Judge Lee S. Arian, Case Number: 21STCV33596, Date: 2025-04-24 Tentative Ruling

This case arises from a jobsite accident that occurred on February 23, 2021. Defendant Sinanian Development, Inc. (“Sinanian”) was the general contractor performing construction work as part of the West Hollywood Park Modernization Plan (“WEHO project”) at the time of the alleged incident. Plaintiff Juan Orozco Moreno (“Plaintiff”) was employed by Corona Aluminum Company (“Corona”), a subcontractor retained by Sinanian. Plaintiff alleges that a paint nozzle, under the control of Jilberto Vasquez, fell from the fifth floor and struck Plaintiff on the head. Vasquez was an employee of co-defendant Pecoraro, Inc. (“Pecoraro”), another subcontractor hired by Sinanian. Defendant Sinanian now moves for summary judgment under the Privette doctrine.

In reviewing a motion for summary judgment or adjudication, 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).)¿If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)¿Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)

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 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).) “All tort duties [it] might otherwise owe [to] contract workers” like Plaintiff, and that “[w]hatever reasonable care would otherwise have demanded of the hirer, that demand lies now only with contractor.” (Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256, 283 (Sandoval).)

Two exceptions are recognized to the Privette doctrine. They are the retained control exception and the concealed hazard exceptions. The court in Miller v. Roseville Lodge No. 1293 (2022) 83 Cal.App.5th 825, 833-834 described them as follows:

The first exception was recognized in Hooker, supra, 115 Cal.Rptr.2d 853, 38 P.3d 1081 and is usually referred to as the retained control exception. 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. (Sandoval, at pp. 276-277, 283 Cal.Rptr.3d 519, 494 P.3d 487.) Under this exception, the hirer’s delegation of tort duties to the independent contractor can be seen as “incomplete” or “only partial[ ]” because it retains control over some aspect of the work and actually exercises that retained control. (Id. at p. 271, 283.)

The second exception was recognized in Kinsman, supra, 37 Cal.4th 659, 36 Cal.Rptr.3d 495, 123 P.3d 931 and is usually referred to as the concealed hazard exception. It applies if the hirer is also an owner or possessor of land, and if “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.” (Id. at p. 664.) Under this exception, the hirer’s delegation of tort duties can be seen as “ineffective” because the independent contractor cannot protect its workers against a hazard it does not know about and could not reasonably discover. (Sandoval, supra, 12 Cal.5th at 271).

Defendant has presented sufficient evidence to meet its initial burden under the Privette doctrine. Defendant was the general contractor hired to perform general contracting services on the West Hollywood Park Phase II project (“WEHO project”). (UMF No. 1.) As part of its role, Sinanian subcontracted with various trades to perform specific scopes of work. (UMF No. 2.) Pecoraro, Inc. (“Pecoraro”) was one such subcontractor retained by Sinanian. (UMF No. 3.) On the date of the incident, Jilberto Vasquez (“Vasquez”), a foreman and painter employed by Pecoraro, was working on the WEHO project. (UMF No. 4.) Under the subcontract agreement, Pecoraro expressly accepted responsibility for the training, supervision, and safety of its own employees. (UMF No. 3.)

Corona Aluminum Company (“Corona”) was also hired by Sinanian as a subcontractor for the project. (UMF No. 5.) Plaintiff was employed by Corona as a glazier working at the same site. (UMF No. 6.) On February 23, 2021, Vasquez was painting on the fifth floor when a portion of his spray gun suddenly detached and fell over the balcony, striking Plaintiff on the head. (UMF Nos. 7–8, 15.)

Defendant has also shown that no exception to the Privette doctrine applies as to it. Jaramillo observed that the washer nut on the spray extension Vasquez was using was stripped and damaged. (UMF No. 22.) Based on his investigation, Jaramillo concluded that the cause of the accident was Vasquez’s failure to inspect the nozzle before beginning work. (UMF No. 23.) Sinanian did not supply the spray gun or any component thereof and was not expected to do so. (UMF Nos. 25–26.) Nor did Sinanian provide Vasquez with training or direction on the use of the equipment. (UMF Nos. 24, 29.) Both Vasquez and Plaintiff agree that the incident resulted from Vasquez’s mishandling of the tool. (UMF Nos. 27–28.)

Accordingly, Defendant has satisfied the requirements under the Privette doctrine and shifted the burden.

Plaintiff filed an opposition. However, the opposition does not address the merits of the Privette doctrine or present evidence creating a triable issue of fact. Instead, Plaintiff contends that the motion should be denied based on Defendant’s alleged spoliation of evidence, specifically the subject nozzle or tool that fell on Plaintiff’s head. Plaintiff cites Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, which discusses the legal effect of spoliation of evidence in the context of a motion for summary judgment.

In Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, Plaintiff David Reeves, a 56-year-old attorney with extensive labor law experience, applied for a staff attorney position with MV Transportation. Although qualified, Plaintiff was not interviewed, and the position was awarded to a 40-year-old attorney. Plaintiff alleged age discrimination under the Fair Employment and Housing Act. During discovery, Plaintiff requested the resumes and applications of other candidates, but Defendant was unable to produce them. Defendant admitted that it had discarded the applications following the hire and had no document retention policy in place at the time. The court found there was spoilation of evidence because “Defendant had an obligation to preserve the applications for the staff attorney position for a minimum of two years. (Gov. Code, § 12946.) Evidence was presented that the records were ‘destroyed knowingly, even if without intent to violate the [statute].’” (Reeves, 186 Cal.App.4th at 694.)

Nonetheless, the Reeves court found that spoliation of evidence creates a triable issue of fact only when the case is otherwise close.

Spoliation of evidence alone does not necessarily create a triable issue. In addition to spoliation, there must be 'some (not insubstantial) evidence' for the plaintiff's cause of action [to] allow the plaintiff to survive summary judgment. In Byrnie, which the court considered a 'close case' even though the plaintiff had 'clearly superior paper credentials,' and the defendant 'had to retreat from its initial explanation for failing to hire [him],' defense spoliation of evidence 'pushed a claim that might not otherwise have survived summary judgment over the line.'

In Chappell–Johnson, however, no substantial evidence of pretext was presented and spoliation of evidence alone did not enable the plaintiff to avoid summary judgment. Where other substantial evidence of a discriminatory motive is lacking, 'no reasonable jury could award damages against [the] employer based solely on speculation as to what might be contained in documents not in evidence.'

If we set aside the spoliation of evidence issue, defense entitlement to summary judgment is not a close question in this case, unlike the situation in Byrnie. As we have explained, plaintiff did not have clearly superior paper credentials and defendant did not offer inconsistent justifications for the hiring decision. Here, as in Chappell–Johnson, spoliation alone does not create a triable issue.

This is precisely the issue here. Even assuming there was spoliation of evidence, which Plaintiff devotes the entirety of the opposition to argue, Plaintiff has not presented any evidence to raise a triable issue of fact. Plaintiff offers no evidence to dispute that Defendant was the general contractor on the project, and therefore the Privette doctrine presumptively applies. Plaintiff has also failed to present any evidence establishing that either of the two recognized exceptions to Privette apply.

As to Defendant’s status as a general contractor, Plaintiff only disputes this to the extent that Defendant Sinanian had a duty to preserve and not destroy relevant evidence related to a worksite incident, but not to its status as the general contractor. Nor does Plaintiff dispute that Vasquez or Plaintiff were employees of Defendant’s subcontractors.

As to the retained control exception, Plaintiff does not dispute that Vasquez’s employer, Pecoraro, was responsible for its employees’ safety and directed Vasquez’s work, or that the subject nozzle was not provided by Defendant.

As to the Hooker exception, Plaintiff presents no evidence of a latent hazard. In fact, Plaintiff affirmatively contends in the separate statement that the spray gun detached due to Vasquez and Pecoraro negligently failing to secure and maintain their own tools. (Plaintiff’s Separate Statement in response to UMF No. 8.)

Accordingly, this is not a close case where spoliation might “push a claim that might not otherwise survive summary judgment over the line” as discussed in Reeves. Plaintiff fails to present any substantive evidence on the merits and does not dispute many of the material facts establishing Defendant’s entitlement to summary judgment under Privette.

Furthermore, even if a favorable inference is drawn regarding the missing nozzle, Plaintiff does not explain how any facts established by that inference could create a triable issue as to the Privette doctrine. In Reeves, the destruction of resumes and applications could reasonably support an inference damaging to the defendant in an age discrimination claim. For example, if the missing documents showed that other older, highly qualified candidates were overlooked. However, if the plaintiff in Reeves were also claiming that a paint nozzle struck him during the interview, the contents of a resume would be irrelevant to a negligence claim. Similarly here, Plaintiff has not identified any favorable inference from the missing nozzle that would create a triable issue as to Defendant’s status as the general contractor, or as to the retained control or concealed hazard exceptions to Privette. Plaintiff does not dispute that Pecoraro’s employee, Vasquez, negligently caused the paint gun extension to fall on Plaintiff’s head by failing to inspect the stripped and damaged spray nozzle before beginning work. (UMF Nos. 23, 28.) It is also undisputed that Defendant did not provide the tool in question and was not responsible for the safety or training of Vasquez. (UMF Nos. 3, 24, 29.)

Accordingly, even if a favorable inference is drawn from spoliation of the subject nozzle, Plaintiff fails to show how it creates any triable issue of fact under the Privette doctrine. Summary judgment is therefore 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’s 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.

Hon. Lee S. Arian

Judge of the Superior Court