Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. PC037638, Melvin D. Sandvig, Judge.
Law Office of John J. Perlstein, John J. Perlstein and Megumi Horiuchi for Plaintiffs and Appellants.
Yunker & Schneider, David K. Schneider and Holly Coates Keehn for Defendant and Respondent.
TURNER, P. J.
I. INTRODUCTION
Plaintiffs, Larry and Carla Burcar, appeal from a summary judgment entered in favor of defendant, JPS Surface Solutions, Inc., on a complaint for negligence and consortium loss. In July 2005, Mr. Burcar was a construction superintendent employed by D.R. Horton, Inc., a developer of new homes in Santa Clarita (the developer). The developer employed defendant to install carpet in new homes in the development. Mr. Burcar was injured when two workers allegedly employed by Michael Coons dropped a 12-foot, 1,000 pound carpet from atop a van. The carpet fell on Mr. Burcar. The carpet had been loaded onto the van by defendant’s employees at its Chatsworth office. The trial court granted defendant’s summary judgment motion. The trial court ruled Mr. Coons was an independent contractor who had no relationship to defendant and it incurred no liability for any of its own conduct under any theory of liability asserted by plaintiffs.
We conclude the summary judgment motion should have been denied because there is a triable controversy as to whether Mr. Coons’ was defendant’s employee. And even if Mr. Coons was an independent contractor, there was a triable issue as to whether defendant’s employees affirmatively contributed to Mr. Burcar’s injuries. Thus, we reverse the judgment.
II. THE FACTS
A. The Evidence Mr. Coons Was A Subcontractor
Defendant presented evidence that demonstrated Mr. Coons was a subcontractor. Additionally, defendant asserts Mr. Coons was an employee of Jet Flooring, Inc. Jet Flooring, Inc. and Mr. Coons signed written subcontractor agreements with defendant in 2003. The standardized subcontracting agreements are executed once upon the initial time of contracting and state there is an independent contractor relationship. Both Mr. Coons and Jet Flooring, Inc. were paid directly by defendant. It is cheaper for defendant to use independent contractors because there is no requirement they be paid benefits. Defendant had two “subcontractor” carpet installers working out of its Chatsworth office; Jet Flooring, Inc., whose president is Ron Fuller, and Mr. Coons. There was evidence Mr. Fuller assigned jobs on behalf of defendant to Mr. Coons. Mr. Fuller, a subcontractor of defendant, told Mr. Coons where to install the carpet that injured Mr. Burcar.
Mr. Coons was paid by the job rather than by a salary or at an hourly rate. Defendant paid Mr. Coons directly. Mr. Coons was paid the full amount for each job and no money was withheld to pay federal or state taxes or for Social Security. At the end of the year, Mr. Coons was issued an Internal Revenue Service Form 1099. Mr. Coons received no benefits from defendant. Mr. Coons and his crew decided when to take their breaks.
B. The Evidence Indicating Mr. Coons Was Not Merely An Independent Contractor
At the time of Mr. Burcar’s injury, defendant had a contract with the developer to exclusively provide flooring in the Los Angeles and Ventura County areas. Carpet installation is customarily considered a distinct occupation. Mr. Coons was a licensed carpet installer. Defendant was mainly in the business of installing floor coverings for new home construction and was licensed by the California Contractors’ State License Board. Defendant did not have any “employee” carpet installers working out of its Chatsworth office. At his deposition, Steve Nishi, defendant’s operations vice president, testified: “He’s been a subcontractor since - - as far as I remember. So he’s been on board since I’ve been on board.” Barbra Schneiderman, defendant’s human resources director, was uncertain if Mr. Coons’ work on the job where the accident arose from his subcontract agreement.
Mr. Coons “worked” for defendant exclusively since 1989. Mr. Coons drove to defendant’s office at 6:30 a.m. every day of every year. Mr. Coons met his crew there and he picked up paperwork and carpeting. Since 1989, Mr. Coons had been compensated for carpet installation only by defendant. Mr. Coons would go to defendant’s offices twice daily. Mr. Coons would go to defendant’s offices in the morning and evening. Mr. Coons would go in “every” morning in order to get his assignment for the next day. Once the carpet was installed, Mr. Coons would return to defendant’s offices to drop off trash. Mr. Coons had a basket with his name on it in defendant’s Chatsworth office. Mr. Coons was “paid by the job” or $3.25 per yard of carpet installed. Mr. Coons would provide paperwork indicating he had completed a job at the end of each week. Mr. Coons would be paid at the end of the next week. Mr. Coons was paid $100 if the mileage from defendant’s offices to the jobsite exceeded 100 miles. Mr. Coons received his “paycheck” directly from defendant. At a prior project which had a prevailing wage requirement, Mr. Coons was treated as an employee.
