Opinion
C050236
4-23-2007
EMILIO MORALES ZAVALA et al., Plaintiffs and Appellants, v. JAMES R. JONES et al., Defendants and Respondents.
NOT TO BE PUBLISHED
While adjusting a hay load in his truck alongside the road, plaintiff Emilio Morales Zavala (Morales) was struck by a passing pickup truck, suffering devastating injuries. Morales filed suit against the driver of the pickup and other defendants, including James R. Jones, dba JEB Farms (JEB Farms), for negligence. JEB Farms moved for summary judgment, arguing Morales was either a general or special employee of JEB Farms and therefore the exclusive remedy of workers compensation barred his action. The trial court granted the summary judgment motion, finding no triable issue of material fact concerning Moraless status as a special employee. Morales appeals, contending triable issues of fact exist as to whether he operated as JEB Farmss special employee. We disagree and shall affirm the judgment.
Factual and Procedural Background
For purposes of the present appeal, the facts of the accident are largely undisputed. The day of the accident, Jones told Morales to deliver hay to a milling company. A "hay squeeze" operated by Steve Ottolini (Ottolini) loaded the hay onto the truck and then adjusted the load. However, the wet fields made it impossible for the hay squeeze to properly adjust the load in the field. Instead, Morales and Ottolini adjusted the hay on a public road in the dark.
As they worked, Morales was struck by a passing pickup truck. The trucks driver could not see that the truck and the hay squeeze blocked both lanes of traffic. The driver did not see Morales until the moment of impact.
The accident left Morales severely injured, with life-altering injuries to his head and body. Morales remained hospitalized for a year, first at U.C. Davis Medical Center and then in a rehabilitation facility. At the time of his deposition, he was still receiving extensive rehabilitation services. He is not expected to be able to work again.
Morales and his wife filed an action against various defendants, including JEB Farms, alleging causes of action for negligence and loss of consortium. JEB Farms filed a summary judgment motion, asserting Moraless status as a special employee barred his claims. Morales opposed the motion, arguing the existence of disputed issues of fact as to whether he was a special employee of JEB Farms.
The trial court granted summary judgment, finding no triable issue of material fact as to the employment relationship between Morales and JEB Farms, and finding JEB Farms was Moraless special employer. Following notice of entry of judgment, Morales filed a timely notice of appeal.
While the basic facts of the accident are simple and straightforward, the facts surrounding Moraless employment status are not. Unraveling the employment issues requires a review of the relationship among three principal actors: Morales; JEB Farms, for whom Morales performed trucking services; and Emiliano Lara (Lara), a labor broker who acknowledges providing payroll services for JEB Farms but who Morales claims was his sole employer.
Jones and Lara
The descriptions of the relationship provided by Lara and JEB Farms, though not congruent, are largely consistent. The description provided by Morales, whose memory is impaired as a result of injuries suffered in the accident, stands in stark contrast. We begin with the accounts provided by JEB Farms and Lara and then set forth Moraless recollections.
Lara is a labor broker who hired workers to perform work for other farmers. Morales worked for Lara between 1979 and 1985 as a seasonal farm laborer, hoeing weeds and irrigating. He worked for various farmers in the Davis area. In 1999 Morales attended truck-driving school and obtained a state commercial truck driver license. That same year he worked as a truck driver for Los Rios Farms (Los Rios). Los Rios put Morales on Laras payroll. Farmers who contracted with Lara would sometimes hire workers and place them on Laras payroll. Lara did not have a say as to who got to be on his payroll.
Los Rios later laid off Morales, but Morales never reported to Lara after he had ceased working for Los Rios. Lara had "no idea" where Morales went to work after leaving Los Rios.
Jones, the owner of JEB Farms, recalls that in October 2000 Morales asked him for a job. JEB Farms grows alfalfa hay, which is subsequently transported for milling. Jones hired Morales, who filled out employment documents that identify JEB Farms as his employer. JEB Farms provided Morales with an employee handbook, written in both Spanish and English.
According to Jones, he hired Morales to drive field tractors and paid him on an hourly basis. In 2000 JEB Farms began transporting some of its hay in its own truck. In 2000 JEB Farms contracted with Lara, who supplied a driver for the hay truck, Fino Blanco. JEB Farms paid flat rates for the transportation of the hay. The rate depended upon the distance the hay was transported.
