Judge Ashfaq G. Chowdhury, Case Number: 21STCV00226, Date: 2024-04-12 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 21STCV00226, Date: 2024-04-12 Tentative Ruling

Case Number: 21STCV00226 Hearing Date: April 12, 2024 Dept: E

Hearing Date:           4/12/2024 – 8:30am
Case No.¿                                          21STCV00226
Trial Date:             05/13/2024
Case Names:             Bi Yun Cheng, et al. v. Home 2001, Inc., et al.

FAC
BI YUN CHENG, an individual; XINYI RUAN, an individual; RYAN RUAN, a minor individual by and through his Guardian Ad Litem, BI YUN CHENG; v. HOME 2001, INC., a business entity; TERRY TUNG, an individual; HSIU HSIA TSAI, an individual; INNER GOLD, LLC, a business entity; CASEY TUNG, an individual; CHUANG TO LEE, an individual; SHUNLU KAO, an individual; and DOES 1 to 100

Cross-Complaint (filed 12/16/2021)
INNER GOLD, LLC, CHUANG TO LEE, and SHUNLU KAO, v. ANDREW DAI-HAU LIU, an individual, THE ELITE GROUP PROPERTY INSPECTION SERVICE, INC., a California corporation; and ROES 1 through 100, inclusive

Cross-Complaint (filed 5/12/2022)
THE ELITE GROUP PROPERTY INSPECTION SERVICE, INC., a California Corporation v. INNER GOLD, LLC, a California corporation, CHUANG TO LEE, an individual, SHUNLU KAO, an individual, and ROES 1 through 50, inclusive,

2 TENTATIVE RULINGS ON MSJ/MSA

BACKGROUND

The two MSJ/MSAs on calendar for 4/12/2024 pertain to several Defendants filing MSJ/MSAs against the FAC.

The instant FAC alleges two causes of action against Defendants for (1) Wrongful Death – Premises Liability and (2) Wrongful Death – Negligence.

This action arises from an incident on or about August 15, 2020, when Decedent, Wen Wei Ruan [not named as a Plaintiff], an alleged repairman and air conditioning technician, was allegedly hired by Defendants to inspect, fix, or troubleshoot an air conditioning unit on the rooftop of an Apartment Complex. (FAC ¶14.)

Plaintiffs allege that when climbing down, Decedent was on the ladder attached to the east side wall of the apartment complex, and the ladder separated from the wall, which caused Decedent and the ladder to fall onto the next-door neighbor’s driveway. (Id.)

Plaintiffs allege that this sudden and unexpected fall caused Decedent to sustain traumatic, severe injuries, among others: blunt head trauma, brain hemorrhage, multiple skull fractures, contusion to the left lateral quadrant, abrasions to the to the upper right lateral back, contusions to the lower right back, a large abrasion to the posterior surface of the left lower extremity, internal bleeding, and head laceration. (Id.)

Plaintiff, Bi Yun Cheng, alleges that Decedent was her husband. (FAC ¶2.)

Plaintiff, Xinyi Ruan, alleges that Decedent was their father. (FAC ¶3.)

Plaintiff, Ryan Ruan, alleges that Decedent was their father. (FAC ¶4.)

Plaintiffs allege that Defendants owned, possessed, maintained, and controlled the Apartment Complex. (FAC ¶21.)

Plaintiffs allege that Defendants were aware of the defective nature of the ladder and that it was reasonably foreseeable that a third party, namely the Decedent, would use this ladder to inspect and repair the air conditioning unit on the roof of the apartment complex and use this ladder for that purpose. (FAC ¶16.)

Plaintiffs allege that in so using the ladder for that purpose, the ladder broke off from the wall due to its negligently maintained condition and therefore resulting in Decedent’s death. (Id.)

MOTION 1

RELIEF REQUESTED¿
“Defendants, HOME 2001, INC.; TERRY TUNG; and HSIU HSIA TSAI (collectively, “Defendants”) will and hereby do move for Summary Judgment pursuant to CCP §437c(a), or in the Alternative, Summary Adjudication pursuant to CCP §437c(f), on Plaintiffs’ First Cause of Action for Premises Liability and Second Cause of Action for Negligence against Defendants on the grounds that: (1) under the Privette doctrine, Defendants cannot be liable for Mr. Ruan’s injuries and death; (2) there are insufficient facts on which to hold Ms. Tsai liable; (3) because Mr. Ruan falsely represented to Mr. Tung that Mr. Ruan was a licensed contractor, Labor Code § 2750.5 does not apply, and Mr. Ruan is not deemed the employee of any of Defendants; and (4) none of Defendants can be held liable under Plaintiff’s premises liability claim, because no defendant was a possessor of the subject property.

This Motion for Summary Judgment, or in the Alternative, Summary Adjudication, is based upon this Notice, the accompanying Memorandum of Points and Authorities, Defendants’ Separate Statement of Undisputed Material Facts filed and served concurrently herewith, and supporting evidence required by CCP § 437c(b) in the form of the Declaration of Terry Tung, the Declaration of Hsiu Hsia Tsai, the exhibits, the pleadings, papers and records on file in this action, and on such other oral and documentary evidence as may be presented to the Court at the time of the hearing on this Motion.”

Procedural
Moving Party: Defendants, HOME 2001, INC.; TERRY TUNG; and HSIU HSIA TSAI

Responding Party: Plaintiffs, BI YUN CHENG; XINYI RUAN; and RYAN RUAN, a minor, by and through his Guardian Ad Litem, BI YUN CHENG

Moving Papers: Notice/Motion; Separate Statement; Decl. Hsiu Hsia Tsai; Decl. Terry Tung;

Opposing Papers: Opposition; Separate Statement; Decl. Howard;

Reply Papers: Reply; Evidentiary Objections

Section 437c(a)(2)

Under Code of Civil Procedure (“CCP”) section 437c(2), notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California. (Code Civ. Proc., §437c(a)(2).)

