Judge Peter A. Hernandez, Case 19STCV36240 2022-10-19 Tentative Ruling

Defendant KPRS Construction Services, Inc.’s Motion for Summary Judgment is GRANTED.

Plaintiff Jorge Chavez Soto (“Plaintiff”) alleges as follows: On August 7, 2018, Plaintiff was employed as a construction worker performing work on a roof of a building under construction. While working on the roof, Plaintiff fell approximately 20-30 feet below when he stepped through an unsecured hole and sustained injuries.

On October 29, 2019, Plaintiff filed a First Amended Complaint, asserting causes of action against Defendants C&L Refrigeration Corporation (“C&L”), Angle Ironworks, Inc. (“Angle”) and Does 1-50 for:

On January 3, 2020, Plaintiff filed an “Amendment to Complaint,” wherein GB Metal Fabricators, Inc. (“GB Metals”) was named in lieu of Doe 1.

On March 11, 2020, GB Metals filed a cross-complaint, asserting causes of action against C&L, Angle and Moes 1-50 for:

On March 12, 2020, Angle filed a cross-complaint, asserting causes of action against GB Metal and Roes 1-10 for:

On April 2, 2020, C&L filed a cross-complaint, asserting causes of action against Roes 1-50 for:

On October 13, 2020, Plaintiff filed an “Amendment to Complaint,” wherein KPRS Construction Services, Inc. (“KPRS”) was named in lieu of Doe 2.

On March 3, 2021, this case was transferred from Department 27 of the Personal Injury Court to this instant department.

On March 12, 2021, Plaintiff filed an “Amendment to Complaint,” wherein C&L was named in lieu of Doe 3.

The Final Status Conference is set for March 21, 2023. Trial is set for April 4, 2023.

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 a judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119 [emphasis theirs].)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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, subd. (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.” (Code Civ. Proc., § 437, subd. (p)(2).) “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.” (Id. at 467; Code Civ. Proc., § 437c, subd. (c).)

Plaintiff’s response to Defendant’s separate statement impermissibly includes objections (i.e., see Nos. 23-25, 27, 28 and 30.)

“[A] separate statement is not evidence; it refers to evidence submitted in support of

or opposition to a summary judgment motion. (Jackson v. County of Los Angeles (1997) 60

Cal.App.4th 171, 178, fn. 4 [emphasis theirs].) Plaintiff’s evidentiary objections contained in the

The court rules on KPRS’ Request for Judicial Notice (“RJN”) as follows: Granted as to Exhibit 1 (i.e., complaint filed October 10, 2019); Granted as to Exhibit 2 (i.e., FAC filed October 29, 2019); Granted as to Exhibit 3 (i.e., Amendment to Complaint filed October 13, 2020) and Granted as to Exhibit 4 (i.e., answer filed May 25, 2021).

On October 29, 2019, Plaintiff filed a FAC, asserting causes of action against C&L Angle and Does 1-50 for (1) Negligence and (2) Premises Liability. On October 13, 2020, Plaintiff filed an “Amendment to Complaint,” wherein KPRS was named in lieu of Doe 2. Plaintiff has alleged as follows: On or about August 7, 2018, Plaintiff was hired by “Defendants”[2] to perform construction work at a commercial building located at 343 Lena Road in San Bernardino (“subject premises”) owned, controlled and occupied by “Defendants.” (FAC, ¶¶ 11 and 12.) While Plaintiff was cleaning the roof of the subject premises in preparation of cementing same, Plaintiff fell approximately 20-30 feet when he stepped through a hole that had been created by “Defendants.” (Id., ¶ 13.)

KPRS contends that it cannot be liable for Plaintiff’s general negligence and premises liability causes of action[3] pursuant to Privette v. Superior Court (1993) 5 Cal.4th 689.

