Judge Jill Feeney, Case 21STCV07504 2023-02-16 Tentative Ruling

This is an action for negligence and premises liability involving a workplace accident where Plaintiff fell off of a cart he was operating during a landscaping project. Plaintiff Christopher Michael Dowding filed his Complaint against Hilary Susan Rose, Dirty Girl Organic Landcare, and David Michael Talla on February 25, 2021.

Plaintiff argues that the Privette Doctrine does not apply. Plaintiff argues that Labor Code section 3852 allows injured employees who received worker’s compensation to pursue full compensation from a liable third party. Plaintiff also argues that the Hooker exception to the Privette doctrine applies here. Plaintiff also argues that Moving Defendants hiring an unlicensed contractor to perform work that required a license was a proximate cause of Plaintiff’s injuries and that Moving Defendants should have hired a licensed landscaper. Plaintiff then argues that Moving Defendants owed a duty to Plaintiff as his employer and failed to provide a safe working environment. Finally, Plaintiff argues that he has sufficient facts to demonstrate false imprisonment.

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.) The elements of premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)

Moving Defendants contend that Plaintiff 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 and in this case no exceptions to the Privette doctrine apply.

“[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.)

In the recent case of Gonzalez v. Mathis the Supreme Court reaffirmed the Privette doctrine noting that “[t]here is a strong presumption under California law that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety.” (Gonzalez v. Mathis, (2021) 12Cal.5th 29, 38.) That case also reiterated the two exceptions to that doctrine.

Under the Hooker exception to the Privette doctrine, the hirer of an independent contractor may be liable to the employee of the independent contractor if a plaintiff is able to 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.)

In addition to the Hooker exception, there is another exception to application of Privette. A landowner who hires an independent contractor may be liable if the landowner knew, or should have known, of a concealed hazard on the property that the contractor did not know of and could not have reasonably discovered, and the landowner failed to warn the contractor of the hazard. (Kinsman v. Unocal Corp. (2005) 37Cal.4th 659, 664.)

Here, Defendant Sapphire is an LLC and the sole owner of 27777 W. Winding Way, Malibu, California. (UMF Nos.1-2.) Defendant Blue and his wife are Sapphire’s only members. (Id.) Sapphire purchased the property at issue in 2018. (UMF No.3.) On July 31, 2018, Moving Defendants hired an independent contractor, Palisades Organic Landcare, Inc. dba Dirty Girl Organic Landcare (“DGOL”) to provide maintenance of the landscaping on the property under a landscape contract. (UMF No. 4.) DGOL added Sapphire as an insured under its liability insurance policy. (UMF No. 5.)

The landscape contract specified that DGOL was the Contractor and Todd and Karen Blue were named as the Clients. The contract required DGOL to, among other things, perform “tree trimming…tree removal…replacement of container, window box and bedding material…Fertilizers and soil amendments…irrigation repairs and upgrades” and reporting and replacing dead or dying plants and trees. (Moving Defendant’s Evidence, Exh. B.) The contract also provided that DGOL would “provide all payment of wages, Liability Insurance, taxes and Workers Compensation insurance…provide all tools, equipment and materials” and submit to “weekly quality control visits by owners.” (Id.)

DGOL hired Plaintiff in April 2019 and he worked for two to three weeks, working eight-hour shifts, Monday through Friday. (UMF No.7.) Plaintiff’s work for DGOL included replacing wood along a decomposed granite walkway. (UMF No.8.) Plaintiff was supervised by DGOL’s site supervisor, Troy Presha. (UMF No.9.) Moving Defendants would occasionally provide aesthetic opinions about the plants to Mr. Presha and DGOL’s owner, Hilary Rose, but did not direct or supervise DGOL’s work. (UMF No.10.) Defendant Blue and his family live in Houston, Texas, and did not begin using the property until late May 2019. (UMF No. 11.)

