Judge: Anne Hwang, Case: 20STCV20755, Date: 2024-01-31 Tentative Ruling

Case Number: 20STCV20755    Hearing Date: January 31, 2024    Dept: 32

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. 

TENTATIVE RULING

MOVING PAPERS

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

2.      Separate Statement of Undisputed Material Facts

3.      Declaration of Christina S. Karayan

4.      Declaration of Susan Rappaport

5.      Defendant’s Compendium of Exhibits

OPPOSITION PAPERS

1.      Plaintiff’s Opposition

2.      Plaintiff’s Separate Statement of Undisputed Facts in Opposition

3.      Declaration of Adam Lugo

4.      Norguard Insurance Company’s Opposition

5.      Norguard’s Separate Statement of Disputed and Undisputed Material Facts in Opposition

6.      Objections to Evidence Submitted by Plaintiff Norguard Insurance

7.      Norguard Insurance Company’s Compendium of Exhibits in Support of Opposition

REPLY PAPERS

1.      Defendant’s Omnibus Reply

2.      Defendant’s Response to Additional Statement of Facts Submitted by Plaintiff

3.      Defendant’s Objections to Plaintiff’s Evidence

4.      Defendant’s Response to Additional Statement of Facts Submitted by Plaintiff Norguard

5.      Defendant’s Objections to Plaintiff Norguard Insurance Company’s Evidence in Support

BACKGROUND

On June 2, 2020, Plaintiff Earl Gibson (“Plaintiff”) filed a complaint against Defendants Glendon-Monica HOA and Does 1 to 25 for general negligence and premises liability for injury that occurred at 1944 Glendon Ave. Los Angeles, California (“Premises”). Plaintiff alleges that on June 27, 2018, he was injured on the Premises while using a ladder that was attached to the building. While using said ladder, the ladder detached from the building and Plaintiff fell. Plaintiff was working as an air conditioner repairer at the time. Plaintiff alleges that Defendant Glendon-Monica HOA owned, maintained, operated, and controlled the Premises.       

Defendant Glendon-Monica HOA (“Defendant”) now moves for summary judgment, or in the alternative, Summary Adjudication, against Plaintiff arguing that no triable issue of fact exists. Plaintiff and Plaintiff-in-intervention Norguard Insurance Company (“Norguard”), who has paid worker’s compensation benefits for Plaintiff, opposes and Defendant replies.

LEGAL STANDARD

“[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”].)                       

EVIDENTIARY OBJECTIONS

The Court declines to rule on Norguard’s and Defendant’s evidentiary objections as they have no effect on the ruling herein.

DISCUSSION

Negligence and Premises Liability

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.) Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.)

“The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; see Civil Code § 1714.)

Privette Doctrine

Causes of action available to an injured employee of an independent contractor against the hirer of that contractor are limited.  Ordinarily, the person hiring an independent contractor is not liable to the contractor's employees for on-the-job injuries.  The independent contractor's employer's liability for such injuries is limited by workers' compensation, and the party who hired the contractor likewise gets the benefit of that coverage.  (Privette v. Superior Court (1993) 5 Cal.4th 689, 693, 700-02; Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1244-1245; Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 264-70.) 

The Supreme Court has held that it would be unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for its worker’s on-the-job injuries, is limited to providing workers’ compensation coverage.  As such, even if there is evidence that the hirer was directly liable for the plaintiff’s injuries, recovery is not available under the peculiar risk doctrine.  (Privette, supra, 5 Cal.4th at 693, 700-02.) 

Workers’ compensation “ ‘is the exclusive remedy against an employer for injury or death of an employee.’ [Citation.]” … In Privette, the Supreme Court held that “an independent contractor’s employee should not be allowed to recover damages from the contractor’s hirer, who ‘is indirectly paying for the cost of [workers’ compensation] coverage, which the [hired] contractor presumably has calculated into the contract price.’ [Citation.]” [Citation.]  

