Judge Lynne M. Hobbs, Case Number: 20STCV30782, Date: 2024-04-17 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV30782, Date: 2024-04-17 Tentative Ruling

Case Number: 20STCV30782 Hearing Date: April 17, 2024 Dept: 30

KAMAL MCHANTAF, et al. vs STATE OF CALIFORNIA, et al.

TENTATIVE

Defendant The People of the State of California, Acting By and Through The Department of Transportation’s motion for summary judgment is GRANTED. Moving party is ordered to give notice.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the 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(p)(2).) “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.” (Id.) “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.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, 159 Cal.App.4th at 467; Code Civ. Proc., §437c(c).)

Judicial Notice

The court must consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court. (Code Civ. Proc., § 437c(c).) Therefore, Defendant’s request is unnecessary and the Court declines to rule on the request.

Discussion

Defendant moves for summary judgment or in the alternative, summary adjudication, and contends, among other things, that the Privette doctrine bars Plaintiff’s second cause of action for dangerous condition of public property.

Under the Privette doctrine, “when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594.) That is because “[b]y 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.” (Id. at pp. 601-602.) Additionally, “a hirer generally has no duty to act to protect the contractor’s employee when the contractor fails in that task.” (Id. at p. 602 (citation omitted).) The remedy for the contractor's injured employee is workers' compensation, which is a cost ultimately borne by the contractor's hirer. (Id., at p. 594.)

The general rule will bar Plaintiff’s action against the hirer unless a specific exception applies. Under the Hooker exception to the Privette doctrine, the hirer of an independent contractor may be liable to the employee of the independent contractor only if Plaintiff can establish that the hirer: (1) retained control over the operative details of the contracted work, and (2) exercised that control in a way that affirmatively contributed to Plaintiff’s injuries. (Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, 202.)

Here, Defendant presents the following evidence. Caltrans was the owner of the job site where Plaintiff Kamal Mchantaf was injured. (Undisputed Material Fact (“UMF”) Nos. 2, 18, 34, and 50.) Caltrans hired Jacobs, a construction management company, along with project superintendent Atkinson Construction (“Atkinson”), who then hired multiple other contractors, subcontractors, consultants and subconsultants like PPM Group, Inc. ("PPM”), for the 60 Pavement Rehab. project. (UMF Nos. 3, 19, 35, and 51.) Plaintiff was working within the course and scope of his employment as a Transportation Engineer for subcontractor PPM, at the time of the incident. (UMF Nos. 3, 9, 19, 25, 35, 41, 51 and 57.)

In the contract for the 60 Pavement Rehab. project (“Contract”), Caltrans explicitly delegated its obligation to provide a safe work environment to the contractors, subcontractors and consultants working on the project. (UMF Nos. 4, 20, 36, and 52). Under the Contract, Caltrans delegated safety to the contractors, subcontractors and consultants on the project and in turn, by agreeing to the project, subcontractors/consultants/subconsultants (including PPM) were obligated to provide safe working conditions for its employees working on the 60 Pavement Rehab. project. (UMF Nos. 5, 21, 37, and 53.) Caltrans did not have the responsibility for setting up the barriers, cones or warning signs at the construction site. (UMF Nos. 10, 26, 42, and 58.) That responsibility was delegated to Atkinson, its employees and subcontractors/consultants on the project. (UMF Nos. 10, 26, 42, and 58.)

Further, Caltrans' employees were not responsible for the means and methods the contractors and subcontractors, like Atkinson and PPM, used to satisfy its contractual obligation to provide a safe work environment for its employees (UMF Nos 11, 27, 43, and 59). That responsibility was delegated to the contractors, subcontractors, consultants and their employees on the project. (UMF Nos 11, 27, 43, and 59). Caltrans did not get involved with directing or ordering the means and methods that PPM used to provide worker safety. (UMF Nos. 12, 28, 44, and 60). PPM purchased workers' compensation insurance that covered Plaintiff. (UMF Nos. 7, 23, 39, and 55).

The Court finds that Defendant has met its initial burden on summary judgment to show that the Privette doctrine bars Plaintiff’s second cause of action for dangerous condition of public property as the evidence shows that Caltrans hired PPM, Plaintiff’s employer, to perform the work, and Plaintiff was injured while working at the site. (See Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 644 [“Here, defendants provided the requisite factual foundation for the Privette presumption to apply. Their separate statement presented evidence that Evergreen hired plaintiff’s employer to perform work at the Evergreen Terminal, that the other defendants … were also hired by Evergreen to perform work there, and that plaintiff was injured while working at the site. This evidence was sufficient to establish that the Privette presumption applied and, therefore, shifted the burden to plaintiff to raise a triable issue of fact.”].) The burden shifts to Plaintiff to raise a triable issue of material fact.

