February 18, 2018
Special Set Matters Tentative Rulings
  • Law and Motion Department Tentative Ruling Line:  (650) 261-5019
  • Other Judges' tentatives: please reference the appropriate Case Number and Case Caption below and contact the appropriate department.

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In the Superior Court of the State of California

In and for the County of San Mateo


Law and Motion Calendar

Judge: Honorable JONATHAN E.KARESH

Department 20


400 County Center, Redwood City

Courtroom 8C




If you plan to appear on any case on this calendar,

 you must call (650) 261-5019 before 4:00 p.m. and you must give notice also before 4:00 p.m. to all parties of your intent to appear pursuant to California Rules of Court 3.1308(a)(1).


Case                   Title / Nature of Case


Line: 1

16-CIV-01654   MATTHEW TOERPE, et al. vs. RUDOLPH AND SLETTEN, INC., et al.



MATTHEW TOERPE                         ZACHARIAH D. HANSEN







The Court rules only on those objections to evidence that are material to disposition of the motion. (Code of Civ. Proc. sect. 437c, subd. (q).)


     A.   Defendant’s Objections


1.   Bruce Beevers. Objections 1, 2, 4, and 8a-8c are overruled. The questions are whether Mr. Beevers “agrees” with various statements by another person, not whether he adopts or offers those statements as his own testimony. Therefore, he has personal knowledge of his own belief, and his answers are not legal conclusions.   Objections 3, 5, 6, and 7 are overruled.


2.   Connor Foad. Objection 9 is overruled.


3.   Brian Miller. Objection 10 is sustained; Objection 11 is overruled.


4.   Jimmy Martinez. Objection 12 is overruled


5.   Matthew Toerpe. Objection 13 is overruled.


6.   Gerald Fulghum. For purposes of this motion only, Objections 17 through 40 are sustained. Mr. Fulghum’s testimony pertains to breach of duty and only general principles of an employer, neither of which is an issue in this motion. Rather, the issue for this motion is whether R & S was a special employer of Plaintiff concerning this particular incident. Mr. Fulghum’s testimony on this issue improperly usurps the role of fact-finder. Objections 14, 15, and 16 are overruled.


7.   State Licensing Board Printouts. Objection 41 is sustained.


     B.   Plaintiff’s Objections


Plaintiff’s objection is to Defendant’s Separate Statement, which is not evidence.


     C.   Motion for Summary Judgment/Adjudication.


The motion by Defendant Rudolph and Sletten is GRANTED.


“A ‘special employment’ relationship arises when an employer lends an employee to another employer and relinquishes to the borrowing employer all right of control over the employee's activities. The borrowed employee is ‘“held to have two employers—his original or ‘general’ employer and a second, the ‘special’ employer.” '  In this dual employer situation, the employee is generally limited to a statutory workers' compensation remedy for injuries he receives in the course of his employment with the special employer; he may not bring a separate tort action against either employer.” (Riley v. Southwest Marine, Inc. (1988) 203 Cal.App.3d 1242, 1247–1248.) 


The question whether a special employment relationship exists is generally a question of fact reserved for the jury. “However, if neither the evidence nor inferences are in conflict, then the question of whether an employment relationship exists becomes a question of law which may be resolved by summary judgment.” (Wedeck v. Unocal Corp. (1997) 59 Cal. App. 4th 848, 857.)


          1.   Primary Consideration: Right to Control


The primary consideration is the borrowing employer’s “right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not....” (Wedeck, supra, at 857.) R & S offers evidence of instances when it controlled Plaintiff Toerpe’s work. In short, Southwest told Plaintiff Toerpe that he would be unloading crates, but there was no discussion about equipment or the procedure to perform the work. (UMF 7; Toerpe Depo at 26:17—21, 106:12-17, 106:23-107:10, 111:8-10.) Southwest told Plaintiff Toerpe to report to R & S’s work site, where R & S would instruct him on the work. (UMF 8; Toerpe Depo at 25:1-10, 26:11-16, 106:12—17, 107:23-108:2.)


