Judge: Serena R. Murillo, Case: 19STCV24256, Date: 2022-10-27 Tentative Ruling
Case Number: 19STCV24256 Hearing Date: October 27, 2022 Dept: 29
Michael Johnson v. The Hills
Companies, et al.
Motion for
Summary Judgment, or in the Alternative, Summary Adjudication filed by Defendant Hill
Contractors 1
TENTATIVE
Defendant Hill Contractors 1’s Motion for Summary Judgment, or in the Alternative,
Summary Adjudication is GRANTED.
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 437c(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.)
Improper Reply Separate Statement
The Court will not consider Defendant’s improper reply
separate statement. (See e.g. Nazir v. United Airlines, Inc.
(2009) 178 Cal.App.4th 243, 252 (“The deficiencies carried over to the reply
papers, which included a 297–page reply separate statement. There is no
provision in the statute for this.”); San Diego Watercrafts, Inc. v. Wells
Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313 (“While the code provides
for reply papers, it makes no allowance for submitting additional evidence or
filing a supplemental separate statement. (§ 437c, subd. (b).) This is
consistent with the requirement supporting papers and the separate statement be
served with the original motion. (§ 437c,
subd. (a).).”); Moore v. William Jessup University (2015) 243
Cal.App.4th 427, 432 n.3. (“Generally, a party moving for summary judgment may
not rely on new evidence filed with its reply paper.”).)
Request for
Judicial Notice
Plaintiff has
submitted a request for judicial notice of an Occupational Safety and Health
Administration (OSHA) investigation analysis grid and its report. The
Court notes that the court must consider all of the evidence set forth in the
papers, except the evidence to which objections have been made and sustained by
the court. (Code Civ. Proc., § 437c, subd. (c).) Thus, Plaintiff’s
requests are thus unnecessary and the Court declines to rule on the requests.
Evidentiary
Objections
Labor Code section 6304.5 states:
“Neither the issuance of, or failure to issue, a citation by the division shall
have any application to, nor be considered in, nor be admissible into, evidence
in any personal injury or wrongful death action, except as between an employee
and his or her own employer…. The testimony of employees of the division shall
not be admissible as expert opinion or with respect to the application of
occupational safety and health standards.” (Labor
Code section 6304.5.)
As such, Defendant’s objections 1-33
and 38, 41-46 to Plaintiff’s evidence are SUSTAINED. The remainder of the
objections are OVERRULED.
Discussion
Defendant
contends that Plaintiff cannot prove the element of duty because the hirer of
an independent contractor is not liable for injuries to the contractor or its
employees under Privette v. Superior Court (1993) 5 Cal.4th 689, 695.
“[W]hen employees
of independent contractors are injured in the workplace, they cannot sue
the party that hired the contractor to do the work.” (SeaBright Ins. Co. v.
US Airways, Inc. (2011) 52 Cal.4th 590, 594.) “By
hiring an independent contractor, the hirer implicitly delegates to the
contractor any tort law duty it owes to the contractor’s employees to
ensure the safety of the specific workplace that is the subject of the
contract.” (Id. at pp. 601-602.) Additionally, “a hirer
generally has no duty to act to protect the contractor’s employee when the
contractor fails in that task.” (Id. at p. 602 (citation
omitted).) The Privette doctrine applies when the party that hired
the contractor failed to comply with workplace safety requirements concerning
the precise subject matter of the contract, and the injury is alleged to have
occurred as a consequence of that
failure. (Id. at p. 594.) “It would be unfair to impose tort
liability on the hirer of the contractor merely because the hirer retained the
ability to exercise control over the safety at the worksite. In fairness,
. . . the imposition of tort liability depends on whether the hirer exercised
the control that was retained in a manner that affirmatively contributed to the
injury of the contractor’s employee.” (Kinsman v. Unocal (2005) 37
Cal.4th 659, 670.)
The general rule
will bar Plaintiff’s action against the hirer unless a specific exception
applies. Under the Hooker exception to the Privette
doctrine, the hirer of an independent contractor may be liable to the employee
of the independent contractor only if Plaintiff can establish that the hirer:
(1) retained control over the operative details of the contracted work, and (2)
exercised that control in a way that affirmatively contributed to Plaintiff’s
injuries. (Hooker v. Dept. of Transportation (2002) 27 Cal.4th
198, 202.)
The retained
control must be “over the methods of the work or the manner in which the
contractor’s employees perform
the operative details of their tasks.” (Sandoval v. Qualcomm Incorporated (2021)
12 Cal.5th 256, 275 (citation omitted).) The
hirer may retain a broad general power of supervision and control as to the
results of the work so as to insure satisfactory performance of the independent
contract — including the right to inspect, the right to stop the work, the
right to make suggestions or recommendations as to details of the work, the
right to prescribe alterations or deviations in the work —
without incurring a retained control duty. (Id.)
