Carrillo vs. Bryant

First Cause of Action (Premises Liability)

The motion for summary adjudication of the first cause of action is GRANTED.

The SAC alleges Defendant breached his duty to properly remove and/or abate the unreasonably dangerous conditions on the premises. (SAC ¶ 20.) Plaintiff alleges those unsafe and dangerous conditions on the premises include, but are not limited to: trees that needed to be cut down; undergrowth with loose branches spread across the property; and old appliances, old dishes, old utensils, old tables, old furniture, an old mattress, miscellaneous trash, five-gallon buckets of old food, an old garbage disposal, and antique tractors—all spread across the property and usually obscured and/or hidden from view in weeds that were at least 1.5 feet high. (SAC ¶ 15.) As a result, Plaintiff suffered severe and permanent injuries to her person. (SAC ¶ 30.)

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. Premises liability ‘“is grounded in the possession of the premises and the attendant right to control and manage the premises”’; accordingly, ‘“mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.”’ But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases.

In determining whether a premises owner owes a duty to persons on its property, we apply the Rowland factors. Indeed, Rowland [v. Christian (1968) 69 Cal.2d 108] itself involved premises liability.’” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159, internal citations omitted.) Some of the factors to consider in determining whether a premises owner owes a duty include: the likelihood of injury to plaintiff, the probable seriousness of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessor’s degree of control over the risk-creating condition are among the factors to be considered by the trier of fact in evaluating the reasonableness of a defendant's conduct.” (Sprecher v.

Adamson Cos. (1981) 30 Cal.3d 358, 372.)

Defendant Bryan argues he owed Plaintiff no duty to protect or warn against the alleged dangerous condition because the danger was open and obvious.

“A harm is typically not foreseeable if the ‘dangerous condition is open and obvious.’ [Citation.] ‘“Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” [Citation.] In that situation, owners and possessors of land are entitled to assume others will “perceive the obvious” and take action to avoid the dangerous condition.’” (Nicoletti v. Kest (2023) 97 Cal.App.5th 140, 145-146; Krongos v.

Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393 [holding that “if a danger is so apparent that the invitee can reasonably be expected to notice it and protect against it, the condition itself constitutes adequate warning”].) In other words, “foreseeability of harm is typically absent when a dangerous condition is open and obvious.” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447.) “[O]wners and possessors of land are entitled to assume others will ‘perceive the obvious’ and take action to avoid the dangerous condition.” (Ibid.)

For example, “the presence of railroad tracks is a warning of an open and obvious danger[, as] ‘[a] railroad track upon which trains are constantly run is itself a warning to any person who has reached years of discretion, and who is possessed of ordinary intelligence, that it is not safe to walk upon it, or near enough to it to be struck by a passing train. . . .’ [Citations.]” (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126 [affirming order granting summary judgment in favor of railroad company where the plaintiff was injured by a passing train, while attempting to walk along a railroad bridge over a creek].)

Similarly, rainwater flowing down a driveway is an open and obvious danger, as “‘[i]t is a matter of common knowledge among children and adults that wet concrete is slippery and that, when on a slanting incline’ such as a driveway, ‘it does not provide a safe footing.’ [Citation.]” (Nicoletti v. Kest (2023) 97 Cal.App.5th 140, 146 [finding no duty to warn].)

“[T]he ‘obvious danger’ exception to a landowner’s ordinary duty of care is in reality a recharacterization of the former assumption of the risk doctrine, i.e., where the condition is so apparent that the plaintiff must have realized the danger involved, he assumes the risk of injury even if the defendant was negligent. [Citation.] . . . [T]his type of assumption of the risk has now been merged into comparative negligence.” (Summer J. v. United States Baseball Federation (2020) 45 Cal.App.5th 261, 275, as modified on denial of reh'g (Mar. 9, 2020).)

“The modern . . . law . . . is that ‘although the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious, . . . there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability . . .’” (Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179.)

