Judge Anne Hwang, Case Number: 20STCV06823, Date: 2023-10-26 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities

On February 21, 2020, Plaintiff Ronald Ortiz (Plaintiff) filed a complaint against Defendants Randall Pomeroy, Janell Pomeroy, and Does 1 to 100 for negligence and premises liability after falling off a roof on property owned by Randall and Janell Pomeroy (collectively “the Pomeroys”). On March 30, 2022, Plaintiff added Moving Defendant NRG Upgrade to the complaint as Doe 1. The Complaint alleges that a “dangerous condition was known, or, in the exercise of ordinary and reasonable care, should have been known to Defendant.” (Complaint ¶ 19.) It also alleges that the defendants “negligently, carelessly, and recklessly owned, maintained, controlled, possessed, repaired, inspected, operated, designed, built, managed and cleaned” the subject premises at 5378 Rodeo Road, Los Angeles 90016, where the injury took place. (Id. ¶ 8, 17.) The alleged injury took place on March 14, 2019. (Id.)

Defendant BNH, Inc. dba NRG Upgrade (NRG) now moves for summary judgment against Plaintiff arguing that no triable issue of fact exists. Plaintiff opposes and Defendant replies.

“[T]he party moving for summary judgment 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[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Under Labor Code section 3602, “[w]here the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer.” (Lab. Code, § 3602, subd. (a).) Section 3602, subdivisions (b) and (c) set forth the exceptions to the exclusive remedy provision of subdivision (a).

Additionally, the exclusive remedy provision of Section 3602, subdivision (a) does not apply where an employer fails to secure the payment of compensation or where the employee’s injury or death is proximately caused by the employer's knowing removal of, or knowing failure to install, a point of operation guard on a power press. (See Lab. Code, §§ 3607, 4558.)

Labor Code “[s]ection 3351, which defines ‘employee’ for purposes of workers' compensation, provides in subdivision (d) that an employee is ‘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.’” (Mendoza v. Brodeur (2006) 142 Cal.App.4th 72, 76 [citing Labor Code § 3351].) “Section 3352 excludes certain persons from the section 3351 definitions of “employee,” and thus excludes them from workers' compensation coverage.” (Id.)

In Privette v. Superior Court, the California Supreme Court affirmed that “[u]nder the Workers' Compensation Act, all employees are automatically entitled to recover benefits for injuries “arising out of and¿in the course of the employment,” and that “[w]hen the conditions of compensation exist, recovery under the workers' compensation scheme “is the exclusive remedy against an employer for injury or death of an employee.” (Privette v. Superior Court (1993) 5 Cal.4th 689, 697.) Labor Code section 2750.5 provides “[t]here is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required… or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor.”

The language of section 2750.5 could not be clearer. The plain meaning of the penultimate paragraph of section 2750.5 conditions a finding of independent contractor status as to a person performing services for which a contractor's license is required upon possession by that person of a valid license. By stating that a license is a condition of the status, the Legislature has unequivocally stated that the person lacking the requisite license may not be an independent contractor. Thus, if one performs work on a construction job for which a license is required, without holding a valid license, one is by definition an employee, not an independent contractor, pursuant to section 2750.5.

(Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 330 [cleaned up].) Further, “[u]nder the plain meaning of section 2750.5, any unlicensed subcontractor is the employee of the general contractor; consequently, as a matter of law, the employee of an unlicensed subcontractor is the employee of the principal contractor.” (Ibid.) “The rule of workers’ compensation exclusivity, which shields an independent contractor who pays workers’ compensation insurance premiums from further liability to its employee, should equally apply to the person hiring the contractor because the hirer has indirectly paid the cost of such coverage inasmuch as it was presumably calculated into the contract price.” (Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1244 [Privette/ Toland bars an employee of an independent contractor from bringing a negligent hiring action against the hirer of the contractor].)

“At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work.” (Privette v. Superior Court (1993) 5 Cal.4th 689, 693 (hereafter Privette.) “Central to this rule of nonliability was the recognition that a person who hired an independent contractor had no right of control as to the mode of doing the work contracted for.” (Ibid.)

Subsequently, in Gonzalez v. Mathis, the California Supreme Court revisited the Privette doctrine and the exceptions to the doctrine.

There is a strong presumption under California law that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety. This means that a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job. Commonly referred to as the Privette doctrine, the presumption originally stemmed from the following rationales: First, hirers usually have no right to control an independent contractor's work. Second, contractors can factor in the cost of safety precautions and insurance coverage in the contract price. Third, contractors are able to obtain workers’ compensation to cover any on-the-job injuries. Finally, contractors are typically hired for their expertise, which enables them to perform the contracted-for work safely and successfully.