Plaintiff Toerpe was unfamiliar with using two pallet jacks to move a single object (UMF 11; Toerpe Depo at 47:6-25), and he relied on R & S’s instructions on where to move the crates and by what access point; he received no guidance from Southwest.) (Toerpe Depo at 51:1-7 (without direction of Rudolph & Sletten, “I wouldn’t have known what to do.”) R & S directed Toerpe’s access to the building, the sequence of removing the crates from the truck, and the areas where the crates were to be stored. (UMF 12; Toerpe Depo at 42:11 - 44:16, 122:2 - 123:3, 129:10 – 130:8, 167:25 - 168:22, 170:8 – 20.)


In short, R & S provided direction and instruction on the manner in which Plaintiff Toerpe was to perform his work. There is no evidence that Southwest provided any direction or exercised any control over Plaintiff Toerpe’s activities other than direct him to R & S for information. The only reasonable inference from this evidence is that R & S had the right to control and direct Plaintiff Toerpe’s activities on the job.


Plaintiff Toerpe’s Opposition contends that the right to control is a question of fact, citing Additional Facts 21 through 27. None of those facts addresses the question of right to control the employee’s activities. Fact 21 states only that glass work was outside the scope of R & S’s regular work. Facts 22 through 27 state only that R & S’s superintendent Bruce Beevers subjectively “believed” that Plaintiff Toerpe was not an employee of R & S and that R & S did not control the manner in which Plaintiff Toerpe performed his work. Mr. Beevers’s subjective beliefs are not evidence of whether R & S had a right to control Plaintiff Toerpe’s work activities.


The undisputed facts compel a finding that R & S had the right to control and direct Plaintiff Toerpe’s activities or the manner and method in which the work is performed. Since the primary consideration (right to control) exists in R & S’s favor, a strong showing of the secondary factors must be made in order to create a triable issue of fact.


          2.   Secondary Factors


              a.   Special Employer’s Control beyond mere suggestion

                   of details or cooperation


Southwest told Plaintiff Toerpe that R & S would tell him what work he was supposed to do (UMF 8); R & S directed Plaintiff Toerpe’s access to the building, the sequence of unloading the crates, and the areas where the crates were to be stored (UMF 12); R & S directed traffic as Martinez operated the forklift, situated the pallet jacks to receive the crates, and pushed the crates of glass while Plaintiff Toerpe and Martinez maneuvered the pallet jacks (UMF 13); Plaintiff Toerpe did not know “what to do” without R & S’s direction (UMF 14); The Complaint alleges (i. e., Plaintiff admits) that R & S controlled the details of the work, controlled the construction work in supplying men and materials for the job, violated OSHA provisions for controlling the dangerous situation to which plaintiff was exposed, and was liable to plaintiff as an employer having control over the dangerous situation to which plaintiff was exposed (UMF 18).


OSHA cited R & S for failure to ensure the pallet trucks were not used contrary to the manufacturer’s recommendations based on evidence that R & S directed two employees where to unload the crates, provided the use of the forklift to offload the crates from the trailer, and directed the employees to use the pallet trucks that were in the hallway (UMF 19); Rudolph decided the sequence to remove the crates (Toerpe Depo at 37); R & S supervisors Foad and Dexter Bowerman told Toerpe where the crates would be placed (Foad Depo at 23, 24; D. Bowerman Depo at 38, 40; Martinez Depo at 10.)


Plaintiff Toerpe’s opposing evidence is the testimony of Bruce Beevers. However, the questions asked of Mr. Beevers were whether he “agreed” with various statements written by R & S’s counsel. (See generally Beevers Deposition at 32:23-33:2; 34:1-8; 83-89.) Even if Mr. Beevers’s answer of “no” is construed as his adopting the opposite statement, they would be only conclusions, not statements of fact. Mr. Beevers’s testimony does not support a finding that Plaintiff was not a special employee.


The facts are not disputed. R & S told Plaintiff Toerpe how to do the job and what equipment to use. Plaintiff has presented no evidence that Plaintiff Toerpe performed the work independent of R & S’s directives. This secondary factor weighs in favor of R & S.


              b.   Whether the Employee Is Performing

                   the Special Employer’s Work


In the context of this action, this factor is unclear.  In the Riley, Wedeck, and Santa Cruz Poultry cases, the plaintiff was clearly performing the work of the borrowing employer. In the present case, the crates of glass were for Southwest’s work, which had been subcontracted by Golden State Steel, which had been subcontracted by R & S. On the one hand, R & S is not in the regular business of installing glass. On the other hand, the glass is an integral part of R & S’s construction job. A trier of fact could reach either conclusion. This factor does not weigh in favor or against either party.


              c.   Whether There Was an Agreement, Understanding, or

                   Meeting of the Minds Between the Original

                   and Special Employer.