Here, the SAC alleges Defendant hired Plaintiff to clear the premises—specifically, to “clear junk that consisted of undergrowth with loose branches,” along with other debris, trash, and old appliances. (See SAC ¶ 7.) Plaintiff submits evidence that she sustained her injury when she stepped on a loose branch on the ground, which she did not see. (Pltf.’s Ex. 4 at Nos. 39, 45.) Defendant has no duty to warn against or remove loose branches in undergrowth, where Plaintiff was retained specifically to clear such “undergrowth with loose branches,” and the undisputed facts show Plaintiff looked around Defendant’s property and took multiple photographs of the property before agreeing to taken on the work. (Def.’s Sep. St. No. 4; Pltf.’s Sep. St. Nos. 4-5.)

In other words, Plaintiff cannot establish Defendant owed her a duty to protect against the very conditions Defendant had hired her to remediate.

Second Cause of Action (Failure to Pay Minimum Wages)

The motion for summary adjudication of the second cause of action is GRANTED.

The second cause of action alleges Defendant Bryant failed to pay Plaintiff a minimum wage for the work she performed between May and October 2023. (SAC ¶¶ 32-33.)

Pursuant to Labor Code 1194(a), “any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit.”

All workers are employees rather than independent contractors unless pursuant to the so-called “ABC Test,” the hiring defendant can establish that: (A) that the worker is free from control of the hiring entity, both under the contract for the performance of the work and in fact; (B) that the worker performs work outside the usual course of

the hiring defendant’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed. (Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, 957.)

Here, the undisputed facts show Plaintiff was an independent contractor, not an employee of Defendant.

First, the undisputed facts show Defendant did not exercise control over how or with what tools Plaintiff performed the work and did not supervise her or observe her working. (See Def.’s Sep. St. No. 13.) Plaintiff worked independently, sometimes performing tree trimming without Defendant’s knowledge. (Ibid.) Plaintiff attempts to dispute the fact, contending Defendant “mandated that she work from 9:00 a.m. to 6:00 p.m., Monday through Friday, and [Defendant] provided [her] the tools to do the job.” (Pltf.’s Sep.

St. No. 13, citing Carrillo Decl. ¶ 4.) Plaintiff’s cited evidence is insufficient to support those purported facts. To the extent Plaintiff declares that Defendant mandated that she work 9:00 a.m. to 6:00 p.m., Monday through Friday (Carrillo Decl. ¶ 4), the court finds Plaintiff’s declaration to contradict her previous deposition testimony. When asked if there was any discussion as to timing for work, Plaintiff testified that Defendant had instructed her not to work outside of those hours, in consideration of the renters residing at the property. (See (Pltf.’s Evid. [ROA # 140] at Ex. 1 [Pltf.’s Depo.] at 22:5-12.)

In addition, Plaintiff’s discovery responses admit she brought her own equipment, including a “mower, weed whacker, trimmers, and a rake” (Supp. Purcell Decl. [ROA # 145], Exs. 13-14 at No. 28); and the tools provided by Defendant did not work and were “a gift” (Pltf.’s Evid. [ROA # 140] at Ex. 1 [Pltf.’s Depo.] at 73:2-4).

“It is well-established that ‘a party cannot create an issue of fact by a declaration which contradicts his prior discovery responses.’” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087, citing Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12 and Preach v. Monter Rainbow (1993) 12 Cal.App.4th 1441, 1451 [“A party cannot create an issue of fact by a declaration which contradicts his prior pleadings”].) In determining whether any triable issue of material fact exists, the trial court may give “great weight” to admissions made in discovery, as such admissions “have a very high credibility value,” particularly when they are “obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts.” (D’Amico v.

Board of Medical Examiners (1974) 11 Cal.3d 1, 22.) “Accordingly, when such an admission becomes relevant to the determination, on

motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.” (Id.) Thus, “[w]here a declaration submitted in opposition to a motion for summary judgment motion clearly contradicts the declarant’s earlier deposition testimony or discovery responses, the trial court may fairly disregard the declaration and ‘conclude there is no substantial evidence of the existence of a triable issue of fact.’” (Whitmire, supra, 184 Cal.App.4th at 1087, citing D’Amico, supra, at 21.

