Judge: Daniel M. Crowley, Case: 19STCV46885, Date: 2022-08-23 Tentative Ruling

Case Number: 19STCV46885    Hearing Date: August 23, 2022    Dept: 28

Defendant National Retails Transporation’s Motion for Summary Judgment

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

BACKGROUND

On December 30, 2019, Plaintiffs Karo Isadzhanyan (“Karo”) and Larissa Isadzhanyan (“Larissa”) filed this action against Defendants Yusen Logistics (American) Inc. (“Yusen”) and Esmeralda Agredano-Salazar (“Salazar”) for negligence, premises liability and loss of consortium. Plaintiff later amended the complaint to include Defendant National Retail Systems, Inc. (“NRS”) and National Retails Transporation (“NRT”).

On August 18, 2020, Yusen filed an answer. The Court dismissed Yusen, without prejudice, on May 5, 2021. The Court also dismissed Salazar, without prejudice, on July 8, 2021.

On June 18, 2021, NRT filed an answer. On August 5, 2022, NRS filed an answer.

 On May 27, 2022, NRT filed a Motion for Summary Judgment to be heard on August 12, 2022. The Court continued the hearing on the motion to August 23, 2022. Plaintiffs filed an opposition on July 27, 2022. On August 8, 2022, NRT filed an opposition.

Trial is currently set for October 12 ,2022.

PARTY’S REQUESTS

NRT requests the Court grant summary judgment.

Plaintiffs request the Court deny the motion.

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 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) 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.)

A party is considered to be an independent contractor if, and only if, the following conditions are met: 1) the person is free from the control and direction of the hiring entity in connection with the performance of the work; 2) the person performs work that is outside of the hiring entity’s business; and 3) the person is customarily engaged in an independently established trade, occupation, or business of the same nature as the work being performed. Labor Code § 2775. Agency is only established when the agent is actually employed by the principal. California Civil Code § 2299.

“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.)

DISCUSSION

Plaintiffs allege that Karo, a self-employed truck driver, was injured while allowed and/or instructed to load a heavy cargo load to his truck by Yusen while being supervised by Salazar. NRT hired Plaintiff to drop off an empty cargo container at the subject premises and pick up a full cargo load. Yusen employees instructed Plaintiff to load the cargo himself. During this process, Plaintiff placed his truck in park and attempted to step out of the truck; the truck began to roll downhill, trapping and crushing Plaintiff between the truck door and the cargo load.

NRT argue that Karo was an independent contractor with exclusive control and direction of the movement and transportation for the equipment during interchange that caused this injury by exiting his truck without first setting the brake. (UMF 4.) NRT hired Alma Transporation, a company owned by Karo, as an independent contractor to transport equipment (UMF 1, 3.) He had an obligation to re-set his brake prior to leaving the cabin, which he failed to do. (UMF 11-12.) Karo was the only one able to set the parking brake prior to exiting the truck. (UMF 13.) No one from NRT ever instructed him to exit his tractor while the brake was not properly set. (UMF 14.) Under the Privette doctrine, there is a strong presumption that the hirer of an independent contractor is not liable for injuries sustained by said contractor while on the job. There are only limited circumstances in which the hiring party can be liable under such conditions. The hirer must have either had to failed to warn the contractor of a concealed dangerous condition or somehow affirmatively contributed in some other manner to a plaintiff’s injury.

Here, there is no indication of extenuating circumstances. There is no allegation of a concealed dangerous condition. The layout of the yard was clear to Karo, including the lineup of the cargo loads and any elevation between Karo’s vehicle and the cargo loads. There is also no indication that NRT took any affirmative action that contributed to Karo’s injuries. Karo was responsible for moving and transporting the equipment. He failed to set the brake and stepped out without adhering to the proper safety procedures. NRT has met its burden, which now shifts to Plaintiffs.

Plaintiffs argue that NRT has met its burden as NRT did not hire Karo, but rather NRS. This contradicts Plaintiffs’ complaint, which states that NRT hired Karo, as well as the facts as established. NRT is a division of NRS and was the party who hired NRT.

Plaintiffs further argue that NRT retained control of the safety condition of Karo’s work and that there was a latent dangerous condition. Plaintiffs claim that NRT retained control by controlling the layout of the truck yard, specifically the arrangement of the trailers in rows, directing Karo to go to NRT’s trailer located in the center row, using a trailer remover to remove the trailer blocking his then telling him to move his own, forcing him to back his tractor down a narrow channel, and providing him with minimal space to properly hook up the hydraulic brake. However, any alleged retained control must affirmatively contribute to the injury sustained. None of the alleged aspects of control contributed to Karo’s truck rolling downhill because it was not in park—only the fact that Karo’s truck was not in park caused this. As Karo stated in his deposition, no one asked him to leave his truck without setting the parking brake. As such, there is no indication that NRT affirmatively contributed to Karo’s injuries. If merely deciding how to layout a space or move boxes was enough to surpass the Privette doctrine the Privette doctrine would be effectively useless.

Plaintiffs then argue that the truck yard had a 3.8% slope which presented a latent defective condition. (Declaration of Brad Avaritt ¶ 14.) The expert declaration merely states that “this is excessive for a truck staging yard, as excessive slopes are dangerous...” (Id.) However, there is no actual explanation as to what an excessive slope is—just that one is dangerous. Avaritt explained that “the Plaintiff’s truck started to move due to the air brakes not being fully engaged and the truck rolling down the excessive slope,” which seems to indicate that Plaintiff’s failure to properly engage the brakes was the actual cause of the incident. Additionally, the Court notes that any slope that was substantial enough to effect Karo’s vehicle would have been visible. The Court does not find Plaintiff has sufficiently shown there was a latent defective condition that caused Plaintiff’s injuries.

Plaintiffs have not met their shifted burden. The Court grants the motion.

CONCLUSION

Defendant National Retails Transporation’s Motion for Summary Judgment is GRANTED.

            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.