Morales, already employed by JEB Farms, began driving tractor-trailer trucks in 2001 but, according to Jones, also continued to do other work at the farm. According to Jones, when Morales worked in the field or drove tractors, he was paid hourly. When hauling hay, he was paid by the load. Dee Dee Talbot, the JEB Farms office manager who processed time sheets, recalls that from June 2000 forward, Morales periodically turned in time sheets that reported him driving field tractors, cutting alfalfa, and performing various field work.
According to Jones, although he personally hired Morales to work for JEB Farms, all seasonal JEB Farms workers, whether or not hired through Lara, were placed on Laras payroll. However, Lara had no hand in determining Moraless pay at JEB Farms. Jones determined Moraless wages, both hourly and "by the load." Morales reported his weekly hours, turning in time sheets to JEB Farmss office manager. The office manager used the sheets to calculate Moraless wages. Lara issued paychecks to Morales as directed by JEB Farmss office manager. Lara billed JEB Farms for all costs associated with Morales, including unemployment insurance, Social Security, and the premium for workers compensation. Lara testified that he provided "payroll service" for JEB Farms. He also recruited workers for them and provided training and partial supervision. He would invoice JEB Farms, which would send money to pay the workers. Lara received 8 percent of the farm laborers gross pay.
Lara recalls learning of Moraless employment with JEB Farms as a tractor driver in 2002 from Jose Lara (Jose L.), a supervisor at JEB Farms. Lara learned Morales was driving a truck for JEB Farms in August 2002 when Morales drove by Laras business. Morales told him he had acquired a truck drivers license. He later talked to Jose L., who told him that Morales was working as a truck driver for JEB Farms.
Lara first learned that JEB Farms had employees driving trucks when their time cards showed up. They were getting paid by the load. The cards had a straight dollar amount instead of hours. Lara was concerned about insurance and training for the drivers. He had read in the newspaper that truck drivers were hard to insure. That prompted him to speak with his insurance broker, Mr. Campos, about training for truck drivers. He had no subsequent conversations with anyone at JEB Farms about training for truck drivers. He never saw any of the truck drivers at JEB Farms doing their work, nor did he see any hay loading operations.
Lara never asked Morales what type of license he had, never rode in the truck with Morales or inspected any of the vehicles he operated, and never had any discussions with JEB Farms about the tools and equipment provided with its tractor-trailers. Lara disclaimed any authority to direct, control, supervise, discipline, or discharge Morales while he worked for JEB Farms. Although Lara testified to providing "[t]raining and partial supervision" to farm employees, Lara did not provide Morales with any training for the work he performed for JEB Farms. Laras only training involvement was an annual safety meeting with Jones and the seasonal employees.
According to Jones, when Morales began working for JEB Farms, foreman Jose L. instructed him on his daily duties. After Jose L. left the company, Jones instructed Morales about each days work, either in person or by cell phone. Morales frequently contacted Jones about his work assignments, requesting specific instructions. Morales also communicated with other JEB Farms employees about his job assignments. Jones traveled to the fields daily to supervise employees, including Morales. Copies of cell phone bills listing many calls from a cell phone purportedly provided to Morales to cell phone numbers of other farm employees, including Jones, were attached to Talbots declaration in support of the motion for summary judgment.
When Morales began driving trucks for JEB Farms, employee Fino Blano trained him. Jones directed Blano to ride with Morales for several weeks during the training. The only training Morales received on how to perform his jobs at JEB Farms came from Jones and other JEB Farms employees. Jones had the sole power to discipline or fire Morales. If Morales needed time off, he asked Jones for permission.
JEB Farms provided Morales with all the tools needed to perform his job. Morales also carried a toolbox containing small tools, some purchased by JEB Farms and some purchased by Morales. Morales was not expected to supply any of his own tools. Morales worked seasonally for JEB Farms from October 2000 until the accident in 2002. JEB Farms had intended that Morales would continue to work as a seasonal employee indefinitely.
Morales
Morales did not recall many of the details pertaining to relations between him, JEB Farms, and Lara. What he did recall differed markedly from the accounts of Jones and Lara. While Jones recalled hiring Morales in October 2000 after Morales approached him for a job, Morales was not sure for whom he was working in October 2000 and did not recall for whom he was working in November 2000. He started to work for Lara driving a truck in 2001 and 2002. He did not recall talking to Jones prior to that time. He spoke directly with Lara about working for him. He told Lara he had gotten a license and asked if he could have a job.
