Opinion
B186031
10-30-2008
CHRISTOPHER CARPENTER, Plaintiff and Appellant, v. UNIVERSAL CITY STUDIOS L.L.L.P. et al., Defendants and Respondents.
Law Offices of Edward A. Hoffman and Edward A. Hoffman for Plaintiff and Appellant. P.K. Schrieffer, Paul K. Schrieffer, Michael D. Goodman and Kenneth A. Levine for Defendants and Respondents.
Not to be Published
INTRODUCTION
After plaintiff Christopher Carpenter suffered serious injury to his hand while working as a grip on the set of the Universal Network Television, L.L.C. (UNT) series Dragnet, he sued defendant Universal City Studios L.L.L.P. (UCS) in tort alleging that UCS was liable as the landlord of the soundstage where he was injured. UCS raised the affirmative defense that it was Carpenters "special employer" under the borrowed servant doctrine, with the result that Carpenter was statutorily barred from bringing a tort action against it under the workers compensation exclusivity rule. (Lab. Code, § 3602.) The jury found by special verdict that UCS was Carpenters "special employer." The trial court denied Carpenters motions for judgment notwithstanding the verdict (JNOV), directed verdict, and motion for new trial, and entered judgment in favor of UCS. Carpenter appeals. We hold that the evidence supports the jurys special verdict with the result the trial court did not err in denying Carpenters three motions. Accordingly, the judgment is affirmed.
All further statutory references are to the Labor Code unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
Viewing the record according to the rules of appellate review (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629-630; Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68; Charles D. Warner & Sons, Inc. v. Seilon Inc. (1974) 37 Cal.App.3d 612, 616-617), it shows that Carpenter has been a grip on sound stages in and around Los Angeles, and has worked on a number of shows for various Universal-related entities. A grip is a person who assists in the setup and dismantling of movie or television sets. As a member of Local 80 Studio Grips, Carpenter was a party to a collective bargaining agreement with UCS.
Historically, UCS was Universal Studios LLP and changed its name to the one used during this trial. UCS runs a theme park and rents sound stages and motion picture and television studios to Universal-owned production companies and to outside studios, such as Warner Brothers and Sony Pictures. Universal also produces stills, music videos, commercials, and television shows, such as Dragnet. As part of Universals relationship with the television production called Dragnet, UCS functioned as the lessor of the sound stages and equipment that Dragnet used. Additionally, Universal provided labor relations, safety, and publicity to that production.
Grip best boy Lionel Portugal put word out "around the lot" that he was looking for someone to crew Dragnet. Carpenter called Portugal and was hired. He began work on Dragnet in October 2002. Dragnet was filmed by Dick Wolf Films through UNT, on soundstage 16 that was owned by Universal.
In early 2003, while working for that show, Carpenters hand was crushed between the handle of an "elephant door" and an electrical box. Carpenter lost two fingertips. He received workers compensation benefits from Continental Casualty Company, the workers compensation insurer for Entertainment Partners Services Group (EP), on the assumption that Carpenter had been injured in the course and scope of his duties at work for EP. EP is a company "in the business of providing the services of personnel for theatrical, television, and commercial productions" and provides payroll services.
An elephant door is a very large, soundproof door that keeps light and sound from leaking through from one stage to another.
Carpenters ensuing complaint in tort alleging negligence, product, and premises liability named UCS and numerous other Universal entities, including MCA, Inc., as defendants. He eventually dismissed all of the entities, except UCS, and proceeded at trial on the premises and product liability causes of action only. Carpenters theory was that UNT was his employer and UCS was UNTs landlord. UCS countered by raising the complete defense of the workers compensation exclusivity rule, arguing that UCS was Carpenters special employer.
1. The evidence about Universals corporate structure
The actual organization of Universal and its relationship to UCS, UNT, and other various Universal-related entities was presented through conflicting evidence. Kenneth Silverstein, a production manager on the Dragnet show, explained that the "Universal" corporate structure is "a bit confusing." At some point, Universal sold its television division to another company. The television division then became Studio USA. Sometime before Dragnet started, Universal bought the television division back. Silverstein believes that Universals umbrella contains both the feature film and television divisions. Universals Production Service Representative Bonita Chan explained that Universal and Universal Studios, Inc. are related entities, and UNT is a department within "Universal." Melissa Leffler was controller for the television group at Vivendi Universal Entertainment. She testified that taxes were the main reason for any separation of the many Universal-related companies. Various of the Universal companies share the same address at Universal City Plaza.