Neither party has provided evidence of any agreement or understanding between R & S and Southwest. 


              d.   Whether the Employee Acquiesced

                   to the New Work Situation.


“Consent to the special employment relationship is normally implied, by the weight of authority, from acceptance of the special employer's control.” (Santa Cruz Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575, 581–582.) Plaintiff Toerpe agreed to perform the job. He received the assignment, he performed the work, and he never questioned R & S’s direction about how he was to perform the work. Plaintiff Toerpe offers no evidence that he decided to perform the work in a manner different from the way R & S’s employees directed him to work. Plaintiff Toerpe followed the instructions of R & S’s supervisors, implying that he consented to a special employer relationship. This factor weighs in favor of R & S.


              e.   Whether the Original Employer Terminated

                   the Relationship with the Employee.


There is no evidence that Southwest terminated its relationship with Plaintiff Toerpe. Plaintiff Toerpe’s worker’s compensation claim lists Southwest as his employer (PAMF 115; Exhibit 22 at 13; Exhibit 10 at para. 8), as does the prescription card issued to him for medication related to the incident (PAMF 116; Exhibit 22 at 15.) Plaintiff Toerpe was issued a W-2 from Southwest for the work. (PAMF 8.) This factor weighs in Plaintiff Toerpe’s favor.


              f.   Whether the Special Employer Furnished the Tools

                   and Place for Performance.


The place for performance was a courthouse owned by the Judicial Council. But R & S “furnished” the worksite, since R & S was presumably in possession and control of it during the work. The place of performance is not strongly relevant, since Plaintiff Toerpe did not have the option to perform the work at a different location.

Plaintiff Toerpe brought no tools or equipment to the job. The pallet jacks and forklift were all provided by R & S. Plaintiff Toerpe contends that some of the equipment was owned by third parties, but does not deny that R & S directed Plaintiff Toerpe to use them. Further, it is undisputed that neither Plaintiff Toerpe nor Southwest provided any equipment. Plaintiff Toerpe points out that there were more than 12 subcontractors on the site, and workers on a site often use tools belonging to others.


This factor weighs slightly in R & S’s favor.


              g.   Whether the New Employment Was

                   Over a Considerable Length of Time.


Plaintiff Toerpe worked for less than one day, but the job was for only one day. Although one day is a short duration of time, Plaintiff Toerpe was there for most of that time. This factor does not weigh in either party’s favor.


              h.   Whether the Borrowing Employer (R & S) Had

                   the Right to Fire the Employee.


Case law recognizes that the borrowing employer always has the right to remove the worker from the job, but rarely would have the authority to fire the worker from his general employer. This factor does not weigh in either party’s favor.


              i.   Whether the Borrowing Employer Had the Obligation

                   to Pay the Employee.


R & S paid Plaintiff Toerpe only indirectly through Golden State Steel and Southwest. R & S concedes that it did not pay Plaintiff Toerpe and that it did not directly pay him. This factor weighs in Plaintiff Toerpe’s favor. 


          D.   Conclusion.


In the context of special employment, the Court may compare the strength of the nine secondary factors against the primary factor of right to control. (See Wedeck v. Unocal Corp., (1997) 59 Cal. App. 4th 848, 862 (“dispute about Unocal's ability to terminate Wedeck from her employment does not raise a triable issue of material fact, given the strength of the other factors—particularly with respect to Unocal's right to control and direct Wedeck's activities”).) If the primary consideration of right to control outweighs the secondary factors, then special employment exists as a matter of law.


Under the undisputed material facts, R & S had the “right to control and direct the activities of” Plaintiff Toerpe “or the manner and method in which the work is performed, whether exercised or not....” (Wedeck v. Unocal Corp. (1997) 59 Cal. App. 4th 848, 857.) The secondary considerations are mostly in R & S’s favor or neutral. The Court concludes that the secondary factors do not overcome the strength of the primary consideration of R & S’s right to control. As a matter of law, R & S was a special employer of Plaintiff Toerpe at the time of the incident. 


Therefore, the claims of Plaintiffs Matthew Toerpe and Lanae Toerpe against Defendant Rudolph and Sletten have no merit. Defendant is entitled to summary judgment in its favor.







POSTED:  3:00 PM

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