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Tentative Ruling
Judge James F. Rigali
Department 2 SM-Cook
312-C East Cook Street P.O. Box 5369 Santa Maria, CA 93456-5369


Contreras v. Premier Scaffold, Inc.

Case No: 17CV00262
Hearing Date: Tue Mar 13, 2018 8:30

Nature of Proceedings: Motion for Summary Judgment and/or Adjudication of Issues

     These cases arise from a traffic collision on January 18, 2016. Decedent Simon Ruiz was driving a Ford Ranger truck on Highway 154 in Santa Barbara County near Zaca Road Station.  His truck collided with a 2015 Ford F750 shuttle van driven by Jose Padilla and owned by the
Chumash Casino Resort. Ruiz was killed. Padilla was injured along with his passenger, Marie Contreras.

     Defendant Ameri-Force Craft Services, Inc. (“Ameri-Force”) moves for summary judgment and/or summary adjudication of issues as to each cause of action.

     Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit. (Code Civ. Proc., § 437c, subd. (a).) The motion for summary judgment shall be granted 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 a judgment as a matter of law.  (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment can show that the action has no merit either by negating elements of plaintiff’s cause of action or establishing an affirmative defense. (Code Civ. Proc., § 437c, subd. (c).)

1st (Negligence) and 2nd (Negligence Per Se) Causes of Action

     Defendant Ameri-Force Craft Services, Inc. (“Ameri-Force”) moves for summary judgment and/or summary adjudication of issues as to the first and section causes of action on the basis that plaintiff cannot show that defendant Ameri-Force Craft Services, Inc. is liable for Simon Ruiz’s conduct.

     Plaintiff must show the tortfeasor was actually employed by defendant, or that he or she was an agent at the time of the wrongful act or omission. (See Asplund v. Selected Investments in Fin'l Equities, Inc. (2000) 86 Cal.App.4th 26, 45-49.) Under the doctrine of "respondeat superior,” an employer may be liable for an employee's tortious acts committed within the scope of the employment. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967.)

     When an employer lends an employee to another employer and relinquishes to a borrowing employer all right of control over the employee’s activities, a “special employment” relationship arises between the borrowing employer and the employee.  During this period of transferred control, the special employer becomes solely liable under the doctrine of respondeat superior for the employee’s job-related torts. (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492; Societa per Azioni de Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 455-
456; Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1520.)

     A special employment relationship is used to determine whether the lending employer or the borrowing employer is responsible for the worker’s tortious conduct under respondeat superior.  It may also be used if the claim is for injury to the worker and the borrowing employer
wants to claim the worker as its own in order to take advantage of the exclusive remedy bar or worker’s compensation. (CACI 3706—Directions for Use.)

     “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....” ‘ [Citation.]” The decision, therefore, 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.” (Riley v. Southwest Marine, Inc. (1988) 203 Cal.App.3d 1242, 1250.)

     “Facts demonstrating the existence of a special employment relationship do not necessarily preclude a finding that a particular employee also remained under the partial control of the original employer. Where general and special employers share control of an employee’s work, a ‘dual employment’ arises, and the general employer remains concurrently and simultaneously, jointly and severally liable for the employee’s torts.” (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 494–495, internal citations omitted.) “Whether there is control may indeed be a question of fact, but if it exists, then the special  employment] relationship normally follows as a matter of law.” (Santa Cruz Poultry v. Sup. Ct. (1987) 194 Cal.App.3d 575, 578.)

     Special employment is most often resolved on the basis of reasonable inferences to be drawn from the circumstances shown. Where the evidence, though not in conflict, permits conflicting inferences, the existence of the special relationship barring the injured employee’s action at law is generally a question reserved for the trier of fact. (Marsh, at 493.)  If neither the facts nor inferences are in conflict, however, the question is one of law that may be decided on summary judgment. (Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848, 857; Johnson v. Berkofsky-Barret Productions, Inc. (1989) 211 Cal.App.3d 1067, 1071 [“Where the facts of employment are not disputed, the existence of a covered relationship is a question of law”].)

     The undisputed facts of employment are as follows (copied from Separate Statementwith punctuation and capitalization retained from original):

 In January of 2014, PREMIER SCAFFOLD, INC. ("PREMIER") entered into an agreement with AMERI-FORCE CRAFT SERVICES, INC. ("AMERIFORCE") for the provision of temporary workers to assist PREMIER in its business.

 In the agreement, Premier “acknowledge[d] responsibility for supervision of all Ameri-Force Craft Services, Inc. employees during their assignment.”

 In November of 2014, AMERI-FORCE provided Simon Ruiz to work for PREMIER pursuant to The Agreement.

 PREMIER understood itself to be the special employer of Mr. Ruiz from November 2014 until the time of his death.

 As part of his employment, PREMIER assigned Mr. Ruiz to travel to and monitor work at various PREMIER job sites.

 The work performed by Mr. Ruiz for PREMIER was part of PREMIER'S regular business.

 PREMIER provided the specific schedules and instructions for each job it assigned to Mr. Ruiz.

 Premier provided Mr. Ruiz with all the tools necessary to complete his assignments with Premier.

 PREMIER provided Mr. Ruiz with a vehicle owned by PREMIER for use on his work assignments ("The Vehicle").

 PREMIER allowed Mr. Ruiz to operate The Vehicle without first obtaining written consent from AMERI-FORCE.

 On January 18, 2016, Mr. Ruiz was involved in a motor vehicle accident. ("The Accident").

