KRIEGLER, J. —
Plaintiff Katherine Jackson, on behalf of herself and as guardian ad litem of Michael Joseph Jackson, Jr., Paris-Michael Katherine Jackson and Prince Michael Jackson II (collectively, the Jacksons), appeals from a judgment in favor of defendants AEG Live, LLC, AEG Live Productions, LLC, Brandon Phillips, and Paul Gongaware (collectively, AEG) in this negligence action in connection with Michael Jackson's (Michael) death. AEG hired Dr. Conrad Murray as Michael's personal physician for a concert tour. Michael died of acute propofol intoxication while under Dr. Murray's care. The Jacksons filed this action seeking to hold AEG liable on theories of negligence. The trial court summarily adjudicated causes of action for negligence and respondeat superior. The sole cause of action at trial was for negligent hiring, retention, and supervision. The jury found AEG hired Dr. Murray; however, he was not unfit or incompetent to perform the work for which he was hired.
On September 15, 2010, the Jacksons filed a complaint against AEG and other defendants alleging causes of action including (1) negligence,
On November 30, 2012, AEG brought a motion for summary judgment or, in the alternative, summary adjudication on the causes of action for negligence, negligent hiring, retention, and supervision, and respondeat superior liability. As to the negligence claim, AEG argued that it did not assume a duty, under either the special relationship or negligent undertaking doctrines, to affirmatively protect Michael from Dr. Murray. AEG was not in a special relationship with Michael and the special relationship alleged by the Jacksons has no factual or legal support. The doctrine of negligent undertaking does not apply because the alleged undertaking is too broad and unsupported by the facts. The claim for negligent undertaking fails because there was no reliance on the undertaking or increased risk of harm. Moreover, the lack of foreseeability further dictates a finding of no duty. As to the negligent hiring, retention, and supervision claim, AEG contended it never hired, trained or supervised Dr. Murray, and AEG could not foresee the risk posed by the doctor. As to respondeat superior liability, AEG argued that Dr. Murray was
Defendant Anschutz Entertainment Group and defendant Tim Leiweke moved concurrently for summary judgment in a separate motion based on grounds unique to them; however, they also incorporated by reference AEG's motion for summary judgment.
On February 11, 2013, the Jacksons filed an opposition to AEG's motion for summary judgment, arguing there were triable issues of fact. As to the negligence claim, the Jacksons contended there were facts that there was a special relationship between AEG and Michael because AEG controlled his finances and medical care and because Michael was particularly vulnerable. There was evidence that AEG undertook Michael's general medical care and specifically the provision of an assistant to Dr. Murray, and negligently performed those tasks. There are facts that AEG created an undue risk of harm to Michael, and foreseeability is a question for the jury. As to the negligent hiring, retention, and supervision claim, the Jacksons argued that there were triable issues of fact as to whether AEG negligently hired Dr. Murray because they had an oral or implied-in-fact agreement with Dr. Murray and should have foreseen the particular risks posed by him. As to respondeat superior liability, the Jacksons further argued that there were triable issues of fact that Dr. Murray was an employee, not an independent contractor. Even if Dr. Murray was an independent contractor as a matter of law, AEG is liable for his negligent conduct because the medical services performed by Dr. Murray are inherently dangerous or involve a peculiar risk.
In its reply filed February 20, 2013, AEG argued that the opposition fails to establish any disputed issues of material fact and is based on inadmissible evidence. AEG contended that there was no special relationship because business dealings cannot establish such a relationship and the Jacksons admitted that Michael continued to see other doctors. AEG also stated that there was no evidence establishing Michael detrimentally relied on the special relationship. AEG further argued that the evidence established that AEG did not undertake to provide a medical assistant to Dr. Murray in Los Angeles. AEG reiterated that it did not hire Dr. Murray and could not foresee the danger he posed. Finally, AEG contended that it did not control the manner or means of Dr. Murray's work and that all applicable factors show that Dr. Murray was an independent contractor. The Jacksons' contention that
The trial court heard oral argument on February 25, 2013, and took the motion under submission. On February 27, 2013, the court denied summary judgment but granted summary adjudication as to the negligence and the respondeat superior causes of action. As to the negligence claim, the court held that the Jacksons cited no authority in which financial interactions or financial pressure is sufficient to create a special relationship. Moreover, the Jacksons did not present sufficient evidence to establish that AEG exercised complete control over Michael's medical welfare. The court further stated there was no negligent undertaking, AEG established that it made no specific undertaking, and that there was no reliance or increased risk of harm. The court found that a general undertaking to provide for "medical care" is too broad and not supported by the case law or facts. Moreover, given Michael's status and experience, exerting strong financial pressures is insufficient alone to create an undue risk of harm. As to respondeat superior liability, the court concluded that AEG's evidence established that Dr. Murray was an independent contractor, not an employee, because AEG had no control over the manner and means of Dr. Murray's work and there was no other basis on which to apply the doctrine of respondeat superior.