Chans testimony under the examination of Carpenters attorney reads as follows: "Q. Again, do you know the entity Universal City Studios Productions, LLLP, LP is? [¶] A. I know Universal Studios. [¶] Q. And how do you know this entity? [¶] A. I work for that entity. [¶] Q. Universal City Studios Productions, LLLP, LP? [¶] A. Yes. Yes. [¶] Q. And you also work for Universal Studios, Inc.? [¶] A. Yes. [¶] Q. Do you also work for Universal Network Television, LLC? [¶] A. Not for the Network, no. [¶] Q. So thats a separate entity then; right? [¶] A. Can I call it [a] department? . . . [¶] Q. Okay. You can call it department, but its separate from Universal Studios; right? [¶] A. Not really. Its Universal Studios Television, but its Universal — I work for Universal Studios Productions Services. That would be a Universal Television Network for me."
The Facility Group of UCS rents studios and soundstages as a primary business, but UCS also produces shows. Leffler thought that Universal Pictures is part of UCS. UCS also facilitates production, Chan testified.
Production companies unrelated to Universal must enter into a 50-page boilerplate lease and supply proof of insurance to rent soundstages from Universal. These non-Universal companies then pay for the use of the studios. By contrast, Universal-related entities do not have written agreements with UCS to use its soundstages, labor, or equipment, and are not required to provide separate insurance. Different departments, divisions or "arms" of Universal do not actually transfer money between them as rent; the "payments" for facility, equipment, and office space are merely entries in ledgers done for internal "accounting purposes" to track a shows budget, earnings, and profitability. Silverstein explained that Dragnet "was a Universal show using Universal equipment on the Universal lot." Therefore, just as there was no rental agreement between UCS and UNT for any soundstage used by UNT, there was none for Dragnet. Instead, Universal creates a four-page "interdepartmental" "commitment letter" with UNT for each show, including Dragnet. Dragnet did not have to provide security deposits or insurance for the use of Universals equipment.
Chans responsibility at UCS is to make sure that those who are using the UCS lots and sound stages take care of them. She rents out the UCS sound stages to both Universal-related entities and third parties. Her responsibility includes the accounting for the rented stages, labor, storage space, and equipment that productions use. She did not verify that Dragnet provided insurance for its production because "its a Universal television show." Chans office is three doors down from the office of the Dragnet shows "executive."
As far as Silverstein knows, the Grip Department was a Universal department. Universal requires all Universal productions to use its "grip equipment," but does not make the same requirement of non-Universal companies. The grip equipment that Carpenter used came from Universal.
2. The evidence about Carpenters employer
Carpenter thought he worked for Dick Wolf Films, the producer of Dragnet. Before trial, he admitted that he was a special employee of UNT at the time of the accident. While working on Dragnet, Carpenter was paid by UNT, but the pay stubs came from EP. Before working for Dragnet, he had been paid by Universal City Studio LLP.
Carpenters contract, known as a deal memo, was signed by Studios USA, which was UNT. The contract required that while he worked on Dragnet, he worked for no one else. Carpenters I-9 form, which employers send to the Immigration and Naturalization Service to confirm an employee is working legally, states that his employer was "Universal Dragnet/UNT." The shows assistant director set the hours for Silversteins approval. There were others who could advise on the issue of hours, but Silverstein had the ultimate authority.
Carpenter was a skilled laborer. His tools were provided by Universal who rented them to Dragnet. Universal required that all of its productions use Universal equipment.
Leffler "oversaw" UNT and made sure that the Dragnet show followed Vivendi Universal Entertainment policies and procedures for hiring, payroll, taxes, cutting checks, and reconciling bank accounts. Leffler was involved in drafting the Personnel Services Agreement (the PSA) between EP and UNT that was defendants exhibit 116. EP is a payroll service and the PSA is a payroll agreement for the Dragnet show.