“At common law, a person who hired an independent contractor to perform a task generally was not liable to third parties for injuries caused by the independent contractor’s negligence.” (Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078, 1086.) “One exception to the common law rule that a hirer is not liable for the torts of an independent contractor is the doctrine of peculiar risk; under this doctrine, ‘a person who hires an independent contractor to perform work that is inherently dangerous can be held liable in tort damages when the contractor’s negligent performance of the work causes injuries to others.” (Id., quoting Privette, supra, 5 Cal.4th at 691.)

In Privette, a property owned hired an independent contractor to install a new tar and gravel roof on his duplex. An employee of the independent contractor sustained injuries after he fell off a ladder and was burned by hot tar. The California Supreme Court declined to extend the peculiar risk doctrine to injured employees of independent contractors; in doing so, the court explained: “[T]he peculiar risk doctrine seeks to ensure that injuries caused by contracted work will not go uncompensated, that the risk of loss for such injuries is spread to the person who contracted for and thus primarily benefited from the contracted work, and that adequate safety measures are taken to prevent injuries resulting from such work. But in the case of on-the-job injury to an employee of an independent contractor, the workers’ compensation system of recovery regardless of fault achieves the identical purposes that underlie recovery under the doctrine of peculiar risk: it ensures compensation for injury by providing swift and sure compensation to employees for any workplace injury; it spreads the risk created by the performance of dangerous work to those who contract for and thus benefit from such work, by including the cost of workers' compensation insurance in the price for the contracted work; and it encourages industrial safety.” (Id. at 701.)

When a defendant moves for summary judgment based on the Privette doctrine, the defendant bears the initial burden of establishing the foundational facts justifying its application. (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 644-645.) If defendant does so, the burden shifts to Plaintiff to raise a triable issue of material fact by, for instance, presenting evidence that one of the exceptions applies. (Id.)

Here, it is undisputed that KPRS was the general contractor at the project (Fact No. 11), that Plaintiff was acting as an employee for AG Construction at the time of the incident (Fact No. 7), that on November 15, 2017 KPRS and AG Construction entered into a Subcontract Master Agreement (“Master Agreement”) (Fact No. 8) and that on March 8, 2018, KPRS and AG Construction entered into a Subcontract Work Order (“Work Order”) (Fact No. 9.) The foregoing evidence is sufficient to establish that the Privette presumption applies.

The court determines that the burden has shifted to Plaintiff to raise a triable issue of fact. Plaintiff contends it is not precluded by Privette from pursuing a direct liability claim against KPRS because, pursuant to Hooker v. Department of Transportation (2002) 27 Cal.4th 198, “a hirer may be liable when it retains control over any part of the independent contractor's work and negligently exercises that retained control in a manner that affirmatively contributes to the worker's injury.” (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 38.)

The Hooker exception, however, “is not met solely because a hirer is aware that there is an unsafe condition on the worksite or knows that the contractor is engaging in an unsafe work practice. Something more is required, such as ‘“inducing injurious action or inaction through actual direction;”’ directing ‘“the contracted work be done by use of a certain mode;”’ or interfering with ‘“the means and methods by which the work is to be accomplished.”’” (Id. at 42 [citations omitted].) “The plaintiff in such cases must establish not only that the hirer retained control over the contracted work, but also that the hirer actually exercised that retained control in a manner that affirmatively contributed to the contract worker's injury.” (Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 274.)

“A hirer's mere authority to prevent or correct a contractor's unsafe practices (retained control) does not, without more, limit the contractor's delegated control over the work. But to the extent that the hirer exerts influence over the contracted work such that the contractor is not entirely free to perform the work in the contractor's own manner (actual exercise), the hirer does limit the contractor's delegated control. Still, we impose a duty only where that limitation itself contributed to the worker's injury (affirmative contribution), rather than where that limitation incidentally created an opportunity for the hirer to prevent the contractor's injury-causing conduct.” (Id. at 278.)

