Judge: Ronald F. Frank, Case: 20STCV09554, Date: 2023-08-21 Tentative Ruling
Case Number: 20STCV09554 Hearing Date: April 11, 2024 Dept: 8
Tentative Ruling¿
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HEARING DATE: April 11, 2024
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CASE NUMBER: 20STCV09554
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CASE NAME: Maria Lopez; Martin Gonzalez v. Matrix
Service, Inc., et al.
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MOVING PARTY: (1) Defendant, Torrance Refining Company, LLC (“TORC”)
RESPONDING PARTY: (1) Defendant, Matrix Service, Inc.
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TRIAL DATE: May 6, 2024
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MOTION:¿ (1) TORC’s Motion for Summary Judgment, or in the alternative,
Summary Adjudication
(2) Ex parte
application for entry of issue sanctions
(3) Belated request
for PMK deposition
Tentative Rulings: (1) GRANTED.
No triable issue of fact as to Privette defense or retained
control exception
(2) Discuss, and see if
TORC intends to file written opposition.
Discussion to include whether to delay the Court’s ruling on the MSJ
which appears to be the implicit intent of the ex parte application
(3) The Court is not inclined to continue this hearing still further
after all the previous extensions provided, but will seek argument from Matrix
as to why Messrs. Tibbett and Carbajal’s depositions were insufficient and what
additional questions Matrix would ask of a PMK that have not already been asked
of these TORC employees
I. BACKGROUND¿¿
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A. Factual¿¿
This
Motion for Summary Judgment addresses both complaints in this consolidate
action, the first brought by Maria Lopez and Martin Gonzalez (“Parent
Plaintiffs”), and the second brought by Sonia Soto, individually and as
successor-in-interest to the estate of Gamaliel Gonzalez, and Jayden Salas,
Giancarlo Salas, and Christian Gonzalez, three minors by and through their
guardian ad litem, Sonia Soto (“Soto Plaintiffs”). The action arises out of a
work incident that occurred on July 11, 2019, where Gamaliel Gonzalez (“Mr.
Gonzalez”) was tragically killed after the jack stand he was using allegedly
malfunctioned, causing broken parts to become airborne, striking his head.
Parent Plaintiffs’ claim causes of action for strict liability and negligence
against moving party Hagen Engineering International, Inc. (“Hagen” or
“Defendant”). Soto Plaintiffs claim strict liability, professional negligence,
and breach of express and implied warranties. Defendant Hagan asserts that
named defendants to the two actions include: (i) Matrix Service, Inc., the
manufacturer of the jack stand, (ii) Brandon Austin, the licensed engineer who
designed and engineer stamped the plans for the jack stand, (iii) DirecTank
Environmental Products, LLC, Austin’s employer at the time, (iv) PBF Energy
Limited, the owner and operator of Torrance Refinery where the incident took
place, and (v) Hagen, an engineering firm that provided unstamped exemplars or
“concept drawings” to non-party JT Thorpe for two jack stands distinctly
different from the “bona fide” drawings designed by Austin and used by Matrix
to fabricate the subject jack stand. Hagen argues it did not design the subject
jack stand, and is not otherwise a proper party to this action. As such, Hagen
argues it is entitled to summary judgment as a matter of law.
Defendants
TORC and Defendant Hagen filed a Motion for Summary Judgment. On August 31,
2023, this Court GRANTED Summary Judgment filed by Hagen Engineering
International, Granted the Motion for Summary Adjudication as to the strict
liability cause of action only. At that August 31, 2023 hearing, this Court
also took the Negligence cause of action under submission, and continued the matter
to November 1, 2023.
Defendant,
Hagen was subsequently dismissed from this case on November 22, 2023.
The
TORC Motion for Summary Judgment still remains. On November 22, 2024, this
Court noted that discovery responses were still being propounded, and no
additional discovery had been served. As such, this Court ordered defense
counsel for Matrix to file supplemental briefs in support of the motions on or
before January 19, 2024. Plaintiff’s counsel for TORC was ordered to submit
responses on or before January 26, 2024.
On
January 18, 2024, Matrix filed a Joint Stipulation between the remaining
parties to continue trial and all related dates, including Matrix’s Motion for
Summary Judgment, or in the alternative, Summary Adjudication.
On
February 15, 2023, Defendant TORC filed a Motion for Summary Judgment. On
August 17, 2023, Defendant Matrix filed an opposition. Additionally, on October
18, 2023, Defendant Matrix filed a supplemental opposition to Defendant TORC’s
MSJ. On October 25, 2023, TORC filed s supplemental reply brief.
