Dennis Tegard vs The Westmont College Foundation et al

Case Number

20CV01626

Case Type

Hearing Date / Time

Fri, 06/27/2025 - 10:00

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

Defendants’ motion for summary judgment or, alternatively, for summary adjudication, is denied.

Background:

On April 9, 2020, plaintiff Dennis Tegard filed an action in the Santa Barbara Superior Court (the employment action) against defendants Westmont College (Westmont), William Boyd, and Christopher Maes. In this action, plaintiff alleges that he started working for Westmont as a security officer in November 2017, that Westmont was his employer, and that Boyd and Maes were supervisory level employees at Westmont. (Complaint for Damages, ¶¶ 3, 4, 5, 6, 13, 14.) Plaintiff asserts several employment-related claims in this case, including claims under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), the Labor Code, and common law.

Meanwhile, plaintiff also filed a separate action against the same defendants (Westmont, Boyd and Maes) and other parties in the Ventura County Superior Court, case number 56-2020-00546546-CU-PO-VTA, for negligence/premises liability (the personal injury action). Plaintiff alleges in the personal injury action that on December 14, 2018, while working on Westmont’s premises, he fell on an unlit and unmarked stair. (Exh. 1 to defendants’ lodgment of exhibits [plaintiff’s first amended complaint (FAC) in the personal injury action], ¶ 32.) Plaintiff asserts two causes of action for negligence in the personal injury action. The first cause of action is asserted against Security Patrol Company, Boyd, Maes, and Robert Andrew Inglis, all of whom plaintiff alleges were his employers at the time. (Id., ¶ 10.) Plaintiff alleges these defendants “failed to secure the payment of compensation in one or more of the ways specified in [] Labor Code section 3700.” (Id., ¶ 43.) Plaintiff alleges in the second negligence cause of action against Westmont that he was a “guest, customer and/or invitee on the premises when he unwittingly stepped off an unmarked, unlit stair, causing [him] to fall . . .” (Id., ¶ 50.)

On January 12, 2023, this Court granted defendants’ motion to transfer the personal injury action to this Court, and consolidated both the employment and personal injury actions for all purposes. The employment action was designated the lead case.

Defendants now move for summary judgment, or alternatively, for summary adjudication, as to the negligence claims asserted in the personal injury action, contending that the action is barred by the exclusivity provisions of the workers’ compensation law. In doing so, defendants argue that plaintiff has admitted in the complaint filed in the employment action that he was at all times an employee of Westmont, and that he was injured in the course and scope of his employment. These admissions, defendants contend, are binding upon plaintiff and bar his personal injury action claims.   

Plaintiff has filed two separate oppositions to the motion. One such opposition was filed by his counsel who initiated the employment action (employment action counsel). The other was filed by plaintiff’s counsel in the personal injury action (personal injury counsel). While the filing of two separate oppositions is generally not authorized, the Court exercises its discretion to consider both sets of opposition papers here in view of the strong policy favoring the disposition of cases on the merits, and defendants not having established prejudice as a result of the two oppositions. (Juarez v. Wash Depot Holdings, Inc. (2018) 24 Cal.App.5th 1197, 1202.)

Analysis:

(1)       The General Principles Which Govern Motions for Summary Judgment/Adjudication

A defendant moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law. (Simmons v. Superior Court (2016) 7 Cal.App.5th 1113, 1124; Code Civ. Proc., § 437c, subd. (c).)

Initially, the defendant has the burden to show, as to each claim, that one or more elements of the cause of action cannot be established or that there is a complete defense to that action. (§ 437c, subd. (p)(2); Doe v. Good Samaritan Hospital (2018) 23 Cal.App.5th 653, 661.) If the defendant makes the required showing, the burden shifts to the plaintiff to make a prima facie showing that there exists a triable issue of material fact. (Simmons, supra, at p. 1124.)

When reviewing the record, the moving party’s evidence is strictly construed, while the opposing party’s evidence is liberally construed. (A-H Plating, Inc. v. American National Fire Ins. Co. (1997) 57 Cal.App.4th 427, 434.)

(2)       Defendants’ Notice of Motion Sufficiently Seeks the Specific Order or Judgment Sought.

