Motion for Summary Judgment in MATTHEW TOERPE, et al vs. RUDOLPH AND SLETTEN, INC., et al| Trellis.Law

On September 30, 2016 a Motion-Secondary was filed involving a dispute between Toerpe, Lanae, Toerpe, Matthew, and Does 1 Through 100, Rudolph And Sletten, Inc., Shollenbarger - Borello, Inc., for (23) Unlimited Other PI/PD/WD in the District Court of San Mateo County.

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William A. Bogdan (SBN 124321)
Andrew I. Spaulding (SBN 285676)
FILED
SAN MATIFO COUNTY
LYNCH GILARDI & GRUIVIMER
A Professional Corporation DCTZ 7 20V
170 Columbus Avenue, 5h Floor
San Francisco CA 94133
Telephone: (415) 397—2800
Facsimile: (415) 397—0937
Email: wbogdan@lgglaw. com
aspaulding@lgglaw. com

Attorneys for Defendant
RUDOLPH AND SLETTEN, INC.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO

10 UN LﬂVlITED JURISDICTION

11 MATTHEW TOERPE and LANAE Case No.: 16CIV01654
TOERPE,
12 DEFENDANT RUDOLPH AND SLETTEN, INC.’S
Plaintiffs, REPLY TO PLAINTIFFS’ OPPOSITION TO ITS
13 MOTION FOR SUMMARY JUDGMENT
vs.
14 Date: November 2, 2017
RUDOLPH AND SLETTEN, INC. and Time: 9:00 am.
15 DOES 1 to 100, inclusive, Dept: Law and Motion

16 Defendants. Case Filed: September 30, 2016

17_ .
1—6

MPAR
cw 01654 \ ‘
Trial Date: December 11, 2017

. Memorandum of Points and Authorities in Rep|i_—
7911347
18
|
A 1 [PI
19 I

25
Lynch. Giiardi
$2 Grummcr
A Professional 26
Corpomlion
170 Columbus Ave.
5‘” Floor
San Francisco, CA 27
94133
Ph (415) 397-2800
Fax (415) 397-0937
28

REPLY IN SUPPORT OF MOTION FOR SUIVIMARY JUDGMENT
I. INTRODUCTION
Every accident form, tax document, and witness correctly identiﬁed Matthew Toerpe as a

Southwest Metalsmith employee, because he was Southwest’s general employee. Rudolph and

Sletten’s motion has no effect on that relationship. However, because Southwest relinquished

control over plaintiff and his work to Rudolph, and Rudolph exercised that control over plaintiff” 3

work at the time of the accident, Rudolph had a special employment relationship with plaintiff

concurrent with his general employment relationship with Southwest. As a result, Rudolph is

immune from civil suit and summary judgment must be granted in its favor.

II. LEGAL ARGUMENT
10 Plaintiff cites Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168 and Marsh v. Tilley Steel

11 Company (1980) 26 Cal.3d 486 for two unsupportable positions: 1) that special employment is

12 always a question of fact, and 2) that special employment can only exist in cases involving

13 temporary labor agencies.

14 Since the Kowalski and Marsh decisions, Courts of Appeal have repeatedly determined

15 summary judgment to be the appropriate method for resolving the issue of special employment. See

16 Santa Cruz Poultry v. Superior Court (1987) 194 Cal.App.3d 575 (writ of mandate ordered); Riley
17 v. Southwest Marine (1988) 203 Cal.App.3d 1242 (summary judgment afﬁrmed); Wedeck v. Unocal

18 Corp. (1997) 59 Cal. App.4th 848 (summary judgment afﬁrmed); Caso v. Nimrod Productions, Inc.

19 (2008) 163 Cal.App.4th 881(summary judgment afﬁrmed) Moreover, neither Kowalski nor Marsh,

20 both of which arose in the context of a subcontract agreement, preclude the application of the
21 special employment doctrine in the hirer/subcontractor context.

