Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. DR050078
RIVERA, J.
Joseph Royse appeals from a summary judgment entered in favor of defendant Jonathan Phelps (Phelps) in this action. He raises numerous issues contesting the trial court’s judgment and claims that the court erred in its failure to grant judicial notice of certain documents. We affirm.
I. FACTUAL BACKGROUND
This court has previously set forth the facts underlying this personal injury action in an opinion filed last year. (Royse v. Lexington Ins. Co. (Nov. 26, 2008, A117798, A117875) [nonpub. opn.] (Lexington).) In summary, Royse was severely injured in an accident while operating a manlift on the Lost Coast Ranch owned by Heartworks Studios, LLC. We affirmed the trial court’s grant of summary judgment in favor of defendants Lexington Insurance Company and DC3-E, LLLP. (Id. at pp. 1-2.) We held that Royse was not employed by DC3-E and that DC3-E had no obligation to provide him with worker’s compensation insurance. (Id. at pp. 4-6.) We further held that there was no evidence that Lexington conspired with Jonathan and Esther Phelps to misrepresent Royse’s employee status. (Id. at pp. 6-8.)
On this appeal, Royse challenges the court’s rulings on Phelps’s motions for summary judgment. In the prior appeal, however, we addressed several of the issues Royse raises here. In particular, we held that Royse was an employee of the ranch at the time of the accident and was limited to the statutory workers’ compensation remedy for injuries he sustained in the course of that employment. (Lexington, supra, at pp. 5-6.) Further, we held that there was no evidence that Phelps conspired to misrepresent Royse’s true employer at the time of the accident. (Id. at p. 7.) We also concluded that Royse was not working for DC3-E at the time of the accident and that the parties did not conspire with Lexington to claim that Royse was Esther Phelps’s employee. (Id. at pp. 4 8.) Our decision in the prior appeal precludes Royse from relitigating those issues here. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301 (Nally) [appellate court decision stating rule of law necessary to its decision of case conclusively establishes that rule and makes it determinative of the rights of the same parties in a subsequent retrial or appeal in the same case].)
The trial court granted Phelps’s summary judgment motion, finding that allegations he was negligent as a director, officer or agent of DC3-E, Heartworks or Phelps Enterprises, LLC, were not viable inasmuch as DC3-E and Phelps Enterprises were dismissed from the action and there was no evidence that Phelps had an ownership interest in Heartworks or that he was a director or agent of Heartworks.
II. DISCUSSION
A. Liability as Director
Royse contends that Phelps, in his capacity as a director of DC3-E, can be held liable to him even though DC3-E is not. Royse misreads the law.
Royse relies on Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 504, arguing that the case stands for the proposition that “[d]irectors are liable to third persons injured by their own tortious conduct regardless of whether they acted on behalf of the corporation and regardless of whether the corporation is also liable.” The court noted that a director individually owes a duty of care independent of the corporate entity’s duty, to refrain from acting to create an unreasonable risk of personal injury to third parties. (Id. at p. 505.) The court, however, explained that “[t]o maintain a tort claim against a director in his or her personal capacity, a plaintiff must first show that the director specifically authorized, directed or participated in the allegedly tortious conduct [citation]; or that although [he] specifically knew or reasonably should have known that some hazardous condition or activity under [his] control could injure plaintiff, [he] negligently failed to take or order appropriate action to avoid the harm.” (Id. at p. 508.)
Here, the trial court previously dismissed this action against both Phelps Enterprises and DC3-E, entities in which Phelps is an officer or director. (Lexington, supra, at p. 2, fn. 2 & p. 3.) On Phelps’s summary judgment motion, it therefore ruled that Royse’s action against Phelps was no longer viable since he was sued in a representative capacity. The court’s ruling was correct. Royse’s allegations that Phelps authorized, directed and participated in the alleged tortious conduct of DC3-E do not raise a triable issue of fact because it has already been demonstrated that DC3-E owed Royse no duty. Further, Royse has not pled any facts suggesting that Phelps was involved in exercising any control over Royse’s activities at the ranch. On this record, the court properly ruled that Royse’s claims against Phelps are no longer viable.