In addition to
actually retaining control, a hirer must exercise that control in a way that
affirmatively contributes to the injury. (Id. at 276) A hirer actually
exercises control when it involves itself “such that the contractor is not
entirely free to do the work in the contractor’s own manner.” (Id.) Affirmative
contribution means that the “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.)
Labor Code § 6304.5, which ordinarily allows use of Cal-OSHA
provisions to show the appropriate duty or standard of care, does not override
a hirer's nonliability for injury to a contractor's employee – i.e., the
hirer's violation of a Cal-OSH safety law or order cannot be used to establish
liability for a resulting injury to a contractor's employee (except where the
hirer affirmatively contributed to the employee's injuries.) (Millard v.
Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1349-1352; see Padilla v.
Pomona College (2008) 166 Cal.App.4th 661 -- no retained control where
hirer delegated safety matters to other contractor.)
On July 19, 2017, Plaintiff
Michael Johnson was working within the course and scope of his employment with
Guy Yocom Construction, Inc., (“Guy Yocom”) when he was injured. (Defendant’s Undisputed
Material Fact (“UMF”) No. 5.) At the time he was working with other Guy Yocom
employees to erect form columns in the subterranean garage of an apartment
building. (UMF Nos. 1-4.) Plaintiff was attached to a form column by a harness
when the column was allegedly prematurely released from a Reach lift before it
was properly braced. (UMF No. 2, Compl., ¶¶ 10,11.) The forklift operator who
allegedly prematurely released the column was an employee of Guy Yocom. (UMF
No. 3.) The workers responsible for bracing the column were also Guy Yocom
employees. (UMF No. 4.) At the time of the accident, Guy Yocom was working
pursuant to a Subcontract with the general contractor for the project,
Defendant Hill Contractors 1 (“Hill”). (UMF No. 7, Ex. 1, Compl. ¶ 9, Ex. 4.)
Hill retained Guy Yocom to perform among other things, form work and to erect
columns at the job site. (UMF No. 7.) Plaintiff received worker’s compensation
benefits through Guy Yocom. (UMF No. 6; Ex. 3, Notice of Lien.)
Defendant presents the following
evidence. Under the terms of the Subcontract Guy Yocom expressly agreed:
Subcontractor, and not Contractor, is the
“Controlling Employer,” and, therefore, [h]as the authority and responsibility
for the safety of its employees, sub-subcontractors, and materialmen, as well
as the safety of other subcontractors and trades in relation to Subcontractor’s
work or trade, while on the job site.
(UMF No. 8, Subcontract, ¶40.) Guy Yocom
also agreed to “provide safe and sufficient facilities at all times.” (UMF No.
9.) Further, in its subcontract with Hill, Guy Yocom agreed:
[a]s the controlling employer, with
regard to the safety of [its] own employees, Subcontractor shall have a
designated ‘Responsible Authorized Person For Safety, on the job site at all
times that Subcontractor’s personnel are working on the project. Subcontractor
will identify and arrange for additional safety training as the need arises,
will perform continuous hazard recognition for unsafe work practices and/or
unsafe work conditions and will abate same and will eliminate all unacceptable
risks however created.
(UMF No. 11.) Hill
hired Guy Yocom to perform form work and erect columns on the job site. (UMF
No. 7.) Hill did not supervise the means and methods of work performed
by any of Guy Yocom’s employees, including Plaintiff. (UMF No. 12.) The
Subcontract also provides that Guy Yocom, not Hill, shall “report any safety or
health hazards or potential hazards before commencing any activity which poses
any hazard to any person, property, or the environment.” (UMF No. 15.) Hill did
not control the means and methods of work performed by any employees of
Guy Yocom, including Plaintiff. (UMF No. 13.) This duty was expressly assumed
by Guy Yocom. No Hill employee was involved in the incident. (UMF Nos. 17-20.)
