Judge: Steven A. Ellis, Case: 21STCV10897, Date: 2023-10-09 Tentative Ruling
Case Number: 21STCV10897 Hearing Date: January 22, 2024 Dept: 29
Motion for Summary Judgment filed by Defendant Torrance
Refining Company, LLC
Tentative Ruling
Tentative
The Court will hear from counsel on all issues, including (but
not limited to) the questions set forth below.
This is a partial tentative ruling only. Nothing in this document is, or should be
construed or cited as, a ruling by the Court.
Background
This
action arises out of the injuries allegedly suffered on March 27, 2019, by Plaintiff
Willie Davis (“Plaintiff”). Plaintiff filed a complaint on March 22, 2021, asserting
one cause of action for negligence against Defendants Torrance Refining
Company, LLC (“TORC”); PBF Energy Western Region, LLC; and Does 1 through 10. TORC
filed an answer on November 12, 2021.
In
March 2023, Plaintiff amended his complaint to name Schultz Industrial
Services, Inc. (“Schultz”) as Doe 1 and Veolia ES Technical Solutions, LLC
(“Veolia”) as Doe 2. Shultz filed an answer on May 12, 2023.
On
June 23, 2023, TORC filed a cross-complaint against Schultz, Veolia, and Roes 1
through 100. On August 22, 2023, Schultz filed an answer to the
cross-complaint. On September 26, TORC filed a First Amended Cross-Complaint
against GEM Mobile Treatment Services, Inc. (“GEM”), Schultz, Veolia, and Roes
1 through 100.
On
August 2, 2023, the Court, at the request of Plaintiff, dismissed (without
prejudice) Plaintiff’s claims against Veolia.
On
December 5, 2023, the Court granted Veolia’s motion to compel arbitration of the
claims asserted in TORC’s cross-complaint against Veolia; stayed the litigation
in court of the claims between TORC and Veolia (only); and stayed the arbitration
pending the outcome of the court action.
Meanwhile, on September 7, 2023, TORC filed the instant motion
for summary judgment as to Plaintiff’s claims against TORC in the Complaint. On November 3, TORC filed a notice of “errata”
to one of the declarations it submitted in support of its summary judgment
motion. On November 8, 2023, Plaintiff
filed his opposition to the motion. On
the same day, TORC filed a notice of untimely opposition. On November 16, TORC filed its reply and
objections to Plaintiff’s response to TORC’s statement of undisputed material
facts.
The hearing was initially set for November 21, 2023, and was
continued on the Court’s own motion.
Legal Standard
“The
purpose of the law of summary judgment is to provide courts with a mechanism to
cut through the parties’ pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure
section 437c, subdivision (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 cause of action as framed by the complaint, a defendant moving for summary
judgment or summary adjudication must satisfy the initial burden of proof by
presenting facts to show “that one or more elements of the cause of action ...
cannot be established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra,
25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th
1510, 1520.) 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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd.
(p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.)
A
plaintiff or cross-complainant moving for summary judgment or summary
adjudication must satisfy the initial burden of proof by presenting facts to
show “that there is no defense to a cause of action if that party has proved
each element of the cause of action entitling the party to judgment on the
cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has
met that burden, the burden shift to the defendant or cross-defendant to show that
a “triable issue of one or more material facts exists as to the cause of action
or a defense thereto.” (Ibid.)
The party
opposing a motion for summary judgment or summary adjudication may not simply “rely
upon the allegations or denials of its pleadings” but must instead “set forth
the specific facts showing that a triable issue of material fact exists.” (Code
Civ. Proc., § 437c, subds. (p)(1) & (p)(2). 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.)
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.)
Evidentiary
Objections and Other Procedural Matters
First, TORC states three objections to Plaintiff’s
response to its statement of undisputed facts in support of the motion. Evidence presented in support of, or in
opposition to, a motion for summary judgment must be admissible. (Code Civ.
Proc., § 437c, subd. (d); Perry v. Bakewell Hawthorne LLC (2017) 2
Cal.5th 536, 541-43.) The court must “consider all of the evidence set forth
in the papers, except the evidence to which objections have been made and
sustained.” (Code Civ. Proc., § 437c, subd. (c).)