On February 28, 2013, the court granted defendant Anschutz Entertainment Group and defendant Leiweke's motion for summary judgment. The court entered judgment in favor of defendant Anschutz Entertainment Group and defendant Leiweke only. Negligent hiring, retention and supervision was the remaining cause of action that proceeded to trial against AEG.
The trial commenced on April 2, 2013. On July 29, 2013, the Jacksons moved for leave to amend the amended complaint to conform to proof to add a general negligence cause of action. The trial court denied the motion to amend. On September 9, 2013, AEG moved for nonsuit, which was granted only as to defendants Phillips and Gongaware. AEG Live was the sole remaining defendant on the negligent hiring, retention, and supervision cause of action as it commenced the defense.
Dr. Murray was initially referred to Michael by a patient's son, who was Michael's security guard. Dr. Murray began treating Michael back in 2006 while he was residing in Las Vegas, but Dr. Murray's treatment of Michael was intermittent. It was not until spring 2009 that Dr. Murray began treating him on a regular basis at Michael's Los Angeles residence.
On January 26, 2009, AEG and Michael, on behalf of himself and the Michael Jackson Company, LLC (MJC), entered into an agreement for AEG to produce and promote Michael's This Is It tour. Under the tour agreement, AEG would advance the costs associated with producing and promoting the tour, as well as advancing substantial sums to the MJC to provide Michael with cash, pay off certain debts, rent his home, and potentially buy a second home. These production advances, advances payable to the MJC, and production costs were to be recouped from Michael's share of the tour proceeds or, if the tour did not generate sufficient proceeds to cover such advances and costs, repaid by Michael and the MJC. Michael had the right to select his own touring staff. As with all production costs, the salaries of his touring staff were advanced by AEG, but Michael ultimately was responsible for the payments.
In April 2009, Michael's assistant called Dr. Murray and stated that Michael wanted Dr. Murray to be on tour with him in England. Dr. Murray responded, "Well, I need more details about that," and the conversation ended. Shortly thereafter, Dr. Murray got a call from Michael "telling [him] how elated he was that [Dr. Murray] was going to join the trip."
In late April or early May 2009, Michael told Paul Gongaware, the co-CEO of Concerts West, a division of AEG Live that handles concert tours, he wanted to bring his personal physician Dr. Murray on the tour. Gongaware tried to convince Michael that a London-based physician would be preferable due to logistical and licensing issues. However, Michael insisted on having Dr. Murray. Gongaware recalls Michael specifically stating, "This is what I want. I want Dr. Murray." After speaking with Michael, Gongaware contacted
When Gongaware contacted Dr. Murray in late April or early May 2009, Dr. Murray told him that he already knew Michael intended to bring him on tour. Dr. Murray demanded that he and his company, GCA Holdings, LLC, be paid $5 million for his services because he had to close down four clinics and lay off his employees. After Gongaware told Dr. Murray that figure was unreasonable, Gongaware relayed Dr. Murray's demand to Michael. Michael directed Gongaware to counteroffer $150,000 a month. Gongaware followed Michael's instruction and presented the counteroffer to Dr. Murray as an "offer directly from the artist." Dr. Murray expressed his willingness to negotiate a contract at that price and told Gongaware that his contract should include a provision for a residence in London close to Michael's, and he would need some medical equipment and an assistant in London.
At Gongaware's request, Timm Woolley, an accountant on Michael's This Is It tour, contacted Dr. Murray on May 8, 2009, to gather preliminary information from him. Woolley understood that Dr. Murray was Michael's primarily care physician. On the phone and memorialized in an e-mail later that day, Woolley and Dr. Murray discussed contact information, his likely mode of travel and accommodations, his potential need for CPR machines and an assistant in London, potential insurance options, and his fees.
On May 15, 2009, Dr. Murray responded to Woolley by asking him to send a draft of a possible contract for his lawyer's review. Dr. Murray also stated, "As for good faith with my client I am sure that you are aware that my services are already fully engaged with Mr. Jackson." On May 28, 2009, Woolley received another e-mail from Dr. Murray, asking for a good faith payment of the fees that ultimately would be due under the planned agreement. Woolley replied the same day to advise him that no payment could be made because "AEG policies dictate that payments can only be made under a fully-executed agreement." Woolley also stated, "The legal department had not yet completed the agreement which is rather specialised [sic] since it is a rare event that a physician is engaged to accompany a touring artist."
