Opinion
D073115
05-23-2018
MAURA CABRERA DIAZ et al., Plaintiffs and Appellants, v. S & R FARM LABOR CONTRACTOR, INC., Defendant and Respondent.
Greene, Broillet & Wheeler, Browne Greene, Robert D. Jarchi; Law Offices of Sandra Ruvalcaba Romero, Sandra R. Romero; Esner, Chang & Boyer and Stuart B. Esner for Plaintiffs and Appellants. Horton, Oberrecht, Kirkpatrick & Martha, Kimberly S. Oberrecht for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIC1209850) APPEAL from a judgment of the Superior Court of Riverside County, Sharon J. Waters, Judge. Affirmed. Greene, Broillet & Wheeler, Browne Greene, Robert D. Jarchi; Law Offices of Sandra Ruvalcaba Romero, Sandra R. Romero; Esner, Chang & Boyer and Stuart B. Esner for Plaintiffs and Appellants. Horton, Oberrecht, Kirkpatrick & Martha, Kimberly S. Oberrecht for Defendant and Respondent.
INTRODUCTION
Decedent died from electrocution in July 2010 after a metal ladder he was using to harvest grapefruit contacted a 12,000-volt electrical wire above a grove in Hemet, California. A jury attributed 80 percent fault for decedent's death to the owner of the power lines, Southern California Edison Company (SCE). The jury allocated 15 percent fault to Gold Grower Services, Inc. (Gold Grower), the entity that employed decedent, provided the ladders, and temporarily employed the individual who supervised the harvesters (Supervisor) on the date of the incident. The jury allocated 5 percent fault to S & R Farm Labor Contractor Inc., (S&R) after finding S&R employed Supervisor and partially controlled his activities along with Gold Grower on the day of the incident. The court entered judgment against SCE and S&R in favor of decedent's wife and minor children. The court thereafter granted S&R's motion for judgment notwithstanding the verdict concluding S&R's payment of Supervisor, for which it received reimbursement from Gold Grower, was alone insufficient to support the jury's finding of retained control.
SCE separately appeals the judgment against it in Diaz et al., v. Southern California Edison Company (D073111), which we considered concurrently with this appeal.
Gold Grower was dismissed prior to trial based upon the workers' compensation exclusivity doctrine.
For privacy considerations, we refer to the decedent, the Plaintiffs, and witnesses by generic terms. (See Cal. Rules of Court, rule 8.90(b)(10).)
In this appeal, Plaintiffs contend the court erred in granting judgment notwithstanding the verdict for S&R because there was evidence S&R retained control over Supervisor's work at the time of the incident. Plaintiffs also request a new trial contending the court abused its discretion when it sustained an objection to the use of a deposition passage for impeachment of Supervisor. We disagree with both contentions and affirm the judgment.
BACKGROUND
Decedent worked with multiple farm labor contracting companies, which hire employees to pick fruit in fields. S&R and Gold Grower were two farm labor contractors for whom decedent worked. In the months before his death, decedent worked for Gold Grower.
S&R employed Supervisor to supervise harvest workers. Supervisor typically picked up workers from their homes, took them to the grove they were to harvest, and waited for the company they were picking for to give the okay to start harvesting. He assigned rows to the workers and supervised their work. He made sure the boxes were filled appropriately, that no fruit was damaged, and that no fruit was left on the trees.
In February 2010, Gold Grower, a new farm contracting company, asked S&R to borrow Supervisor because packing houses in the area liked Supervisor to supervise harvest workers. S&R allowed Gold Grower to use Supervisor as a courtesy.
The owner of S&R told Supervisor to work with Gold Grower. S&R issued Supervisor paychecks once Gold Grower paid S&R what the packing houses paid for a foreman.
Other than issuing paychecks, S&R did not have anything to do with the daily work Supervisor did with Gold Grower. Supervisor did not report to S&R when he was working with Gold Grower. Supervisor turned in tickets to Gold Grower. Supervisor reported any problems with the workers in the field to Gold Grower.
Gold Grower leased some equipment from S&R, which it provided to the harvesters. This included a portable restroom, bags, clippers, gloves, tape, sleeves, a forklift, and a bus. Gold Grower provided the 20-foot ladders.
Sun World International (Sun World) packs and markets fresh fruit and vegetables, including citrus from third party growers such as Circle K-5 Citrus Ranch (Circle K-5). Sun World determines when fruit is ready to be harvested and arranges for the harvest.
The day before the incident a Sun World representative called Supervisor and asked him to harvest the grove at Circle K-5. Sun World contracted with Gold Grower, not S&R, to harvest Circle K-5. Gold Grower billed Sun World for the harvesting work.
Supervisor had supervised harvesting crews at Circle K-5 for five years prior to the incident. Sun World did not give Supervisor instructions or provide equipment for the harvesting crew. Supervisor brought a trailer of 20-foot ladders provided by Gold Grower to the grove.
