Motion-Secondary: IDA CHRISTINA FUA CRUZ VS. JOEL ENRIQUE ANDINO SANCHEZ et al

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D. Douglas Shureen, SBN 124613

McMILLAN & SHUREEN LLP ELECTRONICALLY
50 Santa Rosa Avenue, Suite 200 FILED
Santa Rosa, CA 95404 : Superior Court of California,
55} 525-5400 County of San Francisco
(707) 576-7955 (Fax) FEB 11 2015

. Clerk of the Court
Attorneys for Defendant/Cross-Complainant
SORT ENRIQUE ANDINO SANCHEZ BY: ROMY RISK uty Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

CASE No. CGC-11-515542 (Lead
Case) Consolidated with Case Nos.
Plaintiff, CGC-12-519794 and CGC-13-529705

4 DEFENDANT/CROSS-

; COMPLAINANT JOEL ENRIQUE
JOEL ENRIQUE ANDINO SANCHEZ, an | ANDINO SANCHEZ’S OPPOSITION

)

)

IDA CRISTINA CRUZ FUA,

vs.

individual, et al., TO MOTION TO BIFURCATE
AND/OR ESTABLISH THE ORDER
OF PROOF AND DECISION

Date: 2/26/15
Time: 9:30 a.m.
Dept.: 302

Action filed: 10/31/11
Trial Date: 03/09/15

Defendants.

AND RELATED CROSS-ACTIONS,

Defendant and Cross-Complainant, Joel Enrique Andino Sanchez (‘Sanchez’),
hereby respectfully submits his Opposition to Motion to Bifurcate Trial and/or Establish the
Order of Proof and Decision filed by various defendants, including Yellow Cab
Cooperative, inc. (‘Yellow Cab’).

1 INTRODUCTION AND SUMMARY OF OPPOSITION

Sanchez does not oppose Yellow Cab’s motion to the exient it seeks to bifurcate
the equitable issue of alter ego. Sanchez agrees that bifurcating the alter ego issue prior
to empaneling a jury is the most fair and efficient way to proceed to resolve the aller ego

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DEFENDANT/GROSS-COMPLAINANT JOEL ENRIQUE ANDINO SANCHEZ’S OPPOSITION TO
MOTION TO BIFURCATE AND/OR ESTABLISH THE ORDER OF PROOF AND DECISIONSo we NAH FB YW N

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issue. Accordingly, Sanchez joins in Yellow Cab’s motion to bifurcate the equitable alter
ego issue. :

Sanchez does oppose Yellow Cab's motion to the extent that it would “trifurcate”
that trial by empaneling the jury to hear the respondeat superior/vicarious liability issues
after the alto ego trial, but before the liability and damages issues. Sanchez joins in
Plaintiff's opposition to the motion to bifurcate trial as to the respondeat superior and
vicarious liability issues, including Sanchez’s cross-complaint for indemnity.

i ARGUMENT

A. There is no Sound Basis to Change the Normal Order of Proof

Yellow Cab conveniently obscures the issue of Sanchez’s status as an employee
of Yellow Cab by hiding it behind the term “respondeat superior.” In fact, Sanchez has
filed a cross-complaint asserting that he is entitled to indemnification from Yellow Cab and
its alter egos because he was an employee of Yellow Cab at the time of the accident.
This is a major issue to Sanchez since Plaintiff's damages are substantial. If Sanchez is
not indemnified by Yellow Cab he will inevitably be led into bankruptcy since he does not
have the assets or insurance to pay any significant judgment. The alfer ego and
employment issues thus arise not only out of Plaintiff's claims that Sanchez had
ostensible authority for Yellow Cab and was Yellow Cab’s employee, but also out of
Sanchez’s cross-complaint alleging that he was an employee of Yeliow Cab and thus
entitled to indemnification.

In this respect, Yellow Cab seeks to reverse the usual order of proof that typically
requires proceedings on a cross-complaint to follow proceedings on the main case.
Instead of allowing the case to proceed in the normal fashion, Yellow Cab seeks to
require a jury verdict on the ostensible authority and employment issues in a vacuum,
before the jury hears all of the key facts of the case. Yellow Cab’s theory for reversing the
order of proof seems to be that before the jury can hear the facts of the accident and
damages Plaintiff and Sanchez must prove either that Yellow Cab allowed the public to

believe that Sanchez was Yellow Cab’s agent or that Sanchez was actually an employee.

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DEFENDANT/CROSS-COMPLAINANT JOEL ENRIQUE ANDINO SANCHEZ'S OPPOSITION TO
MOTION TO BIFURCATE AND/OR ESTABLISH THE ORDER OF PROOF AND DECISIONoo eI KD A BR WY HN

Its rationale must be that if is unlikely that Plaintiff and Sanchez will prevail on their claims
and that therefore it would be a waste of everyone's time and effort not to bifurcate these
issues, since Yellow Cab is likely to prevail and thus avoid a lengthy trial.

