Hughes v. Transwood, Inc.
United States District Court for the Eastern District of Missouri, Eastern Division
April 12, 2018, Decided; April 12, 2018, Filed
Case no. 4:17cv01943 PLC

Reporter
2018 U.S. Dist. LEXIS 62074 *
DAVID HUGHES, Plaintiffs, v. TRANSWOOD, INC., and RICHARD TERRY, Defendants.

MEMORANDUM AND ORDER
This matter is before the Court on review of the record regarding the Court’s subject matter jurisdiction in this removed lawsuit in which Plaintiff pursues negligence claims under Missouri state law. Plaintiff seeks monetary relief for personal injuries and property damage he allegedly sustained on June 16, 2016, when a tire on a tractor-trailer driven by Defendant Richard Terry, who was an employee of Defendant Transwood, Inc., exploded and hit Plaintiff’s vehicle while on a highway in Missouri. In July 2017, Defendant Terry, with Defendant Transwood, Inc.’s consent, removed the case to this Court based on this Court’s diversity jurisdiction. See 28 U.S.C. §§ 1441, 1332. Concluding there is complete diversity between Plaintiff and Defendants, the Court questioned whether there is more than $75,000.00, exclusive of interest and costs, at issue to satisfy the amount [*2] in controversy prerequisite for diversity jurisdiction.1 The Court set deadlines by which (1) Defendants needed to “provid[e] evidence and supplement[ their] notice of removal” to avoid remand due to lack of subject matter jurisdiction, and (2) Plaintiff could respond to Defendants material(s).2
Defendants timely filed a supplemental notice of removal, with six exhibits (identified as exhibits A through F) attached.3 The exhibits are copies of: (1) Plaintiff’s June 8, 2017 letter to Defendants’ counsel demanding $100,000 to settle the case,4 (2) Plaintiff’s responses to Defendants’ first request for admissions directed to Plaintiff,5 (3) Plaintiff’s post-accident medical treatment records,6 (4) a table summarizing the $33,223.68 in expenses Plaintiff incurred for medical treatment from the day of the accident through January 30, 2017, with a notation “waiting on estimate” with respect to the “Future Surgery/Medical” expenses,7 (5) an excerpt from Plaintiff’s deposition,8 and (6) the itemization of repairs to Plaintiff’s motor vehicle.9 Plaintiff did not file a response to Defendants’ materials.
In their supplemental notice of removal, Defendants state that Plaintiff seeks property damages [*3] for $9,816.55 in repairs to Plaintiff’s car;10 an undisclosed amount for serious injuries to Plaintiff’s right arm, neck, and back, which will allegedly require future treatment;11 an undisclosed amount for past and future medical treatment, with such expenses totaling more than $33,000.00 for care through January 2017 and documentation of expenses for medical care since January 2017 not yet available;12 and an undisclosed amount in past and future lost wages due to the need to close Plaintiff’s business “following the accident.”13
Defendants further assert, and in his response to the request for admissions Plaintiff admits, that Plaintiff did not sign a proposed stipulation that Plaintiff seeks less than $75,000.00.14 The record also discloses, through Plaintiff’s responses to Defendants’ requests for admissions, that Defendants countered Plaintiff’s settlement offer, by offering to settle the case for $10,000.00.15 Defendants urge “jurisdiction is not premised on [D]efendants’ position on liability and damages. It is based on [P]laintiff’s settlement demand of $100,000.00 and his refusal to stipulate, agree or otherwise plead that his damages are less than $75,000.00.”16
When a court [*4] questions the amount in controversy, evidence establishing the amount is required. See Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 554, 190 L. Ed. 2d 495 (2014) (“Dart Cherokee”). The removing defendants must establish the amount in controversy by a preponderance of the evidence. Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir. 2009); see Dart Cherokee, 135 S. Ct. at 554; 28 U.S.C. § 1446(c)(2)(B). Importantly, the issue is not whether the damages are in fact greater than $75,000.00, “but whether a fact finder might legally conclude that they are.” Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 944 (8th Cir. 2012) (emphasis in original) (internal quotation marks omitted) (quoting Bell 557 F.3d at 959). “Once the removing party has established by a preponderance of the evidence that the jurisdictional minimum is satisfied, remand is only appropriate if the plaintiff can establish to a legal certainty that the claim is for less than the requisite amount.” Id. at 946 (internal quotation marks omitted) (quoting Bell, 557 F.3d at 956); accord Raskas v. Johnson & Johnson, 719 F.3d 884, 888 (8th Cir. 2013) (once the removing party shows the amount in controversy by a preponderance of the evidence, the case belongs in federal court unless the plaintiff demonstrates it is legally impossible, and not just “highly improbable,” to recover that amount).