On the date of the incident, Plaintiff was operating a power buggy which is akin to a motorized wheel barrow with a platform for the operator stand on. (UMF No. 13.) Moving Defendants did not own or maintain the power buggy. (UMF 26.) Prior to the incident, Plaintiff had never operated a power buggy. (UMF No.14.) Plaintiff had seen other people using the buggy and received instructions from another DGOL employee on how to operate the vehicle. (UMF Nos. 15-16.) Plaintiff began using the buggy to transport sheets of sod grass loaded by DGOL employees down a decomposed granite pathway to the property’s back yard. (UMF No. 17.) Plaintiff made one successful trip up and down the path without incident. (UMF No. 18.) On Plaintiff’s second trip down the hill, the power buggy allegedly tilted and Plaintiff accidentally pushed the throttle, causing the buggy to accelerate, throw him off, and crash into a retaining wall. (UMF Nos. 18-22.) Plaintiff did not know the property owners or have any contact with them. (UMF Nso.22, 25.)

Moving Defendants are not aware of any defects or hazards on the property. (UMF No. 28.) Moving Defendants’ expert, Stephen J. Donell, visited the property and inspected the decomposed granite pathway where Plaintiff fell and walked the entire pathway. Based on his visual inspection, the pathway appeared sufficiently compacted and properly maintained for use, including by equipment like the power buggy. (Donell Decl., ¶6.)

Moving Defendants’ evidence shows that DGOL was hired as an independent contractor to perform landscaping services on the Moving Defendants’ property. DGOL then hired Plaintiff. Plaintiff was injured while performing his work for DGOL. The Privette Doctrine applies here because Plaintiff was the employee of Moving Defendants’ independent contractor and was injured while working for DGOL. Moving Defendants’ thus meet their burden of showing Plaintiff’s claims are barred under the Privette doctrine and that no exception to the doctrine applies..

Plaintiff’s separate statement in support of its opposition contains no references to deposition page or line numbers in 15 of the 20 facts offered. With respect to Plaintiff’s response to Moving Defendants’ separate statement, only five of the 23 facts that are disputed reference deposition page numbers (although no line numbers are referenced) and four of those five contain a page number for only one of the many depositions cited. Plaintiff lodged entire deposition transcripts in opposition to the motion.

Plaintiff’s failure to comply with the letter and spirit of the rule is egregious in its scope. This wholesale disregard for the rule frustrates the entire purpose of the separate statement. What has been filed by Plaintiff is essentially the same as the absence of a separate statement.

Plaintiff provides evidence that there was a second contract which included the design, demolition, construction, and maintenance of various portions of the property. (PRUMF No. 4.) At the time of the accident, Plaintiff was also being supervised by Francisco Ruiz, DGOL’s project manager. (PRUMF No. 9.) Plaintiff also alleges Defendant Blue was provided with a recommendation to hire a geotechnical engineer before the incident to examine the grading and sloping at the property. (PRUMF No. 27.) Plaintiff also alleges that a geological survey was performed in 2018. (PRUMF No. 29.)

Plaintiff first argues that the Privette Doctrine does not apply because Labor Code, Section 3852 authorizes an employee to pursue a right of action for all damages resulting from injuries against any person other than the employer. However, Labor Code section 3852 states that an employee submitting a claim “for compensation does not affect his or her claim or right of action for all damages proximately resulting from the injury or death against any person other than the employer.” In other words, an employee seeking workers’ compensation is not barred from suing a third party for his injuries. Section 3852 does not affect whether the Privette doctrine applies because it only provides that a workers’ compensation claim does not affect actions against third parties.

Here, Defendant’s evidence shows that Defendant Blue and his wife, the only members of Defendant Sapphire, lived in Texas at the time of the incident. The Blues provided some aesthetic opinions to DGOL’s owner and site supervisor. The Blues also had the right to weekly quality control inspections. The Blues otherwise had no role in supervising or directing DGOL’s work. Plaintiff was being supervised by the site supervisor and Francisco Ruiz, both employees of DGOL. A DGOL employee provided instructions on operating the power buggy at issue. The buggy was also provided by and maintained by DGOL.

To the contrary, the evidence shows that Moving Defendants did not retain control over the methods of the work or the manner in which DGOL’s employees performed the operative details of their tasks. Additionally, there is no evidence that affirmative conduct on Moving Defendants’ part contributed to Plaintiff’s injuries.

