Opinion
A125621
01-10-2012
JOSEPH ROYSE, Plaintiff and Appellant, v. ESTHER PHELPS, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Humboldt County Super. Ct. No. DR050078)
Joseph Royse appeals from a judgment entered in favor of defendant Esther Phelps (Phelps) following the court's order granting Phelps's motion for nonsuit. He also raises issues concerning several of the trial court's pretrial rulings. We affirm the trial court's rulings denying Royse's motion for relief from default under Code of Civil Proceduresection 473, subdivision (b) and his motion to amend the complaint to add Lost Coast Ranch as a defendant but otherwise reverse the judgment.
All further statutory references are to the Code of Civil Procedure.
I. FACTUAL BACKGROUND
A. Our Opinion in Royse v. Lexington Ins. Co.
The underlying facts of this personal injury action were set forth in Royse v. Lexington Ins. Co. (Nov. 26, 2008, A117798, A117875) [nonpub. opn.] (Royse I).) Royse suffered severe injuries on property known as the Lost Coast Ranch in Ferndale. In that opinion, we concluded that "Royse was employed at the ranch, [and] that the ranch was insured under a homeowners insurance policy issued by Lexington that contained workers' compensation coverage for residence employees . . . ." (Ibid.) We also concluded that Royse was a special employee of the ranch at the time of the accident and that Royse "was, thus, 'generally limited to a statutory workers' compensation remedy for injuries he receive[d] in the course of his employment with the special employer . . . .' [Citation]." (Id. at pp. 5-6.)
From the limited record before us at that time, we had inferred that the ranch was owned by Jonathan and Esther Phelps (the Phelpses) at the time they purchased the policy on the property. Having reviewed the record in its entirety in this and the subsequent three appeals, it appears this is not the case. Further, given the procedural posture of the first appeal and the limited question before us in Royse I, our statement that Royse was generally limited to a workers' compensation remedy was premature. There remained for adjudication the actual identity of Royse's employer, as well as the negligence, premises liability, and product liability causes of action. Therefore, we could not have concluded—and should not have stated—that Royse was limited to workers' compensation under a homeowners policy insuring property purportedly owned by the Phelpses.
Today, we also decide Royse v. DC3-E, LLLP et al. (A125620, Royse III) and Royse v. Heartworks Studio (A126132, Royse V). Our decision in Royse v. PG& E et al. (A125829) is pending.
The premature statement did not, however, prevent any of the other claims from going forward; all were separately adjudicated either in pretrial motions or at trial— including separate determinations that Heartworks was not Royse's employer and that Phelps was.
In Royse I, we were not asked to decide, and did not decide who was Royse's employer. Indeed, we expressly held open the question of whether Royse's employer was Phelps, or Heartworks, or both. (Royse I, supra, A117798, A117875 at p. 6, fn. 5.) Nevertheless, our opinion was repeatedly characterized by defendants as having made a definitive ruling that Royse was Phelps's personal employee, a ruling we did not make. In fact, at one point defendant Heartworks asserted that both the trial court and this court had made "legal findings" that all persons working at the ranch were Phelps's personal employees. Of course, no such findings have been made.
B. The Issues Before Us In This Appeal
This appeal concerns the fourth cause of action for fraud and the seventh cause of action for negligence in Royse's fourth amended complaint for damages. As to the fourth cause of action, the Phelpses joined in the summary judgment motion filed by Lexington Insurance Company (Lexington). The court granted summary adjudication in favor of the Phelpses on the fourth cause of action finding that Royse had not shown that the Phelpses conspired to fraudulently claim that he was a resident employee of the Phelpses at the time of the accident and had not demonstrated that the Phelpses acted with malice and intent to damage Royse. Royse later moved for relief from judgment pursuant to Code of Civil Procedure section 473, subdivision (b), on the ground that the judgment entered in favor of the Phelpses was the result of fraud perpetrated by them. The court denied the motion, finding that Royse failed to adduce any evidence that contradicted the court's prior conclusions that he was a personal employee of Phelps.
As to the negligence claim, the court denied Phelps's motion for summary judgment, finding that Royse had "alleged sufficient personal participation by Esther Phelps, in the alleged tortious conduct, to raise a triable issue of material fact. [¶] There is sufficient competent evidence establishing Esther Phelps as the sole member of Heartworks, thus raising the degree of participation in the alleged harm . . . ." Upon a motion for reconsideration, the court clarified that Phelps could not be held personally liable although she could be found liable as a director of Heartworks, sued in a representative capacity.
After trial commenced, Phelps moved for nonsuit on the remaining claim against her—whether she was liable in her capacity as the officer and director of Heartworks on a theory of premises liability. Royse argued that Phelps, in her capacity as a director of Heartworks was negligent and breached her duty to him. He also argued that Phelps's negligent conduct arose in her capacity as a director of Heartworks and not out of any employer/employee relationship with Phelps. Phelps argued that worker's compensation was Royse's exclusive remedy for recovery against her and that she could not be sued as an employer and under a theory of premises liability in her capacity as the director of Heartworks. The court granted the motion, ruling that Phelps "could not have liability as a director of Heartworks, which would not be covered under the exclusivity rule related to her capacity as Plaintiff's employer . . . ."
