Judge: Shirley K. Watkins, Case: 19STCV02928, Date: 2022-10-25 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 19STCV02928    Hearing Date: October 25, 2022    Dept: T

            [TENTATIVE] ORDER:  Defendants/Cross-Complainants Westlake Nail Bar and CH Realty/North Ranch, L.P.’s Motion for Summary Judgment and Summary Adjudication are DENIED.

Defendants/Cross-Complainants Westlake Nail Bar and CH Realty/North Ranch, L.P.’s Request for Judicial Notice is GRANTED as to the pleadings’ existence and not as to any facts in dispute or hearsay.

Introduction

Defendants/Cross-Complainants Westlake Nail Bar (Nail Bar) and CH Realty/North Ranch, L.P. (CH Realty) (collectively Defendants) moved for summary judgment (MSJ) and alternatively for summary adjudication (MSA) against Plaintiffs Jesus Fabiola Moreno Lopez; Evelyn Lopez Moreno, by and through her guardian ad litem, Jesus Fabiola Moreno Lopez; Jesus Everardo Lopez Moreno, by and through his guardian ad litem, Jesus Fabiola Moreno Lopez; and Fabian Lopez, by and through his guardian ad litem, Jesus Fabiola Moreno Lopez’s (collectively Plaintiffs) Complaint and Co-Defendant MK Diamond Products, Inc.’s (MK Diamond) Cross-Complaint.  MSA Issues 1 and 2 moved against the Complaint’s fourth and fifth causes of action (COA) for premise liability and negligent hiring, retention, and supervision.  MSA Issues 3 – 5 moved against MK Diamond’s contribution, total equitable indemnity, and declaratory relief COAs in the Cross-Complaint.  Plaintiffs and MK Diamond, separately, oppose the MSJ/MSA.

Procedure

MK Diamond asserted a procedural violation against the MSA because Issues 3 – 5 failed to discern between the two Cross-Complaints filed by MK Diamond.  (See Cal. Rules of Court, rule 3.1350.)  Although the procedural defect is grounds to deny MSA Issues 3 – 5, the Court proceeds to the substance of the arguments since the prejudice to MK Diamond is minimal.

MK Diamond’s request for a continuance is MOOT due to the Court’s denial of the MSJ and MSA. 

            Discussion 

            As to MSA Issues 1, 3, 4, and 5, Defendants asserted that there is no triable issue of fact as to a duty owed because they are the “hirer” of an independent contractor.  “The Privette line of decisions … establishes that an independent contractor’s hirer presumptively delegates to that contractor its tort law duty to provide a safe workplace for the contractor’s employees.  [Bolding added.]”  (SeaBright Ins. Co. v. U.S. Airways (2011) 52 Cal.4th 590, 600 (SeaBright); See also Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256, 269-270 (Sandoval); Privette v. Superior Court (1993) 5 Cal.4th 689;  Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253.)  Defendants asserted that Nail Bar, only, hired Co-Defendant C.M. Vogel (Vogel) as the licensed contractor for the project (DUMF 1.)  However, Defendants’ improperly attempt to use the Complaint as evidence, which is improper.  The Complaint is not verified and not admissible evidence.  Defendants’ DUMF 1 is not considered due to a lack of admissible evidence.  Without any admissible evidence showing that Nail Bar hired Vogel, Defendants reliance upon the alleged relationship is improper.  The Privette Doctrine or Shield is inapplicable because Defendants have not shown they are a hirer of an independent contractor.    

            Even if Defendants had admissible evidence that it was only Nail Bar that hired Vogel, MK Diamond’s evidence showed that Tai Huynh, the original owner of Nail Bar and uncle to Julie Huynh, hired Bautista and not Vogel. (MK Diamond’s Additional Material Facts (MKDAMF) 21 and 23.)  With evidence existing that Nail Bar hired Bautista directly, there are triable issues of fact as to whether Nail Bar hired Vogel or Bautista.  Vogel being licensed and Bautista allegedly being unlicensed is only one of the factors in determining the applicability of the Privette Doctrine.  Because evidence exists as to whether Nail Bar hired Vogel or Bautista, there is a triable issue of fact as to the Privette Doctrine.