“A hirer ‘retains control’ where it retains a sufficient degree of authority over the manner of performance of the work entrusted to the contractor. . . 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. ([Rest.3d Torts, Liability for Physical and Emotional Harm,] § 56, com. c, p. 392; see e.g., Grahn v. Tosco Corp. (1997) 58 Cal.App.4^th 1373, 1395 [‘the “control” necessary to give rise to a duty of care under Restatement [Second of Torts] section 414’ is ‘not simply general control over the premises,’ but control ‘over the methods of the work or the manner in which the contractor’s employees perform the operative details of their tasks’], disapproved of on other grounds in Hooker, supra, 27 Cal.4th at p. 214. . .”). (Sandoval, supra, 12 Cal.5th at 275.) “[T]he pivotal question here is whether the hirer retained a sufficient degree of control over the manner of performing the contracted work.” (Id.)

Here, Plaintiff does not allege that KPRS retained control over AG Construction or Plaintiff’s work. It is undisputed that AG Construction’s scope of work included installing the concrete on the roof deck where the accident occurred. (Fact No. 10.) It is undisputed that AG Construction was an independent contractor with the responsibility of “maintaining complete control over its employees” as well as the “means and methods” of performing its work. (Fact No. 12.) It is undisputed that AG Construction contracted to be “solely responsible” for “conducting operations . . . to avoid risk of harm to the health and safety of persons and property and for inspecting and monitoring all its equipment, materials and work practices . . .” (Fact No. 13), to assume “all responsibility and liability with respect to all matters regarding the safety and health of its employees” (Fact No. 14), to “adhere to all Federal, State, and Local Safety Codes and Regulations” (Fact No. 15), to ensure safe working conditions existed at the Project (Id.), to ensure that “all workers are in compliance with all safety codes and regulations on an on-going basis” (Id.), to “inspect all areas where subcontractor’s employees . . . are working” (Id.), to “take the lead in recognition and abatement of hazardous situations” (Id.) and to comply with Cal-OSHA Standards and its own Safety Program (Fact No. 16). Nowhere in any of the contract documents is responsibility for safety of AG Construction’s employees assumed by KPRS.

Additionally, “even if hirers may owe unrelated third parties a retained control duty based on retained control alone, hirers owe the contract workers a retained control duty only with something more. Contract workers must prove that the hirer both retained control and actually exercised that retained control in such a way as to affirmatively contribute to the injury.” (Sandoval, supra, 12 Cal.5th at 276 [emphasis theirs].)

“A hirer ‘actually exercise[s]’ its retained control over the contracted work when it involves itself in the contracted work ‘such that the contractor is not entirely free to do the work in the contractor's own manner.’ . . . In other words, the hirer must exert some influence over the manner in which the contracted work is performed. Unlike “retained control,” which is satisfied where the hirer retains merely the right to become so involved, “actual exercise” requires that the hirer in fact involve itself, such as through direction, participation, or induced reliance.” (Id. at 276 [citations omitted].

Plaintiff proffers evidence that C&L foreman Israel Serrano (“Serrano”) had a conversation with KPRS superintendent John Rawlings (“Rawlings”) at some point before the incident where he told Rawlings that there may be an unsafe hole on the roof and that Rawlings told Serrano that he would “take care of it.” (PUMF No. 5). This evidence, however, is insufficient to establish actual exercise of control. AG Construction and Plaintiff were free to do the work via the “means and methods” AG Construction desired. AG Construction was required to do an inspection of all areas where its employees were working prior to commencing the work and KPRS did not prevent them from doing so. There is no evidence that KPRS exerted any influence whatsoever over the manner in which AG Construction and KPRS were to perform the work. There is no evidence that KPRS involved itself in the work, directed Plaintiff or AG Construction in the means and methods of their work, participated in Plaintiff’s or AG Construction’s work pr that KPRS induced reliance by Plaintiff or AG Construction.

“’Affirmative contribution’ means that 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 [citations omitted; emphasis added].) “It is not enough for the hirer's exercise of control to incidentally give the hirer the opportunity to prevent the contractor's injury-causing conduct.” (Id.) “A hirer's conduct also satisfies the affirmative contribution requirement where the hirer's exercise of retained control contributes to the injury independently of the contractor's contribution (if any) to the injury.” (Id.) “Such affirmative contribution need not always be in the form of actively directing a contractor or contractor's employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer's negligent failure to do so should result in liability if such negligence leads to an employee injury.” (Hooker, supra, 27 Cal.4th at 212, fn. 3.)

