Case Number: BC617199 Hearing Date: January 12, 2018 Dept: O

BC617199

PURWIN ET AL v. CROSS CREEK PRODUCTIONS, LLC ET AL

Defendants Cross Creek Pictures, LLC, Imagine Entertainment, LLC, Quadrant Pictures, Vendian Entertainment LLC’s (“Production Defendants”) Motion for Summary Judgment is DENIED.

ANALYSIS: Production Defendants move for summary judgment on grounds that they did not owe decedent Alan Purwin a duty of care. Production Defendants argue that they were merely the creative producers (Cross Creek Productions, Imagine Entertainment and Quandrant Pictures) and the financing entity (Vendian Entertainment). Production Defendants contend the entity that oversaw the entire movie was Mena Productions LLC and it was Mena Productions LLC’s aerial coordinator who was in charge of selecting pilots, selecting aircrafts and controlling the use of the aircraft in any manner whatsoever. Production Defendants had nothing to do with the hiring of Carlos Berl, the pilot of the aircraft on the Accident Flight, or any part of the aerial aspect of the production whatsoever. Production Defendants had no role whatsoever in the safety or aerial aspects of the movie.

In the alternative, Production Defendants argue that if they owed Alan Purwin a duty of are, they are entitled to a dismissal of all claims against them, because workers’ compensation is the exclusive remedy under Labor Code §3601. Labor Code §3601 provides that worker’s compensation is the exclusive remedy for any employee injury or death suffered during the course of employment. According to Production Defendants, Alan Purwin was a co-employee of Cross Creek, Imagine and Quadrant and Mena Productions was their employer. Production Defendants contend it is undisputed that Alan Purwin was Mena Productions LLC’s employee.

Plaintiffs argue that Labor Code §3601 does not apply here, because Alan Purwin was not an employee of Mena Productions LLC, nor were any of the Production Defendants. Plaintiffs contend all of these persons and entities were independent contractors. There is no evidence supporting any assertion of an employment relationship between Mena Productions and any of these people or entities. Whether Purwin was an employee is a multi-faceted, fact intense inquiry that must be performed by the trier of fact. Certainly, the evidence presented does not establish Purwin or Production Defendants as employees as an issue of law adjudicable on summary judgment.

Plaintiffs also argue that Production Defendants owed a duty of care to Alan Purwin because they were engaged in making the film. Because they were engaged in making the film, they had a duty to do so safely. Brian Oliver admitted during deposition that the producers are expected to know what is happening on set and take steps to keep things safe. In addition, Plaintiffs contend Cross Creek contractually agreed through its controlled affiliated CCP Mena Film Holdings II, LLC, to maintain day-to-day control and decision making authority over the production, including safety. Imagine and Quadrant had representatives on set in Colombia and directly participating in safety decisions.

Moreover, Plaintiffs theory of liability is based on the Producer Defendants creating an unsafe set by pushing to finish the film and creating an intolerable pace and exhausting pressure. Plaintiffs contend Carlos Berl was pressured by the Producer Defendants to stay on schedule after being allowed on set, despite the set being closed.

To the extent Producer Defendants argue that they delegated any duty of care to the aerial coordinator, the duty was non-delegable. Because the work to be performed carried an inherently dangerous risk, the peculiar risk doctrine applies and Producer Defendants are still directly responsible for aerial safety.

Finally, Producer Defendants are jointly liable as co-venturers and/or alter egos. Plaintiffs contend that Cross Creek and Mena Productions were part of a single business enterprise. Brian Oliver was the sole officer of both Cross Creek and Mena Productions. They shared the same offices, maintained no corporate formalities and Mena Productions had no capitalization of its own. The sole member of Mena Productions was CCP Mena Film Holdings II, LLC, of which Oliver was president, just as he was of Mena Productions. Cross Creek is liable along with Mena Productions as a single enterprise.

Questions of fact remain as to whether Producer Defendants owed Alan Purwin a duty of care

According to Plaintiffs’ complaint, Defendants were negligent in entrusting and directing the Accident Aircraft and failing to “ensure that Carlos Berl was competent, qualified, rested and sufficiently informed for the flight.” See Complaint, ¶19. Producer Defendants’ argument that they did not owe Purwin a duty due to their complete lack of involvement in aerial matters is unpersuasive.

