Kivachitsky v. Mashburn

 

 

 

 

 

 

 

 

 

Filed 5/30/13  Kivachitsky v. Mashburn CA1/3

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FIRST
APPELLATE DISTRICT

 

DIVISION
THREE

 

 
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MIHAIL KIVACHITSKY,             Plaintiff and Appellant, v. KARI MASHBURN,             Defendant and Respondent.

A135580         (Contra Costa County       Super. Ct. No. C10-02467)

 

            Plaintiff
Mihail Kivachitsky sued defendant Kari Mashburn for damages due to injuries he
sustained while working on a construction project at her home.  Defendant moved for summary judgment on the
ground that workers’ compensation is plaintiff’s exclusive remedy.  The motion was granted based on a finding
that plaintiff had admitted working sufficient hours on the project to qualify
as a residence employee covered by workers’ compensation insurance.  Because the evidence permits a contrary
finding, we reverse the summary judgment
for defendant.

>I. 
BACKGROUND

            Defendant
employed plaintiff as a handyman in her rental property business, and also
retained him to construct a gazebo at her residence.  On April 21, 2008, plaintiff fell off a
ladder while working on the gazebo and injured his ankle.  Defendant learned of the accident that same
day. 

              Defendant was insured under a homeowner’s
policy issued by Farmers Insurance Group that provided workers’ compensation
insurance coverage for residence employees. 
The policy defined a “residence employee” as “an employee of an insured
who performs duties related to the ownership, maintenance or use of the
residence premises.  This includes
employees who perform similar duties elsewhere for an insured.  This does not include employees while performing
duties related to a business of an insured.” 
(Boldface type omitted.) 
Consistent with Labor Code sections 3351, subdivision (d), and 3352,
subdivision (h),href="#_ftn1" name="_ftnref1"
title="">[1]
the policy specified that residence employees were employees who, during the 90
calendar days immediately preceding the date of an injury, were employed by the
insured for at least 52 hours and earned at least $100 in wages.href="#_ftn2" name="_ftnref2" title="">[2]  The policy required defendant to notify
Farmers immediately upon learning of a residence employee’s injury.  (See Lab. Code, § 5401, subd. (a)
[employer must furnish an injured employee with a claim form and notice of
potential eligibility for workers’ compensation benefits within one working day
of learning of an injury].)

            Defendant
did not notify Farmers of plaintiff’s injury, or notify plaintiff that she had
workers’ compensation insurance. 
Plaintiff did not learn that defendant had insurance until he retained
counsel, and Farmers did not learn of his injury until August 2009.  When Farmers learned of the href="http://www.sandiegohealthdirectory.com/">injury it began
investigating whether plaintiff qualified as a residential employee.

            Farmers
sent plaintiff a letter dated September 14, 2009, with a copy to plaintiff’s
counsel, informing him that it had notice of his injury, was handling his
workers’ compensation claim on behalf of defendant, and was investigating
whether the claim was compensable.  A
workers’ compensation claims form was enclosed, and the letter advised that
plaintiff would be entitled to up to $10,000 of medical treatment when he
completed the form and returned it to defendant.  Plaintiff later received a December 29, 2009,
notice that Farmers was denying him workers’ compensation insurance benefits
because:  “Per LC 3352, you do not meet
the requirements of an employee.  Per LC
5405, you failed to file a Workers’ Compensation claim within the one year
statute allowed.”  (See Lab. Code,
§ 5405 [specifying one-year deadlines to begin seeking benefits, including
one year from the date of injury].)

            Plaintiff
filed suit on April 9, 2010.  His first
amended complaint asserted causes of action for negligence and premises
liability.  Farmers’ representatives
informed plaintiff’s counsel in telephone calls in February 2010 and August
2011 that plaintiff’s workers’ compensation claim was denied because he did not
qualify as a residence employee.

