Case Number: VC065875 Hearing Date: January 03, 2019 Dept: SEC

BELMAN v. GARCIA AND GALLARZO

CASE NO.: VC065875

HEARING: 01/03/19

JUDGE: LORI ANN FOURNIER

#8

TENTATIVE ORDER

Defendant MARIELA ISELA GARCIA’s motion for summary judgment or alternatively summary adjudication is GRANTED. CCP §437c.

Moving Party to give notice.

Defendant MARIELA ISELA GARCIA’s request for judicial notice is GRANTED. Cal. Ev. Code §452.

This action for wrongful termination was filed by Plaintiff/Cross-Defendant/Cross-Cross Complainant LORENA BELMAN (“Plaintiff”) on October 21, 2016. The relevant facts, as alleged, are as follows: “At all times relevant, plaintiff was the employee on the job. Plaintiff was under the control of an [sic] performance services with and for defendant(s) at 9613 Whittier Blvd., Pico Rivera, CA 92705; for more than 5 years. Defendants [GARCIA AND GALLARZO PROPERTY HOLDINGS LLC; ANDRES GARCIA; ARMANDO GALLARZO’ JUAN ERASMO GARCIA’ MARIELA GARCIA’ JESUS ERASMO GARCIA’ GIZZELLE CABRERA; MARIELA ISELA GARCIA; KAISER PERMANENTE MEDICAL GROUP; DOES 1 THROUGH 10]. Defendants and each of them caused injury and harm to plaintiff as set forth herein. At no time did plaintiff consent. None of the actions of defendants were in any way privileged.” (FAC ¶2.) “At all times relevant, defendants and each of them were involved in a joint business venture, partnership and aided and abetted one another, and conspired while acting in the course and scope of their employment, to harm the plaintiff. This includes named defendants….” (FAC ¶3.) “At all times relevant, the joint employers of plaintiff were Garcia and Gallarzo Property Holdings LLC, Andres Garcia, Juan Erasmo Garcia & Armando Gallarzo. These joint employers directly employed plaintiff, during all relevant times.” (FAC ¶5.) “At all relevant times, the joint employers used, hired and employed certain coworkers/agents. Those coworkers/agents included Mariel Isela Garcia, Jesus Erasmo Garcia, Gizzelle Cabrera, Mariella Isela Garcia and Southern California Permanente Medical Group. At all times relevant, defendant Mariela Isela Garcia was a medical doctor working for defendants Southern California Permanente Medical Group, Kaiser Foundation Health Plan Inc. & Kaiser Foundation Hospitals Inc…..” (FAC ¶5.) “On or about April 6, 2016, plaintiff was beaten, assaulted, attacked and knocked unconscious by Mariel Garcia, Jesus Erasmo Garcia & Gizzella Cabrera…. After plaintiff was attacked, she terminated from her employment by the joint employers. Plaintiff has not worked since that date.” (FAC ¶6.) “Prior to April 6, 2016, plaintiff was forced against her will, to have repeated sexual intercourse with the employer Juan Erasmo Garcia. He told her that she would loose her job, if she did not perform sexual acts with him. The forced sex occurred in a small office. The attack and beating on April 6, 2016 was caused, motivated by and resulted from the forced sexual intercourse.” (FAC ¶7.) “During the last 2 years at work defendant Mariela Isela Garcia provided medical treatment to plaintiff. ON approximately 8 separate occasions, Mariela Garcia examined plaintiff and provided medical treatment through Kaiser, using medical equipment and medications supplied by Kaiser. Plaintiff was examined, rubbed, poked, and injected in the upper right arm. The injections and poking, occurred in the same small office; where plaintiff as forced to have sex. AT no time, did plaintiff give informed consent, to the medical treatment.” (FAC ¶8.)

Defendant MARIELA ISELA GARCIA (“Defendant”) moves for summary judgment or alternatively summary adjudication on all claims being asserted against her, including the Eighth and Ninth Causes of action alleged in Plaintiff’s First Amended Complaint; and the Second Cause of Action alleged in Plaintiff’s Second Amended Cross-Cross Complaint.

Eighth Cause of Action (FAC) and Second Cause of Action (SAXXC) – Violation of Labor Code §3602 and Negligence Per Se (Violation of Labor Code §3602)

Defendant argues that summary adjudication of the eighth cause of action in the FAC and of the second cause of action in the SAXXC is warranted where Defendant GARCIA was never Plaintiff’s employer.

