Judge: Lee W. Tsao, Case: 20STCV22320, Date: 2023-03-07 Tentative Ruling

Case Number: 20STCV22320    Hearing Date: March 7, 2023    Dept: C

SCHAFFER v. K&M MEAT COMPANY, INC., et al.

CASE NO.:  20STCV22320

HEARING: 3/7/23 @ 1:30 PM

 

#3

TENTATIVE RULING

 

Defendants K&M Meat Company, Inc. and Goldberg’s motion for summary judgment, or in the alternative, for summary adjudication is GRANTED.

 

Moving Parties to give NOTICE.

 

 

Defendants K&M Meat Company, Inc. (“K&M”) and Felix Goldberg move for summary judgment, or in the alternative, summary adjudication, pursuant to CCP § 437c.

 

EVIDENTIARY OBJECTIONS

         

K&M’s objection nos. 1-8 are sustained.

 

COMPLAINT

 

This action is brought by Plaintiff Bernardo Schaffer, against Defendant K&M Meat Company, Inc., who owns, manages, and/or controls the property located at 2443 E. 27th Street, Vernon, California.  (Complaint, ¶ 2.)  Defendant Felix Goldberg is the trustee of the Felix Goldberg Trust, and the trust is the owner of the property.  (Id., ¶ 3.)  On February 21, 2019, Plaintiff sustained injury on the property when he fell through the floor of the second story down to the first story of the premises.  (Id., ¶¶ 9, 12.)  Based thereon, Plaintiff asserts causes of action for:

 

1.    Negligence

2.    Premises Liability

 

STANDARD

 

A defendant moving for summary judgment/adjudication has met his burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established.  (CCP § 437c(p)(2).) 

 

GENERAL NEGLIGENCE and PREMISES LIABILITY:

 

Defendants contend that they did not affirmatively contribute to plaintiff's loss in any way, that no act or omission on their part contributed to plaintiff's loss, that neither K&M nor Goldberg breached any duty to plaintiff, and that plaintiff's accident was caused by his knowingly encountering an open an obvious condition.

 

Defendants submit the following evidence, in relevant part:

 

·        K&M is a restaurant/hotel service provider in the business of packaging meats at its facility, located at 2443 E 27th St, Vernon, CA 90058. (Medina Decl., ¶ 2, Defense Separate Statement (DSS) 3.)

·        In February, 2019, K&M determined that the flooring of the mezzanine on the second floor of its facility required stronger reinforcement in order to use the area for storage. (DSS 4; see also Ex. 5 – picture of mezzanine or platform.)

·        In February 2019, K&M's Maintenance Manager, Michael Medina, met with Chris Ayala, the President of Delta, and conveyed that request to him. (Id.)

·        Medina showed Ayala the second-floor mezzanine level and the flooring that needed to be reinforced. (DSS 5.)  The flooring was covered with plywood, and there were some items on top, and no part of the flooring was exposed. (Id.)

·        Delta would hire BMG for the Carpentry Project, and Delta would bill K&M for BMG's work once it was completed. (DSS 6.)

·        Delta contacted Byron Medrano, BMG's owner, and told him of the carpentry work that K&M needed; Medrano said that BMG could perform that work that he would send BMG Project manager Rick Goad to access the job and gather materials.  (DSS 7.)

·        For each repair project that Delta handles at K&M's facility, Delta sends a quote for signature setting out the scope of work and price terms regarding the project. (DSS 11.)  On February 20, 2019, K&M Maintenance Manager Medina received a Quote for "Framing Above Office" from Delta and presented it to the appropriate K&M representative for signature. (DSS 12.)

·        Plaintiff was an employee of BMG. (DSS 9.)

·        On February 20, 2019, Goad assigned Plaintiff to do demolition and repair work at K&M's facility. (DSS 17.) The next day, Goad told plaintiff to go to K&M's facility and see what Delta President Ayala wanted him to do in connection with the floor repair. (DSS 18.)

·        Ayala showed them the area of the second floor where the carpentry work was to be performed, where Goad removed boxes over one section of the plywood floor and determined that about a 10-foot square portion of the plywood floor had to be removed and replaced. (DSS 10.)

·        The exposed flooring on the second floor was noticeable, as it was at least five feet wide and was approximately five feet from the top of the second level, i.e., the top of the stairs leading up to the second level. (DSS 21.)

·        On February 21, 2019, Plaintiff and Ayala went up to the second floor, where plaintiff had already brought his tools, and discussed the work to be done. (DSS 22.)

·        At some point when Ayala was on the second floor with plaintiff, plaintiff fell through the drywall exposed by the hole in the mezzanine floor down to the first floor. (DSS 23.)

·        Plaintiff knew he needed a harness for the job, as well as gloves, kneepads, eyewear, but did not have a safety harness with him on that date. (DSS 19-20.) Plaintiff would not have injured himself if he had worn his safety harness. (DSS 26.)

