Judge Kerry Bensinger, Case Number: 20STCV03364, Date: 2023-07-10 Tentative Ruling

On January 27, 2020, Plaintiff, Jaime Ibarra, filed this action against Defendants, Diakite Mohamed and Mariama Diallo for (1) Negligence and (2) Premises Liability. On November 11, 2019, Plaintiff filed amendments to the complaint naming Sal Co Construction (“Sal Co”) as Doe 1, Salvatore Di Costanzo as Doe 2, and JRCO/Mass Development, Inc. (“JRCO”) as Doe 3.

On November 3, 2022, Defendants filed this motion for summary judgment. Plaintiff opposes and Defendants reply.

Defendants are homeowners residing at 5103 Marvale Drive in Windsor Hills, California (the “Property”). In 2019, Defendants entered into a contract with Salvatore Di Costanzo and his general contracting company, Sal Co, to remodel their home. Mr. Di Costanzo, in turn, hired JRCO to perform drywall and molding installation on the Property. Jose Ugarte, from JRCO, hired Plaintiff to perform remodeling work on the Property, including installation of the drywall and molding.

On September 13, 2019, Plaintiff performed his job duties while standing on scaffolding constructed by JRCO on the outside of Defendants’ home when he fell from the scaffolding and sustained bodily injury. Plaintiff alleges Defendants negligently maintained and controlled their Property and knew, or should have known, that a dangerous condition existed on the Property.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.] Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) “Put another way, have defendants conclusively negated a necessary element of the [plaintiff’s] case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial?” (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860.)(internal citation omitted.) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

Defendants object to Plaintiff’s Additional Material Facts (“PAMF”) 28 on the ground that it is inadmissible hearsay. PAMF 28 is based on Plaintiff’s testimony and states as follows: “Mr. Ugarte told [Plaintiff] that [Mr. Ugarte] had already informed the homeowner (Mr. Diakite) that the scaffolding was moving around.” The objection is SUSTAINED.

Defendant Diakite Mohamed owned the real property at 5103 Marvale Drive, Windsor Hills, California 90043. (Undisputed Material Fact (“UMF”) 1.) Defendants Diakite Mohamed and Miriama B. Diallo entered into an agreement for general contracting with Sal Co Construction Company on February 20, 2019. (UMF 2.) Salvatore Di Costanzo of Sal Co was responsible for: (1) maintaining safety at the Property; (2) ensuring that scaffolding was sturdy and safe each day; and (3) supervising subcontractors. (PAMF 3, 13, 17, 18, 19.)

In July 2019, Mr. Di Costanzo dba Sal Co entered into a subcontractor agreement with JRCO to install windows, doors, drywall, and to paint exterior sidings and trim at the Property. (PAMF 13; UMF 3.) Before hiring JRCO, Mr. Di Costanzo determined that JRCO had an active contractor’s license, had worker’s compensation insurance, and was bonded. (PAMF 14.) However, on July 31, 2019, JRCO’s contractor’s license expired. (PAMF 15.)

The incident occurred on September 13, 2019—Plaintiff’s second day of work at the Property. (PAMF 21.) Plaintiff worked for Mr. Ugarte/JRCO for about 15 days before the incident. (PAMF 20.) On the day of the incident, Mr. Ugarte told Plaintiff what to do and then left the job site. (PAMF 22.) Plaintiff was on scaffolding outside the Property when he fell. (PAMF 29.) Neither Mr. Di Costanzo nor Mr. Diakite were at the Property when he fell. (PAMF 32.) JRCO erected the scaffolding outside the Property. (PAMF 16.)

Generally, a non-negligent party cannot be liable for injuries to its independent contractor’s employees. (Privette v. Superior Court (1993) 5 Cal.4th 689, 702.) Privette “renders the hirer of an independent contractor immune from liability to the independent contractor’s employee even when the basis for liability was that the hirer failed to provide in the contract that the contractor must take special precautions to avert the risks of work. [Citation.] Privette also bars liability when the injured employee’s theory is that the hirer negligently hired the independent contractor. [Citation.] Finally, Privette applies when the injured employee’s cause of action against the hirer of the independent contractor is based on the hirer’s failure to comply with statutory or regulatory workplace safety requirements. [Citation.]” (Johnson v. Raytheon Company, Inc. (2019) 33 Cal.App.5th 617, 628.)

