Judge Lee S. Arian, Case Number: 22STCV37833, Date: 2025-02-14 Tentative Ruling

Defendants Skanska Traylor Shea, a Joint Venture (“STS”); Skanska USA Civil West California District, Inc. (“Skanska”); Traylor Bros, Inc. (“Traylor”); and J.F. Shea Construction, Inc. (“Shea”) move for summary judgment. However, on February 3, 2024, Plaintiff dismissed the moving defendants. Thus, the motion is moot.

On November 4, 2014, defendant Los Angeles County Metropolitan Transportation Authority (“Metro”) hired Skanska Traylor Shea, a Joint Venture (“STS” or “Contractor”), to design and construct an extension of the Purple Line subway from its terminus at Wilshire/Western Station to a new Wilshire/La Cienega station (the “Purple Line Extension Project”).

On March 23, 2022, STS employee Alejandro Zuniga (“Decedent”) was working at the Purple Line Extension Project worksite when he sustained fatal injuries after being struck by the flat car of a locomotive operated by another STS employee.

Metro now moves for summary judgment or summary adjudication, arguing that the Privette doctrine bars liability. Metro seeks adjudication of the following causes of action:

· On or about November 4, 2014, Metro entered into Contract No. C1045 Westside Subway Extension Project, Section 1- Design/Build (the “Contract”) with STS for STS to design and construct a heavy rail transit subway extension of the existing Purple Line from its current terminus at Wilshire/Western Station to a new Wilshire/La Cienega station (the “Purple Line Extension Project”).

· STS is the General Contractor for the Purple Line Extension Project, which remains ongoing to date.

· STS is a joint venture of which Skanska, Traylor and Shea” are its members.

· Prior to the Incident, STS hired Decedent as one of its employees to work on the Purple Line Extension Project

· On the day and at the time of the Incident, Decedent was employed by STS as a miner and was not an employee of Metro.

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”].)

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.)

Two exceptions are recognized to the Privette doctrine. The court in Miller v. Roseville Lodge No. 1293 (2022) 83 Cal. App. 5th 825, 833-34 described them as follows:

The first exception was recognized in Hooker, supra, 115 Cal. Rptr. 2d 853 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 276-77.) 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).

Defendant has met its initial burden. Defendant demonstrated that on or about November 4, 2014, Metro entered into a contract with STS for the Purple Line Extension Project to design and construct a heavy rail transit subway extension of the existing Purple Line from its terminus at Wilshire/Western Station to a new Wilshire/La Cienega station. STS was and remains the General Contractor for the project, which is still ongoing. (SUMF, ¶ 1.)

Under Section 4.3 of the General Conditions provision of the contract, the Contract identifies STS as an independent contractor of Metro and provides that STS has the responsibility for and control over the details and means for performing the work on the Purple Line Extension Project.

Section 4.3.2 states: “Contractor, as an independent contractor, shall have responsibility for and control over the details and means for performing the Work, provided that Contractor is in compliance with the terms of this Contract.” (SUMF, ¶ 4.)

Section 24.1 further provides: “Contractor shall at all times conduct its operations in such a manner as to avoid risk of bodily harm to persons or damage to property. Contractor shall promptly take all reasonable precautions to safeguard against such risks and shall make regular safety inspections of its operations. Contractor shall be solely responsible for the discovery, determination and correction of any unsafe conditions related to Contractor’s performance of the Work or Goods furnished and/or installed by Contractor.” (SUMF, ¶ 9.)

STS’s Vice President, Mr. James Bailey, declared that STS controlled the details and means of performing work at the incident site. (Bailey Decl. ¶ 9.) STS was responsible for and had control over worksite safety at the incident site. (Id. ¶ 12.) STS had exclusive control over the worksite and the below-ground tunnel where the incident occurred. It was responsible for safety, construction, and work methods at the site, including the operation of the locomotive and rail system. STS implemented, maintained, and oversaw safety programs, including tunnel safety and locomotive operations. It had a safe work plan in place for locomotive operation and controlled the means and methods of the work performed by Decedent, his crew, and the locomotive operator. (Id. ¶ 21.) Plaintiff received workers’ compensation from STS. (Id. ¶ 22.)

Defendant has met its initial burden by demonstrating that STS is an independent contractor hired to construct the Purple Line Extension Project. Plaintiff was an employee of STS and was receiving workers’ compensation from STS. Defendant has established that the Privette presumption applies, barring any exceptions. Notably, Plaintiff does not dispute the applicability of the Privette doctrine in opposition but instead argues that the retained control exception applies.