The Privette Doctrine further requires a showing that Plaintiffs’ Decedent was employed by an independent contractor (i.e., Vogel – a licensed contractor), a matter of which is in dispute. Defendants’ evidence showed that Vogel entered into an oral agreement with Bautista, who then entered into an oral agreement with Hector Villegas, who then entered into an oral agreement with Plaintiffs’ Decedent to perform the work.  (DUMF 2.)  However, those facts are disputed by Plaintiffs’ evidence.  Vogel testified that Bautista was “out on his own” since 2005 and Vogel only “pulled permits” for Bautista beginning in 2014.  Vogel further testified that he first learned of the project when he was contacted by OSHA regarding the fatality.  (Plaintiffs’ Disputed Material Fact (PDMF) 2.)  These disputed facts show a triable issue of material fact as to whether Plaintiffs’ Decedent was employed by Bautista or Vogel.  Because the identity of Plaintiffs’ Decedent’s employer is at issue, there is a triable issue of fact as to whether the Privette Doctrine applies. 

With evidence presented that Bautista was hired by Nail Bar, evidence is required to show that Bautista had a license or that a license was not required in order to show independent contractor status.  (Labor C. sec. 2750.5;  Blackwell v. Vasilas (2016) 244 Cal.App.4th 160, 169-170; See also Foss v. Anthony Industries (1983) 139 Cal.App.3d 794, 798.)  Plaintiffs presented evidence showing that Bautista paid to use Vogel’s general contractor license to pull permits for jobs.  (Plaintiffs’ Additional Material Facts (PAMF) 3-6.)  It is inferred that Bautista is unlicensed since a contractor with a license would not need to collaborate with another that has a license to pull permits.  With the inference of Bautista’s unlicensed status, an issue is raised as to whether Bautista is an “independent contractor,” which is required to apply the Privette Doctrine.  “More than 30 years ago, we ruled that this language [in Labor Code section 2750.5] ‘absolutely denies independent contractor status to a person required to have such a license who is not licensed.’” (Blackwell, supra, 244 Cal.App.4th at p. 170 citing Foss, supra, 139 Cal.App.3d at p. 797.)  Because there is an inference of non-licensure and lack of evidence that a license was not required, Plaintiffs’ have met their burden of proof to show that a triable issue of fact exists as to whether Bautista is an “independent contractor.” 

Defendants argued against the two exceptions to the Privette Doctrine – concealed hazards under Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 and retention of control under Hooker v. Department of Transportation (2002) 27 Cal.4th 198.   Preliminarily, review of the two exceptions is premature because a triable issue of fact exists as to whether the Privette Doctrine even applies.  Courts are prohibited from issuing advisory opinions on matters that are not ripe for review.  (Hunt v. Sup. Ct. (1999) 21 Cal.4th 984, 998.)

            The MSJ and MSA as to Issues 1, 3-5 are DENIED.

As to MSA Issue 2, Defendants argue that there is no triable issue of fact as to the fifth COA for negligent hiring, retention, and supervision based on the Privette Doctrine.  Defendants argue that there is no triable issue of fact as any employment relationship between them and Plaintiffs’ Decedent.  However, with the triable issue of whether Defendants hired Vogel or Bautista, there is a triable issue of fact as to whether Plaintiffs’ Decedent was employed by Vogel or Defendants.  If it is determined by the trier of fact (due to the above issues of fact) that Vogel is the employer of Plaintiffs’ Decedent, then the Privette Doctrine would become an issue and Defendants may be protected from liability.  However, if it is determined by the trier of fact (again, based upon the above issues of fact) that Bautista is the employer of Plaintiffs’ Decedent, then the allegation that Bautista was unlicensed creates a triable issue of whether Defendants are Plaintiffs’ Decedent’s employer. 

The MSJ and MSA as to Issue 2 is DENIED.

            IT IS SO ORDERED, CLERK TO GIVE NOTICE.