Judge Kerry Bensinger, Case Number: 22STCV34486, Date: 2023-08-29 Tentative Ruling

On October 27, 2022, Plaintiff, Francielle Carey, initiated this action against Defendants, Michawolski Zev Trust[1] and Joanna Suhl, for injuries Plaintiff sustained while working at a fundraiser event on Defendants’ premises. Defendants contracted with Lovely Tacos to provide catering services at the fundraiser. Plaintiff was employed by Lovely Tacos at this time and was working during the fundraiser. Plaintiff alleges he suffered severe burns to his face and arms when the cooking stove he was using at the event exploded in his face. Plaintiff asserts causes of action for (1) Negligence and (2) Premises Liability.[2]

On May 23, 2023, Defendants filed this motion for summary judgment. Plaintiff opposes and Defendants reply.

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 [cleaned up].) 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”].)

This matter arises from a cooking accident that occurred on May 21, 2022. On that date, Defendant Joanna Suhl hosted a fundraiser for her son’s school at her home at 721 North Dillon Street, Los Angeles, California (the “Property”). (Undisputed Material Fact (“UMF”) 3.) The Property is the private home and residence of Joanna Suhl. (UMF 2.) Joanna Suhl is not in the business of hosting events, or making, preparing, or serving food. (UMF 4.) Nonparty Raul Hernandez owns or operates a catering business named Lovely Tacos. (UMF 5.) Joanna Suhl contracted with Lovely Tacos for a three hour taco bar for the fundraiser event at the Property. (UMF 8.) The contract included the food, ingredients, set up, food preparation and cooking, serving time, cooks fees, and 3 tables. (UMF 11.) Lovely Tacos was responsible for hiring and transporting its own cooks, assistants, helpers and other workers necessary to set up, cook the food, serve, and pack up. (UMF 13.) Lovely Tacos’ workers are responsible for setting up the cooking and serving stations, cooking the protein on site, and serving guests at the event location. (UMF 15.)

Plaintiff Francielle Carey worked for Lovely Tacos from approximately October 2021 to May 2022. (UMF 16.) On May 21, 2022, Francielle Carey was present at the Property as an agent of Lovely Tacos to cater the fundraising event. (UMF 18; Plaintiff’s Response to UMF 18.) After Francielle Carey arrived on May 21, 2022, he asked Joanna Suhl where to set up. (UMF 19.) Lovely Tacos only brought two tables to the event. (UMF 20.) The two tables Lovely Tacos brought in its van did not provide enough table space to carry out the contracted work. (UMF 21.) Joanna Suhl allowed Francielle Carey to use one of her new tables. (UMF 22.) Lovely Tacos used portable burners fueled by propane to heat up and keep warm chafing dishes containing their hot food. (UMF 26.) Lovely Tacos’ workers set up and placed the chafing dish and portable burner on the table. (UMF 27.) The portable burner, chafing dish and flattop that were on the tables at the time of the injury-causing event were owned and provided by Lovely Tacos. (UMF 28.) Lovely Tacos’ workers hooked up the propane to the cooking equipment and turned on the burner. (UMF 29.) No one other than Lovely Tacos’ workers touched the portable burners prior to the injury-causing incident. (UMF 30.) Francielle Carey was burned when flames from the portable burner “exploded” towards him. (UMF 31.)

There are three issues to be decided: (1) whether the Privette doctrine applies, and if so, (2) whether an exception to the Privette doctrine applies; and (3) whether application of Privette doctrine violates public policy.

“The Privette doctrine holds that a hirer generally delegates to an independent contractor all responsibility for workplace safety and is not liable for injuries sustained by the contractor or its workers while on the job.” (Gonzalez v. Mathis (2018) 12 Cal.5th 29, 40 (Gonzalez).) Here, Defendant Joanna Suhl is the hirer, Lovely Tacos is the independent contractor, and Plaintiff (Carey) is the worker who was injured on the job. Under the Privette doctrine, Suhl is not liable for Plaintiff’s on-the-job injuries because the law presumes Suhl delegated to Lovely Tacos “all tort duties [it] might otherwise owe [to] contract workers” like Plaintiff, and that “[w]hatever reasonable care would otherwise have demanded of [Suhl], that demand lies now only with [Lovely Tacos].” (Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256, 283 (Sandoval).)

