Judge: Andrew E. Cooper, Case: 19STCV31981, Date: 2023-05-25 Tentative Ruling

Case Number: 19STCV31981    Hearing Date: May 25, 2023    Dept: F51

MOTION FOR SUMMARY JUDGMENT

Motion Filed: 11/10/22

MOVING PARTY: Defendant The Board of Trustees of the California State University (“CSU”)

RESPONDING PARTY: Plaintiff Francisco Salas (“Plaintiff”)

NOTICE: OK 

RELIEF REQUESTED: An order granting summary judgment, or in the alternative, summary adjudication in favor of CSU and against Plaintiff.

TENTATIVE RULING: The unopposed motion is granted.

BACKGROUND¿ 

This action arises out of Plaintiff’s allegation that he was assaulted by a co-employee, nonmoving defendant Joe Fileto on 5/22/19. (Third Amended Complaint (“TAC”), ¶ 30.) Fileto allegedly attacked Plaintiff without provocation and struck him repeatedly with a shovel while the two were working on the construction of a parking structure at the California State University Northridge campus under the employment of nonmoving defendant Bomel Construction Company, Inc. (“Bomel”). (Id. at ¶¶ 26–30.) Plaintiff alleges that he sustained physical and emotional injuries as a result of the incident which include “severe head, scalp and ear lacerations, a broken nose, … a concussion,” emotional trauma, helplessness, and devastation. (Id. at ¶¶ 34–35, 184–189.)

On 9/10/19, Plaintiff filed the original complaint. On 9/4/20, Plaintiff filed his TAC, alleging ten total causes of action against Defendants, including a sole cause of action for Negligence as against CSU. (Id. at ¶¶ 147–170.) On 1/15/21, CSU filed its answer to the TAC after the Court overruled its demurrer thereto.

On 11/10/22, CSU filed the instant motion for summary judgment. No opposition has been filed to date. On 3/24/23, CSU filed a Notice of Plaintiff’s Non-Opposition to the instant motion.

ANALYSIS

Legal Standard 

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 65, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–382.) 

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519–1520.)  

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.) 

Negligence

Plaintiff’s sole cause of action against CSU alleges Negligence pursuant to Government Code sections 815.2 and 815.4. To state a claim for negligence, a plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) “Statutes may be borrowed in the negligence context for one of two purposes: (1) to establish a duty of care, or (2) to establish a standard of care.” (Elsner v. Uveges (2004) 34 Cal.4th 915, 927, fn. 8.)

1.      Government Code section 815.2

“A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.” (Gov. Code § 815.2, subd. (a).)

Here, as CSU observes, “there is no public employee giving rise to vicarious liability.” (MSJ 9:10–11.) Indeed, Plaintiff’s TAC alleges that CSU had a duty to “provide proper safety measures, proper equipment, proper scheduling and coordination of work to be done by subcontractors, and proper supervision during the construction process.” (TAC ¶ 154 [emphasis added].) Based on the foregoing, the Court finds that CSU has met its initial burden to show that liability cannot attach under Government Code section 815.2. As Plaintiff has failed to oppose the instant motion, the Court finds that there is no triable issue of material fact as to this theory of liability.

2.      Government Code section 815.4

“A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person. Nothing in this section subjects a public entity to liability for the act or omission of an independent contractor if the public entity would not have been liable for the injury had the act or omission been that of an employee of the public entity.” (Gov. Code § 815.4.)

CSU argues that the Privette doctrine bars Plaintiff’s Section 815.4 claims against it. (MSJ 9:17–22.) In Privette v. Superior Court (1993) 5 Cal.4th 689, the Supreme Court held that when injuries resulting from an independent contractor's performance of inherently dangerous work are sustained by an employee of a contractor, and thus subject to workers' compensation coverage, the doctrine of peculiar risk affords no basis for that employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries. (5 Cal.4th at 702.)

The Supreme Court later recognized two exceptions to the Privette doctrine: “where the hirer either withholds critical information regarding a concealed hazard …; or retains control over the contractor's work and actually exercises that control in a way that affirmatively contributes to the worker's injury.” (Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256, 264.)

Here, CSU asserts that it “hired Plaintiff Salas’ employer, Bomel Construction, to perform the work that Plaintiff Salas was engaged in at the time of the accident … Under the Project contract, Bomel was solely responsible for all work on the Project and all workers.” (MSJ 10:20–22.) Therefore, CSU argues that Plaintiff’s claims are “limited to workers’ compensation benefits from his employer under Labor Code section 3600 … Plaintiff has conceded that Bomel’s Worker’s Compensation Insurance may cover his alleged injuries.” (Id. at 10:12–16.)

CSU further argues that neither of the recognized exceptions to the Privette doctrine apply to the facts of the instant case. There is no concealed hazard alleged in this action, and Plaintiff cannot establish that CSU retained sufficient control over Bomel’s construction work in a way that contributed to Plaintiff’s injury. As CSU observes, “Plaintiff has alleged, at most, that CSU had a general supervisory role over the Project, to wit, that CSU operated an office on the premises where the unprovoked attack occurred, that two members of the CSU planning, design and construction department walked and monitored the Project, and managed and scheduled Bomel’s work.” (Id. at 12:5–8, citing TAC.)

In support of its arguments, CSU proffers the sworn declaration of Catherine Kniazewycz, the Associate Campus Architect of California State University, Northridge, and the contract between CSU and Bomel retaining Bomel’s services as a general contractor to design and build a parking structure on campus. This evidence shows that notwithstanding the allegations in the TAC, “CSU did not maintain any general supervisory role over the Project and did not engage in any supervisory activities relative to Bomel’s work on the Project.” (Decl. of Catherine Kniazewycz, ¶ 3.) “At no point did the Department direct Bomel’s activities, dictate how Bomel’s employees were to complete their work, or provide Bomel employees with equipment or supplies needed to perform their tasks.” (Id. at ¶ 5.)

Based on the foregoing, the Court finds that CSU has met its initial burden to show that liability cannot attach under Government Code section 815.4. As Plaintiff has failed to oppose the instant motion, the Court finds that there is no triable issue of material fact as to this theory of liability.

As Plaintiff has failed to offer any responsive evidence to show a triable issue of material fact as to the duty owed to him by CSU, the Court finds that CSU is entitled to summary judgment.

CONCLUSION 

The unopposed motion is granted.