Judge Lee S. Arian, Case Number: 22STCV27792, Date: 2025-01-23 Tentative Ruling

On August 25, 2022, Plaintiff Javier Moreno filed the present case, alleging that on September 8, 2020, at a construction project located at 321 N. Cliffwood Ave, Los Angeles, CA 90049, Plaintiff fell through a hole in the roof while performing solar panel installation work for an unfinished residential home. Plaintiff was an employee of All Valley Solar, Inc. (“AVS”), an independent contractor hired by Sharon H. Utermohlen, Trustee of THIS MUST BE THE PLACE TRUST DATED MARCH 25, 2017, and Richard Holz, Inc. Defendant Sharon H. Utermohlen is the owner of the property and Defendant Richard Holz, Inc. was the general contractor for the project. Defendants Sharon H. Utermohlen and Richard Holz, Inc. now move the court for summary judgment based on 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 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”].)

· On September 8, 2020, Plaintiff was working on the roof at a construction site relating to an unfinished residential home located at 321 N. Cliffwood Ave., Los Angeles, CA 90049 (the “Project”).

· Plaintiff fell through a hole in the roof while working at the Project on September 8, 2020, and Plaintiff sustained injuries.

· Plaintiff asserts a single cause of action for negligence against Defendants.

· Plaintiff was an employee of AVS while working at the Project on September 8, 2020.

· Christopher McGreevy was a crew leader at AVS and was Plaintiff’s supervisor while Plaintiff worked at the Project.

· When Plaintiff stepped forward into the hole in the roof, he was holding a rectangular piece of plywood that he estimates to be 5 feet by 2.5 feet in size.

· The plywood that Plaintiff was holding obstructed his view of his feet and the hole when he stepped forward into the hole, meaning Plaintiff did not see the hole prior to stepping into it.

· AVS was the solar panel installation subcontractor at the Project on September 8, 2020.

· AVS was the expert business on the jobsite as to solar panel installation on September 8, 2020.

· Plaintiff was not wearing any personal protective equipment such as a hard hat or a harness at the time of his fall

· Plaintiff has an ongoing workers’ compensation claim relating to the injuries he suffered on September 8, 2020.

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, Utermohlen is the landowner, Holst is the general contractor, AVS is the independent contractor, and Plaintiff (Jimenez) is the worker who was injured on the job. Under the Privette doctrine, Holst and Utermohlen are not liable for Plaintiff’s on-the-job injuries because the law presumes AVS delegated to AVS “all tort duties [it] might otherwise owe [to] contract workers” like Plaintiff, and that “[w]hatever reasonable care would otherwise have demanded of [AVS], that demand lies now only with [AVS].” (Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256, 283 (Sandoval).)

It is undisputed that Plaintiff is an employee of AVS and is receiving workers’ compensation from AVS. (UMF 4 and 17.) The Privette presumption applies, barring any exception.

Two exceptions are recognized to the Privette doctrine. The court in Miller v. Roseville Lodge No. 1293 (2022) 83 Cal.App.5th 825, 833-834 (Miller) 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 Cal.Rptr.3d 519, 494 P.3d 487.)

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, 36 Cal.Rptr.3d 495, 123 P.3d 931, fn. omitted.) 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).

This first 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.); “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.)

“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.’ ”]).

The only relevant evidence submitted to support the retained control exception consists of excerpts from the contract between the owner and the general contractor. (Plaintiff’s Exhibit D.) However, no evidence has been provided to demonstrate that Defendants exerted control over AVS’s work to the extent that AVS was not entirely free to perform the work in its own manner. Contract provisions requiring a contractor to comply with general safety standards do not, in and of themselves, establish the requisite level of control to trigger liability under the retained control exception. Instead, the hirer must exert some influence over the manner in which the contracted work is performed. (Sandoval, supra, 12 Cal.5th at p. 283.) There is no evidence demonstrating Defendants' actual exercise of control, which requires that the hirer actively involve itself in the means and methods of the contracted work. To the contrary, the evidence presented suggests a lack of communication, oversight, and active involvement by Defendants in supervising AVS’s and Plaintiff’s work. Plaintiff even testified that neither the landowner nor the general contractor supervised him on the date of the incident. (Plaintiff Javier Moreno Deposition, 51:1-22.) Accordingly, the retained control exception does not apply.

“[A] landowner that hires an independent contractor may be liable to the independent contractor’s employee 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.” (Kinsman, supra, 37 Cal. 4th 659, 664; Gonzalez v. Mathis (2021) 12 Cal.5th 29, 37; Sandoval, supra, 12 Cal.5th 256, 271.) When a dangerous condition on the property is concealed, “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, and therefore the landowner would be liable to the contractor's employee if the employee's injury is attributable to an undisclosed hazard.” (Kinsman supra, 37 Cal. 4th 659, 674; Sandoval supra, 12 Cal. 5th 256, 271.)

The evidence presented fails to establish that Plaintiff did not know and could not have reasonably discovered the hazardous condition on the roof. Plaintiff's declaration states that he spent approximately two to three minutes picking up debris, including a bundle of wood and miscellaneous plywood, before falling through the roof access hole. (Plaintiff’s Decl., ¶ 10.) However, nothing in Plaintiff’s declaration indicates that he conducted any inspection of the area before proceeding with his work.

Plaintiff's own testimony indicates that he was actively handling debris and plywood in the area before his fall, suggesting that he had an opportunity to inspect the workspace. Plaintiff testified that he began moving a pile of debris and, as he picked something up, he fell through the roof and landed in the second story. (Plaintiff’s Depo., 33:13-15.) The area contained leftover materials from the roofers, including various pieces of wood such as one-by-ones, two-by-ones, and two-by-fours, along with cut-up plywood. (Id. at 33:18-21.) Plaintiff further admitted that he removed wood and pieces of plywood before stepping into the hole. (Id. at 36:1-3.)

Significantly, Plaintiff was holding a large piece of plywood, approximately 5 feet by 2.5 feet, which obstructed his vision before he stepped forward and fell. (Id. at 36:9-23.) Plaintiff acknowledged that when he picked up the plywood, he did not see the hole underneath it. (Id. at 37:6-9.) When asked why he did not see the hole, Plaintiff stated it was because he was picking up the pieces of debris. (Id. at 37:12-14.)

A reasonable and limited inspection, such as lifting and examining debris before proceeding or ensuring a clear line of sight by not holding the plywood in front of himself, would have revealed the hazard. Plaintiff's failure to take such basic precautions, which require no specialized training and are grounded in common sense, undermines his claim that the contractor could not have reasonably discovered the condition. Plaintiff acknowledges that Kinsman recognizes the delegation of responsibility for workplace safety to an independent contractor may include a limited duty to inspect the premises; however, the evidence does not show that any inspection was conducted. Accordingly, the latent defect exception does not apply.

The Privette doctrine applies, and neither the retained control nor concealed hazard exceptions apply. Accordingly, 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’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