S&R did not use 20-foot ladders.
On the day of the incident, Supervisor picked up decedent and his brothers and took them to the grove at Circle K-5. They arrived at 5:00 a.m., before the sun was above the horizon. A representative of Sun World was at the grove when they arrived and the bins, provided by Sun World, were set out for the workers. The harvesting crew started picking within 10 minutes of arriving.
Supervisor assigned a row of trees for the decedent to pick. Supervisor was aware there were electrical power lines running over the Circle K-5 orchard and it would be dangerous if any of the workers contacted the power lines. He did not specifically warn the workers about the high voltage power lines. However, before the workers started picking, he warned them about the telephone cable because the ladder could hit the cable and bounce backwards. Decedent's brother denied anyone gave warnings on the day of the incident.
Decedent's brother, who was picking fruit in a tree next to the tree where decedent was picking fruit, heard decedent scream and saw decedent holding onto a ladder with his right hand. He saw flames on the ground at decedent's feet. Decedent died from electrocution.
DISCUSSION
I
Plaintiffs contend the court erred in granting judgment notwithstanding the verdict in favor of S&R after determining there was "absolutely no evidence" to suggest S&R retained control of Supervisor on the day of the incident to allow a finding of liability against S&R for any negligent acts or omissions of Supervisor. We conclude there was no error.
A
A reviewing court "may uphold the order granting judgment notwithstanding the verdict, and affirm the judgment based thereon only if, reviewing all the evidence in the light most favorable to [the party who obtained the verdict], resolving all conflicts, and drawing all inferences in [that party's] favor, and deferring to the implicit credibility determinations of the trier of fact, there was no substantial evidence to support the jury's verdict." (Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 72.)
This "does not mean we must blindly seize any evidence ... to affirm the judgment. ... 'A decision supported by a mere scintilla of evidence need not be affirmed on review.' " [Citation.] '[I]f the word "substantial" [is to mean] anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with "any" evidence. It must be reasonable ..., credible, and of solid value ....' [Citation.] ... [Citation.] While substantial evidence may consist of inferences, such inferences must be 'a product of logic and reason' and 'must rest on the evidence' [citation.]; inferences that are the result of mere speculation or conjecture cannot support a finding [citation]." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)
"When an employer—the 'general' employer—lends an employee to another employer and relinquishes to a borrowing employer all right of control over the employee's activities, a 'special employment' relationship arises between the borrowing employer and the employee. During this period of transferred control, the special employer becomes solely liable under the doctrine of respondeat superior for the employee's job-related torts." (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492 (Marsh).) "Where general and special employers share control of an employee's work, a 'dual employment' arises, and the general employer remains concurrently and simultaneously, jointly and severally liable for the employee's torts." (Id. at pp. 494-495; see State ex rel. Dept. of California Highway Patrol v. Superior Court (2015) 60 Cal.4th 1002, 1008.)
"In determining whether a special employment relationship exists, the primary consideration is whether the special employer has ' "[t]he right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not .... " ' " (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 175.) Factors indicating a special employment relationship include (1) whether the special employer exercises control over the details of the employee's work beyond direction about the result to be achieved, (2) whether the special employer has the power to discharge the employee, (3) whether the nature of the services are skilled or unskilled, (4) whether the work is part of the special employer's business, (5) the duration of the employment, and (6) who supplies the work tools. (Id. at pp. 176-177.) Conversely, circumstances tending to negate the existence of a special employment relationship include those in which "[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 borrower's usual business, (4) employed for only a brief period of time, and (5) using tools and equipment furnished by the lending employer." (Marsh, supra, 26 Cal.3d at p. 492; see Caso v. Nimrod Productions, Inc. (2008) 163 Cal.App.4th 881, 889.)
"The question of whether an employment relationship exists ' "is generally a question reserved for the trier of fact." ' [Citation.] This remains true '[where] the evidence, though not in conflict, permits conflicting inferences.' [Citation.] However, if neither the evidence nor inferences are in conflict, then the question of whether an employment relationship exists becomes a question of law." (Riley v. Southwest Marine (1988) 203 Cal.App.3d 1242, 1248, quoting Marsh, supra, 26 Cal.3d at p. 493.)
B
Supervisor and S&R's owner testified Supervisor was employed by S&R as a supervisor at the time of the incident. However, "[t]he label placed by the parties on their relationship is not dispositive." (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349.)
S&R agreed to allow Gold Grower to borrow Supervisor for a period of many months to supervise Gold Grower's workers as they picked fruit for packing companies with which Gold Grower contracted as part of its farm labor contractor business. Supervisor worked with Gold Grower in this capacity for at least four months. Gold Grower provided the equipment and ladders used by the workers. Although Supervisor possessed an S&R safety book, he decided on his own to bring it with him while he worked with Gold Grower. He was not directed by S&R to carry or consult with that safety book while working for Gold Grower.