In Sandoval, Qualcomm hired TransPower, an electrical engineering service company, to inspect and verify the amperage of Qualcomm’s existing switchgear equipment. TransPower’s President and Sandoval, the injured employee, attended an inspection. At the inspection, Qualcomm’s employees performed a partial power-down process, which was designed to ensure there would be no live electricity flowing through the main cogen cubicle during the inspection. TransPower’s President instructed another employee to remove the bolted-on back protective panel from the immediately adjacent GF-5 cubicle, which circuit was still live. At some point during this inspection, Sandoval inadvertently tried to measure the GF-5 busbars instead of the main cogen busbars with a metal tape measure, which triggered an arc flash and set Sandoval aflame, seriously injuring him. Sandoval filed suit against Qualcomm. The Court of Appeal affirmed a jury verdict finding Qualcomm liable under a retained control theory of liability. The California Supreme Court determined, however, that Qualcomm, inter alia, did not affirmatively contribute to the injury under Hooker. The Court explained:

require or provide such precautions — e.g., supervision, a personal warning for

The Court further explained that “even if Qualcomm could be said to have retained and actually exercised control over the inspection by implementing this precaution [i.e., leaving the bolted-on protective covers over all of the live circuits], there is no evidence that Qualcomm thereby “affirmatively contributed” to Sandoval's injury. Qualcomm's decision to leave bolted-on protective covers in place certainly did not induce TransPower's decision to open them. Nor does the evidence suggest that Qualcomm otherwise induced that decision by, for instance, misrepresenting to TransPower the live condition of the GF-5 circuit. Qualcomm merely failed to prevent TransPower from opening the back GF-5 panel. Substantial evidence thus does not support the conclusion that Qualcomm affirmatively contributed to Sandoval's injury through any exercise of control over the bolted-on protective panels.” (Id. at 281 [emphasis added].)

Here, KPRS’s action or inaction must have induced AG Construction/Plaintiff to change its/his conduct. However, AG Construction’s and Plaintiff’s failure to perform an inspection and identify hazards was not induced by KPRS’s action or inaction. AG Construction’s Person Most Knowledgeable, Raymond Salazar, who was the project manager, confirmed that AG Construction employees were trained to inspect the roof for hazards before beginning work, that AG Construction’s employees should inspect the roof for potential hazards before beginning work, and that he was in fact in the process of doing so when the accident happened, as Plaintiff had already begun working before performing the inspection. (UMF No. 22). It is undisputed that AG Construction did not perform an inspection prior to Plaintiff performing his work. (Id.) Plaintiff, moreover, did not perform an inspection prior to starting his work on the roof. (Long Decl., ¶ 2, Exh. 15, 71:5-6.) Rawlings never made any promise to Plaintiff to undertake any specific measure; in fact, Rawlings has never spoken to Plaintiff. (DUMF No. 30.) Plaintiff never spoke with anyone at KPRS or to any other worker on the project besides his AG Construction coworkers. (Long Decl., ¶ 2, Exh. 15, 72:24-73:2 and 74:15-17). There is no evidence that Plaintiff and AG Construction failed to do the inspection because they thought that KPRS has fixed the hole; rather, this failure is attributable to their own negligence.

[1] The motion was filed (and served via email) on June 15, 2022 and set for hearing on September 1, 2022. On September 1, 2022, the court continued the hearing to October 19, 2022; counsel for KPRS was ordered to give notice. On August 30, 2022, KPRS filed (and served via email) a “Notice of Change in Hearing Date for Motion for Summary Judgment,” advising therein of the rescheduled October 19, 2022 hearing date.

[2] “Defendants” is defined as including Does 1-50.

[3] “Premises liability is a form of negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) “The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4^th 994, 998.)