On June 15, 2009, Jorrie e-mailed the first draft, which was titled "Independent Contractor Agreement" to Woolley for his review. The next day, Woolley e-mailed Dr. Murray the draft and asked for his "input and comments." The draft agreement included a condition precedent: the parties would have no rights or obligations to one another unless and until Michael personally signed the agreement, giving his written confirmation that he had requested AEG to engage Dr. Murray, on Michael's behalf and at Michael's expense, on the terms set forth therein. This provision was not standard to AEG's tour contracts and was added because of the unique personal relationship between Michael and Dr. Murray. This provision remained in each subsequent draft.
On June 18, 2009, Dr. Murray called Jorrie to discuss the draft. He advised her that Woolley had sent the draft contract to him and explained that he wanted to make changes to various terms in the draft agreement. Among other things, they discussed who the contracting parties and required signatories would be and whether Dr. Murray would hire someone to assist him in London. Jorrie inquired as to why Dr. Murray needed to have a CPR machine in London and Dr. Murray explained he needed a CPR machine in case of an emergency given Michael's age and the strenuous performance he would be putting on in London. Dr. Murray told Jorrie this was customary. Dr. Murray made it clear to Jorrie that he wanted the CPR machine and the medical assistant in London, not Los Angeles. However, Dr. Murray never asked for specific equipment to be delivered to him, and he had yet to select a medical assistant. Dr. Murray also assured Jorrie that he was licensed to practice medicine in California, Texas, Nevada and Hawaii.
After speaking with Dr. Murray, Jorrie revised the draft agreement to reflect the various changes and additional issues discussed. On June 19, 2009, Woolley e-mailed the revised version to Dr. Murray for his further review and comment.
On June 23, 2009, Dr. Murray called Jorrie regarding further revisions to the draft contract's terms, including (1) changing the contract's end date from September 30, 2009, to March 6, 2010, so that Dr. Murray would stay on during a break in the tour; (2) changing the payment provisions so that Dr. Murray would receive the full $150,000 per month even during the break
On June 24, 2009, Jorrie e-mailed Dr. Murray the latest revised draft for his review and comment. The draft stated the tour is "scheduled to take place at the O2 Arena in London, England between approximately July 13, 2009 and March 6, 2010 .... At [Michael's] request, [AEG] has agreed to retain the services of Dr. Murray for the benefit of [Michael] throughout the duration of the Concert Series ...." It further stated that "Dr. Murray will provide general medical care" to Michael as of May 1, 2009, and will continue through Michael's last performance in the concert series. "Such Services will be administered professionally and with the greatest degree of care to be expected from similarly situated members in the medical field. Such services shall include, without limitation, tending to [Michael]'s general medical needs and assisting and treating [Michael] in case of a medical emergency. Dr. Murray shall also provide such other services as are reasonably requested by [Michael] from time to time during the term hereof. Dr. Murray shall perform such services in London, England during any time periods in which [Michael] is located in London, and at all other times during the [t]erm [of the agreement], the Services will be performed in the United States." AEG will provide Dr. Murray with medical equipment requested by Dr. Murray and approved by AEG. The equipment will include a CPR machine, saline, catheters, needles, a gurney and other mutually approved necessary medical equipment. AEG will also pay a mutually approved fee for a qualified assistant medical person selected by Dr. Murray and approved by AEG. The draft provided that Dr. Murray "[p]erform the Services reasonably requested by [AEG]" and "[p]resent to [AEG] within two (2) weeks from the date of this Agreement documented proof of any and all licenses required for Dr. Murray to practice medicine in the United States and to perform the Services under this Agreement." Dr. Murray must also have presented to AEG no later than July 3, 2009, documented proof of any and all licenses required for Dr. Murray to practice medicine in the United Kingdom. Dr. Murray was required to maintain, at his sole expense, commercial general liability insurance, business auto liability insurance, workers' compensation insurance, and medical malpractice insurance. Dr. Murray could be terminated for cause by AEG; however, Dr. Murray could be terminated immediately if Michael decided for any reason that he no longer wanted or needed the services of Dr. Murray. In addition to the condition precedent requiring
If Dr. Murray approved of the latest version of the agreement, Jorrie instructed him to "print the pdf, sign it and return your signature to me by pdf (via email) or by fax." Later that evening, Dr. Murray faxed Jorrie a copy of the draft agreement that he had signed. Jorrie forwarded the signed contract to AEG. Neither Michael nor an AEG authorized representative had signed, or ever signed, the contract.
