The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 29)
Defendant John Bean Technologies Corporation ("JBT") moves for summary judgment on Plaintiffs' first cause of action for negligence, contending that Plaintiff's negligence claim is subject to and precluded by the exclusive remedy provision of California Labor Code §§ 3600 and 3602. Claiming that he is an independent contractor, Plaintiff*fn1 argues that the exclusive remedy provision does not apply to him. Having reviewed the parties' briefs and applicable law, this Court now grants Defendant's motion for summary judgment.
From 2007 through 2010, Plaintiff Pedro Ybarra worked as a temporary employee in JBT's FoodTech facility in Madera, California, for periods of approximately nine months, 5 months, three months, and one week. Randstad North America, L.P., doing business as Placement Pros, secured Plaintiff's positions pursuant to Temporary Services Agreements with JBT. A Temporary Services Agreement for the period of April 1, 2009 through November 2, 2010, was in effect on the date of the incident in which Plaintiff alleges that he was injured. Plaintiff was working on JBT's premises when he was injured.
Placement Pros initially evaluated Plaintiff's skills. Placement Pros agreed to "furnish to placements the location and name of the person to whom to report," "direct the placements to perform their duties under the supervision and control of JBT's designated supervisors," and "direct placements to comply with all applicable rules, regulations, policies and procedures including but not limited to fire protection, safety and security." JBT paid Plaintiff's compensation plus a fee to Placement Pros, which then calculated withholding amounts and prepared Plaintiff's paycheck.
The agreement provided that JBT would "furnish a safe and appropriate place to work" "provide all safety equipment and supplies with the exception of safety shoes," and "furnish supervision, equipment, machinery, tools, materials and supplies necessary for the performance of the work." JBT took "full responsibility for the safety of its work, including supervision and performance of all its employees engaged therein." The agreement specified that Placement Pros would obtain workers' compensation insurance to cover workers placed at JBT, with JBT named as an additional insured.
If Plaintiff required any training, JBT provided it. Plaintiff attended safety meetings with regular JBT employees. Like other JBT employees, Plaintiff sometimes used tools provided by JBT and sometimes used his own tools.
At JBT, Plaintiff worked as a general laborer, which he described a being a general helper who went where he was needed. He was initially assigned to the machine shop to deburr machine parts, and later worked in assembly and installation. Plaintiff's work, helping assemble JBT cookers, was part of JBT's regular business. Various JBT employees assigned Plaintiff work and directed his activities; other regular JBT employees could ask Plaintiff for help. Plaintiff testified that JBT controlled and directed his activities while he worked there.
Plaintiff testified that, in the pipe shop, he was primarily supervised by Mike, the lead man, and George, Plaintiff's work buddy. The lead man assigned work to Plaintiff and determined whether Plaintiff would work on his assigned task or be pulled off to do another job. Plaintiff reported to his work buddy, who confirmed Plaintiff's work and directed him to do it over, if necessary. Plaintiff testified that he received "less supervision" from Sergio, who he described as "the actual person in the pipe shop."
Summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." F.R.Civ.P. 56(c)(2); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of establishing the basis of its motion and of identifying the portions of the declarations, pleadings, and discovery that demonstrate absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is material if it could affect the outcome of the suit under applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003). A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson, 477 U.S. at 248; Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).
When the moving party will have the burden of proof on an issue at trial, it must demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun, 509 F.3d at 984. When the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or merely by pointing out that no evidence supports an essential element of the non-moving party's claim. See Soremekun, 509 F.3d at 984; Nissan Fire and Marine Ins. Co. v. Fritz Cos., Inc., 210 F.3d 1099, 1105-06 (9th Cir. 2000). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine, 210 F.3d at 1102-03. If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. Id. at1103. The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir.) (quoting F.R.Civ.P. 56(e)), cert. denied, 129 S.Ct. 174 (2008).
The evidence of the opposing party must be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson, 477 U.S. at 255; Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, 1065 (9th Cir. 2003). Nonetheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Sanders v. City of Fresno, 551 F.Supp.2d 1149, 1163 (E.D.Cal. 2008), affirmed, 340 Fed.Appx. 377 (9th Cir. 2009); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D.Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." del Carmen Guadelupe v. Negron Agosto, 299 F.3d 15, 23 (1st Cir. 2002). A court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, even though a court is not required to examine the entire file for evidence establishing a genuine issue of material fact when the opposing party has not set forth the evidence with adequate references. See Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Carmen v. San Francisco Unified School District, 237 F.3d 1026, 1031 (9th Cir. 2001). If the nonmoving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire & Marine, 210 F.3d at 1103.
