Judge: Robert P. Dahlquist, Case: 37-2022-00013158-CU-PO-NC, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - September 29, 2023

09/29/2023  02:30:00 PM  N-29 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert P Dahlquist

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00013158-CU-PO-NC BARASCOUT VS BKM DEL ABETO 242 LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 05/25/2023

Defendants BKM Del Abeto 242, LLC and BKM Management Company, LP's motion for summary judgment (ROA # 103) is denied.

The court rules on plaintiff Alan Barascout's evidentiary objections (ROA # 129) as follows: Objection #1: sustained Objection #2: sustained Objection #3: overruled Objection #4: sustained Objection # 4 (misnumbered): overruled Objection #5: overruled Objection #6: overruled Objection #7: sustained Objection #8: overruled Objection #9: overruled Objection #10: overruled Objection #11: overruled Defendants move for summary judgment on the basis that it has a complete defense under the Privette doctrine. Privette v. Superior Court (1993) 5 Cal.4th 689. Plaintiff opposes the motion on the basis that (1) defendants failed to meet their initial burden under Privette, and (2) there are triable issues of material fact relating to certain exceptions to the Privette doctrine.

In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether the moving party has shown facts justifying a judgment in movant's favor; and (3) determine whether the opposing party has demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83.

In ruling on a summary judgment motion, the court must 'liberally construe' the opposing party's evidence and 'strictly scrutinize' the moving party's evidence, and 'resolve any evidentiary doubts or ambiguities' in favor of the opposing party. McDonald v. Antelope Valley Community College District (2008) 45 Cal.4th 88, 96 – 97. Similarly, 'any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion.' Reid v. Google, Inc.

(2010) 50 Cal.4th 512, 535.

Calendar No.: Event ID:  TENTATIVE RULINGS

3006301 CASE NUMBER: CASE TITLE:  BARASCOUT VS BKM DEL ABETO 242 LLC [IMAGED]  37-2022-00013158-CU-PO-NC Privette Doctrine 'At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work.' Privette v. Superior Court (1993) 5 Cal.4th 689, 69.

While defendants have presented admissible evidence establishing that they hired the plaintiff's independent contractor employer to perform work at the property (SSUMF (ROA # 104), Nos. 1-3) and that the plaintiff was injured while performing this work (Id. at No. 5), defendants have failed to present admissible evidence establishing that the independent contractor, Ontario Refrigeration, was licensed to perform work on the property or that no license was required. See Blackwell v. Vasilas (2016) 244 Cal.App.4th 160, 167 [trial court's granting of summary judgment was reversed due to moving party's failure to meet their evidentiary burden to show plaintiff was an independent contractor].

Defendants have failed to meet their initial burden of showing their entitlement to judgment under Privette. As such, the burden does not shift to the plaintiff to invoke an exception to Privette.

Assuming arguendo that the burden does shift to the plaintiff, plaintiff has met his burden by showing the existence of triable issues relating to the Privette exceptions as set forth below.

Privette Exceptions Plaintiff argues that this case is subject to two exceptions to the Privette doctrine: (1) the owner, defendant, retained control over the work (Hooker v. Department of Transp. (2002) 27 Cal.4th 198, 206-214); and (2) defendant concealed a preexisting hazardous condition on its premises (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675).

The court finds that plaintiff has shown the existence of triable issues of material fact as to: (1) whether the moving parties retained control over the work; and (2) whether defendants concealed a preexisting hazardous condition on the premises. The evidence that creates these triable issues of material fact consists of the deposition testimony of Linda Hawkins, Brian McWilliams, Alan Barascout, Brian Anthun, and Gary Miles, the declaration of Linda Hawkins, discovery responses, exhibits attached to the Notice of Lodgment (ROA # 109) and exhibits attached to the compendium of exhibits at ROA # 130.

For these reasons, defendants' motion for summary judgment is denied.

This is the tentative ruling for an appearance hearing (in person or remote) at 2:30 p.m. on Friday, September 29, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of September 29, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

Calendar No.: Event ID:  TENTATIVE RULINGS

3006301