Judge Stephen I. Goorvitch, Case 20STCV16642 2022-08-26 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 20STCV16642, Date: 2022-08-26 Tentative Ruling

Case Number: 20STCV16642 Hearing Date: August 26, 2022 Dept: 39

Amir Malekan v. Mill Creek Residential, Inc., et al.

Case No. 20STCV16642

Order #1 of 2

MCRT’s Motion for Summary Judgment

INTRODUCTION

Plaintiff Amir Malekan (“Plaintiff”) filed this action against the following defendants:

1. Mill Creek Residential Trust, LLC (the “Trust”)

2. MCRT California Construction, L.P. (“MCRT”)

3. MCREF Highland & Selma LLC (“MCREF”)

Plaintiff alleges as follows: Defendants were developing a property and hired Allied Nationwide Security (“Allied”) to provide security services. Allied assigned Plaintiff, a security guard, to provide security for the project. On January 12, 2019, Plaintiff was working on the property when a wooden door fell on him, causing injury. Plaintiff asserts causes of action for premises liability, negligence, and negligence per se. MCRT moves for summary judgment, which Plaintiff opposes. Defendants also seek a protective order with respect to certain discovery, which Plaintiff opposes. The Court denies both motions.

FACTUAL BACKGROUND

MCREF was the owner/developer of the project and hired MCRT as the general contractor for the construction of the Modera Hollywood Apartments, located at 6709 Selma Avenue in Los Angeles, California. (Plaintiff’s Response to MCREF’s Separate Statement, ¶ 3.) As the general contractor, MCRT retained various independent subcontractors. (Ibid.) MCRT entered into a subcontract with So Cal Sanitation, LLC (“So Cal Sanitation”), who supplied the perimeter fencing and the door that allegedly fell on Plaintiff. (Id., ¶ 5.) MCRT also contracted with Allied Nationwide Security, Inc. (“Allied”) to provide security services. (Id., ¶¶ 7-8.)

Plaintiff was working as a security guard for Allied on January 12, 2019. (Id., ¶¶ 8, 15.) The door at issue was off its hinges and being held up by wire. (Id., ¶ 15.) At approximately 9:00 p.m., Plaintiff needed to use the portable bathroom, which required him to pass through the door’s opening. (Id., ¶ 16.) Afterwards, Plaintiff again passed through the door’s opening, and the door fell on him. (Ibid.)

PROCEDURAL HISTORY

Defendants filed motions for summary judgment under the Privette doctrine. Defendants also filed a motion for a protective order with respect to certain discovery requests by Plaintiff. Specifically, Plaintiff is pursuing an alter ego theory of liability against MCREF and the Trust. The Court held a hearing on May 25, 2022, and ruled that it would decide MCRT’s motion for summary judgment first. The Court reasoned that if MCRT’s motion for summary judgment is granted, then the other Defendants would be entitled to summary judgment. The Court reasoned that if MCRT’s motion for summary judgment is denied, then alter ego discovery may be relevant.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.)

EVIDENTIARY ISSUES

MCRT’s motion for summary judgment relies on MCRT’s theory that homeless people caused the dangerous condition on a Saturday, and that Plaintiff was injured less than 24 hours later. MCRT relies on the following fact:

On Saturday, January 12, 2019, at or around 2:30 a.m., while Allied had security guards on patrol, it appears that homeless people tried to access the Property and kicked the Subject Door and allegedly knocked it off its hinges so that the door was lying flat on the ground. The police were called by Allied security officer Daniel Yell. The police responded and left their card.

(MCRT’s Separate Statement, ¶ 12.) However, this purportedly undisputed fact is not based on admissible evidence. MCRT relies upon a report by Luchay and Associates, which investigated Plaintiff’s claim. However, this report is not in the form of a declaration. Even if the report itself was not inadmissible hearsay, it relies on multiple layers of hearsay, i.e., “witness statements.” For example, the report states: “Witnesses stated at approximately 2:30 AM on January 12, 2019 the door involved in the incident had been kicked in and knocked off its hingers by homeless individuals attempting to enter the property. The police responded and a copy of their business card was obtained.”

The mere fact that this report was produced by Plaintiff in discovery does not render it admissible. MCRT relies on the fact that Plaintiff produced this report in response to Special Interrogatory Number 16, but that interrogatory merely asked Plaintiff to “state the results of any and all investigations conducted by anyone regarding [your] [workers’ compensation] claim.” Similarly, Plaintiff produced the report in response to Request for Production Numbers 1 and 17, but those requests merely requested the report.

In sum, the report by Luchay and Associates—which is the only evidence supporting MCRT’s theory that homeless people damaged the door shortly before Plaintiff’s accident—is inadmissible. Therefore, the Court sustains Plaintiff’s objection to this evidence and disregards the purportedly undisputed fact at issue.