Cf. Mason v. Marriage & Family Center (1991) 228 Cal.App.3d 537, 546 [finding substantial evidence of the existence of triable issues of fact, given plaintiff’s detailed explanation of the mistake in her previous interrogatory response regarding the date on which plaintiff’s injuries began]; Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1502-03 [considering a supplemental declaration that plaintiff had not understood the question asked of her at the deposition, and providing a reasonable explanation for the source of her confusion].)

Second, the undisputed facts show the work performed by Plaintiff was outside the usual course of Defendant’s business, as Defendant had none. It is undisputed Defendant Bryant is a retired law enforcement officer who did not own or operate any business related to trimming trees, weeds, brush, or clearing and removing trash and miscellaneous items from various locations. (See Def.’s Sep. St. Nos. 11-12; Pltf.’s Sep. St. Nos. 11-12.)

Lastly, the undisputed facts show Plaintiff was engaged in the business of clearing brush. Plaintiff admits she had performed “some brush clearing work” in the Garner Valley and Anza neighborhoods prior to working for Defendant. (Def.’s Sep. St. No. 14 [citing Pltf.’s Depo. at 66:22-25]; Pltf.’s Sep. St. No. 14.)

Third Cause of Action (Breach of Oral Contract)

The motion for summary adjudication of the third cause of action is GRANTED.

The third cause of action alleges the parties entered into an oral contract whereby Plaintiff agreed to clear Defendant’s yard and cut down, and trim the trees, and Defendant would pay her when the work was complete. (SAC ¶ 41.)

The elements of a cause of action for breach of contract are: (i) existence of the contract; (ii) Plaintiff’s performance or excuse for nonperformance; (iii) Defendant’s breach; and (iv) damage to

plaintiff resulting therefrom. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.)

A contract exists only if the parties have a “‘meeting of the minds on all material points.’” (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 215, quoting Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 359; Fair v. Bakhtiari (2006) 40 Cal.4th 189, 203.) It is not enough that the parties agree on “some of the terms.” (Ibid.) Nor is it sufficient if the “essential terms [are] only sketched out, with their final form to be agreed upon in the future.” (Id. at p. 213.) A contract exists only if the agreed-upon terms “provide a basis for determining the existence of a breach and for giving an appropriate remedy.” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811; Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 734 [same].)

Here, the undisputed facts show no contract between the parties. Plaintiff admits the parties did not set a price before she began to work for Defendant. (Carrillo Decl. ¶ 3.) Plaintiff submits no evidence that there was any meeting of the minds as to the material point of payment amount. (See Carrillo Decl.)

Fifth Cause of Action (Quantum Meruit)

The motion for summary adjudication is DENIED as to the fifth cause of action.

The SAC alleges Plaintiff performed services for Defendant Bryant, and the fair and reasonable value of those services is at least $10,500. (SAC ¶¶ 57, 58.)

The elements of a common count for goods and services rendered are: (i) that Defendant requested, by words or conduct, that Plaintiff deliver goods or perform services for the benefit of Defendant; (ii) that Plaintiff delivered the goods or performed the services as requested; (iii) that Defendant has not paid Plaintiff for the goods or services; and (iv) the reasonable value of the services and goods that were provided. (CACI 371; see also E.J. Franks Const., Inc. v. Sahota (2014) 226 Cal.App.4th 1123, 1127; Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794 [plaintiff entitled to recover the reasonable value of services].)

Defendant Bryant does not meet his initial burden to show that Plaintiff cannot establish a claim for quantum meruit. Defendant submits evidence that he paid Plaintiff $900 for Plaintiff’s services but was unable to pay the remaining $300 balance. (Def.’s Sep. St.

Nos. 45-47.) By Defendant’s own admission, he did not pay the alleged fair and reasonable amount for the services rendered by Plaintiff.