·        When BMG performed work at job sites like K&M's facility, BMG and its employees control that work area in order to protect themselves and
others from injuries. (DSS 8.)

·        K&M performed none of the actual work involved in the February 20-21, 2019 repair to the mezzanine floor of its facility. (DSS 13.)  K&M specifically did none of the demo work on the old flooring, installation of the new flooring, removal of debris, or any related work. (DSS 14.)  K&M also never agreed to supply, and never supplied, any of the materials for that job, including any safety equipment. (DSS 15.)  K&M also gave no instructions or direction to any BMG workers, including plaintiff, in connection with that work. (DSS 16.) Plaintiff did not speak with any K&M employees on February 21, 2019; on February 20, 2019, Goad had introduced him to a K&M employee, but they had no discussion other than exchanging greetings. (DSS 24.)

 

When an employee of an independent contractor is injured in the workplace, the injured employee generally cannot sue the party that hired the contractor to do the work.  (Privette v. Superior Court (1995) 5 Cal.4th 689, 695.)  A hirer “delegate[s] responsibility for performing the task safely, and assignment of liability to the contractor follow[s] that delegation.”  (Seabright Ins. v. U.S. Airways Inc. (2011) 52 Cal.4th 590, 600.) 

 

An exception to the Privette general rule of nonliability provides that a hirer of an independent contractor may be liable if the hirer retained control over safety conditions and the exercise of retained control affirmatively contributed to the employee’s injuries.  (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202.)  Because the liability of the contractor, the person primarily responsible for the worker's on-the-job injuries, is limited to providing workers' compensation coverage, it is unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over safety at the worksite. The imposition of tort liability on a hirer should depend on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor's employee.  (Hooker, supra, 27 Cal.4th at 210.) 

 

Based on the evidence submitted, the court finds that K&M has submitted sufficient evidence supporting nonliability based on the Privette doctrine.  K&M hired Delta Refrigeration Corporation (“Delta”), who hired BMG to perform the independent contractor work. Plaintiff is an employee of BMG and is limited to claims that are available through his employer. 

 

By hiring an independent contractor to perform the demolition and abatement, K&M delegated to the independent contractor any tort law duty it owes to the independent contractor’s employee over safety.  (See SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594 - “By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law 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 safety requirements.”; Johnson v. Raytheon Company, Inc. (2019) 33 Cal.App.5th 617, 628 - “Privette applies 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.”) 

 

The burden now shifts to Plaintiff to produce evidence that would create a triable issue of material fact.

 

In opposition, Plaintiff submits the following evidence:

 

·        K&M showed Delta the second-floor mezzanine where the Project would be performed and, in turn, Delta showed the area to Rick Goad, who then provided a quote to provide services for which a license was required. (PSS 10-14; DSS 4.)

·        Goad has never been a licensed contractor, nor did Goad have authority to enter into contracts on behalf of BMG.  (PSS 15-16.)

·        K&M never communicated with BMG’s officers, let alone received a Certificate of Liability Insurance from BMG or specifically approved BMG to perform work under the Project.  (PSS 17-22.)

·        BMG owner Byron Medrano was in Mexico from approximately February 19, 2019 to at least February 23, 2019. (PSS 23.)

·        Despite conflicting understandings as to the scope of the Project, Rick Goad not only explained the Project to Plaintiff prior to the Incident, but also finished the Project afterwards. (PSS 24-26.)

·        At the time of the Incident, Plaintiff had been an employee of BMG for approximately two months. (DSS 9; PSS 28.)

·        The day before the Incident, Plaintiff went to the Subject Property with Rick Goad and removed trash from the demolition work previously performed by someone other than Plaintiff. (PSS 29.)

·        Prior to the Incident and since then, Defendants have used the second-floor mezzanine for storage but did not know the floor’s anticipated weight capacity before or after the Project’s completion.  (PSS 30-31.)

·        K&M’s maintenance manager, Michael Medina has never held a contractor’s license.  (PSS 32.)

·        K&M and Delta monitored and exercise control over the work of contractors at the premises.  (PSS 33.)

·        Defendants deviated from their own policy by relying on Delta’s Certificate of Liability Insurance and Quote #0082019 provided by Delta while failing to keep record of which contractors Delta brings onto the Subject Premises.  (PSS 34-36.) The rates for services indicated in Quote #0082019 in connection with the Project are identical to the rates Delta charges Defendants on a regular basis. (PSS 49-51.) The warranty
for the services provided under Quote #0082019 is guaranteed by Delta. (PSS 52-53.)

·        Just a few days after the Incident, Rick Goad transferred funds from his personal bank account to Plaintiff, purportedly as payment for Plaintiff’s hours. (PSS 55-56.)

 

Plaintiff contends that the Privette and Hooker doctrines do not apply because BMG was never contracted.  (Opposition, 6:5.)  According to Plaintiff, K&M had an agency relationship with Delta, and hired Delta to perform unlicensed contractors’ carpentry.

