Judge: Anne Hwang, Case: 22STCV04537, Date: 2023-09-28 Tentative Ruling

Case Number: 22STCV04537    Hearing Date: April 12, 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.      Defendant’s Separate Statement of Undisputed Material Facts

3.      Request for Judicial Notice

4.      Evidence in Support of Motion

OPPOSITION PAPERS

1.      None

REPLY PAPERS

1.      None

BACKGROUND

On February 4, 2022, Plaintiff Adelmo Rivera (“Plaintiff”) filed a complaint against Defendants F&M Building Construction, Inc., Palisades Village Center Ass., LLC, and Does 1 to 50 for negligence and negligence per se. Plaintiff alleges he was hired by Defendants to perform construction services on Palisades Village Center Ass., LLC’s property. (Complaint ¶ 8–9.) According to the complaint, on April 16, 2020, Plaintiff was injured while doing work on the property after a large piece of metal fell on his head. (Id. ¶ 11.)

Defendant Palisades Village Center Associates, LLC (“Defendant”) now moves for summary judgment against Plaintiff arguing that liability is barred under Privette v. Superior Court (1993) 5 Cal.4th 689 and that no exceptions apply. No opposition has been filed.

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”].)                       

JUDICIAL NOTICE

The Court takes judicial notice of Plaintiff’s complaint, but declines to take judicial notice of exhibits E, F, and H, instead considering the exhibits with Defendant’s other evidence.  

DISCUSSION

Negligence

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 negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 218, quotation marks omitted.) “The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Johnson v. Honeywell International Inc. (2009) 179 Cal.App.4th 549, 555, quotation marks and brackets omitted.)   

“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

Ordinarily, the person hiring an independent contractor is not liable to the contractor's employees for workplace injuries.  The independent contractor's employer's liability for such injuries is limited by workers' compensation, as is the liability of the party who hired the contractor.  (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 workplace 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.  (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.)

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].)

Analysis

Here, Defendant argues it is not liable under Privette since it hired Ayala Development as general contractor for the renovation project (delegating all duties to Ayala), which then hired F&M Building Construction, Inc., who employed Plaintiff. Defendant offers the following facts:

-          On or about January 20, 2020, PVCA hired Ayala Development to perform the common area façade renovation project on the condominium building. (UMF 2.)

-          Ayala Development is a licensed general contractor with California State License Number # 1006608. (UMF 3.)

-          Ayala Development retained FMBC (hereinafter referred to as “FMBC”) to perform general labor work during the common area façade renovation project. (UMF 4.)

-          FMBC is a licensed contractor, California License Number # 1054534. (UMF 5.)

-          FMBC was retained as an independent contractor, who was aware of and acknowledged the condition of the condominium building when FMBC was retained to perform general labor work for the Project. (UMF 6.)

-          Plaintiff was a day laborer hired by Victor Martinez of F&M Building Construction Inc., to mix concrete for a construction project at 881 Alma Real Drive, Pacific Palisades, CA. (UMF 7.)

-          Plaintiff brought his own tools, and set up a workplace. (UMF 9.)

-          Plaintiff believes an employee from F&M Building Construction, Inc. was responsible for the object striking him. (UMF 12.)

-          FMBC maintains workers compensation insurance through the State Compensation Insurance Fund, Policy No. 9274568, effective April 15, 2020 – April 15, 2024. (UMF 14.)

-          Plaintiff is receiving benefits through FMBC’s compensation insurance policy as a result of an incident that occurred on April 15, 2020. (UMF 15.)

-          Pursuant to the Vendor Contract between Ayala Development, Inc. (Vendor) and Palisades Village Center, LLC (Owner c/o Sandstone Properties, Inc. – Agent) Ayala Development agreed to manage and oversea the common area façade renovation project (hereinafter referred to as “Project.”). (UMF 16.)

-          PVCA played no role in the management and overseeing of the Project. (UMF 17.)

-          PVCA had no involvement in the means or methods of the work FMBC was hired to perform. (UMF 22.)

-          PVCA did not supervise, instruct, oversee, or control FMBC employees' work nor did PVCA determine or instruct FMBC employees about the manner they should work in performing their job. (UMF 24.)

Here, Defendant has met its initial burden of establishing that the Privette doctrine applies and that no recognized exceptions are applicable. Defendant sets forth evidence that Defendant contracted with Ayala Development (“Ayala”) to manage and oversee the subject project, and that Ayala later retained F&M Building Construction, Inc. (“F&M”) for work. (Garcia Decl. ¶ 6–7.) In discovery responses, Plaintiff stated that he was hired by Victor Martinez of F&M to perform work on the site. (Hall Decl., Exh. A Form Interr. 2.11; Exh. B, Special Interr. 1.) Therefore, Defendant has set forth sufficient evidence that it contracted with Ayala, an independent contractor, delegating its duties surrounding this site, and precluding liability under Privette. Additionally, the evidence set forth does not show that Defendant retained control over Plaintiff’s work, or that Plaintiff’s injury was caused by a concealed hazard since Plaintiff responded in discovery that an employee of F&M was responsible for the falling metal plate. (Exh. B, Special Interr. 2.) Therefore, the burden shifts to Plaintiff to establish a triable issue of fact.

Since Plaintiff has not filed an opposition, he fails to meet his burden. Therefore, the motion for summary judgment is granted.

CONCLUSION AND ORDER

Based on the foregoing, Defendant Palisades Village Center Associates, LLC’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.