Mr. Coons reported any problems with installation to Mike Bandemer, an employee of defendant. Mr. Bandemer was Mr. Coon’s point of contact if there was a problem on a jobsite. During Mr. Coons’ deposition, the following occurred: “Q Would you have considered [Mr. Bandemer] your supervisor on the date of the accident . . . . [¶] A Yes.” Mr. Coons described the typical problems that would develop at a job site: “Carpet shortage, job not ready. There [are] a different number of different reasons why the house would not be ready. These basic things.” Defendant would send supervisors to review Mr. Coons’ work during and after a job. During the carpet installation where Mr. Burcar was injured, defendant’s supervisors went to the jobsite. Mr. Coons described his supervisors’ typical actions thusly: “Make sure everything is running smoothly, make sure we are doing our jobs, make sure everything is getting done in a timely fashion, everything is neat. We are doing what were supposed to be doing.” Mr. Coons described how his supervisors monitored his conduct: “They could monitor it if we are going slow, come out and said we need to get this job done. We have another job coming up.” Defendant’s supervisors would direct the installers to correct any problems in the installation of any carpet. Among the details provided to Mr. Coons was the amount of glue to use.
In 2003 or 2004, defendant agreed to provide insurance to any installer who requested such be provided. In order to secure insurance coverage, the installer would sign an agreement requesting that a policy be provided. In 2004, Mr. Coons requested that defendant provide him with liability insurance. Payments for the coverage were deducted from the installers’ “paychecks.” While it was doing so, defendant provided the insurance and deducted 4 percent from Mr. Coons’ check. Defendant stopped providing “liability insurance” in 2004 or 2005. Mr. Coons believed defendant was responsible for providing his liability insurance at the time the carpet fell on Mr. Burcar. But defendant began supplying liability insurance to Mr. Coons in August 2005; one month after the accident.
Defendant conducted periodic “carpet installer” meetings. Meetings were held to discuss “anything with OSHA violations” which included the failure to wear hard hats. The parties agreed: “[M]r. Coons was given numerous instructions regarding installation, including what time to arrive, what to wear, where to park his vehicle, not to eat or drink in the houses, how to maintain the job site, what safety precautions to take, where to cut the carpet, how much glue to use, and where to keep the trash accumulated from a job site.” When asked whether he had received “specific instructions” from defendant regarding the manner in which he was to install carpets, Mr. Coons testified, “Yes.” The written instructions were updated regularly every one or two years. The instructions would be placed in a basket which had the subcontractor’s name on it or they would be handed out at an annual meeting at defendant’s Chatsworth office. While working for defendant, Mr. Coons was given a list of 15 different instructions to abide by including: no eating inside the house; no drinks inside the house; hard hats must visible; the “subcontractors” had to be at the jobsite in the morning; the jobsite had to be kept clean; trash or blades could not be left anywhere; and there was to be no parking in a driveway. Further, meetings were held where installers were advised how to use carpet installation tools. The meetings were held yearly at defendant’s place of business. The meetings were “run” by one of defendant’s supervisors.
Pursuant to defendant’s request, on the day of the accident, Mr. Coons and his crew were wearing T-shirts with defendant’s logo. Mr. Fuller said it was mandatory the T-shirts be worn on the jobsites. Mr. Coons believed that if he or his crew failed to wear the T-shirts with defendant’s logo, he would be fined. Mr. Fuller testified if his crews did not wear the T-shirts, he would be fined by defendant. The parties agreed it was highly recommended defendant’s “subcontractors” wear the T-shirts so they could be easily recognized on the jobsite as one its installers and as a “brand name representation . . . .”
There was testimony that “generally” customer complaints about carpets were handled by Mr. Nishi, defendant’s operations vice president. Mr. Nishi testified, “So if your carpet becomes fuzzy afterwards, your tile starts missing grout, we’ll come back and fix it after the fact.” But if the fault rested with a subcontractor, Mr. Nishi testified, “[A] subcontractor would have to remedy his own installation problems.” Mr. Coons testified in the past he was told by defendants’ employees to correct errors 10 times.
