Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. No. 626043 Roger M. Beauchesne, Judge.
Law Offices of Fernando F. Chavez, Anthony J. Palik for Plaintiffs and Appellants.
Hoppe Law Group, Theodore W. Hoppe and Barbara J. Rueger; Horvitz & Levy, Daniel J. Gonzalez for Defendant and Respondent.
OPINION
Detjen, J.
This is an appeal from summary judgment granted against plaintiff and appellant Santos Calvario-Nava and in favor of defendant and respondent Jeff Arambel. The trial court concluded defendant was plaintiff’s coemployer and that plaintiff’s exclusive remedy for his injuries was pursuant to the workers’ compensation system. We reverse the judgment.
The general practice is to designate a minor plaintiff as “X, by his guardian ad litem, Y.” (See Code Civ. Proc., § 372, subd. (a).) In the present case, plaintiff’s counsel has captioned the complaint and the appeal in the converse form, “Y, as guardian of X.” Thus, both the complaint and the appeal are captioned, “Melquiades Calvario-DeLaCruz, as the father and legal guardian of Santos Calvario-Nava.” Not only is it appropriate that actions be prosecuted in the name of the real party in interest (Code Civ. Proc., § 367) but, in addition, it appears that Santos Calvario-Nava is now an adult-he is alleged to have been 16 at the time of the accident in July 2007. Accordingly, we have changed the caption of this case to designate Santos Calvario-Nava as plaintiff and appellant.
Burden of Proof and Standard of Review
A “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....” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) Defendants moving for summary judgment satisfy their initial burden either by producing evidence of a complete defense or by showing the plaintiff’s inability to establish a required element of the case. (Id. at p. 853.) Once the moving defendant makes the necessary initial showing, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (See id. at p. 850.) If the plaintiff opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.)
A trial court called upon to rule on a motion for summary judgment “must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom ([Code Civ. Proc., ] § 437c, subd. (c)), and must view such evidence [citations] and such inferences [citations] in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) We review the grant or denial of summary judgment de novo: “Because plaintiff has appealed from the trial court’s grant of summary judgment against him, we must ‘independently examine the record in order to determine whether triable issues of fact exist to reinstate the action.’ [Citations] ‘In performing our de novo review, we view the evidence in the light most favorable to plaintiff[]’ [citation], and we ‘liberally construe’ plaintiff’s evidence and ‘strictly scrutinize’ that of defendant ‘in order to resolve any evidentiary doubts or ambiguities in [plaintiff’s] favor’ [citation].” (O'Riordan v. Federal Kemper Life Assurance Co. (2005) 36 Cal.4th 281, 284.)
Facts and Procedural History
This case turns upon the specifics of the business relationship between a landowner, his independent contractor, and an employee of the independent contractor. Accordingly, it is necessary to set forth many details of that relationship which are viewed most favorably to the plaintiff as the party opposing summary judgment.
Defendant grows almonds, apricots, and peaches for the commercial market. He hires a supervisor and workers who maintain mechanical and irrigation systems. Defendant provides workers’ compensation coverage for his employees. Defendant does not hire workers to pick and sort his fruit; such work is done through licensed and insured labor contractors. If job seekers come to his farm, defendant refers them to a licensed, insured labor contractor.
Emilio Ponce Juaregui (hereafter, Ponce) was a licensed, insured farm-labor contractor operating under the name Ponce Farm Labor. Plaintiff was among a crew hired by Ponce to pick peaches at defendant’s farm. Sometimes Ponce had forepersons for his crews and sometimes Ponce himself served as the crew leader. On the day plaintiff was injured, Ponce was the crew leader.
Ponce was paid by defendant based on the volume of fruit picked. This had several implications. First, defendant and his managers specified the size and color of the fruit to be picked, since small, unripe, or overripe fruit was not marketable. Second, defendant and his managers sought to insure the contract laborers picked all of the good fruit on each tree and that there was no good fruit left on the ground after a tree was picked, since wasted fruit lowered the productivity of the particular orchard. Third, defendant and his managers relied on the labor contractors to provide crews that could and would pick an orchard in the manner defendant wanted and, if a crew was not acceptable, defendant would “fire” the crew, that is, would tell the contractor the crew was not to return to work on the farm. Fourth, when fruit was left on the ground or in a tree, defendant’s manager would tell whichever crew member was nearby to fix the problem, without any attempt to determine which picker had actually left the fruit on the ground or on the tree in the first instance.
