Judge: Lisa R. Jaskol, Case: 21STCV21603, Date: 2023-12-05 Tentative Ruling

Case Number: 21STCV21603    Hearing Date: December 5, 2023    Dept: 28

Having considered the moving, joining, opposing, and reply papers, the Court rules as follows.  

BACKGROUND 

On June 9, 2021, Plaintiff Henry Lopez (“Plaintiff”) filed this action against Defendants One Santa Fe PMC, LLC, McGregor Brown Company, Inc., Polis Builders, Ltd., Hileman Cowley Partners, LLC, Canyon Capital Advisors, LLC (“Canyon”), Berkshire Communities, LLC (“Berkshire”), Bernard Builders, Inc., and Does 1-100 for negligence and premises liability. 

On August 27, 2021, Plaintiff amended the complaint to include Defendants BMPP OSF-R, LP as Doe 1 and BMPP OSF-C, LLC as Doe 2. 

On October 29, 2021, Plaintiff amended the complaint to include Defendant Lincoln Property Company Commercial, Inc. as Doe 3. 

On December 3, 2021, Berkshire filed an answer. 

On December 6, 2021, Defendant LPC West Inc., erroneously named and served as Lincoln Property Company Commercial, Inc., filed an answer. 

On December 9, 2021, Defendants BMPP OSF-R LP and BMPP OSF-C LLC filed answers. 

On December 17, 2021, the Court found that case numbers 20STCV24806 and 21STCV21603 (this case) are related within the meaning of California Rules of Court, rule 3.300(a).  Case number 20STCV24806 became the lead case.  The cases were assigned to Department 28 at the Spring Street Courthouse for all purposes. 

On April 26, 2022, the Court dismissed Lincoln Property Liability Company Commercial, Inc. without prejudice at Plaintiff’s request. 

On July 1, 2022, Plaintiff amended the complaint to include Defendant Direct TV, LLC (“DirectTV”) as Doe 4.  

On August 18, 2022, DirectTV filed an answer and a cross-complaint against Cross-Defendants Roes 1-100 for equitable indemnification, equitable contribution, and declaratory relief. 

On August 19, 2022, Canyon filed an answer.  On August 22, 2022, Canyon filed a cross-complaint against Roes 1-50 for indemnification, apportionment of fault, and declaratory relief.  On November 9, 2022, the Court dismissed Canyon without prejudice at Plaintiff’s request.  On December 1, 2022, the Court dismissed Canyon’s cross complaint without prejudice at its request. 

On February 10, 2023, Defendant Bernards Builders, Inc., erroneously sued as Bernard Builders, Inc., filed an answer and a cross-complaint against Moes 1-100 for equitable indemnity, contribution, and declaratory relief.  On June 6, 2023, the Court dismissed Bernards Builders, Inc. without prejudice at Plaintiff’s request. 

On May 31, 2023, Berkshire filed a motion for summary judgment or, alternatively, summary adjudication, set for hearing on August 14, 2023. On May 31, 2023, Defendants BMPP OSF-R LP and BMPP OSF-C LLC filed joinders.  On July 28, 2023, the Court granted Plaintiff’s ex parte application to continue the hearing on Berkshire's summary judgment motion and continued the hearing to December 5, 2023. On November 20, 2023, Plaintiff filed an opposition. On November 30, 2023, Berkshire filed a reply. 

Trial is currently set for July 1, 2024.  

PARTIES’ REQUESTS 

Berkshire requests that the Court grant summary judgment or, in the alternative, summary adjudication. Defendants BMPP OSF-R LP and BMPP OSF-C LLC join in the requests. 

Plaintiff requests that the Court deny the motion. 

PLAINTIFF’S EVIDENTIARY OBJECTIONS 

Overruled: 1, 2

BERKSHIRE’S EVIDENTIARY OBJECTIONS 

Overruled: 1, 3, 4
Sustained: 2

LEGAL STANDARD 

A.   Summary judgment and summary adjudication 

“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’”  (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Aguilar, supra, 25 Cal.4th at p. 850.) 

When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action.  (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.”  (Id. at p. 855, original emphasis.) 

“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.”  (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) 

In addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1).) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).)  If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the noncomplying party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)  

In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the non-moving party.  (Aguilar, supra, 25 Cal.4th at p. 843.) 

