Liao v. PA&A, Inc.

Analysis

Now, Defendant PA&A seeks summary judgment, or in the alternative, summary adjudication, on the grounds that Plaintiff cannot establish all the elements of the negligence per se claim since he was not an employee and the injury did not occur within the course and scope of any such employment. Defendant also argues the negligence claim lacks merit because Plaintiff was not owed a duty of care and unloading packages was outside the scope of his duties.

Presented Facts – Plaintiff began driving Defendant’s truck in June of 2022. There was no written employment agreement between the parties, and Defendant did not withhold taxes from payments to Plaintiff (which were made on a per mile basis). (Fact Nos. 7-9 & 11-12.) Defendant also indicates no employee benefits were paid to Plaintiff, but he counters by noting the company reimbursed him for out-of-pocket medical expenses and insurance deductibles after the incident and paid him $500 per week. (Fact No. 10; see also Fact Nos. 26-28.)

Defendant also contends it never asked Plaintiff to load or unload goods. (Fact No. 13.) However, the evidence cited does not clearly establish the fact asserted. During his deposition Plaintiff referenced “unloading workers” and testified “they [the recipients] unload the goods.” When asked if anyone from PA&A told him to go into the trailer at any time, Liao indicated he was instructed to clean up the trailer and put away straps after every unloading. Liao does not clearly state he was never asked to load or unload goods. (See Fact No. 13 and Liao Depo. at pp. 45 & 87-88.)

Defendant similarly asserts, as fact, that it was neither requested nor was obligated to provide unloading services for the delivery at issue in this case. (Fact No. 16.) That assertion is again supported by Plaintiff’s testimony, which indicates “generally” there is an “unloading party” that has equipment for the job. On the load in question, there was such an unloading party that had a lift device. (Liao Depo. at p. 84.) Plaintiff also testified he was instructed by the recipient where to park. (Fact No. 17.)

Thus, regardless of the admissibility of the “carrier information sheet,” which indicates there was no responsibility for unloading with “valid unloading receipt,” the evidence would tend to indicate the recipient of the goods was responsible for unloading; however, that does not mean Plaintiff was not requested to unload the truck or that doing so would necessarily be outside the course and scope of his employment. Defendant also contends Plaintiff controlled his own schedule, frequently took time off, and could refuse assignments. (Fact No. 14.)

The evidence cited, however, appears to relate to Plaintiff’s prior employment [Liao Depo. at pp. 73-74] or the period of time after the incident itself. (Liao Depo. at pp. 125 & 127-128). Furthermore, Plaintiff went on testify that part of the reason he did not drive as much following the incident was the condition of his hand, an injury allegedly sustained during the incident itself. (Liao Depo. at p. 128.) Then, in October 2022, Defendant offered Plaintiff a new delivery project, and Plaintiff accepted and voluntarily resumed driving Defendant’s truck. (Fact Nos. 29-31.)

Plaintiff continued to operate the truck until April 5, 2023; though he describes that work period as “off and on” as he “did very little driving actually.” (Fact Nos. 33 & 35.) The parties additionally agree that Plaintiff had established his own trucking company, Lucky 828, but it was a requirement to continue obtaining jobs from Defendant after the incident. (Fact No. 15.) That company was formed in March 2023 and Defendant thereafter made payments to Lucky 828. (Fact Nos. 36-37.)

Negligence (1st Cause) – For purposes of the first cause of action, Civil Code section 1714 provides that “everyone” is responsible, “not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . . .” The elements of a cause of action for negligence are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v.

County of San Mateo (1996) 12 Cal.4th 913, 917.) The motion in this case does not suggest that the “everyone” language of Civil Code section 1714 cannot apply to those who hire independent contractors. Indeed, the only argument made in the motion with respect to the first cause of action is that Defendant owed no duty of care to Plaintiff regarding the safe loading and unloading of packages because he was paid per mile and not for unloading packages. (Opening Brief, p. 16.) No legal authority is cited to support that proposition. (Ibid.)

Furthermore, the allegations in the complaint are not limited to a duty of care with respect to loading or unloading the truck in the strict sense or the absence of a lift; the complaint broadly indicates Defendant was negligent in the management, maintenance, control, and operation of the worksite and the vehicle. Furthermore, cleaning the vehicle after the unloading process could still be construed as part of the unloading process, especially when, as is the case here, Plaintiff was purportedly directed to clean the trailer.

Defendant again cites no authority indicating it cannot be liable for such alleged negligence merely because it paid its contractor on a mileage basis. The opposing evidence also supports the proposition that perhaps the trailer had been negligently maintained by Defendant since there was a nail or something “bulging or protruding on the trailer floor.” (Liao Depo. at pp. 85- 86.) Given the broad allegations in the Complaint, Plaintiff’s evidence related to the nail or the bulge is consistent with the pleadings, even if he abandons the theory based on the absence of a lift.