The PSA, after defining EP as the employer, UNT as the producer, and Dragnet as the picture, states in paragraph 6, "EMPLOYER [EP] shall have the right to direct, control and supervise the Personnel supplied hereunder; provided, however, that such direction, control and supervision shall be consistent with and subject to any instructions or requirements of the PRODUCER [UNT] as hereinafter provided and consistent with the applicable collective bargaining agreements and/or personal services contracts, and provided further, that in the event of any disagreement, PRODUCERs [UNT] decision shall be final. Day-to-day supervision and direction of Personnel in the performance of their services for the benefit of the Picture shall be the responsibility of the PRODUCER [UNT]. In this regard, PRODUCER [UNT] shall be the `Special Employer of all personnel paid by EMPLOYER pursuant to this Agreement, and EMPLOYER shall be the `General Employer of all such Personnel." (Italics added.)
Paragraph 14 then provides, "EMPLOYER [EP] shall carry workers compensation insurance covering the services of such Personnel hereunder, and PRODUCER shall be named as an additional insured with respect to such coverage." Further, "for purposes of Workers Compensation, the parties hereto acknowledge and agree" that there would be more parties, other than UNT, participating in the direction or supervision of the services provided by the cast and/or crew members, including UNTs "affiliated companies" or any other entity furnishing to UNT the services of anyone in connection with Dragnet (each defined as a "Producer Entity"), "and [] that each such Producer Entity shall be deemed a `special employer " of the cast and crew for purposes of Workers Compensation insurance coverage in connection with the services of the cast and crew rendered under the PSA. Leffler testified that she understood the word "affiliate" in this paragraph to refer to "any sister company of" UNT, which would include UCS, and MCA, Inc., and in 2003, Vivendi. According to Leffler, Dragnet is a "Universal-owned production."
Paragraph 14 reads in its entirety: "EMPLOYER [EP] shall carry workers compensation insurance covering the services of such Personnel hereunder, and PRODUCER shall be named as an additional insured with respect to such coverage. . . . In addition to the foregoing, for purposes of Workers Compensation, the parties hereto acknowledge and agree (i) that there will be one or more parties other than Producer receiving the benefits of, and/or participating in some capacity in the direction and/or supervision of, the services provided by individual Artists, such as cast and/or crew members, in connection with the Picture including, without limitation, Producers affiliated companies, licensees, successors and assigns, the financiers and distributors of the Pictures, and Personal Services company furnishing Artists services and their respective officers, agents, and employees (including, without limitation, any other person or entity furnishing to Producer or an affiliate company the services of any person in connection with the Picture) (each a "Producer Entity"), and (ii) that each such Producer Entity shall be deemed a "special employer" of Artist for purposes of Workers Compensation insurance coverage in connection with the services of Artist rendered pursuant to this Agreement."
Silverstein was employed by Universal and UNT and paid by EP. He explained, although he had the authority to hire grips for Dragnet, that the Universal Grip Department had the right to advise him about such hiring. Likewise, although Silverstein was the person who had the authority to fire Carpenter, other individuals who were not at UNT, including certain employees of UCS, had the right to demand his discharge. Silverstein "had to follow directions from above me in the Universal hierarchy." If the Universal Grip Department wanted to fire a grip on Dragnet, then it would take the issue to the producers of the television show. Silverstein was subordinate to UCS Labor Relations in all matters concerning people covered by the collective bargaining agreement, which was virtually everyone. He would need permission from UCSs Labor Relations Department to fire someone covered by a collective bargaining agreement. If the Labor Relations Department decided an employee had to go, that employee had to go.
The "crew list" for Dragnet included, in addition to names of UNT production people, the names of those who work at UCS, such as Chan and Silverstein, and people from publicity and electricity, and the "contact list" included people from UCSs labor relations, business affairs, legal, and music departments, the controllers and finance offices.