B.   Negligence and premises liability 

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. Premises liability ‘is grounded in the possession of the premises and the attendant right to control and manage the premises’; accordingly, ‘mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.’ But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.) 

C.   Privette doctrine 

In Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette), our Supreme Court considered whether a landowner could be liable for injuries sustained when an independent contractor's employee fell off a ladder while carrying hot tar up to a roof during a roof installation. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 41 (Gonzalez), citing Privette, supra, 5 Cal.4th at pp. 691-692.)  The Court held that “the doctrine of peculiar risk — which provides that landowners are vicariously liable for injuries to third parties resulting from the negligence of independent contractors in performing inherently dangerous work on the landowners’ property — does not apply to injuries sustained by the contractor's own employees.” (Ibid., citing Privette, supra, 5 Cal.4th at pp. 691-692.) 

REQUEST FOR JUDICIAL NOTICE 

The Court denies Berkshire’s request for judicial notice. 

DISCUSSION 

A.   Undisputed facts 

          One Santa Fe, located at 100-300 South Santa Fe Avenue in the City of Los Angeles, California ("Property"), is a mixed-used commercial and residential building where Defendant BMPP OSF-R, LP is the owning entity of the residential portion of the property, Defendant BMPP OSF-C, LLC is the owning entity of the commercial portion of the property, which consisted of the first floor, and Berkshire is the property manager.  Berkshire became the management company for One Santa Fe in or around 2016. 

In August 2019, Defendant BMPP OSF-R, LP engaged, through Berkshire, Salinas A/C, Inc. ("Salinas") to repair the air conditioning in a resident's apartment. 

On August 31, 2019, Plaintiff, while in the course and scope of his employment as a contracted HVAC technician for Salinas, was working at the direction of Oscar Bonilla (“Bonilla”), Plaintiff’s onsite supervisor, on the air conditioner in an apartment at the Property. 

While Plaintiff was changing the temperature setting on the thermostat for the air conditioning unit inside the apartment, Bonilla went to the roof of the Property to trace which air-conditioning condenser unit belonged to the apartment unit they were working on and to diagnose the problem.  Before working on the roof that day, Bonilla did not do any kind of inspection, mark off areas, use red or yellow tape, put up cones, or mark a pathway on the roof.  Neither Bonilla nor Plaintiff wore a fall protection or safety harness that day. 

At some point, Bonilla and Plaintiff spoke on the phone, Bonilla asked Plaintiff to come to the roof, and Plaintiff went to the roof.  Bonilla had been on the roof for about 15 or 20 minutes before Plaintiff came up to the roof.  During the phone conversation, Bonilla told Plaintiff how to get to the roof and where the access to the roof was.  When Plaintiff arrived at the roof, Bonilla stood up, turned around, and raised his hand to show Plaintiff where he was. 

As Plaintiff was heading toward Bonilla, Plaintiff fell off the roof, falling multiple floors. 

Bonilla did not see Plaintiff fall off the roof and does not know why he fell. Plaintiff also does not remember anything about the incident, including how he got to the roof, what caused the incident, and how he fell off the roof. 

Before the incident, Plaintiff had worked on at least 75 roofs. 

Before Plaintiff fell from the roof, Defendants knew of no prior similar, related incidents on the Property.  Defendants know of no building code violations concerning the roof’s design or construction. 

          Defendants did not provide any tools or equipment to Plaintiff or Bonilla on the day of the incident.  Defendants did not direct, instruct, or supervise the work contracted to be done by Salinas or how it was to be performed by Plaintiff or Bonilla on the day of the incident. 

B.   Analysis 

          Berkshire argues that the Privette doctrine bars liability. The Privette doctrine presumes that, with some exceptions, the hirer of an independent contractor delegates responsibility for workplace safety to the independent contractor. 

          In Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635 (Alvarez), the Court of Appeal explained how the Privette doctrine affects the parties’ respective burdens on a motion for summary judgment.  (Miller v. Roseville Lodge No. 1294 (2022) 83 Cal.App.5th 825, 834 (Miller).)  When a person or organization hires an independent contractor, the hirer presumptively delegates to the contractor the responsibility to do the work safely.  (Miller, supra, 83 Cal.App.5th at p. 834, quoting Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 269.) The Alvarez court referred to this as the “‘Privette presumption.’”  (Ibid., quoting Alvarez, supra, 13 Cal.App.5th at p. 642.)  “It held the Privette presumption arises once the defendant establishes the requisite factual foundation—namely, that it hired an independent contractor to perform certain work, and the independent contractor's worker was injured in the course of that work.” (Ibid., citing Alvarez, supra, 13 Cal.App.5th at p. 644.)  “Once the presumption arises, the burden shifts to the plaintiff to raise a triable issue of fact as to whether one of the exceptions to the Privette doctrine applies, and if it cannot, the defendant is entitled to summary judgment. (Ibid., citing Alvarez, supra, 13 Cal.App.5th at p. 644.)  

