Case Number: BC665543 Hearing Date: October 07, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Yousuf Azami is an actor who appeared in a film entitled “Horse Soldiers.” He sued multiple defendants for negligence and ultra-hazardous activity alleging he sustained an injury when a horse stepped on him during filming. Defendants Jerry Bruckheimer, Inc., Black Label Media, LLC (“Black Label Media”), Frontage, Inc. (“Frontage”), Nicolai Fuglsig, HS Film, LLC (HS Film”), Jerry Bruckheimer, Clay Lilley, and Movin On Livestock NM, LLC (“Movin On”) move for summary judgment.

II. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

III. OBJECTIONS

Defendants’ Objection Nos. 1-12, 15-29 are OVERRULED.

Defendants’ Objection Nos. 13, 14 are SUSTAINED.

IV. DISCUSSION

Defendants contends Plaintiff was employed by HS Film and therefore Plaintiff’s claims against HS Film are barred by Labor Code sections 3600-3603, which provide that under certain conditions, workers’ compensation is the sole and exclusive remedy of an employee against the employer. (Lab. Code, § 3602(a); Angelotti v. The Walt Disney Co. (2011) 192 Cal.App.4th 1394, 1403.) Defendants also contend that certain other Defendants were employed by HS Film – in other words, that they were co-employees of Plaintiff – and that therefore Plaintiff’s remedy against them is limited to workers’ compensation. (Angelotti, supra, 192 Cal.App.4th at p. 1403 [“The workers’ compensation exclusivity rule also precludes a tort remedy against another employee of the same employer acting within the scope of employment . . .”].)

“[T]he principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired . . . .” (S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350, internal quotations omitted.) “Strong evidence in support of an employment relationship is the right to discharge at will, without cause . . . .” (Ibid., internal quotations omitted.) Other secondary factors include: “(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee.” (Id. at p. 351.)

“An employee may have two employers for purposes of workers’ compensation.” (Angelotti, supra, 192 Cal.App.4th at p. 1403.) “Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employers – his original or ‘general’ employer and a second, the ‘special employer.’” (Ibid., citation and quotations omitted.) Both are protected by the exclusivity rule. (Id. at pp. 1403-1404.) “The label used by the parties is not dispositive.” (Id. at p. 1404.)

“Whether a special employment relationship exists generally is a question of fact. [Citation.] If neither the facts nor inferences are in conflict, however, the question is one of law that may be decide on summary judgment.” (Caso v. Nimrod Productions, Inc. (2008) 163 Cal.App.4th 881, 889.)

HS Film LLC

Defendants argue HS Film hired Plaintiff, citing the Weekly Player Employment Agreement between HS Film and Plaintiff, which states that it “covers the employment of the above named Yousuf Azami (‘Artist’) by HS Film, LLC (‘Producer’), in the Picture ‘Horse Solders’ . . . .” (UMF No. 26; Defendants’ Exh. J.) Defendants also point to Plaintiff’s response to requests for admission where he admitted he was not an independent contractor and stated he “was the employee of HS Films LLC.” (Defendants’ Exh. C at p. 5.) Plaintiff does not dispute that HS Film was his employer. (Plaintiff’s Response to UMF Nos. 26, 28.) It is undisputed that Plaintiff received workers’ compensation benefits as a result of the accident. (Plaintiff’s Response to UMF No. 42.)

Having admitted he was not an independent contractor and was HS Film’s employee, Plaintiff is barred from pursuing tort remedies against HS Film. Plaintiff does not contend or establish that his claim he was injured while engaging in an ultrahazardous activity is an exception to this rule. (Behrens v. Fayette Manufacturing Co. (1992) 4 Cal.App.4th 1567, 1574 (“Plaintiff, seeking to be excluded from the general sweep of the exclusive remedy of workers’ compensation, must establish that the exception applies.”)

As discussed in detail below, Plaintiff contends the producers at Black Label Media and Jerry Bruckheimer controlled the production of the film. But evidence of their control does not exclude an employer-employee relationship between Plaintiff and HS Film, especially where Plaintiff admitted in requests for admission that HS Film was his employer.

Accordingly, summary judgment for HS Film is GRANTED.

Nichlai Fuglsig

Defendants contend Nichlai Fuglsig was also an employee of HS Film and thus a co-employee of Plaintiff. And therefore, Defendants argue, he is protected by the workers’ compensation exclusive remedy. (Lab. Code, § 3601(a).)

