Judge: Olivia Rosales, Case: 20STCV38179, Date: 2022-09-15 Tentative Ruling

DEPARTMENT SE-C LAW & MOTION PROCEDURES ARE AS FOLLOWS: APPEARANCES: The Court will hear oral arguments on all matters at the scheduled time of hearing. If all counsel intend to submit on the Tentative Order and do not want oral argument, please advise the clerk, in Department “C”, by calling (562-345-3702). If all sides submit on the Tentative Order and the clerk is so advised, the Tentative Order will become the final order of the court and the prevailing party shall give written Notice of Ruling per CRC 3.1312. If the Moving and Responding parties do not agree to submit on the Tentative Order, the motion will be called as calendared for hearing. There is no need to contact Department “C”, as the matter will remain on calendar for hearing. If the Moving party does not call Department “C” to submit on the Tentative Order and there is no appearance by any party, then the motion(s), at the Court’s discretion, may be taken off calendar without ruling on the motion(s). ORDERS: The minute order reflecting the Court’s Order will constitute the final Order. No additional orders should be submitted to the Court for signature unless required by law or by the Court. Prevailing party shall give written Notice of Ruling per CRC 3.1312. Minute orders, which constitute the final Order of the Court, will only be sent to the parties via U.S. mail  for the following: OSC re: sanctions, OSC re: contempt or matters taken under submission after oral arguments or briefing. Counsel or parties may request copies of all other minute orders/final orders either at the clerk’s office or in writing. If a request is in writing, a self-addressed stamped envelope and the appropriate fee for copies shall be submitted.

Case Number: 20STCV38179    Hearing Date: September 15, 2022    Dept: SEC

NAPIER v. CAMINO REAL FOODS, INC.

CASE NO.:  20STCV38179

HEARING:  09/15/22

JUDGE:  JOHN A. TORRIBIO

#6

TENTATIVE ORDER

     I.        Defendant CAMINO REAL FOODS, INC.’s Motion for Summary Judgment as to the Complaint filed by NORTH RIVER INSURANCE COMPANY is DENIED. The Alternative Motion for Summary Adjudication is DENIED.

    II.        Defendant CAMINO REAL FOODS, INC.’s Motion for Summary Judgment as to the Complaint filed Plaintiff DORNETTA NAPIER is DENIED. The Alternative Motion for Summary Adjudication is DENIED.

Opposing Parties to give Notice

Plaintiff DORNETTA NAPIER’s Joinder to Plaintiff NORTH RIVER INSURANCE COMPANY’s Opposition to Defendant CAMINO REAL’s Motion for Summary Judgment is GRANTED.

The subject action (20STCV38179) for premises liability was filed on October 5, 2020. On December 7, 2020, the later-filed and related action, The North River Insurance Company v. Camino Real Foods, Inc. (20STCV46902) was filed. The cases were consolidated on July 6, 2021, with the subject action designated as the lead case. (See 07/06/21 Min. Order.)

Plaintiff DORNETTA NAPIER’s (“Napier”) Complaint alleges the following relevant facts: “While plaintiff was at defendant’s premises, located at 2638 E. Vernon Avenue, Vernon, CA, 90058, plaintiff was struck and injured as a result of an unsafe, dangerous and defective conditions on the said premises thereby causing the herein described injuries and damages to plaintiff. [¶] Defendant, and each of them, failed to warn of such dangerous and unsafe condition or put up warning signs. Defendant, and each of them, in the exercise of ordinary care, knew or should have known of the dangerous condition of their premises.” (Napier Complaint, Prem.L-1.) “Plaintiff sustained bodily injuries when a defective gate came of the track and crushed plaintiff’s body.” (Napier Complaint, GN-1.)

Napier’s Complaint asserts the following causes of action: (1) Premises Liability; and (2) General Negligence.

Plaintiff THE NORTH RIVER INSURANCE COMPANY (“North River”) seeks subrogation of benefits it paid to Napier as a result of the Subject Accident. North River alleges the following relevant facts, “On March 14, 2019, [Napier] was employed by Superior Protection Services…. At said time and place, the Subject Premises and a gate on the subject premises were owned, managed, inspected, maintained, repaired, operated, constructed, supervised, altered, and controlled by Defendants, and each of them. At the time of the incident, [Napier] was near a gate when it suddenly, and without warning, came off its track, crushing [Napier’s] body….” (North River Complaint, PL-1.) North River asserts the following causes of action: (1) Premises Liability; and (2) General Negligence.

The FAC alleges the following relevant facts: “On or about June 21, 2018, Plaintiff was lawfully within the PREMISES. Specifically, Plaintiff’s employer, Defendant Advanced Restoration, was hired and tasked to clean the solar panels on the roof of warehouse number 2 on the PREMISES. While performing the work, Plaintiff fell down through one of the skylights, which was a dangerous condition for lack of installment of any guiderails, warnings, or other mandatory safety precautions.” (FAC ¶13.)

