Filed 5/30/14 Rohan v. Rice CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


BRIAN ROHAN,
         Plaintiff and Appellant,
                                                                     A137374
v.
BELLEMARIE RICE, et al.,                                             (Marin County
                                                                     Super. Ct. No. CIV096231)
         Defendants and Respondents.


         Brian Rohan sued Bellemarie Rice and her husband Harry Rice for damages
arising from an automobile accident. The trial court granted the Rices’ motion for
summary judgment on the ground that Rohan’s exclusive remedy is under the workers’
compensation laws. Rohan argues that there were triable issues of material fact to the
contrary. We disagree and affirm the judgment.
                                               I. BACKGROUND
         The accident occurred on May 27, 2008, while Rohan was riding in a car driven
by Ms. Rice. Rohan alleges that he was injured when the car hit a tree. Ms. Rice, who
was 80 years old and then recovering from a stroke, hired Rohan in early April 2008 to
drive her on errands for $12 an hour. Initially, Rohan did all the driving, but later rode
with Ms. Rice while she practiced driving. Ms. Rice would drive the car from her home
to a particular intersection, where Rohan would take over.
         In deposition, Rohan testified that, on the day of the accident, they were stopped at
the top of a hill on the way to the appointed intersection when he asked Ms. Rice to let
him take the wheel because he was concerned about her driving. When he had done this

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once before, Ms. Rice kept driving, told Rohan “you are fired” when he asked to take the
wheel, and then “you are rehired” when she reached the intersection. On the day of the
accident, she again refused to stop driving and said “you are fired.” Rohan stayed in the
car, expecting to be “rehire[d]” when they reached the intersection, but the accident
intervened.
       Rohan was paid every one or two weeks with checks written by Mr. Rice, based
on time slips Rohan submitted showing his hours worked. Rohan endorsed six checks
made payable to him from Mr. Rice, dated April 15, April 30, May 5, May 13, May 21,
and May 26, 2008, totaling $952. Rohan did not retain copies of the time slips, and the
Rices produced slips only for hours billed from April 7 to 12, and from May 13 to 25.
Mr. Rice said that he did not keep a file for the time slips, and that he may not have found
all of them.
       Rohan asserted three causes of action against the Rices based upon provisions of
the workers’ compensation statutes, and a common law negligence cause of action
against Ms. Rice.1 In response to the Rices’s motion for summary judgment, Rohan
abandoned his statutory causes of action, and thereby deleted Mr. Rice as a defendant.
Ms. Rice challenged the negligence claim on the ground that relief afforded by the
workers’ compensation scheme was Rohan’s exclusive remedy. Rohan opposed
summary judgment on the negligence count, arguing primarily that there were triable
issues of fact as to whether the accident occurred in the course and scope of his
employment, and whether he worked sufficient hours to qualify as an employee. The
trial court rejected these arguments, and granted the summary judgment motion. We
dismissed Rohan’s purported appeal from the nonappealable order on the motion, but
reinstated the appeal after judgment for the Rices was entered in the trial court.


       1
        The workers compensation causes of action in the first amended complaint were
captioned to be against “all Defendants,” and the negligence count was captioned to be
against “all Defendant Bellemarie Rice.” Inclusion of the word “all” in the negligence
count appears to have been a typographical error because there are no facts or allegations
suggesting any negligence on the part of Mr. Rice.

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                                     II. DISCUSSION
       “The rules of review [of a summary judgment] are well established. If no triable
issue as to any material fact exists, the defendant is entitled to judgment as a matter of
law. [Citations.] In ruling on the motion, the court must view the evidence in the light
most favorable to the opposing party. [Citation.] We review the record and the
determination of the trial court de novo. [Citations.]” (Shin v. Ahn (2007) 42 Cal.4th
482, 499.)
       Rohan argues that the evidence did not conclusively establish that he worked 52
hours for Ms. Rice in the 90 days preceding the accident as required for him to qualify as
the Rices’ employee under Labor Code section 3352, subdivision (h).2 However, he
admitted in his deposition that he endorsed checks payable to him totaling $952, which,
at $12 per hour, represented 79.33 hours of work.
       In opposition to the summary judgment motion, Rohan declared that “[o]n two
occasions that I remember I did cash checks in my name for defendant Rice so that she
could have cash.” Mr. Rice testified that it was his practice to make checks payable to
Ms. Rice when he gave her money, and it is not apparent why he would have written
checks to Rohan if they were intended for Ms. Rice. There is no evidence that Rohan ran
errands for the Rices, such as going to the bank. Rohan also did not claim to have cashed
checks for Ms. Rice when he was questioned at some length at his deposition about
whether he disputed receiving $952 for his services. It did not occur to him at that time
       2
        Labor Code section 3351, subdivision (d) states that, “[e]xcept as provided in
subdivision (h) of Section 3352,” employees eligible for workers’ compensation benefits
include “any person employed by the owner or occupant of a residential dwelling whose
duties are incidental to the ownership, maintenance or use of the dwelling, including the
care and supervision of children, or whose duties are personal and not in the course of the
trade, business, profession, or occupation of the owner or occupant.”
        Labor Code section 3352, subdivision (h) excludes as eligible employees “[a]ny
person defined in subdivision (d) of Section 3351 who was employed by the employer to
be held liable for less than 52 hours during the 90 calendar days immediately preceding
the date of the injury . . . or who earned less than one hundred dollars ($100) in wages
from the employer during the 90 calendar days immediately preceding the date of the
injury . . . .”

