Judge Jill Feeney, Case 20STCV37897 2022-08-11 Tentative Ruling

This is an action for negligence and loss of consortium which was filed on October 2, 2020 by Plaintiffs Sorozh Haghverdian and Jasmen Haghverdian against Defendants J.F. Shea Construction, Inc., d/b/a Shea Apartments; J.F. Construction, Inc. d/b/a/ Shea Properties; Mollenhauer Group Civil, Inc.; New Urban West, Inc.; Planning Associates, Inc.; Hilty’s Electrical Contracting, Inc., Snyder Langston; Snyder Langston, LLC; and Does 1 to 50. Plaintiffs allege Defendants’ negligence maintaining, managing, controlling, and operating the complex under construction at 19501 Nordhoff Street, Northridge, CA 91324 (“Premises”) caused Plaintiff's leg to be caught in a gap in the flooring of the Premises.

Defendant argues that (1) it is not liable for Plaintiff Sorozh Haghverdian’s accident under the Privette/Toland line of cases, (2) it owed no duty to Plaintiff and therefore did not cause the accident, and (3) Plaintiff Jasmen Haghverdian’s claim for loss of consortium fails because it is derivative of her spouse’s claim.

Plaintiffs argue that Snyder’s motion for summary judgment should be denied because Snyder (1) breached its duty as a general contractor to adequately inspect and cordon off the hazardous unsecured floor opening; (2) negligently directed its subcontractors (including A&D Fire) on how to cover the hazardous opening; and (3) negligently failed to exercise its retained control over the hazardous opening.

Snyder argues it is not directly liable because it did not retain control over Plaintiff’s work or A&D’s work at the Project and did not affirmatively contribute to Plaintiff’s alleged injury. Additionally, Snyder argues there is a presumption that it delegated responsibility to perform the project safely to AMPAM and A&D.

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.)

Snyder contends that Plaintiffs cannot prove the element of duty 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)

“A hirer’s conduct also satisfies the affirmative contribution requirement where the hirer’s exercise of retained control contributes to the injury independently of the contractor’s contribution (if any) to the injury.” (Id.) For example, if a hirer promises to undertake a particular safety measure, negligently fails to do so, and that negligence leads to the injury of the employee, then the hirer would have liability. (Id.)

Here, Snyder’s evidence shows that Snyder was the general contractor for the Northridge Apartments Project (“Project”) located at 19515 Nordhoff Street in Northridge, California. (UMF Nos. 2-3.) Snyder hired Plaintiff’s employer, AMPAM Parks Mechanical, Inc. (“AMPAM”). (UMF No. 5.) Snyder did not direct or control the subcontractor’s work on the project, nor did it control the work of the subcontractors’ employees. (UMF No. 6.) Snyder had no knowledge of the condition that allegedly caused Plaintiff’s accident and did not create the gap or cover it. (UMF Nos. 7-8.) Plaintiff was injured as he was walking through the Project when his leg got caught in a gap in the flooring, which was covered by an unsecured wood gap covering. (UMF Nos. 10-11.) As part of AMPAM’s subcontract with Snyder, AMPAM was responsible for providing:

"all labor, material, installation, layout, supervision, cartage, receiving, offloading, hoisting, distribution, supplies, trash removal, services, tools, equipment, utilities, shop drawings, engineering, mobilization, demobilization, taxes, insurance, overhead, profit, wage, and material escalation, guarantee, warranty, storage and other facilities of every kind and description required for the prompt and efficient execution of the Plumbing work describe herein (Work), in strict accordance with the Contract Documents, and as more particularly, though not exclusively, specified in Specification Section”

(UMF No. 14.) AMPAM was to provide a “full-time supervisor who is knowledgeable in all phases of the Work and the performance of this Subcontract Agreement, and who is authorized to act on behalf of Subcontractor for all purposes” of the subcontract agreement. (UMF No. 15.) The agreement further provides the AMPAM was responsible for their employees’ safety, including addressing wall, floor, and roof openings as follows:

c) Floor and roof openings shall be covered with 3/4" plywood or the equivalent, and be able to withstand twice the loading but not less than 200 pounds. Cover will be secured in place to prevent accidental movement and shall be clearly marked "CAUTION: FLOOR/ROOF OPENING. DO NOT REMOVE" or "CAUTION. HOLE".

