Judge Daniel M. Crowley, Case 21STCV36340 2023-03-14 Tentative Ruling

Judge: Daniel M. Crowley, Case: 21STCV36340, Date: 2023-03-14 Tentative Ruling

Case Number: 21STCV36340 Hearing Date: March 14, 2023 Dept: 28

Defendants Avo Amirian and Siroush Amirian’s Motion for Summary Judgment

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

BACKGROUND

On October 1, 2021, Plaintiff Juan Matute (“Plaintiff”) filed this action against Defendant Avo Amirian (“Avo”) for negligent retention of control and premises liability. Plaintiff later amended the complaint to include Defendant Siroush Amirian (“Siroush”).

On February 3, 2022, Defendants filed answer.

On December 16, 2022, Defendants filed a Motion for Summary Judgment to be heard on March 9, 2023. On February 23, 2023, Plaintiff filed an opposition. On March 2, 2023, Defendants filed a reply.

Trial is currently set for April 20, 2023.

PARTY’S REQUESTS

Defendants request the Court grant summary judgment on the basis that there are no triable issues of material fact.

Plaintiff requests the Court deny the motion.

OBJECTIONS

All of Defendants’ Objections are SUSTAINED.

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.)

According to Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 267-268, when determining if a risk if trivial, courts look to a multitude of factors beyond just depth or height of a sidewalk fault. For example, courts may look towards physical characteristics (such as exposed rebar or broken pieces), visibility, and history (such as whether anyone else has been injured).

DISCUSSION

Plaintiff alleges that Defendants, Avo Amirian and Siroush Amirian, hired Plaintiff to perform tree trimming work on six trees on their property. (SSUMF 3.) Plaintiff further alleges that Siroush was present and oversaw, managed, and supervised the work performed by Plaintiff, including instructing him on how to trim the trees. (SSUMF 4.)

Independent Contractors vs Employee

Defendants claim that Defendants did not directly hire Plaintiff to perform the work, but rather Defendants’ gardener, Jose Gutierrez (“Gutierrez”) did so after they indicated they wanted their trees trimmed. (SSUMF 9-11.) Defendants speak at length about whether Plaintiff is considered an employee or an independent contractor, but never discussed whether Guiterrez is an employee or independent contractor. As Defendants allege that Guiterrez was the hiring party, not them, Guiterrez’s status is relevant in establishing whether Plaintiff would be considered an employee of an independent contractor or an employee of Defendants. Although Defendants state that Plaintiff is unlicensed himself, there is no evidence presented that Gutierrez is unlicensed. Regardless, Defendants state that Plaintiff is not entitled to workers’ compensation and thus can bring a cause of action against the homeowner for common law negligence.

Negligent Control

There is no California common law cause of action for “Negligent Retention of Control” to provide guidance on the elements of such a cause of action. Defendants propose that Plaintiff intended to allege that Defendants were liable for injuries sustained by the employee of an independent contractor under the Hooker doctrine. Hooker states that such a hirer is liable if they 1) retain control over any part of the work; 2) negligently exercises that control; and 3) does so in a manner that affirmatively contributes to employee's injury.

Defendants state they were not present at the time of the incident. Siroush provided guidance as to what portions of the palm tree she wanted trimmed but did not provide any instruction on the means and manner in which Plaintiff's work was to be completed.

Plaintiff agrees that Siroush instructed him to cut the dried leaves only, and states she “gave specific direction on what to remove from the tree...and to cut the dead leaves at the top.” (SSUF 14.) Neither Defendants nor Gutierrez provided equipment, nor did they inspect Plaintiff’s. (SSUF 45. Based on Plaintiff’s material facts, the Court finds there is no evidence that Defendant retained control and exercised control if a negligent manner. Providing general instructions as to what portions of the tree should be cut does not constitute retaining control; it is merely providing information on the service to be provided. Retaining control generally requires providing a plaintiff with certain techniques, limitations or equipment for the process—not outlining a job.

Plaintiff primarily focuses upon the fact that Avo is familiar with hydraulic lifts and failed to provide Defendant with one, despite knowing that it was safer to use than rope. (SSUF 44.) This is not a requirement of a homeowner. Plaintiff’s entire argument is based upon the fact that Defendants violated OSHA procedure, while citing to Fernandez v. Latvson (2003) 31 Cal.4 31, which held that private homeowners hiring temporary workers are not bound by OSHA. The fact that Governor Newsom has put together an advisory committee focused on ensuring the health and safety of domestic workers is not case law or statute that would overturn Fernandez’s ruling. Therefore, the OSHA requirements are irrelevant to this case.

The Court finds that there is no evidentiary basis for negligent retention of control and grants summary judgment on this issue.

Premises Liability

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.) Plaintiff has made no allegations that the subject ‘danger’ was anything other than trimming a tall tree. The nature of the danger would be readily apparent to Plaintiff; a premises owner would not be required to warn an invitee that falling from a tall tree might be dangerous. There are no allegations that the tree was sick, resulting in the injury, or that there was some other extraneous factor. Plaintiff’s opposition consists only of relying on OSHA, despite the fact it is not applicable in such a case. The Court finds that there is no evidentiary basis for premises liability and grants summary judgment on this issue.

CONCLUSION

Defendants Avo Amirian and Siroush Amirian’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.