22 A. Right to Control Special Employee

23 Case law dictates that where there is evidence of control by the special employer,

24 particularly where that evidence comes from plaintiff" s own testimony, special employment is

25 established as a matter of law. “[Where], as here, the alleged special employer was, by the
Lynch, Gilardi
«X: Grummer

A Prot‘cssional 26 admission of plaintiff, exercising direct supervision over the exact task during the accomplishment
Colpormion
170 Cal‘umbus Ave.
5 Floor
San Francisco. CA 27 of which an employee is injured, the status of special employer must be found to exist as to a claim
94133
Ph (415) 397-2800
Fax («115) 397-0937
28 for that injury.” Santa Cruz, supra at 582; Riley, supra at 1251.

REPLY IN SUPPORT OF MOTION FOR SUB/[MARY JUDGMENT
1 1. Plaintiff Concedes Control by Rudolph and Abandonment by
Southwest

3 Where plaintiff’s testimony establishes that the employee understood he would not be

4 supervised by the general employer, and was expected to carry out his job duties as assigned by the

5 special employer, special employment exists as a matter of law. Wedeck, supra at 859. The

6 testimony from plaintiff attached to the moving papers as Exhibit F provides ample evidence of
'

7 Rudolph’s control over plaintiff and his work:

8 0 Rudolph provided plaintiff and his coworker use of the Rudolph forklift (35:1—8,
170: 15-17);
9 0 Rudolph gave plaintiff the pallet jacks and directed him to use them (44: 1-16,
44:20-45:2, 16725-1683);
10 o Rudolph decided the sequence in which to remove the crates (3 729—1 1);
o Rudolph dictated where the crates would be placed (170: 12-14; see also Pltf Ex. 6
1 1 402—24));
0 Rudolph helped situate the crates on the pallet jacks (46:15-20);
12 o A Rudolph employee pushed the first two crates of glass down the hallway
(48:14—20, 129310-13028); and
13 0 An additional Rudolph employee joined in to push the accident crate. (54:55-13)

14 Plaintiff was moving the crate on the pallet jack as directed by Rudolph to the location

15 demanded when the crate fell on him. Plaintiff testified he could not have done his job without

16 Rudolph’s direction and equipment. (51:1-7) Without Rudolph, he would not have known what

17 access to use or where to place materials. (170:8-14) Rudolph directed him as to what equipment he

18 would use to do the work, and supervised him as he performed the work. (170: 1 5-20)

19 Plaintiff s testimony in Exhibit F also laid out the lack of control Southwest exercised

20 over his work:

21 - Plaintiffs one conversation with Southwest occurred on May 31 when he spoke
to a Southwest foreman by telephone from home (24: 12-25:2);
22 0 His foreman was on a job in Southern California and would not arrive until June 2
(24:18~25, 110: 16-24);
23 0 Plaintiff was told to go to the job on June 1 to unload a truck. Plaintiff was to go
to Rudolph for instruction, have Rudolph lay him out, and have Rudolph tell him
24 where evegything needed to go and what needed to be done (25:3—10, 26:11—16,
'
1 06: 12-17 ; . _

25 0 He was not told to bring tools or equipment, nor was he told what equipment the
Lynch, GM job would require (26: 17—21 , 107: 5— 1 0);
$012322. 26 0 Southwest had no on—site supervision for plaintiff anytime on June 1 (110:12-24);
nogilllllllikvc, 0 Southwest gave him no training on the hazards it knew existed in connection with
31,132,322,“ 27 plaintiff’s task (138:22-140:4; See also Ex. J p. 1-2); and
,,l(,,§§'33,3,_2300
0 Southwest had no equipment on-site for him to use, despite knowing such
”(“15)”7'09" 28 equipment was necessary. (16915—13; See also Ex. I p. 1)

2
REPLY IN SUPPORT OF MOTION FOR SUMIVIARY JUDGMENT
1 Plaintiffs opposition provides further evidence of plaintiffs statements made to OSHA

2 regarding Rudolph’s control of his work: “R&S guy directed them showed them where to go +

3 how to do.” “R&S told them where to go & what to do.” “R&S [employee] told them what to

