Judge: Olivia Rosales, Case: BC719558, Date: 2022-09-01 Tentative Ruling

Case Number: BC719558    Hearing Date: September 1, 2022    Dept: SEC

ALCALA v. PERFORMANCE TEAM LLC

CASE NO.:  BC719558

HEARING:  09/01/22

JUDGE:  OLIVIA ROSALES

#8

TENTATIVE ORDER

Defendant PERFORMANCE TEAM, LLC’s Motion for Summary Judgment is GRANTED.

Moving Party to give notice.

At Plaintiff’s request, this matter was continued to September 1, 2022 from April 21, 2022 pursuant to CCP §437c(h). This Court’s April 21, 2022 Order indicated that Supplemental Opposition and Supplemental Reply may be filed and served in accordance with the new hearing date. As of August 31, 2022, no Supplemental Briefs have been filed.

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.

Defendant PERFORMANCE TEAM, LLC (“Performance Team”) moves for summary judgment. The Court notes that only the first and second claims are asserted against Performance Team.

Performance Team argues that it is entitled to summary judgment because it did not owe Plaintiff a legal duty, which is a necessary element of Plaintiff’s claims for premises liability and general negligence.

In Opposition, Plaintiff argues that there are triable issues of material fact as to whether Performance Team owed Plaintiff a legal duty of care.

Any possessor of land, whether an owner or a tenant, must act reasonably to prevent injury to others and is liable to all persons who may be inured as a result of the failure to act as a reasonable person under the circumstances, whether the injury occurred on or off the premises. (Cal. Civ. Code §1714(a); Rowland v. Christian (1968) 69 Cal.2d 108, 119; Pfingst v. Mayer (1949) 93 Cal.App.2d 265, 272-274.)  The basis for premises liability is knowledge of a dangerous condition or activity and the power to prevent an injury to a person on the premises. (See Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676.) A critical factor is whether the party in possession of the property also had control over the dangerous condition. (See Soto v. Union Pacific Railroad (2020) 45 Cal.App.5th 168, 178.)

It is undisputed that Performance Team is not the owner of the Subject Premises where the Subject Accident occurred. “Since May 2001, Performance Team has been a tenant at the Premises with Golden Springs serving as its landlord.” (SS No. 2.) It is also undisputed that Performance Team did not hire Plaintiff/Plaintiff’s employer. “Advanced Restoration Group was hired by Golden Springs and tasked to clean the solar panels on the roof of the Premises.” (SS No. 15.) Although the Lease Agreement between Performance Team and Golden Springs states that Performance Team had control over the roof and subject skylight, Performance Team proffers undisputed evidence showing that Golden Springs exclusively controlled the roof the Premises during Performance Team’s tenancy. Importantly, Plaintiff is not a party to the Lease Agreement, and is not privy to the Owner/Lessee’s interpretation of the Lease. Golden Springs admits that it maintained the exterior, roof, and skylights of the Subject Premises.

Where Performance Team did not control the roof where the Subject Accident occurred, the Court cannot find that Performance Team owed Plaintiff a duty as a matter of law.

In Opposition, Plaintiff also argues that summary judgment should be denied because Performance Team/occupier of the Subject Property had a non-delegable duty to maintain the premises in a reasonably safe condition.

Even if Performance Team is 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.)

Plaintiff fails to raise a triable issue as to whether Performance Team controlled Plaintiff’s work, or affirmatively contributed to the Plaintiff’s injuries.

For the reasons stated above, the Motion for Summary Judgment is GRANTED.

Plaintiff’s Evidentiary Objections:

No. 1. Sustained

No. 2. Overruled

Performance Team’s Evidentiary Objections:

No. 1. Sustained

No. 2. Sustained

No. 3. Sustained