3. Procedural background
At the close of trial, Carpenter moved for directed verdict arguing that UCS had adduced no evidence that it was Carpenters special employer. The court initially granted the motion finding no indicia of a special employer relationship. After hearing further argument, the court changed its mind and denied the motion, finding factual questions for the jury. Thereafter, the jury rendered a special verdict finding that UCS was Carpenters special employer, aware that in so finding, it was precluding Carpenter from continuing with his tort cause of action. Carpenter then moved simultaneously for JNOV and for a new trial relying again on the argument that all of the evidence pointed to the conclusion that UCS was not Carpenters special employer. The court denied those motions. After judgment was entered, Carpenter filed his timely appeal.
CONTENTION
Carpenter contends that the trial court erred in denying his motions for directed verdict, JNOV, and for new trial because UCS adduced no substantial evidence that it was Carpenters special employer.
DISCUSSION
1. Standards of review
The standards of review of rulings on motions for directed verdict, JNOV, and new trial, are essentially the same in that under each motion, our task is to determine whether there is substantial evidence to support the courts ruling. (See, Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 629-630 [substantial evidence guides appellate review of rulings on directed verdict motions]; Sweatman v. Department of Veterans Affairs, supra, 25 Cal.4th at p. 68 [substantial evidence guides appellate review of rulings on motions for JNOV]; Charles D. Warner & Sons, Inc. v. Seilon Inc., supra, 37 Cal.App.3d at p. 617 [substantial evidence guides appellate review of rulings on new trial motions based on insufficiency of the evidence].)
2. The law of special employment
"[T]he California Workers Compensation Act provides for a compulsory scheme of employer liability without fault for injuries arising out of and in the course of employment. (Cal. Const., art. XIV, § 4.) The purpose of the act is to furnish ` "a complete system of [workers] compensation, including full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the effects of such injury." [Citation.]" (Sea-Land Service, Inc. v. Workers Comp. Appeals Bd. (1996) 14 Cal.4th 76, 85.) " `A basic premise of compensation law is that there shall be but a single recovery of benefits on account of a single injury or disability . . . . [Citation.]" (Sea-Land Service, Inc. v. Workers Comp. Appeals Bd., supra, 14 Cal.4th at p. 82.) The employer is liable for injuries to its employees arising out of and in the course of employment. (§ 3600.) When "the conditions of workers compensation exist, the right to recover such compensation is the exclusive remedy against the employer for injury or death of an employee." (Vuillemainroy v. American Rock & Asphalt, Inc. (1999) 70 Cal.App.4th 1280, 1283, citing § 3601.)
Dual employment exists in California law. It occurs when an employee is working for two employers and some measure of control over the employee is relinquished from one employer to the other. (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 216 (Brassinga); Riley v. Southwest Marine, Inc. (1988) 203 Cal.App.3d 1242, 1248 (Riley).) " `Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employers — his original or "general" employer and a second, the "special" employer. [Citation.]" (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174 (Kowalski).) "If general and special employment exist, `the injured workman can look to both employers for [workers] compensation benefits. [Citations.] If workmens compensation is available, it constitutes, with an exception not pertinent here, the workmans sole remedy against the employer. [Citation.] Thus where there is dual employment the workman is barred from maintaining an action for damages against either employer. [Citations.]" (Id. at p. 175.)
The question of whether a special employment relationship exists which would bar an injured employees tort action is usually a factual one for the jury to decide. (Kowalski, supra, 23 Cal.3d at p. 175.) If there is no conflict in the evidence or inferences drawn therefrom, however, then the question of whether an employment relationship exists is one of law. (Riley, supra, 203 Cal.App.3d at p. 1248.)
The Supreme Court in Kowalski first set out the relevant factors to be considered in determining whether a special employment relationship exists. The jury in this case was instructed on these factors. (1) "[T]he 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.]" (Kowalski, supra, 23 Cal.3d at p. 175; Brassinga, supra, 66 Cal.App.4th at p. 216.) " `The special employment relationship and its consequent imposition of liability upon the special employer flows from the borrowers power to supervise the details of the employees work. Mere instruction by the borrower on the result to be achieved will not suffice. [Citations.] `The 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 gives rise to the employment relationship. [Citations.]" (Brassinga, supra, at pp. 216-217.)