Here, the motion is timely.

The Court does have a question as to whether all parties were served with this motion.

Section 437c(a)(3)
“The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.” (CCP §437c(a)(3).)

Here, the motion is timely.

LEGAL STANDARD MOTION SUMMARY JUDGMENT
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(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, 67, 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. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto. (CCP § 437c(p)(2).) 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.)

“Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (CCP §437c(p)(2).)

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant’s showing. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)

LEGAL STANDARD – Negligence and Premises Liability

Elements of Premises Liability & Negligence
In order to succeed on a cause of action for negligence, plaintiffs have the burden of proving the following essential elements:

(1) the defendant had a legal duty to conform to a standard of conduct to protect the plaintiffs;

(2) the defendant failed to meet this standard of conduct;

(3) the defendant’s failure was the proximate or legal cause of the resulting injury; and

(4) the plaintiffs were damaged.

(See United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594.)

The elements of a cause of action for premises liability are the same as those for negligence. (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207 citing Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)

Accordingly, the plaintiff must prove a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury. (Jones v. Awad, supra, 39 Cal.App.5th at 1207 citing Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573.)

LEGAL STANDARD - Privette
Privette
Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work. (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594 citing Privette v. Superior Court (1993) 5 Cal.4th 689.)

The case of Gonzalez v. Mathis (2021) 12 Cal.5th 29 generally explains the premise behind the Privette 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. (See generally Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 (Privette); SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 129 Cal.Rptr.3d 601, 258 P.3d 737 (SeaBright).) 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. (Privette, at p. 693, 21 Cal.Rptr.2d 72, 854 P.2d 721.) Second, contractors can factor in “the cost of safety precautions and insurance coverage in the contract price.” (Ibid.) Third, contractors are able to obtain workers’ compensation to cover any on-the-job injuries. (Id. at pp. 698–700, 21 Cal.Rptr.2d 72, 854 P.2d 721.) Finally, contractors are typically hired for their expertise, which enables them to perform the contracted-for work safely and successfully. (See id. at p. 700, 21 Cal.Rptr.2d 72, 854 P.2d 721; Rest.3d Torts, Liability for Physical and Emotional Harm, § 57, com. c, p. 402.)

(Gonzalez v. Mathis (2021) 12 Cal.5th 29, 37-38.)

The Supreme Court of California has nevertheless identified two limited circumstances in which the presumption is overcome. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 38.)

First, in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, the Supreme Court 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. (Gonzalez supra, 12 Cal.5th at 38 citing Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202.)

“Under the retained-control exception to the Privette doctrine, an affirmative contribution occurs when a general contractor ‘is actively involved in, or asserts control over, the manner of performance of the contracted work. [Citation.] Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. [Citations.] [Citation.]” (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 644 citing Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 215.)

“In the alternative to showing that a hirer directed an independent contractor’s employee to perform his work in a particular manner, an employee may also seek to hold a hirer liable for any failure to undertake a promised safety measure. ‘[A]ffirmative contribution need not always be in the form of actively directing a contractor or contractor’s employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer’s negligent failure to do so should result in liability if such negligence leads to an employee injury.’” (Alvarez supra, 13 Cal.App.5th at 645 citing Hooker supra, 27 Cal.4th at 212.)

The second exception to Privette deals with concealed hazards. In Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, the Supreme Court held that the hirer as landowner may be independently liable to the contractor’s employee, even if it does not retain control over the work, if (1) it knows or reasonably should know of a concealed, pre-existing hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675.)

A third exception to Privette was not recognized with respect to unconcealed/known hazards in Gonzalez v. Mathis:

We granted review in this case to decide whether a landowner may also be liable for injuries to an independent contractor or its workers that result from a known hazard on the premises where there were no reasonable safety precautions it could have adopted to avoid or minimize the hazard. We conclude that permitting liability under such circumstances, thereby creating a broad third exception to the Privette doctrine, would be fundamentally inconsistent with the doctrine. When a landowner hires an independent contractor to perform a task on the landowner's property, the landowner presumptively delegates to the contractor a duty to ensure the safety of its workers. This encompasses a duty to determine whether the work can be performed safely despite a known hazard on the worksite. As between a landowner and an independent contractor, the law assumes that the independent contractor is typically better positioned to determine whether and how open and obvious safety hazards on the worksite might be addressed in performing the work. Our case law makes clear that, where the hirer has effectively delegated its duties, there is no affirmative obligation on the hirer's part to independently assess workplace safety. Thus, unless a landowner retains control over any part of the contractor's work and negligently exercises that retained control in a manner that affirmatively contributes to the injury (Hooker, supra, 27 Cal.4th at p. 202, 115 Cal.Rptr.2d 853, 38 P.3d 1081), it will not be liable to an independent contractor or its workers for an injury resulting from a known hazard on the premises.

(Gonzalez v. Mathis (2021) 12 Cal.5th 29, 38-39.)

TENTATIVE RULING MOTION 1

Further background relevant to Motion 1
Moving Defendants (Movants) as to the instant MSJ/MSA are Home 2001, Inc.; Terry Tung; and Hsiu Hsia Tsai.

Home 2001, Inc. was and is the property manager for the apartment building where the incident forming the subject matter of this lawsuit occurred. (UMF 4.) When a tenant at the Apartment has a complaint, they call Home 2001, Inc. and speak to Mr. Tung. (UMF 5.) When there is a complaint, Home 2001, Inc. is responsible for finding a contractor who can fix the problem. (UMF 3.) Any repair for the Apartment that costs more than $250.00 requires the approval of the Apartment owner’s representative, Andrew Wang. (UMF 6.)

