Case Name: David Hernandez v. Dynamic Integrated Solutions, LLC, et al.

Case No.: 16CV303900

Motion for Summary Judgment of Defendants Dynamic Integrated Solutions, LLC; LD Odyssey, LLC; and David Diep

On or about April 19, 2016, plaintiff David Hernandez (“Hernandez”), while in the course and scope of his employment with defendant Dynamic Integrated Solutions, LLC (“Dynamic”), was told to perform demolition work which involved the removal of HVAC equipment and insulation from a ceiling area 22 feet above ground. (Complaint, ¶Prem.L-1(d). Defendant David Diep (“Diep”) provided plaintiff Hernandez a scissor lift, but the lift was not able to elevate to the 22 foot height. (Id.) Defendant Diep instructed plaintiff Hernandez to place a ladder on top of the scissor lift in order to reach the work area. (Id.) While attempting to remove insulation material from the ceiling area, the ladder shifted and plaintiff Hernandez fell approximately 22 feet to the ground below. (Id.) Defendants Dynamic; LD Odyssey, LLC (“Odyssey”); and its employee defendant Diep negligently and carelessly failed to exercise and retain control of the manner, means, and methods of the demolition work and created an unreasonable risk of harm to plaintiff Hernandez. (Complaint, ¶Prem.L-1(e).) Defendants Dynamic and Odyssey do not have workers’ compensation insurance. (Complaint, ¶Prem.L-1(f).)

On December 12, 2016, plaintiff Hernandez filed a Judicial Council form complaint against defendants Dynamic, Odyssey, and Diep asserting causes of action for: (1) Premises Liability; and (2) General Negligence.

On January 27, 2017, defendants Dynamic, Odyssey, and Diep jointly filed an answer to plaintiff Hernandez’s complaint.

On July 26, 2017, defendants Dynamic, Odyssey, and Diep filed a motion for judgment on the pleadings. On August 24, 2017, the court (Hon. Folan) denied defendants’ motion for judgment on the pleadings.

On February 21, 2018, defendants Dynamic, Odyssey, and Diep filed the motion now before the court, a motion for summary judgment.

I. Defendants’ motion for summary judgment is DENIED.

In moving for summary judgment, defendants Dynamic, Odyssey, and Diep argue plaintiff Hernandez’s claims for premises liability and negligence are barred by the exclusive remedy under the California Workers’ Compensation Act (“CWCA”). “With certain statutory and judicial exceptions, a compensation claim under the CWCA provides the exclusive remedy against an employer for a work-related injury or death.” (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61 Cal.App.4th 1073, 1081 (Lenane).)

The legal theory supporting this exclusive remedy provision is a presumed “compensation bargain,” pursuant to which the employer assumes liability for the work-related personal injuries or death without regard to fault in exchange for limitations on the amount of that liability, while the employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of work-related injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort. According to this legislative “quid pro quo,” the exclusive compensation law remedy supersedes common law and statutory remedies in the employment field and creates a different standard of rights and obligations in place of all prior rights and duties.

(Lenane, supra, 61 Cal.App.4th at pp. 1081 – 1082.)

This CWCA exclusive remedy rule is codified in Labor Code section 3602, subdivision (a), which provides in part: “Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee.” (Emphasis added.)

Labor Code section 3600 states, in relevant part, “Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as otherwise specifically provided in Sections 3602, 3706, and 4558, shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur….”

“[A] defendant in a civil action who claims to be one of that class of persons protected from an action at law by the provisions of the Workers’ Compensation Act bears the burden of pleading and proving, as an affirmative defense to the action, the existence of the conditions of compensation set forth in the statute which are necessary to its application.” (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96 (Doney).)

“An exception to this general rule of pleading and proof by the defendant appears in the situation where the complaint affirmatively alleges facts indicating coverage by the act. Then, unless the complaint goes on to state additional facts which would negative the application of the act, no civil action will lie and the complaint is subject to a general demurrer.” (Doney, supra, 23 Cal.3d at p. 97.)

Here, however, defendants are not challenging plaintiff Hernandez’s complaint by way of a general demurrer. Instead, defendants are moving for summary judgment. “A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)

The burden on a defendant moving for summary judgment based upon the assertion of an affirmative defense is heavier than the burden to show one or more elements of the plaintiff’s cause of action cannot be established. Instead of merely submitting evidence to negate a single element of the plaintiff’s cause of action, or offering evidence such as vague or insufficient discovery responses that the plaintiff does not have evidence to create an issue of fact as to one or more elements of his or her case (see Certain Underwriter at Lloyd’s of London v. Superior Court (1997) 56 Cal.App.4th 952, 958-959 [65 Cal.Rptr.2d 821]),” the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense” (Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858 [62 Cal.Rptr.2d 16], italics added; accord, Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830-831 [20 Cal.Rptr.2d 296]).

(Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289, italics original; emphasis added.)

Here, defendants have not met their burden of showing undisputed facts to support each element of their affirmative defense. Labor Code section 3600, subdivision (a), enumerates ten conditions which must concur in order for the workers’ compensation exclusive remedy to apply. Defendants have not proffered undisputed facts to establish the existence of all ten conditions of compensation and, consequently, have not met their initial burden.

Accordingly, defendants’ motion for summary judgment is DENIED.