Moraless recollections about Jones are murky. In his deposition, he testified variously that he recalled meeting Jones before the accident but would not remember him now and that he never worked for Jones and did not even know him. He did not recall Joness being on the work site while he was working. He did not recall driving a truck owned by JEB Farms. Nor did he know who owned the truck he drove. He could not recall filling out employment records or citizen paperwork at JEB Farms. He did not recall talking to Jones about working on a farm prior to working for Lara in 2001, though he recalled the name Jones as a client of Mr. Lara. He did not speak English but did not recall if an interpreter was used when speaking with Jones. He did not know what JEB Farms was and did not know what its regular business was.
On the issue of who supervised him, Morales could not recall where he reported for work every morning. He was working for Lara, who sent him to Jones, but he could not recall doing any work for Jones. He could not recall anybody telling him where he should go to work or what type of work should be done. He recalled being paid by the trip. He did not recall getting paid hourly, where he picked up his paycheck, or what the paychecks looked like. He had no recollection of speaking to Lara about salary or asking him for time off. He did not recall discussing the amount of his pay with Jones or asking him for time off. He could not remember when he reported to work every morning or whom he called if he had a problem while working.
Notwithstanding his gaps in memory and the absence of details concerning his hiring and supervision, Morales testified that JEB Farms did not hire him and exercised no control over the performance of his truck driving duties, the only duties he recalls performing. Morales was assisted in his duties by Steve Ottolini, who drove a hay squeeze used to load the hay on the truck and straighten the hay once loaded. Ottolini was on Laras payroll but worked for JEB Farms. He considered JEB Farms his employer. He talked on the cell phone regularly with Jones and other JEB Farms employees, including Morales, about work details. However, Ottolini also testified that he considered Morales his boss. JEB Farms had no one else to supervise the loading and adjusting of hay loads.
In sum, the statements of Jones and Lara, taken together, describe a relationship between Morales and JEB Farms that began when Morales was hired by Jones. JEB Farms set and paid his salary, workers compensation coverage, and payroll deductions through Lara, who provided payroll services for JEB Farms under a verbal agreement. Lara provided no supervision, direction, or control of Morales who, along with Ottolini, worked for JEB Farms and received directions from Jones and others at JEB Farms. Morales has limited memory of Jones and does not recall being hired to work for JEB Farms. He does recall asking for and receiving a job from Lara, and though Lara denies hiring him to drive trucks or thereafter supervising him, Morales considers Lara his employer.
Trial Court Decision
The trial court, in granting JEB Farmss motion for summary judgment, found JEB Farms hired Morales, possessed sole authority to discipline or fire Morales, set Moraless pay rate, and supervised and controlled Moraless work. The court determined Morales performed unskilled labor that was part of JEB Farmss regular business. JEB Farms trained Morales and provided him with significant tools.
The court stated the evidence provided by Morales in opposition to the motion did not create an issue of material fact. The court noted: "More specifically, Plaintiffs own testimony does not create a triable issue of material fact because he testified he recalls that he used to go to work, but that he does not recall who he worked with [citation]. Further he testified that he does not know if he knows the type of work he performed because someone told him what he used to do, or if he actually has memories of doing the work [citation]. Plaintiffs further assertions that he was not employed or supervised by James R. Jones or JEB Farms are inconsistent with his own testimony and therefore are insufficient to create a triable issue of material fact, as no reasonable trier of fact could find that he was not supervised by, or the special employee of JEB Farms at the time of the accident."
In addition, the trial court determined Moraless beliefs about his work irrelevant and insufficient to create a triable issue of fact. The overwhelming evidence presented by JEB Farms showed Morales was a special employee. This evidence consisted of testimony by Lara and Jones regarding Joness authority to supervise and control the details of Moraless work. Accordingly, the court granted JEB Farmss motion for summary judgment.