C. Evidence Mr. Coons Was Not An Employee Or Subcontractor Of Jet Flooring, Inc.
Mr. Fuller denied that Mr. Coons was an employee or subcontractor of Jet Flooring, Inc. The following occurred at Mr. Fuller’s deposition: “Q You testified that you didn’t consider Michael Coons to be an employee of Jet [F]looring? [¶] Q Yes. [¶] Q Is that correct? [¶] Yes. Q Did you consider him to be a subcontractor of Jet [F]looring? A No. [¶] Q And [who is] Michael Coons working for? A [Defendant].” Mr. Fuller testified why Mr. Coons was never a Jet Flooring, Inc. employee: “He was never a payroll employee I never paid him[;] he never received a check from my company. He received one check because I was paid for a job that was going to go to him[.] I was instructed by [defendant] to pay him back that money. I cut him a check for $1,200 that’s all he ever received from me.” Mr. Bandemer testified that Mr. Coons was “never” paid by Jet Flooring, Inc. but only by defendant. Mr. Fuller had previously worked for defendant. While working for defendant, Mr. Fuller gave Mr. Coons job assignments.
D. Facts Pertinent To the Accident When Mr. Burcar Was Injured
On July 29, 2005, Mr. Coons picked up the carpet at defendant’s offices. This was the practice—the installers would pick up the carpet at defendant’s warehouse. The carpet was loaded onto Mr. Coons’ van by one of defendant’s employees using a forklift. A carpet roll would typically weigh 1,000 pounds. Mr. Bandemer admitted because of its weight, carpet, if handled carelessly, was dangerous. On July 29, 2005, Mr. Burcar was struck with a roll of carpet that was being unloaded from the top of a van by Steve and Bryan Coons. The van was owned by Mr. Coons. At the time the carpet was being unloaded, Mr. Coons was seated in the van or standing next to it. Mr. Coons selected and paid Steve and Bryan to work at the location.
For purposes of clarity and not out of any disrespect, Steve and Bryan Coons will be referred to by their first names.
The accident occurred as Steve and Bryan tried to unload the carpet into the driveway. Mr. Coons had been sweeping the driveway with Mr. Burcar heading toward the garage door. Another supervisor came and took Mr. Coons’ broom. Mr. Coons then went to move the van to center it so that the carpet could fall onto an apron. Mr. Coons testified: “I got out of the van and I shut the door and I walked towards the house and at that point they yelled we are going to drop [the] carpeting. . . . This carpet wasn’t perfectly round, it was flat. It wasn’t rolled tightly and it was a little bit more difficult for them to roll the carpeting off and subsequently that took a little longer. The van was shaking side to side as they were . . . trying to push the carpeting off of it . . . .” Mr. Burcar and another supervisor were sweeping towards the top of the driveway next to the garage door. Mr. Coons testified: “Normally it is air tight and real easy to roll them off. This first one was flat, required more effort and therefore, more time and therefore the van was rocking and there was more effort to try to get the pieces because it was like this.” According to Mr. Coons: “It wasn’t flat it was just flatter than normal. It was a flat spot. It wasn’t tight, therefore, when you lay it down it was like a blob.” It was not feasible to ask defendant’s warehouse employees to reroll the carpet before securing it to the top of the van.
E. The Order Granting Summary Judgment
The trial court granted the summary judgment motion and ruled in part: “And the opposition essentially ignores the significance of the fact that the actual tortfeasors in the case were Steve [Coons] and Bryan Coons. Responding party does not dispute that [they] were not hired by the moving party. There’s no evidence of any relationship between Steve [Coons] and Bryan Coons, the actual tortfeasors. [¶] And, actually, regardless of who hired [Michael] Coons, the evidence indicates that he was independent contractor . . . . The evidence indicates the moving party didn’t exercise any necessary control over [Michael] Coons to establish an employer, employee relationship . . . . [¶] And responding party admits that [Michael] Coons was a business unto himself, an independent contract[or]. And other factors all indicate the same thing. Responding party’s attempt to create a triable question of material fact based on the direct payment to [Michael] Coon[s], a moving party itself being a carpet installer, and the T-shirts wasn’t sufficient. [¶] The argument regarding the agency the Court found was without merit. And the responding party’s argument that moving party can be held liable for its own negligence even if [Michael] Coons is an independent contractor was without merit. And the argument that the installation is an inherently dangerous activity or is a nondelegable duty was also without merit.” After ruling on a number of evidentiary rulings, the trial court granted defendant’s summary judgment motion. This timely appeal followed.