4 do...” (Pltf. Ex. 121 pp. 28-29) Rudolph’s control was conﬁrmed to OSHA by Southwest Vice

5 President of Operations John Pepe who stated that Southwest had “No control on the guys.”
6 _(Pltf. Ex. 12 p. 31) The OHSA investigator recalled that Southwest’s vice president told him “I

7 was not there. I had no control over what they were doing. They were sent to the job and given
8 instruction from R&S.” (Ex. N 97:19-9921)

9 This court can ﬁnd a special employment relationship merely based on evidence that

10 Rudolph shared control with Southwest. “Facts demonstrating the existence of a special

11 employment relationship do not necessarily preclude a ﬁnding that a particular employee also

12 remained under the partial control of the original employer.” Caso, supra at 893. Plaintiﬁ‘"s own

13 words demonstrate far more than is necessary to determine special employment as a matter of

14 law by establishing that Southwest ceded total control over plaintiff to Rudolph. The existence of

15 the special employer’s control over the worker’s job performance implies “as a matter of law”

16 the special employment relationship between them. Santa Cruz, supra at 581.

17 Plaintiffs attempt to introduce evidence of Rudolph employees’ belief as to plaintiffs
18 employment status is irrelevant. The special employment doctrine will apply where the requisite
19 showing of control is demonstrated, even where the president of the special employer expressly
20 denies any employment relationship with the injured worker, Santa Cruz, supra at 578, or the

21 contract disavows any special employment relationship Martin, supra at 918. Mr. Beever’s state

22 of knowledge regarding plaintiffs supervision is similarly of no import because plaintiff testiﬁed
23 it was Project Engineer Connor Foad and carpenter Dexter Bowerman who supervised, laid out,

24 provided equipment for, and (in Dexter’s case) actually carried out the work with plaintiff.

25 Plaintiff then changes tack to argue his special employment had ended because at the
Lynch. Gilardi

A”‘i§r“.§'s',-T,§.L. 26 time of the accident Dexter was no longer actively supervising him. Yet according to plaintiffs
Corporation
170 Columbus Ave.

$113.50“ 27 testlmony, he was still performing the work con51stent w1th Dexter’s instructions at the time of
94133
Ph (415) 397-2300
Fax(415)397-0937
28 1
The Parties have stipulated that the documents contained in Plaintiffs Exhibit 12 are admissible for
purposes of tlns motion. (See Declaration of William A. Bogdan in support of Reply)
3
REPLY 1N SUPPORT OF MOTION FOR SUNﬂVIARY JUDGMENT
the accident and believed that the Rudolph people were still with him when the crate fell. (Ex. F

59:18—22, 66:21-67: 14, 123:19-21) In any event, special employment is not Vitiated simply

because the special employer did not provide constant supervision. Wedeck, supra at 859.

Ultimately, it is the right to control, not'necessarily the exercise of control, which creates the‘

special employment relationship. Id.

2. Contract Cannot Contradict Control
Whether Rudolph had the right to control or exercised that control is not determined by any

contract, it is determined by the conduct of the parties. As held by the California Supreme Court in
Kowalski — a case plaintiff incorrectly cites as holding special employment is always a question of

10 fact — “the contract cannot affect the true relationship of the parties to it. Nor can it place an
1 1 employee in a different position from that which he actually held.” Id. at 176 (citing Martin, supra).

12 As in Martin, which involved a special employment relationship arising out of a subcontract,

13 Kowalski involved a subcontractor hired to perform maintenance on the hirer’s premises. The

14 contract specified that it was the hirer’s intent to establish a special employment relationship with

15 the subcontractor’s personnel. Despite that language, the subcontractor directly supervised its

16 personnel on site and provided all tools and equipment. While under the direct supervision of his
17 supervisor and following his foreman’s express orders, Kowalski cut off his hand‘with a saw

18 borrowed from the hirer. Despite the fact that the jury returned a special verdict finding that plaintiff

19 was not the hirer’s special employee, the judge granted JNOV on grounds that the contract

20 expressly made plaintiff the special employee of the hirer.
21 The California Supreme Court reversed the judgment. Citing to Martin, the Kowalski court

22 recognized that “the paramount consideration appears to be whether the alleged special employer

23 exercises control over the details of [an employee’s] work. Such control strongly supports the

24 inference that a special employment exists.” Id. at 176-177.