Continuing the Motion
Plaintiffs argue that this motion should be continued because:

The court should note that Plaintiffs, as a result of discovery investigation, have a pending motion for leave to amend and to file their Second Amended Complaint (SAC). It should be noted, that Plaintiffs have included allegations as against Defendants Home 2001, Tung, and Tsai, as property managers, that they hired decedent Wen Wei Ruan (“Decedent”) to repair an air conditioner, while he was unlicensed as a contractor to perform such work as required under California law. As will be detailed below, this fact is disputed by the parties and potentially reclassifies decedent as an employee, rather than an independent contractor, of Defendants Home 2001, Tung, and Tsai, who would be uninsured employers related to workers compensation insurance coverage. Therefore, this court should either continue this present motion for resolution of Plaintiffs’ pending motions or take into consideration Plaintiff’s additional proposed allegations filed in the SAC.

(Pl. Oppo. p. 3.)

Here, the Court is confused as to the legal basis/authority that Plaintiffs are requesting this motion be continued under. Plaintiffs cite to no legal authority that seeking leave to amend and filing a new complaint is a basis for continuing a motion for summary judgment.

What is also confusing about Plaintiffs’ request for a continuance is that they primarily seem to want to add allegations that Decedent was an employee, not an independent contractor, but moving Defendants bring up this as one of their issues in their motion.

In the Opposition, Plaintiffs dispute this issue. The Court is uncertain as to why Plaintiffs are seeking to add allegations with respect to Decedent being an employee and not an independent contractor when Defendants seem to believe this to already be at issue as indicated in their moving papers and as indicated in Plaintiffs’ Opposition as they dispute the issue.

The Court has reviewed the Plaintiff’s Motion for Leave to Amend and to File a Second Amended Complaint: It does not appear that the proposed changes would materially change the analysis on these two motions, but the Court will ask Plaintiffs to elaborate. The Court will hear argument.

Further, to the extent that Plaintiffs briefly mention “as a result of discovery investigation,” it seems unclear if Plaintiffs are trying to seek a continuance based on the theory that facts essential to justify the opposition may exist but cannot be presented. The Court is unclear, because as mentioned before, Plaintiffs cite no legal authority for the basis for their request for a continuance.

CCP § 437c(h) states, “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”

Plaintiffs don’t cite § 437c(h).

Further, there are no affidavits submitted with the Opposition that state that facts essential to justify opposition may exist but cannot, for reasons stated, be presented. Not only are there no affidavits submitted along these lines, but the Opposition itself doesn’t even seem to be arguing that this is the case.

Hsiu Hsia Tsai – Issue 2
Defendants include a separate statement that lists four issues for this motion. Those issues are labeled in Defendants’ separate statement as follows: (1) “Issue 1: Plaintiffs’ Claims Against Defendants Are Barred by the Privette Doctrine”; (2) “Issue 2: There Are Insufficient Facts to Hold Ms. Tsai Liable on Plaintiffs’ Claims”; (3) “Issue 3: Because Mr. Ruan Falsely Represented to Mr. Tung That Mr. Ruan Was a Licensed Contractor, Labor Code § 2750.5 Does Not Apply, and Mr. Ruan Is Not Deemed The Employee of Any of Defendants”; and (4) “Issue 4: None Of The Defendants Can Be Held Liable Under Plaintiffs’ Premises Liability Claim, Because No Defendant Was A Possessor Of The Subject Property.”

As a preliminary matter, even though Defendants’ separate statement labels 4 separate issues, Plaintiffs’ separate statement in opposition does not indicate that there are four separate issues to be determined.

Defendants’ separate statement indicates that UMF 1-31 pertains to Issue 1, and that UMF 32-41 pertains to Issue 2. However, Plaintiffs’ separate statement lumps UMF 1-41 all together as if it is one issue.

In any event, “Issue 2: There Are Insufficient Facts to Hold Ms. Tsai Liable on Plaintiffs’ Claims,” pertains to UMF 32-41.

Defendants argue that Ms. Tsai had no induvial involvement in the relevant facts of this case and cannot be liable for Mr. Ruan’s injuries.

All of Defendants’ UMF of 32-41 pertaining to Issue 2 went undisputed by Plaintiffs in Plaintiffs’ separate statement. Thus, it appears as if Plaintiffs are not contesting Defendants’ argument that Ms. Tsai cannot be liable.

Therefore, Defendant’s MSJ/MSA with respect to Defendant Hsiu Hsia Tsai is GRANTED.

Poorly/Confusingly Written Motions, Separate Statements, and Citations to Evidence
Issue 1, as labeled in Defendants’ separate statement is labeled as “Plaintiffs’ Claims Against Defendants Are Barred By the Privette Doctrine.”

Defendants’ memorandum argues that under the Privette doctrine, Defendants cannot be held liable for Decedent’s (Mr. Ruan) injuries, and they argue that the exceptions to the Privette doctrine do not apply.

Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work. (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594 citing Privette v. Superior Court (1993) 5 Cal.4th 689.)

The Supreme Court of California has nevertheless identified two limited circumstances in which the presumption is overcome. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 38.)

As a preliminary matter, it is difficult to discern what evidence Defendants believe indicates that the Privette doctrine applies and what evidence Defendants believe indicates that the exceptions to the Privette doctrine do not apply.

Defendants’ separate statement lumps UMF 1-31 together as Issue 1 “Plaintiffs’ Claims Against Defendants Are Barred By the Privette Doctrine.”

One aspect that may be fatal to Defendants’ argument is that Defendants seem to gloss over the key issue of whether Decedent was an independent contractor or an employee.