There are two exceptions to the Privette doctrine, concealed hazard and retained control. Plaintiffs did not allege concealment in the FAC. Therefore, Defendant need not address this exception as it was not raised in the complaint. Plaintiff’s opposition further clarifies that the dispute between the parties concerns the retained control exception.

With respect to the retained control exception, Defendant has provided sufficient evidence, including the contract between STS and Metro and the declaration of STS Vice President James Bailey, demonstrating that STS retained control over the means and methods of the work performed by Decedent, his crew, and the locomotive operator. STS also maintained control over the safety of the subject location and the locomotive, while Metro did not exercise actual control over the site. Accordingly, Defendant has met its initial burden.

The Hooker 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.)¿

This means Plaintiff must do more than merely show retained control in an abstract sense through contractual provisions; Plaintiff must establish that Defendant actually exercised control in practice and that such exercise affirmatively contributed to the incident. The court in Sandoval explains that “[u]nlike ‘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” (Sandoval, supra, 12 Cal.5th at p. 283.) “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 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 relies on contractual provisions within Metro’s Construction Safety and Security Manual and Metro’s contract with STS to argue that Metro exercised control over the worksite and affirmatively contributed to the incident. These contracts require STS to comply with Metro’s safety policies, including submitting an Injury and Illness Prevention Program (IIPP) for Metro’s approval. Metro retained oversight authority, assigning personnel such as a Construction Safety Manager and Resident Engineer to monitor compliance, report unsafe conditions, and oversee STS’s safety management. Additionally, Metro’s contract mandates that STS safety representatives be approved by Metro, with work required to halt if no approved representative is present. The contract also includes mandatory safety training for STS employees and subcontractors, along with protocols for worksite safety compliance. Plaintiff contends these provisions demonstrate Metro’s retained control over safety operations and its involvement in day-to-day safety decisions at the worksite.

However, these provisions largely establish oversight and compliance monitoring, rather than actual exercise of control over the specific methods and means of work in a manner that affirmatively contributed to the incident. “The affirmative contribution requirement can be satisfied only if the hirer in some respect induced — not just failed to prevent — the contractor's injury-causing conduct.” Sandoval v. Qualcomm Inc., (2021) 12 Cal.5th 256, 277. (See, e.g., Kinney , supra , 87 Cal.App.4th at p. 36 [requiring that the hirer "induc[e] [the contractor's] injurious action or inaction through actual direction, reliance on the hirer, or otherwise"]; McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 225 [finding affirmative contribution where hirer "requested" that contractor use faulty equipment, thus at least in part inducing the contractor's decision to use it].) It is not enough for the hirer's exercise of control to incidentally give the hirer the opportunity to prevent the contractor's injury-causing conduct. (See Hooker, supra, 27 Cal.4th at p. 209 [finding no affirmative contribution where the onsite hirer had the authority and opportunity to stop the contractor from allowing traffic across the overpass, but did not induce the contractor to allow such traffic — the hirer merely "permitted " the traffic].)

There is an exception under Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, where the court found that a hirer may retain control in circumstances where it fails to act. In Ray, the defendant’s contract prohibited the independent contractor from erecting barricades without the defendant’s prior written permission. Because the contractor’s employees were prevented from independently closing the road when hazardous conditions arose, the defendant’s failure to act—specifically, not closing the road despite the hazardous conditions—was deemed an affirmative contribution to the decedent's injury. This case underscores that retained control requires more than general oversight; it must reflect the hirer’s exclusive authority over safety decisions in a way that directly impacts the injury.

Aside from Plaintiff’s allegations of control in the abstract, Plaintiff has failed to demonstrate how Metro affirmatively contributed to the safety measures or the lack thereof that led to the incident. Specifically, Plaintiff has not shown that Metro supplied the flatcar to STS or that Metro promised or retained exclusive control over track visibility, including the presence of a brakeman. Plaintiff has provided no testimony, declaration, or documents showing that Metro promised to provide a brakeman or improve track visibility but failed to do so. Moreover, Plaintiff has offered no evidence that Metro held exclusive control over track visibility, the appointment of a brakeman, or that STS sought to implement these safety measures but was denied the opportunity by Metro.

As to the absence of lights or reflectors on the end of the train (flatcar and/or muck car), Plaintiff cites Metro’s Red Tag Procedure as evidence of Metro’s exclusive control over worksite equipment.

All equipment, tools, or other items used to complete the work are subject to periodic inspection by Metro. Any item of the contractor that is rejected as not conforming to paragraph 1.5.B of this manual, the manufacturer’s recommendations, or applicable ANSI standards, and presents a potential for injury when used as directed by the manufacturer, shall be “Red Tagged” by Metro Construction Safety Staff. The tag will be dated and signed and will note the unsafe condition.