(UMF No. 18.). AMPAM’s own Foreman was responsible for inspection of the worksite prior to the start of each workday. (UMF No. 19.) AMPAM was required to procure Workers’ Compensation Insurance. (UMF No. 20.) AMPAM had “sole control of and responsibility for means, methods, techniques, sequences and procedures of construction as well as the safety precautions, programs, and employee training incidental thereto.” (UMF No. 21.) The subcontracts for the other subcontractors, A&D Fire Sprinklers, Inc. and Hilty Electrical Contracting, contained the same provisions as those in AMPAM’s subcontract regarding safety and supervision. (UMF Nos. 27, 28, 35, 36.)

Snyder meets its burden of showing that it is relieved of liability for Plaintiff’s injuries under the Privette doctrine. Snyder was the general contractor on the Project and hired Plaintiff’s employer, AMPAM, as a subcontractor. Snyder’s evidence shows that it did not control AMPAM’s work, nor did it control the work of the employees. Although the subcontract agreement did specify how floor openings should be covered, Snyder did not affirmatively control the covering of floor openings, including the hole Plaintiff fell through. Rather, it delegated this task to the subcontractors through the subcontracting agreement. The burden shifts to Plaintiffs.

Plaintiffs’ evidence shows that Snyder was required by its contract with the site owner to retain and exercise control over jobsite safety. (PUMF No. 1; Farkas Decl., ¶20.) Snyder was required by Federal OSHA regulations to retain and exercise control over jobsite safety. (PUMF No. 2; Farkas Decl., ¶18.) The standard of care in the construction injury does not permit the general contractor to delegate or turn over their responsibility for safety to a subcontractor. (PUMF No. 3; Farkas Decl., ¶19.) Snyder’s crew members are trained to secure improperly secured access openings in the floor. (PUMF No. 4; Schneider depo 56: 16-24.) The covering on the hole Plaintiff stepped on was not legibly marked “CAUTION: FLOOR/ROOF OPENING. DO NOT REMOVE” or “CAUTION HOLE.” (PUMF No. 9; Farkas Decl., ¶23.)

Plaintiffs do not meet their burden of proving that Snyder retained control over operative details of the contract work and that Snyder retained control in a manner that affirmatively contributed to Plaintiff’s injuries. Rather, the evidence shows that a subcontractor failed to follow the safety requirements that all subcontractors on the project agreed to in their subcontracts regarding safety. Snyder did not control the work of the subcontractors or their employees and did not supervise the implementation of the safety requirements specified in the subcontracts. The subcontractors were required to supervise their own employees and inspect the worksite at the start of each day. Snyder, though it did impose safety requirements in the subcontracts that all subcontractors were meant to follow, did not affirmatively control or supervise the work of the subcontractors in a way that contributed to Plaintiff’s injuries. Absent evidence of more affirmative conduct by Snyder rather than a passive contract provision specifying how floor holes should be covered, Plaintiffs have not met their burden.

Plaintiffs contend that Snyder’s requirements that floor openings be covered by plywood capable of holding more than 200 pounds is in violation of Title 8, section 1632, which imposes a 400-pound requirement for floor opening coverings. (PUMF No. 10; Farkas Decl., ¶16; Fox Decl., Exhibit 4.) However, it is undisputed that Plaintiff fell through the hole because the wood gap covering over the hole was unsecured, not because it could not bear his weight. (UMF No. 10.) Thus, Snyder’s specifications for the weight bearing capacity of the wood floor gap coverings did not affirmatively contribute to Sorozh’s injuries.

Plaintiffs also argue that Snyder’s contract with the owner of the Project specified that it would exercise control over jobsite safety. However, it is well-settled that a contractor retaining control over safety conditions at a worksite alone does not constitute retention of control that would impose liability on the hiring contractor without a showing that the hirer’s exercise of retained control affirmatively contributed to the employee’s injuries. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202.)

Snyder also argues that because no triable issue of material fact exists with regard to Plaintiff Sorozh Haghverdian’s claim for negligence, its motion regarding Plaintiff Jasmen Haghverdian’s derivative claim for loss of consortium should likewise be granted. Because the evidence shows there are no triable issues of material fact as to Plaintiff Sorozh Haghverdian’s claims, Snyder’s motion for summary judgment as to the loss of consortium claim is also granted.