DISCUSSION

MCRT moves for summary judgment under the Privette doctrine. In Privette v. Superior Court (1993) 5 Cal.4th 689, the California Supreme Court held that “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.” (Id. at 693.) “Generally, when 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. U.S. Airways, Inc. (2011) 52 Cal.4th 590, 594.) There are three potential exceptions relevant to this case. First, “if a hirer does retain control over safety conditions at a worksite and negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, it is only fair to impose liability on the hirer.” (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 213.) Second, there may be liability if the hirer knew or should have known about a concealed, preexisting hazardous condition and failed to warn the subcontractor. (Padilla v. Pomona College (2008) 166 Cal.App.4th 661, 666.) Third, as a natural extension of these two exceptions, there is liability if the hirer created the hazardous condition.

It is important first to understand MCRT’s specific argument under the Privette doctrine. Unlike MCREF and the Trust, MCRT does not argue that it had no role in the construction project and therefore all of the work—including erecting the fence and door at issue—necessarily was done by a subcontractor. Presumably, MCRT cannot make such an argument because MCRT was the general contractor and performed some of the work. Indeed, one of MCRT’s employees described MCRT as the “construction arm” of Mill Creek. (Declaration of Eric Wilson, Exh. #8, p. 15.) This alone is evidence that MCRT did some of the “construction” on the project.

Rather, MCRT’s argument is that the particular door at issue was the responsibility of a specific subcontractor, So Cal Sanitation, LLC (“SoCal Sanitation”). MCRT relies on the following undisputed fact:

MCRT entered into a subcontract with independent contractor [SoCal Sanitation] who supplied the temporary perimeter fencing and the Subject door which plaintiff alleges fell on him at the Project. The purpose of the fencing and doors was to keep the general public out of the construction site and ensure public safety.

(MCRT’s Separate Statement, ¶ 5.) This is sufficient to satisfy MCRT’s burden, shifting the burden to Plaintiff to advance sufficient evidence to give rise to a triable issue.

Plaintiff relies on evidence that, in fact, the door was not supplied by SoCal Sanitation. Jorge Quezada of SoCal Sanitation testified that his company provided only fencing and no doors. (Declaration of Eric N. Wilson, Exh. #2, p. 28.) Specifically, he testified as follows:

Q: Did you see pictures of any plywood doorways or doors in any of those photos?

A: Yes.

Q: Do you know who built those plywood doors for the doorways?

A: We don’t build doors. We only build [sic] the wood fence.

Q: Do you know who placed that plywood in an erect fashion so it would serve as a door?

A: No. No.

(Id., Exh. #2, pp. 30-31.) In fact, he testified that SoCal Sanitation does not make that type of door, and “someone else manipulated the material.” (Id., Exh. #2, p. 34.)

Q: Sir, you said for the last hour that the plywood door was provided by So Cal but not erected by So Cal; correct?

A: I said that the wood or the plywood, yes, but not the door.

Q: I understand that. The plywood was So Cal’s plywood that then became erected into a door, was that your opinion; correct?

A: Yes. . . .

. . .

Q: Did So Cal provide any hinges for wood doors to this project?

A: No.

Q: And how do you know that?

A: Because we did not do any type of project of a door to be able to enter there into the project.

(Id., Exh. #2, p.68.) In sum, Quezada testified that, in fact, SoCal Sanitation did not hang the door and someone else used its materials to do so.

Other witnesses provided similar testimony. For example, Rodolfo Lopez testified that SoCal Sanitation did not manufacture or install the door at issue because “[t]hose are not hingers that we carry or have in stock or use on any kind of project.” (Id., Exh. #3, p. 32.) Spencer Lontok testified “[w]e did not provide a door of plywood . . . . I am certain of that.” (Id., Exh. #4, p. 34.) John Guerra testified that he has never seen SoCal Sanitation use a door that is made out of plywood. (Id., Exh. #5, p. 52.) Carlos Huizar testified that SoCal Sanitation did not build the door at issue, since the invoices did not include a door and SoCal Sanitation has never sold a canopy that included a hinged door. (Id., Exh. #6, pp. 42-43, 50, 75-76.) Huziar also testified that a plywood fence would never include a plywood door. (Id., Exh. #6, p. 53.) In fact, the invoice did not include a door. (Id., Exh. #6 (Deposition Exhibit #3).) Finally, Miriam Martinez testified that the door at issue is not SoCal Sanitation’s door. (Id., Exh. #7, p. 25.) Perhaps most important, Martinez that the door was owned by MCRT:

Q: Do you know who owned that door as of January 12, 2019?

A: I believe MCRT.