Privette and its progeny establish a presumption that “an independent contractor’s hirer delegates to that contractor the responsibility to perform the specified work safely.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594 (SeaBright).) This presumption affects the burden of producing evidence. (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 643.) “The effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.” (Id. at p. 644, citing Evid. Code, § 604.) “[O]n summary judgment, a moving party need only show it is entitled to the benefit of a presumption affecting the burden of producing evidence in order to shift the burden of proof to the opposing party to show there are triable issues of fact.” (Id.) “A presumption affecting the burden of producing evidence does not arise until the foundational facts are established.” (Id.)

Plaintiff argues Privette does not apply because he was not an employee of Lovely Tacos nor was he eligible to receive workers’ compensation. However, Privette is more expansive. Privette encompasses “the independent contractor personally, the independent contractor’s employees, the independent contractor’s subcontractors personally, the subcontractors’ employees, and so on.” (Sandoval, 12 Cal.5th at p. 270, fn. 2.) Privette also extends to solo independent contractors who will not receive workers compensation coverage for their injuries. (Gonzalez, 12 Cal.5th at p. 42.) Here, Plaintiff fails to dispute that he was an agent of Lovely Tacos (see Plaintiff’s Response to UMF 18), and further, Plaintiff concedes he was working for Lovely Tacos at the time of the incident (UMF 18). Plaintiff’s inability to access workers’ compensation does not prevent application of the Privette doctrine.

To counter the presumption, Plaintiff argues that the retained control exception applies.

In Hooker v. Department of Transportation (2002) 27 Cal.4th 198 (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.” (Gonzalez, supra, 12 Cal.5th at 38 [cleaned up]; see CACI No. 1009B [When a plaintiff claims he or she was harmed by an unsafe condition while employed by a contractor and while performing the work for the which the defendant hired the contractor to perform, the plaintiff must prove that (1) the defendant retained some control over the contractor’s manner of performance of the contracted work, (2) that the defendant actually exercised its retained control over that work, (3) that the plaintiff was harmed, and (4) that defendant’s negligent exercise of its retained control affirmatively contributed to plaintiff’s harm.].)

This exception includes “three key concepts: retained control, actual exercise, and affirmative contribution.” (McCullar v. SMC Contracting, Inc. (2022) 83 Cal.App.5th 1005, 1014 (McCullar), citing, Sandoval, supra, 12 Cal.5th at p. 274, 283 (emphasis added.); see also Miller, supra, [It applies if: (1) the hirer retains control over the manner in which the contractor performs the work; (2) the hirer actually exercises its retained control by involving itself in the work such that the contractor is not entirely free to do the work in its own manner; and (3) the hirer's exercise of retained control affirmatively contributes to the worker's injury].) “The Hooker exception to Privette is triggered only when all three of these concepts—retained control, actual exercise, and affirmative contribution—are satisfied.” (McCullar, supra, 83 Cal.App.5th at 1015.)

The parties dispute all three elements. Plaintiff must demonstrate there are triable issues of material fact as to all three elements of the Hooker exception. Conversely, Suhl must demonstrate that at least one of three elements is missing, i.e., that there is an absence of triable issues of material fact on one of the three elements. (See Degala v. John Stewart Co. (2023) 88 Cal.App.5th 158, 168 [“To prevail on summary judgment, [Suhl] must demonstrate the absence of triable issues of material fact as to the applicability of the retained control doctrine”].)

