exclusivity rule if specified “conditions of compensation” exist at the time of injury, including that the employee is “performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment.” (Lab. Code § 3600, subd. (a)(1)-(9).) The workers’ compensation exclusivity rule extends to co- employees, with certain exceptions not applicable here. (Lab. Code § 3601, subd. (a).)

“[F] an injury to occur in the course of employment the employee must be engaged in the work he has been hired to perform or some expectable personal act incidental thereto and the injury must occur within the period of his employment and at a place where he may reasonably be for the purpose.” (State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (1976) 59 Cal.App.3d 647, 652; Lab. Code § 3351 [an “employee” for purposes of workers’ compensation means “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”]; Laeng v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 771, 782-783 [pre-hire applicant was an “employee” because services were incurred for the benefit of the employer and performed according to its assignment and under its direction and control].)

Defendant failed to meet its initial burden establishing Plaintiff was an “employee” of defendant Westcoast Tree Services, Inc. (Westcoast) performing services at the behest of Westcoast at the time of the injury. There are no such facts in Defendant’s separate statement. (United Comm. Church v. Garcin (1991) 231 Cal.App.3d 327, 337

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, superseded statute on other grounds [“This is the Golden Rule of Summary Adjudication: If it is not set forth in the separate statement, it does not exist”];

Moreover, the only evidence produced by Defendant on Plaintiff’s purported employment status is Plaintiff’s responses to interrogatories and Plaintiff’s deposition testimony. (Declaration of Lauren G. Kane, Exs. C, D.) While Plaintiff testified that he was with Juarez on a “work- related trip,” he also testified he hadn’t yet started employment with Westcoast at the time of the accident. (Id. at Ex. D at pp. 14-15.) Nor did Defendant produce any evidence of an employment agreement between Westcoast and Plaintiff, or that Plaintiff performed any services on assignment, direction or control of Westcoast. Defendant having failed to meet his initial burden, the burden never shifted to Plaintiff. The motion is therefore DENIED.

Counsel for Plaintiff shall give notice of this ruling.

16. Uptown Newport Jamboree, Before the court is a motion by Uptown Newport Jamboree, LLC LLC v. Newport Fab, LLC (Uptown) for an order allowing it leave to file a second Motion for 18-973247 Summary Judgment as to the First Amended Cross Complaint (FAXC) filed by Newport Fab, LLC dba Jazz Semiconductor (Jazz). The motion is DENIED, for the reasons set forth herein.

Code of Civil Procedure §437c(a) provides, in part: “(4) A party shall not bring more than one motion for summary judgment against an adverse party to the action or proceeding. This limitation does not apply to motions for summary adjudication. (5) Notwithstanding any other provision of this section, on motion or application of any party and a showing of good cause, the court may grant leave for the moving party to bring an additional motion for summary judgment. The moving party shall serve the notice and supporting papers for any such additional motion in accordance with paragraph (2) of subdivision (a).”

On 4/9/21, Uptown filed a “Motion for Summary Judgment or in the Alternative Summary Adjudication” on 4/9/21. (ROA 344) On 2/24/22, the court denied both motions and issued a Minute Order stating: “The motion for summary judgment is DENIED, as is the alternative motion for summary adjudication.” (ROA 455) Accordingly, the issue in this motion is whether Uptown has submitted evidence establishing good cause to warrant leave to file a second motion for summary judgment as set forth in Section 437c(a)(5).

In 2024 Assembly Bill 2049 enacted several changes to §437c. Before AB 2049, Section 437c(f)(2) allowed for a second motion for summary judgment where there were sufficient “newly discovered facts or circumstances or a change of law.” When the Legislature enacted the new Section 437c(a)(5), it established a new requirement that good cause be shown. However, the Legislature did not include as an example of good cause such things as new facts or new law. The Legislature further expressly left the decision to allow a second motion for summary judgment to the discretion of the Court.

Uptown points out that there is no case interpreting the current section 437c(a)(5). Further, cases interpreting Section 437c(f)(2) are not helpful as the Legislature did not indicate an intent to codify earlier cases and instead intentionally omitted such. “It is well established that it is not the proper function of the courts to supply legislative omissions from a statute in an attempt to make it conform to a presumed intention of the Legislature not expressed in the statutory language.” (Cemetery Bd. v.

Telophase Soc'y of Am. (1978) 87 Cal.App.3d 847, 858)

Turning to the issue of good cause, Uptown asserts that it entered into a New Lease with Jazz and that such extinguishes the basis for the fraud claims in the FAXC. Uptown cites to excerpts of the New Lease as well as the Sabovich declaration. However, neither have been filed with the Court. “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Superior Ct. (1997) 53 Cal.App.4th 216, 224) Accordingly, there is no evidentiary support for the motion and the motion is DENIED.

Further, while the actual New Lease is not attached, the parties have quoted excerpts therefrom. For example, the New Lease apparently

refers to the Existing Litigation and the parties agreed in section 17.1 that “Landlord and Tenant expressly retain all rights and remedies under the 2002 Lease, and each party hereto acknowledges that nothing set forth in this Lease shall constitute a waiver or release by the other party hereto under the 2002 Lease ... and Tenant shall expressly retain all rights to pursue monetary damages against Landlord, which Landlord denies any basis therefor exists.” These facts are substantially different from the facts in Oakland Raiders v. Oakland–Alameda County Coliseum, Inc. (2006) 144 Cal.App.4th 1175 and Channell v. Anthony (1976) 58 Cal.App.3d 290.

Based on the information provided, the Court does not find the execution of the New Lease to be a condition supporting a finding of good cause to warrant a second motion for summary judgment.

Jazz is ordered to give notice of this ruling 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30.