 

DSS 7 states that Delta contacted BMG’s owner, Byron Medrano, and told him of the carpentry work that K&M needed; Medrano said that BMG could perform that work that he would send BMG Project manager Rick Goad to access the job and gather materials.  (DSS 7.)

 

Plaintiff disputes that any discussion with Medrano ever took place and that BMG ever entered into a contract to perform work at K&M’s facility at the time of the Subject Incident as well as who was responsible for gathering materials.  (Disputed DSS 7.)  Disputed DSS 7 refers to “Declaration of Custodian of Records for BMG Construction, Inc. in Response to Subpoena Duces Tecum issued in WCAB Case No. ADJ11990180” and “Minute Order re: Petition for Joinder in WCAB Case No. ADJ11990180.”   Nowhere in Plaintiff’s separate statement in response to DSS 7 does Plaintiff identify where this information is located in the hundreds of pages of Plaintiff’s evidence.  Accordingly, Plaintiff’s separate statement violates CRC 3.1113(k).  Plaintiff then cites Delta’s Response to Request for Admission No. 2, but Delta’s responses are inadmissible as against any party other than responding party Delta (see K&M's concurrently-filed Objections to Evidence Supporting Opposition to MSJ.) 

 

Finally, Plaintiff cites Chris Ayala’s deposition testimonies at 90:4-91:14; 95:6-17; 103:25 – 104:5 in supported of Disputed DSS 7.  After Plaintiff’s fall, Ayala contacted Medrano to ask whether BMG would complete the project.  Medrano “kind of played dumb… he pretended to me that he didn’t even know about the job… His exact words were, “I don’t even know what you’re talking about.  I was in Mexico…. and I laughed and…. It was too obvious.  I knew what he was trying to do… He was playing dumb… it was obvious he was trying to avoid anything that had to do with this.”  (Ayala Deposition, 91:6-93:14.)  Ayala then called Rick Goad, who took care of it.  (Id., 93:15-20.)  

 

The court finds Plaintiff failed to present evidence that would create a triable issue as to BMG’s contract.  The evidence cited is inadmissible hearsay, and none of the hearsay exceptions apply.  BMG is not a party opponent, and is a stranger to these proceedings.  Medrano himself did not submit any declaration in support of Plaintiff’s motion.  Plaintiff admits that Rick Goad was an employee of BMG at the time of Plaintiff’s injury.  (PSS 13.)  The admissible evidence before this court is that Goad had apparent authority to contract for work on behalf of BMG.  (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 426-27 - ostensible authority arises as a result of conduct of the principal causing the third party reasonably to believe that the agent possesses the authority to act on the principal’s behalf.)

 

Accordingly, the court finds that Plaintiff failed to produce evidence in opposition that would create a triable issue.   

 

Based on the evidence submitted, the court finds that K&M has submitted sufficient evidence supporting nonliability based on the Privette doctrine.  K&M hired Delta, who hired BMG to perform the independent contractor work.  Plaintiff is an employee of BMG and is limited to claims that are available through his employer.  Further, there is no evidence before this court that K&M retained control over safety conditions and affirmatively contributed to Plaintiff’s injury.  (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202.)  Because the liability of the contractor, the person primarily responsible for the worker's on-the-job injuries, is limited to providing workers' compensation coverage, it is unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over safety at the worksite. The imposition of tort liability on a hirer should depend on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor's employee.  (Hooker, supra, 27 Cal.4th at 210.) 

 

Accordingly, the motion is GRANTED as to K&M and Goldberg.

 

AS TO GOLDBERG in his individual capacity:

 

Felix Goldberg additionally contends individual liability fails because he had no personal involvement in the negotiations or the work itself.  Goldberg submits the following evidence:

 

·        Goldberg is the CEO of K&M and the trustee of the Felix Goldberg trust, which is the owner of K&M, a defendant in this lawsuit. (DSS 27.) 

·        Goldberg does not have any ownership interest in K&M in his individual capacity. (DSS 28.)

·        Goldberg was not personally involved in any communications with any representatives of Delta or BMG regarding any demolition or reinforcing the flooring of the second-floor mezzanine level at K&M's facility. (DSS 29.)

·        Goldberg was not even aware that that work was being done at the time and had no involvement in that work itself. (DSS 30.)

·        Goldberg was not involved with that work in any way at any time and not present in that work site with plaintiff or any representatives of BMG Construction, Inc. or Delta Refrigeration Corporation regarding the Carpentry Project at any time. (DSS 31.)

 

In opposition, Plaintiff submits Ayala’s deposition testimony at 81:8-23.  However, this testimony merely establishes that Goldberg was told about the incident after it happened.  There is absolutely no evidence in the record that Goldberg was ever personally involved in the hiring of BMG or the handling of BMG’s work.

 

Accordingly, summary judgment is GRANTED on this additional ground as to Felix Goldberg.