Minish v. Fellowship

Citation154 Cal.Rptr.3d 87,214 Cal.App.4th 437
Decision Date15 May 2013
Docket NumberH035737
CourtCalifornia Court of Appeals
PartiesDiane Marie MINISH, Plaintiff and Appellant, v. HANUMAN FELLOWSHIP et al., Defendants and Respondents.

Attorneys for Plaintiff and Appellant Diane Marie Minish: Law Office of Mitchel J. Ezer, Mitchel J. Ezer, Pacific Palisades.

Attorneys for Defendants and Respondents Hanuman Fellowship et al.: Hayes, Scott, Bonino, Ellingson & McLay, Mark G. Bonino, Burrow & Shimane, Lance Burrow, San Jose.

RUSHING, P.J.

I. Statement of the Case

Plaintiff Diane Marie Minish filed an action against the Hanuman Fellowship (Hanuman), Mount Madonna Institute, and the Mount Madonna Center seeking compensatory and punitive damages for personal injuries and other losses she sustained when she fell off a forklift allegedly due to defendants' negligence. Defendants answered, and as an affirmative defense alleged that plaintiff was covered by workers' compensation which provided her exclusive remedy. Defendants later sought summary judgment on that ground, and plaintiff sought summary adjudication that she was not covered by workers' compensation. The court granted defendants' motion and denied plaintiff's motion. The court applied the doctrine of judicial estoppel to bar plaintiff from claiming that she was not covered by workers' compensation and entered judgment for defendants.

On appeal, plaintiff claims the court erred in applying judicial estoppel and in finding that she was subject to workers' compensation. She further claims the court erred in overruling her hearsay objection to statements contained in documents that the court had judicially noticed.

We reverse the judgment.

II. Standard of Review

Summary judgment is appropriate when all of the papers submitted show there are no triable issues of any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

A defendant may move for summary judgment if the action has no merit. (§ 437c, subd. (a).) A defendant meets the initial burden of showing a cause of action is without merit if the defendant shows that one or more elements of the cause of action cannot be established or, as in this case, there is a complete defense to a cause of action or the complaint. ( Id. subd. (p)(2).) Once the defendant makes such a showing, the burden shifts to the plaintiff to produce evidence demonstrating the existence of a triable issue of material fact. ( Ibid.; Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

On appeal from a summary judgment, our task is to independently determine whether an issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law. ( Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601, 50 Cal.Rptr.2d 431.) We independently review the parties' papers supporting and opposing the motion, using the same method of analysis as the trial court. Essentially, we assume the role of the trial court and apply the same rules and standards.” ( Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373, 105 Cal.Rptr.2d 699.) We apply the same three-step analysis required of the trial court. First, we identify the issues framed by the operative complaint and answer since it is these allegations to which the motion must respond. Second, we determine whether the moving party's showing establishes facts which negate the opponent's claim and justifies a judgment in the moving party's favor. When the moving party makes a prima facie showing, the third and final step is to determine whether the opposition demonstrates the existence of a triable issue of material fact. ( Hamburg v. Wal Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 503, 10 Cal.Rptr.3d 568.)

In performing these steps, we view the evidence in the light most favorable to the party opposing the motion; and we liberally construe the opposing party's evidence, strictly construe the moving party's evidence, and resolve all doubts in favor of the opposing party. ( Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, 74 Cal.Rptr.3d 108, 179 P.3d 905; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143.)

III. Procedural History
A. The Second Amended Complaint and Answer

In her second amended complaint for negligence, plaintiff alleged that she was “at defendants' property” on September 16, 2006. At defendants' direction, she climbed onto the prongs of a forklift, the operator raised the prongs into the air and drove over uneven ground into a hole, and she was thrown off and onto the ground, where she sustained serious injuries. She sought compensatory and punitive damages.1

In their answer, defendants alleged as an affirmative defense that plaintiff's action was barred by the exclusive remedy provisions of the Workers' Compensation Act (the Act). (Lab.Code, §§ 3600, 3602, subd. (a).) 2

B. Defendants' Motion for Summary Judgment

In their motion, defendants claimed the undisputed evidence established that plaintiff was covered by the Act, and therefore she was bound by the exclusive remedy provisions. In particular, defendants asserted that (1) before the accident, Hanuman's Board, under the authority of section 3363.6, had declared its volunteers to be employees for purposes of workers' compensation, and thereafter, Hanuman's workers' compensation policy covered volunteers and employees 3; (2) when plaintiff was injured, she was a covered volunteer/employee; (3) after the accident, plaintiff filed a workers' compensation claim; and (4) plaintiff received substantial workers' compensation benefits.