In the Privette line of cases, the case law doesn’t appear to discuss what must be established to prove someone is an independent contractor versus an employee. The Privette line of cases seems to assume/imply that it is established that there is an independent contractor at issue in those cases because the Privette line of cases don’t discuss what must be done to establish whether or not someone is an independent contractor.

What is also confusing about Defendants’ memorandum and separate statement is that although Defendants label Issue 1 as “Plaintiffs’ Claims Against Defendants Are Barred By The Privette Doctrine,” Issue 3 is labeled as “Because Mr. Ruan Falsely Represented to Mr. Tung That Mr. Ruan Was a Licensed Contractor, Labor Code § 2750.5 Does Not Apply.”

Issue 3 appears as if it would have to necessarily be subsumed within Issue 1 because in order to establish that Privette applies, Defendants need to establish that Decedent was an independent contractor.

Labor Code § 2750.5
For the moment, setting aside Issue 3 of whether or not Labor Code § 2750.5 applies, the Court notes that Labor Code § 2750.5 provides, in relevant part:

There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, 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. Proof of independent contractor status includes satisfactory proof of these factors:

(a) That the individual has the right to control and discretion as to the manner of performance of the contract for services in that the result of the work and not the means by which it is accomplished is the primary factor bargained for.

(b) That the individual is customarily engaged in an independently established business.

(c) That the individual’s independent contractor status is bona fide and not a subterfuge to avoid employee status. A bona fide independent contractor status is further evidenced by the presence of cumulative factors such as substantial investment other than personal services in the business, holding out to be in business for oneself, bargaining for a contract to complete a specific project for compensation by project rather than by time, control over the time and place the work is performed, supplying the tools or instrumentalities used in the work other than tools and instrumentalities normally and customarily provided by employees, hiring employees, performing work that is not ordinarily in the course of the principal’s work, performing work that requires a particular skill, holding a license pursuant to the Business and Professions Code, the intent by the parties that the work relationship is of an independent contractor status, or that the relationship is not severable or terminable at will by the principal but gives rise to an action for breach of contract.

In addition to the factors contained in subdivisions (a), (b), and (c), any person performing any function or activity for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code shall hold a valid contractors’ license as a condition of having independent contractor status.

For purposes of workers’ compensation law, this presumption is a supplement to the existing statutory definitions of employee and independent contractor, and is not intended to lessen the coverage of employees under Division 4 and Division 5.

(Labor Code § 2750.5.)

“Section 2750.5 establishes a ‘rebuttable presumption affecting the burden of proof that a worker performing services for which a [contractor’s] license is required . . . is an employee rather than an independent contractor.’” (Chin v. Namvar (2008) 166 Cal.App.4th 994, 1003-1004 citing Ramirez v. Nelson (2008) 44 Cal.4th 908 [unlicensed contractor who becomes injured on the job is the employee of the party who hired him, not an independent contractor, for purposes of determining eligibility for workers’ compensation benefits].)

Moving Defendants do not address in their moving papers whether or not decedent was performing services for which a contractor’s license is required. The Opposition cites to two websites from the Department of Consumer Affairs Contractors State License Board to support its assertion that Decedent was required to hold a contractor’s license for the job that he was performing at issue in this case. The Reply does not address this issue, and it does not argue that Decedent was not required to hold a contractor’s license. Therefore, the Court will assume for the sake of this motion that Decedent was required to hold a contractor’s license.

Further, before addressing Defendants’ Issue 3 (that Labor Code § 2750.5 does not apply), the Court notes that if it were to assume that the presumption of § 2750.5 applied, Defendants don’t explain in any clear manner how they met their burden in establishing satisfactory proof of factors (a), (b), and (c) for proof of independent contractor status under § 2750.5.

The Court now turns to Issue 3 labeled “Because Mr. Ruan Falsely Represented to Mr. Tung That Mr. Ruan Was a Licensed Contractor, Labor Code § 2750.5 Does Not Apply.”

Defendants first argue, “Defendants anticipate that Plaintiffs will argue that Labor Code § 2750.5 legally makes Mr. Ruan Defendants employee and subjects them to liability. As a preliminary matter, Defendants assert that the Privette analysis above applies to bar Defendants’ liability irrespective of whether Labor Code § 2750.5 applies.” (Def. Mot. p. 9.)

Defendants appear to assume that Decedent was an independent contractor—but whether Decedent was an independent contractor or an employee is in dispute in this case.

Defendants cite Chin v. Namvar (2008) 166 Cal.App.4th 994, 1004 to argue that the presumption of Decedent being an employee under § 2750.5 does not apply because Plaintiffs’ are estopped from asserting that argument.

As stated in Chin :

Notwithstanding the conclusive presumption established by the second to last paragraph of section 2750.5, one who misrepresents himself as a licensed contractor is estopped from asserting that his unlicensed status makes him an employee under the statute. (Rinaldi v. Workers' Comp. Appeals Bd. (1988) 199 Cal.App.3d 217, 223, 244 Cal.Rptr. 637 (Rinaldi ).) “The essence of an estoppel is that the party to be estopped has by false language or conduct ‘led another to do that which he would not otherwise have done and as a result thereof that he has suffered injury.’ [Citation.]” (State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1985) 40 Cal.3d 5, 16, 219 Cal.Rptr. 13, 706 P.2d 1146 (Meier ).) In the absence of a representation by the contractor that he or she is licensed, there can be no *1005 estoppel. (Meier, supra, at p. 16, 219 Cal.Rptr. 13, 706 P.2d 1146; see also Travelers Ins. Co. v. Workers' Comp. Appeals Bd. (1983) 147 Cal.App.3d 1033, 1038, 195 Cal.Rptr. 564 (Travelers ) [same].)