Additional factors which tend to support a special employment are: " `[(2)] whether the borrowing employers control over the employee and the work he is performing extends beyond mere suggestion of details or cooperation; [(3)] whether the employee is performing the special employers work; [(4)] whether there was an agreement, understanding, or meeting of the minds between the original and special employer; [(5)] whether the employee acquiesced in the new work situation; [(6)] whether the original employer terminated his relationship with the employee; [(7)] whether the special employer furnished the tools and place for performance; [(8)] whether the new employment was over a considerable length of time; [(9)] whether the borrowing employer had the right to fire the employee and [(10)] whether the borrowing employer had the obligation to pay the employee. [Citation.]" (Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848, 857 (Wedeck); Kowalski, supra, 23 Cal.3d at p. 176; Brassinga, supra, 66 Cal.App.4th at p. 217.)
By contrast, "a special employment relationship may be negated by evidence that `[t]he employee is (1) not paid by and cannot be discharged by the borrower, (2) a skilled worker with substantial control over operational details, (3) not engaged in the borrowers usual business, (4) employed for only a brief period of time, and (5) using tools and equipment furnished by the lending employer. [Citation.]" (Brassinga, supra, 66 Cal.App.4th 217, italics added.)
Carpenter contends no evidence was adduced at trial that UCS did anything other than function as a landlord for the soundstage. We conclude, although conflicting and at times confusing, there was substantial evidence from which the jury could render its special verdict finding that UCS was Carpenters special employer. As a consequence, the exclusivity rule would apply to bar his tort action against UCS.
a. The PSA provided evidence from which the jury could conclude that UNT was Carpenters special employer.
The PSA supports this conclusion. According to that contract, EP was "in the business of providing the services of Personnel for theatrical, television, and commercial productions," and "supplied" "Personnel," and provided payroll service to UNT by writing paychecks and purchasing workers compensation insurance for the labor it supplied. Thereunder, EP became a signatory to all of the employees collective bargaining agreements and was bound by their terms and conditions. In both paragraph 6 and 14, the PSA specifically defined EP as the "general employer" and UNT as the "special employer."
There is no question but that UNT, as special borrowing employer, had the right to supervise Carpenter whereas EP merely did the payroll accounting and purchased insurance. One of the key considerations 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.]" (Kowalski, supra, 23 Cal.3d at p. 175, italics added; Brassinga, supra, 66 Cal.App.4th at p. 216.) The PSAs paragraph 6 states, "Day-to-day supervision and direction of Personnel in the performance of their services for the benefit of the Picture shall be the responsibility of the PRODUCER," i.e., UNT. Carpenter provided no evidence that EP, as general employer, controlled his daily activities.
Therefore, the PSA provided sufficient, substantial evidence from which the jury could conclude that UNT was Carpenters special employer.
Carpenter counters that the PSA, which is unsigned, is not evidence of any relationship to which he was a party. In our view, the PSA was evidence of the intent of EP and UNT concerning their relationship, regardless of whether it was signed. One factor of special employment is "whether there was an agreement, understanding, or meeting of the minds between the original and special employer . . . ." (Wedeck, supra, 59 Cal.App.4th at p. 857, italics added.) The fact that the document the jury saw was unsigned only goes to the documents evidentiary weight. The jury also heard Leffler testify that she negotiated it, and both Silverstein and Carpenter testified that their paychecks came from EP, and Carpenter received workers compensation benefits from Continental Casualty Company, EPs workers compensation insurer, with the result that even if exhibit 116 was not signed, EP and UNT had an understanding and were performing under it. (Cf. Penn Sec. Life Ins. Co. v. Rising (1976) 62 Cal.App.3d 302, 308, citing Civ. Code, § 1621 [agreement may be established by conduct of parties and circumstances of case].) The jury was entitled to believe the agreement was evidence of the signatories intent.
Carpenter makes no argument that the PSA would be subject to the statute of frauds. (Civ. Code, § 1624.)