In separate, but substantively identical Motions, Defendant CAMINO REAL FOODS, INC. (“CRF”) moves for summary judgment as to Napier’s Complaint and North River’s Complaint, or alternatively, summary adjudication on the following grounds:  the Premises Liability claims have no merit; the General Negligence claims have no merit; and CRF did not owe a duty to Napier.

CRF argues that summary judgment should be granted on the basis that Plaintiffs’ claims are barred by Privette v. Sup. Ct. (1993) 5 Cal.4th 689 and its progeny. CRF specifically argues that: (1) the allegedly defective gate cannot constitute a concealed hazard giving rise to a duty to warn under Privette; and (2) CRF did not retain control over the manner in which SPS closed gates nor did it affirmatively contribute to the gate failing.  

In Opposition, Napier argues that Privette is inapplicable because: (1) CRF maintained complete and total control over the maintenance and repairs of the subject gate, knew of the gate’s dangerous condition, and failed to exercise its control to minimize the risk to Napier; (2) CRF affirmatively contributed to Napier’s injuries by interfering with the means and methods by which her work was to be accomplished; And (3) CRF provided Napier with broken, dangerous, and defective equipment.

In Opposition, North River argues that summary judgment should be denied because CRF maintained control of the Subject Premises’ safety because it did not explicitly or impliedly delegate its statutory duty to ensure a safe jobsite; and because CRF affirmatively contributed to the incident by failing to correct dangerous conditions present at the Subject Premises.

The Privette Doctrine

A hirer of a contractor owes no duty of care to the contractor’s injured employee because the employee has an alternative remedy through the workers’ compensation system. (Privette v. Superior Court (1993) 5 Cal.4th 689, 696-702.) “[W]hen the person injured by negligently performed contracted work is one of the contractor’s own employees, the injury is already compensable under the workers’ compensation scheme and therefore the doctrine of peculiar risk should provide no tort remedy, for those same injuries, against the person who hired the independent contractor.” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267.) It is “unfair to subject the hirer to civil liability while the actor primarily responsible for the injury was subject only to the limited liability imposed by workers’ compensation law. (Browne v. Turner Construction Co. (2005) 127 Cal.App.4th 1334, 1342.) Generally, an injured employee of an independent contractor cannot sue the landowner who hired the contractor. (Seabright Ins. Co. v. U.S. Airways, Inc. (2011) 52 Cal.4th 590, 594.) The remedy for injuries to the contractor’s employees is worker’s compensation. (Id. at 598.)

Since Privette, courts have extended its reasoning to preclude liability for owners of property where injuries to an employee of an independent contractor occurred where there is no evidence that the property owner affirmatively contributed to the injury. (See Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, 203-209.; see also Gonzalez v. Mathis (2021) 12 Cal.5th 29.) There are two exceptions to Privette. (See Khosh v. Staples Construction Co. (2016) 4 Cal.App.5th 712, 716-717.) “One allows a contractor’s employee to sue the hirer of the contractor when the hirer (1) retains control over any part of the work and (2) negligently exercises that control (3) in a manner that affirmatively contributes to the employee’s injury.” (Id at 717.) “Another exception permits recovery when the hirer (1) has a nondelegable duty (2) which it breaches (3) in a manner that affirmatively contributes to the injury.” (Ibid.) 

Thus, in order to successfully argue Privette, Moving Parties must show that no exceptions to Privette apply— that they did not retain control over the Plaintiff/the Subject Property, and did not affirmatively contribute to Plaintiff’s injuries. (See Hooker at 198.); or that Moving Parties did not conceal a known hazard.

          Control/Affirmative Contribution

An employer may be liable for injuries suffered by an independent contractor’s employees because of unsafe conditions at the worksite which the employer controlled. (See McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 225-226 [claim that employer of independent contractor requested use of unsafe equipment held sufficient to show employer contributed to injuries suffered by contractor’s employees].); (but see Hooker v. Dept. of Transp. (2002) 27 Cal.4th 198, 214-215 [claim that employer of independent contractor permitted construction vehicles to pass by crane operator creating unsafe condition was not sufficient to show employer contributed to the contractor’s employees’ injuries.].) The principal employer is liable only insofar as its exercise of retained control affirmatively contributed to the independent contractor's employee's injuries: “Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished.”  (Hooker v. Department of Transp., supra, 27 Cal.4th at 215.) [internal quotes omitted]; (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1348 [no evidence to show general contractor controlled “means and methods” of subcontractor's employee's work.].) 