To the extent Defendant argues that $900 is a fair and reasonable amount for the services Plaintiff rendered, there is insufficient evidence to support this contention. Defendant submits evidence that Plaintiff was hired at a flat rate of “approximately $400 per job” (see Def.’s Sep. St. No. 44) but does not show how many jobs Plaintiff was hired to complete, or how many jobs Plaintiff completed (see generally Def.’s Sep. St. Nos. 44-47).

Sixth Cause of Action (Unjust Enrichment)

The motion for summary adjudication of the sixth cause of action is GRANTED.

The sixth cause of action alleges Defendant Bryant was unjustly enriched because Plaintiff conferred a benefit upon Defendant, for which Defendant has failed and refused to make restitution. (SAC ¶¶ 61-62.)

Defendant argues unjust enrichment is not a stand-alone claim and, thus, fails as a matter of law.

A motion for summary judgment and/or adjudication “necessarily includes a test of the sufficiency of the complaint” and its legal effect is the same as a demurrer or motion for judgment on the pleadings. (See American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118; Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1375-1376, 1386; Slaughter v. Legal Process & Courier Services (1984) 162 Cal.App.3d 1236, 1244.)

Although some courts have previously treated unjust enrichment as a stand-alone cause of action (see, e.g., Kruss v. Booth (2010) 185 Cal.App.4th 699, 729; Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 347; County of San Bernardino v. Walsh (2007) 158 Cal.App.4th 533, 537-38; Lectrodryer v. SeoulBank (2000) 77 Cal.App.4th 723, 726), the majority of recent cases treat unjust enrichment as a remedy akin to restitution, not a separate cognizable cause of action. (See, e.g., Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 231; Hill v. Roll Intern. Corp. (2011) 195 Cal.App.4th 1295, 1307; Levine v. Blue Shield of Calif. (2010) 189 Cal.App.4th 1117, 1138; Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370; Melchior v. New Line Productions, Inc. (2003) 106 Cal. App. 4th 779, 793.) The

appellate court explained in Munoz v. MacMillan (2011) 195 Cal.App.4th 648: “There is no freestanding cause of action for ‘restitution’ in California. [Citation omitted.] Common law principles of restitution require a party to return a benefit when the retention of such benefit would unjustly enrich the recipient; a typical cause of action involving such remedy is ‘quasi-contract.’” (Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 661.) Thus, there must be a valid cause of action on which to support the remedy of restitution or unjust enrichment. (See Rutherford, supra, 223 Cal.App.4th 221, 231 [construing the unjust enrichment claim to be a cause of action for quasi-contract claim seeking restitution].)

Such bases include quasi- contract, fraud, duress, conversion, or similar conduct. (Durrell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370; McBride v. Boughton (2004) 123 Cal.App.4th 379, 387-388.)

The court finds Plaintiff’s purported unjust enrichment claim to be duplicative of the quantum meruit claim and on this basis, grants the motion for summary adjudication.

New Evidence on Reply

Although new evidence is not generally permitted on reply (see, e.g., Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538), new evidence may be considered when it responds to a new issue raised on opposition. (See Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241.)

Here, Defendant’s reply papers include Plaintiff’s verified interrogatory responses. (Supp. Purcell Decl.) The court considered this new evidence, as Plaintiff’s verified discovery responses show that Plaintiff attempts to create an issue of fact by declaration that contradicts her prior discovery responses.

Defendant to give notice.

14 Mackey vs. TENTATIVE RULING: Olejniczak For the reasons set forth below, Marc Lazo and K&L Law Group, P.C.’s motion to be relieved as counsel for Plaintiff Daniel Mackey is DENIED, without prejudice.

Rule of Court 3.1362 sets forth the requirements for a motion to be relieved as counsel: (1) a notice of motion and motion to be relieved as counsel must be directed to the client and be made on Judicial Council form MC-051; (2) the motion must be accompanied by a declaration on Judicial Council form MC-052 and state in general