(Chin v. Namvar (2008) 166 Cal.App.4th 994, 1004-1005.)

To support Defendants’ assertion that Plaintiffs are estopped from asserting that Decedent’s unlicensed status makes him an employee, Defendants point to UMF 9-12. UMF 9-12 are as follows:

Mr. Tung was contacted by the decedent, Mr. Ruan. (UMF 9.) Mr. Ruan advised Mr. Tung that Mr. Ruan was a licensed air conditioning contractor and was looking to perform air conditioning repair work. Mr. Tung relied on Mr. Ruan’s representation that Mr. Ruan was properly licensed. Mr. Tung never had any reason to doubt Mr. Ruan’s statement that he was licensed. (UMF 10.) He provided Mr. Tung with his business card. (UMF 11.) Mr. Tung told Mr. Ruan that he would reach out to him if and when his services were needed. (UMF 12.)

(Def. Sep. Stmt. UMF 9-12.)

UMF 9-12 cite to ¶6 of the Tung Declaration as the evidence to support UMF 9-12. Paragraph 6 of the Tung declaration states, “Years ago, I was contacted by the decedent, Mr. Ruan. He advised me that he was a licensed air conditioning contractor and was looking to perform air conditioning repair work. I relied on his representation that he was properly licensed. I never had any reason to doubt his statement that he was licensed. He provided me with his business card, and I told Mr. Ruan that I would reach out to him if and when his services were needed.” (Decl. Tung ¶6.)

In Opposition, Plaintiffs argue that a determination of the employment status of Decedent is a disputed issue of fact that should be litigated at trial before a jury; therefore, the Court should deny this motion.

As stated in Feduniak:

The existence of an estoppel is generally a factual question. (Albers v. County of Los Angeles (1965) 62 Cal.2d 250, 266, 42 Cal.Rptr. 89, 398 P.2d 129.) Therefore, we review the trial court's ruling in the light most favorable to the judgment and determine whether it is supported by substantial evidence. (J.H. McKnight Ranch, Inc. v. Franchise Tax Bd. (2003) 110 Cal.App.4th 978, 991, 2 Cal.Rptr.3d 339; Brookview Condominium Owners' Assn. v. Heltzer Enterprises–Brookview (1990) 218 Cal.App.3d 502, 511, 267 Cal.Rptr. 76.) “ ‘Substantial evidence’ is evidence of ponderable legal significance, evidence that is reasonable, credible and of solid value. [Citation.] ... [Citations.] ... [Citation.] Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence. [Citations.]” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651, 51 Cal.Rptr.2d 907.)

Although estoppel is generally a question of fact, where the facts are undisputed and only one reasonable conclusion can be drawn from them, whether estoppel applies is a question of law. (Albers v. County of Los Angeles, supra, 62 Cal.2d at p. 266, 42 Cal.Rptr. 89, 398 P.2d 129; Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 319, 24 Cal.Rptr.2d 597, 862 P.2d 158.)

(Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1359-1360.)

UMF 9 and 12 go undisputed by Plaintiffs. UMF 10-11 are disputed by Plaintiffs.

First, Plaintiffs object to UMF 10 on the basis of Evid. Code §§ 352 and 1200. Plaintiffs argue that Tung’s claim that Decedent told him that he was a properly licensed air conditioning contractor is self-serving hearsay evidence that is inadmissible.

Evidence Code § 352 states, “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

As to the Evid. Code § 352 objection with respect to ¶6 of the Tung Declaration, the Court does not find this argument availing. Plaintiffs make no clear explanation as to why this objection applies, and based on the Court’s reading of the plain language of § 352, the Court will utilize its discretion and not exclude ¶6 of the Tung Declaration based on Plaintiffs’ § 352 objection.

Evidence Code § 1200 states, “(a) “Hearsay evidence” is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible. (c) This section shall be known and may be cited as the hearsay rule.” (Evid. Code §1200(a)-(c).)

The Court notes that Evid. Code § 1201 states, “A statement within the scope of an exception to the hearsay rule is not inadmissible on the ground that the evidence of such statement is hearsay evidence if such hearsay evidence consists of one or more statements each of which meets the requirements of an exception to the hearsay rule.”

Although Plaintiffs’ objection based on hearsay appears to initially be valid because ¶6 of the Tung Declaration relies on the fact that Tung claims that Decedent told him that he was a properly licensed contractor, the Reply appears to demonstrate that the Tung declaration at ¶6 is not inadmissible because of an exception to the hearsay rule.

Defendants point to Evid. Code § 1227, which states, “Evidence of a statement by the deceased is not made inadmissible by the hearsay rule if offered against the plaintiff in an action for wrongful death brought under Article 6 (commencing with Section 377.60) of Chapter 4 of Title 3 of Part 2 of the Code of Civil Procedure.” (Evid. Code § 1227.)

Therefore, Plaintiffs’ objection to ¶6 of the Tung Declaration is overruled in light of Evid. Code § 1227.

Second, as to UMF 10, it is difficult to determine if Plaintiffs actually sufficiently dispute this issue, or if Plaintiffs are just saying “disputed” while not actually providing evidence to dispute the issue.

Plaintiffs’ attempt to argue that UMF 10 is disputed by citing to (1) Decl. of Vincent D. Howard, Ex. 5 – Decl. of Bin Yun Cheng, ¶¶ 3-4; and (2) Decl. of Vincent D. Howard, Ex. 6 – Decl. of Lee S. Segal, ¶¶ 3-5.

However, the Court notes issues with the evidence that Plaintiffs cite to.

As to Plaintiffs citing to Decl. of Vincent D. Howard, Ex. 6 – Decl. of Lee S. Segal, ¶¶3-5. Howard, Plaintiffs’ counsel, states at ¶8 in his declaration, “A true and correct copy of the declaration of Lee S. Segal is attached hereto as “Exhibit 6.”