Assuming for argument’s sake that a license was required, as Moving Defendants point out, whether a contractor is licensed is not relevant to the application of the Privette doctrine. DGOL was an independent contractor and Plaintiff was its employee. There is no requirement that the contractor be licensed.

Moreover, to the extent that Moving Defendants may be considered the employer of Plaintiff under Labor Code Section 2750.5, that does not create liability for the Moving Defendants here. This is because worker’s compensation insurance did exist in this case. Plaintiff did receive worker’s compensation benefits pursuant to an insurance policy as well as a $75,000 settlement from DGOL. In this situation, Plaintiff’s employer may not be sued in tort because there was worker’s compensation insurance. Labor Code Section 3706 provides for a cause of action when there is no such insurance. The presumptions of Labor Code Section 3708 also do not apply here since worker’s compensation insurance was secured. (Vebr v. Culp (2015) 241 Cal.App.4th 1044, 105-1052 plaintiff has recourse against a landowner as an additional employer when contractor is unlicensed and uninsured.)

Plaintiff also argues that Moving Defendants had notice of a defect in the decomposed granite pathway because Defendant Blue requested a geological survey. However, there is no evidence that the survey showed any defect to the pathway. Rather, it appears that the survey was done to ensure the property’s pool had not sunk after an earthquake. (Blue Depo., 75:11-17.) Additionally, Moving Defendants’ expert’s inspection showed no defect with the granite pathway and Plaintiff offers no evidence to the contrary. Finally, there is no evidence that assuming there was any defect with the path that it was a concealed defect which is what would be required for the concealed defect exception to the Privette doctrine to apply.

Plaintiff’s form complaint checks the box identifying an intentional tort cause of action. Moving Defendants move for summary judgment on this cause of action as well. Moving Defendants contend that the complaint does not specify which intentional tort or torts and does not allege facts stating a cause of action for any intentional tort with respect to Moving Defendants.

Moving Defendants further point to the undisputed facts that the Moving Defendants were not present at the property at all prior to the accident, had no dealings with Plaintiff at all, and had no knowledge of the accident until they were served with the complaint in May 2022. (UMF 22, 23.)

This is not enough. In the first instance, a defendant must only negate the theories of liability alleged in the complaint. (County of Santa Clara v. Atlantic Richfield (2006) 137 Cal.App.4th 292, 232.). Here, Plaintiff merely checked the box for intentional tort and did not attach a cause of action or allege any facts establishing a cause of action for false imprisonment.

In Plaintiff’s opposition, it states that if the Court is going to grant the motion for summary judgment that the motion should be continued to the date of DGOL’s summary judgment motion hearing date “to permit the additional discovery/completion of discovery identified in the papers related to this motion.”

Plaintiff fails to demonstrate that facts essential to the opposition may exist, but cannot be currently presented.(CCP Section 437c(h).) A party seeking a continuance must make the necessary showing of good faith. (Braganza v. Alberston’s LLC (2021) 67 Cal.App.5th 144.)

The Court continued the hearing on the motion to allow Plaintiff to provide supplemental briefing on (1) Why in the exercise of due diligence Plaintiff both did not obtain and was not aware of the existence of the Geotechnical Report and texts between Blue and Rose prior to the date of Plaintiff’s opposition, (2) how these materials contain facts essential to justify opposition to the motion for summary judgment, and (3) the legal basis for a continuance.

Plaintiff argues that the Geologic Report produced on January 11, 2023 shows that the slope where Plaintiff’s accident took place was a hazard that Todd Blue concealed from his contractor. Defendants concede that this report was not produced until after Plaintiff filed his opposition.

“Surficial Erosion, Mudflows and Surficial Failures - Signs of significant erosion were not observed on the day of my site observation. Evidence of damage due to past or existing mudflows was not observed at the site. The fill and soil which overlies the site slopes are considered to be susceptible to future erosion and surficial slumping during periods of heavy rainfall. The risk of surficial stability issues on the site slopes can be reduced by implementing proper slope planting and ensuring that surface drainage is properly controlled. Some element of risk will remain due to the steepness of the site slopes and the engineering characteristics of the surficial earth materials.