III. DISCUSSION
A. Standard of Review
In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, the Supreme Court described a party’s burdens on summary judgment or adjudication motions as follows: “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court’s action in his favor bears the burden of persuasion thereon. [Citation.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. . . . [¶] [T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]” (Fns. omitted, see Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.) We review the trial court's decision to grant the summary judgment motion de novo. (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 67-68; Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188, disapproved on another point in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn. 19.) The trial court’s stated reasons for granting summary judgment are not binding on us because we review its ruling not its rationale. (Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1196; Dictor v. David & Simon, Inc. (2003) 106 Cal.App.4th 238, 245.) In addition, a summary judgment motion is directed to the issues framed by the pleadings. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673, superseded by statute on a different point as stated in Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767-768.) Those are the only issues a motion for summary judgment must address. (Ibid.; Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 364.)
B. The Respondeat Superior Doctrine
Plaintiff asserts there is a triable issue as to whether defendant was vicariously liable for the acts of Steve and Bryan. Under the respondeat superior doctrine, an employer is vicariously liable for the torts committed by an employee which are committed within the scope of employment. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296; Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1003.) Defendant argues it had no employment or other relationship with Steve and Bryan who were employed by a subcontractor, Mr. Coons, of another subcontractor, Jet Flooring, Inc. We agree that defendant presented evidence Mr. Coons was a subcontractor. Further there was evidence Mr. Coons was a subcontractor or employee of J & S Flooring. Thus, the burden of production shifted to plaintiffs on these issues. (Code Civ. Proc., § 437c, subd. (p)(1); Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 490.)
We agree with plaintiffs they present specific evidence on the employment issue to create a triable controversy. First, there is no merit to defendant’s argument the evidence established as a matter of law that Mr. Coons was merely the subcontractor of Jet Flooring, Inc. Mr. Ishi testified that Mr. Coons was a subcontractor of defendant for a number of years. Mr. Fuller explicitly denied Mr. Coons was an employee or subcontractor of Jet Flooring, Inc. Mr. Bandemer testified only defendant paid Mr. Coons--not Jet Flooring, Inc.
Second, there is a triable issue as to whether Mr. Coons was an employee of defendant such that it is potentially liable to plaintiffs. The issue of whether a person is an employee or an independent contractor is ordinarily a factual one unless from all the evidence there is only one inference to be drawn in which case the question is legal. (Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425, 431; Brose v. Union-Tribune Publishing Co. (1986) 183 Cal.App.3d 1079, 1081.) In White v. Uniroyal, Inc. (1984) 155 Cal.App.3d 1, 24-25 (overruled on a different point in Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574), an independent contractor was defined as follows: “An ‘independent contractor’ is generally defined as a person who is employed by another to perform work; who pursues an ‘independent employment or occupation’ in performing it; and who follows the employer’s ‘desires only as to the results of the work, and not as to the means whereby it is to be accomplished.’ [Citations.] The most significant factor in determining the existence of an employer-independent contractor relationship is the right to control the manner and means by which the work is to be performed. [Citations.] ‘If control may be exercised only as to the result of the work and not the means by which it is accomplished, an independent contractor relationship is established.’ [Citations.]” (Accord Millsap v. Federal Express Corp., supra, 227 Cal.App.3d at p. 431; Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 873-874.)