Nor is it significant that there is no evidence that Carpenter knew about or consented to the PSA, or that he consented to a special employment, his contention to the contrary notwithstanding. "[C]onsent to the special employment relationship is normally implied, by the weight of authority, from acceptance of the special employers control." (Santa Cruz Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575, 581-582, citing 1C Larson, Workmens Compensation Law, § 48.15, p. 8-428 et seq.; see also Kowalski, supra, 23 Cal.3d at p. 179.) There was evidence from which the jury could conclude that Carpenter consented to a relationship under which UNT was his special employer. He accepted UNTs control of his daily work. And, he knew he was being paid by EP. In fact, Carpenter admitted that he was a special employee of UNT and Universal Networks at the time of the accident. Finally, we are aware that EPs insurer, Continental Casualty Company, paid Carpenters workers compensation insurance benefits on the understanding that Carpenter had been injured in the course and scope of his work duties for EP.
We are unpersuaded by Carpenters argument that his union, Local 80 Studio Grips, is not mentioned by name in the PSAs attachment listing categories of employees it would provide to UNT for Dragnet. The attachments list includes Teamsters and "nonaffiliated" employees. Also, Silverstein testified that virtually everyone had a collective bargaining agreement at Universal. As noted, Carpenter was subject to a collective bargaining agreement and he admitted that his paychecks were issued by EP.
The fact that EP paid Carpenter on behalf of UNT does not change the result here, despite his assertion that it does. Payment of wages is a factor the jury could consider. (Kowalski, supra, 23 Cal.3d at p. 176; Brassinga, supra, 66 Cal.App.4th at p. 217; Wedeck, supra, 59 Cal.App.4th at p. 857.)
For this reason, there is no support for the assertion in Carpenters brief that there was no evidence Carpenter was aware of a special employment relationship.
Carpenter argues, without citation to authority, even if the PSA was signed and applied to him, that the designation of UNT as special employer does not fit the legal definition because there is no substantial evidence that UNT borrowed Carpenter from EP and the PSA was only a payroll agreement. In Riley, supra, 203 Cal.App.3d 1242, Riley signed up with Manpower, a labor broker, who in turn sent him to Southwest Marine, Inc. to work as a laborer. (Id. at p. 1246.) Riley was injured and sued Southwest Marine in tort. The appellate court affirmed the order granting Southwest Marines summary judgment motion on the ground that as a matter of law, a special employment relationship existed between Riley and Southwest Marine. (Id. at pp. 1250-1251.) Riley agreed to the work assignment, he was unskilled, and worked exclusively for Southwest Marine at its site. Manpower dealt with only payroll matters, issuing him a paycheck and taking care of taxes and workers compensation and unemployment insurance. (Id. at pp. 1246, 1250.) Manpower did not provide Riley with any training, safety equipment, work tools or supervision. Riley believed Southwest Marine had the power to discharge him. He remained at this job for seven months until he was injured. (Ibid.) Much like Riley, EP, described as a provider of "the services of Personnel for theatrical, television, and commercial productions," acted according to the PSA by making payroll deductions, withholding taxes, and paying insurance premiums. Also, the workers compensation benefits were paid to Carpenter by EPs carrier.
b. The evidence also supports the jurys finding that UCS was a special employer of Carpenter.
The PSAs paragraph 14 provided evidence from which the jury could conclude that UCS was also a special employer. Paragraph 14 states, for purposes of workers compensation, that UNT and EP agreed that other "Producer Entities" would be deemed "special employers" and would be involved in directing and supervising crew. "Producer Entitles" were defined as, among other things, others furnishing the services of a person to UNT for Dragnet, and UNTs "affiliated companies." Leffler, who negotiated the agreement, testified that "affiliated companies" meant UCS.
Additionally, there was substantial evidence, apart from the PSA, that UCS and UNT were branches of the same employer and hence co-affiliates of some larger Universal entity. Although the Universal corporate structure was "confusing," both Silverstein and Chan testified that UNT was a department of Universal, sharing offices and employees with UCS. Universal had purchased the television division back from Studio USA before Dragnet started. Dragnet was a "Universal show using Universal equipment on the Universal lot." Being a related company to UCS, UNT was not required to enter into a 50-page lease, obtain separate insurance, supply a security deposit for equipment, or make actual payments for its use of the soundstages to film Dragnet there. Because it was deemed a UCS production, UNTs Dragnet and thus Carpenter, was required to use the Universal Grip Departments grip equipment. Notwithstanding there was evidence, as Carpenter observes, that supports the conclusion that UCS was separate from UNT — such as the separation of entities for tax purposes — the testimony described above supports the jurys finding.