First, Plaintiffs’ complaint alleges that Berl was not rested and sufficiently informed for the flight. As Plaintiffs explain, the production decisions made by the Producer Defendants, including the production schedule, affected Berl’s ability to properly brief himself on the flight and forced him to pilot the plane when he was not rested, during inclement weather and under enormous time constraint. See Plaintiffs’ Response to Defendants’ SSUMF Nos. 3-8, Plaintiffs’ AUMF Nos. 1-25 and 61-67.

Defendants rely on Angelotti v. The Walt Disney Co. (2011) 192 Cal.App.4th 1394, arguing that their complete lack of involvement in the aerial safety issues absolves them of any duty of care to Purwin, who was allegedly injured due to negligence in hiring of the pilot and operation of the plane. In Angelotti, defendant Walt Disney provided the financing for the film and turned over all operational control to the production company, which was to oversee all safety issues on set. Walt Disney provided a safety manual but did nothing beyond that in connection with the film. Angelotti, supra, 192 Cal.App.4th at 1406-1407. Based on these facts, the court found on summary judgment that Disney did not owe the plaintiff stuntman a duty of care. Id.

Angelotti is distinguishable in several ways. Unlike the plaintiff in Angelotti, Plaintiffs are not alleging negligence based on the narrow issue of operation of the plane or use of Berl as the pilot. Plaintiffs are alleging that the overall production decisions and attendant time pressures created an environment where Berl ultimately piloted the Accident Plane despite being improperly trained and rested. Even if Defendants were not involved in the specific issue of aerial safety, Plaintiffs contend that Defendants were in charge of daily operations that impacted aerial safety and resulted in Berl piloting the plane under unsafe conditions. Defendants’ non-involvement in the specific issue of aerial safety would not address this contention.

In addition, as discussed below, Plaintiffs have raised triable issues of fact as to the degree of control and participation each of these Defendants had over the film. Unlike Disney in Angelotti, it is by no means clear what precise role each of these entities played in film production, particularly given the overlap of Brian Oliver as the controlling principal in Cross Creek and Mena Productions and the apparent shell status of a number of the entities.

Second, Producer Defendants attempt to assign responsibility for any aviation decisions solely to Mena Productions, who hired an aerial coordinator to oversee the decisions concerning the aircraft, the pilots and any issues relating to aerial scenes. However, Producer Defendants do not include any facts to support this assertion in the separate statement. The separate statement on the issue of duty consists of 32 facts, all of which merely state that each Producer Defendant had nothing to do with operation or piloting of the aircraft, or selection of the pilots. See SSUMF Nos. 32. The facts and evidence presented do not address who had responsibility for these issues

Moreover, to the extent Producer Defendants believe that it was Mena Productions and CCP Mena Film Holdings II, LLC, Plaintiffs have raised a triable issue of material fact as to whether Mena Productions, CCP Mena Film Holdings II, LLC and Producer Defendants were all members of a joint venture, jointly liable for the accidents that occurred on the set of the movie, whether Mena Productions was merely a shell and day-to-day operations were overseen by a combination of the Producer Defendants and whether CCP Mena Film Holdings LLC’s handling of aerial issues was at the instruction and control of Producer Defendants. See Plaintiff’s AUMF Nos. 26-60.

Based on Brian Oliver’s testimony and Plaintiffs’ additional evidence, the control over day-to-day operations, overall safety and aerial safety on the set is by no means a clear issue of law. Oliver himself was confused over the structuring of the entities responsible for production, their purpose and the purpose of several central agreements to the movie. See Plaintiffs’ AUMF Nos. 26-49. Oliver was even ignorant of the fact that he was president of Mean Productions and claimed it was not his signature on certain agreements. Id. at Nos. 39-40. Any confusion surrounding what entity was in charge or control of the film production, including the specific aspect of aerial safety, is apparently the product of Producer Defendants and Mena Productions own conduct.

Numerous disputed issues of material fact exist regarding the degree of control exercised by Producer Defendants over operations and safety on the set. Summary judgment on the issue of duty must be DENIED.

Questions of Fact Remain as to Whether Purwin was an Employee of Mena Productions and Co-Employees of Production Defendants under Mena Productions

“Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation, pursuant to the provisions of this division is, except as specifically provided in this section, the exclusive remedy for injury or death of an employee against any other employee of the employer acting within the scope of his or her employment, except that an employee, or his or her dependents in the event of his or her death, shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against the other employee, as if this division did not apply, in either of the following cases: (1) When the injury or death is proximately caused by the willful and unprovoked physical act of aggression of the other employee. (2) When the injury or death is proximately caused by the intoxication of the other employee.” Lab. Code, § 3601.

