Not that Special

Moreci v. Scaffold Solutions, Inc., No. A161193 (D1d2 Oct. 18, 2021)

A Plumber was injured when he fell from a construction scaffold. He sued ScaffCo. They settled. Under the terms of the settlement Plumber agreed to assume ScaffCo's defenses for any claims arising from the accident. Plumber’s employer Workers’ Comp Carrier—which had paid Plumber about $240k in benefits—intervened and crossclaimed against ScaffCo and one of the other contractors on the job site. The underlying case between Plumber and ScaffCo was dismissed. Subsequently, Plumber’s Lawyers associate in to defend ScaffCo in its litigation against WCC. 

WCC moves to disqualify Plumber’s Lawyers from repping ScaffCo. It argues that Plumber’s Lawyers can’t be allowed to switch sides like that. Substantively, that might be correct. But the problem with the argument is that to have standing to DQ a lawyer, you generally need to be a current or former client of that lawyer. Which WCC was not. So the trial court denied the motion. WCC appealed.

The Court of Appeal notes a split of authority regarding standing to bring a DQ. Under the so-called “majority rule,” only a client has standing. But under a “minority rule”—which appears to have developed largely in cases with very messy fact patterns—a non-client can have standing, but only if the attorney owed the non-client some kind of duty of confidentiality.

WCC tried to glom onto some of the language in a federal minority rule case that suggested that having a “personal stake” in a conflicted representation is enough to afford standing. According to WCC, it had such a stake because Plumber’s Lawyers have an advantage given all they know from representing Plumber. But the language from that case was discussing Article III notions. And it ultimately held that the movant lacked standing because the lawyer it sought to DQ didn’t owe the movant any duties and that neither a “broad interest in the administration of justice” nor a “tactical interest” that a failure to DQ will “increase [the opposing party’s] chances of losing this lawsuit” were adequate to convey standing. 

WCC also tried to argue that its relationship as Plumber’s Employer’s Workers Comp Insurer created some kind of special relationship that would give rise to standing. The discussion involves a bunch of substantive issues regarding workers’ comp law that are way out of my lane as a civ pro blogger. But at the end of the day, the Court of Appeal finds that the substantive law does not so closely align the interests of employer, employee, and insurer to create some kind of special or privy relationship that would permit them to raise each others’ rights. 

Affirmed.

Who decides who decides?

Hollingsworth v. Superior Court, No. B297658 (D2d4 Jul. 24, 2019)

If you get hurt at work, workers’ compensation is generally your exclusive remedy. But there are exceptions, which can take your claim out of the workers’ comp. administrative system and let you file in superior court. At some point, however, somebody needs to decide which system you should be in. California courts have generally held that both the Workers’ Compensation Appeal Board and superior courts have jurisdiction to, at minimum, decide the threshold question of whether they have jurisdiction to entertain the claim. But who decides when there are cases in both fora? The Court of Appeal here holds that whichever forum first took up jurisdiction over the issue should be the one to decide. Here, that was the superior court.

Writ granted.

Tall Trees + Unlicensed Gardener = Homeower Liability

Jones v. Sorenson, No. C084870 (D3 Aug. 2, 2018)

As a homeowner, this case scares the crap out of me. 

Homeowner hired a gardener to trim some trees. Gardener then hired plaintiff as a helper. Plaintiff fell off a ladder and got hurt. Plaintiff sued homeowner, on the theory that gardener’s negligence caused her injury, and that homeowner was on the hook under respondeat superior. 

Generally, an injured employee’s only recourse is to workers’ compensation. But if the employer doesn’t have workers’ comp coverage, the employee can sue in tort for negligence. And where a contractor needs to be licensed to perform the work entailed, a person who hires an unlicensed contractor can be subject to liability as a co-employer. 

So the question is whether, in this case, a contractor’s license was required. Under the applicable statute, anyone who trims trees is a contractor. But there are exceptions for: (a) someone “performing the activities of a nurseryperson,” and (b) for “gardeners” engaged in “incidental pruning” of trees under 15 feet tall. The gardener exception doesn’t apply, because the tree was more than 15 feet tall. And the nurseryperson exception doesn’t apply, because (as the Court reads the statutory scheme) that applies to a licensed nursery operator engaged in cultivating plants. The gardener here doesn’t meet that description. 

So the trial court erred in granting summary judgment to the homeowner. 

Reversed.

No Interlocutory Appeals from WC ALJ Orders

Capital Builders Hardware, Inc. v. Workers' Compensation Appeal Bd., No. B271987 (D2d2 Nov. 16, 2016)

The court here holds that interlocutory orders of Worker’s Compensation ALJs aren’t appealable. They are not appealable to the Worker’s Comp. Appeal Board. And they are not appealable from there to the Court of Appeal. So the writ of review is vacated. In reaching this result, the court parts ways with Alvarez v. Workers’ Comp. Appeals Bd., 187, Cal. App. 4th 575 (2010), which suggests that at least some kinds of orders might be subject to interlocutory review.

Vacated.

Workers' Comp. Court Can't Peek for Privilege

Regents of the Univ. of Cal. v. Workers’ Compensation Appeals Bd., No. G048217 (D3 June 17, 2014)

The court here holds that the provisions of the Evidence Code dealing with privilege apply in workers’ comp. appeals. Since § 915 prohibits a presiding officer from ordering the in camera production of materials to see if they are privileged, the WCAB erred in so ordering in this case.

Reversed.