Sickle v. Dosanjh

Cal. App. 3 Dist.,2006.

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

Court of Appeal, Third District, California.

Mary SICKLE et al., Plaintiffs and Appellants,

v.

Amrik DOSANJH et al., Defendants and Respondents.

 

Dec. 12, 2006.

 

Plaintiffs Mary Sickle, Shirley James-Coll, Debbie Reeves and John Pastorelli (hereafter plaintiffs), appeal from the summary judgment entered in favor of defendants Amrik Dosanjh and AAGH Farms on their complaint for wrongful death.

 

Plaintiffs are the adult children of Roberta Connell, who sustained fatal injuries while riding in an automobile that collided with a truck driven by Bhajan Singh Aujla (hereafter Bhajan). At the time of the accident, Bhajan had just delivered a load of peaches to a weighing station. The peaches belonged to defendants, who owned a peach farm, and hired Bhajan and his brother Mohan to haul peaches for them during the harvest season. Plaintiffs sued defendants for negligence under the doctrine of respondeat superior on the theory that Bhajan was defendants’ employee. The trial court granted summary judgment after finding Bhajan was not an employee, but an independent contractor.

 

 

In the interests of clarity and brevity we shall refer to Bhajan and his brother Mohan Aujla by their given names. We mean no disrespect.

 

On appeal, plaintiffs challenge that finding, claiming the question remains a triable issue of fact. They argue that because Bhajan failed to obtain the requisite motor carrier permit (Veh.Code, §  34620, subd. (a)), he was in violation of the law as an independent contractor but was not in violation as an employee. From this, plaintiffs conclude the presumption of innocence (Evid.Code, §  520) and the maxim “the law has been obeyed,” raise an inference that he was acting lawfully and must therefore be an employee.

 

We find no error and shall affirm the judgment.

 

 

FACTUAL AND PROCEDURAL BACKGROUND

 

 

On appeal from a summary judgment, we view the facts and inferences reasonably drawn from those facts in the light most favorable to the plaintiff. (Crouse v. Brobeck Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1520.)

 

The essential facts are undisputed. On July 26, 2002, Roberta Connell was riding in a car driven by her husband Wilfred August Connell. While heading southbound on State Route 70 in Yuba County, their car collided with a 1987 GMC truck driven by Bhajan, causing Roberta Connell fatal injuries.

 

Bhajan and his brother Mohan are self-employed peach and prune farmers who owned a forklift and two trucks, which they used to load and haul their own peaches to the weigh station. Bhajan operated one of the trucks, which he was driving at the time of the accident.

 

AAGH Farms is a nearby peach farm owned by four individuals including Avtar Judge and defendant Amrik Dosanjh. AAGH Farms did not own any trucks or a forklift, so in July 2000, Judge went to the Aujlas’ farm and asked Mohan if he and Bhajan would haul his peaches to the weigh station until AAGH Farms was able to buy its own equipment. As a neighborly gesture, the Aujlas entered into an oral agreement to haul AAGH Farm peaches during the two-month harvest season.

 

AAGH Farms paid the Aujlas three or four dollars for each ton of peaches hauled. It did not withhold any taxes for the Aujlas, make any social security payments on their behalf, or pay them compensation for gasoline costs or mileage.

 

AAGH Farms did not supervise the Aujlas while they were loading the peaches onto their trucks and did not control whom they employed or used to do their work. AAGH Farms’ only concern was that its peaches were hauled to the weigh station by closing time at 5:00 p.m. Judge directed the Aujlas to take State Route 70 from AAGH Farms to the weigh station as it was the only road from his farm to the station.

 

During the harvest season, Judge went to the Aujlas’ farm and advised them he was going to harvest his peaches and that they should come pick them up. The Aujlas generally picked their peaches before AAGH Farms picked its peaches. Occasionally, however, if AAGH Farm peaches were going to be ready at the same time, the Aujlas would tell Judge to hold off on his harvest so they could finish their work and haul their own peaches first.