            But
in August 2011, defendant, represented by Farmers’ counsel, filed a motion for
summary judgment on the ground that plaintiff had no civil claims against defendant
because workers’ compensation was his exclusive remedy.  Defendant’s separate statement of undisputed
material facts listed four facts that allegedly justified summary judgment on
the negligence count:  “1.  Plaintiff alleges that he had been employed
by defendant to build a gazebo at her home.” 
“2.  Plaintiff alleges that he
fell and injured himself on April 21, 2008, in the course and scope of his
employment, while attempting to build the gazebo.”  “3. 
Defendant was the named insured on an insurance policy which provides
workers’ compensation for persons employed by defendant to perform work on her
home.”  “4.  Defendant has asserted workers compensation
as plaintiff’s sole and exclusive remedy as an affirmative defense in her
Answer to plaintiff’s complaint.”  In
support of the motion, defendant lodged portions of plaintiff’s deposition when
he was asked, among other things, about the hours he worked on the gazebo in
February, March, and April 2008, during the 90-day period before the
injury.  In response to the summary
judgment motion, plaintiff abandoned his premises liability claim. 

            The
motion for summary judgment was granted in November 2011 because plaintiff had
admitted in his deposition that he “worked on the gazebo for at least five full
eight-hour days and four half days, for an estimated total of 56 hours” during
the 90-day period, more than the 52 hours required to qualify for workers’
compensation.  Judgment was entered for
defendant, and plaintiff moved for a new trial.

            The
new trial motion was supported by plaintiff’s declaration disputing his
purported admission to 56 hours of work on the gazebo during the 90-day
period.  Plaintiff also submitted copies
of a claim he filed with the Workers’ Compensation Appeals Board in November
2011, and Farmers’ February 2012 answer to the compensation claim, filed by
counsel for defendant in this case.

Farmers’ answer in
the workers’ compensation proceeding asserted two affirmative defenses.  Despite having just obtained summary judgment
in this case on the contrary ground, counsel alleged as Farmers’ first defense
that “[p]er Labor Code section 3352, the applicant does not meet the
requirement of an employee as he has worked less than 52 hours within the 90
days preceding the alleged injury date.” 
Farmers’ second defense was that “[p]er Labor Code section 5405, the
applicant is barred from filing an application as the [applicant] failed to
file an application within one year from the date of injury.  The date of injury was 4/21/2008 . . . but
the applicant [sic] was filed on
11/14/2011.”

Farmers opposed
the new trial motion with, among other things, evidence that it had withdrawn
its Labor Code section 3352 defense in the workers’ compensation proceeding.

            The
motion for new trial was denied, and plaintiff has timely appealed from the
judgment against him. 

>II. 
DISCUSSION

A.  Scope of Review

            “The
rules of review [of a summary judgment] are well established.  If no triable issue as to any material fact
exists, the defendant is entitled to a judgment as a matter of law.  [Citations.] 
In ruling on the motion, the court must view the evidence in the light
most favorable to the opposing party. 
[Citation.]  We review the record
and the determination of the trial court de novo.”  (Shin
v. Ahn (2007) 42 Cal.4th 482, 499.)

B.  52 Hours of Work During the
90-Day Period

            The
trial court granted summary judgment in defendant’s favor after it concluded
plaintiff was a residence employee because he worked more than 52 hours on
defendant’s gazebo in the 90 days before his injury.  Plaintiff disputes that he worked 52 hours on
the gazebo in the 90-day period.

            (1)> 
Record

            The
parties supported their positions on summary judgment with declarations, and
excerpts from their depositions.  The
depositions were taken in 2011, around three years after the April 2008
injury.  Plaintiff testified at his
deposition through a Russian interpreter.

            Plaintiff
said that he did not remember how many days he worked on the gazebo before the
accident.  Defendant said that she could
not estimate how many hours plaintiff worked on the gazebo, and plaintiff said
that he did not keep any record of those hours. 
Defendant said that the days plaintiff worked were “variable.”  Some weeks “he worked a couple days,
sometimes he didn’t come to work.” 
Plaintiff was an artist, and defendant recalled him “flying to Florida
to do artwork” during the time he worked on the gazebo.  Plaintiff 
said that he had exhibitions in Florida, and that his art business took
precedence over work on the gazebo. 

