Caso v. Nimrod Productions, Inc.

The Casos filed an opposition to the consolidated motions, arguing triable issues of fact existed as to whether O’Fallon, Yohnka and Hall were special employees of Touchstone and whether their loan-out corporations had relinquished all control over them for purposes of the production in which Caso was injured. They cited evidence O’Fallon, Yohnka and Hall remained on the payroll of their respective loan-out corporations while working on the MD’s project, as well as evidence that, although Touchstone had the right to terminate any of them for any reason, it was still required to pay them their service compensation under the “employment” agreement. In addition, the Casos emphasized O’Fallon, Yohnka and Hall were highly skilled at their jobs and had a great deal of discretion in how to perform their services for Touchstone.

The trial court granted the consolidated summary judgment motions, finding O’Fallon, Yohnka and Hall were special employees of Touchstone and had been acting in the scope of that employment at the time the accident occurred. Accordingly, the action against each of them by their coemployee was precluded by section 3601. The court also concluded the loan-out corporations did not retain any control over their employees during the loan-out period and thus could not be held vicariously liable for the acts of their employees. Because Anne Marie Caso’s claim for loss of consortium was based on her husband’s work-related injury for which workers’ compensation was the exclusive remedy, her claim failed as well.

CONTENTION

The Casos contend summary judgment was improperly granted because triable issues of material fact exist concerning whether O’Fallon, Yohnka and Hall were “special employees” of Touchstone and whether their respective loan-out corporations had relinquished full control over their employees to Touchstone.

DISCUSSION

1. Standard of Review

We review the trial court’s grant of summary judgment de novo and decide independently whether the parties have met their respective burdens and whether facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342 , 1348

2. The Trial Court Did Not Err in Concluding as a Matter of Law the Casos’ Claims Were Barred by Workers’ Compensation Exclusivity

Section 3351 defines an employee as “every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed . . . Apart from certain exceptions not relevant to this case, the “exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment” is benefits under the workers’ compensation laws. (§ 3601, subd. (a).) This statutory restriction does not affect the employee’s rights to tort damages from individuals or entities with whom the employee has no employment relationship. (§ 3852; Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486 , 495 [ 162 Cal.Rptr. 320 , 606 P.2d 355 ] (Marsh).) For purposes of this summary judgment motion only, Caso does not dispute he was an employee of Touchstone. However, he argues triable issues of material fact exist as to whether O’Fallon, Yohnka and Hall were special employees of Touchstone. If they were independent contractors rather than special employees, he correctly observes, his claim is not barred by workers’ compensation exclusivity. (See, e.g., S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 , 349 [ 256 Cal.Rptr. 543 , 769 P.2d 399 ] (Borello) [workers’ compensation exclusivity does not apply to independent contractors].)

a. The doctrine of special employment

When an employer lends an employee to another employer and relinquishes to the borrowing employer some right of control over the employee’s activities, a “special employment relationship” arises between the borrowing employer and the employee. (Marsh, supra, 26 Cal.3d at p. 492.) “Once a special employment relationship is identified, two consequences ensue: (1) the special employer’s liability for workers’ compensation coverage to the employee, and (2) the employer’s [and its other employees’] immunity from a common law tort action, the latter consequence flowing from the exclusivity of the compensation remedy embodied in Labor Code section 3601.” (Santa Cruz Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575 , 578 [ 239 Cal.Rptr. 578 ]; see also Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168 , 175 [ 151 Cal.Rptr. 671 , 588 P.2d 811 ] (Kowalski).)

“In determining whether a special employment relationship exists, the primary consideration is whether the special employer has ‘ “[t]he right to

Although the terms of a contract may specify that a special employer retains the right to control the details of an individual’s work or purports to establish an employment relationship, “ ‘the terminology used in an agreement is not conclusive . . . even in the absence of fraud or mistake.’ ” (Kowalski, supra, 23 Cal.3d at p. 176.) There still must be evidence to support the inference to be drawn from the contract terms. (Ibid.)

Whether a special employment relationship exists generally is a question of fact. (Kowalski, supra, 23 Cal.3d at p. 175 [where evidence, though not in conflict, permits conflicting inferences, existence of special employment relationship is question of fact].) If neither the facts nor inferences are in conflict, however, the question is one of law that may be decided on summary judgment. (Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848 , 857 [ 69 Cal.Rptr.2d 501 ] (Wedeck); Johnson v. Berkofsky-Barret Productions, Inc. (1989) 211 Cal.App.3d 1067 , 1071 [ 260 Cal.Rptr. 67 ] [“[w]here the facts of employment are not disputed, the existence of a covered relationship is a question of law”].)