To establish the amount in controversy by a preponderance of the evidence, a removing defendant must present “some specific facts or evidence demonstrating that the jurisdictional amount has been met[.]” [*5] Hill v. Ford Motor Co., 324 F. Supp. 2d 1028, 1036 (E.D. Mo. 2004). Engaging in speculation or presumptions about the amount in controversy is insufficient to demonstrate satisfaction of the required amount. Id. A court may consider materials submitted after removal that show “in fact, the required amount was or was not in controversy at the” time federal court jurisdiction was invoked.17Schubert v. Auto Owners Ins. Co., 649 F.3d 817, 823 (8th Cir. 2011) (internal quotation marks omitted) (quoting State Farm Mut. Auto Ins. Co. v. Powell, 87 F.3d 93, 97 (3rd Cir. 1996)); accord Pudlowski v. The St. Louis Rams, LLC, 829 F.3d 963, 964-65 (8th Cir. 2016) (per curiam). The materials a removing defendant submits to demonstrate satisfaction of the amount in controversy by a preponderance of the evidence may include “affidavits, declarations, and other documentation.” McNamee v. Knudsen & Sons, Inc., 4:15-CV-572 (CEJ), 2016 U.S. Dist. LEXIS 26964, 2016 WL 827942, at *3 (E.D. Mo. Mar. 3, 2016).
Defendants argue Plaintiff’s post-complaint letter demanding $100,000.00 to settle the case supports a conclusion the amount in controversy prerequisite for diversity jurisdiction is satisfied. The United States Court of Appeals for the Eighth Circuit has not yet decided “whether a post-complaint settlement offer alone is sufficient to establish the requisite amount in controversy,” but characterized a post-complaint demand letter as “offer[ing] . . . support for the valuation of the [plaintiff’s] claims.” In re: Minnesota Mut. Life Ins. Co. Sales Practices Litig., 346 F.3d 830, 835 (8th Cir. 2003). This Court considers a post-complaint settlement [*6] demand or offer, along with other circumstances of the case, to resolve whether the amount in controversy requirement for diversity jurisdiction is satisfied. See, e.g., Branch v. Wheaton Van Lines, Inc., No. 4:14-CV-01735-AGF, 2014 U.S. Dist. LEXIS 161081, 2014 WL 6461372, at *2 (E.D. Mo. Nov. 17, 2014) (concluding the defendant had not satisfied its burden of demonstrating the amount in controversy requirement for diversity jurisdiction when the plaintiff’s “settlement demands all fell below $75,000,” the plaintiff’s “allegations of medical expenses and lost wages . . . total[ed] far less than $75,000” and the plaintiff “explicitly [sought] damages in an amount ‘not to exceed’ $74,000” in his petition). Here, Plaintiff (1) did not expressly limit his request for damages in his petition to less than $75,000 and, after filing the lawsuit but before removal, (2) demanded more than $75,000 (specifically, $100,000) to settle the case. Under the circumstances (including Plaintiff’s unlimited prayers for relief and the documentation submitted by Defendants with respect to the scope and cost of treatment for Plaintiff’s serious injuries to his neck, arm and back, the extent of repairs to Plaintiff’s damaged vehicle, and the loss of Plaintiff’s business), Plaintiff’s post-complaint, [*7] pre-removal letter demanding $100,000 to settle the case supports a determination that a fact finder might legally conclude Plaintiff’s damages are more than $75,000.00. See Parshall v. Menard, Inc. d/b/a Menards, No. 4:16-CV-828 (CEJ), 2016 U.S. Dist. LEXIS 94437, 2016 WL 3916394, at *3-4 (E.D. Mo. July 20, 2016) (denying remand upon finding the defendant established by a preponderance of the evidence that a fact finder might legally conclude damages were greater than $75,000 based on: (1) a settlement demand over $75,000, (2) the plaintiff’s allegations of serious injuries to the plaintiff’s upper left extremity, left shoulder, and neck, including continuing medical expenses and lost wages, and (3) the plaintiff’s request for an unlimited amount of damages).