Further,
on February 22, 2024, this Court granted in part the ex parte application of
Defendant Matrix for an order compelling the deposition of non-party, Patrick
Tibbett, and scheduled the hearing for the Motion for Summary Judgment to March
25, 2024.
Finally,
on March 25, 2024, Matrix’s ex parte application compelling answers to the
deposition questions and production of documents by Orlando Carbajal was
granted. Per Matrix’ ex parte
application, Carbajal’s verifications were a sham and arguably in defiance of
the Court’s conditional denial of Matrix’ motion for discovery sanctions
predicated in part on TORC’s failure to provide VERIFIED responses to 13 sets
of written discovery until Carbajal signed all 13 verifications. Of
course, since the Court ordered Carbajal’s deposition, was he already asked any
or every question embraced by the written discovery responses he verified?
On March 28, 2024, Matrix filed its second
supplemental opposition to TORC’s Motion for Summary Judgment. On April 5,
2024, TORC filed its second supplemental reply brief.
II. EVIDENTIARY OBJECTIONS
Matrix’s Objections to TORC’s
Evidence:
Sustain: 10-11
Overrule: 1-9, 12-17
III. ANALYSIS¿
A.
Legal
Standard
The function of a motion for summary
judgment or adjudication is to allow a determination as to whether an opposing
party cannot show evidentiary support for a pleading or claim and to enable an
order of summary dismissal without the need for trial. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(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 judgment as a matter of law.”¿ (Adler
v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function
of the pleadings in a motion for summary judgment is to delimit the scope of
the issues; the function of the affidavits or declarations is to disclose
whether there is any triable issue of fact within the issues delimited by the
pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67,
citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367,
381-382.)¿
As to each claim as framed by the
complaint, the defendant moving for summary judgment must satisfy the initial
burden of proof by presenting facts to negate an essential element, or to
establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1520. ) Courts “liberally construe the evidence in
support of the party opposing summary judgment and resolve doubts concerning
the evidence in favor of that party.”¿ (Dore v. Arnold Worldwide, Inc.¿(2006)
39 Cal.4th 384, 389.)¿
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 that cause of action or a defense thereto.¿¿¿
To establish a triable issue of material
fact, the party opposing the motion must produce substantial responsive
evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
B.
Discussion
Preliminarily, this Court addresses
TORC’s argument that Matrix should only be allowed to oppose the Retained
Control Exception due to the Court’s August 31, 2023 ruling. Specifically, TORC
has included the transcripts from the August 31, 2023 ruling and asserts that
this Court previously rejected every argument raised in Matrix’s prior
opposition and specifically found that Matrix failed to raise triable issues of
material fact supporting the concealed hazard exception. Additionally, TORC
contends that this Court continued the hearing to generously allow Matrix
additional discovery into the retained control exception to the Privette doctrine
only.
Pursuant to the transcript, the Court
does note that it states: “The issue is submitted to me. My view is that no
triable issue has been raised with respect to the second Privette exception
[the concealed hazard exception]. With respect to the first Privette
exception, there is evidence from discovery that has not been provided that was
specifically asked for, and which the court specifically contemplated when it
granted the motion to compel, that needs to be provided. And pursuant to C.C.P.
437c, subdivision(I), the court is granting a further continuance of this
hearing so that the specifically identified discovery that Mr. Watts outlined
during the first portion of this hearing can be provided by TORC to Matrix, and
so that Matrix can evaluate that and present that to see if that would raise a
triable issue of material fact on the first exception to the Privette doctrine.”
(Declaration of Lillian C. Harwell (“Harwell Decl.”), ¶ 3, Exhibit A, Transcript
40:11-26.)
The
Court notes that it is true the supplemental briefing and continuance was to
allow Matrix to gain access to the discovery sought for the first exception,
the retained control exception. It appears to the Court notes that on its face,
Matrix’ second supplemental opposition does not have any arguments as to the concealed
hazard exception. But, TORC contends that Matrix has “concealed” a concealed
hazard exception within the second supplemental opposition.
Retained Control Exception
The Privette doctrine holds that a hirer
generally delegates to an independent contractor all responsibility for
workplace safety and is not liable for injuries sustained by the contractor or
its workers while on the job.” (Gonzalez v. Mathis (2018) 12 Cal.5th 29,
40 (Gonzalez).) Here, TORC is the hirer, J.T.Thorpe is the
independent contractor (or one of two if HMT is considered), and Plaintiffs are
the survivors of the late Gamaliel Gonzalez, the worker who was fatally injured
on the job. Matrix, the opposing party
here, manufactured the jack stand that was used by J.T. Thorpe. Under
the Privette doctrine, TORC argues and
presents persuasive evidence that it is not liable for Decedent’s on-the-job
injuries because the law presumes J.T. Thorpe delegated to J.T. Thorpe “all
tort duties [it] might otherwise owe [to] contract workers” like Plaintiff, and
that “[w]hatever reasonable care would otherwise have demanded of [J.T. Thorpe],
that demand lies now only with [J.T. Thorpe].” (Sandoval v. Qualcomm Inc.