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to mention that two of the $952 in checks payable to him were actually for Ms. Rice’s
benefit. It also did not occur to him to mention cashing checks for Ms. Rice when he
testified that he always cashed rather than deposited the checks he earned “to make sure
they were good.” Under the circumstances, Rohan’s belated recollection of cashing
checks for Ms. Rice was insufficient to overcome his deposition testimony and make the
number of hours he worked a triable issue. (See Scalf v. D.B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1522 [sworn testimony of party opposing summary judgment
controls over inconsistent declaration].)
       Rohan argues that he was not employed by Ms. Rice at the time of the accident
because she fired him just before it occurred. However, his first amended complaint
repeatedly alleged an employment relationship existed when he was injured. Paragraph 7
stated: “On or about May 27, 2008, Plaintiff was a part time driver for the defendants
working for the Defendants at the time of the subject incident. (Italics added.) Paragraph
8 stated: “On or about May 27, 2008, while Plaintiff was working for the Defendant,
Defendant BELLEMARIE RICE drove her car into a fixed, stationary object. The force
of the impact seriously injured Plaintiff.” (Italics added.) Paragraphs 18 and 26 alleged
that Rohan’s injuries were suffered “during the scope of his employment.” Paragraph 13
stated: “Alternatively, Plaintiff pleads that he was acting outside the course and scope of
his employment at the time of the incident. Plaintiff was employed as a driver for
Defendants. However, just prior to the incident, Defendant, BELLEMARIE RICE,
requested that Plaintiff move to the passenger side of the automobile so she may drive the
vehicle.” (Italics added.)3 Moreover, Rohan admitted the undisputed fact proffered by
the Rices in support of their motion that “[a]t the time of the accident, the parties ha[d] an
oral contract for plaintiff to work as a driver for defendant Bellemarie Rice.”

       3
        Rohan argued in the trial court that he was not injured in the scope of his
employment because he was hired to be Ms. Rice’s driver, not to help her practice
driving. As he put it in his points and authorities in opposition to the motion for
summary judgment, he was “forced to be a stroke victim driver trainer,” a role for which
he had no training or experience. Rohan prudently does not renew this line of argument
on appeal.

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       These judicial admissions precluded Rohan from claiming that he was fired before
the accident. “In summary judgment or summary adjudication proceedings ‘[a]dmissions
of material facts made in an opposing party’s pleadings are binding on that party as
“judicial admissions.” They are conclusive concessions of the truth of these matters, are
effectively removed as issues from the litigation, and may not be contradicted by the
party whose pleadings are used against him or her.’ ” (St. Paul Mercury Insurance Co. v.
Frontier Pacific Insurance Co. (2003) 111 Cal.App.4th 1234, 1248.) “ ‘Under the
doctrine of “conclusiveness of pleadings,” a pleader is bound by well pleaded material
allegations or by failure to deny well pleaded material allegations . . . . ’ . . . [¶] The law
on this topic is well settled by venerable authority. Because an admission in the
pleadings forbids the consideration of contrary evidence, any discussion of such evidence
is irrelevant and immaterial.” (Valerio v. Andrew Youngquist Construction (2002) 103
Cal.App.4th 1264, 1271.)
                                     III. DISPOSITION
       The judgment is affirmed.



                                                    _________________________
                                                    Siggins, J.


We concur:


_________________________
Pollak, Acting P.J.


_________________________
Jenkins, J.




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