(Id., Exh. #7, p. 30.)

Based upon the foregoing, MCRT is not entitled to summary judgment under the Privette doctrine. MCRT argues that a specific subcontractor—SoCal Sanitation—was responsible for the door, and there is a triable issue whether that is correct. MCRT identifies no other subcontractor that could have been responsible. Nor does MCRT provide any basis to conclude that it performed no work on this project and someone else necessarily was responsible. This record gives rise to a genuine dispute whether MCRT was responsible for the hazardous condition, i.e., a plywood door hung with wire, and whether it exercised some control over the job site, i.e., having hung the door in the first place. Further, in the absence of undisputed evidence that a specific subcontractor was responsible for the door, there is a triable issue because MCRT was the general contractor who performed “construction” work on the project and benefitted from the door because it secured the construction site. Therefore, the Court cannot grant summary judgment on this record.

Putting that aside, even if it was undisputed that SoCal Sanitation installed the plywood door, MCRT still would not be entitled to summary judgment under the Privette doctrine. There still would be a genuine question whether MCRT knew or should have known that a plywood door attached to its frame only by wire posed a safety hazard, giving rise to a duty to warn Allied’s security officers and other personnel at the construction site. MCRT’s motion relies on evidence that: (1) The door was originally installed with hinges; (2) The door was knocked down by homeless people on Saturday, less than 24 hours before Plaintiff’s accident; and (3) The door was re-attached by unknown parties with wire. As discussed, there is no admissible evidence in support of this proposition. There is no admissible evidence that the hazardous condition, i.e., a plywood door attached to the frame only by wire, was created only hours before Plaintiff’s accident during a weekend. In the absence of such evidence, MCRT cannot establish that it lacked actual or constructive notice of the condition. To the contrary, drawing all reasonable inferences in favor of Plaintiff, the Court must assume for purposes of this motion that the hazardous condition existed before Saturday, i.e., during working hours, and that someone from MCRT knew or should have known about the flimsy door.

The Court has considered MCRT’s remaining arguments and finds none to be persuasive. The Court need not address Plaintiff’s remaining arguments. In particular, the Court need not reach the parties’ dispute whether Plaintiff testified that the door was behind “held up” by wire four days before his accident or whether he merely testified that the door was “latched” with wire.

CONCLUSION AND ORDER

MCRT seeks to avail itself of the Privette doctrine, arguing that it hired a subcontractor, SoCal Sanitation, to secure the construction site. Plaintiff proffers sufficient evidence to give rise to a triable issue whether, in fact, SoCal Sanitation performed the alleged services. MCRT provides no evidence that any other subcontractor necessarily performed those services and cannot dispute that it was performing the construction work. Nor does MCRT provide sufficient evidence that the hazardous condition was not present long enough to give rise to a duty to warn Allied’s personnel, like Plaintiff. Therefore, the Court denies MCRT’s motion for summary judgment. Plaintiff’s counsel shall provide notice and file proof of such with the Court.

Order #2 of 2

Defendants’ Motion for Protective Order

MCREF and the Trust’s Motions for Summary Judgment

Plaintiff Amir Malekan (“Plaintiff”) filed this action against the following defendants:

1. Mill Creek Residential Trust, LLC (the “Trust”)

2. MCRT California Construction, L.P. (“MCRT”)

3. MCREF Highland & Selma LLC (“MCREF”)

Having denied MCRT’s motion for summary judgment, the Court now turns to Defendants’ motion for a protective order. Plaintiff seeks discovery concerning his theory that MCREF and the Trust are alter egos of MCRT. “Corporate entities are presumed to have separate existences, and the corporate form will be disregarded only when the ends of justice require this result.” (Laird v. Capital Cities/ABC, Inc. (1998) 68 Cal.App.4th 727, 737, overruled on other grounds by Reid v. Google, Inc. (1998) 68 Cal.App.4th 727.) “In California, two conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone.” (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App 4th 523, 538.)

The Court has no tentative order on Defendants’ motion for a protective order. The Court intends to discuss a potential stipulation with the parties:

1. Defendants and the appropriate officials from the respective insurance companies stipulate that the $51 million in insurance would cover any judgment against MCRT over the allegations in this case and that it is not necessary for Plaintiff to obtain a judgment against MCREF and/or the Trust in order to access this insurance coverage.

2. MCREF and the Trust stipulate that they would cover any excess judgment against MCRT, if MCRT does not have sufficient resources to do so.

3. MCRT stipulates not to raise a defense at trial that another Mill Creek entity, e.g., MCREF and/or the Trust, would be liable for this incident and Plaintiff has sued the wrong entity.

4. Plaintiff stipulates to dismiss MCREF and the Trust from this action.