Defendant provided each crew with two tractors, two field trailers, ladders, and bins for the picked fruit. These items were assigned to the crew; if a tractor broke down, defendant’s mechanic went out to the orchard to fix it; when the crew finished an orchard, the crew loaded the ladders on one of the trailers and moved to the next orchard that had been assigned by defendant’s managers. Because Ponce was relatively new to the labor-contracting business and did not have all of the necessary supplies, defendant also loaned him picking buckets for his crew members. Defendant established starting time, break times, and lunch time for the crews. Defendant designated the orchard to be picked on a given day.
Defendant negotiated a contract price for picked fruit directly with labor contractors such as Ponce, although if crew members happened to be standing around, they could and did interject their thoughts into such negotiations. In addition to the fruit pickers, defendant required each crew to have two “sorters” who processed the picked fruit. Defendant paid Ponce an hourly rate for the sorters. Defendant did not know how Ponce paid the pickers and the sorters, but defendant did not pay them directly.
Ponce paid the pickers equal shares of the day’s proceeds. He adjusted the share of any worker who was gone for part of the day or who left early.
July 19, 2007, was the second day plaintiff had worked for Ponce. Plaintiff was 16 years of age. Around 10:00 a.m., the crew finished picking a block of peach trees. Defendant’s manager told Ponce to have his workers load their ladders on the trailer and move to a new block of trees about 100 yards away. At some point, defendant’s manager left the area. After the workers had loaded the ladders, Ponce got ready to pull the trailer to the new orchard using one of the tractors assigned to his crew. Someone in the crew asked Ponce if they could ride to the new orchard on the trailer, which was not equipped for the transport of human beings; Ponce said yes.
The complaint alleges that defendant’s manager “directed [Ponce] to transport his employees on the trailer knowing that the trailer was not equipped with the proper restraints, handholds, and other safety equipment necessary for the safe transport of persons ….” No evidence in the present, limited record supports that allegation. In the limited deposition excerpts included with the summary judgment materials, Ponce stated he permitted, but did not require, the workers to ride on the trailer. At this point in the case, we have no way of knowing what evidence plaintiff may be able to present concerning the role of defendant’s manager in “directing” that the workers ride on the trailer.
As the trailer moved over the rough ground, according to the allegations of the complaint, plaintiff lost his balance, his foot became entangled in a wheel of the trailer, and he was pulled into the narrow space between the wheel and the trailer. Plaintiff was critically injured, suffering evisceration and broken bones.
Ponce called emergency services and then called defendant’s manager to inform him of the accident. By the time the manager returned to the scene, paramedics had moved plaintiff to an ambulance. Plaintiff subsequently was transported by emergency helicopter to a specialty hospital. Plaintiff’s life was saved, but he had to undergo several months of inpatient rehabilitation and is permanently disabled.
Plaintiff received worker’s compensation benefits through Ponce’s insurance carrier. Ponce was cited by state labor officials for transporting workers on the improperly equipped trailer.
Plaintiff sued defendant for negligence and gross negligence for the failure to exercise reasonable care in “directing [Ponce] to transport his employees” on the dangerous trailer; plaintiff alleged defendant’s conduct was “an extreme departure from the ordinary standard of conduct … and [a] conscious disregard” of the risk of injury to plaintiff. He sought compensatory and punitive damages.
Defendant answered the complaint. He then moved for summary judgment on the narrow ground that plaintiff was defendant’s employee and, therefore, workers’ compensation provided the exclusive remedy for plaintiff’s injuries. Plaintiff contended he was an employee of Ponce alone and that the “special employment” rule creating coemployers was inapplicable in the circumstances.
After hearing, the trial court concluded that defendant’s “right of direction and control” over plaintiff’s work rendered plaintiff a “special employee” of defendant: “While the disputed evidence via deposition transcripts establishes that [Ponce] exerted some degree of supervision and control over [plaintiff’s] work, the overwhelming weight of the evidence establishes that [defendant’s] forepersons and supervisors had the authority to supervise and control [Ponce’s] workers in the performance of their activities at [the farm] and actually exercised that authority.” The court cited Santa Cruz Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575 in support of its conclusion. Judgment was entered for defendant and plaintiff filed a timely notice of appeal.