Therefore, there was substantial evidence that UNT and UCS were "affiliated," that UCS was a "producer entity" as contemplated by paragraph 14 of the PSA, with the result that UCS was also Carpenters "special employer" under that agreement.
Moreover, the jury heard about other factors militating in favor of the conclusion that UCS was Carpenters special employer. UCS was intimately involved in directing and/or supervising the activities of Dragnet employees. Paragraph 14 of the PSA acknowledged that as a producer entity and affiliate of UNT, UCS could supervise and direct crew. UCS required Dragnet to film on its soundstages and nowhere else; it provided labor relations, employee safety, and accounting oversight; and it provided the collective bargaining agreement. It is not significant that there was a paucity of evidence about whether UCS actually controlled and directed Carpenters daily work, because UNT supervised the cast and crew and paragraph 14 gave UCS the right to do so, regardless of whether UCS actually exercised that right. That Carpenter performed his job without constant intervention by supervisors does not negate the undisputed fact that he was subject to UNTs, and hence, UCSs control and direction. (Wedeck, supra, 59 Cal.App.4th at p. 859.) Also, UCS had the right to tell Silverstein who to hire. More important, UCS had the power to demand Carpenters discharge, even if it did not exercise that power. Silverstein stated, "[t]he reality of the situation is [that] I would have had to follow directions from above me in the Universal hierarchy" and that employees of UCS could have directed him to discharge Mr. Carpenter. "Evidence that the alleged special employer has the power to discharge a worker `is strong evidence of the existence of a special employment relationship. . . . [citation]," although not always necessarily probative. (Kowalski, supra, 23 Cal.3d at p. 177, italics added.)
Similarly, Carpenters tools were provided by UCS and UCS required its productions, including Dragnet, to use its equipment. As Silverstein pointed out, Dragnet used "Universal equipment." Noting he testified that he used his own tools, Carpenter argues at length that there is no evidence that UCS provided him with tools, only equipment. However, one of the factors tending to negate a special employment is evidence, among other things, that the employee was using tools and equipment " `furnished by the lending employer. [Citation.]" (Brassinga, supra, 66 Cal.App.4th at p. 217, italics added.) Carpenter does not suggest, and indeed there is no evidence to indicate, that he was using tools provided by a lending employer. Hence, the jury could handily conclude that UCS was the only employer supplying tools and equipment.
Additionally, the work Carpenter performed was part of UCSs regular business, his contention to the contrary notwithstanding. Silverstein testified "I believe that [the] umbrella [of UCS] contains feature [films] and television divisions." Carpenters attorney valiantly attempted to force Silverstein to define television production as part of UNTs bailiwick and film production as part of UCSs domain. However, the evidence indicated, and the jury could reasonably conclude, that UCSs scope of business included these two types of production work and more. Where UCS was involved in UNTs Dragnet production, from hiring, to firing, providing soundstages, equipment, safety, legal, and accounting oversight, and had the authority to direct and supervise personnel whether exercised or not, the jury was justified in concluding that Carpenters work was part of UCSs regular business.
Carpenter next argues that his employment on Dragnet was not lengthy. Actually, he worked on Dragnet for several months, and his employment was intended to be more than merely temporary, but his accident cut it short. (See, Sully-Miller Contracting Co. v. California Occupational Safety & Health Appeals Bd. (2006) 138 Cal.App.4th 684, 689-690 [held dual employment existed when employee sent to work for second employer three days, but was killed after one day].)