Yellow Cab’s position, that Sanchez was an independent contractor and had no
ostensible authority for accidents in which Sanchez was driving, is merely that, a position
or contention. In fact, Sanchez has substantial evidence to support his claim that he was
an employee of Yellow Cab. Yellow Cab has previously been held to be the employer of
a cab driver despite its claim that the employee was actually an independent contractor.

in Yellow Cab Cooperative y. Workers Compensation Appeals Board (1991) 226

Cal.App.3d 1288, the cab driver executed a Taxicab Lease Agreement designating him as
lessee of a cab for 10-hour shifts and requiring him to pay $56 per shift. The driver was
designated an independent contractor and recited that Yellow Cab had no degree of
control over his activities. He was not obligated to share his fares with Yellow Cab and
could use any routes in the City he chose to use. Yellow Cab was to provide telephone
call and meter services. The driver signed the lease without negotiation because he
needed the money.

The Court took a number of factors into consideration in holding that the driver was
an employee. The Court noted that the essence of the business was not merely leasing
cabs. Rather, the business included cultivating the passenger market by soliciting riders,
processing requests for rides through a dispatching system, distinctively painting and
marking the cabs, instructing drivers in service and courtesy, dress, cleanliness, the use
of horns, and never arguing with other cab drivers in front of passengers. The Court held
that Yellow Cab’s enterprise consisted of operating a fleet of vehicles for public carriage,
citing many out-of-state cases. The drivers were active instruments of a service
indispensable to the company. Yellow Cab, supra, 1293. The Court affirmed a decision
by the Workers’ Compensation Appeals Board that the driver had submitted sufficient
evidence to establish an employment relationship with Yellow Cab.

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DEFENDANT/CROSS-COMPLAINANT JOEL ENRIQUE ANDINO SANCHEZ’S OPPOSITION TO
MOTION TO BIFURCATE AND/OR ESTABLISH THE ORDER OF PROOF AND DECISIONoO 0 ew A A BR WY

A & WN

The facts to be presented and argued in this case as to Sanchez’s status as
employee or independent contractor are similar, although admittedly not identical, to the

facts in Yellow Cab v. Workers Comp. Appeals Board. Sanchez will show the jury how he

was treated by Yellow Cab and what he believed he was allowed to do (and not to do).
He will show that he was subject to significant controls over his work as a cab driver, had
no opportunity to engage in entrepreneurial activities, was supplied the tools and
equipment for his work by Yellow Cab, had no particular skill or expertise, worked for a
significant undefined period of time, was fired by Yellow Cab, and that his work was at the
core of and part of the regular business of Yellow Cab. See CACI instruction 3704. In
other words, despite Yellow Cab’s insistence that Sanchez was an independent
contractor, Sanchez strongly believes that he was an employee. Sanchez’s belief is
supported by the facts and the law, and Yellow Cab’s attempt to persuade the Court that
this is not a real issue is not well taken.

Yellow Cab’s argument that bifurcation of respondeat superior/employment issues
will streamiine the trial is mistaken. The key issues of ostensible authority and
employment are inextricably bound with the facts of the accident. What happened the day
of the accident, how the Plaintiff and her companion perceived Sanchez and Yellow Cab,
discussions during the trip, and the facts of the accident and the parties’ responses after
the accident, will all be part and parcel of both bifurcated trials. Multiple witnesses,
including Sanchez and others, will be required to testify extensively on two separate
occasions at separate trials. All of the accident witnesses will apparently be called by
Plaintiff on the question of ostensible authority, and many witnesses, including Sanchez,
Gillespie, and DaSilva, will also testify on both the employment issue and the facts
relevant to the accident. The evidence overlap will be significant and bifurcation would
unnecessarily lengthen the trial and complexity of this case.

B. The Risk of Prejudice Cannot be Reduced by Bifurcation

Yellow Cab’s argument that bifurcation will significantly lessen the risk of juror
passion and prejudice because the jury will not know the allegedly severe and permanent

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DEFENDANT/CROSS-COMPLAINANT JOEL ENRIQUE ANDINO SANCHEZ’S OPPOSITION TO
MOTION TO BIFURCATE AND/OR ESTABLISH THE ORDER OF PROOF AND DECISIONoD mW HKD HW eB BN

injuries suffered by Plaintiff when it decides the ostensible authority and employment
issues is incorrect. There is no way to separate from the jury’s mind the fact that Plaintiff
suffered a major traumatic injury. The minute she appears in front of the jury the jurors
will know that the accident was major and debilitating for her. The fact that the doctors
would not have yet testified will not prevent the jury from knowing the importance of their
decision. Yellow Cab's claim that possible passion and prejudice will be alleviated if the
trial is bifurcated makes little sense. The jurors should be allowed to make fully informed
decisions by hearing all of the evidence.
tH. CONCLUSION

For each of these reasons, as well as the reasons set forth in Plaintiff's Opposition,
Sanchez respectfully requests that the Court deny the motion to bifurcate the respondeat
superiorlicarious liabilityfemployment issues.

