Case Number: BC583740 Hearing Date: March 07, 2018 Dept: 92

JESSY JAMES HERNANDEZ,

Plaintiff,

vs.

K-TOWN VALET, et al.

Defendants.

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Case No.: BC583740

[TENTATIVE] ORDER GRANTING DEFENDANT DAVID LO PAN, LLC, dba LOCK & KEY- STALL 239’S MOTION FOR SUMMARY JUDGMENT

Dept. 92

1:30 p.m.

March 7, 2018

The Motion for Summary Judgment of Defendant David Lo Pan, LLC, dba Lock & Key – Stall 239 is GRANTED.

On April 26, 2015, Plaintiff Jessy James Hernandez was injured when, while riding a bicycle on a public road, he was struck by a motor vehicle. Plaintiff alleges the vehicle was driven by Defendant Gilvert Perez Garcia (“Garcia”), as part of his employment with Defendant K-Town Valet Services (“K-Town”), which is in turn alleged to be an employee of Defendant David Lo Pan, LLC, dba Lock & Key – Stall 239 (“Lock & Key”), a bar and restaurant for whom K-Town was allegedly providing valet services.

On December 21, 2017, Lock & Key filed the instant motion for summary judgment.

Evidentiary Objections

Plaintiff’s Evidentiary Objection Nos. 1-3 are OVERRULED. Plaintiff did not support them with sufficient information.

Merits

Plaintiff alleges two causes of action: (1) Premises Liability and (2) Negligence.

1. Premises Liability

Premise liability is contingent on a party having possession, ownership, or control of the premises where the injury occurred. (Contreras v. Anderson (1997) 59 Cal.App.4th 188, 197.) Here, there is no dispute that Plaintiff was injured while riding a bicycle on a public road. (Undisputed Material Fact (“UMF”) No. 4.) Although Plaintiff alleges he was near Lock & Key’s property—“approximately 50-150 feet north of the entrance to Lock & Key (or approx.. 100 feet north of 3rd Street), a few feet from the west curb of Vermont Ave., near the location of the valet stand” (UMF No. 4)—there is no basis for concluding such proximity alone constitutes ownership, possession, or control over the street.

While it is true there are certain circumstances in which a party is held liable for premise liability based on injuries occurring on adjacent property, nothing in the facts here suggest this is one of those situations. Without citing to any analogous case law, Plaintiff argues Lock & Key should be found to have “controlled and supervised the premises around the valet stand” because it was “essential” for Lock & Key to provide parking for their patrons. Plaintiff’s logic would suggest that any company with a parking lot in some way has control over the streets leading to that parking lot, simply because parking lots are part of the business; no case holds such. The provision of a valet service does not mean a party suddenly ‘controls’ the streets on which its valet drivers operate.

Accordingly, the Court concludes there are no triable issues of material fact as to whether Lock & Key had ownership, possession, or control over the public street where Plaintiff was injured.

2. Negligence

A. Employment Relationship

Plaintiff’s cause of action for negligence against Lock & Key is contingent on establishing either an employment or agency relationship between Lock & Key and K-Town.

Following common law tradition, California decisions . . . uniformly declare that “[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. …” [Citations.]

However, the courts have long recognized that the “control” test, applied rigidly and in isolation, is often of little use in evaluating the infinite variety of service arrangements. While conceding that the right to control work details is the “most important” or “most significant” consideration, the authorities also endorse several “secondary” indicia of the nature of a service relationship.

Thus, we have noted that “[s]trong evidence in support of an employment relationship is the right to discharge at will, without cause. [Citations.]” [Citation.] Additional factors have been derived principally from the Restatement Second of Agency. These 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. [Citation.] “Generally, … the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.” [Citation.]

(S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350-51.) “The determination of employee or independent-contractor status is one of fact if dependent upon the resolution of disputed evidence or inferences . . . . If the evidence is undisputed, the question becomes one of law.” (Id. at 349; see also Brose v. Union-Tribune Publishing Co. (1986) 183 Cal.App.3d 1079, 1081 [Whether a person is an employee or an independent contractor is ordinarily a question of fact but if from all the facts only one inference may be drawn it is a question of law.”].)

Applying the test to the instant facts, the Court concludes as a matter of law that K-Town—and by extension, the driver employed by K-Town—is an independent contractor.