Defendants contend HS Film hired Fuglsig to direct the film pursuant to a loan-out agreement with Fuglsig’s loan-out company, Frontage. (UMF No. 4.) That agreement states that HS Film was engaging Frontage “to furnish the production services of [Fuglsig] as director of the Picture.” (Defendants’ Exh. E at p. 2.) HS Film retainted the sole right to select all key-crew and to approve the budget, principal cast, screenplay, music, principal locations, production and post-production schedules, subject to meaningfully consultation with Fuglsig. (Defendants’ Exh. E at p. 3.) “All other business and creative decisions in connection with the Picture shall be made in accordance with [HS Film’s] discretion.” (Ibid.) HS Film also had to approve changes in the final shooting script, shooting schedule, and budget and to approve commitments for services, rights, credits, facilities, equipment or materials. (Ibid.) HS Film paid Frontage for Fuglsig’s services. (Defendants’ Exh. E at p. 4.) Plaintiff does not dispute that the agreement stated that HS Film had “no obligation to utilize [Fuglish’s] services,” stated that HS Film had the right to terminate Fuglsig’s services under certain conditions, and stated that HS Film was Fuglsig’s “special employer” as understood for purposes of workers’ compensation statutes. (Plaintiff’s Response to UMF Nos. 9, 10, 11; Exh. E at p. 17.) The agreement stated HS Film had “the exclusive right to direct and control the performance of [Fuglsig’s] services” and that Fuglsig’s remedies against HS Film for injury arising out of the course of the employment was limited to those provided under workers’ compensation statutes. (Defendants’ Exh. E at p. 17.)

Defendants also submitted Fuglsig’s testimony that he “certaintly had to report to the producers, obviously,” and did not “do anything without their blessing.” (Defendants’ Exh. F at p. 25.)

Defendants argue Fuglsig’s circumstances were “virtually identical” to those in Caso. In that case, a stuntman sued the director of the television program on which he was injured. (Caso, supra, 163 Cal.App.4th at p. 884.) The court analyzed whether the director was an employee of the show’s production company. It considered that the director’s loan out agreement stated that an employment relationship existed between the director and production company, with the director being a special employee of the production company. (Id. at pp. 885-886.) That agreement also stated remedies for injuries were limited to those specified in workers’ compensation laws. (Id. at p. 886.) The agreement gave the production company the right to terminate the director and to control the production of the television program. (Ibid.) The director testified he understood he was an employee of the production company, which had ultimate authority over his direction. (Ibid.) The court concluded that although the director received his paycheck from his loan-out company, the undisputed evidence established the relationship with the loan-out company was “administrative only, existing solely for payment purposes.” (Id. at p. 890.) Although the director had “a good deal of discretionary authority, . . . that authority was really no different than any supervisorial employee’s.” (Id. at p. 892.) The undisputed evidence “established that ultimate authoirity over the production, both substantive and aesthetic,” belonged to the production company. (Ibid.) The court affirmed the grant of summary judgment based on the conclusion that the director was a special employee of the production company. (Id. at p. 895.)

Defendants have satisfied their burden of showing that Fuglsig was HS Film’s special employee, and the burden shifts to Plaintiff to raise a triable issue of material fact.

Plaintiff argues that Black Label Media and Jerry Bruckheimer were the producers, not HS Film, and they controlled the production, not HS Film. Plaintiff contends Bruckheimer hired Fuglsig with Black Label Media’s approval and made the decisions about the film’s production. Plaintiff primarily relies on Fuglsig’s deposition testimony. He testified that he had years of discussions with Bruckheimer about directing the film, and finally in 2016 he learned he was going to be the director. (Plaintiff’s Exh. B at p. 14.) Black Label Media chose the filming location. (Id. at p. 19.) Fuglsig dealt with several producers at Black Label Media and was responsible to Jerry Bruckheimer and Black Label Media. (Id. at pp. 19-20, 25.) The pre-production meetings were with Jerry Bruckheimer and Black Label Media. (Id. at p. 22.) Fuglsig believed other personnel working on the film came from Black Label Media. (Id. at p. 24.)