We have nevertheless identified two limited circumstances in which the presumption is overcome. First, in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081 (Hooker), we held that a hirer may be liable when it retains control over any part of the independent contractor's work and negligently exercises that retained control in a manner that affirmatively contributes to the worker's injury. Second, in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 36 Cal.Rptr.3d 495, 123 P.3d 931 (Kinsman), we held that a landowner who hires an independent contractor may be liable if the landowner knew, or should have known, of a concealed hazard on the property that the contractor did not know of and could not have reasonably discovered, and the landowner failed to warn the contractor of the hazard.

NRG argues that the Pomeroys hired it to replace their roof and that it subcontracted the work to Icon Remodeling, Inc., Plaintiff’s ostensible employer. Therefore, it argues that Plaintiff is an independent contractor and that the Privette exceptions do not apply. In the event that NRG is deemed Plaintiff’s employer, it argues Plaintiff’s exclusive remedy is workers’ compensation.

The following facts are undisputed: on February 11, 2019 Randall Pomeroy contracted with NRG, a Class B licensed general contractor, to replace the roof on their former residence located at 5375 Rodeo Road, Los Angeles, California; NRG is a licensed general contractor in good standing and carries worker’s compensation insurance (UMF 2); Icon was the only entity subcontracted by NRG to perform work on the Pomeroy’s residence (UMF 5); NRG’s principal was not onsite when Plaintiff fell from the roof (UMF 9); Icon hired Plaintiff to perform roofing work, Plaintiff was not under the influence of substances when he fell, and Icon carried worker’s compensation insurance (UMF 11); and NRG never held any ownership interest in the subject property. (UMF 13–14.)

- NRG subcontracted with Icon Remodeling, Inc. (“Icon”) to perform the roof replacement work on the Pomeroys’ residence with its own personnel and by its own means and methods. (UMF 3.)

- Icon was a licensed general contractor in good standing and carried worker’s compensation insurance. (UMF 4.)

- Ortiz has never been employed by NRG, and was not employed by NRG for the Pomeroy roofing project. (UMF 6.)

- No other persons or entities were performing work on the Pomeroy residence on March 14, 2019 except Icon. (UMF 7.)

- On March 14, 2019, Plaintiff slipped and fell on a piece of plywood while working on the Pomeroy’s roof. (UMF 8.)

- NRG’s principal was not onsite and had not directed the manner, means, or methods of Icon’s (or Mr. Ortiz’s) roofing work. (UMF 9.)

- NRG’s principal has no knowledge about any alleged hazardous conditions on the Pomeroy’s roof or about the condition of the plywood plaintiff claims caused his slip and fall. (UMF 10.)

NRG establishes that it subcontracted with Icon to perform the roof work, which then hired Plaintiff. However, Icon was not licensed with a roofing license to perform the roof work. As a subcontractor not licensed for the particular work, Icon is presumed to be the employee of NRG under section 2750.5.[1] Plaintiff was hired by Icon.

Plaintiff argues that the worker’s compensation exclusivity rule does not apply because Plaintiff is excluded from workers’ compensation coverage pursuant to Labor Code section 3352(h). However, as NRG points out, section 3352(h) relates to a person defined in section 3351(d), which provides a person “employed by the owner or occupant of a residential dwelling…” As NRG argues, NRG is not an owner or occupant of a residential dwelling, but rather, is a licensed general contractor. Plaintiff does not argue any other exclusion from worker’s compensation coverage. Accordingly, Plaintiff has not set forth a triable issue of fact that worker’s compensation is not his exclusive remedy.

Based on the foregoing, Defendant BNH Inc. dba NRG Upgrade’s Motion for Summary Judgment is GRANTED. Defendant shall file and serve a proposed judgment within 10 days.

Defendant shall give notice of the Court’s order and file a proof of service of such.

[1] The cases cited by NRG do not expressly hold that section 2750.5 conditions the finding of independent contractor status as to a person holding any license, even if not the proper license. (Reply at p. 3.) NRG also does not argue that Icon was properly licensed to perform roof work under a Class B General Building Contractor license.

DEPT:	32
HEARING DATE:	December 18, 2023
CASE NUMBER:	20STCV06823
MOTIONS:	Motion for Summary Judgment
MOVING PARTY:	Defendant BNH Inc. dba NRG Upgrade
OPPOSING PARTY:	Plaintiff Ronald Ortiz