No Hill employee was working on the columns with the Guy Yocom employees on the
date of the incident. (UMF No. 17.) No Hill employee as working on the jobsite
on the day of the incident. (UMF No. 18.) In fact, Plaintiff did not see or
talk to any Hill employee on that day. (UMF No. 19.) Defendant argues that Hill
expressly delegated to its subcontractor, Guy Yocom, the duty to safeguard its employees at the
worksite, including any duties it had under preexisting statutory or regulatory
workplace safety requirements and OSHA. Accordingly, Defendant Hill argues it
had no duty to ensure the safety of the job site for Guy Yocom’s employees,
including Plaintiff. Further, as no employee of Hill was involved in Guy
Yocom’s work on the date of the incident. (UMF Nos. 3, 4, 12, 13, 17, 18),
Defendant argues that Guy Yocom was free to perform its work in its own manner,
and any general supervisory control over the project retained by Hill is
insufficient to impose a duty on Hill with respect to the safety of Guy Yocom’s
employees. The hirer may retain a broad general
power of supervision and control as to the results of the work so as to insure
satisfactory performance of the independent contract — including the right to
inspect, the right to stop the work, the right to make suggestions or
recommendations as to details of the work, the right to prescribe alterations
or deviations in the work — without incurring a retained control duty. (Sandoval
v. Qualcomm Incorporated, supra, 12 Cal.5th at 275.)
The Court finds that Defendant has
met its burden on summary judgment to show that no triable issues of fact exist
as to whether the Privette doctrine bars Plaintiff’s claims, because it
delegated the duty to safeguard its
employees at the worksite to Guy Yocum, and because Defendant’s employees were
not present at the column site and it did not supervise Guy Yocum’s employees,
thereby showing Defendant did not retain control over the methods of the work
or the manner in which the contractor’s employees perform the operative details
of their tasks and that it did not exercise control in a way that affirmatively
contributes to the injury.
To meet his burden on summary
judgment, Plaintiff argues that Hill retained control over safety at the
subject construction site, and hired a safety consultant (Courage Safety
Systems) to conduct monthly jobsite safety inspections. (Plaintiff’s Additional
Material Fact “AMF” No. 18.) Per the general contractor’s own safety policies,
the general contractor (moving defendant Hill) has the responsibility to
perform safety inspections and to notify the contractors of any deficiencies.
If deficiencies continue, the general contractor can remove the contractor from
the job site. (AMF No. 19.) As such, as lead superintendent, Mr. Novelli was
also required to conduct safety inspections on behalf of Hill. If he saw
something egregiously wrong, he would take it upon himself to contact the
offending subcontractor foreman and get it corrected, or correct it himself.
(AMF No. 20.) Mr. Novelli did visual safety reviews of the jobsite every day.
(AMF No. 21.) Hill also held weekly “tailgate meetings” where safety issues and
work to be done was discussed. The meetings were usually held by Hill or a
designated foreman. (AMF No. 22) As superintendent, Mr. Novelli had the
responsibility of implementing Hill’s Injury & Illness Prevention Plan
(IIPP). (AMF No. 23.) Guy Yocum had to submit its IIPP to Hill, who would then
submit it to Courage Safety for review and approval. (AMF No. 24.) Hill’s own IIPP
stated that it was Hill’s responsibility to “take reasonable steps to address
unsafe or unhealthy work conditions, practices or procedures which should be
corrected in a timely manner based on the severity of the hazards.” (AMF No. 25.)
During the monthly safety inspections performed by Courage Safety, at least one
of the Hill’s superintendents would be present. (AMF No. 26.) The contract
between Hill and Guy Yocum dictated the working conditions and conduct of Guy
Yocum’s employees, including working hours, parking, playing of music, use of
controlled substances, use of foul language, and which bathroom facilities Guy
Yocum’s employees could use. (AMF No. 43.) Plaintiff also presents evidence
that during every safety inspection in the six months leading up to the
incident, the inspector from Courage Safety identified on the safety survey
reports that there was a safety hazard as it relates to exposed rebar, under
“Impalement Protection— Exposed Rebar Properly Guarded/Covered.” At least two
of the reports (for March and May of 2017) indicated that the protection was
“in progress.” (AMF No. 27). This exposed rebar was contained on the exact same
column form that tipped over on to Plaintiff. (AMF No. 28.) Prior to the
incident, Hill was aware of the safety issue with the exposed rebar on the
subject column from at least January 18, 2017. Hill (via Mr. Novelli) signed
off on the January 2017 safety report noting this hazard. (AMF No. 29.) Hill
was aware of the safety issue with the exposed rebar on the subject column just
eight days before the subject incident. Hill (via Mr. Novelli) signed off on
the July 11, 2017 safety report noting this hazard. (AMF No. 30.) Despite
having actual knowledge of the safety issue with the subject column, and
despite its requirement to do so, Hill did not notify its subcontractor or
their employees (including Plaintiff) who would be working with the subject
column, thus exposing Plaintiff to a danger which was known to Hill, and Hill
only. (AMF No. 31.) When Hill failed to either: (1) immediately fix the safety
issue with the subject column or (2) temporarily cease affected work until it
could be fixed, Hill did not comply with its own Injury and Illness Prevention
Program (IIPP) that was in effect at the time of the incident. (AMF No. 32.)