“By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract. That implicit delegation includes any tort law duty the hirer owes to the contractor’s employees to comply with applicable statutory or regulatory requirements.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594 (SeaBright).)

Defendants argue they are entitled to summary judgment because Defendants relinquished control of the worksite at the Property to the general contractor Sal Co, who in turn turned over control of the worksite to Mr. Ugarte and JRCO. As such, Defendants argue that they did not owe a duty of care to Plaintiff and further, Plaintiff’s action is barred under Privette.

In support, Defendants submit their discovery responses and point to excerpts of testimony from Mr. Di Costanzo and Plaintiff to establish that: (1) Defendants entered into a construction contract with Sal Co for remodeling work to their Property (Response to Request for Production No. 29, Ex. C); (2) under the construction contract, Mr. Di Costanzo dba Sal Co was tasked with hiring all subcontractors and did hire Mr. Ugarte of JRCO to perform remodeling work at the Property (Di Costanzo Deposition, p. 7:16-25); (3) Mr. Di Costanzo, and not Defendants, was responsible for supervising the remodeling project and maintaining safety, including inspection of the scaffolding (Di Costanzo Deposition, p. 10:16-24); and (4) Mr. Ugarte hired Plaintiff to perform work on the Property and took directions from Mr. Ugarte. (Ibarra Deposition, pp. 8:10-12, 13:1-5). Based on the foregoing, Defendants submit sufficient evidence to show that Plaintiff’s action is barred under Privette.

The burden shifts. Plaintiff offers two arguments in opposition: (1) Plaintiff is Defendants’ employee, and (2) the Privette Doctrine does not apply.

1. Employee: Plaintiff argues he was Defendants’ employee rather than an independent contractor because JRCO did not possess a valid contractor’s license at the time Plaintiff was hired. Labor Code section 2750.5 creates a “conclusive presumption of employee status for an unlicensed contractor” which “is dependent upon only one factor—failure to secure the requisite license.” (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 331.) The argument lacks merit. It is undisputed that JRCO did not have a valid contractor’s license at the time JRCO hired Plaintiff to perform work at the Property. From there, however, Plaintiff makes the unsupported leap that he was Defendants’ employee. Plaintiff misses one critical step in the hiring chain: Sal Co hired JRCO as a subcontractor. Consequently, JRCO’s unlicensed status renders Plaintiff an employee of Sal Co, not Defendants.[1] Plaintiff fails to cite any authority for the proposition that in a case involving a hiring chain, a three-step downstream Plaintiff suddenly becomes the owner’s employee rather than the general contractor’s employee, especially where the general contractor hired the unlicensed company and no evidence has been offered to show the general contractor lacked a valid contractor’s license.[2] The hirer in this case is Sal Co., not Defendants. Plaintiff may well be a statutory employee of Sal Co, but he is not Defendants’ statutory employee.[3] Plaintiff’s “employee” argument fails to foreclose application of the Privette doctrine.

2. The Privette Doctrine: Recognizing the possibility that JRCO’s lack of a license may not classify him as Defendants’ employee, Plaintiff goes on to argue that even if the Privette doctrine applies, an exception warrants denial of the motion. Plaintiff points to three possible exceptions: nondelegable duty; retained control; concealed hazard.

“The nondelegable duties doctrine prevents a party that owes a duty to others from evading responsibility by claiming to have delegated that duty to an independent contractor hired to do the necessary work. The doctrine applies when the duty preexists and does not arise from the contract with the independent contractor.” (SeaBright, supra, 52 Cal.4th at pp. 600-601.) However, “[b]y hiring an independent contractor, the hirer implicitly delegates to the contractor any tort duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract. That implicit delegation includes any tort law duty the hirer owes to the contractor’s employees to comply with applicable statutory or regulatory requirements.” (Id. at p. 594.) “While a non-delegable duty may arise when a statute or regulation requires specific safeguards or precautions to insure others’ safety [citations], it is the nature of the regulation itself that determines whether the duties it creates are non-delegable.” (Padilla v. Pomona College (2008) 166 Cal.App.4th 661, 672.)