Defendants also urge Plaintiff’s failure to stipulate that he is seeking less than $75,000 supports a conclusion that the amount in controversy exceeds $75,000. Such a refusal in and of itself is not sufficient to satisfy the amount in controversy requirement. Biomedical Sys. Corp. v. Crawford, No. 4:15CV1775 CDP, 2016 U.S. Dist. LEXIS 3978, 2016 WL 147146, at *2 (E.D. Mo. Jan. 13, 2016); Branch, 2014 U.S. Dist. LEXIS 161081, 2014 WL 6461372, at *2. When other evidence of record supports a finding that the amount in controversy is satisfied, however, a plaintiff’s refusal “to stipulate to a damage award amount of $75,000.00 or less” may be persuasive. [*8] Gebert v. United Rentals (North Am.), Inc., No. 4:05CV717SNL, 2005 WL 2789332, at *1 (E.D. Mo. Oct. 26, 2005). In Gebert, the Court denied a motion to remand upon finding the defendant had “offered undisputed evidence of the plaintiff’s [$50,000.00 annual] salary at the time of her termination” more than two years earlier and the plaintiff’s petition included an unlimited “prayer for compensatory and punitive damages, as well as front pay and back pay.” Id. Concluding “a fact finder could legally award [the plaintiff] damages . . . in an amount greater than the jurisdictional threshold,” the Court in Gebert found the plaintiff’s “consistent refusal to stipulate that she would not demand more than the jurisdictional amount sufficiently convinc[ing to establish] that plaintiff is pursuing damages in excess of $75,000.00.” Id. Under the circumstances, including Plaintiff’s unlimited prayers for damages, and the materials submitted by Defendants demonstrating the extent of Plaintiff’s medical care and other damages, as well as Plaintiff’s settlement demand, Plaintiff’s consistent refusal to stipulate to the recovery of $75,000.00 or less supports a decision that a fact finder might legally conclude Plaintiffs damages exceed $75,000.00. [*9] Plaintiff has not provided any evidence or argument showing that either (1) there is a legal certainty that his claims for relief are for less than the requisite amount or (2) it is legally impossible for him to recover more than $75,000.00. Therefore, after careful consideration, the Court finds it has diversity jurisdiction over this case.
IT IS SO ORDERED.
/s/ Patricia L. Cohen
PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 12 day of April, 2018

Stoilkov v. Yin
Court of Appeal of California, Fourth Appellate District, Division Two
April 9, 2018, Opinion Filed
E066573

Reporter
2018 Cal. App. Unpub. LEXIS 2422 *
ALEXANDRE STOILKOV, Plaintiff and Appellant, v. YONG CHA YIN et al., Defendants and Respondents.
Notice: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.
Prior History: [*1] APPEAL from the Superior Court of San Bernardino County, No. CIVRS1305829, Thomas S. Garza, Judge.
Disposition: Affirmed.