 At the time of The Accident, Mr. Ruiz was driving The Vehicle.

 PREMIER had not obtained written consent from AMERI—FORCE for Mr. Ruiz to operate a motor vehicle at the time of The Accident.

 The Accident involved a collision between The Vehicle and a bus.

 Mr. Ruiz had worked for PREMIER on assignment from AMERI-FORCE continuously from November 2014 until his death.

 MARIE CONTRERAS ("Plaintiff”) was a passenger on the bus involved in The Accident.

     Plaintiff Marie Contreras submitted as fact the proposition that Ameri-Force did not relinquish total control over Mr. Ruiz.  This was based on a response to a request for admission as follows:


            Admit that Ameri-Force Craft services, Inc. relinquished total control of Simon Ruiz to YOU for the time he worked for YOU.



     This is a legal conclusion.  No other facts were supplied as to the nature of the control retained. In contrast, Ameri-Force submitted undisputed facts that demonstrate that Premier, not Ameri-Force, assigned work to Mr. Ruiz, instructed Mr. Ruiz for each job, and provided Mr. Ruiz with the tools necessary to complete the assignment. Plaintiff’s bare denial is insufficient to raise an issue of material fact in the face of this evidence.

     Plaintiff Marie Contreras submits the following additional facts:

 On the date of the subject motor vehicle collision, Mr. Ruiz was an employee of AMERIFORCE.

 In connection with PREMIER’s employment of Mr. Ruiz’, AMERI-FORCE paid wages to Mr. Ruiz. PREMIER did not pay wages to Mr. Ruiz.

     Plaintiff Marie Contreras has cited no case in which the payment of wages was a decisive factor. In fact, the mere payment of wages is not determinative. (Kowalski v. Shell Co., supra, at 177; see Wedeck, supra, at 861, fn. 8.)

     Instead, the right to control the details of the alleged special employee's work has been identified by the Cal. Supreme Court as “the primary factor in determining any employment relationship, including special employment.” (State ex rel. Dept. of California Highway Patrol v.
Superior Court (2015) 60 Cal.4th 1002, 1012.) The undisputed facts demonstrate that Premier, not Ameri-Force had a right to control and direct the manner in which Mr. Ruiz’s work was performed.

     Other factors support the conclusion Premier was plaintiff's special employer, including that Premier furnished him a vehicle. Mr. Ruiz worked for Premier Scaffolding Inc. since November 2014, a considerable period of time. (Caso v. Nimrod Productions (2008) 163
Cal.App.4th 881, 890 (special employment relationship found to exist for employee who was employed for a month and for two others employed for only a few days.) The remaining factors - whether the general employer terminates its relationship with the employee once placed, the
borrowing employer's ability fire the employee, and whether the borrowing employer pays wages directly to the employee - are not determinative in this case. Motion for summary adjudication is
granted for the first two causes of action.

3rd (Negligent Hiring, Supervision and Retention)

     “California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee ... Liability is based upon the facts that the employer knew or should have known that hiring the employee created a
particular risk or hazard and that particular harm materializes." (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) "[A]n employer's duty, as defined by California authority and the Restatement, is breached only when the employer knows, or should know, facts which would warn a reasonable person that the employee presents an undue risk of harm to third persons in light of the particular work to be performed." (Federico v. Superior Court (Jenry G.) (1997) 59
Cal.App.4th 1207, 1214.)

     Ameri-Force argues that the same undisputed facts identified above apply to this cause of action. In particular, Ameri-Force relies on the following undisputed facts:

 The Agreement states: "Ameri-Force Craft Services, Inc. employees shall not be entrusted with ... or authorized to operate machinery or motor vehicles without prior written consent from Ameri-Force Craft Services, Inc., in each instance. It is understood that Ameri-Force Craft Services, Inc. employees are not insured for damage caused
during the operation of customer owned or leased vehicles or equipment, and customer accepts responsibility for claims resulting from the operation of such machinery. The undersigned acknowledges responsibility for supervision of all Ameri-Force Craft Services, Inc. employees during their assignment."

 PREMIER provided Mr. Ruiz with a vehicle owned by PREMIER for use on his work assignments ("The Vehicle"). PREMIER allowed Mr. Ruiz to operate [the vehicle provided by Premier] without first obtaining written consent from AMERl-FORCE.

 At the time of The Accident, Mr. Ruiz was driving The Vehicle.

     Distilled to its essence, Ameri-Force appears to argue that plaintiff Marie Contreras cannot establish that it is directly liable for negligent hiring, supervision, and retention because the activity in which Mr. Ruiz was engaged at the time of the accident (e.g., driving a vehicle) was
expressly outside the employment agreement between Premier and Ameri-Force. Put another way, plaintiff has no facts to support a finding that Ameri-Force knew or should have known that Mr. Ruiz was driving a vehicle in violation of the agreement between Ameri-Force and Premier.

     None of the facts presented by plaintiff Marie Contreras suggest that Ameri-Force knew or had reason to suspect that Mr. Ruiz was engaged in this on-the-job conduct. (See Federico v. Superior Court (Jenry G.) (1997) 59 Cal.App.4th 1207, 1216 (hairstyling college not liable for
employee's molestation of juvenile son of student, where it had no knowledge or notice of inappropriate behavior at work).) This argument effectively negates an element of the cause of action. (See CACI 426; Code Civ. Proc., § 437c, subd. (c).).) As none of plaintiff’s facts create a
triable issue, motion for summary adjudication of this cause of action is also granted.

     The parties are ordered to appear at the hearing.

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