B. Is Workers' Compensation the Exclusive Remedy Available to Plaintiff?
"Workers' compensation provides the exclusive remedy against an employer for an injury sustained by an employee in the course of employment and compensable under the workers' compensation code." Angelotti v. Walt Disney Co., 192 Cal.App.4th 1394, 1403 (2011). See Cal. Labor Code §§ 3600 and 3602. This means that an injured employee may not bring a tort action against the employer if the conditions for workers' compensation are present. Id. The exclusivity rule is based in the "presumed compensation bargain in which the employer assumes liability for injury or death arising out of and in the course of employment without regard to fault and compensation is relatively swift, in exchange for limitations on the amount of liability." Id., quoting Shoemaker v. Myers, 52 Cal.3d 1, 16 (1990) (internal quotations omitted). The workers' compensation code must be liberally construed to extended benefits to all persons injured in their employment. Cal. Labor Code § 3202.
1. Who is a Special Employee?
Under California's workers' compensation code, an employee is "every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed . . . . ." Cal. Labor Code § 3351. An individual rendering service to another is presumed to be an employee for workers' compensation purposes unless he or she is an independent contractor or is otherwise expressly excluded by the workers' compensation code. Cal. Labor Code §§ 3351 and 3357.
"An employee may have two employers for purposes of workers' compensation." Angelotti, 192 Cal.App.4th at 1403. When an employer sends an employee to perform work for another person or entity, and both have certain powers of control over the employee's work, the employee is said to have an original or general employer and a special employer. Kowalski v. Shell Oil Co., 23 Cal.3d 168, 174 (1979). Both employers must provide workers' compensation benefits, and both are protected by the exclusivity rule. Id. at 175. See also Caso v. Nimrod Productions, Inc., 163 Cal.App.4th 881, 888 (2008).
California courts that have evaluated the status of individuals injured while working as temporary or leased employees have generally found such persons to be special employees, not independent contractors. See, e.g., Angelotti, 192 Cal.App.4th at 1406 ("In our view, the typical use of a loan-out company in the hiring of talent in the entertainment industry does not mitigate the right of control or the other factors indicating the existence of an employment relationship.") To evaluate a worker's status as employee or independent contractor, a court must consider the nature of the work and the parties' overall arrangements in view of the protective purposes of workers' compensation law. S. G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal.3d 341, 353 (1989). Individual aspects of the arrangement cannot be considered mechanically or in isolation since each must be weighed with regard to its interrelationship with the other factors. Id. at 351. A court's analysis must recognize the policy differences between common law distinctions between employers and independent contractors, which sought to define an employer's liability for injuries caused by his employee, and distinctions for purposes of the workers' compensation law, which addresses when an employer should insure injuries to his employees. Borello, 48 Cal.3d at 352.
a. Primary Factor: Control
"The principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the desired result." Angelotti, 192 Cal.App.4th at 1404. See also Kowalski, 23 Cal.3d at 176. This distinction arose at common law to limit an employer's vicarious liability for the misconduct of those who rendered services to him. Borello, 48 Cal. 3d at 350. The employer's supervisory power became a crucial factor since the extent of its right to control the worker's actions was highly relevant to the determination of whether or not the employer ought to be liable for the results of those actions. Id., quoting 1C Larson, The Law of Workers' Compensation, § 43.42 at 8-20 (1986). In workers' compensation law, the degree of the employer's control over the worker remains the decisive test of employee status.
b. Secondary Factor: Right to Discharge
Despite the primacy of the employer's right to control the worker, courts have long found that the control test alone is insufficient to sort out the many variations in working arrangements. A strong secondary factor supporting the finding of an employment relationship is the employer's right to discharge at will without cause. Borello, 48 Cal.3d at 350. Some California courts have questioned the weight given to this factor, however.
[T]hat an alleged special employer can have an employee removed from the job site does not necessarily indicate the existence of a special employment relationship. Anyone who has the employees of an independent contractor working in his premises could, if dissatisfied with an employee, have the employee removed. Yet, the ability to do so would not make the employees of the independent contractor the special employees of the party receiving the services.
Kowalski, 23 Cal.3d at 177 n. 9.
c. Other Secondary Factors
Additional secondary factors are drawn from the Restatement Second of Agency, § 220. Borello, 48 Cal.3d at 351. These factors include whether the worker is engaged in a distinct occupation or business; whether the work is usually done by a specialist without supervision; whether the work requires a specific skill; whether the employer or the worker supplies the instrumentalities, tools, and work place; whether the worker can profit or loss depending on his or her managerial skill; the duration of the work; whether the worker is paid for the time or the job; whether the work is part of the principal's regular business; and whether the parties think they are creating an employment relationship. Angelotti, 192 Cal.App.4th at 1404. Certain factors tend to negate the existence of a special employment relationship: "the worker is skilled and has substantial control over operational details, the worker is not engaged in the borrower's usual business, the worker works only for a brief period of time, does not use the ...