Paragraphs 3-5 of the Lee S. Segal declaration states:

3. It is my expert opinion that it falls below the standard of care for a property manager to engage an unlicensed contractor to perform tasks that necessitate a contractor’s license. Such actions can expose the property manager and the property itself to various risks, including substandard workmanship, legal liabilities, and potential safety hazards.

4. As an expert witness in commercial real estate litigation with over 50 years of experience, I affirm that it is both industry standard practice and a legal requirement for licensed contractors to prominently display their license numbers on all forms of advertising, including business cards. This practice serves to provide transparency, accountability, and assurance to clients and consumers regarding the credentials and qualifications of the contractor.

5. In my professional opinion, the standard of care for a property manager includes the responsibility to verify whether the contractor being hired possesses adequate insurance coverage. Failure to do so may result in significant financial and legal consequences for both the property manager and the property owner in the event of property damage, accidents, or other unforeseen incidents during the contracted work.

(Segal Decl. ¶¶3-5.)

“Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. An objection based on the failure to comply with the requirements of this subdivision, if not made at the hearing, shall be deemed waived.” (CCP §437c(d).)

As stated in Evid. Code § 702, “Subject to Section 801, the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter. A witness’ personal knowledge of a matter may be shown by any otherwise admissible evidence, including his own testimony.” (Evid. Code § 702(a)-(b).)

As a preliminary matter, the Court fails to see how the Segal declaration is even relevant.

Further, nowhere in ¶¶1-5 does Segal attest to anything that can be construed as personal knowledge with respect to this case.

Under Evid. Code § 801:

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.

(Evid. Code §801(a)-(b).)

Pursuant to Kelley v. Trunk (1998) 66 Cal.App.4th 519, a declaration that does not disclose the matter relied on in forming the opinion expressed is inadmissible. (See id., at 524.) “[A]n opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment.” (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524.) Such an opinion is insufficient to carry a party’s burden in moving for summary judgment. (See id.)

As to disputing UMF 10, Plaintiffs also cite to (1) Decl. of Vincent D. Howard, Ex. 5 – Decl. of Bin Yun Cheng, ¶¶ 3-4. At ¶7 of the Howard Declaration, Howard states, “A true and correct copy of the declaration of Bi Yun Cheng is attached hereto as Exhibit 5.”

Bi Yun Cheng is the widow of Decedent. (Cheng Decl. ¶1.) Paragraph 2 of the Cheng Declaration states, “As Mr. Ruan’s wife prior to and at the time of his death, I possess personal knowledge of various business advertising materials generated by Mr. Ruan during his lifetime, including but not limited to his business card.” (Cheng Decl. ¶2.)

As to the facts that Plaintiffs cite, they cite to ¶¶3-4 of the Cheng declaration which state, “Attached hereto as Exhibit “A” is a true and correct copy of Wen Wei “John” Ruan’s business card, which he routinely utilized to provide customers with his contact information and to advertise his business activities. I certify that the copy of Wen Wei “John” Ruan’s business card accurately represents the original card used by him during his lifetime for the purposes mentioned above.” (Decl. Cheng ¶¶3-4.)

Exhibit A to the Cheng Declaration is simply a business card with the name “john ruan” on it and a phone number, email address, website, and address.

As to UMF 11, “He provided Mr. Tung with his business card,” Plaintiffs disputed it in part and it went undisputed in part. “UNDISPUTED, insofar as the allegation is that a business card was exchanged between the decedent and Mr. Tung. DISPUTED as to whether the business card (not provided by Defendants in discovery) establishes any evidentiary support that the decedent was a licensed contractor.”

In Opposition, Plaintiffs dispute UMF 11 by citing to “Decl. of Vincent D. Howard, Ex. 5 – Decl. of Bin Yun Cheng, ¶¶ 3-4.”

The Court will hear argument as to these issues.

Issue 1 and Issue 4
As the Court previously mentioned with Issue 1, it isn’t entirely clear how Defendants are establishing that Privette applies and that none of the exceptions apply.

It’s difficult for the Court to determine the material facts because the Defendants lump UMF 1-31 all together, and it’s unclear which UMFs establish Privette applies and which establish that no exceptions apply.

Setting aside Issue 3, regarding the independent contractor-or-employee issue, Defendants would have to demonstrate at the hearing how they established Issue 1. It appears that Issue 3 is subsumed in Issue 1 and would also have to be addressed in order to determine if Privette can even apply.

Issue 4 is labeled as “None of the Defendants Can Be Held Liable Under Plaintiffs’ Premises Liability Claim, Because No Defendant Was A Possessor of the Subject Property.” Issue 4 appears to be directed at the first cause of action for premises liability.

As a preliminary matter, both parties seem to agree that as a matter of law, someone can be liable for premises liability even if they are not the owner of the property, so long as they have control of the property.

Here, there appears to be no dispute that moving Defendants are not the owners of the property.

Therefore it appears as if the issue is whether or not Defendants controlled the subject property to qualify as possessors of the property.

Further, as a preliminary matter, Issue 4 faces the same confusion the Court noted about Issue 1 because Issue 4 in the separate statement says, “See Facts 1-41 Above.” Therefore, it is difficult to determine what issues are material to determine that Defendants cannot be liable for premises liability.

Beltran v. Hard Rock Hotel Licensing, Inc. would be helpful to both parties:

California Rules of Court, rule 3.1350(d)(2)states: “The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” Under the Rules of Court, “ ‘Material facts’ are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.” (Rule 3.1350(a)(2).)