Plaintiff and appellant Alexandre Stoilkov sued defendants and respondents (1) Yong Cha Yim1 (2) N&C Trucking Inc.; (3) Jennifer A. Wells; (4) Daimler North America Corp.; and (5) Daimler Trucks North America LLC. Stoilkov sued Yim for negligence. Stoilkov alleged N&C Trucking was a necessary party. (Code Civ. Proc., § 389.)2 Stoilkov did not allege any causes of action against N&C Trucking. The trial court voided the clerk’s entry of default against Yim and granted summary judgment in favor of Yim and N&C Trucking.
Stoilkov raises three contentions on appeal. First, Stoilkov contends section 473, subdivision (d), does not grant trial courts the authority to void a clerk’s entry of default. Second, Stoilkov asserts a necessary party, who has not filed an answer and against whom no causes of action are alleged, cannot move for summary judgment. Third, Stoilkov contends N&C Trucking and Yim have [*2] failed to meet their burden of establishing the workers’ compensation exclusivity rule applies in this case. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY
A. COMPLAINT
The facts in this subsection are taken from Stoilkov’s complaint. Stoilkov and Yim worked together driving a semi-tractor trailer (the semi) for N&C Trucking. On August 20, 2011, Stoilkov and Yim were in the semi on Interstate 80 in Lincoln County, Nebraska; Yim was driving and Stoilkov was sleeping in the semi’s sleeper compartment. Wells abruptly slowed her Chevrolet Suburban in front of the semi, which caused Yim to abruptly apply the semi’s brakes. Stoilkov was ejected from the sleeper compartment into the driver’s compartment, where he struck the dashboard and fell to the floorboard. Stoilkov suffered a variety of injuries.
Stoilkov filed a claim for workers’ compensation benefits in California. Stoilkov alleged in his complaint, “N&C Trucking is named a necessary party to this lawsuit solely for recovery of its losses paid under California workers’ compensation regime.” Stoilkov asserted N&C Trucking might seek to recover “all amounts paid to [Stoilkov] under its workers’ compensation insurance policy.” None [*3] of Stoilkov’s causes of action were directed at N&C Trucking. Stoilkov sought damages in an amount to be proven at trial. Stoilkov’s complaint was filed on August 19, 2013.
B. DEFAULT
On May 16, 2014, Stoilkov requested the trial court clerk enter Yim’s default. The clerk entered the default.
On March 12, 2015, Yim moved the trial court to void the entry of default. Yim asserted the clerk’s entry of default was improper because Stoilkov did not serve Yim with a statement of damages (§ 425.11). Yim argued that section 437, subdivision (d), authorized the trial court to set aside any void orders, and the court should exercise that authority to set aside the erroneously entered default.
Stoilkov opposed the motion. Stoilkov asserted that section 437, subdivision (d), permitted the trial court to set aside void orders and judgments, but a clerk’s entry is neither an order nor a judgment. Therefore, the trial court lacked authority to set aside the clerk’s entry of default.
The trial court held a hearing on the motion. The trial court said, “I’m aware of your argument that the entry by a clerk is not a court order, and you provided the Court no authority for that argument. And I don’t understand—I’m confused as to why a Court authorizing and actually ordering [*4] for the default to be entered would not be a court order, so that confused me a little bit. [¶] So my tentative would be to grant the motion to set aside the default based on the subject-matter jurisdiction issue and Code of Civil Procedure [section] 425.11, and have responsive pleadings issued by the defendant within seven court days.”3 The court said, “I’ll . . . grant the motion to set aside and void the entry of default.”
C. SUMMARY JUDGMENT
Yim and N&C Trucking (collectively, defendants) moved for summary judgment. Defendants asserted the workers’ compensation system provided Stoilkov’s exclusive remedy for any liability on the part of defendants. (Labor Code, §§ 3600-3602.) Defendants asserted Stoilkov was already compensated via the workers’ compensation system, and therefore, Stoilkov could not sue for damages.
