Judge: Deborah C. Servino, Case: 30-2020-01144148, Date: 2022-09-30 Tentative Ruling
DEFENDANTS USA PORTOLA PROPERTIES, LLC; USA PORTOLA EAST, LLC; AND BALDWIN & SONS, INC.’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
Defendants USA Portola Properties, LLC; USA Portola East, LLC; and Baldwin & Sons, Inc.’s (collectively “Defendants”) motion for summary judgment, or in the alternative, summary adjudication as to Plaintiffs Maria Vanessa Natal, Ronal Osvaldo Lopez Natal, Cindy Abigail Lopez Natal, Michelle Guadalupe Lopez, Angel De Jesus Lopez Natal, and Xochitl De Jesus Lopez Natal’s Second Amended Complaint (“SAC”) is granted in part. The motion is granted as to USA Portola Properties, LLC and USA Portola East, LLC.
The hearing on the motion as it pertains to Baldwin & Sons, is continued to December 23, 2022, at 10 am in Department C21. (Code Civ. Proc., § 437c, subd. (h).)
As a preliminary matter, the Court notes that Defendants’ exhibits were electronically filed in a manner that rendered them unwieldy. Some of the exhibits were not properly electronically bookmarked (see, e.g., Exhs. H-P). (See Cal. Rules of Court, rule 3.110(f)(4).) In addition, Defendants filed those exhibits in 13 volumes, with seemingly duplicate volumes for those filed as “Statement of Evidence” and “Declaration of Andrew J. Mallon”. Each of the volumes were at least 100 pages, with several volumes being over 600 pages. Some of the volumes started in the middle of exhibits. (See, e.g., ROA 238, 240, 242.) A table of contents for each volume would have greatly assisted the Court and its staff.
Request for Judicial Notice
Plaintiffs’ request for judicial notice of their Second Amended Complaint and the Cross-Complaint filed by USA Portola Properties, LLC and Baldwin & Sons, Inc. in this action is denied. It is unnecessary to ask the court to take judicial notice of materials previously filed in this case. “[A]ll that is necessary is to call the court’s attention to such papers.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 9.53.1a.)
Evidentiary Objections
Defendants’ evidentiary objections nos. 1 through 7 are overruled.
Legal Standard for Motions for Summary Judgment and Adjudication
In both summary judgment and summary adjudication proceedings, the pleadings determine the scope of the relevant issues. (Port Medical Wellness, Inc. v. Connecticut General Life Ins. Co. (2018) 24 Cal.App.5th 153, 169; FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)
The standard governing motions for summary judgment and summary adjudication is settled. “[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. . . .” (Ibid.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).)
A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff's allegations as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.) Alternatively, a moving defendant can show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses, that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff's lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see Sheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information].)
Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) To meet this burden, the plaintiff must present substantial and admissible evidence creating a triable issue. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Theoretical, imaginative, or speculative submissions are insufficient to stave off summary judgment. (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481; Bushling v. Fremont Med. Center (2004) 117 Cal.App.4th 493, 510.)
A summary adjudication motion “proceed[s] in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) To be successful, a summary adjudication motion must completely dispose of the entire cause of action, defense, damages claim, or duty to which the motion is directed. (Code Civ. Proc., § 437c, subd. (f)(1).)
Merits
Plaintiffs concede that there is not currently any evidence which might hold Defendants USA Portola Properties, LLC and USA Portola East liable for the decedent’s death. (Opp., at p. 5.)
Consistent with Plaintiffs’ concession, the Court finds Defendants met their moving burden: “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 and referring to this principle as the “Privette” rule].) The California Supreme Court explained: “[b]y hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract.” (SeaBright Ins. Co. v. US Airways, Inc., supra, 52 Cal.4th at p. 594.) “That implicit delegation includes any tort law duty the hirer owes to the contractor’s employees to comply with the applicable statutory or regulatory safety requirements.” (Ibid.; see Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 269.)
In this instance, it is undisputed for the purposes of this motion that Decedent Juan D. Lopez Hinojosa was killed in the course and scope of his employment with Empire, a “second-tier subcontractor” hired by Horizon, at the jobsite for the Portola Center Project. (Defs. Exh. L, at p. 3; Exh. N; Exh. O; Defendants’ Separate Statement of Undisputed Material Facts [“SSUF”] Nos. 1-2 and 13.) Defendant USA Portola was a prior owner of the Portola Center Project, who deeded the project to Defendant USA Portola East, the current owner. (Defs. Exh. F; Exh. N; SSUF Nos. 3 and 6.) Further, it is undisputed for the purposes of this motion that Defendant Baldwin was the general contractor for the project, who contracted with Horizon. (Defs. Exh. H, at p. 4; SSUF No. 5.) It is also undisputed that Defendant Baldwin (general contractor) had no contractual relationship with the decedent’s employer, Empire. (SSUF No. 8.)
