Judge: Olivia Rosales, Case: BC719558, Date: 2022-08-18 Tentative Ruling
Case Number: BC719558 Hearing Date: August 18, 2022 Dept: SEC
ALCALA v.
PERFORMANCE TEAM LLC
CASE NO.: BC719558
HEARING: 08/18/22
JUDGE: OLIVIA ROSALES
#7
TENTATIVE ORDER
Defendants/Cross-Defendants/Cross-Complainants’
GOLDEN SPRINGS DEVELOPMENT COMPANY, LLC and THRIFTY OIL CO.’s Motion for
Summary Judgment is GRANTED.
Moving Party to give notice.
This premises liability action was filed by Plaintiff
ARMANDO ALCALA on August 23, 2020. On May 15, 2019, the operative First Amended
Complaint (“FAC”) was filed.
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.)
The FAC asserts the following causes of action: (1) Premises
Liability; (2) General Negligence; (3) Violation of Labor Code §3700; (4)
Strict Liability; and (5) Breach of Implied Warranty.
Defendants/Cross-Defendants/Cross-Complainants’ GOLDEN
SPRINGS DEVELOPMENT COMPANY, LLC (“Golden Springs”) and THRIFTY OIL CO.
(“Thrifty Oil”) (collectively “Moving Parties”) move for summary judgment. The
Court notes that only the first and second claims are asserted against the
Moving Parties.
Moving Parties argue that summary judgment should be granted
on the basis that Plaintiff’s claims are barred by Privette v. Sup. Ct.
(1993) 5 Cal.4th 689 and its progeny. Moving Parties specifically argue that:
“1) the Skylight through which Plaintiff fell was an open and obvious hazard;
2) neither Plaintiff nor his employer (Advanced Restoration) took steps to
minimize the risk of working near skylights; 3) neither Golden Springs nor
Thrifty Oil supervised Plaintiff’s work nor did they instruct Plaintiff about
the manner of which he should perform the work; and 4) pursuant to California
Law, the hirer of an independent contractor has no duty to protect the
employees of independent contractors where the employee is injured by a known
hazard that he is likely to encounter in doing his job (a ‘peculiar risk’).”
(Motion 7:2-9.)
In Opposition, Plaintiff argues that Privette is
inapplicable, and that the Moving Party’s proffered evidence is inadmissible.
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.]
Moving Parties’ proffer the following evidence:
·
On March 23, 2017, Advanced Restoration Group,
through Rafael Garcia, entered into a contract with Golden Springs Development
Company, LLC to clean solar panels on the roofs of various buildings in the
Golden Springs Development Park in Santa Fe Springs, CA. (SS No. 6.)
·
On June 21, 2019, Plaintiff (through Advanced
Restoration Group) was tasked with cleaning solar panels on the roof of a
warehouse located at 12816 Shoemaker Ave. Santa Fe Springs, CA. (SS No. 4.)
·
As part of the March 23, 2017 contract, Advanced
Restoration Group agreed to furnish “all labor, equipment, supplies and
materials” to perform the cleaning of the solar panels and did furnish all
labor, equipment, supplies and materials to perform the job. (SS No. 7.)
·
On June 5, 2018, Advanced Restoration Group,
through its owner Rafael Garcia, entered int a subsequent contract with Golden
Springs Development Company, LLC, to clean solar panels, with the same
requirements regarding: (1) The furnishing of all labor, equipment, supplies
and materials to perform the work; and (2) Maintaining Insurance. (SS No. 9.)
·
All of the solar panel cleaning work called for
by the contracts between Advanced Restoration and Golden Springs Development
Company, LLC was performed by employees of Advanced Restoration Group. (SS No.
12.)
·
At the time of the Subject Incident, Ricardo
Martinez—an employee of Advanced Restoration Group— was supervising the cleaning
the solar panels. (SS Nos. 13-14.)
·
Plaintiff was told by Ricardo Martinez to “not
get near the skylights.” (SS No. 16.)
·
Plaintiff knew about and was concerned about the
presence of skylights on the roof he was working on. (SS Nos. 17-18.)
·
Rafael Garcia recognized the skylights to be a
safety hazard. (SS No. 21.)
·
Nobody besides Advanced Restoration employees
instructed Plaintiff on how to do his job on the date of the Subject Incident.
(SS No. 22.)
·
There was no supervision or oversight of the
work, which plaintiff was doing on the date of the incident, by either Golden
Springs or Thrifty Oil. (SS No. 23.)
·
No employee of Golden Springs or Thrifty Oil
performed any of the subject work, nor were any present on the subject roof
when the work was being performed. (SS No. 25.)
In Opposition, Plaintiff proffers the following rebuttal evidence:
·
Performance Team and Golden Springs were parties to
an industrial lease agreement since June 1, 2001, and in effect on the date of
the Subject Incident. (PMF No. 6.)
·
Among the terms of the lease agreement, Performance
Team was obligated to keep and maintain the interior and exterior of the leased
building. (PMF No. 7.)