25 Plaintiff here argues precisely what the Kowalski court forbids: that the terms of the
mm
31mm. 26 subcontract regarding independent contractor status trumps the true relationship of the parties. In
Corporation
170 Columbus Ava.
5‘h Floor
San Francisco, CA 27 the words of the Supreme Conrt: “[T]he terminology used in an agreement is not conclusive.” Id. at
94133
Ph (415) 397-2800
Fax (415) 397-0937
28 176. In reaching its conclusion, the Kowalski court focused on the fact that the hirer did not exercise
4
REPLY IN SUPPORT OF MOTION FOR SUMIVIARY JUDGMENT
1 any control Over the injured worker’s duties, and that the subcontractor at all times directly

2 supervised the plaintiff. Id.

3 Here, in contrast, the foreman for Southwest was absent from the jobsite on the day plaintiff

4 performed work, and Southwest provided plaintiff with no equipment, instruction or supervision.

5 Rudolph not only supervised plaintiff and supplied him equipment, but actually performed his work

6 with him at the time he was injured. Regardless of any contractual provisions, Rudolph exerted the

7 control Southwest failed to exercise.

8 3. Special Employment through Control of Unskilled Work

9 Marsh v. Tilley Steel Company is yet another Supreme Court opinion incorrectly cited by

10 plaintiff for the proposition that special employment is always a question of fact. There, the

11 Supreme Court found no special employment relationship based on evidence that the worker

12 involved was a skilled employee who at the time of the accident exercised his unlimited discretion

13 to perform skilled work.

14 In Marsh, Tilley provided a crane and an operator to the jobsite of Marsh’s employer

15 Maxwell Construction. Evidence was introduced that the Tilley’s skilled crane operator retained

16 unlimited discretion to operate his employer’s crane as he deemed necessary to achieve the results

17 desired by Maxwell. Nevertheless, Tilley successfully moved for non-suit on grounds that Tilley

18 was Maxwell’s special employer because Marsh connected the load to Tilley’s boom, and had he

19 not been injured, would have provided hand signals to Tilley’s crane operator. Because the evidence

20 showed that the specific details of positioning and controlling the crane at the time of the accident
21 were left to the “unlimited discretion” of the Tilley’s skilled operator, Marsh, supra at 493, the

22 Supreme Court reversed the non-suit. Tilley remained subject to a civil suit because Tilley could not

23 establish that its skilled operator was the special employee of Maxwell or a co—employee of Marsh.
24 It is unclear what solace plaintiff finds in this holding. Rudolph is not trying to prove that its
25 employee became either the special employee of Southwest or plaintiff’s co-worker at Southwest.
Lynch. Gilardi

$212222; 26 To the contrary, Rudolph asserts that the control it exercised over plaintiff created a special
Corporalion
170 Columbus Ave.

Sm 3:33;“ 27 employment relationship between Rudolph and plaintiff
94133
Ph (415) 397-2800
”(415)397'0’37
28 Moreover, plaintiff has not provided any evidence that he was using any journeyman

5
REPLY IN SUPPORT OF MOTION FOR SUIVIMARY JUDGMENT
ironworking skills or operating Southwest’s equipment at the time he was injured as required by

Marsh. To the contrary, plaintiff had to be supplied with equipment by Rudolph because his

employer had provided none; he had to be supplied with supervision by Rudolph because his

employer provided none; and he had to be provided with not one but two Rudolph employees to

(J1 accomplish the menial task at hand because Southwest’s forces were insufficient. (Ex. F 5428-13,

170: 15-20) Plaintiff exercised no union ironworker skill or discretion in moving a crate down a
\10\

hallway on what in effect was a hand truck. Similar to the brick mason in Martin who was not

exercising his union skill when merely jackhammering, plaintiff required no licensing or training to

push a crate with a pallet jack. (Ex. F 14:11-12, 15:5-13)

10 Without foundation, plaintiff also claims that he could not have been a special employee of

1 1 Rudolph because Rudolph micro-manages every subcontractor and sub-subcontractor on every

12 jobsite. The reality is that there is no evidence any other foreman—less, equipment—less subcontractor

13 employee who showed up on site looking to Rudolph to tell him what to do and how to do it.

