when Plaintiff was working on the electronic gate.
Next, PNS argues that Plaintiff has no proof that PNS caused his injuries. However, a defendant making a “no evidence” motion must introduce admissible evidence (by declaration or otherwise) that, “discovery was ‘sufficiently comprehensive, and plaintiffs' responses so devoid of facts, as to lead to the inference that plaintiffs could not prove [their case] upon a stringent review of the direct, circumstantial and inferential evidence.’” (Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, 1231 [quoting Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 107].) In addition, a defendant making a “no evidence” motion must also establish that, by the time the case comes up for trial, the plaintiff “cannot reasonably expect to obtain” the evidence necessary to raise a triable issue of fact on the issue. (Schieding v. Dinwiddie Construction Company (1999) 69 Cal.App.4th 64, 83; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855 [noting that a defendant seeking summary judgment “must show that the plaintiff does not possess needed evidence . . . the defendant must also show that the plaintiff cannot reasonably obtain needed evidence . . .”].)
Here, PNS has not supported this argument with any citation to evidence that it propounded discovery on Plaintiff with regard to the negligence causes of action and Plaintiff was unable to provide discovery responses or evidence supporting his allegations. Further, these contentions were not raised with evidence in the separate statement. (CCP §437c(b)(1).) It is PNS’s initial duty in summary judgment/adjudication to show that there is an absence of evidence supporting Plaintiff’s claims or its own evidence showing that no negligence claims exist. Thus, summary judgment or summary adjudication will not be granted on this basis.
The motion is denied as to Issues 5 and 6.
CONCLUSION AND ORDER
PNS’s motion for summary judgment or, in the alternative, for summary adjudication is denied.
PNS shall provide notice of this order.