Exhibits to the motion included Stoilkov’s 2011 and 2012 W-2 forms and the declaration of Nick Kalaj, who was the owner of N&C Trucking. The W-2 forms reflected N&C Trucking was Stoilkov’s employer. Kalaj declared Stoilkov had been an employee of N&C Trucking from 2004 until after the car accident. Stoilkov quit N&C Trucking in August 2012, filed for workers’ compensation benefits, and received workers’ compensation benefits. Yim began [*5] working as an employee of N&C Trucking in 2011, and was terminated after the car accident.
Stoilkov opposed the motion for summary judgment. First, Stoilkov asserted N&C Trucking could not move for summary judgment because it was named only as a necessary party (§ 389) and had not yet filed an answer. Second, Stoilkov argued that workers’ compensation was not his exclusive remedy. Stoilkov asserted he and Yim were not N&C Trucking’s employees at the time of the car accident; rather, they were working for FedEx Ground. Stoilkov asserted that N&C Trucking leased its trucks and drivers to FedEx. Stoilkov asserted that defendants failed to prove that Stoilkov and Yim were employees of N&C Trucking at the time of the accident. Additionally, Stoilkov asserted he was not performing a work related task at the time of the car accident.
Third, Stoilkov asserted that if the workers’ compensation exclusive remedy rule was applicable, then the dual capacity exception applied. Stoilkov argued N&C Trucking and Stoilkov had more than an employee-employer relationship. Stoilkov asserted N&C Trucking owned the semi in which Stoilkov was sleeping at the time of the accident and therefore had a duty toward Stoilkov [*6] akin to a property owner, in the nature of premises liability.
The trial court held a hearing on the motion for summary judgment. The trial court explained its tentative ruling was to grant the motion. The trial court pointed out that, in Stoilkov’s complaint, he joined N&C Trucking as a necessary party because Stoilkov had received workers’ compensation benefits through N&C Trucking’s worker’s compensation insurance. The trial court said defendants’ evidence that (1) Stoilkov was an employee of N&C Trucking, and (2) had received workers’ compensation benefits shifted the burden to Stoilkov to show that the workers’ compensation exclusive remedy rule did not apply.
The trial court explained that Stoilkov was performing a work-related task for N&C Trucking at the time of the accident because the point of having Yim and Stoilkov in the semi was so that the semi could continue moving while either Yim or Stoilkov slept in the semi. The trial court analogized the situation to a firefighter sleeping at the station as part of the firefighter’s job. Therefore, the trial court concluded it was reasonable for Stoilkov to have received workers’ compensation benefits. Additionally, there was not [*7] a dual capacity situation because Stoilkov was acting within the scope of his job duties at the time of the accident.
Stoilkov responded to the trial court’s explanation. Stoilkov asserted N&C Trucking could not move for summary judgment because no causes of action were alleged against it. Stoilkov also asserted that in form he was working for N&C Trucking, but in substance he was working for FedEx because it was FedEx that decided Stoilkov and Yim’s route and destination.
As to the lack of causes of action against N&C Trucking, the trial court said that N&C Trucking paid its appearance fee and was defending itself despite Stoilkov not directly pursing N&C Trucking. In regard to FedEx, the trial court concluded that it was “more of an independent contractor scenario . . . as opposed to FedEx being the actual employer.” The trial court remarked that Stoilkov failed to provide a W-2 form or 1099 form from FedEx. The trial court granted defendants’ motion for summary judgment.

DISCUSSION
A. DEFAULT
Stoilkov contends the trial court erred by voiding the trial court clerk’s entry of default because section 473, subdivision (d), authorizes a trial court to void an order or judgment, and a clerk’s entry is neither an order [*8] nor a judgment.
Section 473, subdivision (d) provides, “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”
For the sake of judicial efficiency, we will presume Stoilkov is correct and section 473, subdivision (d), is not the proper vehicle for vacating a clerk’s entry of default because a clerk’s entry is neither an order nor a judgment. We now examine whether the trial court’s error is harmless. Stoilkov must establish that it is reasonably probable a result more favorable to Stoilkov would have been reached absent the error. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.)