AEG met with Dr. Murray in person, along with Michael, on two separate occasions, one on or around June 14, 2009, and another on June 20, 2009. Outside of the two in-person meetings, Phillips spoke to Dr. Murray on the phone on one occasion.
On June 14, 2009, Kenneth Ortega, the producer and director of the This Is It tour, e-mailed Gongaware inquiring whether he was aware that Dr. Murray did not allow Michael to attend rehearsals the day before. Ortega then recommended, "Without invading [Michael's] privacy, it might be a good idea to talk with his Doctor to make sure everything [Michael] requres [sic] is in place." Gongaware responded by e-mail and stated that he requested a face-to-face meeting with Dr. Murray and "[w]e want to remind him that it is AEG, not [Michael] who is paying his salary. We want him to understand what is expected of him." The following day, Ortega responded that Michael was habitually late to rehearsals and that he needed nourishment guidance, and physical therapy for his fatigued muscles and injuries.
On or around June 14, 2009, Phillips met with Dr. Murray and Michael to discuss concerns that had been raised by the tour staff about Michael's stamina, nutrition, and rehearsal attendance. Both Michael and Dr. Murray repeatedly assured Phillips that Michael was in excellent health. This was the first time Phillips met Dr. Murray.
On June 17, 2009, Gongaware sent an e-mail stating that a therapist and a nutritionist should be hired for Michael. Leiweke recommended a candidate and forwarded his information to Gongaware.
On June 19, 2009, both Gongaware and Phillips were notified at Ortega's request that Michael was sent home from rehearsals that day and Ortega "was concerned [Michael] would embarrass himself on stage, or worse yet — get hurt."
On June 20, 2009, Phillips, Ortega, Dr. Murray and Michael scheduled a meeting around 2:00 p.m. at Michael's residence. The purpose of the meeting was to address Ortega's concerns about Michael's health and his lack of focus. However before the meeting, Phillips called Dr. Murray to discuss the content of Ortega's previous e-mail. Phillips then responded to Ortega's earlier e-mail stating that "it is critical that neither you, me, or anyone around this show become amateur psychiatrists or physicians. I had a lengthy conversation with Dr. Murray, who I am gaining immense respect for as I get to deal with him more. He said that Michael is not only physically equipped to perform and, that discouraging him to, will hasten his decline instead of stopping it .... This doctor is extremely successful (we check everyone out) and does not need this gig so he [is] totally unbiased and ethical."
At the scheduled meeting, Ortega reiterated what he wrote in his e-mail about Michael's physical condition and his mental state. Dr. Murray assured Ortega and Phillips that Michael was fine physically and he admonished Ortega for being an amateur physician. Dr. Murray further told Ortega, "You direct the show. I'll be responsible for Michael's health." They "all agreed on a schedule that works for both [Ortega] and Michael." Phillips felt it was a "a very productive, solid meeting" with Ortega, Dr. Murray, Michael and himself.
At the June 23, 2009 rehearsal, Michael "was like a different person. [¶] ... [¶] ... [T]here was clarity and energy and commitment and a readiness, and it awoke — it awakened the whole room, and everyone was aware of it." In an e-mail that day, Woolley wrote that "Ortega has responsibility for the show content & structure in consultation with [Michael] ... Phillips and Dr. Murray are responsible for [Michael's] rehearsal and attendance schedule." On June 24, 2009, Michael went to his scheduled rehearsal.
In an e-mail between Phillips and Gongaware, they agreed that Dr. Murray should be involved in arranging Michael's insurance physical in London on June 6, 2009, and accompany Michael to this appointment.
At Michael's Los Angeles residence on June 25, 2009, Michael complained to Dr. Murray that he could not sleep. Earlier that day, Michael had to cancel
Michael had an extensive history of propofol use dating back to the early 1990's. Michael was warned by several medical providers that propofol or any "intravenous medicine that would put [him] to sleep" was dangerous and potentially life threatening. Despite this, Michael sought propofol from various the medical providers aside from Dr. Murray during the months leading up to his death. Michael saw other health care providers for different medical reasons during this time.