(2021) 12 Cal.5th 256, 283 (Sandoval).)
As discussed previously in the Court’s prior tentative ruling
months ago, there are, several possible exceptions to the Privette
doctrine. The only exception remaining for this Court to analyze is the Retained
Control Exception, which was described by the court in Miller v.
Roseville Lodge No. 1293 (2022) 83 Cal.App.5th 825, 833-834 (Miller)
as follows:
The
first exception was recognized in Hooker, supra, 115
Cal.Rptr.2d 853, 38 P.3d 1081 and is usually referred to as the retained
control exception. It applies if: (1) the hirer retains control over the
manner in which the contractor performs the work; (2) the hirer actually
exercises its retained control by involving itself in the work such that the
contractor is not entirely free to do the work in its own manner; and (3) the
hirer’s exercise of retained control affirmatively contributes to the worker's
injury. (Sandoval, at pp. 276-277, 283 Cal.Rptr.3d 519, 494 P.3d 487.)
Under this exception, the hirer's delegation of tort duties to the independent
contractor can be seen as “incomplete” or “only partial[ ]” because it retains
control over some aspect of the work and actually exercises that retained
control. (Id. at p. 271, 283 Cal.Rptr.3d 519, 494 P.3d 487.)
As noted in the transcript attached to counsel for TORC’s
declaration, this Court continued the previous hearing on this motion because it
noted there was evidence from discovery directed to TORC that had not been
provided and that that was specifically asked for -- and which the Court
specifically contemplated when it granted the motion to compel TORC to answer --
which would need to be provided in order for Matrix to properly oppose this
motion. Specifically, this Court noted, at the August 31, 2023 hearing, “TORC has unreasonably failed to provide
discovery that I have previously ordered in the case that bears on this issue
of whether TORC had notice or had actual knowledge of the use of this type of
equipment in order to raise or to maintain the level of the floating roof
during a maintenance operation. And specifically whether any jack stand – not
this specific one. Whether any jack stand had been used in combination before
or had been used by itself in in this tank in order to raise or maintain the
height of a floating roof when the contractor or employee was going got be
working underneath the floating roof.” (Harwell Decl., ¶ 3, Exhibit A,
Transcript 28:12-24.)
As
part of the supplemental evidence obtained by Matrix from TORC, Matrix includes:
(1) the deposition of Patrick Tibbett; (2) TORC’s produced documents titled,
“Cribbing Procedure for Floating Roof Tanks”; (3) J.T. Thorpe’s document
titled, “Field Repair Procedure – SOP Lower or Raise a Floating Rood using
cribbing stacks and Jackstands – 017”; (4) TORC’s production of document
titled, “Maintenance Job Description: Supervisor, Tank Program”; (5) the
deposition of Roy Nitzchner; and (6) Orlando Carbajal’s (Vol 1) deposition.
TORC’s Installation and Direction
of the Floating Roof, Secured by Anti-Lateral and Anti-Rotational Devices was
not Negligent
To start, Matrix’s second supplemental opposition argues – again –
that TORC retained control over the safety conditions in the Subject Tank
relating to J.T. Thorpe’s maintenance project specifically as to the manner in
which the floating roof in the Subject Tank was secured against lateral and
rotational movement. The fact that TORC made sure the Subject Tank was prepped
and prepared and ready for J.T. Thorpe to perform its work by making sure that
the floating roof in the Subject Tank was secured against vertical, lateral,
and rotational movement is not a fact that is disputed here. (ASSUMF No. 137.)
However, what continues to be in dispute is whether TORC inspected the work
performed to secure the floating roof against lateral and rotational forces to
ensure that the Subject Tank was safe for J.T. Thorpe to begin its work. Matrix
contends that prior to the incident, J.T. Thorpe loosened the anti-rotational
cables and TORC – by and through its Tank Maintenance Supervisor Patrick
Tibbett – instructed J.T. Thorpe to “secure the anti-rotational cable” and “tighten
it back up,” which J.T. Thorpe did (TORC’s UMF No. 140.) Matrix includes the deposition
of Patrick Tibbett, who testified that during a safety walk with J.T. Thorpe’s
foreman, he noticed J.T. Thorpe loosened the anti-rotation cable installed by
HMT, and told J.T. Thorpe to tighten the cable back up. (ASSUMF No. 140.) Matrix
argues that such direction constituted a negligent exercise of TORC’s retained
control in a manner that affirmatively contributed to the Incident and
Decedent’s injuries. But even if a triable issue of fact exists as to whether Tibbett’s
instruction about tightening the cables constitutes the first step of proving
the retained control exception, Matrix must also raise a triable issue of fact
as to the second step, i.e., affirmative contribution to the employee’s injury
or death. (Hooker, supra, 27
Cal.4th at p. 215.)
