Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Mark W. Snauffer, Judge., Super. Ct. No. 04CECG003384.
Perez, Williams & Medina, Robert Gray Williams and Lazaro Salazar for Plaintiff and Appellant.
Law Offices of Myers & Mayfield, Gregory L. Myers and Catherine J. McCord for Plaintiff and Respondent.
OPINION
DAWSON, J.
Appellant Jesus Lopez was injured while repairing a machine at respondent MVP Hydratech, Inc. (Hydratech). Lopez sued Hydratech for negligence. Hydratech moved for summary judgment on the ground that Lopez was a “special employee” whose exclusive remedy was provided by workers’ compensation. (Lab. Code, § 3602, subd. (a).) The superior court granted Hydratech’s motion for summary judgment. Lopez appealed, claiming there was a triable issue of fact regarding whether he was a special employee of Hydratech.
Further statutory references are to the Labor Code unless otherwise indicated.
We conclude that the undisputed material facts establish that at the time of the accident Lopez was in the service of Hydratech and was acting under the directions and control of other Hydratech employees. Consequently, we conclude as a matter of law that Lopez was a special employee of Hydratech, and his exclusive remedy is workers’ compensation. Therefore, the judgment is affirmed.
FACTS
Some appellate decisions involving a motion for summary judgment contain a recitation limited to the undisputed facts set forth in the separate statements filed by the parties. (See Code Civ. Proc., § 437c, subd. (b)(1) & (3).) In this matter, neither the parties nor the superior court adopted the view that facts not set forth in the separate statements do not exist for purposes of summary judgment. Consequently, our recitation of facts will include the undisputed matters set forth in the separate statements as well as other undisputed facts that are established by the evidence presented.
On appeal, Lopez has not argued technical violations of the myriad of unforgiving requirements applicable to motions for summary judgment. (See Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1607 (Brantley.) For example, Lopez has not argued that the moving party’s separate statement is defective because it fails to set forth all material facts. (See Code Civ. Proc., § 437c, subd. (b)(1) [separate statement to set forth all material facts]; Cal. Rules of Court, rule 3.1350(d) [separate statement must identify each supporting material fact claimed to be without dispute].) Nor has Lopez argued that the moving party’s separate statement is defective because it fails to reference the evidence relied upon by the superior court to establish Hydratech carried its burden (specifically, Buta Singh Dhillon’s deposition). (See Zebrowski, The Summary Adjudication Pyramid (Nov. 1989) 12 L.A. Law. 28, 29 [examination of moving party’s evidence must be completed before considering opposing party’s evidence].)
Undisputed Facts Contained in the Separate Statements
Hydratech’s business is the assembly-line manufacturing of complete hydraulic cylinders and related components.
Placement Pros was in the business of supplying temporary labor to Hydratech; Hydratech had an agreement with Placement Pros to provide temporary employees on an as-needed basis.
Placement Pros was Lopez’s general employer and assigned him to work at Hydratech.
Lopez did not work on Hydratech’s manufacturing line, but was a machine repair and maintenance mechanic. Lopez was classified by Hydratech as a level 1, basic mechanic.
Placement Pros provided Lopez to perform this work based upon the job description, educational, and work experience minimum requirements provided by Hydratech.
Lopez, a Placement Pros employee, accepted the Placement Pros assignment to perform work at Hydratech.
Placement Pros did not terminate its employment relationship with Lopez after he was assigned to Hydratech.
Hydratech was obligated to pay Placement Pros for the services of Lopez, and Placement Pros paid Lopez. Lopez was advised that he would be paid $8 per hour as a maintenance mechanic by Placement Pros for his work at Hydratech.
When Lopez first reported to Hydratech, Buta Singh Dhillon, the Hydratech “proto” department supervisor, gave him a tour of the facility. Dhillon advised Lopez that he would be responsible for repairing and maintaining most of the machines.
Lopez performed work for Hydratech at Hydratech’s place of business according to Hydratech’s normal work hours.
Lopez was advised that, if his work was satisfactory, he would be hired as a regular employee at Hydratech.
Lopez worked as a Placement Pros employee at the Hydratech facility from February 2004 until April 16, 2004, the day of the accident.
