Johnson v. Berkofsky-Barret Productions, Inc., BERKOFSKY-BARRET

• Court: California Court of Appeals
• Writing for the Court: KLEIN
• Citation: 211 Cal.App.3d 1067,260 Cal.Rptr. 67
• Decision Date: 26 June 1989
• Docket Number: No. B034124,BERKOFSKY-BARRET
• Parties: Craig JOHNSON, Plaintiff and Appellant, v.PRODUCTIONS, INC., Defendant and Respondent. Civ.

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260 Cal.Rptr. 67 211 Cal.App.3d 1067 Craig JOHNSON, Plaintiff and Appellant,
v.
BERKOFSKY-BARRET PRODUCTIONS, INC., Defendant and Respondent. Civ. No. B034124. Court of Appeal, Second District, Division 3, California. June 26, 1989.

[211 Cal.App.3d 1069]

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B. Daniel Lynch and Tracy A. Naegele, Pasadena, for plaintiff and appellant.

Kern & Wooley and Jo Anna R. Reichel, Los Angeles, for defendant and respondent.

KLEIN, Presiding Justice.

Plaintiff and appellant Craig Johnson (Johnson) appeals the summary judgment entered in favor of defendant and respondent Berkofsky-Barret Productions, Inc. (BBP). ¹

Because the evidence conclusively shows an employment relationship between Johnson and BBP, Johnson is limited to workers' compensation as [211 Cal.App.3d 1070] his sole and exclusive remedy for work related injuries. Therefore, the trial court properly granted summary judgment in favor of BBP.

FACTUAL BACKGROUND ²

Johnson, an actor in television commercials, obtained acting jobs through a company called L'Image. Generally, L'Image directed Johnson to the shooting location of the commercial and advised him how to dress. The commercial production company then paid L'Image for Johnson's acting services and L'Image, in turn, paid Johnson after deducting its percentage fee.

On December 3, 1985, L'Image sent Johnson to the filming of an I.B.M. commercial produced by BBP in Lacy Park in San Marino, California. In answer to an interrogatory Johnson described what happened during one of the takes of the commercial as follows: "The scene was a softball game and I played the pitcher. I was instructed to dive for a grounder, miss it, and ham it up. I dove for a ground ball, landing squarely on my shoulder, causing my injuried [sic]."

On July 16, 1986, Johnson filed a civil complaint for personal injury against BBP. Johnson admitted both in answers to interrogatories and at his deposition the director and assistant director of the commercial had supervised him and instructed him how to perform.

On or about June 25, 1987, Johnson filed a claim with the Worker's Compensation Appeals Board (WCAB) against BBP for injuries arising out of the accident.

BBP filed a motion for summary judgment on February 26, 1988, on the theory Johnson was a "special employee" of BBP and therefore limited to workers' compensation remedies for the personal injuries suffered while filming the commercial. ³

In opposition to the motion for summary judgment, Johnson claimed he was not an employee of L'Image but had hired L'Image as an agent to obtain work for him. He concludes he could not be BBP's "special

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employee" because he had never been an employee of L'Image.

[211 Cal.App.3d 1071] Although the parties have not supplied a reporter's transcript of the hearing on the motion for summary judgment, Johnson contends, and BBP does not dispute, that the trial court found Johnson's workers' compensation claim constituted an admission he was BBP's employee and granted summary judgment on that basis in favor of BBP.

CONTENTIONS

Johnson claims triable issues of material fact exist as to whether he was an employee of BBP.

DISCUSSION

1. Standard of Review.

"Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried. (Code Civ.Proc., § 473c; Lipson v. Superior Court (1982) 31 Cal.3d 362, 374 [182 Cal.Rptr. 629, 644 P.2d 822]....)" (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal.Rptr. 762, 694 P.2d 1134.) Doubt as to the propriety of summary judgment should be resolved against granting the motion. (Slobojan v. Western Travelers Life Ins. Co. (1969) 70 Cal.2d 432, 436-439, 74 Cal.Rptr. 895, 450 P.2d 271.)

Even though the basis of a lower court's ruling be erroneous, it will be affirmed if correct on another proper ground. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, 112 Cal.Rptr. 786, 520 P.2d 10.) Thus, although we do not agree Johnson's act of filing a WCAB claim constitutes an admission of employment barring a civil action, it remains to be determined whether, as a matter of law, Johnson was an employee of BBP.

Where the facts of employment are not disputed, the existence of a covered relationship is a question of law. (S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349, 256 Cal.Rptr. 543, 769 P.2d 399; Laeng v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 771, 783, 100 Cal.Rptr. 377, 494 P.2d 1; Santa Cruz Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575, 584, 239 Cal.Rptr. 578.)

2. "Special employment" not in issue here.

The parties presented the issue in this case to both the trial court and this court as one involving the concept of special employment. In so doing, BBP [211 Cal.App.3d 1072] inadvertently allowed Johnson to raise the red herring of the lack of an employer-employee relationship between himself and L'Image.

However, accepting Johnson's contention that he employed L'Image as true for the purpose of discussion, it does not necessarily follow he cannot be an employee with respect to BBP. That is, Johnson's relationship with L'Image does not control the nature of Johnson's relationship with BBP. ⁴

Thus, we need not focus on the Johnson/L'Image link in the employment chain but must only determine if Johnson is in an employment relationship with BBP.

3. The employee/independent contractor distinction.

Labor Code section 3351 defines an employee as "every person in the service of an employer under any appointment or contract of hire or...