2. Judicial Notice of Florida Documents
In opposition to Phelps’s motion for summary judgment, Royse filed a request for judicial notice of certain documents filed with Florida’s Secretary of State including a 2001 Uniform Business Report for Heartworks, and 2004-2007 limited liability company annual reports for Heartworks. Phelps objected to the request, contending that the documents were hearsay and that even if the court admitted them, they could only be noticed for their existence and not the truth of their contents. The court found that the documents were not competent evidence establishing that Phelps was an owner, director, or agent of Heartworks. The court relied on StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 456, footnote 9, which recognizes that “[w]hen judicial notice is taken of a document,... the truthfulness and proper interpretation of the document are disputable.”
The 2001 Uniform Business Report lists both Esther and Jon D. Phelps as managing members. The 2002 Uniform Business Report, however, deletes Jon D. Phelps as a managing member and lists solely Esther Phelps as the manager. Documents from subsequent years list only Esther Phelps as the manager.
The court did not abuse its discretion in its consideration of the Florida documents. The court, although taking judicial notice of the documents, sustained Phelps’s objection to them and did not consider them as competent evidence establishing that Phelps was a manager of Heartworks. No error appears. Even if the court had considered the documents for the truth of their contents, they do not show that Phelps was a manager of Heartworks at the time of the accident. In fact, they reflect that after 2001, Phelps was no longer listed as a manager.
Royse also purports to raise another evidentiary error concerning the court’s consideration of Phelps’s reply brief to the summary judgment motion in arguing that the court erroneously denied his motion for a new trial. We dismiss the purported appeal of the order denying the motion for a new trial. An order denying a new trial is not an appealable order. (Fogo v. Cutter Laboratories, Inc. (1977) 68 Cal.App.3d 744, 748-749; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 164, p. 240.)
3. Lexington Summary Judgment Motion
Royse raises a number of evidentiary objections concerning the evidence submitted in support of and in opposition to Lexington’s summary judgment motion, a motion which Phelps joined. These issues, however, were addressed in his prior appeal. (Lexington, supra, at pp. 8-9.) Royse is precluded from relitigating them here. (Nally, supra, 47 Cal.3d at p. 301.)
Royse also argues that the trial court erred in granting the motion because Phelps’s notice of joinder in Lexington’s summary judgment motion did not include a separate statement of undisputed facts. Although the court in Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 46-47, held that a defendant was not entitled to summary judgment because his notice of joinder in a codefendant’s summary judgment motion did not comply with Code of Civil Procedure section 437c, the procedural error here does not amount to reversible error. The notice of joinder filed by Phelps indicates that he was relying on the same undisputed facts as those set forth in Lexington’s motion. There was no prejudice to Royse. He makes no argument here to demonstrate that a different result would have been obtained had Phelps filed his own separate statement of facts.
Royse also argues that the trial court should have granted a continuance of the motion. Again, we considered this issue in the prior appeal and concluded that the court did not abuse its discretion in denying the motion. (Lexington, supra, at p. 9, fn. 8.)
4. Motion for Relief from Judgment (Code Civ. Proc., § 473)
Royse moved for relief from the judgment entered in favor of Phelps on Lexington’s summary judgment motion. He argued that the judgment was obtained by fraud because documents filed in other federal district court cases show that he was employed by DC3-E or Heartworks. The trial court denied the motion, finding that Royse had failed to adduce any evidence contradicting the court’s prior conclusion that Royse was employed by Esther Phelps.
In Royse’s prior appeal, this court concluded as well that Esther Phelps hired Royse and that he was a special employee of the ranch at the time of the accident. (Lexington, supra, at p. 5.) Royse proffers nothing new on this issue here. The evidence proffered by Royse on his motion for relief from judgment consisted primarily of declarations and documents concerning other DC3-E employees and are not relevant to Royse’s employment status at the time of the accident. The court properly denied the motion.
III. DISPOSITION
The judgment is affirmed. The purported appeal from the order denying the motion for a new trial is dismissed.
We concur: REARDON, Acting P. J., SEPULVEDA, J.