Dhillon, who supervised Hydratech’s maintenance department, never inspected or signed off on any of Lopez’s work assignments for competency or completion.
Dhillon felt that Lopez was being underpaid because of the experience he had.
On April 16, 2004, Dhillon arrived at Hydratech’s facility and sent Lopez to assist in the repair of an SH50 milling machine.
Factual Disputes
Lopez contends there is a factual dispute over the extent of Hydratech’s control of and supervisory authority over his work and, thus, a factual dispute over the larger question whether he was a special employee of Hydratech. Specifically, Lopez contends that (1) Hydratech did not have sole supervisory authority over him and (2) the degree of oversight and direction provided by Hydratech was so slight that a dispute exists regarding whether he was under Hydratech’s control.
On the one hand, Hydratech asserted one of its employees “was solely responsible for the supervision of [Lopez].” On the other hand, Lopez asserted that Dhillon only gave him assignments and did not supervise his work, did not provide him with training, did not provide daily direction regarding how the work was to be completed, and did not sign off his work for competency or completion. In addition, Lopez asserted that a management representative from Placement Pros held weekly private meetings with its employees at Hydratech and that Hydratech management was not privy to those meetings.
Hydratech asserted that it provided the tools and place to perform the work. Lopez disputed whether Hydratech provided the tools he used for his work assignments at the Hydratech facility. It appears that Lopez used tools from a combination of sources—some were left behind by an employee who was on disability leave, some belonged to Dhillon, and some belonged to Lopez.
When Lopez arrived at the SH50 milling machine on April 16, 2004, Charles Sullivan, a line supervisor, and Paul Thornton, sales, were at the machine. In his deposition, Lopez testified that he was told to take a guard off the machine, was sent inside, and “[t]hen I was told that there was a big piece of metal of about 2 or 3 inches thick, like a very big bolt, that I should turn that one ….” Subsequently, Charles Sullivan said, “Get out.” Lopez looked over to the side and saw the machine already coming towards him.
PROCEEDINGS
In November 2004, Lopez filed a complaint against Hydratech alleging its general negligence caused him personal injuries. Hydratech answered with a general denial and asserted as an affirmative defense that Lopez was acting in the course and scope of his employment at the time of his injuries and that his exclusive remedy was workers’ compensation.
In December 2005, Hydratech filed a motion for summary judgment and supporting papers. Lopez filed opposition papers that contested some of the material facts set forth in Hydratech’s moving papers and included additional material facts.
The superior court held a hearing on the motion on March 23, 2006, and filed its written decision on May 5, 2006. The superior court concluded that the evidence was sufficient to rule, as a matter of law, that Hydratech was Lopez’s special employer. As result, the superior court granted the motion for summary judgment.
Judgment was entered in favor of Hydratech. Lopez filed a timely notice of appeal.
DISCUSSION
I. Standard of Review for Summary Judgment
A. General Principles
Many of the legal principles applied by appellate courts when reviewing a motion for summary judgment are well established. (See Code Civ. Proc., § 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 (Aguilar); Brantley, supra, 42 Cal.App.4th at p. 1602 [this court set forth a three-step analysis for reviewing motions for summary judgment].)
An appellate court must independently determine whether a triable issue of material fact exists and whether the moving party is entitled to summary judgment as a matter of law. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) A triable issue of fact exists when the evidence reasonably would permit the trier of fact, under the applicable standard of proof, to find the purportedly contested fact in favor of the party opposing the motion. (Aguilar, supra, 25 Cal.4th at p. 850.)
B. Summary Judgment and Special Employees
The only question presented in this appeal is whether there is a triable issue of fact concerning the existence of a special employment relationship between Lopez and Hydratech.
Generally, the existence of a special employment relationship is a question of fact that is reserved for the jury. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 175 [trial court’s grant of judgment notwithstanding the verdict reversed].) There is, however, an exception to this general rule. “[I]f neither the evidence nor inferences are in conflict, then the question of whether an employment relationship exists becomes a question of law which may be resolved by summary judgment.” (Riley v. Southwest Marine, Inc. (1988) 203 Cal.App.3d 1242, 1248 (Riley) [trial court’s grant of summary judgment affirmed on appeal]; see Code Civ. Proc., § 437c, subd. (c) [material fact that is subject to conflicting inferences raises a triable issue].)