Plaintiff argues that “[d]efendants do not in their notice of motion identify the specific cause or causes of action, or affirmative defenses, to be adjudicated.” (Employment Counsel Opposition, p. 5.) The Court disagrees. Defendants’ notice specifically states that defendants “move this Court for summary judgment/adjudication” with respect to plaintiff’s “negligence claim.” (Notice, pp. 1-2.)  This is sufficient to put plaintiff on notice that a particular claim, i.e., his negligence claim against defendants, might be summarily adjudicated. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1546.) In fact, the FAC in the personal injury action contains only a negligence cause of action against each of the defendants.  

(3)       The Parties’ Respective Evidentiary Objections and Plaintiff’s Request for Judicial Notice

Plaintiff’s evidentiary objections to defendants’ evidence are overruled. The evidence cited by defendants (defendants’ answer to the FAC in the personal injury action, seventh affirmative defense) is not offered to establish that the exclusivity provisions of the workers’ compensation laws do in fact apply and bar plaintiff’s negligence claim against them. Rather, the evidence is offered to show that defendants have raised the exclusivity provisions of the workers’ compensation laws as an affirmative defense. The pleadings play a key role in a summary judgment motion and set the boundaries of the issues to be resolved at summary judgment. (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.4th 438, 444.)

Defendants’ objection 1 which relates to a copy of a work order for lighting at the location where plaintiff was injured is sustained on the basis that the evidence is irrelevant to any issue presented in defendants’ instant motion.

Defendants’ objection 2 is overruled. Plaintiff’s exhibit 7 (California Secretary State, Statement of Information for Security Patrol Company) is relevant to his claims against defendant Maes, and is a document of which a court can properly take judicial notice (Elmore v. Oak Valley Hospital Dist. (1988) 204 Cal.App.3d 716, 722.)

 

(4)       Plaintiff’s Allegations in the Employment Action Do Not Bar His Personal Injury Action.

Defendants argue that plaintiff has “admitted” in the employment action that he was a special employee of Westmont, and that the exclusivity provisions of the workers’ compensation law therefore bar his personal injury action against both Westmont and co-defendants Boyd and Maes.

The Court finds that defendants fail to meet their burden in showing that plaintiff’s allegations in the employment action bar his personal injury action pursuant to the exclusivity provisions of the workers’ compensation law. While defendants argue that plaintiff’s admissions in the employment action are binding upon him in the personal injury action, they initially fail to offer a legal basis or theory which supports their position in their moving papers. They do assert in their reply that plaintiff’s personal injury action is barred by the doctrine of judicial admissions.

The doctrine of judicial admissions does not bar plaintiff’s personal injury action. A related doctrine, the doctrine of judicial estoppel, although not expressly asserted by defendants in their motion but which can be implied in their arguments, is likewise inapplicable.

1. Doctrine of Judicial Admissions

“A defendant moving for summary judgment may rely on the allegations contained in the plaintiff’s complaint, which constitute judicial admissions. As such they are conclusive concessions of the truth of a matter and have the effect of removing it from the issues.” (Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425, 1433.) “ ‘While inconsistent theories of recovery are permitted [citation], a pleader cannot blow hot and cold as to the facts positively stated.’ ”  (Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 146.)

On the other hand, a mere conclusion, or a “mixed factual-legal conclusion” in a complaint, is not considered a binding judicial admission. (Bahan v. Kurland (1979) 98 Cal.App.3d 808, 812.) Judicial admissions involve facts, not legal theories or conclusions. (Stroud v. Tunzi (2008) 160 Cal.App.4th 377, 384.)

The requirements for establishing a judicial admission are not present here. Plaintiff’s allegations in the employment action to the effect that he was an employee of Westmont at the time of the incident do not constitute evidentiary facts but rather are legal conclusions or “mixed factual-legal conclusions.” (Bahan v. Kurland, supra, 98 Cal.App.3d at p. 812.) Plaintiff may allege inconsistent theories of liability on defendants’ part. (Steiner v. Rowley (1950) 35 Cal.2d 713, 720.) The pleading of one theory of recovery does not exclude another theory, even if the two are inconsistent. (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1403.)

