A Thi Vu vs. City Ventures, LLCOppositionCal. Super. - 4th Dist.September 8, 2015Carpenter, Zuckerman & Rowley, LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Steven L. Mazza, Esq. (SBN 101076) Paul S. Zuckerman (SBN 155539) Carpenter, Zuckerman & Rowley, LLP 8827 West Olympic Boulevard Beverly Hills, CA 90211-3613 Telephone: (310) 273-1230 Attorneys for Plaintiff ELECTRONICALLY FILED Superior Court of California, County of Orange 03/28/2016 at 11:10:00 Au Clerk of the Superior Court By Waria Gina Barr, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA ~ FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER A THI VU, an Individual, Plaintiff, VS. CITY VENTURES, LLC, a Delaware Limited Liability Company; CITY VENTURES HOMEBUILDING, LLC, a Delaware Limited Liability Company; GARDEN GROVE COLLECTIONS, a business organization, form unknown; and DOES 1 to 50, Inclusive Defendants. AND ALL RELATED CROSS-ACTIONS CASE NO.: 30-2015-00808319-CU-PO-CIC (Assigned to Judge Martha Gooding) PLAINTIFF’S CONSOLIDATED OPPOSITION TO MOTIONS BY CITY VENTURES, LLC, AND CITY VENTURES HOMEBUILDING, LLC, FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES Date: April 11,2016 Time: 1:30 p.m. Dept.: C34 Complaint filed: September 8, 2015 Trial date: None PLAINTIFF’S OPPOSITION TO MOTIONS FOR SUMMARY JUDGMENT 1 Carpenter, Zuckerman & Rowley, LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION. Plaintiff A Thi Vu was walking on the sidewalk when she was hit by an advertising sign being held by a man on a street corner. The sign advertised a housing development called the Garden Grove Collection which was being built by defendant City Ventures Homebuilding, LLC, and/or defendant City Ventures, LLC. As a result of her injuries, plaintiff sued defendants for negligence and premises liability. ‘Defendants have moved for summary judgment or, alternatively, summary adjudication on each cause of action. Plaintiff is not proceeding on her cause of action for premises liability. As for her cause of action for general negligence, however, defendants’ motions should be denied. Defendants contend they had no direct involvement in any of the conduct in issue. In fact, defendants provided the sign which advertised defendants’ development and defendants directed the person where to hold the sign and when. Defendants’s efforts to disclaim vicarious liability for the actions of the sign carrier should be rejected. As the following discussion will show, issues of fact exist barring defendants from obtaining judgment on plaintiff’s first cause of action for negligence. 2. STATEMENT OF FACTS. Since in or about January 2013 and up to the time of the incident, Lien-Chi Nguyen was the marketing manager for City Ventures Homebuilding, marketing the new home community project called Garden Grove Collection. (Nguyen Depo. 18:11-20, 21:4-6, 23:6-25, Exhibit 1; Nguyen Decl. § 2.) Nguyen states that she hired Media Nation Outdoor, LLC (Media Nation) to supply signs and individuals to hold up signs directing people to the Garden Grove Collection. (Nguyen Decl. 9 3. Nguyen refers to these individuals as human directional billboards.) Nguyen would determine the location where and the date and times when the person was to stand with the sign. (Nguyen Depo. 43:20-44:2, 48:1-7, Exhibit 1.) City Ventures Homebuilding kept the signs at its PLAINTIFF’S OPPOSITION TO MOTIONS FOR SUMMARY JUDGMENT 2 Carpenter, Zuckerman & Rowley, LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 office. (Id. at 44:20-25, Exhibit 1.) According to Navin Narang, the managing partner of Media Nation, the job of the directional sign holder is “not rocket science.” (Narang Depo. 9:25-10:7, 43:18-19, Exhibit 2.) All the person is supposed to do is hold the sign. (/d. at 43:19-21, 47:8-9, Exhibit 2.) On February 15, 2014 plaintiff was on the sidewalk near the corner of Brookhurst Street and Hazard Avenue in Westminster when an individual holding a directional sign to the Garden Grove Collection project turned, striking plaintiff with the sign. (Defendants’ purported undisputed Fact No. 1; plaintiff’s response to defendant Media Nation’s Special Interrogatory No. 11, Exhibit 3; photograph, Exhibit 4; Nguyen Depo. 40:4-41:2, Exhibit 1; Mazza Decl. § 6.) The sign was approximately six feet by one and three-fourths feet. (Narang Depo. 73:25-74:4, Exhibit 2.) 3. ISSUES OF FACT EXIST AS TO WHETHER DEFENDANTS ARE LIABLE FOR THE ACCIDENT. Defendants contend that they cannot be liable because they did not employ the sign carrier. Defendants assert that Media Nation was as an independent contractor of City Ventures Homebuilding, they exercised no control over how Media Nation performed its services and they were unaware of any alleged dangerous conditions. In fact, issues of fact exist as to the relationship between defendants and Media Nation barring defendants from obtaining judgment on plaintiff's cause of action for negligence. A. Independent Contractor/Employee Status. Defendants rely on an independent contractor-versus-employee distinction as a way to escape liability. Said effort fails. As has been stated, the old general rule of no liability if the actor was an independent contractor is now the exception. Barry v. Raskov (1991) 232 Cal.App.3d 447, 453. As discussed by the court in Barry: Once it could be said, as a general rule, one who employs an independent contractor is not liable to third parties for the contractor’s torts committed while PLAINTIFF’S OPPOSITION TO MOTIONS FOR SUMMARY JUDGMENT 3 Carpenter, Zuckerman & Rowley, LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 acting within the scope of the contract. (Cites.) Today, however, the exceptions have so overwhelmed the “general rule” it is more accurate to say the employer of an independent contractor will generally be held liable for the contractor’s torts and that nonliability is the exception. (Cites.) The original common law rule is