O’Fallon, Yohnka and Hall satisfied their burden on summary judgment to demonstrate they were special employees of Touchstone. Not only did the employment agreements between Touchstone and each of the individual defendants expressly identify O’Fallon, Yohnka and Hall as “special employees,” subject to both the benefits and limitations of the workers’ compensation laws, but also the evidence supported Touchstone’s ultimate authority to control and direct each of the individual defendants’ activities on the MD’s set: O’Fallon testified, consistent with the terms of his contract, that Touchstone retained control over the entire production, including the ability to create, edit and even transform the production as it saw fit. O’Fallon reported to Touchstone producers; Yohnka and Hall reported to O’Fallon. Each of them was performing work that was the regular business of Touchstone at a studio supplied by Touchstone, and Touchstone either supplied or had the ultimate authority to supply tools and instrumentalities used in connection with the production. Although Yohnka provided the crash pads, he acted as any other third party contracting with Touchstone to supply instrumentalities needed for the production.

Although O’Fallon, Yohnka and Hall received their paychecks from their respective loan-out corporations rather than from Touchstone, the undisputed evidence established the relationships with their loan-out corporations were administrative only, existing solely for payment purposes. (See Wedeck, supra, 59 Cal.App,4th at p. 861, fn. 8 [payment by the general employer “is not particularly enlightening in determining whether a special employment relationship exists [citation], particularly in the labor brokerage context where the general employer often handles administrative details, including payroll”].) Moreover, although the length of their respective employments was relatively short — O’Fallon was employed for one month at a time; Yohnka and Hall for just a few days — it was also standard practice in the entertainment industry to employ the person solely for the length of time his or her services were needed for the specific production.

The Casos do not meaningfully dispute any of the facts underlying the conclusion O’Fallon, Yohnka and Hall were special employees of Touchstone. Rather, they argue — unpersuasively—those facts also support the conflicting inference Touchstone did not have the right to direct O’Fallon, Yohnka or Hall’s performance of their jobs. They also insist the trial court erred in placing any reliance on the employment contracts with Touchstone identifying O’Fallon, Yohnka and Hall as “special employees.” (See Borello, supra, 48 Cal.3d at p. 349 [“[t]he label placed by the parties on their relationship is not

The Casos observe O’Fallon, Yohnka and Hall were engaged in highly skilled activities and were responsible for choreographing the stunt, raising the inference they, not Touchstone, were in control of the details of the stunt. (See Kowalski, supra, 23 Cal.3d at p. 176 [“ ‘paramount consideration [for special employment] appears to be whether the alleged special employer exercises control over the details of [an employee’s] work’ ”].) Relying on Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467 [ 255 Cal.Rptr. 755 ] (Von Beltz), a case they characterize as “on all fours” with the instant matter, they argue the record before this court reasonably supports the inference the individual defendants were independent contractors, thus precluding summary judgment.

In Von Beltz, supra, 207 Cal.App.3d 1467 , a stuntwoman was seriously injured when the stunt car in which she was riding collided with another car involved in a scene for the movie The Cannonball Run (Twentieth Century Fox 1981). The stuntwoman (Von Beltz) sued the director (Needham) and his loan-out corporation (Stuntman, Inc.) for negligence. Needham claimed he was employed by the same production company, Cannonball Productions, Inc., that employed Von Beltz and thus was a coemployee, limiting Von Beltz’s recovery to workers’ compensation benefits. Stuntman, Inc., the loan-out company, asserted Needham was not its agent, precluding its liability to Von Beltz on a respondeat superior theory. The evidence established, however, that Needham had contracted through Stuntman with North Shore Investments to direct the movie. Cannonball Productions was formed to produce the movie only when other financial interests were brought into the deal. (Id. at pp. 1474-1475.)

The issues were tried to a jury, which found Needham was not an employee of Cannonball Productions. The Court of Appeal affirmed, concluding sufficient evidence supported the jury’s verdict. Although the appellate court recognized some evidence indicated Cannonball Productions had authority over Needham and could override his direction, tending to show Needham was in fact its employee, the court emphasized Needham’s actual employment contracts were with Stuntman and North Shore Investments. (Von Beltz, supra, 207 Cal.App.3d at pp. 1486-1487.)

Unlike the situation in Von Beltz, supra, 207 Cal.App.3d 1467 , there is no conflicting evidence for the jury to resolve, nor does the undisputed evidence permit any conflicting inferences. In Von Beltz Needham’s loan-out company contracted with North Shore Investments for the director’s services. North

The Casos’ reliance on the federal district court’s decision in Cockrell v. U.S. (S.D.Cal. 1999) 101 F.Supp.2d 1291 is misplaced. In Cockrell the court held no special employment relationship existed between the United States government and Aero Union Corporation, which furnished tanker aircraft and qualified crew to the United States Forest Service, despite a contract providing that the government had the exclusive control over the air services’ operations. The district court found nothing in either the contract itself or in the testimony of the parties indicating a special employment relationship was ever contemplated. (Id. at p. 1293.) In contrast, the employment contracts in the instant case, as well as the testimony provided in support of the consolidated motions for summary judgment, unequivocally establish the intent to create such an employment relationship.