            When
the number of days and hours plaintiff worked on the gazebo during February,
March, and April 2008 became the topic of discussion in his deposition, the
following exchanges ensued:  “Q.  So lets go back to February of 2008 when you
were working on the gazebo. [¶] Do you recall, approximately, how many
days out of the week you worked on the gazebo? [¶] A.  There were periods where I would work all
full days for weeks. [¶] Q.  So
there were times when you worked full days, those were eight-hour days?
[¶] A.  Yes.”  Plaintiff admitted that he worked on the
gazebo at least two full days in February, two full days in March, and one full
day in April, for a total of 40 hours based on his agreement that a full day’s
work meant eight hours.

            After
plaintiff admitted the four full days of work in February and March, defense
counsel began asking him about “half days” of work.  Unlike “full days,” which were specified to
be eight hours, the hours in “half days” were never defined or agreed
upon.  Plaintiff said that he worked on
the gazebo at least four half days:  two
in February, one in March, and one in April. 
With respect to the half days in February, plaintiff stated:  “You see our schedule was very flexible.  Because let’s say [defendant] had things to
do or she had company or visitors, then she would tell me to quit working or
stop working on that day.  So it was very
flexible.”  As for the half day in April,
plaintiff explained:  “There were
problems with delivering materials.  So I
showed up to work, there were no supplies, no materials, so I went back.” 

            When
it entered summary judgment, the court found plaintiff worked at least 56 hours
on the gazebo.  Apparently this total
comes from including half days of work as four hours each.  Plaintiff contested such a calculation in his
declaration in support of his motion for new trial, stating:  “As translated into Russian, I understood the
term ‘half days’ to mean partial days—days in which I had spent some time
working for [defendant], but less than a full day.  I did not intend that my answers indicate
that for each estimated half day of work, I had spent at least 4 hours of time
working as a handyman. [¶] Indeed, I specifically recounted to [defense counsel]
one of those partial days that I recalled in or about April of 2008, when I
showed up at [defendant’s residence] to work on the gazebo project, but could
not proceed because the necessary materials had not been delivered to the
site.  On that occasion, there was very
little useful work that I could do, so I left after about an hour.  There were other occasions when I showed up
to work, but was unable to proceed with the gazebo project because it was
raining.  There were also occasions when
[defendant] asked me to cease working because she had visitors, or because she
wanted me to go to another property to work on a different project. [¶]  .
. . [T]he time estimates that I provided in my deposition were only rough
estimates.  They may well have overstated
the time that I actually worked.”

            In
her opposition to the motion for new trial, defendant argued that plaintiff’s
declaration was an improper attempt to alter his deposition testimony.  The court apparently agreed, and also
considered the declaration untimely.  At
the hearing on the new trial motion, the court said that “the information . . .
in the new declaration at least appears on its face to be directed really
towards my findings to undermine what was presented before that was the basis
for my findings.  And the timing of it is
troublesome.  It really is.”

            Plaintiff
argued that the court was required to consider his declaration because his
hours of work on the gazebo were not identified as a material issue of fact
before the court’s tentative ruling on the eve of the hearing on the summary
judgment motion.  Plaintiff argued that
“a tentative ruling issued at 3:30 with a requirement to oppose it by 4:00
o’clock is not due process. . . .  That
was not enough time for [plaintiff] to explain what he said in the deposition,
what it meant, how he understood the questions. 
And so the only opportunity we had to provide that information to the
Court was through this motion for a new trial.” 
The court replied:  “Well, I don’t
want to nitpick here, but the tentative rulings go up at 1:30 the day before.  I’m nitpicking by two hours.  But I think there is opportunity.”