Defendants argue Black Label Media had no role in the film except for being the member of HS Film. Defendants cite to Black Label Media’s interrogatory responses. Black Label Media responded that it was the managing member of HS Film. (Defendants’ Exh. A at p. 14.) The responses also state that Black Label Media “is in the business of making motion pictures,” HS Film was created for the film, and Black Label Media “will not disclose the financial relationship, if any, between the two companies.” (Id. at p. 9.) Defendants did not submit any agreements between Black Label Media and any other entity or person. Defendant did not submit the documents creating HS Film and describing the relationship between the two companies. One would expect that agreements exist describing the extent of Black Label Media’s control over HS Film and the film’s production, if any. Defendants also argue that Black Label Media is a known entity in the entertainment business and that HS Film was created solely for the film, so people who worked on the film assumed Black Label Media was the producer. Defendants also argue that many employees of Black Label Media were also employees of HS Film, but does not submit evidence of that.

This evidence is enough to create disputed facts, or at least conflicting inferences, about whether HS Film or Black Label Media (or both) directed and controlled Fuglsig’s performance of his employment on the film. When Fuglsig stated that he “certainly had to report to the producers, obviously,” and did not “do anything without their blessing” (Defendants’ Exh. F at p. 25), he is not clear about the identity of those producers. A few questions earlier, he had described personnel at Black Label Media as the producers. Immediately after the comment about obtaining the producers’ blessing, Fuglsig said he was responsible to Bruckheimer and Black Label Media, suggesting that they were the producers who had to bless everything. (Plaintiff’s Exh. B at pp. 19-20, 25.) Thus, a reasonable inference is that Fuglsig understood Bruckherimer and Black Label Media to be in charge of the film’s production and his activities directing the film, and that the loan out agreement with Frontage was did not reflect the actual exercise of control on the set.

The conflicting evidence about who was in charge of the film’s production makes this situation different from Caso. In Caso, the evidence was undisputed that the production company with whom the director had his agreement “had ultimate authority and control” over the director’s activities on the television show. (Caso, supra, 163 Cal.App.4th at p . 891-892.) The fact that Fuglsig’s agreement with HS Film states he is a special employee of HS Film and HS Film has exclusive control over his activities on the film “is not conclusive.” (Id. at p. 889.) “There still must be evidence to support the inference to be drawn from the contract terms.” (Ibid.)

Because conflicting inferences can be drawn concerning the control over Fuglsig’s employment on the film, Fuglsig’s motion for summary judgment is DENIED.

Jerry Bruckheimer

Bruckheimer entered into a producer agreement with HS Film. (Defendants’ Exh. G.) Defendants contend the agreement states that HS Film was Bruckheimer’s special employer for purposes of his work on the film, and HS Film has the exclusive right to direct and control Bruckheimer’s services in connection with the project. (UMF Nos. 17, 18.) For the same reasons described above, conflicting inference can be drawn from the evidence about whether HS Film actually directed and controlled Bruckheimer’s services, or whether Black Media Label and Bruckheimer were in control of the production of the film. Defendants do not submit evidence of Bruckheimer’s or his loan-out company’s relationship to Black Media Label.

Defendants also argue that Bruckheimer did not have any specific input over the scene where the accident occurred, offered no specific direction or instruction, and therefore did not owe a duty of care to Plaintiff. Defendants cite to the declaration of Ellen Schwartz who does not identify her role on the film or how she knows Bruckheimer did not give any specific input, direction, or instruction concerning the scene. Defendants also cite to Bruckheimer’s loan out company’s response to Interrogatory No. 17.1, which states that his loan out company had no involvement the production shoot, and that “Jerry Bruckheimer has certain approval rights but such rights were not specifically exercised in regards to the specific footage when the incident occurred.” (Defendants’ Exh. O at p. 21.) The interrogatory response does not support the assertion that Bruckheimer had no involvement in the scene.

Assuming Schwartz’ bare assertion is enough to satisfy Defendants’ burden, Plaintiff presented evidence from which conflicting inferences could be drawn. There were safety meetings during the filming, and Bruckheimer was present at some of them. (Plaintiff’s Exh. C at pp. 26, 27-28.) As described above, the director did not do anything without Bruckheimer’s blessing. This is sufficient to allow the inference that Bruckheimer was involved in maintaining safety during filming and had significant control over the production, and therefore may have owed a duty of care to Plaintiff. On this record, the Court cannot conclude as a matter of law Bruckheimer owed no duty of care to Plaintiff.