Hydratech contends this case falls within the exception to the general rule, which is more common when the worker is provided through an employment agency. Lopez contends the general rule applies, and the issue of his employment relationship with Hydratech must be presented to a jury.
II. Special Employment Relationship
A. Background on the Exclusive Remedy of Workers’ Compensation
California law recognizes the possibility that a worker may have two employers. If an employer sends an employee to work for another person and both have the right to exercise certain powers of control over the employee, then the employee may be regarded has having two employers for purposes of workers’ compensation law—an original or “general” employer and a second or “special” employer. (Kowalski v. Shell Oil Co., supra, 23 Cal.3d at p. 174.) Where this type of dual employment relationship exists, the employee may look to both the general and the special employer for workers’ compensation. (Id. at p. 175.) Workers’ compensation is the worker’s sole remedy for job-related injuries, and both the general and the special employer are immune from lawsuits alleging personal injury liability. (McFarland v. Voorheis-Trindle Co. (1959) 52 Cal.2d 698, 702; see § 3602, subd. (a) [workers’ compensation is exclusive remedy]; see also Ins. Code, § 11663 [addressing which employer’s insurance provider is responsible for paying workers’ compensation benefits to a special employee].)
Division 4 of the Labor Code contains definitions that are relevant to determining when a worker is an employee for purposes of workers’ compensation law. (See §§ 3300 [“employer”], 3351 [“employee”], 3352 [exclusions from definition of employee], 3353 [“independent contractor”] & 3357 [presumption that worker is an employee and not an independent contractor].)
Section 3300 provides in part: “As used in this division, ‘employer’ means: [¶] … [¶] (c) Every person … which has any natural person in service.” Section 3351 defines “employee” to mean “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 .…” Section 3357 states: “Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.” Section 3353 provides: “‘Independent contractor’ means any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.”
The categories of workers excluded from the definition of employee under section 3352 are not set forth because Lopez has not argued any of those exclusions applied to his relationship with Hydratech.
Based on the foregoing definitions, one way to recast the issue presented is whether Lopez acted as or on behalf of an independent contractor or whether he acted as an employee of Hydratech.
B. Factors Relevant to Special Employee Status
The following quote sets forth various factors that are relevant to determining whether a business that obtains the services of a worker employed by a company such as Placement Pros has a special employment relationship with the worker.
“… Factors relevant to determining whether an employee is the borrowed employee of another include: (1) whether the borrowing employer’s control over the employee and the work he is performing extends beyond mere suggestion of details or cooperation; (2) whether the employee is performing the special employer’s work; (3) whether there was an agreement, understanding, or meeting of the minds between the original and special employer; (4) whether the employee acquiesced in the new work situation; (5) whether the original employer terminated his relationship with the employee; (6) whether the special employer furnished the tools and place for performance; (7) whether the new employment was over a considerable length of time; (8) whether the borrowing employer had the right to fire the employee and (9) whether the borrowing employer had the obligation to pay the employee. [Citations.]
“Circumstances which tend to negate the existence of a special employment relationship include the following factors: the worker is skilled and has substantial control over operational details, the worker is not engaged in the borrower’s usual business, the worker works only for a brief period of time, does not use the tools or equipment of the borrowing employer but uses his own tools or the tools of the lending employer and the borrower employer neither pays the worker nor has the right to discharge him.” (Riley, supra, 203 Cal.App.3d at p. 1250.)
C. Control as Primary Factor
The primary factor for determining whether a special employment relationship exists concerns the special employer’s “‘“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., supra, 23 Cal.3d at p. 175.) A business’s exercise of control over the details of a worker’s activities strongly supports the inference a special employment relationship exists. (Id. at p. 177.) In contrast, instruction as to the result to be achieved does not require an inference that a sufficient degree of control exists to establish a special employment relationship. (Ibid.; see § 3357.)
In this case, there is only one reasonable inference regarding Hydratech’s exercise of control over the details of Lopez’s activities at its facility. At a minimum, Hydratech shared control over the way Lopez achieved the results desired by Hydratech. For example, Lopez testified in his deposition that he was told to remove the guard from the SH50 milling machine, was sent inside the machine, and was told to turn a big piece of metal that was like a big bolt. This testimony shows that other Hydratech employees controlled the actions Lopez took to repair the machine.
