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Pedrin v. Civil Constructors Corp.12/22/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Civil Constructors Corporation (Civil) appeals from a judgment in favor of Rodney Pedrin arising from Pedrin's personal injury action against Civil. Civil contends the court erred by (1) failing to allow the use of deposition testimony in lieu of live testimony for witness Mark Berger; and (2) granting a directed verdict on employee status which precluded a borrowed servant theory of defense. We hold the court's ruling precluding use of the deposition was correct based on Civil's lack of due diligence, and alternatively, Civil failed to provide an adequate record to show prejudice. Further, we hold the directed verdict ruling did not foreclose pursuit of the borrowed servant theory. Accordingly, we affirm the judgment.
FACTUAL BACKGROUND
Padre Dam Municipal Water District ("Padre Dam") oversees water and sewer systems. To connect pipes for new construction, Padre Dam crews attach a new valve extension to the water main and then a contractor connects its pipes to the new valve. The contractors performing the new pipeline installation are hired by the developers, not by Padre Dam.
Pedrin was employed by Padre Dam as a construction inspector. His duties consisted of checking construction jobs to make sure pipeline installation performed by the contractors conformed with Padre Dam specifications.
Civil was the wet utility contractor for two adjacent projects, Southland Envelope and Caster Sewer. For the Southland Envelope job , Padre Dam dug trenches to install the valves so that Civil could tie in to the system. The trenches were then covered with one-ton steel "trench plates" owned by Padre Dam so that traffic could pass over the trenches. Use of the trench plates avoided the extra work of filling the trenches after Padre Dam was finished and then redigging when Civil was ready to perform its tie-in work.
After the Southland Envelope trench work was completed, Civil commenced digging for the Caster Sewer project. Because of a flaw in the engineer's plans and the sandy conditions of the soil, Pedrin ascertained that the water main would break and fall into the ditch if digging were continued. On June 19, 2000, a decision was made to shut the project down and redesign the plans. Accordingly, Civil commenced filling and compacting the trenches with dirt.
Meanwhile, Pedrin noticed that there were four Padre Dam trench plates piled at the side of the road which had been used during the Southland job . Pedrin called Padre Dam to see if a Padre Dam crew could pick them up. To remove the plates, a backhoe or trackhoe and a flatbed truck were needed. Padre Dam sent its flatbed truck to the site. However, because all of Padre Dam's backhoes were currently in use, Padre Dam suggested that Pedrin check if Civil could use its equipment to load the plates onto Padre Dam's truck. Pedrin asked Civil's foreman, Wes Williams, if Civil's equipment could be used to load the plates. Williams agreed to do the favor. Williams instructed Civil's trackhoe operator (Gary Peters) to assist with the loading operation. It was anticipated the loading job would take about 30 minutes.
As Peters operated the trackhoe to lower the first trench plate, Civil's laborer (Mark Berger) stood on the ground and used his hands to guide the plate into the bed of the truck. According to Pedrin, as the second trench pl
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