14 Plaintiff’ s testimony is proof that Rudolph exercised substantially more control than it did over

15 other subcontractors’ because Southwest did not have a foreman or equipment onsite. Where a

16 worker consents to the assignment, is performing unskilled work, and receives his job instruction,

17 equipment and supervision ﬁom the special employer, the special employer’s control goes beyond

18 the suggestion of details or cooperation. Riley, supra at 1250.

19 B. Secondary Factors Favor Special Employment
20 Plaintiff’s opposition incorrectly treats the existence of each secondary factor to be on equal

21 footing with the “paramount consideration” of the right to control.2 Kowalski, supra at 176. The

22 First District’s adoption of the term “secondary factors” in Wedeck was intentional: should “the

23 primary consideration - - whether [the special employer] had the right to control and direct [the

24 special employee’s] activities and the manner in which her work was performed” be found in favor

25 of special employment, that determination will outweigh any secondary factors cutting against
Lﬂhﬁiﬂ?‘
”was“. 26 2
Curporalion
170 Columbus Avc.
Plaintiff shoehoms into an already overcrowded 0 osition a two—page, single—spaced block note in
5'h Floor
27 varying fonts at a 17:18-18:28, rec1ting a myriad ofptlzictors “all of which present a question of act
San Francisco.
94133
CA
supportin a denial of the motion.” No source is rovided for the quote, leaving the court to speculate
Ph (415) 397-2800 whether t re source is a legal treatise, a reported galifomia opinion, or something else. 111 any event, as
Fax (415) 397-0937
28 addressed by Plaintiff s properly cited authorities, it is control, not the secondary factors, that controls the
issue.
6
REPLY IN SUPPORT OF MOTION FOR SUNﬂVlARY JUDGIVIENT
special employment, Wedeck, supra at 858, 859—862.

On summary judgment the court may compare secondary factors favoring special

employment to those that suggest otherwise, but only when Viewed through the prism of the right of
control, which is the “primary [consideration] in determining whether a special employment

relationship exists.” Id. at 862. In this case, plaintiff’s reliance on select secondary factors does not

create a question of fact, nor does it undermine Rudolph’s undisputed right and exercise of control.

1. Whether the borrowing employer had the right to ﬁre or the
obligation to pay the employee

As noted in Wedeck, the ability to terminate the special employment relationship is not

10 determinative because the special employer’s ability to discharge the employee from his general

1 1 employment “would be unusual indeed . . ,” and as such does not raise a triable issue of material
12 fact. Wedeck, supra at 862. Special employment is not defeated even where the special employer

13 admits it cannot discharge the special employee from his general employer. Martin, supra at 922.

14 Likewise, in every case upholding the existence of a special employment relationship, the

15 injured worker was always on the payroll of the general employer. Thus, payroll status has been

16 Viewed as “not determinative,” Kowalski, supra at 177, “unimportant,”Martin, supra at 921, and

17 insufficient to create a question of fact. Wedeck, supra at 861.

18 2. Whether the employee is skilled and had substantial control
19 As discussed above, Plaintiff exercised no union ironworker skill or discretion in moving a

20 crate down a hallway with a hand truck. Even if plaintiff had been using his specialized skill, the
21 control Rudolph exerted created a special employment relationship with plaintiff as a matter of law.