During an interview of Dr. Murray conducted by the Los Angeles Police Department after Michael's death, Dr. Murray discussed his employment relationship with AEG. He stated Michael "asked me to be on his team. I was talking to [Michael] himself. He offered me employment, and I was of the opinion that he would be my employer directly. Subsequently to accepting that, I — I realized that AEG would be the one paying for the salary that he requested. So that was their arrangement as far as what they would finance me. So I am an employee for Michael Jackson but paid through AEG."
Dr. Murray also told police it was Michael's idea for Dr. Murray to administer propofol to him. Michael discussed his prior use of propofol with Dr. Murray and told the police "the doctors allowed [Michael] to infuse it himself."
The Jacksons contend on appeal that the trial court erred in summarily adjudicating negligence and respondeat superior. We disagree and explain below.
"`[T]he party moving for summary [adjudication] bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.' (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [107 Cal.Rptr.2d 841, 24 P.3d 493] (Aguilar).) `Once the [movant] has met that burden, the burden shifts to the [party opposing the motion] to show that a triable issue of one or more material facts exists as to that cause of action ....' (Code Civ. Proc., § 437c, subd. (p)(1) & (2); see also Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) ... When a summary [adjudication] has been granted, we review the trial court's decision de novo, `considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.' (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476 [110 Cal.Rptr.2d 370, 28 P.3d 116].)" (MRI Healthcare Center of Glendale, Inc. v. State Farm General Ins. Co. (2010) 187 Cal.App.4th 766, 776-777 [115 Cal.Rptr.3d 27].)
"The party opposing the summary [adjudication] must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party's evidence, standing alone, is sufficient to entitle the party to judgment. [Citations.] To avoid summary [adjudication], admissible evidence presented to the trial court, not merely claims or theories, must reveal a triable, material factual issue. [Citation.] Moreover, the opposition to summary [adjudication] will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation. [Citations.]'" (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 10-11 [130 Cal.Rptr.2d 263].) A genuine issue of fact exists if, and only if, the evidence would allow a reasonable juror to find the underlying fact in favor of the party opposing summary adjudication. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)
The Jacksons argue that the court erred in summarily adjudicating negligence because there are triable issues of material fact as to whether AEG owed a duty to Michael based on evidence that (1) AEG increased the risk of harm to Michael; (2) AEG voluntarily undertook a duty to provide protective services to Michael; and (3) AEG's contract with Dr. Murray gave rise to a duty of care toward Michael.
The Jacksons assert that AEG breached its duty of ordinary care to not increase the risk of harm to Michael's health. Their contention essentially is that the duty of ordinary care in this case included a duty not to pressure Dr. Murray to protect AEG's interests over Michael's health and safety, particularly in light of the conflict of interest created by the hiring relationship and AEG's knowledge of Michael's deteriorating health. We agree with the trial court's conclusion that AEG did not have a duty to refrain from pressuring Dr. Murray.
To determine whether AEG had a duty to refrain from pressuring Michael's doctor, we must consider whether, under the uncontradicted facts, AEG's actions created an unreasonable risk of harm. It is not foreseeable that pressuring a doctor to keep his patient healthy in order to meet his contractual obligations would result in the doctor supplying the patient with an unusual, powerful, and dangerous sedative. AEG was not aware Dr. Murray was taking extreme measures in his treatment of Michael, such as administering propofol. AEG wanted Dr. Murray to keep Michael healthy and able to perform,
Even considering the various interests of AEG and Dr. Murray, it was not foreseeable from AEG's directions to keep Michael healthy and able to attend rehearsals that Dr. Murray would prescribe a dangerous medication that jeopardized Michael's health. AEG did not direct Dr. Murray to use any means necessary to ensure Michael attended rehearsals. After the last meeting with Dr. Murray and Michael, AEG was looking for a nutritionist or a physical therapist to help Michael stay healthy in preparation for the upcoming tour. It was not foreseeable to AEG, even under its heightened influence, that its directions to keep Michael healthy would cause Dr. Murray to provide treatment that put Michael at risk. The Jacksons have not provided citation to any authority suggesting otherwise.
AEG's knowledge of Michael's deteriorating health and any drug dependency issues did not increase the foreseeability that his doctor would take extreme and dangerous measures. In fact, the company might assume that Dr. Murray would take precautions and assist Michael in avoiding medications that put him at risk. AEG's instructions to Dr. Murray did not create an unreasonable risk of harm to Michael. The trial court correctly found AEG did not under the undisputed facts have a duty to refrain from pressuring Dr. Murray under the circumstances of this case.
