Judge Jill Feeney, Case 19STCV06660 2022-10-03 Tentative Ruling

This is a personal injury action based on premise liability. Plaintiff Albert Sotelo (“Plaintiff”) filed this action’s Complaint against Defendant Gorbrand Lafayette, LLC, asserting causes of action for: (1) General Negligence; and (2) Negligence (Premises Liability).

On December 3, 2020, Cross-Complainant Boukhari & Associates, Inc. dba True Design (“Cross-Complainant”) filed their Cross-Complaint against Cross-Defendant Gorbrand Lafayette, LLC, among other cross-defendants, asserting causes of action for: (1) Indemnity; (2) Contribution; and (3) Declaratory Relief.

Moving Defendant Sesame is a tenant of Defendant Gorbrand, Lafayette who owns the property where the accident occurred. Defendant Sesame hired Defendant Rotella/Total Construction, a licensed general contractor, to perform renovations to convert the space from a retail space into a restaurant space. Defendant Rotella/Total Construction then in turn hired Ali Zakaria Boukhari/Boukhari Associates to perform the electrical work for the project. Then, Boukhari hired Plaintiff Sotelo to perform the electrical work on the project. Plaintiff alleges that he fell from a ladder attached to the building for roof access. Plaintiff slipped on a conduit pipe that was covered with vegetation and allegedly obstructed the ladder rungs.

Sesame moves for summary judgment on the grounds that (1) Plaintiff’s action against Sesame has no merit because Plaintiff cannot establish the element of duty, (2) Sesame is not liable for the torts of the employees of a licensed general contractor because defendant retained no control over the operative details of the work, and (3) Plaintiff cannot establish any exception to the general rule of non-liability.

Plaintiff argues Sesame’s motion for summary judgment should be denied because triable issues of fact remain as to whether Sesame controlled the area where Plaintiff was injured. Plaintiff also argues that triable issues of material fact remain as to whether Total Construction and Boukhari & Associates were independent contractors.

Sesame argues that it need only demonstrate that Plaintiff cannot establish a necessary element of its cause of action on summary judgment. Specifically, Sesame contends that its evidence that Gorbrand owned the property that Sesame did not have control or possession of the area where the incident occurred is sufficient to shift the burden to Plaintiff. Sesame also reiterates is argument as to the Privette doctrine. Sesame also argues that Plaintiff’s separate statement is procedurally defective because it does not state why facts are disputed.

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure 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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128, internal quotations omitted.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.)

Defendant Sesame moves for summary judgment on the grounds that (1) Sesame had no duty to protect Plaintiff as it did not have own the building at issue and did not have control over the area at issue, the ladder to the rooftop and (2) Defendant Sesame is not liable for Plaintiff’s injuries under the Privette doctrine because Plaintiff was an employee of a subcontractor of an independent contractor.

“The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) “[P]roperty owners are liable for injuries on land they own, possess, or control. But . . . the phrase own, possess, or control is stated in the alternative. A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” (Alcaraz v. Vece (1997) 14 Cal.4th1149, 1162.)

Here, Sesame’s evidence shows that Sesame had a construction contract with Vince Rotella of Total Construction to perform renovations on the retail space it leased. (UMF Nos. 1, 4.) The retail space is owned by Gorbrand Lafayette, LLC. (UMF No. 3.) Plaintiff was injured after slipping on a conduit pipe and falling from a ladder on the side of the building. (UMF No. 9.) Sesame’s management agreement with the landlord Boukhari & Associates states that the management company Domino Realty would make all repairs and perform all maintenance on the buildings, grounds, and other improvements. (UMF No. 16.) The landlord was also responsible for “maintaining in ‘good and tenantable condition and repair the roof, exterior walls… and pipes and conduits outside the Premises.” (UMF No. 17.) The agreement also states tenants are “not allowed to make alterations that alter the appearance of the exterior of the Premises and shall not be liable for damage or injury” caused by the willful misconduct of the landlord. (UMF No. 18.)