To establish that Hanuman had converted its volunteers to volunteer/employees for purposes of workers' compensation under section 3363.6, defendants submitted copies of minutes from meetings of the Board of Directors of the Mount Madonna Center, and an excerpt from a meeting on April 21, 1987, that read, “It should be noted that workman's compensation is in effect for all workers and volunteers in case of accidents during work hours.”

To establish that Hanuman's volunteers were covered on the day of the accident, defendants submitted a copy of Hanuman's workers' compensation insurance policy which included a volunteer endorsement.

To establish that plaintiff had filed a workers' compensation claim, defendants submitted (1) a Workers' Compensation Appeals Board (WCAB) form DWC–1 signed by both plaintiff and Robert Thayer, her workers' compensation attorney, in which she stated that she fell ‘at work.’; (2) a “Venue Authorization” form signed by plaintiff authorizing Robert Thayer to file her workers' compensation case at the San Jose WCAB; (3) a “Notice of Application for adjudication of a workers' compensation claim and the “Application,” signed by plaintiff, which described her as a “volunteer” and stated that said she was injured when she “fell at work”; and (4) an additional “Petition for Benefits” to the WCAB filed by Gary C. Nelson, plaintiff's other workers' compensation attorney, which asserted that plaintiff “was injured while volunteering” and alleged that Hanuman was guilty of serious and willful misconduct.4

To establish that plaintiff had received workers' compensation benefits, defendants submitted the declaration of Monte Wilson, defendants' attorney in plaintiff's WCAB case. He asserted that defendants had not contested plaintiff's claim. He further stated that as of September 30, 2008, plaintiff had received $172,589.02 in medical benefits and $78,839.99 in temporary disability benefits from the State Compensation Insurance Fund (the Fund) under defendants' policy.

Finally, to establish that plaintiff was a covered volunteer under the Act, defendant noted (1) the statements in plaintiff's various workers' compensation pleadings to the effect that she was injured while volunteering at work, and (2) the allegations in plaintiff's initial and first amended complaints that she “volunteered” at the Mount Madonna Center on the day of the accident and was injured while doing so. Defendants argued that plaintiff's statements and allegations constituted admissions that she was a covered volunteer. Defendant further argued that plaintiff, having successfully asserted that she was a covered volunteer in her workers' compensation case, should be judicially estopped from asserting in her lawsuit that she was not a covered volunteer.

C. Plaintiff's Opposition

In opposition, plaintiff claimed that the minutes of Hanuman's Board meeting did not satisfy the requirements of section 3363.6 because she was not personally identified by name and declared to be a volunteer/employee. Thus, the Act did not apply.5 Plaintiff further asserted that whether she was a covered volunteer on the day of the accident was a disputed issue of fact. In this regard, she submitted evidence that Hanuman's residents are expected to volunteer their services for a certain number of hours per week, but she was not a resident. She submitted evidence that Hanuman regularly compiled a list of volunteers for its compensation carrier, and Hanuman did not add plaintiff's name to the list until after the accident was reported to its carrier. She submitted her deposition testimony, in which she asserted that she never considered herself a volunteer, certainly not on the day she was injured, and she was unaware that she had ever been considered a volunteer. She...

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104 cases
1 firm's commentaries
  • California Employment Law Notes - May 2013
    • United States
    • Mondaq United States
    • May 19, 2013
    ...were personnel actions and thus subject to the personnel action defense of Labor Code § 3208.3(h)); Minish v. Hanuman Fellowship, 214 Cal. App. 4th 437 (2013) (accident victim who had obtained workers' compensation benefits was not judicially estopped from denying that she was a volunteer/e......
1 books & journal articles
  • Alternative methods of proof
    • United States
    • James Publishing Practical Law Books California Objections
    • March 29, 2023
    ...1412, 235 Cal. Rptr. 165. A judicial admission is binding only in the case in which it is made. Minish v. Hanuman Fellowship (2013) 214 Cal. App. 4th 437, 456, 154 Cal. Rptr. 3d 87. A pleading in a prior case is admissible as an evidentiary admission against the pleader, and the party again......

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