The Jacksons contend there is evidence to support a triable issue of whether AEG voluntarily undertook a duty to provide protective services to Michael. Specifically, the Jacksons contend AEG undertook to provide medical services to Michael by hiring Dr. Murray, and also undertook to provide Dr. Murray with CPR equipment and a medical assistant. We agree with the trial court that there is no triable issue of fact as to a negligent undertaking.
The Jacksons heavily rely on Coffee v. McDonnell-Douglas Corp. (1972) 8 Cal.3d 551 [105 Cal.Rptr. 358, 503 P.2d 1366] (Coffee) to support their contention that AEG owed Michael a duty when it undertook to provide medical services to Michael by retaining Dr. Murray as his personal physician. In Coffee, supra, at page 559, the defendant undertook to "examine plaintiff so as to ascertain his physical fitness for duties as a pilot." The examination consisted of a review of the plaintiff's medical history, extensive X-rays, urinalysis, an electrocardiogram and a blood test. (Id. at p. 554.) The kind of medical examination required in Coffee was very specific, while the alleged undertaking of "medical care" is vague and exceptionally broad. Such a broad duty is not only contrary to the case law, but the evidence demonstrates AEG did not undertake Michael's medical care in its entirety. AEG did not prevent Michael from seeing other doctors, and Michael in fact did so during the months leading up to his death. Thus, the trial court properly found there was no evidence that AEG undertook Michael's medical care.
The Jacksons further contend that AEG specifically undertook to provide Dr. Murray with CPR equipment and a medical assistant, and AEG negligently performed these tasks by failing to provide the equipment and assistant. The evidence relied upon by the Jacksons demonstrates that Dr. Murray made it clear to AEG that he wanted a CPR machine and the medical assistant in London, not Los Angeles. The draft contract provides for "a qualified assistant medical person" selected by Dr. Murray and approved by AEG. The contract also provided for "medical equipment requested by Dr. Murray" and approved by AEG. The medical equipment included a CPR machine. Dr. Murray never asked for specific equipment to be delivered to him in Los Angeles and only noted the need for a CPR machine in London. Additionally, Dr. Murray had yet to select a medical assistant. AEG was only to approve of such requests, yet no request was made during Dr. Murray's care of Michael in Los Angeles. We agree with the trial court that there is no triable issue of fact as to whether AEG undertook a specific duty to provide a
The Jacksons assert for the first time on appeal that AEG owed a duty of care to Michael arising from AEG's contract with Dr. Murray. The Jacksons identify AEG's alleged contractual duty to provide CPR equipment and a qualified medical assistant to Dr. Murray. Additionally, AEG's failure to provide the proper equipment and medical assistant, and the exertion of financial pressure on Dr. Murray could foreseeably cause Dr. Murray to deviate from the requisite standard of care. We disagree.
As stated earlier, AEG did not fail to provide CPR equipment and a qualified medical assistant to Dr. Murray because he requested a CPR machine for London and had not yet chosen a medical assistant. AEG was not obligated under the contractual agreement to provide the equipment or assistant absent Dr. Murray's request. The Jacksons present no evidence that AEG exerted financial pressure on Dr. Murray to ensure Michael's attendance at rehearsals. They point to one private e-mail from one AEG employee to another stating that they should remind Dr. Murray that it is AEG paying him, not Michael. There is no supporting evidence that this message or a similar one was conveyed to Dr. Murray outside of this e-mail exchange. It was not foresseable that Dr. Murray would deviate from the requisite standard of care. Because the Jacksons fail to establish a trial issue of material fact under all three theories of negligence, we hold the trial court did not err in summarily adjudicating negligence.
The Jacksons contend that the trial court erred in summarily adjudicating the issue of respondeat superior because there are triable issues as to whether Dr. Murray was an employee of AEG, and therefore AEG is vicariously liable for Dr. Murray's negligence. Even if Dr. Murray was an independent contractor, the Jacksons argue, there are triable issues as to whether AEG is liable for Dr. Murray's negligent acts under the peculiar risk doctrine or agency theory. We disagree with the Jacksons' contentions and explain below.
The Jacksons contend the evidence establishes a triable issue of material fact that Dr. Murray was AEG's employee because AEG had the right to exercise control over Dr. Murray's work and attempted to exercise such control. We agree with the trial court that Dr. Murray was an independent contractor as a matter of law.
The evidence fails to establish a triable issue that AEG had the right to control the manner and means of Dr. Murray's treatment of Michael. It is undisputed that AEG contacted Dr. Murray and began contract negotiations as an accommodation to Michael. Dr. Murray, Michael's personal physician of three years, was to be engaged at Michael's request and expense, in spite of AEG's suggestions that a London-based physician would be preferable. The evidence also shows that AEG's interactions with Dr. Murray were limited. AEG never instructed Dr. Murray on how to treat Michael, and no evidence was presented that AEG had the right to control Dr. Murray's treatment of Michael.