Respectfully submitted,
DATED: February 11, 2015 McMILLAN & SHUREEN LLP

wy. AGL TN

D- Douglas Shureen

Attorneys for Defendant/Cross-
Complainant JOEL ENRIQUE
ANDINO SANCHEZ

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DEFENDANT/CROSS-COMPLAINANT JOEL ENRIQUE ANDINO SANCHEZ’S OPPOSITION TO
MOTION TO BIFURCATE AND/OR ESTABLISH THE ORDER OF PROOF AND DECISIONeo em NUN DW BF WN

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FUA v. SANCHEZ, et al.
SAN FRANCISCO COUNTY SUPERIOR COURT CASE No. CGC-11-515542 (Lead
Case) Consolidated with Gase Nos. CGC-12-519794 and CGC-13-529705

PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SONOMA

Lam employed in the County of Sonoma, State of California. | am over the age of
48 and not a party to the within action: my business address is 50 Santa Rosa Avenue,
Suite 200, Santa Rosa, California 95404. On the date below indicated, and as
required by the Court’s Order re: Electronic Service of Pleadings in Case No. CGC-
11-515542 (Lead Case) Consolidated with Case Nos. CGC-12-519794 and CGC-13-
529705, | served on the interested parties through File and Serve Xpress in this
action the within document(s) described as:

DEFENDANT/CROSS-COMPLAINANT JOEL ENRIQUE ANDINO SANCHEZ'S
OPPOSITION TO MOTION TO BIFURCATE AND/OR ESTABLISH THE ORDER OF
PROOF AND DECISION

on the recipients designated on the Transaction Receipt located on the File and Serve
Xpress website.

_X_ (BY FEDERAL EXPRESS) By placing for coilection by a Federal Express agent, at
the offices of McMillan & Shureen LLP, located at 50 Santa Rosa Avenue, Suite
200, Santa Rosa, California 95404, a true and correct copy thereof enclosed in a
sealed Federal Express envelope fully prepared and addressed as noted on the
attached service list.

PLEASE SEE ATTACHED SERVICE LIST.
| declare under penalty of perjury under the laws of the State of California that the

above is true and correct, and that this declaration was executed on February 11, 2015 at
Santa Rosa, California.

RoseAnne Powell Qoryruece

6

DEFENDANT/CROSS-COMPLAINANT JOEL ENRIQUE ANDINO SANCHEZ’S OPPOSITION TO
MOTION TO BIFURCATE AND/OR ESTABLISH THE ORDER OF PROOF AND DECISIONFua v. Sanchez (lead case)
San Francisco County Superior Court Case No. CGC-11-515542

Service List

Todd P. Emanuel, Esq.

Mark D. Rosenberg, Esq.
Emanuel Law Group

702 Marshall Street, Suite 400
Redwood City, CA 94063

Tel: (650) 369-8900

Fax: (650) 369-8999
Todd@TEinjurylaw.com
Mark@TEinjurviaw.com

Mitchell E. Green, Esq.

Law Offices of Mitchell E. Green
2655 First Street, Suite 250
Simi Valley, CA 93065

Tel: (805) 823-0915

Fax: (805) 823-0916
MitchGreenLaw@aol.com

Robert Peterson, Esq.

Colin C. Munro, Esq.
“Christopher J. Weber, Esq.
Carlson, Calladine Peterson, LLP
353 Sacramento Street, 16th Floor
San Francisco, CA 94111

Tel: (415) 391-3911

Fax: (415) 391-3898
tpeterson@ccplaw.com
cmunro@ccplaw.com
cweber@ccplaw.com

Robert S. Aaron, Esq.
Aaron & Wilson, LLP.

150 Post Street, Suite 400
San Francisco, CA 94108
Tel: (415) 438-7801

Fax: (415) 438-7808
rsaaron@aaron-wilson.com

Thomas M. Downey, Esq.
Gregory H. McCormick, Esq.
Burnham Brown

1901 Harrison Street

Oakland, CA 94612

Tel: (510) 444-6800

Fax; (510) 835-6666
tdowney@burnhambrown.com
gmecormick@burnhambrown.com

Attorneys for Plaintiff
ida Cristina Cruz Fua

Attorneys for Plaintiff
Allstate Insurance Company

Attorneys for Defendants/Cross-
Defendants Yellow Cab
Cooperative, inc., Taxi Equipment
Leasing, LLC and Caroline Miller

Attorneys for Defendants/Cross-
Defendants Yellow Cab
Cooperative, Inc., Taxi Equipment
Leasing, LLC, Taxi Property
Company, Inc., Wolley, LLC,
James Gillespie, Hal Mellegard,
Nick Olsen, Pamela Martinez,
Richard Wiener, and Steven
Reimers

Attorneys for Defendants
San Francisco Independent Taxi
Association and Alan Da Silva