22 See, Caso, supra at 891; Wedeck, supra at 859.

23 3. Whether the work was the special employer’s regular business
24 Whether Rudolph controlled plaintiff in performing Rudolph’s work or Southwest’s work,

25 so long as plaintiff is subject to the control of the special employer, plaintiff will be considered a
c"
26 special employee, even if he is not performing any work. Martin, supra [worker subject to control
170 Columbus Ave.
5‘h Floor
San Francisco, CA 27 of special employer when injured by falling locker during lunch].
94B;
Ph (415) 397-2300
Fax (415) 397.0937
28 Though plaintiff in his new declaration disavows that anything beyond physically removing

7
REPLY IN SUPPORT OF MOTION FOR SUMIVIARY JUDGMENT
the crates off the truck was within his scope of work, he concedes that by determining means of
moving materials into the staging area Rudolph took on the role of his employer. First, he states “I
was told that my work on the jobsite would be to unload crates of glass from a truck. I was not told I
needed to move the crates into the building by Southwest Metalsmiths.” (Pltf. Ex.10 2:11-12) Yet in

the same breath, plaintiff claims that in his experience “the general contractor determines where
material may be staged; but my employer determines the means of moving materials into the
\IO'\

staging area...” (Pltf. Ex.10 3:13—15 (emphasis supplied)) His expert Fulghum reaches the same

conclusion. (Pltf. Ex. 25 7:21-8:11)

Thus, plaintiff admits that Rudolph, as the entity that determined the means to move the

10 materials, was his special employer regardless of whether the work was part of Rudolph’s usual

11 business. In any event, plaintiff’s unsupported opinion on the custom and practice of construction

12 managers at-risk providing labor and equipment to perform a sub-subcontractor’s work is

13 contradicted by Southwest’s contractual promise to provide all labor and equipment necessary to

14 perform its work. (Pltf. EX. 15 Section 1.)

15 4. Whether the new employment was over a considerable length of time
16 Courts recognize that hiring an employee for a single job will permit the creation of a
17 special employment relationship. Industrial Indemnity v. Industrial Accident Commission (1945) 2

18 Cal.2d 130, 135. Thus, an assignment of just one day is sufficient to create a special employment

19 relationship. Santa Cruz, supra at 577.’

20 5. Whether the special employer furnished the tools for performance
21 Plaintiff speculates that other trades were also permitted to use the forklift and pallet jacks
22 Rudolph provided him, without citing any foundation for that opinion or authority for why this is

23 relevant. The cases look only to whether the employee uses the tools/equipment of his general
24 employer or the special employer. Conceding Southwest’s breach of its own contract, plaintiff
25 testified that Southwest provided him with none of the tools or equipment necessary to move the
Lynch, Gilardi
5L Grummcr
A Professional 26 glass, even though Southwest knew that equipment was necessary to perform the task. (Pltf. Ex. 19)
Corporation
170 Columbus Ave.

Deprived of any tools or equipment by Southwest, plaintiff by his own admission could not perform
5"h Floor

San Franc‘sco, CA 27
94133
Ph (415) 397-2800
Fax (415) 397-0937
28 his job without the forklift and pallet jacks he said Rudolph provided him, thus supporting a finding

8
REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGIVIENT
1 of special employment. See, Wedeck, supra at 860, n.5 [special employer provides tools and

2 equipment]

3 6. Whether the parties believe they are creating the relationship
4 Just as where the existence of a written agreement will not trump evidence of special

5 employment, the absence of such an agreement will not preclude a ﬁnding of special employment
6 where the facts show the injured worker was. under the special employer’s control. Industrial

7 Indemnit, supra, at 135; Martin, supra at 920. Thus, it is immaterial that Rudolph had no contract

8 with Southwest. In any event, plaintiff testiﬁed that Southwest had made arrangements with

9 Rudolph because his foreman had instructed him who to report to and Rudolph would tell him what

10 to do. (Ex. F, 11025-1117)

11 Furthermore, courts repeatedly recognize that where the injured worker submits to a

12 circumstance where he is controlled and directed by the special employer, he consents to the status

13 of a special employee, and accepts worker’s compensation as his exclusive remedy. Santa Cruz,

14 supra at 583; Martin, supra at 920 (consent inferred from acceptance of control and direction);
15 Wedeck, supra at 861 n.7. From the moment he arrived at Rudolph’s trailer, plaintiff submitted to

16 (and followed) Rudolph’s direction, thus creatinga special employment relationship.