Finally, the Casos contend a reasonable inference could be drawn that each of the corporate defendants (that is, the loan-out companies) was engaged in a “project of mutual interest” with Touchstone, such that no transfer of control over the borrowed employee’s activities occurred. (See Marsh, supra, 26 Cal.3d at p. 493 [“where the servants of two employers are jointly engaged in a project of mutual interest, each employee ordinarily remains the servant of his own master and does not thereby become the special employee of the other”].) In Marsh a truck driver (Marsh) sued Tilley Steel, the employer of a crane operator, for personal injuries Marsh had suffered as a result of the crane operator’s (Wynglarz’s) negligence. Marsh was employed by Maxwell, a general contractor. The trial court granted a nonsuit in favor of Tilley Steel, ruling that, because Maxwell exercised control over Wynglarz, the latter had become a special employee of Maxwell at the time the accident occurred. Thus, Marsh and Wynglarz were coemployees, and Marsh was limited to recovering benefits under the workers’ compensation laws. The Supreme Court reversed, concluding a reasonable juror could find Tilley Steel and

The general contractor/subcontractor relationship central to the holding in Marsh, supra, 26 Cal.3d 486 , is not present here. There is no project of mutual interest. Neither the loan-out corporations nor their employees had a separate interest in the project other than compensation by Touchstone for their participation. Touchstone retained full control not only over the results it desired, but also over the manner in which those results were to be achieved. Nothing in the contracts or the evidence presented suggested O’Fallon, Yohnka and Hall or their respective loan-out corporations retained ultimate authority over their job-related activities while working on Touchstone’s production.

c. The Casos did not present any evidence from which a jury could infer the corporate defendants retained some control over their respective employees so that they could remain vicariously liable notwithstanding their employees’ special employment relationship with Touchstone

The Casos alternatively contend, even if O’Fallon, Yohnka and Hall were special employees of Touchstone as a matter of law, it is reasonable to infer that the corporate defendants (the loan-out companies) retained some control over them during the loan-out period. After all, O’Fallon, Yohnka and Hall were the owners and sole employees of their respective corporations. Accordingly, although Caso cannot sue the individual defendants because he and they are coemployees, he is not an employee of the loan-out corporations and is thus not precluded by the workers’ compensation exclusivity doctrine from suing any of the corporate defendants under a respondeat superior theory. (See Marsh, supra, 26 Cal.3d at pp. 494-495 [“Facts demonstrating the existence of a special employment relationship do not necessarily preclude a finding that a particular employee also remained under the partial control of the original employer. 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.”]; see also Industrial Ind. Exch. v. Ind. Acc. Com. (1945) 26 Cal.2d 130 , 135 [ 156 P.2d 926 ] [“it is settled that ‘a general and special employment relationship is present if there exists in each some power, not

To impose liability on the corporate defendants under this analysis, the Casos must be able to establish (or, in the context of opposing summary judgment, present evidence creating a triable issue of material fact) the loan-out corporations retained at least some control over their employees dining the loan-out period to Touchstone. (Marsh, supra, 26 Cal.3d at pp. 494-495; cf. Societa per Azioni de Navigazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446 , 456 [ 183 Cal.Rptr. 51 , 645 P.2d 102 ] [“[i]f the borrowed servant commits a tort while carrying out the bidding of the borrower, vicarious liability attaches to the borrower and not to the general master”].) “Self-control,” however, is not the type of control required to prove a dual employment relationship. Thus, whatever superficial appeal there may be to the argument the loan-out corporations and their employees were one and the same, and therefore necessarily could control themselves, there is simply no evidence that the loan-out corporations, in fact, retained any control over O’Fallon, Yohnka and Hall during the loan-out period or that they were involved in any aspect of the production other than serving as a legal vehicle for the receipt of payment on behalf of their employees. (Cf. Von Beltz, supra, 207 Cal.App.3d at p. 1488 [holding, in light of jury’s findings, whether director Needham’s loan-out company, “as a corporate entity, was capable in and of itself of controlling Needham is beside the point,” but acknowledging trial court’s observation, based on evidence Needham as president and sole shareholder controlled the loan-out company, not vice versa, that “ ‘in reality [it] is impossible’ ” for “ ‘the corporation which he owns’ ” to control him].) O’Fallon, Yohnka and Hall may indeed be the alter egos of their respective loan-out corporations and, therefore, potentially liable for the torts of their respective corporations to the same extent their corporations are hable, but that is a far different matter from finding the loan-out corporations retained any control over their activities while they were engaged as special employees of Touchstone.

d. Anne Marie Caso ’s loss of consortium claim is also barred

Section 3600 provides that payment of workers’ compensation benefits is “in lieu of any other liability whatsoever to any person”; section 3601 provides that receipt of those benefits is the “exclusive remedy” for the injury or death of an employee against any other employee of the employer acting within the scope of his or her employment. In light of our conclusion Caso’s negligence claims against O’Fallon, Yohnka and Hall are barred by workers’ compensation exclusivity, so too is Anne Marie Caso’s claim for loss of

DISPOSITION

The judgment is affirmed. O’Fallon, Yohnka, Hall, RPI, MYI and NPI are to recover their costs on appeal.

Woods, J., and Zelon, J., concurred.

Appellants’ petition for review by the Supreme Court was denied September 17, 2008, SI64582.