Judge: Lee S. Arian, Case: 22STCV20783, Date: 2024-11-13 Tentative Ruling
Case Number: 22STCV20783 Hearing Date: November 13, 2024 Dept: 27
Hon. Lee S. Arian, Dept 27
MOTION FOR SUMMARY JUDGMENT
Hearing Date: 11/13/24
CASE NO./NAME: 22STCV20783 BALDOMERO
MURILLO ESQUIVEL vs KB HOME, et al.
Moving Party: Defendant KB HOME
Responding Party: Plaintiff
Notice: Sufficient
Ruling: MOTION FOR SUMMARY JUDGMENT IS GRANTED
Background
On May 25, 2022,
Plaintiff was working as an employee of Wilcox & Wilcox (“Wilcox”) on a
residential construction project near the intersection of Evening Sky Place and
Longview Place in Valencia, California. Wilcox had been subcontracted by Defendant
KB Home, the general contractor, to perform utility installations, including
plumbing and electrical work. Defendant CCN Framing Inc. (“CCN”), another
subcontractor on the project, was responsible for framing and roofing tasks.
Plaintiff was allegedly struck by wood thrown from the roof by a CCN employee
(the “Incident”). Following the Incident, Plaintiff filed a workers’
compensation claim with Wilcox’s carrier. KB Home now moves for summary
judgment, invoking the Privette doctrine and also arguing that the alleged
danger was open and obvious.
Legal Standard
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
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.) 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”].)
Evidentiary Ruling
The Court
overrules Defendant’s evidentiary objections.
Undisputed Facts
·
On or about May 25, 2022, Plaintiff was
working in the course and scope of his employment with Wilcox.
·
Plaintiff was employed to do plumbing
work on a residential construction project working at or near the intersection
of Evening Sky Place and Longview Place, Valencia, California 91381 (the
“Premises”).
·
KB Home hired CCN as the framing and
roofing subcontractor who was working on the Premises.
·
KB Home hired Wilcox to serve as a
subcontractor who had its own employees working on the Premises.
·
KB Home was acting as the general
contractor on the Premises.
·
On May 25, 2022, Plaintiff was working
in a 2-4-foot-deep trench at the subject site. He had been performing that work
for approximately 30 minutes before the Incident.
·
Immediately prior to the Incident,
Plaintiff was working in an area near and below CCN employees who were
performing work at the roof area of the Premises.
·
CCN employees were already performing
work at the roof when Plaintiff atarted to work in the trench below the CCN
employees.
·
KB Home entered into a Master
Subcontract Agreement (“MSA”) with CCN.
·
KB Home entered into a MSA with Wilcox.
·
As a result of the Incident, Plaintiff
filed a workers’ compensation claim with Wilcox’s workers’ compensation
carrier.
Privette Doctrine
“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). 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, 59). 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.)
To
establish the factual foundation necessary for the Privette presumption
to apply, defendants must present evidence showing that (1) an independent
contractor was hired to perform work on the premises, and (2) the injury
occurred while the plaintiff was engaged in work on that site. When defendants
provide sufficient evidence on these elements, the burden shifts to plaintiff
to raise a triable issue of fact. (Id. at 644.)
Defendant’s Initial Burden
On or about May 25,
2022, Plaintiff was working in the course and scope of his employment with
Wilcox. KB Home hired co-defendant CCN
as the framing and roofing subcontractor who was working on the Premises. KB
Home hired Plaintiff’s employer Wilcox to serve as a subcontractor who had its
own employees working on the Premises. KB Home was acting as the general
contractor on the Premises. On May 25, 2022, immediately prior to the Incident,
Plaintiff was working in an area near and below CCN employees who were
performing work at the roof area. Plaintiff was struck in the head and neck
with a sheet of plywood that fell from the second story, allegedly from CCN
employees throwing wood for the roof. All
of these facts are substantiated by evidence provided by Defendant and
undisputed by Plaintiff. Defendant has established foundational facts to meet
its initial burden that the Privette doctrine applies.
Peculiar Risk
Plaintiff incorrectly
asserts that for Privette to apply, there must be a "peculiar
risk" specific to the type of work the injured party was hired to perform.
While Privette originally stemmed from the peculiar risk doctrine, its
core holding is that a hirer, like KB Home, is generally not liable for
workplace injuries sustained by an independent contractor’s employee because
workers’ compensation provides an exclusive remedy for the injured worker. This
limitation applies broadly to injuries related to the work, not solely to risks
uniquely tied to that specific job. Furthermore, Privette doctrine cases
do not require that the injury be caused by a "peculiar risk" for the
rule to apply. Instead, the doctrine focuses on whether the injured party was
engaged in work they were hired to perform. Plaintiff cited no authority post-Privette
that requires Defendant to show that, for the Privette presumption to
apply, there must be a showing of a peculiar risk. As shown in Alvarez,
supra, 13 Cal.App.5th at 643, all Defendant needs to shift its initial
burden is to show that Plaintiff was injured while engaged in work on site.
Thus, the fact that
Plaintiff was injured in a trench prepared for plumbing is sufficient for Privette
immunity, as his presence in the trench was directly related to his role on the
job site. Under Privette, it is enough that the injury occurred within
the work environment and arose from general site conditions, even if the cause
of injury—falling debris—was not specific to plumbing work. Because Plaintiff
was performing duties integral to the contracted work and was exposed to risks
common to construction sites, his injury falls within the scope of work-related
hazards covered by workers' compensation, satisfying the requirements for Privette.