TORC’s objections, which
appear to be more to the form of the response rather than to the evidence and
presented by Plaintiff, are overruled.
To the extent TORC is
objecting on the ground that the evidence cited by Plaintiff does not create a disputed
and triable issue of material fact, the Court will rule based on the evidence,
not either party’s characterization of the evidence.
Second, TORC objects to
Plaintiff’s opposition on the grounds that it is untimely. Plaintiff’s opposition was due to be filed
and served on November 7. According to
the file stamp, the documents were filed at precisely midnight on November 8 –
one minute late. The proofs of service attached
to the opposition documents state that they were electronically served on
November 7; TORC submits an email indicating, however, that the electronic service
copies may in fact have not been received until 12:03 am on November 8.
On this record, the Court
exercises its discretion to consider Plaintiff’s opposition and supporting papers. TORC has not shown any prejudice from the delay
in filing of one minute, and the delay in delivery of the electronic service of
three minutes, and on a motion as important as a motion for summary judgment,
the Court will not preclude Plaintiff from being heard based on such a short and
non-prejudicial delay.
Third, according to TORC’s
counsel, a key witness was deposed on November 6, 2023, and TORC submitted a
short passage from the deposition transcript with its reply papers. (Park Reply Decl., ¶ 3 & Exh. 16.) The Court is concerned about considering
evidence submitted with reply papers on a motion for summary judgment, and the
Court is concerned that Plaintiff may not have had a full and fair opportunity
to use information from the deposition in its opposition (which was due one day
after the deposition).
Does Plaintiff object to the excerpt
from deposition transcript submitted with the reply papers? Does either party request a continuance of
the hearing and/or the opportunity to submit further briefing based upon the
deposition of this witness (or for any other reason)?
Discussion
At the time of the accident, Plaintiff was working within the
scope of his employment with GEM at a job site owned and/or operated by
TORC. (Complaint, at p. 4; Defendant’s
Statement of Undisputed Material Facts [“DSUMF”], Nos. 1-2, 4-5, 12-13, 19.) GEM was a contractor hired by TORC to perform
certain services at the job site.
(DSUMF, No. 15-16.) There were no
TORC employees located in the area of the job site when the accident occurred. (DSUMF, No. 17.)
Plaintiff states that the accident occurred while he was
switching a debris box roll off dumpster filled with waste to replace it with a
clean box. (Complaint, at p. 4; DSUMF,
No. 4.) Another party, Veolia, was the
entity that was picking up the debris box roll off dumpster and switching them
out with clean boxes on a flat bed truck.
(Complaint, at p. 4; DSUMF, Nos. 6-7.)
In connection with this process, Veolia’s driver moved the
truck forward to pull the full debris box out from under machinery across three
steel road plates. (Complaint, at p. 4;
DSUMF, Nos. 8-10.) One of the steel
plates went up into the air and landed on Plaintiff’s foot, causing substantial
injuries. (Complaint, at p. 4; DSUMF,
No. 11.)
The steel plates were delivered and installed by another
party, Schultz. (DSUMF, No. 20; Natale
Decl, Exh. 4 [“Teel Depo.”], at 30:4-13.)
Schultz was not asked to weld the steel plates together. (Teel Depo. at 32:20-22.)
Kevin Teel, superintendent of major planning for TORC,
requested that Schultz deliver and install the steel plates. (Natale Decl., Exh. 3; Teel Depo, at 12:18-23.) Teel testified at his deposition that he did
not have a specific recollection about the request; he stated, “GEM would have
dictated which and how many and where they go. I was aware that they needed them. I don’t remember if that was GEM asking me or
how I came to the understanding to send the e-mail.” (Teel Depo, at 36:6-22.) Teel further explained, “My relationship with
GEM is we hired GEM to facilitate and execute this project. And if they were to need some subcontractor
help that I could help intervene, I would have done that, so I don’t really
remember, like I answered earlier. (Id.,
at 38:20-39:1.)
There is a dispute regarding whether anyone asked TORC to weld
the three steel plates together prior to the incident. (See DSUMF, No. 21; Plaintiff’s Statement of
Additional Material Facts [“PSAMF”], No. 4.]
The written contract between TORC and GEM provides that GEM
will supervise the work and be responsible for the work, including safety
issues. (DSUMF, Nos. 42-55.)
