Judge: Marcella O. Mclaughlin, Case: 37-2021-00033025-CU-PO-CTL, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 26, 2023

10/27/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00033025-CU-PO-CTL JOHNSON VS PCF ELECTRIC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 06/23/2023

A. Property Reserve and CBRE's motion for summary judgment is denied.

The court declines to rule on plaintiff's objections to the declaration of John Loud as they were set forth in plaintiff's counsel's declaration (ROA 212), rather than in a separate document. See CRC 3.1354(b) ('All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion.').

The court rules on Property Reserve/CBRE's evidentiary objections as follows: Objections 4-6, 21, 27, and 29 are sustained. In addition, objection 40 is sustained as to the second sentence, objection 41 is sustained as to the second sentence, objection 42 is sustained as to the phrase 'which provides building and safety standards for the building in question and Suite 500,' and objection 43 is sustained as to the phrase 'which relates to structural standards and safety protocols for the building in question including Suite 500.' The remaining objections are overruled.

Turning to the merits, in the context of summary judgment, the Privette doctrine gives rise to a rebuttable presumption that affects the burden of producing evidence. Degala v. John Stewart Co. (2023) 88 Cal.App.5th 158, 166. 'If the moving party establishes that it hired an independent contractor to perform certain work, and that the plaintiff is an employee of the contractor who was injured in the course of the work, the burden shifts to the opposing party to come forward with evidence raising a triable issue of fact as to whether an exception to the Privette doctrine applies.' Id. at 167.

In this case, while Property Reserve and CBRE have submitted evidence showing that Crew Builders was hired to perform tenant improvements, there is a triable issue of material fact regarding when this occurred. The evidence that creates this triable issue includes: (i) the declaration of Jesse Neville; (ii) the deposition of Courtney Ciurej; (iii) Property Reserve/CBRE Ex. 3; and (iv) plaintiff's Ex. 27. See Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 304 ('Any doubts about the propriety of granting a summary judgment motion must be resolved in favor of the party opposing the motion.').

B. Crew Builders and PCF's motion for summary judgment is granted.

The court rules on Crew Builders/PCF's evidentiary objections as follows: Objections 3, 5-12 are sustained. The remaining objections are overruled.

Calendar No.: Event ID:  TENTATIVE RULINGS

3036954  46 CASE NUMBER: CASE TITLE:  JOHNSON VS PCF ELECTRIC [IMAGED]  37-2021-00033025-CU-PO-CTL Crew Builders Crew Builder's motion for summary judgment is granted.

Crew Builders has submitted evidence showing that it hired plaintiff's employer, PCF, and that plaintiff was injured at the jobsite during the course of his work. (Netherton Decl. ¶¶ 2-3; FAC at ¶ 2.). This evidence is sufficient to establish that the Privette presumption applies and thus shift the burden to plaintiff to raise a triable issue of fact. See Degala v. John Stewart Co. (2023) 88 at 167.

Plaintiff has failed to raise a triable issue of material fact showing that an exception to the Privette doctrine applies. First, plaintiff cannot rely on an unpled theory of conspiracy to defeat summary judgment. '[A] summary judgment motion is directed to the issues framed by the pleadings.' Hilton K. v. Greenbaum (2006) 144 Cal.App.4th 1406, 1412. '[A] party cannot successfully resist summary judgment on a theory not pleaded[.]' Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566, 1576.

Second, plaintiff has not established that Crew Builders exercised retained control in a way that affirmatively contributed to plaintiff's injury. '[A] hirer's authority over the contracted work amounts to retained control only if the hirer's exercise of that authority would sufficiently limit the contractor's freedom to perform the contracted work in the contractor's own manner[.]' Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 275. Here, there is no evidence that Crew Builders directed the means or methods of PCF's electrical work. PCF remained entirely free to implement (or not) any precautions in its own manner, issues over which Crew Builders exerted no influence.

Third, there is no evidence that the junction box was a 'concealed hazard.' A hirer is liable for a concealed hazard only if (1) it knew, or should have known, of a latent or concealed preexisting hazardous condition on its property; (2) the independent contractor did not know and could not reasonably have discovered the hazardous condition; and (3) the hirer failed to warn the contractor about the condition. Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675. In this case, the mere fact that Crew Builders may have removed temporary lighting does not show that it knew or should have known about the mislabeled and/or misidentified junction box. There is likewise no evidence that suggesting PCF – an electrical subcontractor – could not have reasonably discovered the hazardous condition. See Acosta v. MAS Realty, LLC (2023) __Cal.App.5th __, 2023 WL 6889820, at *12 (It is well-settled that 'a contractor has a duty to inspect the work site to identify safety hazards before beginning work.').

Accordingly, the Privette doctrine bars plaintiff's claims against Crew Builders.

PCF PCF's motion for summary judgment is granted.

'California's Workers' Compensation Act (Lab.Code, § 3600 et seq.) provides an employee's exclusive remedy against his or her employer for injuries arising out of and in the course of employment.' Wright v. State of California (2015) 233 Cal.App.4th 1218, 1229.

Here, it is undisputed that plaintiff was an employee of PCF at the time of the incident; that his injury arose of the course and scope of his employment; and the filed a claim for worker's compensation benefits against PCF. (Crew Builders/PCF UMF 3, 7-8.) Plaintiff has failed to raise a triable issue of material fact that PCF's acts that 'fall outside the risks encompassed within the compensation bargain.' See Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 812. This exception only applies when the conduct is 'so extreme and outrageous that' the defendant 'in effect steeped out of its role' as contemplated by the workers' compensation scheme. Marsh & McLennan, Inc. v. Superior Court (1989) 49 Cal.3d 1, 6. The facts here do not rise to this level.

C. Judicial notice is taken as requested. Evid. Code § 452(c), (d).

Calendar No.: Event ID:  TENTATIVE RULINGS

3036954  46 CASE NUMBER: CASE TITLE:  JOHNSON VS PCF ELECTRIC [IMAGED]  37-2021-00033025-CU-PO-CTL Calendar No.: Event ID:  TENTATIVE RULINGS

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