Judge Lisa R. Jaskol, Case Number: 21STCV36840, Date: 2023-12-28 Tentative Ruling

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

On October 6, 2021, Plaintiff Colleen Butler (“Plaintiff”) filed this action against Defendants Lucia Arias (“Arias”) and Does 1-25 for premises liability.

On April 7, 2022, Plaintiff amended the complaint to include Defendant Scott Michael Jeffers, Trustee of the Portland Place Trust (“Jeffers”), as Doe 1. On October 11, 2022, Plaintiff amended the complaint to include Defendant True Line L.A., LLC (“True Line L.A.”) as Doe 2. On January 9, 2023, Plaintiff amended the complaint to include Defendant Jimenez Demolition, Inc. ("Jimenez Demolition") as Doe 3. On May 10, 2023, Plaintiff amended the complaint to include Defendant Duane Ladage doing business as True Line (“True Line”) as Doe 4.

On May 2, 2022, Jeffers filed an answer and a cross-complaint against Cross-Defendants True Line and Roes 1-25 for equitable indemnification and contribution, declaratory relief, and apportionment of fault.

On August 12, 2022, True Line filed an answer to Jeffers’s cross-complaint and filed a cross-complaint against Cross-Defendants Jimenez Demolition and Moes 1-25 for equitable indemnity aka total indemnity aka implied indemnity, contribution, and declaratory relief re: duty to defend and indemnify.

On November 10, 2022, Jimenez Demolition filed an answer to True Line’s cross-complaint.

On November 15, 2022, True Line L.A. filed an answer to Plaintiff’s complaint. On February 7, 2023, Jimenez Demolition filed an answer to Plaintiff’s complaint. On June 29, 2023, True Line filed an answer to Plaintiff’s complaint.

On May 2, 2023, True Line filed a motion for summary judgment to be heard on November 16, 2023. The Court continued the hearing to December 28, 2023. On November 3, 2023, Plaintiff filed an opposition. On November 9, 2023, True Line filed a reply.

“‘[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) [motion for summary judgment]; see Code Civ. Proc., § 437c, subd. (f)(2) [motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment”].) 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 offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)

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

“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. [Citations.] 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.’ [Citation.] 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, quoting Preston v. Goldman (1986) 42 Cal.3d 108, 118.)

On October 18, 2019, Plaintiff was injured at 156 North Martel Avenue in Los Angeles. Plaintiff was riding an electric scooter on Martel Avenue in front of Defendant’s home when a dumpster truck hired by the Defendant’s [sic] dumped dirt on Plaintiff, causing her to lose control of her scooter and fall. Defendant’s workers also left gravel in the street, causing an extremely dangerous condition. Defendant’s [sic] had a special rule of duty as landowners and/or occupiers and breached their duties.

The Doe defendants were the agents or employees of other named defendants and acted within the scope of that agency or employment. Arias and the Doe defendants negligently owned, maintained, managed and operated the described premises.

Between 2005 and 2022, Duane Ladage (“Ladage”) operated as a sole proprietor and licensed general contractor doing business as True Line. (UMF 2.) In June 2019, Ladage and True Line contracted with Christopher O'Dowd and Defendant Portland Place Trust to perform remodel work at the residence located at 156 North Martel Avenue in Los Angeles. (UMF 4.) Portland Place Trust owned the property. (PUMF 1.)

In September 2019, Ladage and True Line contracted with Jimenez Demolition to perform interior and exterior demolition work at the 156 North Martel Avenue property. (UMF 5; PUMF 2.) Ladage and True Line did not direct, control, or interfere with the means, methods, or manner in which Jimenez Demolition performed its subcontract work, which Jimenez Demolition performed entirely with its own personnel and equipment. (UMF 6.)

Ladage and True Line did not own or operate any "Bobcat/backhoe" or stage any dumpster at the 156 North Martel property on October 18, 2019, or any time. (UMF 7.) Ladage was not present at 156 North Martel on October 18, 2019, and is uncertain what personnel or equipment, if any, Jimenez Demolition may have been using on October 18, 2019. (UMF 8.)

Neither Ladage nor True Line owned, leased, or occupied the property at 156 North Martel on October 18, 2019, or anytime. (UMF 9.)

