Case Name: Jose Carrillo v, OS Transport LLC, et al
Case No.: 2012-1-CV-237275

This is an action brought against multiple defendants by Plaintiff Jose Carrillo (“Plaintiff”) alleging various Labor Code violations, unfair competition, negligence, fraud, negligent misrepresentation and professional negligence. The operative pleading is Plaintiff’s Fourth Amended Complaint (“4AC”) filed October 3, 2014. Currently before the Court is Plaintiff’s motion for summary adjudication of two affirmative defenses (the twelfth and thirteenth) asserted by Defendants OS Transport LLC, HCA Management, Inc. and Hilda Andrade (“Andrade Defendants”) in their joint Answer to the 4AC filed January 16, 2015. The Andrade Defendants and Defendant Charles Naegele oppose the motion.

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. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]; Palm Spring Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.) Summary adjudication of general “issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136.)

Plaintiff’s motion is DENIED as follows. As previously stated by the Court (Hon. Zayner) in its August 4, 2017 order denying Plaintiff’s motion to set the matter for trial, unless and until the U.S. Bankruptcy Court for the Northern District of California clarifies its June 30, 2016 order (a copy of which is attached to Defendant Naegele’s opposition to this motion) expressly stating that the automatic bankruptcy stay is not terminated as to this state court action, the Court will not issue an order that is potentially void on its face. (See Gruntz v. County of Los Angeles (in re Gruntz) (9th Cir. 2000) 202 F.3d 1074, 1082 [judicial proceedings in violation of the automatic stay are void].)

The Court notes that even if it is assumed for purposes of argument that Plaintiff’s motion for summary adjudication is not barred by the bankruptcy stay, the motion would still be DENIED.

Plaintiff’s present motion can only be reasonably interpreted as an attempted renewal of Plaintiff’s motion for summary adjudication previously denied by the Court (Hon. Lucas) on January 22, 2016 that does not comply with CCP §1008(b) and fails to present “new or different” facts. In determining whether a new motion is a renewal of a previous motion within the meaning of CCP §1008, “the nature of a motion is determined by the nature of the relief sought, not by the label attached to it; the law is not a mere game of words.” (California Correctional Peace Officers Ass’n v. Virga (2010) 181 Cal.App.4th 30, 43.) Under this standard Plaintiff’s present motion for summary adjudication clearly seeks the same relief as his prior one: a determination by the Court that earlier proceedings before the WCAB and NLRB are somehow conclusive and binding evidence that Plaintiff was Defendants’ employee and that the Defendants are alter egos of one another. While the prior motion was brought against Defendants OS Transport and HCA Management and the present motion is brought against the twelfth and thirteenth affirmative defenses only as asserted by Defendant Hilda Andrade this is a distinction without a difference as the 4AC has always alleged (at 16) that “there exists a unity interest and ownership between OS-Transport and HCA-Management and Sencion and Andrade such that any individuality and separateness between them has ceased. Sencion and Andrade are the alter ego of OS-Transport and HCA-Management in that OS-Transport and HCA-Management is and at all times mentioned herein were a mere shell and sham without capital, assets, stock or shareholders.” In other words Plaintiff has always alleged that the Andrade Defendants are really one entity.

Facts a party seeking reconsideration was aware of at the time of the original ruling are not “new or different facts,” that would support a trial court’s grant of reconsideration. (See In re Marriage of Herr (2009) 174 Cal.App.4th 1463.) Accordingly, the only evidence offered in support of the present motion, testimony given in 2011 and 2015 (see exhibits A-C to the declaration of Plaintiff’s Counsel Parviz Darabi) cannot support a renewed motion as the evidence existed before the prior motion for summary adjudication was filed, heard, and denied.