Further, Plaintiffs do not dispute the existence of contractual language, which delegated responsibility to Horizon. (Defs. Exh. N [Subcontractor Agreements].) For example, it is undisputed the Subcontract Agreement provides that Horizon “shall be solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the contract.” (Defs. Exh. N; SSUF No. 21.) Similarly, the Subcontract Agreement required Horizon and its subcontractors to comply with all safety requirements and regulations set forth by Cal OSHA. (Exh. N; SSUF Nos. 22 and 23.) The Agreement further required Horizon to take reasonable safety precautions, including the designation of individuals “whose duty shall be the prevention of accidents. . .” (Exh. N; SSUF No. 24.) Pursuant to the Agreement, “[Horizon] is solely responsible for safety on the Project site, and nothing contained herein shall make the Contractor responsible for site safety.” (Exh. N; SSUF No. 25.)
Likewise, the Subcontractor Agreement between Defendant Baldwin and Horizon required Horizon to “furnish at its own expense all necessary and proper materials, including all scaffolding, tools and equipment for the proper execution of the Work. . .” (Exh. N; SSUF No. 26.) Finally, pursuant to the Subcontract Agreement, Horizon bore all responsibility for the work performed by sub-subcontractors which Horizon directly hired. (Exh. N; SSUF No. 27.)
The above undisputed facts implicate the Privette rule and demonstrate that Plaintiffs’ claims are barred, absent application of an exception.
As noted above, Plaintiffs concede that no evidence of an applicable exception exists, as to Defendants USA Portola Properties, LLC and USA Portola East, LLC. Consequently, the motion is granted as to USA Portola Properties, LLC and USA Portola East, LLC.
As to Defendant Baldwin & Sons, Inc., Plaintiffs request a continuance pursuant to Code of Civil Procedure section 437c, subdivision (h). Pursuant to that statute: “[i]f 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.” (Code Civ. Proc., § 437c, subd. (h).) Of note, “the affiant is not required to show that essential evidence does exist, but only that it may exist.” (Frazee v. Seely (2002) 95 Cal.App.4th 627, 634.) “Where the opposing party submits an adequate affidavit showing that essential facts may exist but cannot be presented timely, the court must either deny summary judgment or grant a continuation.” (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34-35.)
In this instance, Plaintiffs’ counsel declares that he recently discovered the existence of documents which are relevant to Plaintiffs’ Opposition. More specifically, counsel declares that the deposition of Shawn Weeden, a Senior Engineer and Vice President for Geocon, was taken on September 2, 2022. (Pacheco Decl., at ¶ 6 [ROA No. 327].) Based on the deposition testimony, Counsel states, “it became clear that there were documents the parties had not received in discovery.” (Pacheco Decl., at ¶ 7.) Counsel indicates he served a request for production on Defendant Geocon on September 9, 2022, seeking “the daily reports, and soil test results referenced tangentially by several witnesses in this case.” (Pacheco Decl., at ¶ 7.) Counsel further states, “[t]hese documents are likely to give us more information about the testing that was done, and the reports and information Baldwin & Sons was receiving that Horizon and Empire were not.” (Pacheco Decl., at ¶ 7.) “This information is relevant to Baldwin’s control over the job site, the work being done there, and the effect its withholding of these reports may have had on the other subcontractors.” (Pacheco Decl., at ¶ 7.)
The Court finds the above showing sufficient to merit a continuance. It is undisputed that the Decedent was killed “from a trench failure at the job site. . .” (SSUF No. 1.) More specifically, it is undisputed the decedent was killed when “a 20-foot-deep trench at the Portola Center project . . .suddenly collapsed and buried him. . .” (Exh. O; SSUF No. 9.) Plaintiffs have submitted evidence which indicates that Geocon, a soil testing consultant, provided daily reports to Defendant Baldwin. (Pacheco Decl., at ¶¶ 2, 4, 5; Exh. 1 [Capati Depo., at pp. 31-34]; Exh. 3 [Cobar Depo., at pp. 19-20; Exh. 4 [Clark Depo., at pp. 24, 26]; Plaintiffs’ SSUF Nos. 9, 20 and 21.)