Discussion
Standard of Review
A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. We review the trial courts decision de novo, considering all the evidence the parties offered in connection with the motion, except that which the court properly excluded, and the uncontradicted inferences the evidence reasonably supports. In the trial court, once a defendant has shown that one or more elements of the plaintiffs cause of action cannot be established, the burden shifts to the plaintiff to show the existence of a triable issue. To meet that burden, the plaintiff may not rely upon the mere allegations or denials in his pleadings but, instead, must set forth the specific facts showing that a triable issue of material fact exists as to that cause of action. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
Whether an employment relationship exists is generally a question of fact. JEB Farms insists it provided the trial court with compelling evidence that Morales sought employment with JEB Farms, was hired, and over the next three years performed a variety of tasks under the exclusive supervision of farm personnel, including work as a truck driver, for which he was paid by the trip, and general farm labor, for which he was paid by the hour. In its estimation, the evidence that JEB Farms was "at least" Moraless special employer, if not his general employer, is overwhelming.
However, for purposes of summary judgment, we do not weigh the evidence or assess its quality. No matter how compelling the evidence in support of summary judgment might seem, this drastic remedy will be granted only if there is no issue of triable fact. Only if the evidence and inferences therefrom are not in conflict does the question of whether an employment relationship exists become a question of law that may be resolved by summary judgment.
The Problem of Memory and Recall
As noted, affidavits in opposition to summary judgment need only show the existence of an issue of fact and are not required to persuade the trier of fact as to the proper disposition of that issue. (Johnson v. Canadian Transport Co. (1976) 54 Cal.App.3d 827, 834.) The facts alleged in the affidavits of a party opposing summary judgment must be accepted as true, and such affidavits, to be sufficient, need not necessarily be composed wholly of evidentiary facts. (Blaustein v. Burton (1970) 9 Cal.App.3d 161, 175-176.)
On the other hand, although affidavits of the opposing party are to be liberally construed in its favor, summary judgment will stand where the supporting affidavits state facts sufficient to sustain a judgment and the counter-affidavits do not proffer competent and sufficient evidence to present a triable issue of fact. (McCunn v. California Teachers Assn. (1970) 3 Cal.App.3d 956, 964.) A party cannot avoid summary judgment based on mere speculation and conjecture, but instead must produce admissible evidence. (Pacific Gas & Electric Co. v. City of Oakland (2002) 103 Cal.App.4th 364, 371.) Opinions or conclusions in an opposing partys declarations are not sufficient to create a triable issue of fact. (Barisich v. Lewis (1990) 226 Cal.App.3d 12, 20-21.)
The opposition to summary judgment in the present case is based largely on the deposition testimony of Morales. Morales suffers from memory deficits as a result of the accident underlying his personal injury action. He remembers some things but not others. In one deposition, Morales testified he remembered going to work and moving alfalfa. He could remember only bits and pieces of whom he worked with or where he worked.
JEB Farms attempts to argue these memory difficulties support a wholesale rejection of the entirety of Moraless testimony in opposition to its summary judgment motion. We disagree. Generally, a court cannot resolve questions about a declarants credibility in a summary judgment proceeding unless admissions against interest have been made that justify disregard of any dissimulation. (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 822.) Insofar as Moraless memory difficulties create credibility issues, they do not compromise his opposition to summary judgment.
Nonetheless, evidence pertaining to particular events cannot be put in issue by a plaintiffs professed inability to recall the events. Perhaps a different rule might obtain where a memory-impaired plaintiff is the only source of information other than the defendant regarding a particular event. Such is not the case here. Plaintiffs memory issues therefore do not excuse his obligation to produce admissible evidence in opposition to evidence offered by defendants on critical issues.
Special Employment
A special employment relationship arises when an employer lends an employee to another employer and relinquishes to the borrowing employer all right of control over the employees activities. The borrowed employee is held to have two employers: his original, or general, employer and a second, the special employer. In this dual employer situation, the employee is generally limited to a statutory workers compensation remedy for injuries he receives in the course of his employment with the special employer. The employee may not bring a separate tort action against either employer. (Riley v. Southwest Marine, Inc. (1988) 203 Cal.App.3d 1242, 1247-1248 (Riley).)
A variety of factors are relevant in determining whether an employee is the borrowed employee of another: (1) whether the borrowing employers control over the employee and the work performed extends beyond mere suggestion of details or cooperation; (2) whether the special employer possessed the power to fire the employee; (3) whether there was an agreement, understanding, or meeting of the minds between the parties; (4) whether the employee acquiesced in the situation; (5) whether the original employer terminated his relationship with the employee; (6) whether the employer furnished the tools and place of performance; (7) whether the new employment was lengthy; (8) whether the borrowing employer had the obligation to pay the employee; and (9) whether the work performed was unskilled. (Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848, 857 (Wedeck); Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 217 (Brassinga).)
