Rohan v. Rice CA1/3

Filed 5/30/14 Rohan v. Rice CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

BRIAN ROHAN, Plaintiff and Appellant, A137374 v. BELLEMARIE RICE, et al., (Marin County Super. Ct. No. CIV096231) Defendants and Respondents.

Brian Rohan sued Bellemarie Rice and her husband Harry Rice for damages arising from an automobile accident. The trial court granted the Rices’ motion for summary judgment on the ground that Rohan’s exclusive remedy is under the workers’ compensation laws. Rohan argues that there were triable issues of material fact to the contrary. We disagree and affirm the judgment. I. BACKGROUND The accident occurred on May 27, 2008, while Rohan was riding in a car driven by Ms. Rice. Rohan alleges that he was injured when the car hit a tree. Ms. Rice, who was 80 years old and then recovering from a stroke, hired Rohan in early April 2008 to drive her on errands for $12 an hour. Initially, Rohan did all the driving, but later rode with Ms. Rice while she practiced driving. Ms. Rice would drive the car from her home to a particular intersection, where Rohan would take over. In deposition, Rohan testified that, on the day of the accident, they were stopped at the top of a hill on the way to the appointed intersection when he asked Ms. Rice to let him take the wheel because he was concerned about her driving. When he had done this

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once before, Ms. Rice kept driving, told Rohan “you are fired” when he asked to take the wheel, and then “you are rehired” when she reached the intersection. On the day of the accident, she again refused to stop driving and said “you are fired.” Rohan stayed in the car, expecting to be “rehire[d]” when they reached the intersection, but the accident intervened. Rohan was paid every one or two weeks with checks written by Mr. Rice, based on time slips Rohan submitted showing his hours worked. Rohan endorsed six checks made payable to him from Mr. Rice, dated April 15, April 30, May 5, May 13, May 21, and May 26, 2008, totaling $952. Rohan did not retain copies of the time slips, and the Rices produced slips only for hours billed from April 7 to 12, and from May 13 to 25. Mr. Rice said that he did not keep a file for the time slips, and that he may not have found all of them. Rohan asserted three causes of action against the Rices based upon provisions of the workers’ compensation statutes, and a common law negligence cause of action against Ms. Rice.1 In response to the Rices’s motion for summary judgment, Rohan abandoned his statutory causes of action, and thereby deleted Mr. Rice as a defendant. Ms. Rice challenged the negligence claim on the ground that relief afforded by the workers’ compensation scheme was Rohan’s exclusive remedy. Rohan opposed summary judgment on the negligence count, arguing primarily that there were triable issues of fact as to whether the accident occurred in the course and scope of his employment, and whether he worked sufficient hours to qualify as an employee. The trial court rejected these arguments, and granted the summary judgment motion. We dismissed Rohan’s purported appeal from the nonappealable order on the motion, but reinstated the appeal after judgment for the Rices was entered in the trial court.