The Privette holding was based on the principle that the hirer of an independent contractor generally has “ ‘ “ ‘no right of control as to the mode of doing the work contracted for.’ ” ’ ” [Citation.] Precisely because the hirer “has no obligation to specify the precautions an independent hired contractor should take for the safety of the contractor’s employees, ... [a]bsent an obligation, there can be no liability in tort.” [Citation.]  

(Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 640.)  Moreover, “[t]he Privette line of decisions establishes a presumption that an independent contractor’s hirer ‘delegates to that contractor its tort law duty to provide a safe workplace for the contractor’s employees.’ [Citation.]”  (Id. at 642.)  

Privette is based on the presumption that the hirer of an independent contractor generally delegates to the contractor responsibility for supervising the job, including responsibility for looking after employee safety. (Ramirez v. PK I Plaza 580 SC LP (2022) 85 Cal.App.5th 252, 265.) In line with this presumption, only the hirer of an independent contractor falls within the Privette doctrine. (See id. [holding that landowner did not hire plaintiff for purposes of the Privette doctrine where landowner’s tenant hired the plaintiff independent contractor to perform work on the premises].) The person asserting non-liability under Privette must “delegate a responsibility for ensuring the worksite's safety, either directly or ‘through the chain of delegation.’” (Id. [quoting Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 528–29.)  This delegation is “is project-specific, meaning it involves a duty limited not only to the contracted-for work but also to the place where that work occurs.” (Id. at 268.)

1.      Exceptions to the Privette Doctrine

“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.

(Gonzalez v. Mathis (2021) 12 Cal.5th 29, 37–38 [cleaned up].)

2.      Analysis

Here, Defendant argues it is not liable under Privette since Plaintiff was working as an independent contractor when he was injured. Defendant offers the following facts:

-          At the time of the incident, Plaintiff was employed with Garmagarm International, Inc. which does business as Gama Central Heating & Air Conditioning (“Gama”). (UMF 10.)

-          Gama provides heating and air conditioning and ventilation services to industrial, commercial and residential properties. (UMF 12.)

-          The Glendon-Monica HOA was established to govern the Glendon Monica condominium complex. (UMF 18.)

-          Pursuant to the Covenants Conditions & Restrictions, each unit owner is a member of the Glendon-Monica HOA. (UMF 19.)

-          The Covenants Conditions & Restrictions establish the HOA is responsible for maintaining the common areas while unit owners are responsible for maintaining their units. (UMF 20.)

-          On the day of the incident, [Plaintiff] recalls receiving an assignment from his coworker “Al” about having to report to Glendon-Monica HOA to perform work on some air conditioning equipment. (UMF 21.)

-          Plaintiff and Al were told to perform maintenance and troubleshooting of the unit. (UMF 24.)

-          When they arrived at the property, Plaintiff and Al went to the resident’s unit and discussed what issues she was having. (UMF 25.)

-          After speaking with the resident, Al and Plaintiff went onto the roof to try and locate the air conditioning unit. (UMF 27.)

-          They approached the ladder which Al believe[d] led to the air conditioning unit. (UMF 29.)

Defendant fails to meet its burden that it hired Plaintiff for purposes of the Privette doctrine. Defendant argues in its reply brief that Privette applies because each unit owner is a member of the Glendon-Monica HOA and therefore the doctrine applies “equally to the actual hirer as it does to agents, independent contractors and others in privity.” (Reply at p. 2.) However, Defendant does not set forth evidence regarding delegation of a duty involving the air conditioning unit to the unit owner. (See Ramirez, supra, 85 Cal.App.5^th at 267–68 [finding that based on the terms of the lease agreement, the landlord did not delegate the duty to provide a safe workplace to the tenant].) Here, Defendant has not provided any evidence in its separate statement regarding maintenance of the air conditioning unit as set forth in the CC&Rs, nor is a copy of the CC&Rs included in the evidence presented by Defendant. Accordingly, the motion for summary judgment or, in the alternative, summary adjudication is denied.[1]

CONCLUSION AND ORDER

Based on the foregoing, Defendant Glendon-Monica HOA’s Motion for Summary Judgment/Adjudication is DENIED.

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