Matrix
also argues that prior to J.T. Thorpe conducting its work in the Subject Tank,
TORC installed devices to secure the floating roof, including: (1) rim jacks
(also referred to as scissor jacks) to protect against lateral roof movement,
and (2) a below-roof manway-anchored cable-type anti-rotation system. Matrix
contends that the cables were originally slack, before Patrick Tibbett
instructing them to be tightened, meaning the cables (as slack) would not
impede any work J.T. Thorpe had to do, but the cables would prevent the roof
from rotating. Matrix also asks this Court to consider previous evidence from
its expert, Andrew Yearwood (“Yearwood Decl.”), which Matrix uses to argue that
the floating roof anti-lateral and anti-rotation devices installed when J.T.
Thorpe was performing its work were not appropriate for maintenance work that
involved lifting the floating roof because the anti-lateral and anti-rotational
used would work against the intended lifting process. (ASSUMF No. 119-120.)
However, as noted – the evidence previously presented was not enough for this
Court to find a triable issue of material fact, Yearwood’s declaration is at
odds with the declaration of Erin Thomas (“Thomas Decl.”), procurement
Supervisor for Strategic Sourcing and Contract Management at PBF Energy Inc.,
which operates through its subsidiaries, oil refineries, and related
facilities, including TORC. (Thomas Decl., ¶ 1.) Thomas has already provided
evidence of the TORC Master Service Agreement (“MSA”) which contained the
express terms essentially stating that J.T. Thorpe was responsible for
identifying potential hazards, which would ostensibly include the anti-lateral,
anti-rotation device and the weight of the roof. (ASSUMF No. 106.) Matrix
contends that such anti-lateral and anti-rotational devices installed in the
Subject Tank were not appropriate for J.T. Thorpe’s lifting of the floating
roof because such devise worked against the intended lifting process, and also
contributed to the happening of the incident (ASSUMF No. 119-120.)
As
such, with no new facts to raise triable issues of fact as to this issue, the
Court does not deny the Motion for Summary Judgment on these grounds.
Matrix’s “Negligently Furnishing
of Unsafe Equipment” Argument is Outside the Scope of this Allowable Second
Supplemental Opposition
As argued by TORC, it appears that Matrix has raised another
argument as to the second exception to the Privette Doctrine, the concealed
hazard exception. In its earlier ruling
last year, the Court did not find reason to continue the hearing on this motion
because of this second exception and did not find triable issues of fact. In
any event, this Court notes that the MSA, in paragraph 12.2 clearly states:
“CONTRACTOR has satisfied itself by its own investigation, and acknowledges
responsibility for determining the effects, of local conditions existing at the
work site…” (Thomas Decl., Exhibit A, MSA ¶ 12.2.) As discussed above, the
evidence indicates that the onus was on J.T. Thorpe to determine whether its
procedures, including use of the jack stand, would work with the already
established features of the Subject Tank at TORC.
TORC’s Discussions and Approval of
the Use of the Jack Stand/Airbag Combination
Finally,
Matrix discusses the root of this Court’s questions, and the grounds by which
this Court previously granted the discovery pursuit continuance and several motions
to compel. Specifically, this Court noted: “If
the jack stand-airbag combination had been used previously, successfully or
unsuccessfully, that would tend in reason to bear on the issue of TORC’s
involvement and on the standard of care for the raising or the stabilization of
the floating roof. So whether it was this precise custom-made jack stand, or
whether it was another jack stand or another holding or lifting device used in
combination with an airbag, if that had been done before, that bears on the
standard of care for purposes of the negligence cause of action. That’s what I
was curious about. Now, if TORC has indicated in a verified response that it
never used or no prior contractor ever used an inflatable airbags for this type
of application, or the combination of a holding or lifting tool with an airbag,
that would be different. ” (Harwell Decl., ¶ 3, Exhibit A, Transcript 20:3-18.)