Discussion
Generally, an employer who provides workers’ compensation coverage for his or her employees is not liable in tort for negligent injury to those workers. (Lab. Code, § 3602, subd. (a).) When a landowner hires work done by an independent contractor, the landowner normally is not vicariously liable to the contractor’s employees for negligence by (or otherwise attributable to) the contractor. (Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 260-261, discussing Privette v. Superior Court (1993) 5 Cal.4th 689, 701.) Nevertheless, the landowner remains liable for his or her own negligence: The landowner is liable in tort if his or her own negligence affirmatively contributes to an injury to the independent contractor’s employee. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 201-202.) There is a circumstance, however, in which a landowner who hires an independent contractor is not liable in tort for his or her own negligence that injures an employee of the independent contractor. That circumstance, known as the “special employment” doctrine, is the subject of the present case. (See generally 2 Witkin, Summary of Cal. Law (10th ed. 2005) Workers’ Compensation, §§ 161-162, at pp. 741-745.)
In discussions of this doctrine, the independent contractor is known as the “general” employer of the contractor’s employees. If the doctrine is found applicable in light of the facts before the court, the landowner or other hirer of the general contractor is known as the “special” employer of the independent contractor’s employees.
A clear example of the application of the “special employment” doctrine is found in circumstances in which a temporary labor agency provides a fill-in employee for a business. Thus, in Santa Cruz Poultry, Inc. v. Superior Court, supra, 194 Cal.App.3d at p. 577, Manpower, Inc., a temporary employment service, furnished a worker on a one-day assignment to Santa Cruz Poultry, Inc. The worker’s supervisor, a Santa Cruz Poultry truck driver, directed the worker to jump onto a delivery truck. The worker was injured. (Ibid.) The temporary employee received workers’ compensation benefits through Manpower and sued Santa Cruz Poultry in tort. Manpower’s insurance carrier was a coplaintiff, asserting a lien on any recovery by the employee. (Id. at pp. 577-578.) In Santa Cruz Poultry and other similar cases discussed in that opinion, the “general” employer provides only limited supervision of the temporary employee, generally sending the worker to the job site and telling the employee how to interact with the “special” employer. No supervision at the job site is provided by the employment agency; all supervision and control of the worker, and all equipment to do the job is provided by the business to which the worker is sent, the “special” employer. (See id. at pp. 579, 582; see generally 2 Witkin, Summary of Cal. Law, supra, § 161, at pp. 741-742.)
At the other end of the spectrum are cases concluding that the employee of an independent contractor is not a special employee of the owner of the premises upon which work is performed. Thus, in Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, an independent contractor, Peterson, was routinely hired by Shell to perform maintenance on refinery equipment. Kowalski was a carpenter employed by Peterson and had previously worked at the Shell facility. When maintenance was to be performed in a particular area, Shell’s supervisor told Peterson’s foreperson the location and size of scaffolds that needed to be built. Peterson’s foreperson, and not the Shell supervisor, controlled the details of Kowalski’s work. However, “[i]f Peterson employees were doing something which did not meet with Shell’s approval, Shell would stop them and redirect their work. Shell could also request Peterson to remove an employee whose work Shell found unsatisfactory.” (Id. at p. 173.) Peterson provided hardhats and badges with its own insignia; it provided all tools to its employees except for one power saw, which was provided by Shell. (Ibid.)
Kowalski, following the express orders of the Peterson foreperson but using Shell’s power saw, injured himself. (Kowalski v. Shell Oil Co., supra, 23 Cal.3d at p. 173.) Kowalski sued Shell for personal injuries and a jury returned a verdict in his favor. The trial court granted Shell’s motion for judgment notwithstanding the verdict and Kowalski appealed. (Id. at p. 171.) The question on appeal was “whether there was substantial evidence to support the jury’s finding that plaintiff was not Shell Oil Company’s special employee.” (Ibid.)