Creep - Descending slopes which consist of non-bedrock earth materials, such as compacted fill, uncompacted fill, soil, alluvium and weathered bedrock are susceptible to long term creep. Creep is a process which slowly causes the near surface earth materials to move downslope over time. Extensive rainfall and seismic events are known to cause an acceleration of the creep process. Structures such as decking, walls and fences located near the tops of creep-prone slopes can over time develop cracking, distress and movement downslope. Proper control of surface drainage, keeping pavement cracks sealed, planting of approved slope vegetation and providing deeper foundations for structures located near the top of descending creep-prone slopes will help to reduce long-term damages.”

Plaintiff again fails to cite where in the report this excerpt came from and appears to have bolded portions without an emphasis added notation. The portion of the report that Plaintiff cites is on page 36 of the report. On the same page, the report states that the slopes are judged to be “performing well from a visual observation standpoint and no obvious signs of past or present deep-seated instability were observed” at the time of the inspection. (Report, p. 36.) Additionally, the “historical performance and stability of the bedrock underlying the site has been favorable.” (Id.) The report also advises that the property owner continue to maintain slope drainage control to reduce the risk of future slope performance issues. (Id.)

The report does not note any significant defects with the slopes on Defendants’ property and instead recommends regular maintenance and precautions to prevent future issues with erosion, mudflow, surficial failure, creep, and instability. Because the report only recommends safety measures to prevent future defects common to slopes like the ones on Defendants’ property, the report fails to show that the slope where Plaintiff fell was a hazard. Rather, the slopes were performing well at the time of the 2018 inspection. There is no evidence that the slope where Plaintiff fell was hazardous at the time of the incident.

Although the report further notes that some of the retaining walls on the property were built without a permit, the report notes that there were no signs of damage or other defects. (Report, p. 27.) Additionally, there is no evidence that any of the retaining walls contributed to any hazardous condition on the slope where Plaintiff fell. Rather, Defendants’ expert testified that the slope was still in good condition. Thus, there is no genuine issue of material fact with respect to the fact that the exception under Kinsman does not apply here.

Plaintiff concedes that there are no texts from Todd Blue directing DGOL on how the contract work should be carried out. Plaintiff argues that the lack of text messages raises a triable issue of material fact as to whether Todd Blue exercised control over the operative details of the work. This argument is not well taken. A lack of communications showing Todd Blue exercised control over how DGOL’s employees should carry out their work would support a finding that he did not exercise such control.

The evidence shows that DGOL’s PMK, Mr. Presha did not have access to text or email communication with Todd Blue because Hillary Rose was responsible for that project. (Plaintiff’s brief p. 6; Presha Depo, 65:7-19.) Defendants produced texts between Todd Blue and Hilary Rose on December 15, 2022, a month before Plaintiff filed his opposition. (Barredo Decl., ¶2, Exh. A, B.) The texts only concern whether DGOL’s insurer would cover the expense of this litigation. (Id.)

Defendants’ evidence showing that Todd Blue and his wife did not control the operative details of the contract work consists of declarations and deposition testimony showing they provided aesthetic opinions of the work and did not otherwise control how DGOL completed the work. Additionally, Todd Blue and his wife were living in Texas at the time the work was being performed. This evidence is sufficient for Defendants to meet their burden of proving no triable issue of material fact exist over whether they controlled the operative details of the contract work.

On the other hand, Plaintiff argues that contract between Defendants and DGOL stated that DGOL was required to obtain authorization from Todd Blue and Mrs. Blue via email before beginning the work. (Presha Decl., 46:17-22.) However, even in the light most favorable to Plaintiff, the contract at most required DGOL to inform the Blues of additional work and materials and obtain approval before beginning work. This constitutes broad control over the results of the work, and not the operative details of how the employees were to carry out their work. Merely approving work or materials does not constitute affirmative conduct that contributed to Plaintiff’s injury. Speculation that emails may exist showing the Blues exercised further control over the work is insufficient to meet Plaintiff’s burden on summary judgment. It appears that Defendants provided complete discovery responses pertaining to the emails. Plaintiff has not moved to compel Defendants to provide further responses to discovery requests. Thus, Plaintiff fails to meet his burden of showing triable issues of material fact over whether Defendants exercised control over the operative details of the work.