There is some evidence to suggest Lock & Key maintained some control over K-Town’s operations—Lock & Key insisted K-Town not charge its customers more than $8, it sought exclusivity, it sought advertising on K-Town’s valet stand, etc. (Plaintiff’s UMF No. 6.) But there is no evidence suggesting Lock & Key controlled who K-Town hired. (UMF Nos. 39-40.) Plaintiff seeks to dispute these facts by citing to general evidence that Lock & Key controlled K-Town, but none of that evidence includes any testimony suggesting Lock & Key was involved in hiring decisions. (There is some disputed evidence that Lock & Key insisted on the number of employees, to insure there were no long waits. See UMF No. 38). It is undisputed that Lock & Key did not pay anything to K-Town. (UMF Nos. 61-64.) This suggests K-Town retained significant control over its operations, i.e., who to hire and how much to pay them.

Additionally, K-Town’s person most knowledgeable has herself testified that she did not view K-Town as an employee of Lock & Key. (UMF No. 68.) As noted, the parties’ own understanding of their relationship is a key inquiry. There are minimal instrumentalities for purposes of this work, but to the extent they exist, K-Town provided the employees, the valet stand, and umbrellas to the customers. (UMF Nos. 39-40, 71-72.) Additionally, though there is minimal discussion of this issue, it appears K-Town operates at other locations, strongly supporting the conclusion that it operates a distinct business from Lock & Key. (UMF No. 75.) Additionally, K-Town’s person most knowledgeable testified that Lock & Key would sometimes email them with special requests for services (i.e., different hours for special events), which were usually accommodated, but which were not always granted. (UMF Nos. 90-91.) There was additional testimony that, when a problem with a prior customer occurred, K-Town—not Lock & Key—was responsible for compensating the customer and reprimanding the employee responsible. (UMF Nos. 93-95.)

In sum, Lock & Key did not pay K-Town for its services, did not pay K-Town’s employees, did not control who K-Town employed, did not provide K-Town with a stand or umbrellas, expected K-Town to deal with problems with its customers, and did not prevent K-Town from operating at other locations. The other issues, which Plaintiff identifies as evidence of employment—such as providing the parking lot, mandating where the stand would be located, mandating how many people were needed on a given night, etc.—are all understandable terms that would be included in a contract between independent entities, and do not support an inference of employment. Based on the foregoing, the Court concludes there was an independent contractor relationship between Lock & Key and K-Town.

B. Independent Contractor

Even accepting that K-Town is an independent contractor of Lock & Key, Plaintiff argues Lock & Key may still be vicariously liable for K-Town’s employee’s negligence through either the peculiar risk doctrine or the existence of an agency relationship. Neither argument is meritorious.

“The peculiar risk doctrine is a well-recognized exception to the general rule that one who employs an independent contractor is not liable for injuries caused by the negligence of the contractor. . . . The analysis of the applicability of the peculiar risk doctrine to a particular fact situation can be broken down into two elements: (1) whether the work is likely to create a peculiar risk of harm unless special precautions are taken; and (2) whether the employer should have recognized that the work was likely to create such a risk.” (Jimenez v. Pacific Western Construction Co. (1986) 185 Cal.App.3d 102, 109-110.)

There is simply no basis for finding that hiring a valet service creates a “peculiar risk” requiring “special precautions.” Plaintiff’s argument focuses on the fact that the driver of the vehicle that injured him was allegedly unlicensed. But that misstates the inquiry, which is focused on whether the “work” creates a peculiar risk; whether the contractor is unqualified for the work is not relevant here (and, in any event, should be directed at the employer of the driver—K-Town—not the independent contractor, Lock & Key).

Similarly, while there are some circumstances in which a principal may be found liable for the negligence of an agent, here there is no evidence the driver was an agent of Lock & Key. For actual agency to exist, the principal must have “the right to control the conduct of the agent with respect to matters entrusted to him.” (Garlock Sealing Technologies, LLC v. NAK Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 964.) As discussed above, there is no evidence Lock & Key had control over who K-Town hired as valet drivers. Even assuming it had some control over K-Town, there is no evidence suggesting Lock & Key had control over the manner in which the valet drivers drove. Accordingly, there is no actual agency.

There is also no ostensible agency. For a principal to be liable for the acts of an ostensible agent, “[t]he person dealing with an agent must do so with a reasonable belief in the agent’s authority.” (J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 403.) Here, Plaintiff’s perception of the driver’s relationship with Lock & Key had nothing to do with Plaintiff’s injury. Plaintiff was not attempting to use the valet service or intending to patronize Lock & Key’s facilities; he was struck by the driver while riding his bicycle. Any agency relationship that might have existed or been perceived was irrelevant to the harm suffered.

For the foregoing reasons, no triable issues of material fact exist as to Lock & Key’s duty to Plaintiff on a general negligence theory.

Conclusion

For the foregoing reasons, Defendant David Lo Pan, LLC, dba Lock & Key – Stall 239’s motion for summary judgment is GRANTED.

Dated this 7th day of March, 2018

Hon. Marc Gross

Judge of the Superior Court