Focusing on an element that tends to negate a special employment, Carpenter argues that he is skilled. Indeed, he is a skilled grip. However, to negate a special employment, Carpenter had to demonstrate that he was "a skilled worker with substantial control over operational details." (Brassinga, supra, 66 Cal.App.4th at p. 217, italics added.) There was no evidence that Carpenter had such control and so the jury was entitled to conclude that he did not. In Wedeck, a chemist, who worked in a technical position in a laboratory (Wedeck, supra, 59 Cal.App.4th at p. 852), made the same argument as Carpenter does. In rejecting her argument the appellate court observed "with respect to the technical skill as a chemist Wedeck brought to the job, although most of the relevant cases involve unskilled workers, the record again shows that, regardless of the experience and knowledge she brought with her, Wedeck was trained by Unocal [the special employer] and was subject to Unocals ongoing direction and control in performing her job. Despite Wedecks assertion that she had `substantial control over operational details [citation], the record demonstrates that she was expected to exercise her technical skill in the way dictated by Unocals systems and procedures. [Citation.]" (Id. at p. 859.) So it was for Carpenter. Hence, this element does not negate the finding of special employment.
In sum, the jury had evidence from which it could find that UNT was his special employer, and UCS and UNT were "affiliated entities," with the result UCS was also his special employer.
3. The trial court did not err in denying Carpenters three motions.
Indisputably, the evidence presented at trial was conflicting and confusing. However, as demonstrated above, there was sufficient substantial evidence along with inferences that could be drawn therefrom, to support the jurys special verdict. That being the case, the trial court correctly denied Carpenters motion for directed verdict. The trial court "may not grant a directed verdict where there is any substantial conflict in the evidence. [Citation.] A directed verdict may be granted only when, disregarding conflicting evidence, giving the evidence of the party against whom the motion is directed all the value to which it is legally entitled, and indulging every legitimate inference from such evidence in favor of that party, the court nonetheless determines there is no evidence of sufficient substantiality to support the claim or defense of the party opposing the motion, or a verdict in favor of that party. [Citations.]" (Howard v. Owens Corning, supra, 72 Cal.App.4th at pp. 629-630, italics added.)
Carpenter espouses an exception to this rule under Engstrom v. Auburn Auto. Sales Corp. (1938) 11 Cal.2d 64, in which inferences favorable to the party opposing the motion for directed verdict may be "rebutted by clear, positive, and uncontradicted evidence which is not open to doubt." (Id. at p. 70.) Unfortunately for Carpenter, he did not produce clear, positive, and uncontradicted evidence open to no doubt. Finally, because there was sufficient substantial evidence to support the special verdict, we cannot say that Carpenter was prejudiced by the courts ruling denying his directed verdict motion, his contention to the contrary notwithstanding.
Likewise, the trial court correctly denied Carpenters JNOV motion because there was sufficient substantial evidence along with inferences that could be drawn therefrom, even if contradicted, to support the jurys special verdict. (Sweatman v. Department of Veterans Affairs, supra, 25 Cal.4th at p. 68; Hauter v. Zogarts (1975) 14 Cal.3d 104, 110 ["If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied."].) Also, given the court correctly denied the motion for directed verdict, it properly denied the JNOV motion. (Ibid.)
Finally, "A motion for a new trial should not be granted for insufficiency of the evidence `unless . . . the court is convinced from the entire record . . . that the . . . jury clearly should have rendered a different verdict . . . . [Citation.]" (County of Riverside v. Loma Linda University (1981) 118 Cal.App.3d 300, 322, italics added, quoting from Code Civ. Proc., § 657.) The trial court has very broad discretion when ruling on a motion for new trial. (Ashcraft v. King (1991) 228 Cal.App.3d 604, 616.) Its ruling will not be disturbed absent a clear showing of abuse of that discretion. (Ibid.)
On a new trial motion, the trial court may reweigh the evidence and draw reasonable inferences of its own (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1656); on review, we do not. (Charles D. Warner & Sons, Inc. v. Seilon, Inc., supra, 37 Cal.App.3d at p. 617.) "[O]ur power begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury." (Ibid.) We conclude that having thoughtfully considered argument, read all of the papers, and weighed all of the evidence, the trial court here manifestly exercised its discretion in denying the new trial motion.
DISPOSITION
The judgment is affirmed. Each party to bear its own costs on appeal.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.