A default may not be taken against a defendant if the defendant has not been served with a statement of damages. (§ 425.11, subd. (c); Parish v. Peters (1991) 1 Cal.App.4th 202, 209.) “Where a superior court defendant has not been advised of the amount of the [plaintiff’s] demand through [a] statement of damages, it has been uniformly held that the entry of a default is void.” (Pino v. Campo (1993) 15 Cal.App.4th Supp. 1, 4.)
Stoilkov’s attorney declared that she “tried unsuccessfully to serve” Yim with the statement of damages. Yim declared she “never received any Statement of Damages.” [*9] Because Yim was not served with Stoilkov’s statement of damages, the clerk’s entry of Yim’s default is void. (§ 425.11, subd. (c).)
A default that has been improperly entered may be set aside or expunged at any time on the basis of the entry being a nullity. (Reher v. Reed (1913) 166 Cal. 525, 528; Westport Oil Co. v. Garrison (1971) 19 Cal.App.3d 974, 978; Pinkerton’s, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1347.) Stated differently, a trial court can set aside or expunge a clerk’s void entry.
Because the trial court has the authority to set aside a null entry by a court clerk, any error the trial court may have committed by relying on section 473 is harmless. In other words, because there is a correct legal procedure by which the trial court could have reached the same result, we cannot reverse the judgment. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980-981.)
B. NECESSARY PARTY
Stoilkov contends a necessary party, who has not filed an answer and against whom no causes of action are alleged, cannot move for summary judgment.
A party is a necessary party if (1) complete relief cannot be granted without the party; or (2) the party claims an interest in the subject of the lawsuit and the party’s absence would (a) impair the party’s ability to protect that interest, or (b) leave the already named parties at substantial risk of incurring double or inconsistent obligations by reason of the party’s claimed interest. ( [*10] § 389.)
In Stoilkov’s complaint, he alleged that he named N&C Trucking as a defendant because Stoilkov received workers’ compensation benefits through N&C Trucking’s insurance, and therefore N&C Trucking “may claim[] subrogation rights against the other Defendants in this matter and entitlement to recovery of all amounts paid to [Stoilkov] under its workers’ compensation insurance policy. [¶] N&C is named a necessary party to this lawsuit solely for recovery of its losses paid under California workers’ compensation regime.”
It is unclear how complete relief cannot be had without N&C Trucking as a party to the lawsuit when Stoilkov is asserting N&C Trucking’s only interest is in reimbursing N&C Trucking’s insurance company for the insurance benefits paid to Stoilkov. Perhaps N&C Trucking’s insurance company would have an interest in recouping the money paid to Stoilkov, but it is not clear why complete relief cannot be had without N&C Trucking as a party to the lawsuit.
Next, N&C Trucking moved for summary judgment. We infer from the filing for summary judgment that N&C Trucking is not claiming an interest in the subject matter of the lawsuit. In other words, N&C Trucking is not interested in [*11] whether its insurance company is reimbursed for the workers’ compensation benefits paid to Stoilkov. Accordingly, (1) it appears complete relief can be had without N&C Trucking as a party to the lawsuit, and (2) it appears N&C Trucking is not claiming an interest in the subject matter of the lawsuit. Therefore, N&C Trucking is not a necessary party.
As a result, the question before us is whether a defendant, against whom no causes of action are directed, may move for summary judgment. Section 437c, subdivision (a), provides, “A party may move for summary judgment . . . if it is contended the action has no merit.” N&C Trucking is named as a defendant, therefore it is a party. Because no causes of action pertain to N&C Trucking, there is no case against N&C Trucking. Because there is no case against N&C Trucking, the case has no merit. In sum, N&C Trucking is a party and it can reasonably contend the action has no merit. Therefore, N&C Trucking could properly move for summary judgment.