In opposition, Plaintiff argues that the retained control exception established in Hooker applies. Plaintiff essentially argues that Defendant Caltrans retained control over jobsite safety and exercised that control in a way that affirmatively contributed to Plaintiff’s injuries. Plaintiff presents the following evidence:

Highway resurfacing projects such as the job site on the SR-60 Pomona Freeway where this incident occurred use California Highway Patrol Officers in a safety program known as Construction Zone Enhanced Enforcement Program (“COZEEP”). COZEEP provides important safety support in the form of traffic control, either in freeway maintenance or freeway construction as was occurring at the time of this incident. (Plaintiff’s Additional Material Fact (“PAMF”) No. 6.) Caltrans was responsible for making sure COZEEP CHP officers and their patrol units were at the job site on the SR-60 Pomona Freeway at the time of the incident. (PAMF No. 7.) COZEEP CHP officers and their patrol units assist in protecting construction work zones, which would include lane closures. (PAMF No. 8.)

Caltrans Resident Engineer Sepand Minovi arranged for two COZEEP CHP officers and their patrol units to assist with safety at the job site at the time of the incident. Caltrans does not know where the COZEEP officers or their patrol units were located at the time of the incident. (PAMF No. 10.)

Plaintiff contends the COZEEP CHP officers should have been instructed by Caltrans to be in a stationary position just in advance of the lane closure of SR-60 Pomona Freeway at the time of the incident. (PAMF No. 17.) Plaintiff contends the fact the three COZEEP CHP Officers took more than 9 and 13 minutes to respond to the collision indicates that they were not properly positioned in a stationary position just prior to the closure. (PAMF 18.) The mere presence of COZEEP CHP patrol cars with their flashing lights activated in a position before a lane closure is strong visual deterrent to motorists from speeding in a work zone, such as the job site in this incident. (PAMF No. 20.)

Plaintiff also argues that the failure to properly coordinate with the COZEEP CHP officers and to properly position their CHP patrol cars in a stationary position before the lane closure with their emergency light activated, to act as a visual deterrent and reinforcement of the reduced speed in the area, contributed to the occurrence of the incident. (PAMF No. 24.)

The Court finds that Plaintiff has not met his burden on summary judgment to show that there are triable issues of material fact as to whether Defendant retained the requisite control, and that Defendant exercised that retained control in a manner that affirmatively contributed to Plaintiff’s injuries.

The California Supreme Court recently clarified the concepts of “affirmative contribution” and “retained control” in Sandoval v. Qualcomm, Inc. (2021) 12 Cal.5th 256. The Court held that the retained control must be “over the methods of the work or the manner in which the contractor’s employees perform the operative details of their tasks.” (Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 275 (citation omitted).)

In addition to actually retaining control, a hirer must exercise that control in a way that affirmatively contributes to the injury. (Id. at 276) A hirer actually exercises control when it involves itself “such that the contractor is not entirely free to do the work in the contractor’s own manner.” (Id.) Affirmative contribution means that the “the hirer’s exercise of retained control contributes to the injury in a way that isn’t merely derivative of the contractor’s contribution to the injury.” “Where the contractor’s conduct is the immediate cause of injury, 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. (Id. at 277.)

Here, Plaintiff’s evidence is that Defendant retained control over safety at the construction site by making sure that COZEEP CHP officers and their patrol units were at the job site, but there is no evidence that Defendant retained control over the methods of Plaintiff’s actual work itself or the manner in which PPM’s employees perform the operative details of their tasks. There is no evidence that Defendant instructed PPM on how to provide for their employees safety.

Moreover, the evidence does not show that Defendant exercised control over safety as argued by Plaintiff. Unlike “retained control,” which is satisfied where the hirer retains essentially the right to become involved, the concept of “actual exercise” requires that the hirer, in fact, involve itself, such as through direction, participation, or induced reliance. (See, e.g., Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28, 39 [a hirer's “mere failure to exercise a power to compel the [contractor] to adopt safer procedures does not, without more, violate any duty owed to the [contract worker]”]; Hooker, supra, 27 Cal.4th at p. 209 [quoting and agreeing with this passage in Kinney].) (Sandoval v. Qualcomm Incorporated, supra, 12 Cal.5th 256, 275.)

Thus, Plaintiff’s theory that Defendant failed to properly coordinate with the COZEEP CHP officers to position their CHP patrol vehicles in a stationary position before the lane closure with their emergency lights activated merely shows the failure to exercise a power to adopt safety procedures. There is no evidence presented which would show direction, participation or induced reliance. A contractor retaining control over safety conditions at a worksite alone does not constitute retention of control that would impose liability on the hiring contractor without a showing that the hirer’s exercise of retained control affirmatively contributed to the employee’s injuries. (Hooker, supra 27 Cal.4th 198, 202.)

Because Plaintiff failed to raise a triable issue of material fact, the Court finds that Privette bars Plaintiff’s cause of action for dangerous condition of public property. Defendant is entitled to summary adjudication as to this cause of action.

Second Cause of Action for Loss of Consortium

“A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.” (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927.)

As Defendant is entitled to judgment on the second cause of action for dangerous condition of public property, Defendant is also entitled to judgment on the second cause of action for loss of consortium.

Conclusion

Based on the foregoing, Defendant’s motion for summary judgment is GRANTED.