Judge Daniel S. Murphy, Case Number: 24STCV03726, Date: 2024-09-25 Tentative Ruling

On February 13, 2024, Plaintiff Joseph Kirikian filed this action against Defendants Bacon Family Trust, Kevin Bacon, Dirt Beauty, and Patricia Foulkrod. Plaintiff filed the operative First Amended Complaint on May 31, 2024, asserting causes of action for (1) negligence and (2) premises liability.

The complaint stems from injuries Plaintiff sustained from a fall while working at a home located in Los Angeles. Defendants allegedly owned, managed, or maintained the premises and retained control over the safety conditions of the worksite.

On August 2, 2024, Defendants Bacon Family Trust and Kevin Bacon filed the instant demurrer to the FAC. Plaintiff filed his opposition on September 12, 2024. Defendants filed their reply on September 18, 2024.

A demurrer for sufficiency tests whether a pleading states a cause of action or defense. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the pleading, as it stands, unconnected with extraneous matters, states a cause of action or defense. (Hahn, supra, 147 Cal.App.4th at 747.)

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendants have complied with the meet and confer requirement. (See Hernandez Decl.)

Defendants’ demurrer is structured as follows: (i) the entire complaint is barred by Privette v. Superior Court (1993) 5 Cal.4th 689; (ii) the control exception in Hooker v. Department of Transportation (2002) 27 Cal.4th 198 does not apply; and (iii) the concealed hazard exception in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 does not apply.

The court in Privette acknowledged that “[a]t 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, supra, 5 Cal.4th at p. 693.) “The reasoning was that the work performed was the enterprise of the contractor, who, as a matter of business convenience, would be better able than the person employing the contractor to absorb accident losses incurred in the course of the contracted work.” (Ibid.) However, Privette also acknowledged that “[o]ver time, the courts have, for policy reasons, created so many exceptions to this general rule of nonliability that the rule is now primarily important as a preamble to the catalog of its exceptions.” (Ibid., internal citations omitted.)

Privette analyzed whether the peculiar risk exception could be applied to the employees of an independent contractor. (Privette, supra, 5 Cal.4th at p. 691.) The court held that the exception did not extend to a contractor’s employees injured by the contractor’s negligence, because worker’s compensation was available to provide the remedy. (Id. at pp. 692, 702.) In such a case, there is no reason to impose liability on the innocent person who hired the contractor. (Ibid.)

The court in Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 269 reaffirmed the general rule by stating that “[w]hen a person or organization hires an independent contractor, the hirer presumptively delegates to the contractor the responsibility to do the work safely.” The court in Sandoval agreed with the principles expressed in Privette: “first, that independent contractors by definition ordinarily control the manner of their own work; and second, that hirers typically hire independent contractors precisely for their greater ability to perform the contracted work safely and successfully.” (Ibid.)

The court in Sandoval held that liability did not attach to a company that hired the contractor, owned the premises, and even operated the electrical equipment that injured the contractor’s employee. (Sandoval, supra, 12 Cal.5th at p. 264.) The court also rejected the concealed hazard and control exceptions when it found that the defendant “neither failed to sufficiently disclose that hazard under Kinsman nor affirmatively contributed to the injury under Hooker.” (Id. at p. 265.)

In this case, Plaintiff does not dispute being an independent contractor. (See Def.’s RJN, Ex. 1, 2.) Thus, the general rule of hirer immunity enumerated in Privette and Sandoval applies. Plaintiff argues that Privette does not apply because he is exempt from worker’s compensation as a sole proprietor. (See FAC ¶ 12.) However, Privette discussed worker’s compensation in the context of determining the applicability of the peculiar risk exception. That exception is not at issue here. Privette does not stand for the proposition that hirer immunity only applies when worker’s compensation is available.

The absence of worker’s compensation does not detract from the principles underlying hirer immunity, i.e., a contractor controls their own work and is better positioned to ensure the safety of the work. Thus, Sandoval clarified that “[o]ver time, we've recast our primary rationale for the Privette doctrine in terms of delegation rather than workers' compensation. Because we typically expect contractors to perform the contracted work more safely than hirers, we have endorsed a ‘strong policy’ of presuming that a hirer delegates all control over the contracted work, and with it all concomitant tort duties, by entrusting work to a contractor.” (Sandoval, supra, 12 Cal.5th at p. 270.) The court then concluded that “even where workers' compensation is not available, we have refused to let an independent contractor personally sue a hirer under a vicarious liability theory, reasoning that society can readily expect a competent contractor to have both good reason and knowledge to exercise responsibility over the contractor's own personal safety.” (Id. at pp. 270-71, citing Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 521.)

