Judge: Steven A. Ellis, Case: 22STCV31448, Date: 2023-08-21 Tentative Ruling
Case Number: 22STCV31448 Hearing Date: April 4, 2024 Dept: 29
Defendant’s Motion for Summary Judgment, or, in
the Alternative, for Summary Adjudication
TENTATIVE
The motion for summary judgment is granted.
Background
Plaintiff Roberto Valencia (“Plaintiff”) alleges that on May 26,
2021, he was injured on premises owned or controlled by Defendant The Brentwood
at Kiowa Homeowners Association (“Defendant”) while he was providing
maintenance and/or repair services on the heating and air conditioning
equipment. (Complaint, ¶¶ 2, 11-14.) Specifically, Plaintiff alleges that while
opening a gate on a patio, he stepped backward, tripped, and fell backwards on
to and through a skylight, falling into the interior of the premises, hitting
the floor, and sustaining severe injuries. (Id., ¶¶ 15-17, 25.)
On September 26, 2022, Plaintiff filed the complaint in this
action against Defendant and Does 1 through 50, asserting causes of action for
general negligence and premises liability. Defendant filed the answer to the
complaint on December 19, 2022.
Defendant
filed this motion for summary judgment, or in the alternative for summary
adjudication, along with its supporting evidence and request for judicial
notice, on December 8, 2023. Plaintiff filed his opposition, supporting
evidence, and his own request for judicial notice on March 12. Defendant filed
its reply, along with objections to Plaintiff’s evidence, on March 27.
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.)
Request
for Judicial Notice
Defendant’s
request for judicial notice of the complaint in this action is GRANTED.
Plaintiff’s
request for judicial notice of California Code of Regulations, Title 8, Section
3212, is GRANTED.
Evidentiary
Objections
Defendant objects to some of Plaintiff’s evidence. 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).)
Defendant
asserts 117 objections to Plaintiff’s evidence. Some of them border on the
frivolous. By way of example only, and not as a complete list, Defendant
objects to testimony of witnesses regarding such matters as the length of their
own employment, their own work assignment, their own title, and their own
observations on various grounds, including “lacks foundation.” (E.g., Objections
Nos. 1-2, 20-21, 71-73; see also Nos. 55-58, 78, 97-99, 101-102-110, 112-117.) Defendant
is cautioned not to make objections that are frivolous or in bad faith.
All of Defendant’s
objections are overruled.
Plaintiff’s
Overly Long Opposition
An
opposition to a motion for summary judgment may not exceed 20 pages. (Cal.
Rules of Court, rule 3.113(d).) Plaintiff’s opposition is 27 pages long
(beginning on page 2 and ending on page 28).
The
Court will exercise its discretion to consider Plaintiff’s overly long
opposition. Plaintiff is cautioned not to violate the Rules of Court, whether
in regard to to the maximum length of briefs or otherwise.
Discussion
Plaintiff asserts causes of action against Defendant
for general negligence and premises liability. The basic elements of a cause of
action for negligence and for premises liability are the same: (1) the
existence of a legal duty; (2)
breach of that duty; (3) causation; and (4) resulting damages. (Brown
v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; Castellon v. U.S. Bancorp
(2013) 220 Cal.App.4th 994, 998.)
Defendant
contends that, under the so-called Privette doctrine, it neither owed nor
breached any duty to Plaintiff. Defendant argues that no exception to Privette
applies here.
Duty
and Breach Under the Privette Doctrine and its Exceptions
Defendant’s primary argument is that under the rule
of Privette v. Superior Court (1993) 5 Cal.4th 689, and its progeny, Defendant
owed no duty to Plaintiff and breached no duty to Plaintiff, and that therefore
Plaintiff’s claims against Defendant are barred as a matter of law. In Privette
and subsequent cases, courts have repeatedly affirmed the rule that when a
person or entity hires an independent contractor to provide work or services, and
one of the contractor’s employees is injured on the job, the hirer is generally
not liable to the employee. (Id., at p. 702; see also, e.g., 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.)
Initially, the California Supreme Court based this
rule primarily on the existence of the worker’s compensation remedial scheme.
As the cases explained: (1) workers compensation coverage generally provides
the exclusive remedy for injuries sustained at work; and (2) the hirer (the owner
of the work premises or the person or entity that hires a contractor to provide
services through the contractor’s employees) “should be subject to no greater
liability” than the contractor. (Privette, supra, 5 Cal.4th at p. 699.)