There is a triable controversy as to whether Mr. Coons was an employee or independent contractor. Mr. Coons testified that he went to defendant’s Chatsworth office every day of every year for carpet installation work during an 18-year period. Mr. Coons worked almost exclusively for defendant during the entire 18-year period. Mr. Ishi testified that Mr. Coons was one of two subcontractors who worked for defendant out of the Chatsworth office. Defendant also paid Mr. Coons to install carpets at the development. Defendant paid $100 to Mr. Coons if the installation job was 100 miles from the Chatsworth office. Defendant purchased, supplied, and loaded the carpet onto the van. There was evidence that at some points between 2002 and 2004, defendant provided liability insurance to Mr. Coons. Mr. Coons believed that during the project where Mr. Burcar was injured, defendant provided him with liability insurance. On at least one project funded by a public entity, Mr. Coons was listed as an employee for workers’ compensation purposes. There was evidence that defendant: gave installation instructions; held periodic meetings; instructed Mr. Coons to wear hard hats; required Mr. Coons and his crew to wear T-shirts that identified them as defendant’s workers; and threatened to fine Mr. Coons for not wearing the T-shirts. Mr. Coons considered Mr. Bandemer to be a supervisor. There was evidence defendant had supervisors that would appear on the job site to inspect the work. Mr. Coons’ supervisors also on occasion told him: how much glue to use; about shearing seams; and the distance in laying the carpet. No doubt, a factfinder could ultimately determine that Mr. Coons was an independent contractor. But there is also evidence defendant exercised sufficient control over Mr. Coons to establish an employee relationship. (Air Carriers Internat. v. Employment Development Dept. (2007) 150 Cal.App.4th 923, 937; Wilson v. County of San Diego (2001) 91 Cal.App.4th 974, 983-984.)
C. Affirmatively Contributing To The Accident
Even if Mr. Coons was an independent contractor, the summary judgment motion should have been denied. The general rule is that the hirer of an independent contractor is not liable to third parties for the contractor’s negligence. But that general rule is subject to a number of exceptions. (Millsap v. Federal Express Corp., supra, 227 Cal.App.3d at p. 430; Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 365; see also Rest.2d Torts, §409, p. 370.) One such exception is when the hirer of an independent contractor retains control over some or all of the work to be performed. (See McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 225; Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 211-212.)
In Hooker v. Department of Transportation, supra, 27 Cal.4th at pages 211-212, our Supreme Court explained that the retained control exception is limited to cases where “the hirer’s conduct has affirmatively contributed” to the plaintiff’s injuries. (See Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1348.) The “affirmatively contributed” to the plaintiff’s injuries requirement is established by showing that the hirer of the independent contractor directed the contracted work be done by use of a certain mode or otherwise interfered with the means by which the job was to be accomplished. (Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 215; Tilly v. CZ Master Assn. (2005) 131 Cal.App.4th 464, 485.) In Hooker, the Supreme Court relied on section 414 of the Restatement Second of Torts, which provides, “One who entrusts work to an independent contractor, but who retains control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” (Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 201; see Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 669-670.)
In McKown v. Wal-Mart Stores, Inc., supra, 27 Cal.4th at page 223, an independent contractor was hired to install sound systems in the ceiling of the defendant’s store. The independent contractor installed the systems using platforms attached to the defendant’s forklifts. The plaintiff was an employee of the independent contractor. The plaintiff was injured when the platform came loose from the forklift. This caused the independent contractor’s employee, the plaintiff, to fall 12 to 15 feet along with the platform to the floor. The Supreme Court affirmed the jury verdict in favor of the plaintiff and held, “[W]hen a hirer of an independent contactor, by negligently furnishing unsafe equipment to the contractor, affirmatively contributes to the injury of [a plaintiff] . . ., the hirer should be liable to the employee for the consequences of the hirer’s own negligence.” (Id. at p. 225; see Evard v. Southern California Edison (2007) 153 Cal.App.4th 137, 145.)
In the case at bench, there is evidence defendant retained control over aspects of the work and the negligent loading of the carpet contributed to the accident. Plaintiffs presented evidence that showed defendant controlled certain aspects of the job including supplying and loading the carpet onto Mr. Coons’ van. Mr. Coons testified that the van was loaded in defendant’s warehouse. According to Mr. Coons, the carpet that injured Mr. Burcar was flat and not properly rolled. The carpet was 12 feet long and weighed about 1,000 pounds. It is undisputed that the carpet was placed on the van and driven to the work site to be unloaded. Mr. Coons testified that a flatly rolled carpet would make it difficult to unload. A jury could find that defendant affirmatively contributed to plaintiffs’ injuries by supplying and negligently loading a 12 foot, 1,000 pound flat carpet on top of the van. Accordingly, the issue is one requiring an apportionment of liability between various potentially liable tortfeasors and should not have been summarily resolved.
IV. DISPOSITION
The judgment is reversed. Plaintiffs, Larry and Carla Burcar, are awarded their costs on appeal from defendant, JPS Surface Solutions, Inc.
We concur: ARMSTRONG, J., MOSK, J.