However, the Jacksons contend the draft contract created an employment relationship because it provided Dr. Murray to perform the work reasonably requested by AEG. This contention that the draft contracted created an employee relationship fails for two reasons. First, AEG and Dr. Murray never intended to include this language in the final contract. During contract negotiations, Dr. Murray discussed revisions to the draft contract terms, including changing a provision stating that Dr. Murray would perform "services reasonably requested by the Producer" to say that he would perform "services reasonably requested by the Artist." The exclusion of this revision was merely an oversight in the subsequent draft to reflect that Dr. Murray would perform the services requested by Michael, not by AEG. (See Pistone v. Superior Court (1991) 228 Cal.App.3d 672, 681 [279 Cal.Rptr. 173] ["The cases freely allow parties to contradict `clear' contract language and show their actual relationships."].) The Jacksons presented no evidence to refute both parties' intention to revise the provision to read "services reasonably requested by the Artist." Second, disregarding the intention of the parties, the language in question would only give AEG the right to request reasonable medical services from Dr. Murray, not to direct the manner or means by which he provided those services.
Moreover, additional factors that have been "principally derived from the Restatement Second of Agency, and include `(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of the employer-employee.' (Borello, supra, [48 Cal.3d] at p. 351; Rest.2d Agency, § 220.) `"Generally, ... the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations."' (Borello, supra, at p. 351.)" (Ali v. U.S.A. Cab Ltd., supra, 176 Cal.App.4th at pp. 1347-1348.)
Finally, both AEG and Dr. Murray believed, at the time of contracting, they were creating an independent contractor relationship and not an employee relationship. (S. G. Borello & Sons, Inc. v. Department of Industrial Relations, supra, 48 Cal.3d at p. 350 (Borello).) During a police interview, Dr. Murray discussed his employment relationship with AEG. He stated Michael was the one who offered him the position of personal physician on tour. Dr. Murray was of the opinion that Michael would be his direct employer and did not discover until after he accepted the position that AEG would be paying for his salary. The draft contract was also a generic independent contractor agreement and provided only a general description of Dr. Murray's services, "general medical care" to be administered "professionally." Additionally, Dr. Murray operated his own incorporated entity, GCA Holdings, which was to be a party to the draft agreement. Having his company a party to the agreement lends itself to an independent contractor status. Although a party's label is not dispositive (Borello, supra, at p. 349), it is persuasive given the fact that the parties actual conduct established an independent contractor relationship.
The Jacksons' reliance on Arzate v. Bridge Terminal Transport, Inc. (2011) 192 Cal.App.4th 419 [121 Cal.Rptr.3d 400] (Arzate) is misplaced. In Arzate, Division Eight of this appellate district reversed the trial court's grant of summary judgment and found, "At its heart, this case involves competing, if not necessarily conflicting, evidence that must be weighed by a trier of fact. [Citation.]" (Id. at p. 427.) The court pointed to facts that were inconsistent
The Jacksons contend that if Dr. Murray was an independent contractor, rather than an employee, AEG is liable for his negligence under the doctrine of peculiar risk.
The peculiar risk doctrine can be best explained by examples of the types of risks which have been found to come within its scope. (Castro v. State of California (1981) 114 Cal.App.3d 503, 511 [170 Cal.Rptr. 734].) Such risks include being struck by an automobile while eradicating traffic lines on a busy street, being run over by dump trucks backing up during road construction work, explosions while painting the inside of a tank with a volatile paint, falling while working on a 10-foot high wall or on a 20-foot high bridge, electrocution while operating a crane near high voltage wires during bridge construction work, and a cave-in while working in a 14-foot deep trench. (Ibid.) "Even when work performed by an independent contractor poses a special or peculiar risk of harm, however, the person who hired the contractor will not be liable for injury to others if the injury results from the contractor's `collateral' or `casual' negligence. [Citations.] An independent contractor's negligence is collateral, ... when the negligence involves an `operative detail of the work, as distinguished from the general plan or method to be followed.' [Citation.]" (Privette v. Superior Court, supra, 5 Cal.4th at p. 696.)