In discussing this previous question, the
Court notes that Matrix has gained access to J.T. Thorpe’s standard operating
procedure for raising a floating roof, which was allegedly submitted to TORC, a
fact not disputed by TORC. (Matrix’s Second Supp. Opp., Exhibit 53.) The
Standard Operating Procedure identifies that the procedure was SOP Lower or
Raise a Floating Roof using cribbing stacks and Jackstands – 017, and the
description included: “Lower or Raise a Floating Roof using cribbing stacks and
jackstands.” (Matrix’s Second Supp. Opp., Exhibit 53.) This evidence is argued
by Matrix to suggest that TORC was on notice of J.T. Thorpe’s intended use of
the jack stand – airbag combination. Matrix contends that though Patrick
Tibbett’s job duties required that he knew industry standards and best
practices relative to safety, quality, and efficiency of tank cleaning and
maintenance activities, Matrix argues Tibbett did not know whether the use of
an airbag on top of a jack stand to lift the floating roof of an above-ground
storage tank complied with industry standards or best practices; and that this
use, was in fact, not in compliance with industry standard and acceptable safe
practices. This conclusory statement was shown in the previous evidence,
already viewed by this Court in connection with last August’s hearing, where
Matrix’s expert, Yearwood asserted in his declaration that J.T. Thorpe’s
procedures were not in compliance with industry standard practices and
acceptable safe practices. (Yearwood Decl., ¶ 18.) Matrix attempts to assert this
is newly received evidence from the Carbajal Deposition, however, this is not
what that evidence states. Carbajal was asked whether, in any of the
maintenance work he has overseen as a planner regarding replacing of striker
plates, and the process that is described as using the jacks to remove the
cutter pin and remove the leg, ever known a maintenance company using the
airbags in connection with the jack stands. (Matrix’s Second Supp. Opp.,
Exhibit 59, Carbajal Decl., 31:6-16.) The Court does note, however, that this
deposition testimony from Carbajal does indicate that no other contractor had
used this method.
Nonetheless, the main question this Court
sought in compelling TORC to provide more discovery was bearing on the issue of
whether TORC had actual notice or actual knowledge of the use of this type of
equipment in order to raise or to maintain the level of the floating roof
during a maintenance operation. And specifically, whether any jack stand – not necessarily
this specific one -- had been used in combination before or had been used by
itself in in this tank in order to raise or maintain the height of a floating
roof when the contractor or employee was going to be working underneath the
floating roof.” (Harwell Decl., ¶ 3, Exhibit A, Transcript 28:14-24.) The above
discussion notes that J.T. Thorpe sent over its Standard Operating Procedure to
TORC, however, there is no evidence to suggest that this was read by anyone at
TORC or that TORC took any affirmative steps to involve itself in JT Thorpe’s
operation with the jackstand. Further,
the deposition testimony of Carbajal, who at the time of the J.T. Thorpe job
was a tank planner who planned the job and scope of work, stated he had never
seen the use of the jack stand and airbag combination. This evidence does not
tend to raise a triable issue of fact that such a practice would fall outside
the standard of care.
As pointed out in TORC’s second
supplemental reply brief, the Retained Control Exception requires affirmative
conduct by TORC which caused or contributed to the death of decedent. However,
before even getting that far, the exception requires the hirer to retain
control over the manner in which the contract performs the work – that is just
step one. Here, Matrix has not identified for the Court any evidence other than
the tightening of the cables which tends to raise a triable issue of fact that
TORC exercised control over the manner in which J.T. Torpe conducted the work;
no evidence that TORC actually exercised its retained control by involving
itself in the work such that the contractor was not entirely free to do the
work in its own manner; and no evidence that TORC’s alleged exercise of control
affirmatively contributed to the worker’s death. (Sandoval,
supra, 12 Cal.5th at 276-77.) Matrix has not provided any evidence that,
for example, TORC directed J.T. Thorpe as to the use or placement of the jackstand,
or whether to use or not to use a jack stand together with an airbag, or the
inflation pressure of the airbag, or the monitoring of fill rate or the airbag,
or the movement or placement of Thorpe’s workers in or around the jackstand or
airbag, or other triable issues of TORC’s affirmative exercise of the claimed
retained control that affirmatively caused or contributed to the injury-producing
sequence of events. The Court thus finds no triable issue as to
the first, i.e., retained control exception to the Privette
doctrine. TORC’s evidence establishes
the Privette defense as a matter of law.
As such, this Court GRANTS
summary judgment as to the negligence issue.
IV. CONCLUSION¿¿
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For the foregoing reasons,
this Court’s ruling is to GRANT Defendant TORC’s Motion for Summary Judgment.
TORC is ordered to give
notice.