Although S&R leased some equipment to Gold Growers, it did so as a third party contracting with Gold Growers. (See Caso, supra, 163 Cal.App.4th at p. 890.) Gold Growers maintained possession and control of the tools and provided them to the workers. S&R did not supply the 20-foot ladders, which plaintiffs and SCE contended were too long for use under the power lines. Plaintiffs' expert testified if decedent had been given a shorter ladder, the accident would not have occurred.
S&R was not involved with Supervisor's daily work when he worked with Gold Grower. Supervisor reported exclusively to Gold Grower during this time and on the day of the incident. Although Supervisor said S&R's owner had, at some point in the five years he worked for S&R, told him to supervise harvest workers in the block of trees, Supervisor denied the owner did so on the day of the incident. (See section II, post.) S&R's owner also denied telling Supervisor to harvest Circle K-5 on the day of the incident. S&R had no communication with Supervisor on the day of the incident or after the incident.
The only reasonable inference from the evidence was that S&R had no control over Supervisor at the time of the incident. Its only role was to issue Supervisor paychecks. Gold Grower billed the packing companies. Gold Grower paid S&R what Gold Grower received for the work of a foreman. S&R then issued a paycheck to Supervisor for the amount it received from Gold Grower. S&R was used as a pass-through company for Supervisor's wages. California courts have long held "the mere payment of wages or salary, of itself, is insufficient to establish that the recipient thereof is the servant of the one paying the same." (Independence Indem. Co. v. Industrial Acci. Com. (1928) 203 Cal. 51, 58; see McFarland v. Voorheis-Trindle Co. (1959) 52 Cal.2d 698, 705 [payment of wages is not determinative of employment].)
Because S&R's only involvement with Supervisor that related to the incident was issuing a paycheck, there was not substantial evidence to support the jury's verdict S&R retained control of Supervisor and the court properly granted judgment notwithstanding the verdict. Given our conclusion, we do not reach the issue of dual employment.
II
Plaintiffs contend the court abused its discretion when it denied plaintiffs' counsel's request to impeach Supervisor with deposition testimony regarding whether the owner of S&R directed him to supervise the Gold Grower crew at Circle K-5 on the day of the incident. Plaintiffs contend the "excluded evidence would have supplied the very evidence that the trial court concluded was missing" when it granted judgment notwithstanding the verdict and requested a new trial on this basis. We conclude the court did not abuse its discretion.
"As with all relevant evidence, ... the trial court retains discretion to admit or exclude evidence offered for impeachment. [Citations.] A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Here, Supervisor testified he did not receive instructions from the owner of S&R to supervise the crew involved in the harvest at Circle K-5 on the day of the incident. When plaintiffs' counsel sought to impeach Supervisor with his deposition testimony, counsel for S&R objected that the deposition testimony was vague as to time. The court sustained the objection and asked for an additional deposition reference. The court and plaintiffs' counsel had a couple of exchanges wherein counsel argued the context of the deposition involved the crew that harvested Circle K-5 on the day of the incident. After reviewing the passages, the court determined it would not allow the impeachment.
Our review of the deposition transcript shows the context of the testimony was vague and the questions were not confined to a particular day. Supervisor testified in deposition he had supervised a crew of about the same 28 to 30 men for a period of about five years. Workers of this basic crew harvested Circle K-5 on the morning of the accident. Plaintiffs' counsel and Supervisor discussed why the crew was employed by Gold Grower whereas Supervisor was getting paid by S&R. Supervisor was asked, "did you receive directions from anybody at S&R to supervise these crews?" After defense counsel objected that the question was vague and ambiguous, Supervisor responded with the name of the owner of S&R, which is not inconsistent with his testimony at trial that S&R told him to work with Gold Growers. Supervisor responded affirmatively when Plaintiffs' counsel asked, "So, she's the one that told you to go and supervise that crew?"
Plaintiffs included the deposition transcript, which it had lodged with the trial court, as part of their appendix on appeal. (Cal. Rules of Court, rules 8.124(b), 8.122; see Advisory Com. com., Cal. Rules of Court, rule 8.130(a).) --------
The deposition testimony was so vague as to time and vague as to what was meant by "that crew" it did not provide proper impeachment of Supervisor's testimony that S&R's owner did not direct him to supervise the harvest on the day of the incident. The court had discretion to exclude even potentially relevant evidence under Evidence Code section 352 if it determined any probative value of the evidence would be substantially outweighed by the probability that its admission would necessitate an undue consumption of time to explain or create substantial danger of confusing the jurors. In what was already a lengthy trial, we conclude the court did not abuse its discretion in disallowing the use of Supervisor's deposition testimony for impeachment.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
MCCONNELL, P. J. WE CONCUR: HALLER, J. GUERRERO, J.