The Jacksons have provided no authority that this doctrine, which originated to hold landowners responsible for the negligence of contractors engaged to perform work on their property, has ever been applied in the context of a corporation contracting with a doctor to provide "medical care" to a third party, nor have they made any argument as to why the doctrine should be applied in this type of situation. In the absence of such authority or argument, we need not further address their contention. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [124 Cal.Rptr.3d 78] ["`The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.'"].)
The Jacksons assert for the first time on appeal that even if Dr. Murray was an independent contractor, independent contractors can also be agents and therefore AEG is vicariously liable under the doctrine of respondeat superior.
The Jacksons contend Dr. Murray was AEG's agent based on the same evidence from which they argue he was an employee. However, as the Jacksons properly recognize in their opening brief, there is substantial overlap in the factors for determining whether one is an employee or an agent. (See Rogers v. Whitson (1964) 228 Cal.App.2d 662, 671 [39 Cal.Rptr. 849].) Because we were not persuaded that AEG had any right to control Dr. Murray in our independent contractor analysis nor persuaded by the identical factors outlined to establish both an agency and employee relationship, we cannot conclude that Dr. Murray was AEG's agent. (Cf. Seneris v. Hass (1955) 45 Cal.2d 811, 830-832 [291 P.2d 915] [holding there was sufficient evidence of an agency relationship between a hospital and an anesthetist, and the trial court erred in taking the issue of agency from the jury].)
The Jacksons contend the court erred in modifying the jury instructions and special verdict form for the negligent hiring, retention and supervision cause of action because they only address hiring and not the retention or supervision claims.
The jury was instructed with a modified California Civil Jury Instructions (CACI) instruction No. 426 (negligent hiring, retention and supervision) and provided with a special verdict form modeled upon CACI No. 426. While each side presented its own version of CACI No. 426, the court gave neither side's version and instructed with the standard CACI No. 426, modifying it to add the first question, as follows:
Again, while each side presented its own proposed special verdict form, the court gave neither side's version and provided the jury with a special verdict form based upon CACI No. 426, modifying it to add question No. 1, as follows:
The jurors were instructed to stop if they answered "no" to question No. 1; however, if they answered "yes," to go on to question No. 2. The same language was reiterated for each subsequent question. The jury returned a verdict in favor of AEG, answering "yes" to question No. 1, and "no" to question No. 2 on the special verdict form.
The Jacksons contend modifying CACI No. 426 to include an additional requirement that the jurors find AEG hired Dr. Murray in both the jury instructions and special verdict form (question No. 1) was erroneous and deprived the jury of the opportunity to consider the Jacksons' negligent retention or supervision claims.
The Jacksons contend the trial court erred by adding the requirement of hiring to CACI No. 426 and the special verdict form (question No. 1) "as the first and free-standing element of the negligent hiring, supervision and retention cause of action, [because] the instruction suggested to the jury that the absence of negligent hiring disposed of the negligent supervision and retention theories." We disagree.
Specifying that in the question of whether AEG hired Dr. Murray was necessary given the dispute over who hired Dr. Murray — AEG or Michael. As the trial court noted, "The employment was neither stipulated nor obvious on its face." However, if the trial court began the jury instructions or special
CACI No. 426 and the special verdict form did not place a misleading emphasis on negligent hiring. The Jacksons contend the juxtaposition of questions Nos. 1 and 2 misled the jurors to focus on the time of hiring, since question No. 2 asked whether Dr. Murray was unfit or incompetent to perform the work for which he was hired. "In determining whether a jury was likely misled, the court must also evaluate `"(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled." [Citation.]' [Citation.]" (Spriesterbach v. Holland (2013) 215 Cal.App.4th 255, 263 [155 Cal.Rptr.3d 306].)
The Jacksons lastly contend the special verdict is legally insufficient to support the judgment. We disagree.
Falls v. Superior Court (1987) 194 Cal.App.3d 851 [239 Cal.Rptr. 862], cited by the Jacksons, does not aid their position. Falls v. Superior Court involved an incomplete special verdict in which jurors found in favor of the plaintiff in the first two questions presented (liability and proximate cause), but the jury could not reach a verdict on damages. The court rejected the plaintiff's argument that he was entitled to a partial judgment on the first two issues, because the jury did not make sufficient findings to completely dispose of liability in the plaintiff's favor. (Id. at p. 855.) Here, on the other hand, the jury's special verdict finding as to question No. 2 completely resolved the issue of AEG's liability in its favor. The special verdict was legally sufficient.
We affirm the judgment and award respondents AEG Live, LLC, AEG Live Productions, LLC, Brandon Phillips, and Paul Gongaware their costs on appeal.
Mosk, Acting P. J., and Goodman, J.,