Paramount among these factors in determining the existence of a special employment relationship is whether the special employer has the right to control and direct the manner and method by which the work is performed. (Wedeck, supra, 59 Cal.App.4th at p. 857.) Indeed, all of the factors in some manner implicate the right of control.
Circumstances tending to negate the special employment relationship include: the worker is skilled, and has substantial control over operational details; the worker is not engaged in the employers usual business; the worker is employed only briefly; the worker uses his or her own tools; and the employer neither pays nor has the right to discharge the worker. (Riley, supra, 203 Cal.App.3d at p. 1250.)
Though JEB Farms may claim to be Moraless exclusive employer, Moraless recounting of his employment history and the fact that his employment and payroll records list Lara as his employer create a triable issue of fact as to that claim. We therefore narrow the focus of our inquiry to the question of whether JEB Farms was Moraless special employer and whether Moraless status as a special employee of JEB Farms can be determined as a matter of law by summary judgment. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 175 (Kowalski); Wedeck, supra, 59 Cal.App.4th at p. 857.)
Control
As noted, the paramount consideration in determining the existence or nonexistence of a special relationship is whether the alleged special employer exercises control over the details of the employees work. (McFarland v. Voorheis-Trindle Co. (1959) 52 Cal.2d 698, 705 (McFarland); Brassinga, supra, 66 Cal.App.4th at p. 215.)
Control is contextual. The control required to perform a task involving numerous, complex decisions differs from the control required to perform an elemental task. The context described by JEB Farms involves Morales as an intermittent full-time employee who over a period of three years performed general farm duties, for which he was paid by the hour, and also transported the farms produce on a tractor-trailer truck, for which he was paid by the trip. JEB Farms insists it controlled every aspect of his employment — from harvesting alfalfa to driving the farms tractor-trailer truck. The trial court agreed, finding JEB Farms "supervised and had sole control over the details and type of work [Morales] performed for JEB Farms."
Morales argues he presented evidence sufficient to raise a triable issue of fact as to whether JEB Farms exercised control over his work. In his deposition testimony, Morales denies ever performing general farm work for JEB Farms. Nonetheless, he admits driving a tractor-trailer truck for JEB Farms, though he insists that in doing so he was Laras employee. That Morales may have been Laras employee, however, does not preclude him from being JEB Farmss special employee.
The record does not paint a detailed picture of the truck driving duties assigned to Morales, though the nature of the work is described by Ottolini as follows: A machine called a "hay squeezer" would pick up hay from a "stack yard" where the hay was stacked and load it onto the tractor-trailer. The hay squeeze operator would straighten the load. It was then the drivers job to secure the load and drive the truck to its destination, returning to repeat the process.
Given the simplicity of the task and the experience of the workers, it is unremarkable that JEB Farms did not have anyone assigned to watch Ottolini and Morales loading hay onto tractor-trailers. Lara never observed the operation either. The absence of a supervising agent is of limited significance. It is not essential that control be exercised. "It is sufficient if the right to direct the details of the work is present." (McFarland, supra, 52 Cal.2d at p. 704.) The fact that an employer chooses to entrust the performance of rudimentary tasks to a trusted employee does not foreclose a finding of special employment.
We also find little significance in the testimony of Jones that he told Morales when and where to pick up and deliver loads of hay. "The fact that instructions are given as to the result to be achieved does not require the conclusion that a special employment relationship exists." (McFarland, supra, 52 Cal.2d at p. 704.) Therefore, any conclusions regarding Moraless employment status must rest on something other than the absence of supervisors observing routine loading operations or the communication of routine pickup and delivery instructions. The record contains ample support for a finding that JEB Farms was Moraless special employer.
First, we note there is no claim by Morales that he was an independent contractor. Rather, he claims to have been Laras employee; Lara provided control and direction. Lara, however, disclaims any such authority and Morales offers no facts to the contrary. Lara testified he provided payroll and recruitment services for JEB Farms. While he also provided "[t]raining and partial supervision" to workers generally, there is no indication that he provided supervision to Morales. Lara was not licensed to drive trucks, did not send any of his workers to truck driving school, and provided no formal or informal training on the operation of farm equipment. He never saw any of the truck drivers at JEB Farms doing their work and never saw any hay loading operations. Further, all of the indicia of control, to the extent they apply, support a finding that JEB Farms was Moraless special employer. None supports Moraless contrary claim:
(1) Whether JEB Farmss control over Morales and the work he performed extended beyond mere suggestion of details or cooperation.