 

AAGH Farms harvested its own peaches, loaded them in bins provided by the weigh station, and placed the bins by the road for pick up. Weigh station personnel unloaded the peaches at the station where inspectors graded the fruit. Sometime during the day after the Aujlas had hauled one or more loads for AAGH Farms, someone from AAGH Farms went to the weigh station to ensure that the peaches were delivered and to observe inspection and grading of its peaches.

 

On the date of the accident, Bhajan picked up a load of peaches from AAGH Farms and hauled it to the weigh station. After making the delivery, he headed back to AAGH Farms to pick up a fourth load when he collided with the Connells’ vehicle as he was turning onto State Route 70.

 

Plaintiffs filed a complaint against defendants, the Aujlas, and others for wrongful death, seeking damages for negligence and the creation of a dangerous condition. Their claims against defendants herein are based on the theory that defendants were Bhajan’s employers. After filing their answer, defendants filed a motion for summary judgment, which plaintiffs opposed. The trial court granted the motion finding AAGH Farms hired the Aujla brothers as independent contractors. Judgment was entered in favor of defendants and plaintiffs filed a timely appeal.

 

 

A second cause of action was alleged against AAGH Farms, Hatamiya Farms, Inc., and H.B. Orchard Co., Inc. It is not at issue in this appeal.

 

DISCUSSION

 

A. Standard of Review

 

 

Summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law.  (Code Civ. Proc., §  437c, subd. (c); Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) A defendant seeking summary judgment bears the initial burden of proving the “cause of action has no merit” by showing that one or more elements of the plaintiff’s cause of action cannot be established or there is a complete defense. (Code Civ. Proc., §  437c, subds. (a), (o)(2); Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 213.) Once the defendant’s burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action. (Ibid.)

 

We independently review the trial court’s decision, viewing the evidence in the light most favorable to plaintiffs as the losing party. (Wiener v. Southcoast Childcare Centers, Inc., supra, 32 Cal.4th at p. 1142.) In resolving any evidentiary doubts or ambiguities, we liberally construe plaintiffs’ evidence and strictly construe defendants’ evidence. (Ibid.)

 

 

B. Analysis

 

The general rule is that one who hires an independent contractor is not liable to third parties for the contractor’s negligence. (Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 365; Millsap v. Federal Express Corp.  (1991) 227 Cal.App.3d 425, 430.)

 

Citing Serna v. Pettey Leach Trucking, Inc. (2003) 110 Cal.App.4th 1475 (Serna ), plaintiffs argue there is “a strong public policy which supports a finding that one who uses an unpermitted, unlicensed and unregistered motor carrier to transport his goods on California’s highways should not be permitted to escape liability for injury caused by such an unpermitted, unlicensed and unregistered carrier by characterizing that carrier as an independent contractor.” Plaintiff’s reliance on Serna is misplaced.

 

In Serna, supra, 110 Cal.App.4th 1475, an interstate trucking company (PLT) hired by a poultry farmer to arrange transportation for a load of its poultry, contracted with another carrier, Sky Transportation, Inc. (Sky), to transport the poultry. En route, Sky’s driver negligently collided with and killed a motorcyclist, whose widow sued PLT. Although PLT contended it was not liable because Sky was an independent contractor, the court found liability under a long line of cases beginning with Taylor v. Oakland Scavenger Co. (1941) 17 Cal.2d 594.

 

The court in Serna stated the rule thusly, “the carrier, having undertaken an activity which can be lawfully carried on only under a public franchise or authority and which involves possible danger to the public, is liable to the plaintiffs for harm caused by the negligence of the carrier’s independent contractor.” (Serna, supra, 110 Cal.App.4th at p. 1477.) Were it otherwise, “a carrier could escape liability for the negligence of its independent contractors, thus reducing the incentive for careful supervision and depriving those who are injured of the financial responsibility of those to whom the privilege was granted. For these reasons, the carrier’s duties are nondelegable, and it is only when the carrier is ‘not regulated’ at all that the rule is otherwise.” (Id. at p. 1486.)