          Here, Berkshire hired Salinas, an independent contractor, to perform certain work.  Plaintiff, Salinas’s employee, was injured in the course of that work.  These facts invoke the Privette assumption, shifting the burden to Plaintiff to raise a triable issue of fact regarding whether an exception to the doctrine applies. 

          The Supreme Court has identified two limited exceptions to the Privette doctrine. (Gonzalez, supra, 12 Cal.5th at p. 38.)  First, in Hooker v. Department of Transportation (2002) 27 Cal.4th 198 (Hooker), the Court held that a hirer may be liable when it retains control over any part of the independent contractor's work and negligently exercises that retained control in a manner that affirmatively contributes to the worker's injury. (Gonzalez, supra, 12 Cal.5th at p. 38, citing Hooker, supra, 27 Cal.4th at p. 202.) The Court “made clear in Hooker that this exception to Privette is not met solely because a hirer is aware that there is an unsafe condition on the worksite or knows that the contractor is engaging in an unsafe work practice.” (Id. at p. 42, citing Hooker, supra, 27 Cal.4th at pp. 214–215.) “Something more is required, such as “ ‘ “inducing injurious action or inaction through actual direction” ’ ” (ibid., quoting Hooker, supra, 27 Cal.4th at p. 211); directing “ ‘ “the contracted work be done by use of a certain mode” ’ ” (ibid., quoting Hooker, supra, 27 Cal.4th at p. 215); or interfering with “ ‘the means and methods by which the work is to be accomplished” ’ ” (ibid., quoting Hooker, supra, 27 Cal.4th at p. 215). The Court “found that the hirer in Hooker did not exercise its retained control in a manner that affirmatively contributed to the injury where it merely permitted vehicles to use the overpass and knew that, in order to allow vehicles to pass through, the contractor's crane operator was required to engage in the unsafe practice of retracting the crane's stabilizing outriggers.” (Ibid., citing Hooker, supra, 27 Cal.4th at pp. 214–215.)  But the Court found that the hirer in Hooker’s companion case, McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219 (McKown), “exercised its retained control in a manner that affirmatively contributed to the injury where it requested the independent contractor to use the hirer's own defective equipment in performing the work.”  (Ibid., citing McKown, supra, 27 Cal.4th at p. 225.)

        The evidence here does not support application of the Hooker exception. Plaintiff has presented no evidence that Berkshire or its employees told Plaintiff to go onto the roof, directed the method which he used to accomplished his task, or retained control in a way that effectively contributed to Plaintiff’s injuries. 

          Second, in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 (Kinsman), the Court held that a landowner who hires an independent contractor may be liable if the landowner knew, or should have known, of a concealed hazard on the property that the contractor did not know of and could not have reasonably discovered, and the landowner failed to warn the contractor of the hazard. (Gonzalez, supra, 12 Cal.5th at p. 38, citing Kinsman, supra, 37 Cal.4th at p. 664.) 

          In Miller, the independent contractor’s employee was injured because the equipment he was using to perform his work, a scaffold, was unsafe unless its wheels were locked.  (Miller, supra, 83 Cal.App.5th at p. 839.)  The employee argued the unsafe scaffold was a concealed hazard the defendant should have warned him about.  The Court of Appeal rejected the argument, holding the hazardous condition was not concealed and the exception did not apply even if the defendant knew of the hazardous condition and failed to warn the independent contractor and employee.  The appellate court reasoned, “the fact that the scaffold had wheels was not concealed.  [The independent contractor and his employee] could have discovered their existence had they simply inspected the scaffold before [the employee] climbed onto it. [The employee] argues that whether a condition is concealed is an issue of fact that cannot be decided on summary judgment. Given the evidence in this case, we disagree.”  (Id. at pp. 839-840.) 