What neither the rule nor the statute states is that the moving party must include in the separate statement every fact they intend to include in their motion, regardless of its materiality. For example, HRH's very first “material fact” in its separate statement is: “The Hard Rock brand is known worldwide for its connection to music, fashion, and entertainment.” Under no interpretation of “material” does this qualify – it is merely background information that has no relevance to any cause of action or defense.

This is far from the only paragraph in the three separate statements that make absolutely no difference in the disposition of the motion. The paragraphs in a separate statement should be limited to facts that address the elements of a cause of action or an affirmative defense. (See Code Civ. Proc., § 437c, subd. (b)(1); rule 3.1350(a)(2), (d)(2).) The statute and Rules of Court do not preclude litigants from including background, nonmaterial information in their papers as long as they include a cite to the evidence, but nonmaterial facts should not be included in the separate statement. The point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them. “The separate statement serves two important functions in a summary judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74, 50 Cal.Rptr.3d 149.) There is nothing convenient or expeditious about the separate statements submitted in this case.

The duty to comply with the law regarding separate statements applies to both sides of a motion for summary judgment or adjudication. The opposing party's responses to the separate statement must be in good faith, responsive, and material. Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists.

(Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 875.)

Likewise, it is difficult to determine what facts and evidence Plaintiffs belief are material to disputing that Defendants cannot be liable for premises liability.

Plaintiffs seem to rely in part on the Elite Inspection Report.

It is difficult to determine what this inspection report supports. “Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.” (CRC, Rule 3.1350(f)(2).)

Plaintiffs’ separate statement generally refers to the Elite Property Inspection Report at Exhibit 3 with zero citation to where in Exhibit 3 the Plaintiffs’ arguments are supported.

Plaintiffs also cite to the Deposition of Andrew Wang at Exhibit 4, pages 24-25. Plaintiffs again fail to comply with Rule 3.1350(f)(2) by not citing the line numbers of the deposition.

TENTATIVE RULING MOTION 1
The Court will hear argument. The Court’s inclination is to order further briefing, given the confused and inchoate nature of the briefing from both sides.

MOTION 2

RELIEF REQUESTED¿
“Defendants INNGER GOLD, LLC; CHUANG TO LEE (“Lee”); and SHUNLU KAO (“Kao”) (collectively, “Defendants”) will and hereby do move the Court for an order granting summary judgment against Plaintiffs, BI YUN CHENG; XINYI RUAN; and RYAN RUAN, by and through his Guardian Ad Litem, BI YUN CHENG (collectively “Plaintiffs”), individually and as successors-in-interest to WEN WEI RUAN, deceased (“Decedent”), pursuant to Code of Civil Procedure (“CCP”) section 437(c) because there is no triable issue as to any material facts regarding Plaintiffs’ claims against Defendants as stated in Plaintiffs’ First Amended Complaint, their operative complaint. Accordingly, Defendants are entitled to judgment as a matter of law.

Alternatively, if for any reason summary judgment is not granted, Defendants Lee and Kao move the Court to adjudicate the following issues to be established without substantial controversy:

1. That Plaintiffs’ First Cause of Action for Wrongful Death – Premises Liability against Defendants Lee and Kao has no merit and therefore, Plaintiffs have failed to state a cause of action against Defendants Lee and Kao; and/or

2. That Plaintiffs’ Second Cause of Action for Wrongful Death – Negligence against Defendants Lee and Kao has no merit and therefore, Plaintiffs have failed to state a cause of action against Defendants Lee and Kao.

Said motion will be based upon this Notice of Motion, the Memorandum of Points and Authorities attached hereto, the Separate Statement of Undisputed Material Facts, the Evidence in Support, the Declarations of Chuang To Lee, Shunlu Kao, Andrew Wang, and Geronimo Perez attached hereto, the Request for Judicial Notice filed concurrently herewith, all documents on file herein, and upon such other oral and documentary evidence as may be presented at the time of the hearing on this matter.”

Procedural
Moving Party: Defendants, Inner Gold, LLC.; Chuang To Lee; and Shunlu Kao

Responding Party: Plaintiffs, Bi Yun Cheng; Xinyi Ruan; and Ryan Ruan, a minor, by and through his Guardian Ad Litem, Bi Yun Cheng

Moving Papers: Notice/Motion; Separate Statement; Request for Judicial Notice; Evidence in Support; Decl. Chuang To Lee; Decl. Andrew Wang; Decl. Geronimo Perez; Proposed Order; Decl. Shunlu Kao; Proposed Judgment Re: Chuang To Lee and Shunlu Kao

Opposing Papers: Opposition; Separate Statement; Decl. Howard;

Reply Papers: Reply; Defendants’ Objections to Evidence; Proposed Order

Section 437c(a)(2)

Under Code of Civil Procedure (“CCP”) § 437c(2), notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California. (Code Civ. Proc., §437c(a)(2).)

Here, the motion is timely.

Here, this motion is timely.

LEGAL STANDARDS
The Court incorporates from Motion 1 the same legal standards previously discussed with respect to motions for summary judgment, the elements of negligence and premises liability, and the Privette Doctrine.

TENTATIVE RULING MOTION 2

Further background relevant to Motion 2
Defendants Lee and Kao filed the Limited Liability Company Articles of Organization with the California Secretary of State and formed Defendant Inner Gold. (UMF 1.)

At the time, Lee lived in Taiwan so he gave his brother, Andrew Wang, his power of attorney to form Defendant Inner Gold for the purpose of investing in real estate in California. (UMF 2.)

Lee and Kao executed the Operating Agreement of Defendant Inner Gold, which listed Lee as owning a 99% Membership Interest and Kao as owning a 1% Membership Interest. (UMF 3.)

Inner Gold purchased the subject Apartment Complex on December 15, 2011. (UMF 4.)