17 C. Absence of Secondarv Factors Do Not Creat_ez_1 Question of Fact
18 As pointed out above in regard to payroll and termination rights, the existence of some

19 secondary factors favoring a general employment relationship does not prevent this court from

20 ﬁnding the existence of a special employment relationship as a matter of law. See, Santa Cruz,

21 Supra at 577; Wédeck, supra at 862. Ultimately, Rudolph’s exercise of control outweighs, if not
22 precludes, consideration of any secondary factors.
23 D. Special Employer’s Negligence Does Not Create a Question of Fa_ct

24 The negligence of the special employer is irrelevant to the issue of special employment;
25 any claim of negligence is subsumed by the exclusive remedy. See, Martin, supra at 920 [special
Lynch, Gilardi .

$313351; 26 employer negligently maintained the lockers]; Santa Cruz, supra at 577 [special employer directs
Corporation
170 Columbus Ave.

San $321222,” 27 worker to jump onto a delivery truck].
94 33
Ph (415)1397-2800
F“‘4‘5)397'°937
28 As a subterfuge, plaintiff presents for the ﬁrst time an unalleged and unsupported product

9
REPLY IN SUPPORT OF MOTION FOR SUlVHVIARY JUDGMENT
defect claim to suggest his trial theory is consistent with his argument here that he was not under the

control of Rudolph. To prevail against Rudolph at trial, plaintiff must prove that Rudolph
.
negligently exercised retained control of plaintiff’s work which affirmatively contributed to his

injuries. Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202; McKowrz v. Wal-Mart
\OOO\]O\UIJ>U)t\)»—A

Stores (2002) 27 Cal.4th 219. He concedes as much by presenting 34 additional facts declaring his

intent to prove affirmative contribution through negligent retention of control. (Pltf. Disputed Facts ‘

65—99). Yet for purposes of this motion, plaintiff claims that Rudolph did not control his work.

Plaintiff should not be permitted to “blow hot and cold” in this manner, taking the position today

"that Rudolph did not control his work to defeat summary judgment, but taking the position at trial
v—-

O that Rudolph negligently retained control of his work to establish liability. Accord, A&M Records,

v—A
H Inc. v. Heilman (1977) 75 Cal.App.3d 554, 566.
\
r—-
[\J
III. CONCLUSION
>—a UJ
Southwest provided plaintiff no supervision, so Rudolph provided him supervision. Southwest

.—
#- provided plaintiff no equipment, so Rudolph provided him equipment. Southwest provided plaintiff

1—.
LII no instruction, so Rudolph provided him instruction. Southwest provided insufficient personnel for

r—A O\
the task, so Rudolph provided its own personnel for the task. Southwest relinquished control, so

r—
\l Rudolph exercised that control.

v—- 00 The cases cited by both sides are clear: if the special employer exercises control over the
N5”!

>—--
\O worker, no amount of paper—be it subcontracts, accident reports, tax documents or worker’s

[O C) compensation forms—can create a question of fact sufficient to defeat a motion for summary ”yea-aamwmc-

N >—‘
judgment. Rudolph and Sletten was plaintis special employer, and thus is immune from civil suit. Wm,

NN *
DATED: October 27, 2017 LYNCH, GILARDI & GRUMMER, APC
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By: , \AM 3%
William A. Bogdt’zﬁt WW

Attorneys for Defendant
mmmmmhmmn.

Lynch. Gllardi
& (irummcr RUDOLPH AND SLETTEN, INC.
A Professional M0
Corporation 294859noc W“?—

I70 Columbus Ave.
5' Hot)!
Sun Framisco. CA 27
94 l3}
I’li (M5) 397-2300
Fax (415)397-0937
28

10
REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Toerpe, et a]. v. Rudolph and Sletten, Inc, et a].
San Mateo County Superior Court, Action No. 16CIV01654
-
PROOF OF SERVICE

I am employed in the County of San Francisco, State of California. I am over the age of
18 and not a party to the within action; my business address is: 170 Columbus Avenue, Fifth
Floor, San Francisco, CA 94133.