In September 2022, Ladage formed True Line L.A. LLC, and in February 2023, Ladage transferred his license and operations to that entity. (UMF 3.)

True Line argues that it cannot be liable to Plaintiff on a premises liability theory because True Line did not own, lease, occupy, or control the premises where Plaintiff was injured.

True Line also argues that it owed Plaintiff no duty because it did not create the peril that caused her accident. True Line asserts that it had no duty to control the conduct of Jimenez Demolition, an independent contractor to which True Line delegated responsibility for workplace safety.

In addition, True Line argues that it had no special relationship with Plaintiff that would give rise to a duty to protect her from harm.

Based on these arguments and supporting evidence, True Line has carried its initial burden on summary judgment, shifting the burden to Plaintiff.

Plaintiff argues that True Line is liable under the peculiar risk doctrine. Plaintiff also argues that True Line, as the general contractor, controlled the property and owed a non-delegable duty to ensure the premises were safe because Jimenez Demolition was performing ultrahazardous work. In addition, Plaintiff argues that True Line had a special relationship with Jimenez Demolition, giving rise to an expectation of protection.

True Line argues that it cannot be liable under the peculiar risk doctrine because the work at issue – “demolishing a residential back patio and putting that debris into a dumpster” (Reply pp. 5-6) – was not inherently dangerous.

“At common law, a person who hired an independent contractor to perform a task generally was not liable to third parties for injuries caused by the independent contractor's negligence. Central to this rule of nonliability ‘ “was the recognition that a person who hired an independent contractor had “ ‘no right of control as to the mode of doing the work contracted for.’ ” ’ ” (Vargas v. FMI, Inc. (2015) 233 Cal.App.4th 638, 646 (Vargas), quoting SeaBright Insurance Company (2011) 52 Cal.4th 590, 598 (Seabright).) “Although that was the common law rule, ‘ “[o]ver time, the courts . . . created so many exceptions to this general rule of nonliability that ‘ “ ‘the rule [came to be] primarily important as a preamble to the catalog of its exceptions.’ ” ’ ” ’ ” (Ibid., quoting Seabright, supra, 52 Cal.4 at p. 598.)

The doctrine of peculiar risk is one exception to the general rule of nonliability. “The doctrine of peculiar risk is an exception to the common law rule that a hirer was not liable for the torts of an independent contractor. Under this doctrine, ‘a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor's negligent performance of the work causes injuries to others. By imposing such liability without fault on the person who hires the independent contractor, the doctrine seeks to ensure that injuries caused by inherently dangerous work will be compensated, that the person for whose benefit the contracted work is done bears responsibility for any risks of injury to others, and that adequate safeguards are taken to prevent such injuries.’ ” (Vargas, supra, 233 Cal.App.4th at pp. 646-647.) “This doctrine of peculiar risk thus represents a limitation on the common law rule and a corresponding expansion of hirer vicarious liability.” (Id. at p. 647.)

“A critical inquiry in determining the applicability of the doctrine of peculiar risk is whether the work for which the contractor was hired involves a risk that is ‘peculiar to the work to be done,’ arising either from the nature or the location of the work and ‘ “against which a reasonable person would recognize the necessity of taking special precautions.” ’ ” (Privette v. Superior Court (1993) 5 Cal.4th 680, 695.) “The term ‘peculiar risk’ means neither a risk that is abnormal to the type of work done, nor a risk that is abnormally great; it simply means ‘ “a special, recognizable danger arising out of the work itself.” ’ ” (Ibid.)

The evidence does not support a conclusion that demolishing a residential back patio and using a Bobcat/backhoe to dump the dirt and debris into a dumpster does not involve a peculiar risk as a matter of law. The Court therefore finds that Plaintiff has raised a triable issue of fact concerning whether the work for which True Line hired Jimenez Demolition involved a peculiar risk that creates an exception to the general rule of nonliability for hirers of independent contractors.

The Court DENIES the motion for summary judgment filed by Defendant Duane Ladage doing business as True Line.

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

[1] In its memorandum of points and authorities, True Line also asks the Court to grant summary judgment in favor of True Line L.A., LLC. (Memorandum of Points and Authorities p. 5.) This request is not included in True Line’s notice of motion and the Court does not consider it.