Stoilkov asserts N&C Trucking could not move for summary judgment because it did not file an answer. Stoilkov asserts the lack of an answer meant Stoilkov had no notice of N&C Trucking’s affirmative defenses. It is unclear what N&C [*12] Trucking could include in an answer due to there being no causes of action against N&C Trucking. (See § 431.30, subd. (b) [required contents of an answer].) For example, there was no need for N&C Trucking to assert a defense because there were no allegations against it. Therefore, we are not persuaded that N&C Trucking was required to file an answer prior to moving for summary judgment. (Siemon v. Russell (1961) 194 Cal.App.2d 592, 595 [a defendant can move for summary judgment without previously filing an answer].)
Stoilkov asserts N&C Trucking could not move for summary judgment because it lacked standing due to not having made a prior appearance. A summary judgment “motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed . . . .” (§ 473c, subd. (a)(1).)
Stoilkov is the party against whom the motion for summary judgment is directed. Stoilkov made a general appearance on August 19, 2013, when he filed his complaint. (See Roy v. Superior Court of County of San Bernardino (2005) 127 Cal.App.4th 337, 341 [party seeking affirmative relief in court has made a general appearance].) The motion for summary judgment was filed on February 24, 2016. Therefore, the motion for summary judgment was made more than 60 days after Stoilkov’s general appearance [*13] in the case. We find no error in the timing of the motion. (See generally Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1056 [a motion for summary judgment may be made prior to filing an answer]; also see generally Siemon v. Russell (1961) 194 Cal.App.2d 592, 595 [same].)
C. SUMMARY JUDGMENT
1. CONTENTION
Stoilkov contends the trial court erred by granting summary judgment because defendants did not establish that workers’ compensation is Stoilkov’s exclusive remedy.
2. STANDARD OF REVIEW
“Under Code of Civil Procedure section 437c, subdivision (c), a motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. A defendant meets its burden on summary judgment by establishing a complete defense to the plaintiff’s causes of action. [Citation.] The burden then shifts to the plaintiff to show a triable issue of fact material to the defense. [Citation.] We evaluate a summary judgment ruling de novo, independently reviewing the record to determine whether there are any triable issues of material fact.” (Ross v. Roberts (2013) 222 Cal.App.4th 677, 683.)
3. WORKERS’ COMPENSATION LAW
An employer is liable for “any injury sustained by his or her employees arising out of and in the course of the employment” where the “conditions of compensation” are met. (Labor Code, § 3600, subd. (a).) Two of [*14] the enumerated conditions of compensation are (1) “at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment”; and (2) “the injury is proximately caused by the employment, either with or without negligence.” (Labor Code, § 3600, subd. (a)(2)&(3).)
If the conditions of compensation are met, then workers’ compensation is the injured employee’s exclusive remedy “against any other employee of the employer acting within the scope of his or her employment.” (Labor Code, § 3601, subd. (a).) If the conditions of compensation are met, then workers’ compensation is the injured employee’s exclusive remedy “against the employer.” (Labor Code, § 3602, subd. (a).)
4. N&C TRUCKING
We begin our analysis with N&C Trucking. Stoilkov received workers’ compensation benefits through N&C Trucking’s workers’ compensation insurance policy. Thus, the conditions of compensation were met and N&C Trucking’s liability was established, otherwise Stoilkov would not have received benefits. (Labor Code, § 3600, subd. (a).) Because Stoilkov received workers’ compensation benefits, N&C Trucking is “immune from tort liability under the exclusive remedy provisions of the Workers’ Compensation Act.” (Zamudio v. City and County of San Francisco (1999) 70 Cal.App.4th 445, 449.) Thus, N&C Trucking has established [*15] a complete defense.
The burden now shifts to Stoilkov. Stoilkov has not alleged a cause of action against N&C Trucking. Accordingly, Stoilkov has not identified any act of N&C Trucking that could be disputed. As a result, Stoilkov has failed to demonstrate there is a triable issue of material fact. The trial court did not err by granting summary judgment as it pertains to N&C Trucking.