“An employee…may bring an action at law for damages against this employer…[w]here the employee’s injury or death is proximately caused by a willful physical assault by the employer.” (Cal. Labor Code §3602(b)(1).) “By its express terms, §3602(b)(1) only applies when the claim is one by an employee against the employer. [Citation.] Liability under §3602(b)(1) ‘must be based on positive misconduct by the employer and not on a theory of vicarious liability such as that which forms the basis of the doctrine of respondeat superior.’ [Citation.].” (Robles v. Agreserves, Inc. (2016) 158 F.Supp.3d 952, 974.)

In support of the instant Motion, Defendant has proffered evidence to show that Defendant GARCIA was never Plaintiff’s employer. (See SSUMF Nos. 10-14.) Defendant declares, under penalty of perjury, that she “has never been Plaintiff’s employer.” (SSUMF No. 13.) Rather, Defendant is a board-certified physician that has been employed by KAISER PERMANENTE MEDICAL GROUP since 2008. (SSUMF ¶4.) Plaintiff has failed to submit any evidence in Opposition to rebut Defendant’s argument. Based on the evidence presented, the Court finds that there is no triable issue of material fact as to whether Defendant was Plaintiff’s employer at the time of the Subject Incident. The motion for summary adjudication of the eighth cause of action in the FAC is granted as to Defendant MARIELA ISELA GARCIA.

Negligence per se is an evidentiary doctrine which creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. (See Cal. Ev. Code §669.)

As indicated above, Plaintiff has not established that Defendant was Plaintiff’s employer at the time of the Subject Incident. Therefore, Defendant could not have violated Labor Code §3602, and Plaintiff cannot maintain a claim for negligence per se against Defendant. The motion for summary adjudication of the second cause of action in the SAXXC is granted as to Defendant MARIELA ISELA GARCIA.

Ninth Cause of Action (FAC) – Premises Liability

To establish a claim of premises liability, Plaintiff must prove all of the following: (1) that Defendant owned, leased, occupied, or controlled the property; (2) that Defendant was negligent in the use or maintenance of the property; (3) that Plaintiff was harmed; and (4) that Defendant’s negligence was a substantial factor in causing Plaintiff’s harm. (CACI 1000.) Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper. (Isaacs v. Huntington Mem’l Hosp. (1985) 38 Cal.3d 112, 134.)

It is undisputed that Defendant did not own, possess, or control the Subject Premises at the time that Plaintiff was attacked. (See SSUMF Nos. 17-27.) Therefore, Defendant GARCIA cannot be liable for premises liability. The motion for summary adjudication of the ninth cause of action in the FAC is granted as to Defendant MARIELA ISELA GARCIA.

Plaintiff’s Request for a Continuance

Plaintiff’s request for a continuance is DENIED. Plaintiff has failed to show that she is entitled to a continuance of the summary judgment motion. To obtain a continuance, a party must show: (1) facts establishing a likelihood that controverting evidence may exist; (2) the specific reasons why such evidence cannot be presented at the present time; (3) an estimate of the time necessary to obtain such evidence; and (4) the steps or procedures which the opposing party intends to utilize to obtain such evidence. (See CCP §437c(h); see also Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.)

Plaintiff’s counsel seemingly argues that a continuance is warranted where he has “noticed the deposition of Mariela I. Garcia and her attorney Mr. White has objected and refused to produce her for deposition. A motion to compel is pending.” (Donahue Dec., ¶7.) The instant Motion was filed on October 15, 2018. As of December 28, 2018, Plaintiff has no Motion to Compel the Deposition of Defendant Mariela I. Garcia set for hearing. Moreover, Plaintiff has failed to show how the discovery requested could reasonably lead to evidence necessary to refute Defendant’s summary judgment motion. The Court also denies Plaintiff’s request for a continuance because she fails to explain her manifest lack of diligence in pursuing discovery. (A&B Painting and Drywall, Inc. v. Superior Court (1994) 25 Cal.App.4th 349, 356-357 [request for a continuance denied where it did not explain what efforts were made to take the necessary depositions or why they could not have been taken earlier.].) This case has been pending since 2016—without an explanation as to why the “necessary” evidence cannot be presented at the present time, there is no sufficient basis for a continuance.