In general, foreseeability is also a significant factor in determining whether a duty of care exists as is the closeness of the defendant’s conduct and the injury, the moral blame, and the extent of the burden the proposed duty of care imposes. (See Formet v. Lloyd Termite Control Co. (2010) 185 Cal.App.4th 595, 601.) Whether or not Plaintiff was “obligated” to enter the trailer to unload goods, it was foreseeable that someone would enter the trailer for that purpose. Indeed, it seems likely. Even if that were not the case, it was foreseeable that Plaintiff would enter the trailer to clean it because, again, some evidence supports that he was instructed to do so by Defendant and cleaning was essentially part of the unloading process. (See Response to Fact No. 13.)

Negligence Per Se (2nd Cause) – Labor Code section 3357, any person who renders service for another is presumed to be an employee. An exception exists when the employer is an independent contractor. “The principal test of an employment relationship under the

Worker’s Compensation Act and the Unemployment Insurance Code is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired, but the court may also consider [other factors]” (Cal. Civ. Prac. Workers’ Compensation § 1:27 [citing People v. Czirban (2021) 67 Cal.App.5th 1073.)

“The determination of whether a person is an employee or an independent contractor is a question of fact unless the relevant evidence is undisputed.” (Cal. Civ. Prac. Workers’ Compensation § 1:30.) “The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced.” (Ibid.) “One seeking to avoid liability has the burden of proving that the injured person is an independent contractor rather than an employee.” (Ibid.) The principle factor is again the “control of work” or whether the alleged employer had the right to control the manner and means of accomplishing the result desired. (Ibid.)

However, the control test cannot be rigidly applied, and the court should review “several “secondary” factors, derived from the common law, to be considered in deciding whether an employment or independent contractor relationship exists. First, the right to discharge at will, without cause, is strong evidence of an employment relationship” in addition to “whether the worker is engaged in a distinct occupation; whether the occupation is the kind that is performed at a locale where the work is usually done under the direction of the principal or by a specialist without supervision; the nature and level of skill required in the particular occupation; whether the principal or the worker supplied the tools and the place of work for the worker; the length of time the services were to be performed; whether the method of payment was based on the amount of time worked or on completion of the job; whether the work was part of the principal's regular business; and whether the parties intended to create an employment relationship.” (Cal.

Civ. Prac. Workers’ Compensation § 1:30 [citing, among others, S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341].)

Here, the motion largely focuses on facts occurring before Plaintiff’s work with Defendant or the facts occurring after the fall itself. (See Fact Nos. 2-6, 15, 18-23, 26-44.) Even the fact advanced which purports to address the most important issue, whether Plaintiff was subject to Defendant PA&A’s control [Fact No. 14] is supported by evidence related to Plaintiff’s other prior work or the parties relationship after the incident as discussed above. That evidence is therefore not necessarily indicative of the parties’ relationship leading up to the incident. In the reply, Defendant nevertheless doubles down on its reliance upon the post-incident relationship. (Reply, p. 7.) As a result, Defendant failed to establish that Plaintiff was an independent contractor.

Even had the motion presented more evidence, the opposing evidence from Plaintiff creates a triable issue of material fact as to whether he was an employee. Defendant provided the truck; Plaintiff was engaged in Defendant’s regular business and that was his only occupation. Further, Plaintiff considered himself an employee, and he reported to manager “Coco” from Defendant. (Liao Decl., ¶¶3-10.) Liao was also instructed to clean the trailer and put the straps away. (Liao 6

Depo. at p. 57.) That direction would appear more related to the “means” of accomplishing the result (with the result being the transportation of loads itself).

Similarly, Plaintiff reported to Defendant waited for manager “Coco’s” instruction as to “where [he] should go next to pick up a shipment to send back to California,” i.e., she provided the logistical directions, and she provided instruction as to “pretty much . . . everything.” (Liao Depo. at pp. 77-79.) Plaintiff was also supposed to get oil changes at locations designated by Defendant. (Id. at p. 79.) Plaintiff also would “have to” take a photo of goods and send it to Defendant, again showing control over the means of delivery, even if slight. (Id. at p. 89.) In the light most favorable to the non-moving party, this appears to create a triable issue of material fact regarding control and whether Plaintiff was an employee.

Finally, Defendant also contends that the incident did not arise out of any employment relationship because Plaintiff was not tasked with unloading the vehicle. However, Defendant concedes that the scope of work was broad as including conduct “actuated to some extent by an intent to serve” the Defendant. (Opening Brief at p. 12.) Even if the incident occurred while Plaintiff was unloading the trailer, that task is directly tied to the scope of work since the trailer would need to be unloaded for Plaintiff to move to the next load or return the vehicle back to Defendant.

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