Plaintiff asserts a cause of action
against TORC for general negligence. The elements of a cause of action
for negligence are (1) the existence of a legal duty; (2) breach of that duty;
(3) causation; and (4) resulting damages.
(See Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Kesner v. Super. Ct. (2016) 1 Cal 5th 1132, 1142.) As it relates to this motion, Plaintiff’s
primary contention is that TORC was negligent in not welding the three steel
road plates together or otherwise securing them. (See Complaint, at p. 4.)
TORC argues that Plaintiff’s claim against TORC is
barred as a matter of law under the rule of Privette v. Superior Court
(1993) 5 Cal.4th 689, and its progeny. In Privette and other cases, courts
have recognized (1) that workers compensation coverage generally provides the
exclusive remedy for injuries sustained at work; and (2) that an owner of the work
premises or a party who hires a contractor to provide services through the
contractor’s employees should not be subject to any greater liability than the
contractor-employer. As the California Supreme Court explained in Privette:
[T]he
“principal” who hires an independent contractor should be subject to no greater
liability “than its [independent contractor] agent,” whose exposure for injury
to an employee is limited to providing workers' compensation insurance. (Olson
v. Kilstofte and Vosejpka, Inc., supra, 327 F.Supp. 583, 587.) … [T]he rule
of workers’ compensation exclusivity, which shields an independent contractor
who pays workers’ compensation insurance premiums from further liability to its
employees for on-the-job injuries, should equally protect the property owner
who, in hiring the contractor, is indirectly paying for the cost of such
coverage, which the contractor presumably has calculated into the contract
price. Therefore, these courts have concluded, the property owner should not
have to pay for injuries caused by the contractor’s negligent performance of
the work when workers’ compensation statutes already cover those injuries.
(Privette, supra, 5 Cal.4th at p. 699.)
Here, the undisputed facts establish that TORC retained
the services of GEM to provide certain services at a facility owned and/or
operated by TORC, and that Plaintiff was injured while working for GEM at the
TORC facility. In this scenario, under
the Privette doctrine, Plaintiff is generally barred from bringing a
civil action against TORC. (Ibid; see also, e.g., Sandoval v.
Qualcomm (2021) 12 Cal.5th 256, 270 [“a hirer is ordinarily not liable to
the contract workers”]; Gonzalez v. Mathis (2021) 12 Cal.5th 29, 41 [“we
have repeatedly reaffirmed the basic rule that a hirer is typically not liable
for injuries sustained by an independent contractor or its workers while on the
job”]; Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1244-1245.)
Thus, the Court concludes that TORC has met its initial
burden of showing that there is a complete defense (the Privette
doctrine) to the cause of action asserted by Plaintiff against TORC. The burden under Code of Civil Procedure
section 437c now shifts to Plaintiff to show that there is a triable issue of one
or more material facts as to this defense.
In his Opposition, Plaintiff attempts to do so by arguing
that one of the recognized exceptions to the Privette doctrine applies
here. As the California Supreme Court
recently explained, courts have recognized two exceptions to Privette: “where
the hirer either [1] withholds critical information regarding a concealed
hazard … or [2] retains control over the contractor’s work and actually
exercises that control in a way that affirmatively contributes to the worker’s
injury.” (Sandoval v. Qualcomm
(2021) 12 Cal.4th 256, 264.)
In addition to the questions set forth above, the
Court has questions for counsel:
First, who hired Schultz to deliver and install the
steel plates? Was it TORC or GEM?
Second, who was responsible for determining that Schultz
performed its installation of the steel plates in a safe manner? Was TORC responsible? Was GEM?
Neither? Both?
Third, the Court understands (from Teel’s
deposition) that Schultz had the capability to perform welding services if
requested to do so. Who made the
decision to ask Schultz to deliver and install the steel plates without
requesting welding services?
Fourth, the Court understands that there is a substantial
disagreement over whether TORC and/or GEM and/or Schultz and/or someone else is
legally responsible for the failure to weld the steel plates together. Assume the Court concludes that it is Party
X. With that assumption, is there any
dispute, at least for purposes of this summary judgment motion, that Party X
was negligent in not arranging for the welding of the three steel plates together
(or otherwise for not securing them in a safe manner)?
Conclusion