According to Jones, Morales was treated as an employee and received instructions from him like every other employee. Morales filled out employment documents that identify JEB Farms as Moraless employer. JEB Farms provided Morales with an employee handbook. Morales filled out time cards. If Morales needed time off, he asked Jones for permission. If these facts are true, then it is clear that JEB Farmss control of Morales extended beyond the offer of suggestions and solicitation of cooperation.
While Moraless deposition testimony reflects his belief that he was employed by Lara, it does not counter the factual averments made by Jones, Lara, and others regarding JEB Farmss control. In most instances, Morales simply did not recall the facts surrounding his relationship with JEB Farms.
Thus, Morales testified that before the accident he did not recall Joness telling him where he should go do his work or how it should be done. However, on further questioning he testified he did not recall "anybody" telling him where he should go to work or what type of work he should perform. Thus, Morales does not deny that Jones gave him instructions; he simply does not recall.
Indeed, at the start of his deposition, Morales could not recall the type of work he did.
"Q. Let me start over again so you understand, Emilio. [¶] Do you actually remember moving alfalfa prior to the date of your accident or do you believe that thats the type of work you did based on something somebody told you after the accident?
"A. I do not recall.
"Q. So does that mean that you dont actually remember prior to the accident moving the alfalfa yourself?
"A. I seem to remember a very little bit, but I am not very sure.
"Q. So you are not sure if its something you remember or somebody told you that?
"A. No."
Jones testified Morales performed duties as a general farm laborer, for which he was paid by the hour, and also drove a tractor-trailer, for which he was paid by the trip. The statement of undisputed facts indicates that "[i]n order to provide Plaintiff with constant full time work during the growing season, he was given a variety of different jobs to perform. On some days he would perform more than one type of work at more than one type of pay rate." Joness testimony was supported by time sheets purportedly signed by Emilio Morales during the months leading up to November 2002.
If indeed truck driving was only one of many tasks performed at JEB Farms by Morales, this would support the notion that Morales was an employee of JEB Farms, not simply a truck driver assigned by Lara to pick up and deliver JEB Farms produce. Morales disputes this assertion in his brief but cites no evidence at odds with it. Morales does not deny that he performed hourly work. Rather, he recalled that when he was driving the truck, he was paid per trip, though he did not recall filling out paperwork documenting the trips. When asked if he recalled whether he was paid hourly for any work, he answered: "I do not recall."
The completion of employment forms by Morales would support a finding of an employment relationship between Morales and JEB Farms. Morales does not deny the assertion by Jones that he applied for employment at JEB Farms. He identified his signature as an employee on an "Employment Eligibility Verification" form. Joness signature appears on the same form dated October 9, 2000. While Morales may not recall the circumstances of the signing, his inability to recall does not refute the clear and unequivocal testimony of Jones that Morales was hired by JEB Farms in October 2000 and remained employed until the date of the accident.
(2) Whether JEB Farms possessed the power to fire Morales.
Whatever Morales believed about Laras role, both Lara and Jones testified that Jones had the sole power to discipline or fire Morales. Moraless erroneous belief to the contrary does not alter the reality that Jones, the head of JEB Farms, had the power to fire him. "Evidence that the alleged special employer has the power to discharge a worker `is strong evidence of the existence of a special employment relationship." (Kowalski, supra, 23 Cal.3d at p. 177.) This factor thus supports a finding that Morales was an employee of JEB Farms.
(3) Whether there was an agreement as to Moraless status or acquiescence by him.
Two factors identified by the cases as supporting a finding of special employment address the circumstance where an employee is clearly the employee of a contractor who is hired to perform a task for the putative special employer, who exercises some direction over the employees performance. In such a circumstance, it is appropriate to ask: a) whether there was an agreement, understanding, or meeting of the minds between the parties as to the employees status, and b) whether the employee acquiesced in the situation.