In sum, the rule of Privette applies even if Plaintiff lacks worker’s compensation. The viability of the claims therefore hinges on the exceptions.

“[A] hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but . . . 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 198, 202, emphasis in original.) “A hirer ‘retains control’ where it retains a sufficient degree of authority over the manner of performance of the work entrusted to the contractor.” (Sandoval, supra, 12 Cal.5th at p. 274.) This means that “the hirer's exercise of that authority would sufficiently limit the contractor's freedom to perform the contracted work in the contractor's own manner.” (Id. at p. 275.) “‘Affirmative contribution’ means that the hirer's exercise of retained control contributes to the injury in a way that isn't merely derivative of the contractor's contribution to the injury.” (Id. at p. 277.)

This analysis involves factual inquiries unsuited for a demurrer. Indeed, both Hooker and Sandoval were decided on summary judgment. For pleading purposes, Plaintiff has sufficiently alleged that “Defendants, each of them[1], retained control over the safety conditions of the worksite as each of them directly instructed Plaintiff to use a ladder, placed by Defendants, to access and remain in the area above the retaining wall, including the wooden platform – affirmatively controlling the means and methods of completing his landscaping/irrigation work.” (FAC ¶ 25.)

It cannot be determined from the pleadings alone whether Defendants exercised the requisite degree of control by instructing Plaintiff to use the ladder to access the retaining wall and wooden platform. The fact that Defendant Bacon was not present at the premises at the time of injury does not mean he did not exercise control as a matter of law. First, Bacon’s location at the time of the incident is an extrinsic fact beyond the pleadings. Second, Defendants cite no authority for the proposition that control can only be exercised if the hirer/owner is physically present at the time of injury. For pleading purposes, a specific instruction to use the ladder to climb the retaining wall may be considered an exercise of authority which limited Plaintiff’s ability to perform the work in his own manner.

Lastly, Defendants argue that the instruction to use the ladder did not affirmatively contribute to Plaintiff’s injury because Plaintiff did not fall off the ladder. However, Plaintiff was not only instructed to use the ladder; he was instructed to use the ladder to access a retaining wall with a wooden platform that had no guardrails, and he slipped on the wooden platform and fell. (FAC ¶¶ 15, 18-19.) This supports a reasonable inference that Defendants affirmatively contributed to Plaintiff’s injury. The issue cannot to be decided on the pleadings.

In sum, Plaintiff has sufficiently alleged facts to support the control exception, thus taking the case out of the Privette rule, at least for pleading purposes.

“[T]he 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, preexisting 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.)

Here, Plaintiff alleges that “Defendants, including the landowner, knew or should have known that the recent rain would penetrate the soil on the hillside, creating the potential for water run-off and mud to cover the small wooden platform which was allowed to exist with no temporary protective railings, creating a concealed hazard for plaintiff or anyone else accessing the platform and took no action to warn of the hidden condition.” (FAC ¶ 20.) Plaintiff alleges that the mud was not visible to him and that he was not given any warnings about the hazard. (Id., ¶¶ 18, 21.)

Defendants argue that: (i) if the mud was concealed from Plaintiff, it must have been concealed from Defendants as well, or if the mud was visible to Defendants, then it would have been visible to Plaintiff as well; (ii) the lack of guardrails was clearly visible; (iii) Defendant Bacon could not have known of the hazards; and (iv) Plaintiff was required to inspect the worksite, which would have revealed the dangerous condition.

These are all factual contentions unsuited for a demurrer. Plaintiff has alleged that Defendants knew of the dangerous condition, which consisted not only of mud on the platform or a lack of guardrails, but the fact that rain would penetrate the soil and create runoff. Plaintiff has alleged that Defendants, including Defendant Bacon, were aware of this dangerous condition but Plaintiff was not. For pleading purposes, these are allegations of ultimate fact which must be assumed true. Whether the hazards were sufficiently concealed or whether a reasonable inspection by Plaintiff would have revealed the dangerous conditions are factual questions not properly resolved on a demurrer.

In sum, Plaintiff has pled sufficient facts to establish the concealed hazard exception. Because Plaintiff has adequately pled at least one exception to the Privette rule, the claims survive demurrer.

[1] For pleading purposes, this sufficiently alleges a claim against Defendant Bacon. Whether Bacon actually gave Plaintiff any instructions or otherwise exercised control is a factual matter for discovery.