Moreover, “a judicial admission is ordinarily a factual allegation by one party that is admitted by the opposing party.” (Barsegian v. Kessler & Kessler (2013) 215 Cal.App.4th 446, 452.) “A judicial admission is ... conclusive both as to the admitting party and as to that party’s opponent. ... Thus, if a factual allegation is treated as a judicial admission, then neither party may attempt to contradict it—the admitted fact is effectively conceded by both sides.” (Barsegian, 215 Cal.App.4th at p. 452.) While defendants now state in their reply that “[t]here is no question of fact regarding whether a special employer-employee relationship existed” between Westmont and plaintiff (Reply, p. 4), Westmont, in responses to written discovery, has disputed that plaintiff was ever an employee (either direct or special). (Exh. 1 to declaration of Leonidas Nicol in support of plaintiff’s opposition [Westmont’s responses to plaintiff’s special interrogatories, set one].) Indeed, defendants acknowledge in their response to the additional material facts submitted by personal injury counsel that they “have denied plaintiff was a direct employee of Westmont.” (Defendants’ Response to Plaintiff’s Separate Statement, response to additional facts 29, 33, 41, 43, 45.) Any concession defendants make in their reply to the effect that Westmont was a “borrowing employer” which “exercised control and direction over plaintiff’s services as a security guard” (Reply, p. 3, capitalization altered) is neither evidence (because they are not under oath or verified) nor a judicial admission that necessarily serves to retract defendants’ discovery responses.  (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App4th 735, 747; Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1224, fn. 2.)

Accordingly, plaintiff’s allegations concerning an employment relationship in the employment action do not constitute binding judicial admissions. Summary judgment or summary adjudication is therefore not proper as defendants otherwise fail to meet their burden in showing that plaintiff was an employee of defendants at the time of the incident for purposes of the workers’ compensation laws.

2. Doctrine of Judicial Estoppel

Defendants do not expressly raise the doctrine of judicial estoppel as a basis for seeking summary judgment or summary adjudication in their motion. Nonetheless, the Court addresses this theory to the extent that it can be implied in defendant’s arguments.

The doctrine of judicial estoppel, sometimes called the doctrine of preclusion of inconsistent positions, precludes a party from obtaining an advantage by asserting one position, and then seeking a second advantage by asserting an incompatible position. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181.) The doctrine serves to prevent a party from changing its position over the course of judicial proceedings when such positional changes have an adverse impact on the judicial process. (Jackson, supra, at p. 1818.) The policies underlying the doctrine are general considerations of the orderly administration of justice and regard for the dignity of judicial proceedings. (Ibid.) Judicial estoppel is intended to protect against a litigant playing fast and loose with the courts. (Ibid.) “ ‘It seems patently wrong to allow a person to abuse the judicial process by first [advocating] one position, and later, if it becomes beneficial, to assert the opposite.’ [Citation.]” (Jackson, supra, at p. 181.)

However, “numerous decisions have made clear that judicial estoppel is an equitable doctrine, and its application, even where all necessary elements are present, is discretionary.” (MW Erectors, Inc. v. Niederhauser Ornamental and Metal Works Co. (2005) 36 Cal.4th 412, 422.) Moreover, because judicial estoppel is an extraordinary and equitable remedy that can impinge on the truth-seeking function of the court and produce harsh consequences, it must be “applied with caution and limited to egregious circumstances” (Jogani v. Jogani (2006) 141 Cal.App.4th 158, 170), that is, “ ‘ “when a party's inconsistent behavior will otherwise result in a miscarriage of justice.” ’ ” (Daar & Newman v. VRL International (2005) 129 Cal.App.4th 482, 491.)

“The doctrine applies when ‘(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’ [Citation.]” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986–987; accord, MW Erectors, supra, 36 Cal.4th at p. 422.)

Here, plaintiff’s employment and personal injury actions were ordered consolidated for all purposes, thereby merging them into a single proceeding which will result in only one verdict or set of findings and one judgment. (Sanchez v. Superior Court (Martinez) (1988) 203 Cal.App.3d 1391, 1396.) This is not a case where plaintiff has successfully asserted one position and then taken an inconsistent position in the same or different proceedings. The doctrine of judicial admissions does not preclude plaintiff from asserting alternative theories in this consolidated case.