Judge: Cherol J. Nellon, Case: 22STCV06512, Date: 2023-04-07 Tentative Ruling

Case Number: 22STCV06512    Hearing Date: April 7, 2023    Dept: 28

Defendants L3 Harris Technologies, Inc. and Alex Miseirvitch’s Motion for Summary Judgment

Having considered the moving and opposing papers, the Court rules as follows. 

BACKGROUND

On February 22, 2022, Plaintiff Scott Fitzgerald (“Plaintiff”) filed this action against Defendants Jeff Shelton (“Jeff”), L3 Harris Technologies, Inc. (“L3”), Roxford XC., LLC (“Roxford”), S&S Fabrication LLC (“S&S”), TRE and Your Equipment Solutions (“YES”) for motor vehicle negligence, general negligence and premises liability. Plaintiff later amended the complaint to include Defendants Alex Miseirvitch (“Miseirvitch”) and Cindy Shelton (“Cindy”).

On April 7, 2022, Shelton, S&S and TRE filed an answer. On April 11, 2022, Miseirvitch filed an answer. On June 27, 2022, the Court dismissed Cindy, without prejudice, pursuant to Plaintiff’s request. On February 8, 2023, the Court dismissed Roxford, without prejudice, pursuant to Plaintiff’s request.

On April 7, 2022, L3 filed an answer and a Cross-Complaint against Cross-Defendants Jeff, S&S, TRE and YES for express indemnity, implied indemnity, comparative indemnity, declaratory relief and breach of contract. On May 11, 2022, Cross-Defendants filed an answer.

On January 26, 2023, L3 and Miseirvitch (“Moving Defendants”) filed a Motion for Summary Judgment to be heard on April 7, 2023. On March 24, 2023, Plaintiff filed an opposition.

Trial is currently scheduled for August 22, 2023.

PARTY’S REQUESTS

Moving Defendants requests the Court grant summary judgment.

Plaintiff requests the Court deny summary judgment.

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 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) 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 has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)

A land possessor does not have a duty to warn an invitee of obvious dangers but does have a duty to warn about dangerous conditions known to the possessor and those that might have been found by exercise of ordinary care. (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27.) Obvious dangerous are those that which that an invitee will perceive “that which would be obvious to him through the ordinary use of his senses.” Id. A land possessor is not liable for damages caused “by a minor, trivial, or insignificant defect in property.” (Caloroso v. Hathaway (2004) 122 Cal. App. 4th 922, 927.)

“There is a strong presumption under California Law, commonly referred to as the Privette doctrine, that “a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety...mean[ing] a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job.” Gonzalez v. Mathis (2021) 12 Cal. 5th 29, 37. This applies even when the hiring party, while acting as a landlord, failed to comply with workplace safety requirements, resulting in the injury. SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal. 4th 590, 595.  

“A hirer is liable to an employee of a contractor insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries.” Hooker v. Department of Transportation (2002), 27 Cal. 4th 200, 202. “When a hirer of an independent contractor, by negligently furnishing unsafe equipment to the contractor, affirmatively contributes to the injury of an employee of the contractor, the hirer should be liable to the employee for the consequences of the hirer's own negligence.” McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal. 4th 219, 225. “Affirmative contribution” occurs where the hirer is “actively involved in, or asserts control over, the manner of performance of the contracted work. Such assertion of control may occur when the hiring entity specifically 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. (Id. at p. 215; Padilla v. Pomona College, (2008) 166 Cal. App. 4th 661, 671 fn. 13.)

The ABC test presumptively considers all workers to be employees, and permits workers to be classified as independent contractors only if the hiring business demonstrates that the worker in question satisfies each of three conditions: (a) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (b) that the worker performs work that is outside the usual course of the hiring entity's business; and (c) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. Dynamex Operations W. v. Superior Court, 4 Cal.5th 903, 955-956.

DISCUSSION

Plaintiff alleges that he was injured while standing on the forks of a moving forklift when the load on the forks shifted, injuring his hand. Shelton was the operator of the subject forklift. L3 owned the forklift and leased the subject premises from Roxford; Miseirvitch was the manager of the subject facilitating.

At the time of the incident, L3 was shutting down the subject facility and was in the process of moving to another facility. Miseirvitch, on behalf of L3, offered to donate equipment to Shelton if Shelton agreed to take all steps necessary to pick up and transport the material away from the subject premises with no assistance from any L3 employee. (UMF 2.) Shelton agreed and signed a liability waiver and indemnity agreement that all risk relating to the transportation and removal of material from the premises fell on him. (UMF 3.) Shelton brought his own moving equipment, truck and crew to the subject premises, where he began to cart away material. He was operating a L3 forklift, with Plaintiff standing on the forks. (UMF 8.)

Parties disagree as to whether Shelton paid Plaintiff for the help, whether Shelton asked Plaintiff to hop on the forklift or if Plaintiff did so of his own volition, and whether Miseirvitch offered the forklift to Shelton. Even assuming the facts are most favorable to Plaintiff, Moving Defendants argue they are protected by the Privette doctrine.

The Privette doctrine only applies to “hirers of independent contractors.” Gonzalez v. Mathis (2021) 12 Cal. 5th 29, 37. A worker is presumed to be an employee unless the worker meets three conditions: 1) worker is free from control and direction of the hirer; 2) worker performs work outside of the hirer’s usual course of business; and 3) the worker is customarily engaged in an independently established trade of the same nature as the work performed. According to Moving Defendants, no employee of L3 took any steps to control or direct Shelton or Shelton’s crew, satisfying element 1. (UMF 5.) L3 is a defense contractor that manufacturers sonar systems; moving excess material is not necessarily in the usual course of business, potentially satisfying element 2.

However, Moving Defendants offered no evidence in finding that Shelton is customarily engaged in an independently established trade of the same as to the work performed, ie: moving materials. According to the moving papers, Shelton operates several business including “renting space to owners of recreational vehicles.” He is also described “[doing] metal fabricating and [teaching] this craft to others,” although it is unclear if this is a hobby or a profession. Regardless, metal fabricating does not necessarily include transport of metal material. Moving Defendants have failed to show that Shelton was classified as an independent contractor; the mere existence of a contract is insufficient this classification.

Moving Defendants entire argument is predicted on the Privette doctrine, which requires an independent contractor. As Moving Defendants failed to show Sheldon is legally an independent contractor and not an employee of Moving Defendants, Moving Defendants have failed to meet their burden. The evidence does not otherwise support granting the motion. The Court denies the motion.

CONCLUSION

Defendants L3 Harris Technologies, Inc. and Alex Miseirvitch’s Motion for Summary Judgment is DENIED.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.