 

Clearly, this rule is inapplicable here because AAGH Farms is not a common carrier and plaintiff does not claim otherwise.

 

Next, plaintiffs argue that a triable issue of fact remains as to whether Bhajan was hired as an employee or an independent contractor. That question is generally one of fact. However, when there is only one inference that may be drawn from all the evidence, the question is one of law. (Millsap v. Federal Express Corp., supra, 227 Cal.App.3d at p. 431.) Here the trial court found the only inference to be drawn from the evidence was that the Aujlas were independent contractors. We agree with that finding.

 

“ ‘An “independent contractor” is generally defined as a person who is employed by another to perform work; who pursues an “independent employment or occupation” in performing it; and who follows the employer’s “desires only as to the results of the work, and not as to the means whereby it is to be accomplished.” [Citations.] The most significant factor in determining the existence of an employer-independent contractor relationship is the right to control the manner and means by which the work is to be performed.  [Citations.] “If control may be exercised only as to the result of the work and not the means by which it is accomplished, an independent contractor relationship is established.” [Citations.]’ [Citation.]” (Millsap v. Federal Express Corp., supra, 227 Cal.App.3d at p. 431.)

 

In Clarke v. Hernandez (1947) 79 Cal.App.2d 414 (Clarke ), a case factually similar to the present case, the plaintiffs were injured in a collision when their automobile was rear-ended by a truck driven by Hernandez while he was hauling a load of onions for defendant, a wholesale produce dealer who was unable to haul his own produce. Hernandez was a licensed contract hauler who operated his own trucks. He and the defendant entered into an oral agreement whereby Hernandez was to haul 600 sacks of onions from defendant’s packing shed in Coachella to San Francisco for the agreed-upon compensation of 75 cents per sack. He was told to pick up the onions at a certain farm and given directions to the farm and the delivery destination. He went to the farm, loaded the onions on his truck, and headed towards San Francisco. En route, his truck collided with plaintiff’s automobile.

 

The Court of Appeal found that on these facts there was no other conclusion but that Hernandez was an independent contractor. (Clarke, supra, 79 Cal.App.2d at p. 422.) In so doing, the court reviewed the numerous factors that might be considered in making that determination including “(a) whether or not 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 workman 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.”  (Clarke, supra, at p. 424.)

 

Applying these principles, we find the only reasonable inference raised by the undisputed evidence is that the Aujlas were independent contractors at the time of the collision because defendants did not exercise any control over the manner and means of their work.

 

The Aujlas owned a peach and prune farm. As part of their farming business, they owned and operated their own trucks and equipment to load and haul their produce to the weigh station. Defendants owned a nearby farm, but did not own the trucks or other equipment necessary to haul their produce to market, so Avtar Judge asked the Aujlas whether they would haul AAGH Farms’ produce to the weigh station during the two-month harvest season, which they agreed to do. Defendants paid them for each load of peaches they delivered based on a fixed tonnage fee. Defendants did not withhold any taxes or pay the Aujlas any benefits other than the agreed-upon compensation of three or four dollars a ton. The Aujlas also paid their own gasoline and maintained insurance on their trucks.

 

During the harvest season, the defendants notified the Aujlas when their peaches would be ready for pick up, they harvested their own peaches, put them in bins, and placed the bins on the road. The Aujlas arrived with their trucks and forklift, loaded the bins onto the trucks, and drove the peaches to the weigh station where they were unloaded and graded by station personnel. Defendants did not monitor or supervise the Aujlas’ work. Their only concern was that the peaches were delivered by the end of the day.