Further, Plaintiff presents evidence that its expert William F. Dexter
concluded that “Hill ignored all of the accepted enforcing trade standards for
lifting and bracing concrete forms prior to disconnecting them from the crane
line as was their legal and contractual duty,” and “failed to enforce the
bracing requirement for concrete forms as provided in Chapter 19 of the CBC.”
(Dexter Decl., ¶ 12(b), (c).)
The Court finds that Plaintiff has not met his
burden on summary judgment to show that there are triable issues of fact as to
whether Defendant Hill retained control over operative details of the contract
work and that Hill exercised that retained control in a manner that
affirmatively contributed to Plaintiff’s injuries. The
retained control must be “over the methods of the work or the manner in which
the contractor’s employees perform the operative details of their tasks.”
(Sandoval v. Qualcomm Incorporated, supra, 12 Cal.5th 256, 275.) Plaintiff’s
evidence is that Hill exercised control over safety at the construction site,
but there is no evidence that Hill retained control over the methods of the
actual work itself or the manner in which Guy Yocum’s employees perform the
operative details of their tasks. Moreover, the evidence that the contract
dictated working hours, parking, playing of music, use of
controlled substances, use of foul language, and which bathroom facilities Guy
Yocum’s employees could use only shows evidence of broad general power of
supervision. This evidence also does not show that Hill retained control over
the methods of the work or the manner in which it is performed. “The hirer may retain a broad
general power of supervision and control as to the results of the work so as to
insure satisfactory performance of the independent contract — including the
right to inspect, the right to stop the work, the right to make suggestions or
recommendations as to details of the work, the right to prescribe alterations
or deviations in the work — without incurring a retained control duty.”
(Id.)
Further, there is no evidence that Defendant Hill exercised
the retained control. 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. (See, e.g., Kinney v. CSB Construction,
Inc. (2001) 87 Cal.App.4th 28, 39 [a hirer's “mere failure to exercise a
power to compel the [contractor] to adopt safer procedures does not, without
more, violate any duty owed to the [contract worker]”]; Hooker, supra,
27 Cal.4th at p. 209 [quoting and agreeing with this passage in Kinney].)
(Sandoval v. Qualcomm Incorporated, supra, 12 Cal.5th 256, 275.) Thus, Plaintiff’s theories that Defendant
allowed Guy Yocom to engage in an unsafe practice because of its procedure for
bracing the columns, and that Hill allowed Guy Yocom to work on the column with
exposed rebar merely show the failure to exercise a power to adopt safety procedures.
There is no evidence presented which would show direction, participation or
induced reliance. A contractor retaining control over safety
conditions at a worksite alone does not constitute retention of control that
would impose liability on the hiring contractor without a showing that the
hirer’s exercise of retained control affirmatively contributed to the
employee’s injuries. (Hooker, supra 27 Cal.4th 198, 202.)
Next,
Plaintiff contends that Defendant is liable for Plaintiff’s injuries because
Defendant provided defective equipment. Plaintiff cites to McKown v.
Wal-Mart Stores, Inc., wherein the court held that “hirer is liable to an
employee of an independent contractor insofar as the hirer's provision of
unsafe equipment affirmatively contributes to the employee's injury." (McKown
v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 222.)
However, Plaintiff does not present evidence to show that the exposed rebar
affirmatively contributed to his fall in his opposition. “Affirmative contribution”
occurs where a proper owner or general contractor is actively involved in, or
asserts control over, the manner of performance of the contracted work. 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, supra, 27 Cal.4th at p. 215.) Thus, liability may lie
where the hirer actively directed that the work be done in a negligent fashion,
or made a negligent omission, such as promising to undertake a particular
safety measure but failing to do so. (Id., at p. 212.) While Plaintiff
argues in the opposition that Defendant promised to take a safety measure, that
promise was not made to Plaintiff, and Plaintiff admits that he was not aware
of the exposed rebar. Plaintiff’s
own evidence states that “despite having actual knowledge of the safety issue
with the subject column, and despite its requirement to do so, Hill did not
notify its subcontractor or their employees (including Plaintiff) who would be
working with the subject column, thus exposing Plaintiff to a danger which was
known to Hill, and Hill only.” (AMF No. 31.) The
Court also notes that the exposed rebar theory is a new theory raised in the
motion for summary judgment for the first time.
As discussed
above, because Plaintiff has not met his burden on summary judgment to show
that triable issues of fact exist as to whether Defendant Hill retained
control over operative details of the work and that Hill exercised that
retained control in a manner that affirmatively contributed to Plaintiff’s
injuries, Defendant’s motion
for summary judgment under the Privette doctrine is granted.
Conclusion
Accordingly,
Defendant’s motion for summary judgment is GRANTED.