          The Court of Appeal in Miller also held that the employee did not create an issue of fact by contending the room where the accident occurred was dark. (Miller, supra, 83 Cal.App.5th at p. 840.)  “Again, a concealed hazard is a hazard ‘that the contractor does not know exists and could not reasonably discover without the hirer's disclosure.’ [Citation omitted.] That the room may have been dark does not establish that [the independent contractor and his employee] could not reasonably discover that the scaffold had wheels unless [the defendant’s agent] pointed that out—all they had to do to discover the wheels was simply to look at the scaffold deploying adequate lighting.”  (Ibid.) 

In Blaylock v. DMP 250 Newport Center, LLC (2023) 92 Cal.App.5th 863 (Blaylock), the plaintiff, a project manager for the contractor hired to maintain and service the property owner’s HVAC equipment, fell through an access panel in the floor of a crawl space in which he was working.  The plaintiff sued the property owner.  The trial court granted summary judgment for the property owner and the plaintiff appealed, arguing there was a triable issue of fact about whether the owner and property manager knew or should have known of the allegedly concealed hazardous condition (the access panel).   

The Court of Appeal affirmed, holding the Kinsman rule did not apply because, while the evidence might be sufficient to show the owner should have known the access panel existed, “there was no evidence it knew or should have known the panel was either concealed from a person in the crawl space above, or that it was hazardous.”  (Blaylock, supra, 92 Cal.App.5th at p. 866.)  The contractor had a duty to inspect the work premises for potential safety hazards but there was no evidence that it had conducted an inspection.  If the contractor’s employees had inspected the premises for safety issues, they would have recognized that the access panel was unsafe to walk on.  (Id. at p. 873.)  Its hazardous nature was not concealed.  (Ibid.) 

In Acosta v. MAS Realty, LLC (2023) 96 Cal.App.5th 635 (Acosta), the plaintiff, an electrical technician, was injured when a broken hatch providing access to the roof of a commercial building slammed shut on his back, injuring him.  He sued the building’s owner and property owner, contending they failed to repair a dangerous condition of which they were aware or warn him of it.  A jury returned a verdict for the plaintiff and awarded him over $12 million in damages.  The Court of Appeal reversed, holding the plaintiff and his employer could reasonably have ascertained the dangerous condition on the site – i.e., that the mechanism designed to hold the roof hatch open was broken and the ladder that provided access to the hatch did not reach all the way to the roof.  (Acosta, supra, 96 Cal.App.5th at pp. 511-512.)  Thus, the hazard presented by the roof hatch and ladder were not concealed as a matter of law.  (Id. at p. 527.) 

Plaintiff argues that he has raised a triable issue of fact concerning whether an injury-causing condition which Plaintiff describes as “the ‘V- shape cutout/Abyss’ was concealed.  According to Plaintiff, he fell six floors through an “open gap/abyss” on the premises due to tripping on loose cables connected to DIRECTV satellite dishes and HVAC systems.  (Opposition p. 5.) 

Plaintiff appears to be referring to areas of the property where the buildings, including their roofs, end, giving way to unoccupied space.  Although Plaintiff also refers to the hazard as a “roof hole,” it does not appear that there was a hole in the roof. 

Plaintiff has presented no evidence that Salinas or its employees conducted a safety inspection of the roof before Plaintiff joined Bonilla on the roof.  Moreover, Plaintiff has presented no evidence that Berkshire (or BMPP OSF-R LP and BMPP OSF-C LLC) knew, or should have known, of a concealed hazard on the property that Salinas did not know of and could not have reasonably discovered, and that Berkshire failed to warn Salinas of the hazard. (Gonzalez, supra, 12 Cal.5th at p. 38, citing Kinsman, supra, 37 Cal.4th at p. 664.)   Stated another way, there is no evidence that Berkshire (or BMPP OSF-R LP and BMPP OSF-C LLC) knew or should have known that the edge of the building was concealed from a person on the roof or that it was hazardous.  (Cf. Blaylock, supra, 92 Cal.App.5th at p. 866.) 

Plaintiff has failed to raise a triable issue of fact regarding the Kinsman exception to the Privette doctrine.  The Court grants the motion for summary judgment. 

CONCLUSION 

The Court GRANTS the motion for summary judgment filed by Defendant Berkshire Communities, LLC, in which Defendants BMPP OSF-R, LP and BMPP OSF-C, LLC have joined. 

          Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.