 

To overcome the obvious conclusion the Aujlas were independent contractors, plaintiffs argue that a presumption exists, which creates a triable issue of fact as to whether Bhajan was an employee. They reason that as an independent contractor of a motor truck, Bhajan would be required to have a motor carrier permit. (Veh.Code, §  34620, subd. (a).) Since he failed to obtain the required permit, he is in violation of those requirements if classified as an independent contractor but not if classified as an employee. Relying on Alford v. Bello (1955) 130 Cal.App.2d 291 (Alford ), they conclude the presumption of innocence (see Evid.Code, §  520) and the maxim “the law has been obeyed” require that we find Bhajan obeyed the law and was therefore an employee. We disagree and find that plaintiffs’ reasoning is flawed and their reliance on Alford is misplaced.

 

 

We question the accuracy of this assumption. The Motor Carrier Permit Act (Veh.Code, §  34600 et seq.) does not distinguish between employees and independent contractors. Rather, it broadly defines a “motor carrier of property” to include “any person who operates any commercial motor vehicle.” (Veh.Code, §  34601, subd. (a).) While the Act distinguishes between “private carriers,” “for-hire motor carriers” (Veh.Code, §  34601, subds.(b) and (d)), and “owner-operators” (Veh.Code, §  34624), all such carriers are subject to the permit requirements. (See Veh.Code, § §  34620, subd. (a), 34623, 34624.) Thus, Bhajan may have been in violation of section 34620 whether he was acting as an employee or independent contractor. Nevertheless, because we dispose of plaintiffs’ argument on other grounds, we need not resolve this issue.

 

In Alford, supra, 130 Cal.App.2d 291, the plaintiff filed an action to recover damages for personal injuries arising out of a highway collision with a truck driven by defendant Bello who was transporting goods for Conrotto. Bello had no certificate or vehicle permit. Conrotto on the other hand, was a highway permit carrier who operated a fleet of trucks. The plaintiff contended Bello was Conrotto’s employee. The reviewing court agreed and held that Bello was presumed to be acting as an employee because if it were otherwise, he would be acting in violation of the Public Utilities Code.

 

The court in Alford reasoned as follows: “It is presumed that a person is innocent of crime or wrong and that the law has been obeyed. [Citation.] The presumptions are evidence and if not controverted the trier of fact is bound to find in accordance with them. [Citation.] Bello was transporting property of others for compensation over a public highway by means of a motor vehicle at the time of the accident … It is presumed that in transporting the property he was innocent of crime and was obeying the law. The presumptions are evidence that he was not acting as an independent contractor since if he were acting as such he would be guilty of a crime. It must then be inferred that he was Conrotto’s employee. No status other than that of employer-employee could have been found under the evidence without disregarding or rebutting the presumption of Bello’s innocence of crime and obedience of the law.” (Id. at pp. 294-295.)

 

We decline to follow Alford, supra, 130 Cal.App.2d 291, for the proposition cited because the court’s discussion of presumptions, which no longer have binding effect (Assem. Com. on Judiciary, com., West’s Ann. Evidence Code (1995 ed.), foll. §  600, p. 3; Civ.Code, §  3509), was dicta. Conrotto, as a common motor carrier subject to state and federal regulations, was liable for Bello’s negligent acts under the common carrier exception discussed ante in Serna v. Pettey Leach Trucking, Inc., supra, 110 Cal .App.4th 1475 and as we concluded, that exception is inapplicable here. Moreover, compliance with the motor carrier permit requirements is a collateral matter, one not pertinent to a determination of Bhajan’s employment status. (Millsap v. Federal Express Corp., supra, 227 Cal.App.3d at p. 431; Clarke v. Hernandez, supra, 79 Cal.App.2d at p. 424.) For these reasons, we find the trial court properly granted defendant’s motion for summary judgment.

 

 

DISPOSITION

 

The judgment is affirmed. Defendants are awarded their costs on appeal.  (Cal. Rules of Court, rule 27(a)(1).)

 

We concur: SIMS and BUTZ, JJ.

Cal.App. 3 Dist.,2006.

Sickle v. Dosanjh

 

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