“A hirer ‘retains control’ where it retains a sufficient degree of authority over the manner of performance of the work entrusted to the contractor.” (Ibid.) Our Supreme Court has emphasized that “[a] hirer might be responsible for the presence of a hazard and even convey an expectation that the contractor perform its work without eliminating that hazard altogether, and yet leave the contractor ample freedom to accommodate that hazard effectively in whatever manner the contractor sees fit. [Citation.] In such instance, the hirer does not necessarily retain a sufficient degree of control over the contractor’s manner of performing the contracted work to constitute ‘retained control.’” (Sandoval, supra, 12 Cal.5th at p. 274.)

Plaintiff argues Suhl retained control by hosting the fundraising the event at her home, directing Plaintiff where to set up, and directing Plaintiff on where to receive water to place in the chafing dish to keep the food warm. (Plaintiff’s Additional Facts 22, 24, 25.) The Court disagrees. None of the foregoing facts create a triable issue. The sum of these facts show Suhl merely indicated where Plaintiff could set up and obtain water. They do not show whether or how Suhl was involved in the manner in the contract was performed, i.e., heating and serving food. Suhl did not provide nor exercise any control over the use of the portable burner that was the source and proximate cause of the injury. Plaintiff fails to show there is a triable issue of material fact as to retained control.

“A hirer ‘actually exercise[s]’ its retained control over the contracted work when it involves itself in the contracted work ‘such that the contractor is not entirely free to do the work in the contractor's own manner.’ [Citations.] In other words, the hirer must exert some influence over the manner in which the contracted work is performed.” (Sandoval, supra, 12 Cal.5th at p. 283.) “Unlike ‘retained control,’ which is satisfied where the hirer retains merely the right to become so involved, ‘actual exercise’ requires that the hirer in fact involve itself” (ibid.), “such as by directing the manner or methods in which the contractor performs the work; interfering with the contractor's decisions regarding the appropriate safety measures to adopt; requesting the contractor to use the hirer's own defective equipment in performing the work; contractually prohibiting the contractor from implementing a necessary safety precaution; or reneging on a promise to remedy a known hazard” (Gonzalez, supra, 12 Cal.5th at p. 47; see also Hooker, supra, 27 Cal.4th at p. 209 [“ ‘The mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to the plaintiff.’ ”]).

Plaintiff points to the same facts to show Suhl actually exercised retained control of the work to be performed. There is no evidence to show Suhl actually exercised control over the use of the portable burner. Suhl’s direction as to where Plaintiff could set up and obtain water does not rise to the level of involvement required to demonstrate actual exercise. There is no triable issue of material fact as to the actual exercise element.

In Gonzalez, the California Supreme Court stated, “if the hirer negligently exercises its retained control in a manner that affirmatively contributes to an employee’s injuries, it is only fair to impose liability on the hirer. We also made clear in Hooker that this exception to Privette is not met solely because a hirer is aware that there is an unsafe condition on the worksite or knows that the contractor is engaging in an unsafe work practice. Something more is required, such as inducing injurious action or inaction through actual direction; directing the contracted work be done by use of a certain mode; or interfering with the means and methods by which the work is to be accomplished. Thus, we found that the hirer in Hooker did not exercise its retained control in a manner that affirmatively contributed to the injury where it merely permitted vehicles to use the overpass and knew that, in order to allow vehicles to pass through, the contractor’s crane operator was required to engage in the unsafe practice of retracting the crane’s stabilizing outriggers. But we did find that the hirer in Hooker’s companion case, McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 115 Cal.Rptr.2d 868, 38 P.3d 1094 (McKown), exercised its retained control in a manner that affirmatively contributed to the injury where it requested the independent contractor to use the hirer's own defective equipment in performing the work.” (Gonzalez, supra, 12 Cal.5th at p. 42 [cleaned up].)

Plaintiff argues Suhl affirmatively contributed to Plaintiff’s injuries when she provided the table for the portable burner.

Suhl argues Miller v. Roseville Lodge No. 1293 (2022) 83 Cal.App.5th 825 clearly shows that supplying the table for Plaintiff’s use does not amount to affirmative contribution. The Court agrees.

