Case Name: Fuller v. Lockheed Martin Corporation
Case No.: 1-12-CV-233680

Defendant/cross-complainant Lockheed Martin Corporation (“Lockheed”) moves for summary judgment as to the complaint (“Complaint”) filed by plaintiff David Fuller (“Plaintiff”). Cross-Defendant Zelos Consulting, LLC (“Zelos”) moves for summary judgment as to the cross-complaint (“Cross-Complaint”) filed by Lockheed.

Lockheed’s request for judicial notice in support of its opposition to Zelos’ motion for summary judgment is GRANTED. (See Evid. Code, § 452, subd. (d).)

Zelos’ motion for summary judgment is GRANTED. Lockheed’s claims against Zelos are barred by Labor Code section 3864, which provides that

If an action as provided in this chapter is prosecuted by the employee, the employer, or both jointly against the third person results in judgment against such third person, the employer shall have no liability to reimburse or hold such third person harmless on such judgment or settlement in absence of a written agreement so to do executed prior to injury.

There is no written agreement which provides that Zelos is to indemnify Lockheed for its own negligence. Lockheed identifies the indemnity provision contained in the staffing agency agreement executed between Search Pros Staffing (“Search Pros”) and Zelos as defeating application of Labor Code section 3864 to its claims. However, under Maryland law, which governs the agreement pursuant to the language contained in Section 6, “contracts will not be construed to indemnify a person against his own negligence unless an intention to do so is expressed in those very words or in other unequivocal terms.” (Crockett v. Crothers (1971) 264 Md. 222, 227; see also Heat & Power Corp. v. Air Prod. & Chemicals, Inc. (2003) 320 Md. 584.) Here, the staffing agency agreement does not expressly or unequivocally indemnify Lockheed against its own negligence. Absent such language, Zelos has no contractual duty to indemnify Lockheed for the damages incurred by Plaintiff. Consequently, Labor Code section 3864 applies to Lockheed’s claims in the Cross-Complaint and bars them as a matter of law.

Lockheed’s evidentiary objections to the evidence submitted by Plaintiff in opposition to Lockheed’s motion for summary judgment are SUSTAINED as to objection numbers 1-4, 8 and 29 and otherwise OVERRULED.

As a preliminary matter, in his opposition, Plaintiff first insists that Lockheed’s motion is “premature” because there has been minimal discovery to this point in the proceedings, and requests that the motion be denied on that basis. However, Plaintiff cites to no authority for the proposition that a motion for summary judgment may be denied because it is premature; at most, Plaintiff’s request can be viewed as a request to continue the motion to obtain the evidence necessary to defeat it. However, it is not enough to merely ask for a continuance in one’s opposing points and authorities, the summary judgment statute requires that the opposition be accompanied by affidavits or declarations demonstrating that facts to justify opposition may exist. (See Code Civ. Proc., § 437c, subd. (h); see also Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270.) Neither of the declarations provided by Plaintiff in support of his opposition, his own and that of his counsel, attempt to make the required demonstration. Consequently, there is no basis to continue Lockheed’s motion or deny it outright because it is “premature.”

Lockheed’s motion for summary judgment is GRANTED. After full consideration of the evidence, separate statements and authorities submitted by each party, the Court finds that the only reasonable conclusion which can be reached is that Plaintiff was a special employee of Lockheed at the time he was injured on October 14, 2010. “The 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 desired result.” (Angelotti v. Walt Disney Co. (2011) 192 Cal.App.4th 1394, 1404.) Lockheed submits evidence which demonstrates that it possessed such a right over Plaintiff while he worked on the infrastructure survey on its Sunnyvale campus. (See Lockheed’s Separate Statement of Undisputed Material Facts (“UMF”) Nos. 13, 14, 15, 23-26.) Further, secondary factors support the foregoing conclusion regarding Plaintiff’s employment status, including the fact that Lockheed provided Plaintiff all of the equipment necessary to complete his assignments and he was paid by the hour rather than the job. “When the general employer [] merely arranges for labor and does not provide equipment, the majority of decisions hold the worker is a special employee.” (Santa Cruz Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575, 582.) As a special employee, workers’ compensation is Plaintiff’s exclusive remedy. (See Angelotti, supra, 192 Cal.App.4th at 1403; see also Lenane v. Continental Maritime of San Diego, Inc. (1998) 61 Cal.App.4th 1073, 1081-1082.)

In opposition, Plaintiff fails to demonstrate a triable issue of material fact with regard to his employment status. While Plaintiff asserts, among other things, that his direct “supervisor” was an individual at Zelos, he provides no evidence which demonstrates that this individual, and not Lockheed personnel as its evidence establishes, had any input on any aspect of the actual work he performed at Lockheed, including his specific work assignments each day and the manner in which he was to complete those assignments.