“‘Employee’ means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.” Lab. Code, § 3351. “‘Independent contractor’ means any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.” Lab. Code, § 3353. “Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.” Lab. Code, § 3357.

Whether an individual is an employee of another is a question of fact that can only be determined on summary judgment or adjudication if reasonable minds could only arrive at one conclusion. See Varisco v. Gateway Science and Engineering, Inc. (2008) 166 Cal.App.4th 1099, 1105. “[T]he most significant question in the independent contractor/employee determination is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired…Case law has identified secondary indicia of the nature of the relationship. These are ‘(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.’” Varisco, supra, 166 Cal.App.4th at 1103-1104; see also Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, 1180; Zaremba v. Miller (1980) 113 Cal.App.3d Supp. 1, 5. In addition, if a worker may be discharged at will, without cause, would weigh in favor of an employment relationship. See Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, 1180.

Producer Defendants argue that under section 3601, Plaintiffs’ claims must be dismissed because the sole remedy against them is worker’s compensation. However, in order to support this argument, Producer Defendants must establish with undisputed facts that Producer Defendants and Purwin were all employees of the same employer. Producer Defendants fail to do this.

Plaintiffs dispute that Purwin was an employee of Mena Productions, LLC. Plaintiffs argue that under the applicable factors, Purwin was an independent contractor. Purwin was not providing services under a SAG Agreement in Colombia, provided his own plane, made the ultimate decisions about flying and his discretion on any decisions involving his work would prevail over any other producers or the director. See Plaintiffs’ Response to Defendants’ SSUMF No. 35. There is also a dispute as to whether the Producer Defendants were employees of Mena Productions LLC. The CCP Agreement relied upon by Defendant Cross Creek to establish their employee status does not so state. Brian Oliver himself denied that the agreement made Producer Defendants employees of Mena Productions LLC. Id. at SSUMF Nos. 36 and 37.

Likewise, the respective agreements between each remaining Producer Defendant and Mena Productions LLC do not conclusively establish their employee relationship with Mena Productions LLC. How the parties referred to their relationship or what type of relationship they intended are merely two factors of many in determining whether the parties were in an employment relationship where the nature of the relationship is disputed, as it is here. See Varisco v. Gateway Science and Engineering, Inc., supra, 166 Cal.App.4th at 1105. Thus, for example, even if the loan out agreement between Mena Productions, LLC and Imagine Entertainment LLC for the services of Brian Grazer explicitly states that Grazer is an special employee, Plaintiffs have submitted sufficient evidence to call into question whether Mena Productions, LLC was merely a shell entity that had no control over Grazer and who in fact had control over Grazer. See Plaintiffs’ AUMF Nos. See Plaintiffs’ AUMF Nos. 26-49; .

Defendants argue that the agreements they each entered into with Mena Productions LLC establish that they were employees of Mena Productions, LLC, just as the loan out agreements in Caso v. Nimrod Productions, Inc. (2008) 163 Cal.App.4th 881, 890 created a “special employment” relationship between the individual defendants and plaintiff’s employer. However, unlike the plaintiff in Caso, Plaintiffs are denying that Purwin was Mena Productions LLC’s employee. In order for Labor Code §3601 to apply to Purwin’s claims, Purwin and Producer Defendants must all have been employees of the same employer, Mena Productions, LLC. Plaintiffs are also denying that Mena Productions was anyone’s employer, given its apparent shell status. See Plaintiffs’ AUMF Nos. 26-49.

Plaintiffs argue that Defendants did not assert Labor Code §3601 as a defense in their answer. However, Defendants did assert in the 11th Affirmative Defense that “Plaintiffs’ claims may be barred, in whole or in part, by the applicable statute or statutes of repose.” See Answer filed on 6/14/16. In addition, to the extent Labor Code §3601 applies, the Court lacks subject matter jurisdiction, a defense that may be raised at any time. Lack of subject matter jurisdiction is not waived by failure to plead. See CCP § 430.80.

There are triable issues of fact remaining as to whether Labor Code §3601 applies to bar Plaintiff’s claims. Summary judgment based on Labor Code §3601 is DENIED.

Plaintiffs’ Objections—all objections are SUSTAINED