Conflicting evidence exists, as to whether these reports included soil testing. Mr. Clark testified that the purpose of the daily reports was to “track the time that [Geocon] put on the job,” and did not include soil testing. (Pacheco Decl., Exh. 4 [Clark Depo., at p. 25:4-18].) However, Mr. Clark indicated the reports included “what [Geocon was] overseeing from a soils perspective.” (Pacheco Decl., Exh. 4 [Clark Depo., at p. 26: 2-6].) Additionally, Mr. Capati testified that the reports would include soil testing and “probing of the dirt and the compaction,” “if they have to test.” (Pacheco Decl., Exh. 1 [Capati Depo., at p. 34:12-15].)
These reports were not shared with Horizon or Empire. (Pacheco Decl., Exh. 1 [Capati Depo., at pp. 32:23-33:21]; Exh. 2 [Steffy Depo. at pp. 37:4-11 and 38:3-5]; Exh. 4 [Clark Depo., at pp. 31:3-24 and 35:6-36:1]; Plaintiffs’ SSUF No. 22.) At best, Defendants cite testimony from Mr. Capati, wherein he indicates that subcontractors would have been provided the reports, upon request. (See Pacheco Decl., Exh. 1 [Capati Depo., at p. 41:8-18].)
Relevant to this aspect of the case: “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.) This principle applies equally to a “possessor of land that owes some kind of duty of care to keep the premises safe.” (Id. at p. 664, fn. 1.)
While Defendant asserts it is not the landowner, (Reply, at p. 6:14-16), it does not deny control or “possession” of the property. Moreover, the Motion appears to concede that Kinsman articulates an exception to Privette which could establish liability against Defendant. (Mot., at pp. 9:12-19 and 13:6-23.)
In the event the daily reports revealed a hazardous condition, relating to soil stability, liability could attach to Defendant Baldwin & Sons. As noted above, there is some evidence to indicate the reports concerned soil testing. (Pacheco Decl., Exh. 1 [Capati Depo., at p. 34:12-15].) Consequently, Plaintiffs have sufficiently established there is reason to believe that facts essential to the opposition of this motion exist. (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270).
Although Plaintiffs’ showing of diligence is minimal, there is authority that indicates the request should nonetheless be granted. Bahl v. Bank of America (2001) 89 Cal.App.4th 389, provides: “when a party submits an affidavit demonstrating that facts essential to justify opposition may exist but have not been presented to the court because the party has not been diligent in searching for the facts through discovery, the court’s discretion to deny a continuance is strictly limited.” (Id. at p. 398.) Noting the preference for resolution on the merits, the court in Bahl concluded: “If the trial judge is faced with a situation in which a party opposing summary judgment may have shown minimal diligence, but the party is able to present an affidavit showing facts essential to justify opposition may exist and explaining why they cannot then be presented, the judge must consider other ways of handling the lack of diligence short of summary judgment.” (Id. at p. 399.)
Similarly, while the decision to grant a continuance pursuant to Code of Civil Procedure section 437c, subdivision (h) is within the discretion of the trial court, “the interests at stake are too high to sanction the denial of a continuance without good reasons.” (Frazee v. Seely, supra, 95 Cal.App.4th at pp. 633-634). Indeed, the statute “leaves little room for doubt that such continuances are to be liberally granted.” (Id. at p. 634.) Accordingly, The hearing on the motion as it pertains to Baldwin & Sons, is continued to December 23, 2022, at 10 am in Department C21. (Code Civ. Proc., § 437c, subd. (h).)
CROSS-COMPLAINANTS USA PORTOLA PROPERTIES, LLC AND BALDWIN & SONS, INC.’S MOTION FOR SUMMARY ADJUDICATION
NO TENTATIVE RULING
Defendants/Cross-Complainants USA Portola Properties, LLC and Baldwin & Sons, Inc.’s (collectively “Moving Cross-Complainants”) included additional evidentiary matter with their reply in response to Cross-Defendant Horizon Grading, Inc.’s argument that its own discovery responses were not verified and inadmissible. Moving Cross-Complainants provided the verified discovery responses and deposition transcripts. The Court will consider Horizon Grading’s sur-reply that addresses the evidence raised in the Moving Parties’ reply. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538.) The parties should be prepared to address the arguments raised in the reply and sur-reply.