Retained Control
For the retained
control exception to apply, "there must be something more—i.e., some
indication the hirer directed that the contractor perform its work in a certain
way or interfered with the means and methods by which the work was to be
accomplished." (Bowen v. Burns & McDonnell Eng'g Co. (2024) 323
Cal. Rptr. 3d 147, 153.) “[P]assively permitting an unsafe condition to occur
rather than directing it to occur does not constitute affirmative
contribution.” (Id.)
Brannan v. Lathrop
Construction Associates, Inc. (2012) 206 Cal.App.4th
1170 establishes that general control over scheduling or site coordination is
insufficient for liability under the retained control exception. Liability
arises only when the hirer’s conduct goes beyond passive scheduling and safety
oversight, actively directing or controlling the specific methods of work in a
way that contributes to the injury. (Brannan, supra, 206 Cal.App.4th at
pp. 1178–1179.) The type of direct control that gives rise to liability is
exemplified in McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219,
where the California Supreme Court imposed liability on a hirer who
specifically directed the contractor to use a defective forklift provided by
the hirer (Id. at p. 225).
Here, Plaintiff has
shown that KB Home controlled the scheduling of subcontractors (PSUFs 3, 4, 7)
and maintained general oversight over job site safety (PSUFs 5, 6, 10, 11, 12).
However, as Brannan and Bowen illustrate, general supervisory and
coordination roles do not satisfy the retained control exception. In Brannan,
the court held that even though the hirer scheduled and coordinated various
trades and maintained general safety oversight, this did not constitute
affirmative control over the specific work practices that led to the injury. (Id.
at 1179–1180.) Similarly, KB Home’s general site management duties and
coordination of subcontractors’ schedules do not establish affirmative
contribution.
The Brannan
court noted that liability may arise if the hirer specifically promised to
implement a safety measure and then negligently failed to fulfill that promise,
potentially satisfying the retained control exception. (Id. at p. 1180.)
However, Plaintiff has not provided evidence that KB Home promised to address
the issue of falling debris and then failed to do so.
Plaintiff’s strongest
argument may be that Defendant’s scheduling includes designating who is to work
together, such as ensuring plumbers and electricians do not work in the same
area. However, this still falls under general scheduling and coordination, granting
the subcontractor freedom to perform the work in its manner once the time,
place, and personnel are set. CBRE v. The Superior
Court of San Diego Cnty. (2024) 321 Cal. Rptr. 3d 697,
707.) Thus, Plaintiff has failed to raise a triable issue of fact regarding the
retained control exception.
Breach of Duty Under the Statutory and
Regulatory Framework Via Elsner v. Uveges
Plaintiff argues that
retained control is only one way in which Defendant can be liable and cites Elsner
v. Uveges (2004) 34 Cal.4th 915 for the holding that liability can also
arise from a breach of regulatory duty. Plaintiff further references specific
sections of the California Labor Code (§§ 6400, 6401, and 6403) as potential
statutory violations. However, this argument has been addressed in Millard
v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, where the court emphasized
that under Privette the hirer of an independent contractor is generally
shielded from liability for injuries to the contractor’s employees unless the
hirer’s conduct affirmatively contributed to the injury. Millard argued that Elsner
v. Uveges (2004) 34 Cal.4th 915 permits the use of Cal/OSHA regulations to
establish a duty of care under the doctrine of negligence per se. However, the Millard
court held that Privette immunity remains intact unless affirmative conduct by
the hirer is shown. (Millard, supra, 156 Cal.App.4th at pp. 1347–1349.)
Additionally, the court
analyzed California Labor Code Sections 6400, 6401, and 6403, which require
employers to furnish a safe workplace. However, it found that these statutes do
not, on their own, overcome Privette immunity. The duty to provide a
safe workplace does not impose liability on the hirer of an independent
contractor unless there is evidence of affirmative contribution/retained
control by the hirer to the plaintiff’s injuries. (Millard, supra,
at 1351–52.)
Thus, violations of
general safety statutes, like the Cal/OSHA regulations or Labor Code
provisions, do not by themselves create a duty sufficient to overcome Privette
immunity. Instead, liability for a general contractor remains limited to
situations where the contractor has shown affirmative contribution/retained
control.
Workers’ Compensation Exclusivity
Plaintiff is correct
that California's workers' compensation exclusivity rule does not prevent an
employee from suing third parties for workplace injuries, as allowed by Labor
Code § 3852. However, the Privette doctrine generally shields hirers
from liability for injuries to the employees of independent contractors. While
a third-party lawsuit is permitted, Privette limits liability unless the
plaintiff can establish an exception, such as retained control. Plaintiff has
not provided any legal authority demonstrating that Labor Code § 3852 overrides
the immunity granted under the Privette doctrine. The cases cited by
Plaintiff, such as Salice v. Performance Cleaning Systems (1996) 50
Cal.App.4th 221, 225 and Quinn v. State of California (1975) 15 Cal.3d
162, 164, show that Labor Code § 3852 preserves an employee's right to bring
third-party claims despite workers' compensation exclusivity. However, these
cases do not indicate that § 3852 overrides the immunity provided by the Privette
doctrine.
Conclusion
Based on the foregoing,
Defendant’s Motion for Summary Judgment is GRANTED.
PLEASE TAKE NOTICE:
If a party intends to submit on
this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT”
followed by the case number.¿The body of the email must include the hearing date and
time, counsel’s contact information, and the identity of the party submitting.
Unless¿all¿parties submit by email to this
tentative ruling, the parties should arrange to appear remotely (encouraged) or
in person for oral argument.¿You should assume that others may appear at the hearing
to argue.
If the parties neither submit nor
appear at hearing, the Court may take the motion off calendar or adopt the
tentative ruling as the order of the Court.¿ After the Court has issued a
tentative ruling, the Court may prohibit the withdrawal of the subject motion.