Accordingly, Bruckheimer’s motion for summary judgment is DENIED.

Clay Lilley

Defendants argue Lilley was hired by HS Film as a horse wrangler, citing to his deal memo. (Defendants’ Separate Statement and Defendants’ Exhibits state the deal memo is attached as Exhibit H. However, Exhibit H is Jerry Bruckheimer, Inc.’s interrogatory responses. The Court could not locate the deal memo in the exhibits.) Plaintiff does not dispute that Lilley’s deal memo states HS Film hired Lilley. (Plaintiff’s Response to UMF Nos. 20, 21.)

Plaintiff contends Black Label Media actually hired and controlled Lilley. Plaintiff’s evidence mainly comes from Fuglsig’s testimony about Black Label Media controlling Fuglsig’s work on the film (see above), as well as the deposition of the safey advisor about his belief that he negotiated his employment agreement with Black Label Media and his reference to being hired by Black Label Media. (Plaintiff’s Exh. C at pp. 42-43.) This evidence does not support Plaintiff’s contention that Black Label Media hired and controlled Lilley and is not sufficient to raise a triable issue that Lilley was not HS Film’s special employee.

Accordingly, Lilley’s motion for summary judgment is GRANTED.

Jerry Bruckheimer, Inc. and Frontage, Inc.

Defendants argue Jerry Bruckheimer, Inc. and Frontage are loan-out companies that did not exercise control over employees in the making of the film, and therefore are not liable for Plaintiff’s injuries. Plaintiff does not dispute that Frontage is a loan-out company, but argues that Jerry Bruckheimer, Inc. is a lot more, that it has officers, directors, employees, and subsidiaries, helped pay development costs for the film, and retained the right to consult on other financers of the film. Plaintiff does not cite evidence supporting these assertions. Also, these facts, if true, do not establish that Jerry Bruckheimer, Inc. exercised control over Jerry Bruckheimer’s, or anyone else’s, activities in the making of the film.

In Caso, the court considered whether loan-out companies of other defendants were liable to the plaintiff. The key issue was whether the loan-out companies “retained at least some control over their employee during the loan-out period.” (Caso, supra, 163 Cal.App.4th at 894.) Here, as in Caso, “there is simply no evidence that the loan-out corporations, in fact, retained any control over [the employees they loaned out, Bruckheimer and Fuglsig] during the loan-out period or that they were involved in any aspect of the production other than serving as a legal vehicle for the receipt of payment on behalf of their employees.” (Ibid.)

Accordingly, Jerry Bruckheimer, Inc.’s and Frontgate’s motions for summary judgment are GRANTED.

Black Label Media

Defendants argue that “[o]ther than serving as the member of HS Film, Black Label had no involvement in the production of the film” and played no role in the specific shot where Plaintiff was injured. But Plaintiff presented evidence described above that Black Label Media acted as a producer, and Fuglsig would obtain its approval of his directing decisions. There is sufficient evidence to create a triable issue about Black Label Media’s control over and role in the making of the film.

Accordingly, Black Label Media’s motion for summary judgment is DENIED.

Movin On

Movin On argues it merely leased horses for the film and Plaintiff does not allege the horse in the accident was ill-suited for the shoot or responsible for Plaintiff’s injuries. Movin On also cites to a report from the American Humane Association that the horses were very experienced and had previous experience with fires and explosions. Plaintiff points out that the First Amended Complaint does allege that Defendants had the duty to ensure that the horses were safe for use and that Defendants did not ensure the horses were safe for use on the set, resulting in his injury.

The American Humane Association report standing alone does not establish that the horses were safe for use on the set. Movin On’s motion for summary judgment is DENIED.

VI. CONCLUSION

In light of the foregoing, the court rules as follows:

HS Film LLC’s motion for summary judgment is GRANTED.

Nicolai Fuglsig’s motion for summary judgment is DENIED.

Jerry Bruckheimer’s motion for summary judgment is DENIED.

Clay Lilley’s motion for summary judgment is GRANTED.

Jerry Bruckheimer, Inc.’s motion for summary judgment is GRANTED.

Frontgate, Inc.’s motion for summary judgment is GRANTED.

Black Label Media, Inc.’s motion for summary judgment is DENIED.

Movin On Livestock NM, LLC’s motion for summary judgment is DENIED.

Moving party to give notice.