Defendant Sesame’s evidence that it had no control over the exterior of the building and the ladder and conduit pipe where Plaintiff was injured depends entirely on the management agreement submitted in support of the motion. However, the Court cannot consider this evidence because it is not authenticated as required under Cal. Evid. Code section 1400. The agreement is thus inadmissible. It is also unsigned, undated, and appears to be incomplete. Even if it was admissible, the agreement merely states that the landlord is responsible for maintaining the area and that Sesame cannot make changes to the appearance of the building. This evidence is not dispositive because the agreement alone does not show that Sesame was forbidden from making any changes to the outside of the building or that Sesame never made any changes to the building’s exterior. Additionally, Defendant Sesame allegedly contracted with Vince Rotella to install an HVAC, Mechanical hood, and perform plumbing and other work. Although the contract is inadmissible because it is not authenticated, this work demonstrates Sesame’s control over parts of the building’s exterior. Thus, Defendant Sesame fails to show no issues of material fact exist as to whether Sesame controlled the area where Plaintiff was injured.

Sesame contends that it is not liable for Plaintiff’s injuries because the hirer of an independent contractor is not liable for injuries to the contractor or its employees under Privette v. Superior Court (1993) 5 Cal.4th 689, 695 and Seabright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 603.

“[W]hen 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.) “By 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.” (Id. at pp. 601-602. Additionally, “a hirer generally has no duty to act to protect the contractor’s employee when the contractor fails in that task.” (Id. at p. 602 (citation omitted).) The Privette doctrine applies when the party that hired the contractor failed to comply with workplace safety requirements concerning the precise subject matter of the contract, and the injury is alleged to have occurred as a consequence of that failure. (Id. at p. 594.) “It would be unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over the safety at the worksite. In fairness, . . . the imposition of tort liability depends on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor’s employee.” (Kinsman v. Unocal (2005) 37 Cal.4th 659, 670.)

The general rule will bar a plaintiffs’ action against the hirer unless a specific exception applies. Under the Hooker exception to the Privette doctrine, the hirer of an independent contractor may be liable to the employee of the independent contractor only if Plaintiff can establish that the hirer: (1) retained control over the operative details of the contracted work, and (2) exercised that control in a way that affirmatively contributed to the plaintiff’s injuries. (Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, 202.)

The retained control must be “over the methods of the work or the manner in which the contractor’s employees perform the operative details of their tasks.” (Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 275 (citation omitted).) Broad powers of supervision and control with respect to the results of the work do not qualify as retained control. (Id.) The key issue is not whether the hirer retained control over safety conditions at the worksite, but rather whether the hirer “retained a sufficient degree of control over the manner of performing the contracted work.” (Id.)

In addition to actually retaining control, a hirer must exercise that control in a way that affirmatively contributes to the injury. (Id. at 276) A hirer actually exercises control when is involves itself “such that the contractor is not entirely free to do the work in the contractor’s own manner.” (Id.) Affirmative contribution means that the “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.” “Where the contractor’s conduct is the immediate cause of injury, the affirmative contribution requirement can be satisfied only if the hirer in some respected induced -not just failed to prevent-the contractor’s injury-causing conduct. (Id. at 277)

Here, Sesame’s evidence purports to show that Sesame entered a construction contract with Vince Rotella of Total Construction to perform renovations to the retail space it leased from Gorbrand Lafayette, LLC. (UMF No. 1.) Total Construction was responsible for all construction means, methods, techniques, sequences, and procedures necessary to renovate the space. (UMF No. 5.) Plaintiff’s employer, Ali Boukhari & Associates, was hired by Vince Rotella of Total Construction. (UMF No. 7.)

Sesame’s argument depends on the construction agreement it included in support of its motion. Again, this document is inadmissible because it is not authenticated. Additionally, the document is unsigned and undated and Sesame did not submit the whole document. Sesame also submits a building permit which states Rotella’s company, Total Construction, is a contractor working with Gorbrand Lafayette. (Compendium, Exhibit H.) The document is also not authenticated and does not show that Sesame hired Total Construction as a contractor. Consequently, there is no evidence showing Vince Rotella was a general contractor for Sesame. Additionally, Sesame submits no evidence regarding control over the work it allegedly contracted Rotella to do aside from the inadmissible contract. Consequently, there is no evidence showing Vince Rotella was a general contractor for Sesame. Additionally, Sesame submits no evidence regarding control over the work it allegedly contracted with Rotella to perform aside from the inadmissible contract. Thus, Defendant Sesame has not met its burden.