“When the employer directs that work be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work, an affirmative contribution occurs. When the hirer does not fully delegate the task of providing a safe working environment but in some manner actively participates in how the job is done, the hirer may be held liable to the employee if its participation affirmatively contributed to the employee's injury. [¶] By contrast, passively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution. The failure to institute specific safety measures is not actionable unless there is some evidence that the hirer or the contractor had agreed to implement these measures. Thus, the failure to exercise retained control does not constitute an affirmative contribution to an injury. Such affirmative contribution must be based on a negligent exercise of control. In order for a worker to recover on a retained control theory, the hirer must engage in some active participation.”  (Tverberg v. Fillner Constr., Inc. (2012) 202 Cal.App.4th 1439, 1446.) [internal citations omitted.]

CRF proffers the following evidence:

·        Napier was struck by a defective gate that game off its track. (CRF v. Napier SS No. 1.)

·        At the time of the Subject Accident, Napier was on the job as a security guard for Superior Protection Services, CA, Inc. (“SPS”). (CRF SS No. 2.)

·        SPS contracted with CRF to provide security services. (CRF SS No. 3.)

·        SPS was required to report all maintenance issues at the property to SPS. (CRF v. Napier SS. No. 4.)

·        Napier’s job duties included shutting the gate. (CRF SS No. 5.)

·        CRF did not provide SPS with directions regarding how to move the gate. (CRF SS No. 6.)

·        CRF did not provide SPS with equipment to move the gate. (CRF SS No. 7.)

In Opposition, Napier and North River separately proffer the following rebuttal evidence:

·        SPS was required to report all maintenance issues at the Subject Property to CRF, not SPS. (Napier RUMF No. 4; North River RUMF No. 4.)

·        CRF directed Napier to open, close, and operate a broken gate. (Napier RUMF No. 6.)

·        CRF provided directions to SPS on when to open and close the gate and under what circumstances the gate was to be opened or closed. (North River RUMF No. 6.)

·        The gate is the equipment provided by CRF to SPS in order to enable Napier to perform her job duties, which included securing the Premises, by opening and closing the broken gate. (Napier RUMF No. 7.) 

Additionally, Napier and North River proffer additional disputed material facts, which include:

·        Each time the gate came off the tracks Napier reported it to CRF as required by the Contract between SPS and CRF. (Napier AMF No. 9.)

·        SPS was not required to fix or cure the maintenance issues; only to make CRF aware of the issues so that they could fix or cure the issues themselves. (Napier AMF No. 10.)

·        Pursuant to CRF’s directions, SPS notified CRF of dangerous conditions that they noticed at the premises. (North River AMF No. 5.)

·        Instead of repairing or replacing the gate, CRF simply put the gate back on its tracks each time, while still requiring SPS to open and close the gate daily. (Napier AMF No. 14.)

·        At the time the gate fell on Napier, CRF had already received notice in the form of emails from SPS and from verbal, constructive notice, from Napier herself, in having to ask for help when the gate fell prior to the Subject Incident. (North River AMF. No. 14.)

·        CRF did not taken any action to repair or replace the gate until a few days after Napier’s alleged injury. (Napier AMF No. 17; North River AMF No. 15.)

·        Both SPS and CRF employees utilized and handled the subject gate. (North River AMF No. 7.)

·        CRF had policies and requirements for when the gate was supposed to be opened, including what time the gate was to be opened or under what conditions the gate was to be closed. (North River AMF No. 8.)

With respect to “control,” the opposing parties submit Napier’s testimony and the Agreement between SPS and CRF which support the proposition that CRF might have retained some control over the maintenance of the gate and/or when SPS’s employees were supposed to open or close the gate. Moreover, the parties heavily dispute whether CRF or SPS had exclusive control over the gate. At minimum, it appears that both parties may have shared access to/control over the opening and closing of the gate.

Moreover, the Opposing Parties have submitted sufficient evidence to suggest that CRF may have affirmatively contributed to Napier’s alleged injuries. Evidence has been submitted which shows that CRF actively participated in how Napier/SPS were to perform their work relating to the opening and closing of the subject gate, and that CRF was responsible for maintaining the gate. The Post Instructions attached to the Agreement between CRF and SPS expressly state that SPS was supposed to report issues on the property to CRF, and articulates when gates should be closed or locked, who is responsible for opening certain gates, etc. (See North River Ex. E.) Moreover, Napier testifies that, at least on some occasions, CRF would tell her how to do her job. (See North River Ex. C., Napier Depo, 58:8-18.) Where CRF purportedly failed to repair the gate, continuously replaced the defective gate onto its tracks, and provided Napier with instructions about how and when to open and close the gate, there are triable issues as to whether CRF affirmatively contributed to Napier’s injuries.

Viewing the evidence in a light most favorable to the Opposing Parties/Plaintiffs—the Motions are DENIED.

CRF’s Evidentiary Objections to the Declaration(s) of Mark J. Burns:

Nos. 1-26. Sustained