Continuing the Motion
The Court incorporates from Motion 1 its discussion regarding continuing the motion.

Chuang To Lee and Shunlu Kao
Defendants Lee and Kao move the Court to adjudicate that the first and second causes of action against Lee and Kao have no merit.

Based on Plaintiffs filing Requests for Dismissal with respect to Chuang To Lee and Shunlu Kao, the Court dismissed Chuang To Lee and Shunlu Kao.

The Court will hear from the parties on this issue.

No Duty to Decedent to Ensure Decedent’s Safety
Much like the previous motion discussed above, Defendants here assume that Decedent was an independent contractor.

Much of the discussion above regarding § 2750.5 and Chin is applicable here

Concealed Hazard
The second exception to Privette deals with concealed hazards.

In Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, the Supreme Court held that the hirer as landowner may be independently liable to the contractor’s employee, even if it does not retain control over the work, if

(1) it knows or reasonably should know of a concealed, pre-existing hazardous condition on its premises;

(2) the contractor does not know and could not reasonably ascertain the condition; and

(3) the landowner fails to warn the contractor.

(Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675.)

Defendants argue that the concealed hazard exception to Privette does not apply to these facts. Defendants cite to UMF 16. In the Opposition, UMF 16 goes undisputed. However, the Court fails to understand how UMF 16 establishes that the concealed hazard exception is not met.

Retained Control
“Under the retained-control exception to the Privette doctrine, an affirmative contribution occurs when a general contractor ‘is actively involved in, or asserts control over, the manner of performance of the contracted work. [Citation.] Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. [Citations.] [Citation.]” (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 644 citing Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 215.)

Defendants argue that the retained control exception to Privette does not apply. Defendants cite to UMF 13. UMF 13 was disputed as to decedent’s classification as an independent contractor.

Opposition
On page 8 of the Opposition, there is a section titled, “Defendant Inner Gold cannot invoke the protection of Privette as they cannot establish that (1) the decedent was an independent contractor at the time of death, and (2) Defendant Inner Gold did not hire or employ the decedent.”

It is not entirely clear what argument the Opposition is trying to make with respect to this.

The Opposition argues:

The primary claim for damages brought by Plaintiffs in this case as against Defendant Inner Gold is one of premises liability and failure on the part of the landowner to warn the invitee, the decedent, of the latent defect of the ladder to the roof. As stated above, the decedent, as an unlicensed contractor, was the employee of Defendants Home 2001, Tung, and Tsai, which would make the decedent’s exclusive remedy a worker’s compensation claim as against said Defendants under Labor Code section 3600 et seq., however, as they are uninsured for workers’ compensation coverage, Plaintiffs may proceed in their negligence tort claim as against Defendants Home 2001, Tung, and Tsai. Plaintiffs, however, maintain a separate and distinct premises liability claim as against both Defendants Home 2001, Tung, and Tsai as controllers of the subject property as well as against Defendant Inner Gold, the property owner. Defendant Inner Gold asserts that decedent was not hired by Defendant Inner Gold, who at the time of the incident was unaware of the dealings with regard to the decedent. Defendant Inner Gold asserts that decedent was hired solely by Defendants Home 2001, Tung, and Tsai who selected the decedent to repair the air conditioning on the property. At a minimum there are disputed issues of material fact as to the scope of the property management agreement regarding the hiring of unlicensed repair contractors.

(Pl. Oppo. p. 8.)

In the context of the moving papers, the Court is unclear what the Opposition is trying to establish. Further, it is unclear what evidence the Opposition believes supports its position, whatever that position is.

The Court cannot tell if the instant citation is relevant, but it will cite it here because it cannot understand what Opposition is trying to argue.

Case law holds that the Privette doctrine applies even when the hirer did not maintain workers’ compensation insurance. (Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 527 “...the existence of workers’ compensation coverage is not relevant to deciding whether a hirer should incur vicarious liability…”.)

Verbal Property Management Agreement
The Opposition has a section titled “The scope of the verbal property management agreement as between Defendant Inner Gold, the premises owner, and Defendant Home 2001, the property manager, is in dispute as between the defendants.”

Again, the Court is not entirely clear as to what this section is disputing with respect to Defendants’ motion.

Owner vs. Property Manager
Opposition has a section titled “Defendant Inner Gold owned the subject property and is therefore liable for damages under a premises liability theory. Defendants Home 2001, Tung, and Tsai controlled the subject property and are therefore liable for damages under a premises liability theory.”

While it isn’t entirely clear what Plaintiffs are arguing here on pages 10-13 under this section, it appears that Plaintiffs are arguing that owners of the land and the hirer of the independent contractor can both be liable for premises liability. Reply argues that a landowner can be covered under Privette.

The Court is not entirely clear how this is implicated in the context of how Defendants framed their motion.

Further, whatever Plaintiffs’ argument is here, they appear to only be citing to the Segal Declaration and the Elite Inspection Report. Neither of those documents appear to be admissible, as the Court discussed in Motion 1.

Objections
Defendants submitted 17 objections. Objections 1-4 are sustained as the Court fails to see how Howard established personal knowledge of the death certificate and autopsy report.

Further, the Court fails to see how Howard established the necessary foundation. Further, the Court is not clear as to how it is relevant for purposes of this motion.

Objections 5-6 as to the Elite Group Property Inspection Report are sustained. The Court fails to see how Howard established personal knowledge or foundation.

Objections 7-8 pertain to the Andrew Wang deposition transcript. The Court will hear from the parties on these objections.

The Court will hear from the parties on objections 9-13.

Objections 14-17 with respect to the Segal declaration are sustained.

TENTATIVE RULING MOTION 2
The Court will hear from the parties. Again, given the nature of the briefing here, the Court is inclined to order supplemental briefing from the parties.