Lopez’s testimony regarding the directions he was following immediately prior to the accident is important because of the following principle. Where an alleged special employer was, by the worker’s own admission, “exercising direct supervision over the exact task during the accomplishment of which [the worker] is injured, the status of special employer must be found to exist as a claim for that injury.” (Thomas v. Edgington Oil Co. (1977) 73 Cal.App.3d 61, 64; see Cockrell v. U.S. (S.D.Cal. 1999) 86 F.Supp.2d 994, 1007.) Furthermore, partial control of the details of a worker’s tasks is sufficient to create a special employment relationship—the general employer is not required to transfer all control before a special employment relationship is created. (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 216.)
Lopez argues a question of fact exists regarding Hydratech’s right to terminate his work assignment at its facility and that this question of fact is important enough to create uncertainty about Hydratech’s control over him. Lopez further argues that this uncertainty about Hydratech’s control is sufficient to create a triable issue of fact regarding the ultimate issue—the existence of a special employment relationship.
This court has recognized that evidence of the right to immediately discharge a worker at will, without cause, is strong evidence of the right to control that worker. (Greenaway v. Workmen’s Comp. App. Bd. (1969) 269 Cal.App.2d 49, 57.) While we agree with Lopez that a question of fact exists regarding whether Hydratech had the right to terminate his work assignment at its facility, however, we disagree with his position that this factual dispute creates a triable issue of material fact for purposes of Code of Civil Procedure section 437c. Because the record establishes that Hydratech controlled the details of Lopez’s work, particularly at the time of the accident, the controversy regarding Hydratech’s right to terminate Lopez’s work assignment at its facility is not sufficient to undermine the finding that a special employment relationship existed.
Lopez clearly meets the statutory definition of an employee. (See § 3351.) Hydratech’s control over the details of his work activities, even if aspects of that control were shared with Placement Pros, was sufficient to establish that Lopez was not an independent contractor or acting on behalf of an independent contractor. (See §§ 3353, 3357.) The right to direct and control a worker’s activities can be enough to justify granting a motion for summary judgment even where a factual dispute exists regarding the power to actually discharge the worker. (Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848, 862.)
D. Lopez’s Work Was Part of Hydratech’s Regular Business
Lopez argues that the repair and maintenance work he performed at Hydratech was not part of Hydratech’s regular business, which was the assembly-line manufacturing of complete hydraulic cylinders and their component parts. We disagree.
We note, first, that Lopez has cited no authority for the proposition that the maintenance and repair of equipment used to manufacture items is not an integral part of the manufacturer’s business.
More importantly, we conclude that the only reasonable inference from the evidence presented is that the repair and maintenance of Hydratech’s manufacturing equipment was part of its business. The facts supporting this inference are as follows. Hydratech had a maintenance department, which was supervised by Dhillon. Hydratech classified its maintenance mechanics into three levels. Lopez was classified as a basic mechanic (level one). Lopez would have been hired as a regular employee by Hydratech had he not been injured and had he continued working there past the 90-day evaluation period. Therefore, the tasks he was performing as a temporary worker were the same tasks he would have performed as a regular employee of Hydratech.
Hydratech’s use of a regular employee to perform such tasks strongly supports the inference that the tasks were an ordinary part of its business. The existence of a maintenance department supports the inference that Hydratech regarded maintaining its equipment (such as providing a machine with lubricant and coolant) as a routine part of its operations.
We conclude that Hydratech has satisfied its initial burden of producing evidence “to make a prima facie showing of the nonexistence of any triable issue of material fact” concerning its use of maintenance personnel as a regular part of operating its manufacturing business. (Aguilar, supra, 25 Cal.4th at p. 850; see Brantley, supra, 42 Cal.App.4th at p. 1602.) Thus, we reject Lopez’s argument that the evidence proffered by the parties was insufficient for the superior court to conclude Hydratech made a sufficient showing. Furthermore, Lopez did not undermine Hydratech’s showing by presenting evidence that contradicted the evidence presented by Hydratech. (See Brantley, supra, at p. 1602 [where moving party has met its burden, court determines whether opposition papers have demonstrated a triable issue of material fact].)