On October 27, 2017, I served the foregoing document described as:
DEFENDANT RUDOLPH AND SLETTEN, INC.’S REPLY TO PLAINTIFFs’
OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT

DECLARATION OF WILLIAM A. BOGDAN IN SUPPORT OF DEFENDANT
RUDOLPH AND SLETTEN, INC.’S REPLY TO OPPOSITION TO MOTION FOR
SUMMARY JUDGMENT

10 RESPONSE TO PLAINTIFFs’ ADDITIONAL MATERIAL FACTS IN SUPPORT OF
PLAINTIFFS’ OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
11
OBJECTIONS To PLAINTiFFs’ EVIDENCE SUBMITTED IN OPPOSITION T0
12 RUDOLPH AND SLETTEN, INC.’S MOTION FOR SUMMARY JUDGMENT

13 RESPONSE TO PLAINTIFFS’ OBJECTIONS TO DEFENDANT’S EVIDENCE IN
SUPPORT OF MOTION FOR SUMIVIARY JUDGMENT
14
on the interested parties in this action as follows:
15
Robert S. Ams, Esq. Attorneys for Plaintiffs
16 Zachariah D. Hansen, Esq. MATTHEW TOERPE AND LANAE TOERPE
THE ARNS LAW FIRM
17 515 Folsom Street, Third Floor
San Francisco, CA 94105
18
R. Scott Diaz, Esq. Attorneys for Defendant
19 Paul A. Vaillencourt, Esq. SHOLLENBARGER—BORELLO, INC. dba
LORBER, GREENFIELD & POLITO, LLP GOLDEN STATE STEEL
20 150 Post Street, Suite 700
San Francisco, CA 94108
21

22 [BY US MAIL, CCP § 1013a(3)] I deposited such envelope in the mail at San
Francisco, California. The envelope was mailed with postage thereon fully prepaid. I am
23 “readily familiar” with the ﬁrm’s practice of collection and processing correspondence
for mailing. It is deposited with the United States Postal Service on that same day in the
24 ordinary course Of business. I am aware that on motion of party served, service is
presumed invalid if postal cancellation date or postage meter date is more than one (1)
25 day after date Of deposit for mailing in afﬁdavit.

PROOF OF SERVICE
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on October 27, 2017 at San Francisco, California.

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PROOF OF SERVICE

Case Info

Judge

DuBois, Richard H. Track Judge’s New Case

Case No.

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Document Filed Date

October 27, 2017

Case Filing Date

September 30, 2016

County

Parties

BOGDAN, WILLIAM A. Attorney for the Defendant
DOES 1 THROUGH 100 Defendant
HANSEN, ZACHARIAH D. Attorney for the Plaintiff
RUDOLPH AND SLETTEN, INC. Defendant
SHOLLENBARGER - BORELLO, INC. Defendant
TOERPE, LANAE Plaintiff
TOERPE, MATTHEW Plaintiff
Lisa Cappelluti Attorneys for Defendants
Paul Vaillancourt Attorneys for Defendants
Raymond Diaz Attorneys for Defendants
Robert Arns Attorneys for Plaintiffs
Jonathan Davis Attorneys for Plaintiffs
Andrew Spaulding Attorneys for Defendants
Nick Polis Attorney
Robert Sehr Attorneys for Plaintiffs
E. Davis Attorneys for Plaintiffs
Derrick Hansen Attorneys for Plaintiffs
Duane Grummer Attorney
Jonathan David Attorneys for Plaintiffs
Kevin Osborne Attorneys for Plaintiffs
William Adams Attorney
Robert Adams Attorney
William Andrews Attorney

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Motion-Secondary: MATTHEW TOERPE, et al vs. RUDOLPH AND SLETTEN, INC., et al

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Parties