CASO v. NIMROD PRODUCTIONS, INC. No. B198347.
163 Cal.App.4th 881 (2008)
CHRISTOPHER CASO et al., Plaintiffs and Appellants, v. NIMROD PRODUCTIONS, INC., et al., Defendants and Respondents.
Court of Appeals of California, Second District, Division Seven.
May 14, 2008.
McNicholas & McNicholas, John P. McNicholas, Robert P. Wargo; and Joshua M. Merliss for Plaintiffs and Appellants.
Law Office of Thomas H. Edwards and Thomas H. Edwards for Defendants and Appellants.
PERLUSS, P. J.
Christopher Caso and his wife Anna Marie Caso appeal from the judgment entered in their personal injury action after the trial court granted summary judgment in favor of Peter O'Fallon, Merritt Yohnka and Randy Hall, as well as their respective loan-out corporations Ryan Productions, Inc. (RPI), Merritt Yohnka, Inc. (MYI), and Nimrod Productions, Inc. (NPI). The trial court ruled the Casos' claims were barred by workers' compensation exclusivity. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Accident and the Lawsuit
Christopher Caso, a professional stuntman, suffered severe head injuries while performing a stunt for a television show called M.D.'s, a program produced in 2002 by Touchstone Television Productions (Touchstone). Following the accident, the Casos sued O'Fallon, Yohnka and Hall, as well as RPI, MYI and NPI. Caso asserted claims for negligence; Anne Marie Caso alleged loss of consortium.
According to the allegations in the complaint, the stunt Caso performed required him to fall through a scored drywall ceiling onto a collapsible gurney and crash pad. Yohnka, who was scheduled to be the stunt coordinator for the stunt, advised Caso and Touchstone a few days in advance that, due to an unforeseen scheduling conflict, he would be unavailable the date the stunt was to be performed. Pursuant to Yohnka's recommendation, Yohnka was replaced by Hall. On the day of the stunt, Hall and O'Fallon refused Caso's request to drill a hole in the ceiling and failed to ensure the center of the crash pad was properly placed. The crash pads, which had been provided by Yohnka, were also poorly maintained. Because of Yohnka's, Hall's and
2. The Summary Judgment Motions
O'Fallon, Yohnka, and Hall moved for summary judgment on the ground each of them was a special employee of Touchstone at the time the accident occurred and was acting in the scope of that special employment. Thus, under Labor Code section 3601, subdivision (a),
The motions were consolidated. In support of the consolidated motions, O'Fallon, Yohnka and Hall each testified the use of loan-out corporations was a common practice in the entertainment industry. When an individual is hired by a producer to work on a production, the individual informs the producer he or she has a loan-out corporation.
Each of the individual defendants and his loan-out corporation signed a "television player loan-out agreement" with Touchstone. Those agreements
O'Fallon testified he understood he was an employee of Touchstone during the production of the M.D.'s episode; he reported directly to Paul Marks and Ken Topolsky, Touchstone producers, and understood Touchstone had the ultimate authority over his direction. Yohnka and Hall similarly testified they believed they were employees of Touchstone, based upon the terms in their employment agreements and the fact that their employment relationship was subject to the terms of the collective bargaining agreements between Touchstone and the Screen Actors Guild. Both Yohnka and Hall explained all the work they did for the M.D.'s episode, including planning and choreographing Caso's stunt, was subject to the detailed supervision and control of Marks and O'Fallon.
Each defendant proffered evidence that the loan-out corporations played no part in the production of the M.D.'s episode other than to receive payments from Touchstone. Yohnka also testified it was customary for the stunt coordinator to obtain equipment needed to perform the stunt and then seek
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 M.D.'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.
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.
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
a. The doctrine of special employment
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"].)
b. The undisputed facts demonstrate O'Fallon, Yohnka and Hall were special employees of Touchstone
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 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 during the loan-out period to Touchstone. (Marsh, supra, 26 Cal.3d at pp. 494-195; 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 liable, 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
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.
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