E. Length of Time Lopez Worked at Hydratech
Lopez had been assigned to Hydratech for approximately two months before the accident occurred. Lopez argues this was an extremely short assignment, and a short assignment supports the finding that a special employment relationship did not exist.
We conclude that the length of Lopez’s assignment was not so short as to preclude the determination that a special employment relationship existed.
In Santa Cruz Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575, the Court of Appeal determined that a worker injured on a one-day job assignment to a poultry company was a special employee of that company. As a result, the court reversed the trial court’s decision to deny the poultry company’s motion for summary judgment on the worker’s negligence claims. (Id. at p. 584.) In that case, the worker was injured when he attempted to jump onto a delivery truck at the direction of the driver, the poultry company employee who supervised and controlled the worker’s job activities. (Id. at p. 577.) Thus, the short length of that worker’s assignment was not sufficient to preclude the appellate court from finding, as a matter of law, that the poultry company’s control over the worker was sufficient to create a special employment relationship.
In this case, Lopez’s relationship with Hydratech was not for a definite period. The relationship could have continued longer than the 90-day evaluation period if Lopez’s performance was satisfactory and he was converted to a regular employee. Consequently, the length of Lopez’s relationship with Hydratech (which was much longer than the situation presented in Santa Cruz Poultry, Inc. v. Superior Court) does not preclude granting summary judgment based on the control that Hydratech exercised over him.
F. Lopez’s Consent and Belief
Lopez contends that he did not consent to the creation of an employment relationship with Hydratech. He also contends that, at the time of the accident, he did not believe he and Hydratech had a business relationship.
It is undisputed that, regardless of the label attached to the relationship between Hydratech and Lopez, Lopez accepted the assignment and presented himself daily at the Hydratech facility to perform work. Therefore, he consented to providing services to Hydratech and was compensated for his labor. Furthermore, his acts immediately prior to the accident show that he submitted to the control of Hydratech.
The important facts are what actually occurred in that relationship, not Lopez’s unexpressed intentions regarding the nature of the legal status of that relationship. (Santa Cruz Poultry, Inc. v. Superior Court, supra, 194 Cal.App.3d at p. 583.) Thus, Lopez’s subjective belief that he was not a special employee of Hydratech does not create a dispute as to a material fact. The material facts are that he accepted the assignment at Hydratech and submitted to the directions and control of Hydratech in performing that assignment. In particular, Lopez testified he was following directions from other Hydratech employees at the time of his injury. (Riley, supra, 203 Cal.App.3d at p. 1252 [summary judgment upheld; undisputed evidence demonstrated plaintiff was under defendant’s direct supervision and control at the time of his injury]; Thomas v. Edgington Oil Co., supra, 73 Cal.App.3d at p. 64.) Accordingly, we conclude that Lopez consented to his relationship with Hydratech and consented to the control that Hydratech exercised over him. From his submission to the situation with Hydratech, we must infer that he “consented” to the status of a special employee. (Santa Cruz Poultry, Inc. v. Superior Court, supra, at p. 583.)
G. Summary
The undisputed material facts establish that Lopez was a person in the service of Hydratech under an appointment or contract of hire. (§ 3351.) The undisputed material facts also establish that Lopez was not a “person who renders service for a specified recompense for a specified result, under the control of [Hydratech] as to the result of his work only and not as to the means by which such result is accomplished.” (§ 3353 [definition of independent contractor].) Therefore, an employer-employee relationship existed between Hydratech and Lopez for purposes of California’s workers’ compensation statute, and the exclusive remedy for Lopez’s industrial accident at the Hydratech facility is worker’s compensation. (§ 3602.)
Accordingly, the order granting the motion for summary judgment is not in error.
DISPOSITION
The judgment is affirmed. Hydratech is awarded its costs on appeal.
WISEMAN, Acting P.J., CORNELL, J.
Accordingly, we do not consider whether there are defects in (1) the account of material facts set forth in the moving party’s separate statement or (2) the citations to evidence to support those facts. We assume that the parties (who have time and money invested in the resolution of the motion) have chosen to ignore technicalities because they are interested in a decision based on the merits of the evidence presented, rather than a decision based on the violation of a procedural requirement of the summary judgment statute that could be cured.