Plaintiff argues that several statutes and regulations give rise to a nondelegable duty to maintain the scaffolding in a reasonably safe condition. Those statutes and regulations include Labor Code sections 6400[4], 6401[5], and 6403[6], Cal-OSHA sections 1637(n), 1637(p), and 1670(a), American National Standards Institute (ANSI) sections 4.10[7] and 6.51[8], and California Building Code (CBC) section 3401A.2.

Plaintiff’s argument lacks merit. Labor Code sections 6400, 6401, and 6403 apply to employees. Plaintiff has established, at most, that he was an employee of Sal Co. Thus, if these Labor Code sections give rise to a nondelegable duty, that duty is borne by Sal Co, not Defendants.

As to the Cal-OSHA regulations, any tort law duty, if any, is delegable. “The tort law duty, if any, that a hirer owes under Cal-OSHA and its regulations to the employees of an independent contractor is delegable.” (See SeaBright, supra, 52 Cal.4th at p. 601.) As discussed above, Plaintiff was not employed by Defendants. Moreover, Defendants delegated any duty arising under Cal-OSHA when it entered into a construction contract with Sal Co.

Plaintiff’s reliance on the ANSI provisions is misplaced. Absent from the ANSI provisions is any language indicating that the owner of a property has the duty to remove any damaged or weakened scaffold or to ensure the use of an approved personal fall arrest system in connection to scaffolding.

CBC section 3401A.2 is also unavailing. Section 3401A.2 states, in relevant part, “Buildings and structures, and parts thereof, shall be maintained in a safe and sanitary condition ... The owner or the owner’s designated agent shall be responsible for the maintenance of buildings and structures ...” The plain terms of the building code section indicate that the duty to maintain the building and structure is delegable. Defendants delegated that duty under the construction contract with Sal Co. Mr. Di Costanzo further confirmed that he was responsible for maintaining and inspecting the scaffolding. Plaintiff fails to demonstrate that there are triable issues concerning nondelegable duty.

Plaintiff argues there are triable issues of fact concerning Defendants’ retained control of the worksite. In support, Plaintiff offers Mr. Di Costanzo’s testimony wherein he admits to being responsible for maintaining safety at the Property, ensuring that the scaffolding was safe to use, and supervising JRCO. However, this evidence supports the conclusion that Mr. Di Costanzo retained control of the worksite, not Defendants. From this evidentiary platform, Plaintiff reaches the unfounded conclusion that Defendants knew or should have known the scaffolding presented a dangerous condition without establishing that Defendants retained control over the worksite. Indeed, Plaintiffs’ Opposition repeatedly refers to Mr. Di Costanzo’s control over the work site, not Defendant’s.[10] Plaintiff fails to carry his burden to show the retained control exception applies.

A landowner that hires an independent contractor may be liable to the contractor’s injured employee even if it does not retain control over the work if the following conditions are present: the landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition; a landowner cannot effectively delegate to the contractor responsibility for the safety of its employees if it fails to disclose critical information needed to fulfill that responsibility.
(Kinsman, supra, 37 Cal.4th at pp. 673-74.)

Plaintiff argues there are triable issues of fact concerning Defendants failure to disclose a concealed hazard, i.e., the unsafe scaffolding. The argument fails for three reasons. First, the concealed hazard exception applies to preexisting hazardous conditions on the property. Here, the scaffolding did not exist until sometime after Defendants entered into a construction contract with Sal Co. Accordingly, the scaffolding was not a preexisting condition on the Property such that Defendants had a duty to disclose the concealed hazard. Second, Plaintiff does not present admissible evidence to establish that Defendants knew of the unsafe scaffolding.[11] Finally, and as discussed above, it is undisputed that Mr. Di Costanzo was responsible for inspecting the scaffolding and ensuring it was safe to use.

Based on the foregoing, Plaintiff was not Defendants’ statutory employee, and the Privette doctrine forecloses his claims against Defendants. Defendants prevail as a matter of law. The motion for summary judgment is GRANTED.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Defendants cite to Neighbours, supra, a case repeatedly relied upon by Plaintiff, to support their contention that under a similar employment hierarchy the injured party was the presumptive employee of the general contractor not the property owner. In Neighbours, Plaintff was injured while working on a construction site owned by defendant, In addition to owning the site, defendant was general contractor for the project. Plaintiff was hired as a roofer by the subcontractor of the subcontractor originally hired by defendant for roofing construction. Neither of the subcontractors possessed valid contractor’s licenses. Plaintiff suffered injuries while at the site and subsequently sued defendant in its capacity as the general contractor.