Any item so tagged shall not be used until the condition noted on the tag has been corrected and the tag has been removed by the person who has signed and attached the tag. Any employee who ignores, removes, damages, or otherwise tampers with a Metro “Red Tag” shall immediately be removed from the project by the contractor and shall not return to the project without the written permission of the Metro Director, Construction Safety, or Construction Safety Manager.

A Metro “Red Tag” is considered the equivalent of a Notice of Suspension of Work for the particular equipment, tools, or other item so tagged. Any violation of the provisions of this section shall be considered a violation of the Special Circumstances Special Provision, if included in the Contract, and the violation may result in the penalties described in the Special Circumstances Special Provision.

Plaintiff argues that Metro affirmatively undertook the exclusive responsibility of inspecting and determining which equipment, tools, or other items were unsafe for use at the worksite. However, the procedure merely provides a mechanism for Metro’s inspection and does not prohibit contractors from identifying, repairing, or modifying defective or unsafe equipment on their own. The Red Tag Procedure does not establish exclusive control over the flatcar or the decision to equip it with lights or reflectors.

Unlike the scenario in Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, where the defendant explicitly prohibited the contractor from erecting barricades without prior written approval, the Red Tag Procedure does not prohibit STS from addressing or correcting safety issues on its own initiative. In Ray, the independent contractor’s inability to take action due to the hirer’s retained control directly contributed to the injury. Here, STS was not prohibited from identifying or fixing the absence of lights or reflectors on the flatcar under Metro’s Red Tag Procedure.

Plaintiff argues that STS knew or should have known about the lack of lights or reflectors, citing OSHA violations spanning multiple years. However, under the applicable case law, this is not relevant unless Plaintiff can show that STS attempted to remedy the issue but was prevented from doing so by Metro, or that Metro promised to fix the issue but failed to follow through. Without such evidence, the alleged OSHA violations do not establish retained control or affirmative contribution by Metro.

Overall, the evidence provided by Plaintiff establishes only general contractual obligations, which at most indicate Metro’s right to become involved but do not demonstrate actual exercise of control. As clarified in Sandoval, actual exercise requires the hirer to actively involve itself in the contractor’s work in a manner that affirmatively contributes to the injury. Sandoval also outlines specific scenarios where actual exercise occurs, such as interfering with the contractor’s safety decisions or preventing the contractor from taking necessary precautions.

Plaintiff attempted to rely on Ray by arguing exclusive control, but the evidence does not support this claim. Plaintiff has not shown that Metro retained exclusive authority over the safety measures at issue or that STS attempted to implement safety precautions but was blocked by Metro.

Plaintiff’s counsel requests a continuance declaring that additional discovery is necessary, including but not limited to depositions of Metro’s agents and employees with knowledge regarding: (1) the incident itself, (2) the subject project, (3) Metro’s contract, (4) Metro’s responsibilities with respect to the contract, including control, ownership, and management over the subject site and project, and (5) the deposition of the Cal/OSHA investigator, scheduled for February 4, 2025.

3. There is a valid reason why additional time is needed to obtain these facts. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.)

The purpose of the affidavit required by Code of Civil Procedure section 437c, subdivision (h) is to inform the court of outstanding discovery necessary to oppose the summary judgment motion. “It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show ‘facts essential to justify opposition may exist.’” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 255.)

Here, Plaintiff’s declaration fails to meet this standard. The declaration only lists broad categories of discovery, such as depositions of Metro’s personnel and the Cal/OSHA investigator, but fails to explain how these depositions would provide specific facts necessary to oppose summary judgment. Plaintiff does not articulate how this additional discovery would establish that Metro actually exercised control or affirmatively contributed to the incident, which is the critical issue under Sandoval v. Qualcomm and Hooker v. Department of Transportation.

Furthermore, Plaintiff’s discovery requests focus on contractual provisions and general oversight authority, but the Court has already found that contractual oversight alone is insufficient to establish actual exercise of retained control. The determinative issue is Metro’s actual involvement in the specific means and methods of STS’s work in a way that affirmatively contributed to the incident, yet Plaintiff’s requested discovery does not directly address this issue.

Additionally, this case was filed in 2022, and Plaintiff has had ample opportunity to obtain depositions and other relevant evidence. Given the voluminous evidence already presented, the Court has determined that sufficient discovery has been conducted.

Due to the deficient affidavit, the Court’s determination that Plaintiff has already conducted sufficient discovery, and Plaintiff’s failure to identify specific evidence necessary to justify opposition, the request for a continuance is denied.

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