In Miller, the trial court granted summary judgment finding the retained control exception did not apply. The Court of Appeal affirmed. The Lodge was the hirer who engaged an independent contractor, Gelatini, to relocate an ATM machine. Miller worked for Gelatini. On the day of the accident, Miller went into the Lodge and spoke to Dickinson, who was the only person present in the Lodge. Miller arrived without a ladder. Dickinson was a bartender and in charge of the area where the scaffolding was located. Miller climbed up scaffolding to reach the ceiling to run cables for the ATM. He fell from the scaffolding. The appellate court stated, “At best, the evidence in this case would support a finding that Dickinson [the hirer-Lodge] knew the scaffold was unsafe unless the wheels were locked and had the ability to either advise Miller of that fact or make sure the wheels were locked, but that he failed to do so. This is insufficient to hold the Lodge liable for Miller’s injuries. Instead, “[s]omething more is required, such as ‘“inducing injurious action or inaction through actual direction”’ [citation]; directing ‘“the contracted work be done by use of a certain mode”’ [citation]; or interfering with ‘ “the means and methods by which the work is to be accomplished”’ [citation]. Here, that “[s]omething more” is lacking because Dickinson did not direct Miller to use the scaffold, he did not direct that the work be done by use of a certain mode, and he did not interfere with the means and methods by which the work was done.” (Id. at pp. 837-838.)

Like in Miller, Suhl did not require the use of the table to perform the work. Rather, Suhl supplied the table pursuant to Plaintiff’s request and despite the contract providing that Lovely Tacos would supply 3 tables to cater the event. More importantly, there is no dispute the portable burner, and not the table Suhl provided, caused Plaintiff’s injuries.[3] Plaintiff fails to show Suhl affirmatively contributed to Plaintiff’s injuries by simply supplying a table that has not been shown to be defective. Nor was the table the source of the Plaintiff’s injuries. There is no triable issue of material fact on the element of affirmative contribution.

In sum, Suhl demonstrates the Hooker retained control exception to the Privette doctrine does not apply. Indeed, as to all three elements of the Hooker test, there are no material issues of triable fact.

Plaintiff argues ruling in favor of summary judgment would strip Plaintiff of an equitable remedy because Plaintiff cannot recover workers’ compensation through Lovely Tacos. This argument fails. Even if Plaintiff cannot recover workers’ compensation benefits from Lovely Tacos, Plaintiff does not explain why he cannot seek damages in tort from Lovely Tacos. Plaintiff is not without a remedy.

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] A trust is not subject to suit. (Stoltenberg v. Newman (2009) 179 Cal.App.4th 287, 293.)

[2] Plaintiff argues Defendant Joanna Suhl is liable for negligent hiring, supervision, and retention of Lovely Tacos and under the peculiar risk doctrine. However, these theories have not been pled. “The pleadings delimit the scope of the issues on a summary judgment motion. [Citation.] A party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings. [Citation.] Evidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 637, fn. 3.) Accordingly, the Court disregards any argument or evidence offered in support of the negligent hiring, supervision, and retention, and peculiar risk claims.

[3] The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.¿ (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671; Civil Code, § 1714, subd. (a).)¿ Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm.¿ (See CACI No. 1000; Rowland v. Christian (1968) 69 Cal.2d 108.). Separate and apart from application of the Privette doctrine, Defendant’s motion for summary judgment prevails because Defendant did not proximately cause Plaintiff’s injuries. “An essential element ... is that there be some reasonable connection between the act or omission of the defendant and the damage which the plaintiff has suffered. This element is known as proximate cause.” (Frantz v. San Luis Medical Clinic (1978) 81 Cal.App.3d 34, 39.) The portable burner belonged to Lovely Tacos and was operated by Lovely Tacos, not Suhl. However, because the Privette doctrine applies, the Court need not reach the discussion of proximate cause.