II. DISCUSSION
Phelps insists that all of the evidence establishes, and that our prior opinions in Royse I and Royse v. Jonathan Phelps (Apr. 15, 2009, A121487) [nonpub. opn.] (Royse II) concluded that she, personally, was Royse's employer. Indeed, Phelps and the other defendants ultimately convinced the trial court that this was so. But as we have explained, in our prior opinion, we concluded only that Royse was employed at the ranch, and we left open the issue of whether he was employed by Phelps, or Heartworks, or both. Now that we have a comprehensive record before us, we conclude there is more than ample evidence in the record to support a finding that Royse was employed by Heartworks, or by both Phelps and Heartworks as dual employers, as has been discussed in detail in our opinion in Royse v. Heartworks (Royse V, [nonpub. opn.] A126132).
The trial court's ruling on the nonsuit was premised on the assumption that Phelps was Royse's employer and thus that any liability was covered under the worker's compensation exclusivity rule. This was error. The issue of whether Phelps was separately liable if Heartworks was the employer was never addressed. Because the court proceeded on the theory that Phelps was Royse's only employer, evidence that may have implicated Phelps in her capacity as the sole member of Heartworks was excluded from Royse's case at trial. Consequently, it is impossible for us to determine whether Phelps may be liable independent from the Lexington policy. As Royse points out, his case was highly prejudiced by the court's in limine rulings, particularly its ruling on Phelps's in limine motions. In two rulings, the court excluded all evidence of Phelps's personal liability under the seventh cause of action, which alleged that Heartworks was negligent in maintaining a hazardous condition on the property, and excluded any evidence regarding the failure of Heartworks to carry workers' compensation insurance. These rulings precluded Royse from offering documentary evidence and testimony in support of his theory that Phelps was negligent in her capacity as the sole member of Heartworks. Inasmuch as Royse was precluded from showing that Heartworks was his employer, based on the court's erroneous assumption that we had already decided that Royse was Phelps's personal employee, we reverse the court's grant of nonsuit on the seventh cause of action for negligence and negligence per se and remand the matter to the trial court for further proceedings on these issues.
For example, Royse never had an opportunity to present evidence that Phelps may have known about, and failed to disclose, the dangerous condition presented by the power lines.
Royse also raises concerns regarding the court's ruling on his motion for relief from judgment under section 473. In our opinion in Royse III, also filed today, we addressed this issue. There, we concluded that, consistent with Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1562-1563, the trial court could not take judicial notice of the truth of facts contained in documents filed in other court records or files. (Royse III, supra, A125620, at pp. 3-4.) Thus, the trial court properly denied the section 473 motion. The court's ruling, however, does not preclude Royse from utilizing that evidence at trial assuming that the documents can be properly authenticated. The documents do appear to be relevant on the issue of Royse's employer and the true nature of the relationship between Heartworks and the Phelpses' enterprise, DC3-E.
Finally, Royse asserts that the trial court abused its discretion in denying his motion to amend his fourth amended complaint to add Lost Coast Ranch, an unincorporated association, in place of a Doe defendant. His theory to add Lost Coast Ranch as a defendant rests on his allegation that the Lost Coast Ranch employed him at the time of the accident. It appears that this theory was advanced only because of the trial court's error in granting Heartworks's motion for summary judgment, a ruling we have reversed. (Royse V, supra, A126132 at p.11.) In any event, the evidence indicates that, at all relevant times, the Lost Coast Ranch was owned by Heartworks. The name, Lost Coast Ranch, appears to be simply the name by which the previous owners of the property referred to it and it was the name by which the property was locally known. On the record before us, there is no basis for allowing the amendment to the complaint to add Lost Coast Ranch as a defendant.
Royse has failed to provide an adequate record to review the issue. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 628, pp. 704-706 [appellant must affirmatively show error by an adequate record].) Royse has included only his memorandum of points and authorities in support of his motion to file an amendment to the fourth amended complaint, but has not included the opposition memoranda nor has he included the trial court's order denying the motion. While it would be within this court's discretion to dismiss the appeal or to treat the issue as waived, we believe we have located the relevant documents to decide the issue on its merits and therefore opt to do so. (See Wershba v. Apple Computer Inc. (2001) 91 Cal.App.4th 224, 237.)
--------
III. DISPOSITION
We reverse the court's ruling granting a nonsuit in favor of Phelps on the seventh cause of action in the fourth amended complaint. In all other respects, the judgment is affirmed. Royse shall recover his costs on appeal.
RIVERA, J. We concur: REARDON, Acting P.J. SEPULVEDA, J.