Morales maintains that he was an employee of Lara assigned to drive JEB Farmss tractor-trailer to transport JEB Farms produce. The evidence supporting his employment consists of Moraless own recounting of his employment history — he asked for and received employment from Lara — and the fact that he appears on Laras payroll records and was paid by him. However, as summarized earlier, there is also abundant evidence that Morales was employed directly by JEB Farms. This evidence is not disputed by Lara, nor is it contradicted by Moraless fragmentary recall of his employment history. While nominally Moraless employer, Lara treated Morales as an employee of JEB Farms, which hired him and then placed him on Laras payroll for administrative purposes. Lara provided no training and no supervision. He simply tabulated time slips and trip invoices, billed JEB Farms for salary and payroll expenses, and cut a check to Morales. This reflects an understanding between Lara and JEB Farms that, in regard to Morales, Lara was only providing payroll services.
While Morales argues there is no evidence that he ever consented to any special relationship, JEB Farms correctly notes that "consent 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.) As we have already explained, JEB Farms has provided substantial evidence that it had treated Morales as its employee since 2000 and Morales had performed in that capacity. Morales has offered no countervailing evidence. This factor thus supports a finding that Morales was an employee of JEB Farms.
(4) Whether the original employer terminated his relationship with the employee.
As explained, JEB Farms claims it was Moraless seasonal employer since 2000 and remained such until the accident. Morales does not acknowledge his employment by JEB Farms but claims to have become Laras employee as a truck driver in 2001. Therefore, this factor is not an issue.
(5) Whether the employer furnished the tools and place of performance.
Moraless deposition testimony, though a bit confusing, indicates that he purchased ropes, tie-downs, batteries, gloves, boots, trousers, shirts, cap, and a crescent wrench. Morales had a tool box containing small tools, some purchased by JEB Farms and some owned by Morales. There is no indication that Morales was required to purchase these tools or that the tools were essential to the performance of his work. Jones declares that if a tool was needed, JEB Farms would provide it. Morales presents no evidence that directly dispute this assertion. In any event, the principal tool of Moraless work was the truck that he drove, which was indisputably provided by JEB Farms. It is also undisputed that all of Moraless work was performed on JEB Farmss leased land, except when Morales was driving JEB Farmss tractor-trailer trucks on public roadways to and from pick-up and drop-off locations. This factor thus supports a finding that Morales was an employee of JEB Farms.
(6) Whether the new employment was lengthy.
Whether we accept JEB Farmss assertion that Morales was its employee since 2000 or Moraless assertion that he performed work at JEB Farms, but through Lara, since 2001, his employment was lengthy, a factor that supports a finding of special employment. It is also significant that over this extended period Moraless truck driving activities were confined to JEB Farms using a JEB Farms truck. He made no pickups and deliveries for others.
(7) Whether the borrowing employer had the obligation to pay the employee.
While the payment of wages is not determinative, it is a factor in deciding the existence of a special employment relationship. (Guarantee Ins. Co. v. Ind. Acc. Com. (1943) 22 Cal.2d 516, 520.) It is undisputed that JEB Farms paid Moraless salary. Laras undisputed deposition testimony indicated that he would send an invoice to JEB farms based on time and trip slips submitted by JEB Farms workers. JEB Farms would then send money so Lara could pay the workers and the payroll taxes, including payment for workers compensation insurance coverage. Lara would bill 8 percent of gross pay for his services. This factor thus supports a finding that Morales was an employee of JEB Farms.
(8) Whether the work performed was unskilled.
The nature of the work is a consideration in determining special employment because unskilled services are more susceptible to control by the employer. (Martin v. Phillips Petroleum Co. (1974) 42 Cal.App.3d 916, 921.) While a special license is required to operate a tractor-trailer truck, the work involved in the present dispute — loading and hauling hay on a tractor-trailer truck — is relatively unskilled and amenable to supervision by a farm employer like JEB Farms to the extent such supervision was required. It appears that minimal supervision was required near the time when the underlying accident occurred. The job had become routine. However, when Morales first began driving trucks, according to Jones, he was instructed by other JEB Farms employees. As noted earlier, it is the right to direct details of the work and not the exercise of the right that is important. The work performed by Morales was of a nature that permitted the exercise of that right when appropriate. This factor thus supports a finding that Morales was an employee of JEB Farms.
In summary, JEB Farms has presented evidence supporting a finding that Morales was an employee of JEB Farms. Morales failed to offer countervailing evidence. In its absence, there are no triable issues of fact. Accordingly, the trial court properly determined that Moraless action is barred by principles of workers compensation exclusivity.
DISPOSITION
The judgment is affirmed.
We concur:
SCOTLAND, P.J.
DAVIS, J.