In concluding that there was substantial evidence that Kowalski was not Shell’s special employee, the Supreme Court summarized the law as follows: Control by the landowner over the details of the employee’s work strongly supports the inference of a special employment relationship. (Kowalski v. Shell Oil Co., supra, 23 Cal.3d at p. 176.) By contrast, the fact that the landowner gives instruction as to the result to be achieved is not indicative of a special employment relationship. (Id. at p. 177.) Evidence that the landowner has the power to fire the worker is strong evidence of a special employment relationship. Further, “[e]vidence that (1) the employee provides unskilled labor, (2) the work he performs is part of the employer’s regular business, (3) the employment period is lengthy, and (4) the employer provides the tools and equipment used, tends to indicate the existence of special employment. Conversely, evidence to the contrary negates existence of a special employment relationship.” (Ibid.; see also Caso v. Nimrod Productions, Inc. (2008) 163 Cal.App.4th 881, 888-889 [summarizing considerations involved in determination of special employment relationship].) Determination of the existence of special employment is a question for the trier of fact. (Kowalski v. Shell Oil Co., supra, 23 Cal.3d. at p. 175.)
We note that these factors are very similar to the factors used to resolve a different question of employment law, whether a worker is an employee or an independent contractor of the hirer. The law in this area recently was summarized in Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 299-301. Plaintiff called our attention to this case in a supplemental letter brief but the case adds nothing to the law of “special employment.” In the present case, there is no question that Ponce was a true independent contractor-that is, no one contends he was merely defendant’s employee dressed up in some of the formalities of an independent contractor, as was the case in Rinaldi v. Workers’ Comp. Appeals Bd. (1991) 227 Cal.App.3d 756, 765-766.) Additionally, S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal.3d 341, the case cited by defendant in oral argument, is inapposite. In that case, the Supreme Court rejected a sham arrangement in which ordinary employees were recharacterized as independent contractors to avoid worker’s compensation liability.
In the present case, plaintiff produced ample evidence to demonstrate a triable issue of fact on the “special employment” issue. The evidence demonstrated that defendant hired the labor contractor to produce a result-the harvesting of a crop-and that defendant only intervened to the limited extent necessary to effectively obtain the desired result. There was ample evidence, for example, that defendant’s managers directed members of the crew to go back and finish up a tree that had been inadequately harvested; but there was no evidence that defendant’s managers intervened to speed up slow workers or to direct workers in safe or efficient work techniques. (Cf. Kowalski v. Shell Oil Co., supra, 23 Cal.3d at p. 173.) There was evidence that defendant set the work hours for Ponce’s crew, but the evidence supports an inference that Ponce, not defendant, determined whether an individual crew member would be permitted to leave work for an appointment.
There was substantial evidence that the harvesting crews only worked for a short time for defendant, and the evidence supported an inference that the crews had a more permanent employment relationship with Ponce. The evidence indicated that although defendant provided picking buckets for the crew members, he did so only as an accommodation to Ponce, who had not been able to obtain such equipment for the crew on his own.
The evidence was unequivocal that defendant did not pay the workers directly, that he did not control the manner in which pay was divided up among the crew members, and that he usually did not know how much Ponce paid even the hourly workers. Ponce was responsible for obtaining Social Security and immigration information from the crew members. The information he provided to the defendant, however, was his own Social Security number, together with his licensing and bonding information. The evidence supported a clear inference that defendant’s primary interaction was with Ponce and his crew as a whole, not with individual workers. Thus, Ponce stated that he would have permitted defendant’s manager to fire an individual worker, but that the only time anything like that had happened, the manager was dissatisfied with the entire crew and told Ponce not to bring the crew back to the farm.
Both Ponce and defendant’s manager testified that, on the particular day of the accident, the manager instructed Ponce to have his crew load their ladders on the trailer and to move to the next block of trees-that is, the manager did not address the crew directly or convey work assignments to them.
In sum, the evidence, viewed most favorably to plaintiff, establishes that Ponce, as the independent contractor, was directly and regularly involved in supervising the employees he had hired to accomplish the overall task he had been hired to achieve; defendant’s managers, as in Kowalski v. Shell Oil Co., supra, 23 Cal.3d 168, were involved in the control and direction of the crew only to the extent necessary to achieve the goals defendant hired Ponce to accomplish. The facts, viewed most favorably to plaintiff, are entirely different from the facts in Santa Cruz Poultry, Inc. v. Superior Court, supra, 194 Cal.App.3d 575, on which the trial court relied, and the similar cases on which defendant relies, in which the independent contractor supplies workers but is essentially uninvolved in their direct supervision on the job site. Accordingly, we conclude defendant has not established an entitlement to summary judgment on the basis of workers’ compensation exclusivity.
Disposition
The judgment is reversed. Plaintiff is awarded costs on appeal.
WE CONCUR: Wiseman, Acting P.J., Kane, J.