            (2)  Analysis

            Plaintiff
raises two arguments to contest the court’s finding that he worked at least 56
hours on the gazebo in the 90 days before his injury.  He contends first that, when he admitted two
full days of work in February, he was referring not only to work on the gazebo,
but also to work on other projects for defendant that would not count toward
the hours worked as a residence employee. 
He frames the questions and answer on the point as follows:  “Q. . . . I just want to know if you have an
estimate as to how many hours you worked as a handyman in February 2008? . . . Was it more than two days? .
.  So you had at least two days, but
you’re not sure if you had five or more than five? [¶] A.  Yes.” 
(Italics added.)  The problem for
plaintiff is the question he omits to quote before the quoted answer.  The transcript reads:  “Q.  Do
you know if you had at least five days of full days of work in February> for work on the gazebo?
[¶] A.  I’m not sure.
[¶] Q.  Do you know if—so you had at
least two days, but you’re not sure if you had five or more than five?
[¶] A.  Yes.”  (Italics added.)  Given the italicized language, plaintiff’s
admission of at least two days of work cannot reasonably be understood to refer
to anything other than work on the gazebo.

            Plaintiff’s
other contention is that the court erred when it refused to consider his
declaration for a new trial explaining that, at his deposition, he understood
questions about “half days” of work to refer to partial days of work, including
days when he worked less than four hours. 
A party may not oppose summary judgment with a declaration “that
purports to impeach his or her own prior sworn testimony.”  (Scalf
v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522.)  However, plaintiff’s declaration did not
contradict his deposition testimony.  In
plaintiff’s deposition, a “full day” was agreed to refer to eight hours, but a
“half day” was never defined.  Defendant
asserts that “during the deposition it was plaintiff who defined a ‘full day’
as an eight hour day and who used the term ‘half day.’ â€  But the term “half day” was broached by
defense counsel, not plaintiff, and counsel did not pin down the number of
hours understood to be in a “half day.” 
Given that ambiguity, the four half days of work plaintiff admitted did
not necessarily mean 16 hours as the court found, or any particular number of
hours.  Moreover, plaintiff testified
that his half day of work in April consisted of arriving at the job and then
leaving because there were no building materials—an account that supported his
new trial declaration that he equated a half day with any partial day of work.

            Nor
was the court correct when it rejected the declaration as untimely.  By granting summary judgment based on facts
not included in defendant’s separate statement of undisputed facts, the court
disregarded “the Golden Rule of Summary Adjudication:  if it is not set forth in the separate
statement, it does not exist.”  (United
Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.)  While this rule is not inflexible, the party
opposing the motion must, as a matter of due process, be afforded notice of the
facts that are allegedly dispositive and an opportunity to rebut them.  (San
Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308,
316.)  Since plaintiff had no adequate
opportunity before the summary judgment hearing to contest the court’s finding
that he worked 56 hours in the 90 days before his injury, the court should have
entertained his showing in the new trial motion on that issue.

            Viewing
plaintiff’s deposition and new trial declaration in the light most favorable to
his case (Shin v. Ahn, >supra, 42 Cal.4th at p. 499), we
hold that the evidence fails to conclusively establish that plaintiff was a
residential employee who must resort to a workers’ compensation remedy because
he worked on the gazebo for more than 52 hours in the 90 days preceding his
injury.href="#_ftn3" name="_ftnref3" title="">[3]  While plaintiff admitted five full eight-hour
work days (40 hours) during the relevant period, he needed to work an average
of at least three hours a day on the four half days of work he admitted (12
hours) in order to meet the 52-hour threshold for coverage.  He has not admitted doing so, and the
evidence does not compel a conclusion that he did.

>III. 
DISPOSITION

            The
judgment for defendant is reversed. 
Plaintiff is awarded costs on appeal.

 

 

                                                                                    _________________________

                                                                                    Siggins,
J.

 

We concur:

 

_________________________

McGuiness, P.J.

 

 

_________________________

Pollak, J.