rarely applied outside of motor vehicle accidents. (Cite.) Ibid. The court in Barry discussed various factors that support the exception to nonliability. As the court stated: “There are numerous considerations which have led courts to depart from the rule of nonliability of a private employer for the torts of an independent contractor. Some of the principal ones are that the enterprise, notwithstanding the employment of the independent contractor, remains the employers because he is the party primarily to be benefited by it, that he selects the contractor, is free to insist upon one who is financially responsible, and to demand indemnity from him, that the insurance necessary to distribute the risk is properly a cost of the employer’s business and that the performance of the duty of care is of great importance to the public.” (Cite.) Barry, 232 Cal.App.3d at 453. Here, issues of fact exist as to whether the foregoing factors apply. Benefit Obviously, the use of a person holding a sign directing the public to homes defendants wanted to sell was solely to benefit defendants in the sale of their properties. Freedom of selection Regarding selection of Media Nation, Nguyen admits that it was her decision. (Nguyen Decl. 192, 3.) Freedom to insist on a financially responsible contractor and demand indemnity This factor is present since defendants have filed a cross-complaint against Media Nation for indemnity. (Cross-complaint, Exhibit 5.) Insurance Plaintiff submits that an issue of fact exists as to whether insurance is properly a cost of PLAINTIFF'S OPPOSITION TO MOTIONS FOR SUMMARY JUDGMENT 4 Carpenter, Zuckerman & Rowley, LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 defendants’ business. Defendants are in the business of marketing and selling homes. The directional billboard in issue was intended to obtain sales of homes. Insurance relating to defendant’s marketing campaign is properly a cost of doing business. Importance of the duty to the public How a six-foot sign is wielded on a sidewalk is something that is of great importance to the public. Hence, under Barry a consideration of the foregoing factors demonstrates that issues of fact exist as to whether defendants are liable for the negligent hitting of plaintiff. B. Control. Regarding the independent contractor doctrine, defendants talk about control. Relying on Grose v. Sun-Diamond Corp. (1997) 51 Cal.App.4th 1659, defendants state that control is the test as to whether one is an employee or independent contractor. (Motion, 7:12-13.) As defendants state: “An independent contractor is ‘one over whom the person has no right of control as to the mode of doing the work. . ..” [Orosco, 51 Cal.App.4th at 1668.]” (Motion, 7:13-14.) The issue of control scarcely aids defendants. The evidence is undisputed that defendants maintained the sign and directed where the sign carrier was to stand, when he was to appear and how long he was to stay there. (Nguyen Depo. 43:20-44:2, 48:1-7, Exhibit 1.) Further, the work was hardly complicated. (Narang Depo. 43:18-19, Exhibit 2.) All the individual had to do was hold the sign (/d. at 43:19-21, 47:8-9, Exhibit 2), presumably with the arrow pointing in the correct direction. Defendants cannot legitimately deny the ability to control what direction the sign was to be pointing Like the Barry factors, then, the issue of control is an issue of fact to be determined by the jury. C. Awareness of the Safety Hazard. Defendants’ final contention is that they cannot be liable because they were unaware of any alleged hazard. (Motion, 8:25-9:5.) This argument is directed to plaintiff’s cause of action for premises liability. Since plaintiff is not proceeding on that cause of action, said argument need not be considered. PLAINTIFF'S OPPOSITION TO MOTIONS FOR SUMMARY JUDGMENT 5 Carpenter, Zuckerman & Rowley, LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONCLUSION. For the foregoing reasons defendants’ motions for summary judgment and their motions for summary adjudication of the first cause of action for negligence should be denied. DATED: March 28, 2016 CARPENTER ZUCKERMAN & ROWLEY, LLP By: EVEN L. MAZZA, ESQ. ttorpey for Plaintiff PLAINTIFF'S OPPOSITION TO MOTIONS FOR SUMMARY JUDGMENT 6 Carpenter Zuckerman & Rowley LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 28 PROOF OF SERVICE STATE OF CALIFORNIA ] ]ss. COUNTY OF LOS ANGELES ] I am employed in the County of Los Angeles, State of California. Iam over the age of 18 and not a party to the within action; my business address is 8827 West Olympic Boulevard, Beverly Hills, CA 90211-3613. On March 28, 2016, I served the foregoing document described as PLAINTIFE’S CONSOLIDATED OPPOSITION TO MOTIONS BY CITY VENTURES, LLC, AND CITY VENTURES HOMEBUILDING, LL.C, FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Thomas L. Vincent, Esq. Attorneys for Defendants/Cross-Complainants, Leilani E. Livingston, Esq. CITY VENTURES LLC and CITY PAYNE & FEARS LLP VENTURES HOMEBUILDING, LLC Jamboree Center, 4 Park Plaza, Suite 1100 Irvine, CA 92614 Telephone: (949) 851-1100 Facsimilie: (949) 851-1212 Lynne Pearson Houry, Esq. Attorneys for Cross-Defendant, MEDIA LAW OFFICES OF NATION OUTDOOR, LLC MELISSA M. BALLARD P.O. Box 2282 Brea, CA 92822-2282 Telephone: (714) 571-0407 Direct: (714) 371-2728 Facsimile: (877) 369-5799 [x] Via Overnight Delivery as follows: Iam "readily familiar" with the firm's practice for delivering overnight envelopes or packages to an authorized courier or driver authorized by the express service carrier to receive documents, in an envelope or package designated by the express service carrier with delivery fees paid or provided for, addressed to the person on whom it is to be served, at the address as last given by that person on any document filed in the cause and served on the party making service. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 28, 2016, at Beverly Hills, California.