·
Pursuant to the terms of the lease agreement under
section 7.1, enumerating Tenant’s Obligations, Performance Team was
specifically obligated to maintain and repair the skylights and to keep the
skylights in a safe condition. (PUMF Nos. 8-9.)
·
Despite the language of the lease agreement stating
the maintenance of the exterior of the building is to be the responsibility of
Performance Team, Faye Lengyel—an employee for Thrifty Oil stated during her
deposition that Golden Springs maintains the skylights as part of the exterior
roof. (PUMF No. 15.)
·
The skylight which Plaintiff fell through did not
have any warning signs around to warn of the skylight’s potential dangerous
condition. (PUMF Nos. 20-22.)
With respect to “control,” Plaintiff submits testimony which stands for
the proposition that the Moving Parties might have retained some control over
the roof because Golden Springs maintained the exterior, roof, and skylights of
the Subject Premises. (PUMF No. 15.) This argument is irrelevant. It is
undisputed that the Moving Parties had no control over Plaintiff’s access to
the Subject Roof, the performance of Plaintiff’s work, safety precautions, or
supervision of Plaintiff’s work. The Court does not find that Plaintiff has
raised a triable issue of material fact as to whether the Moving Parties “controlled”
access to the roof where the Subject Accident occurred or “controlled”
Plaintiff’s method of working.
Moreover, Plaintiff has submitted no evidence to suggest that the Moving
Parties affirmatively contributed to Plaintiff’s alleged injuries. There is no
evidence submitted to show that the Moving Parties actively participated in how
Plaintiff was to perform his work relating to the cleaning of solar panels. Rather,
as indicated above, the uncontroverted evidence proffered by the Moving Parties
indicates that Plaintiff’s employer communicated to Plaintiff about how to
complete the job and provided Plaintiff with the tools to complete the job.
Plaintiff fails to raise a triable issue as to whether the Moving Parties affirmatively
contributed to the Plaintiff’s injuries.
Failure to Disclose a
Known Dangerous Condition
“[T]he hirer as landowner may be independently liable to the contractor’s
employee, even if it does not retain control over the work, if (1) it knows or
reasonably should know of a concealed, pre-existing hazardous condition on its
premises; (2) the contractor does not know and could not reasonably ascertain
the condition; and (3) the landowner fails to warn the contractor.” (Kinsman
v. Unocal Corp. (2005) 37 Cal.4th 659, 675.) “When the landowner knows or
should know of a concealed hazard on its premises, then under ordinary premises
liability principles, the landowner may be liable for a resultant injury to
those employees.” (Id. at 674.) Where there is a known hazard that can
be addressed through reasonable safety precautions on the part of the
contractor, the hirer can delegate to the contractor the responsibility for
ensuring the safety of its own workers; and the hirer is no liable to the
contractor’s employees if the contractor fails to do so. (Id. at
673-674.)
The Court finds that the Moving Parties have made prima facie showing
that Plaintiff cannot establish a failure to disclose a known, concealed, dangerous
condition exception. They have shown that the alleged hazardous condition, the
skylights, does not result in liability for the Moving Parties because the
skylights were not a concealed or latent condition. This is sufficient to shift
the burden to Plaintiff to raise a triable issue of fact.
Plaintiff fails to raise a triable issue of material fact in Opposition.
It is undisputed that Plaintiff was told by Ricardo Martinez to “not get near
the skylights”; Plaintiff knew that there were skylights on the roof; and
Plaintiff admitted that he was concerned about the presence of skylights on the
roof he was working on. (SS Nos. 16-18.)
Non-delegable Duty
In Opposition, Plaintiff argues that summary judgment should be denied
because the Moving Parties/landowners had a non-delegable duty to maintain the
premises in a reasonably safe condition.
Even if
the Moving Parties are found to have owed a non-delegable duty to the
Plaintiff, “the liability of a hirer for injury to employees of independent
contractors caused by breach of a non-delegable duty imposed by statute or
regulation remains subject to the Hooker test. [Cite.] Under that test,
the hirer will be liable if its breach of regulatory duties affirmatively
contributes to the injury of a contractor’s employee. [Citations.]” (Padilla
v. Pomona College (2008) 166 Cal.App.4th 661, 673.) Khosh v. Staples
Construction, Inc. (2016) 4 Cal.App.5th 712 states that “even where there
is a breach of a nondelegable duty the plaintiff must show that the breach
affirmatively contributed to his injury.” (Id. at 721.)
As
indicated above, Plaintiff has failed to raise a triable issue as to whether
the Moving Parties affirmatively contributed to the Plaintiff’s injuries.
For the reasons stated above, Defendant’s Motion for Summary
judgment is GRANTED.
Plaintiff’s Evidentiary Objections to the Declaration of Faye Lengyel
¶12. Sustained
¶13. Overruled
¶14. Overruled
¶15. Overruled