Judge: Laura A. Seigle, Case: 23STCV11647, Date: 2023-11-16 Tentative Ruling

Case Number: 23STCV11647    Hearing Date: November 16, 2023    Dept: 15

[TENTATIVE] ORDER RE DEMURRER AND MOTION TO STRIKE

Plaintiff Gerardo Martinez’s Second Amended Complaint alleges causes of action of negligence and fraud against Defendant Charter Communications, Inc.  Defendant demurrers on the grounds that Plaintiff Gerardo Martinez’s causes of action against it are barred by Privette v. Superior Court and the fraud cause of action is deficient.

A.        Privette

Generally, the hirer of an independent contractor is not liable for torts to its independent contractor’s employees during the performance of inherently dangerous work.  (Privette v. Superior Court (1993) 5 Cal.4th 689, 702 (Privette).)  “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 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.)  The duty to ensure a safe workplace may be delegated, based largely on the policy rationale that because workers’ compensation limits the liability of an independent contractor to its own employees, “it would be unfair to permit the injured employee to obtain full tort damages from the hirer of the independent contractor—damages that would be unavailable to employees who did not happen to work for a hired contractor.  This inequity would be even greater when . . . the independent contractor had sole control over the means of performing the work.”  (Id. at p. 603.)

The Second Amended Complaint alleges Plaintiff “worked as an independent contractor for [Defendant] installing cable televisions in homes,” Defendant should have known that the homes would contain asbestos, and Defendant should have informed Plaintiff about the hazards of asbestos and how to avoid those hazards.  (SAC at p. 9.)  Thus, on its face, the SAC alleges that Defendant was the hirer of Plaintiff as an independent contractor, meaning the Privette doctrine applies.

In opposition, Plaintiff argues that only property owners, not contractors like Defendant, are shielded by the Privette doctrine.  (Opposition at p. 3.)  Plaintiff agues the homeowners were the hirers, they hired Defendant to install cable television in their homes, and then Defendant hired Plaintiff to install the cables.  (Id. at p. 9.)  Plaintiff contends that as a subcontractor of Defendant, he can sue Defendant as the contractor hiring him.  (Ibid.) 

            Plaintiff is not correct.  The Privette doctrine applies to a contractor hiring a subcontractor.  In Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, the California Supreme Court concluded that general contractors have the “right available to any other hiring person:  the right to delegate to independent contractors the responsibility of ensuring the safety of their own workers.”  (Id. at p. 269.)  “ ‘[A] general contractor owes no duty of care to an employee of a subcontractor to prevent or correct unsafe procedures or practices to which the contractor did not contribute by direction, induced reliance, or other affirmative conduct.  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.’ ”  (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 209.)  Thus, when a contractor hires a subcontractor, the contractor is the “hirer” for the purpose of the Privette doctrine.

            Plaintiff does not identify any exception that takes his negligence cause of action against Defendant outside of the protection of the Privette doctrine.  Therefore, the demurrer is sustained as to the negligence cause of action.

            B.        Fraudulent Concealment

            The Second Amended Complaint also alleges Defendant committed fraudulent concealment.  (SAC at p. 14.)  “ ‘[T]he elements of a cause of action for fraud based on concealment are “ ‘(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.’ ”  [Citation.]’ ”  (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-311.)  When a fiduciary duty does not exist, a duty to disclose arises only “when the defendant had exclusive knowledge of material facts not known to the plaintiff,” or “when the defendant actively conceals a material fact from the plaintiff,” or “when the defendant makes partial representations but also suppresses some material facts.”  (Id. at p. 311.) 

            The SAC does not allege a fiduciary relationship between Defendant and Plaintiff.  While it alleges that Defendant knew the homes and buildings where Plaintiff installed cable had asbestos in them, it does not allege that knowledge was exclusive to Defendant.  (SAC at p. 14.)  Indeed, the SAC does not allege that Plaintiff did not know that the homes and buildings where he worked could contain asbestos.  It does not allege that Defendant actively concealed a fact from Plaintiff or that Defendant made partial representations to Defendant.  (Ibid.)  It does not allege that Defendant intentionally concealed the fact that the homes contained asbestos with the intent to defraud Plaintiff.  Because this cause of action does not allege with specificity all of the elements of a fraudulent concealment cause of action, the demurrer is sustained.

            C.        Fraudulent and Intentional Misrepresentations

            The SAC alleges Defendant made fraudulent and intentional misrepresentations to Plaintiff.  (SAC at pp. 15-16, 17-18.)  “A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.”  (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.) 

            The SAC does not allege with specificity any knowingly false representation by Defendant to Plaintiff.  It alleges only that Defendant told Plaintiff how to install wiring but did not tell him that the work would disturb asbestos or how to avoid asbestos hazards.  (SAC at pp. 16, 18.)  Nor does the SAC allege that Defendant intended to deceive Plaintiff when it made a specific false statement or that Plaintiff justifiably relied on any specific false representation made by Defendant.  Because this cause of action does not allege with specificity all of the elements of fraud, the demurrer is sustained.

            Plaintiff has now had three opportunities to plead adequately its causes of action against Defendant.  Because it has failed to state causes of action against Defendant, the demurrer is SUSTAINED without leave to amend.  The motion to strike is MOOT.

            The moving party is to give notice.