5. YIM
We now turn to the portion of the summary judgment motion that concerns the case against Yim. Stoilkov received workers’ compensation benefits through N&C Trucking’s workers’ compensation insurance policy. Thus, the conditions of compensation were met and N&C Trucking’s liability was established. (Labor Code, § 3600, subd. (a).) That means Stoilkov was working for N&C Trucking at the time of the car accident and that he was acting within the course of his employment, otherwise, he would not have received benefits. (§ 3600, subd. (a)(2)&(3).) Yim was also employed by N&C Trucking. Because Yim and Stoilkov were coworkers, and Stoilkov has received workers’ compensation benefits, Yim is immune from tort liability due to the workers’ compensation exclusive remedy provision. (Zamudio v. City and County of San Francisco, supra, 70 Cal.App.4th at p. 449; Labor Code, § 3601, subd. (a).) Thus, Yim has established a complete defense.
The burden now shifts to Stoilkov. [*16] Stoilkov argues that Yim has not established a complete defense because Yim has not established that the conditions of compensation were met. Stoilkov contends (1) he and Yim were working for FedEx at the time of the car accident, and (2) Stoilkov was not acting within the scope of his employment at the time of the accident because he was sleeping.
Stoilkov’s assertions that the conditions of compensation have not been met contradicts his allegation that he received workers’ compensation benefits through N&C Trucking’s workers’ compensation insurance. By alleging that he received benefits, Stoilkov concedes that the conditions of compensation were met, otherwise, Stoilkov could not have received benefits. (Labor Code, § 3600, subd. (a).) Because Stoilkov’s assertion that the conditions of compensation have not been met is directly contradicting his assertion that he received workers’ compensation benefits, we find the argument to be unpersuasive.
Stoilkov contends that if the workers’ compensation exclusivity rule applies in this case, then the dual capacity exception applies. The common law developed the dual capacity exception to the workers’ compensation exclusivity rule. The exception provided, “[W]hen an employee [*17] is injured in the course of a relationship with his or her employer that is conceptually distinct from that of employer and employee, or while the employer is acting in a legal capacity toward the employee distinct from that of employer, the employee may bring a civil action and recover damages at law for breach of the employer’s duties arising from that distinct relationship or legal capacity, notwithstanding the general exclusivity of the workers’ compensation remedy.” (Ashdown v. Ameron International Corp. (2000) 83 Cal.App.4th 868, 875.)
“However, in 1982, the Legislature amended [Labor Code] section 3602 to limit the [common law’s] dual capacity exception.” (Ashdown v. Ameron International Corp., supra, 83 Cal.App.4th at p. 875.) As a result, much of the dual capacity doctrine has been abrogated. (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 368.) In August 2011, Labor Code section 3602, subdivision (a), provided that, if the conditions of compensation were met, then workers’ compensation is the injured employee’s exclusive remedy “against the employer[, and t]he fact that either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee’s industrial injury shall not permit the employee . . . to bring an action at law for damages against the employer.”
The Legislature created some exceptions to this rule, such as a willful physical assault by an employer. (Labor Code, § 3602, subd. (b).) However, Stoilkov [*18] does not assert the exceptions apply in this case. Rather Stoilkov is asserting the pre-1982 law applies in this case. The car accident is alleged to have occurred in August 2011. We cannot apply law that was abrogated prior to the car accident. Accordingly, Stoilkov’s reliance on the dual capacity doctrine is unpersuasive. Because Stoilkov has not met his burden of establishing a triable issue of material fact, we conclude the trial court did not err by granting summary judgment in favor of Yim.

DISPOSITION
The judgment is affirmed. Respondents, N&C Trucking and Young Chan Yim, are awarded their costs on appeal.
MILLER
Acting P. J.
We concur:
SLOUGH
J.
FIELDS
J.