[2] Plaintiff cites a string of cases in support of the proposition that the statutory presumption of employment includes instances where the injured party automatically becomes the employee of the property owner even if there is an intervening general contractor or subcontractor who hired the injured party. (Opposition, p.10:7-11.) Those cases do not support Plaintiff’s argument. Jones v. Sorenson (2018) 25 Cal.App.5th 933 concerned a homeowner who hired an unlicensed gardener to perform tree trimming services on property. The gardener, in turn, hired the plaintiff to help perform the work. Absent from the hiring chain in Jones is a licensed general contractor. Mendoza v. Brodeur (2006) 142 Cal.App.4th 72 concerned a defendant homeowner who directly hired the plaintiff, an unlicensed roofer, to replace the defendant’s roof. Rosas v. Dishong (1998) 67 Cal.App.4th 815 concerned a plaintiff who was directly hired by the defendant homeowners to trim a tree branch despite not possessing the requisite license. None of the foregoing cases involve the factual situation such as the one here where a property owner hires a general contractor who then hires an unlicensed contractor.

[3] As Defendants point out, Plaintiff’s exclusive remedy may be worker’s compensation. (See Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430, 443 [“In general, the Workers’ Compensation Act provides an employee with his or her exclusive remedy for a work-related injury.... [T]he legal theory supporting such exclusive remedy provisions is a presumed ‘compensation bargain,’ pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.... The function of the exclusive remedy provisions is to give efficacy to the theoretical ‘compensation bargain.’ [Citation.]”].) (Citations and quotations omitted.)

[4] “Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.” (Lab. Code, § 6400(a).)

[5] “Every employer ... shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.” (Lab. Code, § 6401.)

[6] “No employer shall fail or neglect to do any of the following: (a) To provide and use safety devices and safeguards reasonably adequate to render the employment and place of employment safe. (b) To adopt and use methods and processes reasonably adequate to 21 render the employment and place of employment safe. (c) To do every other thing reasonably necessary to protect the life, safety, and health of employees.” (Lab. Code, § 6403.)

[7] “Any scaffold damaged or weakened from any cause shall be immediately removed 29 from service and shall not be used until repairs have been completed and approved by a qualified person.” (ANSI section 4.10.)

[8] “Each person on a single-point or two-point, suspension scaffold shall use an approved personal fall arrest system which includes a full body harness, lanyard and fall arrester attached to 4 an independent dropline. The lifeline shall be fastened to a fixed anchorage other than the scaffold support rigging and shall be independent of the work surface ...” (ANSI section 6.5.1.)

[9] In Gonzalez v. Mathis (2018) 20 Cal.App.5th 257, the California Supreme Court discussed two exceptions to the Privette doctrine. “First, in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081 (Hooker), [the California Supreme Court] held that a hirer may be liable when it retains control over any part of the independent contractor's work and negligently exercises that retained control in a manner that affirmatively contributes to the worker's injury. (Id. at p. 202, 115 Cal.Rptr.2d 853, 38 P.3d 1081.) Second, in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 36 Cal.Rptr.3d 495, 123 P.3d 931 (Kinsman), [the California Supreme Court] held that 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. (Id. at p. 664, 36 Cal.Rptr.3d 495, 123 P.3d 931.)” (Gonzalez, supra, 12 Cal.5th at p. 38.)

[10] Ms. Barillas opinion that Mr. Diakite knew, or should have known, that the scaffolding presented a dangerous condition lacks foundation and is speculation. This is especially true given Plaintiff’s reliance upon Mr. Di Costanzo’s admissions regarding responsibility of the work site and safety of the scaffolding.

[11] Plaintiff offers his own testimony to establish that Defendants knew of the unsafe scaffolding. However, the Court has found that the cited portion of Plaintiff’s testimony is inadmissible. Moreover, a review of that testimony reveals a lack of clarity of the identity of the person who purportedly knew of the unsafe scaffolding.