[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, … 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.
(Ibid.)
In the decades since the Privette decision,
courts have “recast [the] primary rationale for the Privette doctrine in
terms of delegation rather than workers’ compensation.” (Sandoval v.
Qualcomm (2021) 12 Cal.5th 256, 270.) “There is a strong presumption under
California law that a hirer of an independent contractor delegates to the
contractor all responsibility for workplace safety.” (Gonzalez, supra, 12
Cal.5th at p. 37.) “This means that a hirer is typically not liable for
injuries sustained by an independent contractor or its workers while on the
job.” (Id., at pp. 37-38.)
“When a person or organization hires an independent contractor, the hirer
presumptively delegates to the contractor the responsibility to do the work
safely. … This presumption is grounded in two major principles: first, that
independent contractors by definition ordinarily control he manner of their own
work; and second, that hirers typically hire independent contractors precisely
for their greater ability to perform the contracted work safely and
successfully.”
(Sandoval, supra, at p. 269.) The hirer, in
contrast, “is typically less knowledgeable and more poorly positioned to
prevent injury to the contract workers than the contractor is.” (Id. at
p. 270.) Accordingly, “A person or entity hiring an independent contractor (a
‘hirer’) ordinarily delegates to that independent contractor all responsibility
for the safety of the contractor’s workers.” (Id. at p. 264; see also,
e.g., Seabright Ins. Co. v. U.S. Airways, Inc. (2011) 52 Cal.4th 590,
597 [“Our decisions recognize a presumptive delegation of responsibility for
workplace safety from the hirer to the independent contractor, and a
concomitant delegation of duty.”]; Tverberg v. Fillner Construction, Inc. (2012)
202 Cal.App.4th 1439, 1445 [“When a hirer delegates contracted work to an
independent contractor, it also impliedly delegates its duty to provide a safe
workplace to that contractor. In these circumstances, the hirer has no duty and
the contractor may not recover from the hirer for his or her injuries.”].)
The California Supreme Court has recognized two
primary exceptions to the Privette doctrine. First, the hirer may be
liable where it “retains control over the contractor’s work and actually
exercises that control in a way that affirmatively contributes to the worker’s
injury.” (Sandoval, supra, 12 Cal.5th at p. 264; see also, e.g., Gonzalez,
supra, 12 Cal.5th at p. 38.) This is sometimes referred to as the “Hooker
exception,” named after the California Supreme Court case in which the
exception was recognized, Hooker v. Department of Transportation (2002)
27 Cal.4th 198, 202. The Hooker exception applies only when the evidence
shows “not only that the hirer retained control over the contracted work, but
also that the hirer actually exercised that retained control in a manner than
affirmatively contributed to the contract worker’s injury.” (Sandoval,
supra, 12 Cal.5th at p. 274.) Merely retaining the right to become involved
is not sufficient; rather, there must be evidence that through (for example)
“direction” or “participation,” the hirer actually “involve[d] itself in the
contracted work” to such an extent that the contractor was “not entirely free
to do the work in the contractor’s own manner.” (Sandoval, supra, 12
Cal.5th at p. 276; see also, e.g., Gonzalez, supra, 12 Cal.5th at p. 42;
Tverberg, supra, 202 Cal.App.4th at pp. 1446-1448.)
If the immediate cause of the worker’s injury is the
conduct of the contractor, a plaintiff must show that “the hirer in some
respect induced – not just failed to prevent – the contractor’s injury-causing
conduct.” (Sandoval, supra, 12 Cal.5th at p. 277.) Alternatively, a
plaintiff may demonstrate affirmative conduct by the hirer through evidence that
“the hirer’s exercise of retained control contribute[d] to the injury
independently of the contractor’s contribution (if any) to the injury.” (Ibid.)
Second, the hirer may also be liable where it
“withholds critical information regarding a concealed hazard.” (Id., at
p. 264.) This is sometimes referred to as the “Kinsman exception,” named
after the California Supreme Court case in which the exception was recognized, Kinsman
v. Unocal Corp. (2005) 37 Cal.4th 659. Although the hirer ordinarily “turns
over control of the worksite to the contractor so that the contract can perform
the contracted work,” the hirer may still be liable under the Kinsman exception
for injuries resulting from a “hazard that the hirer either knows or reasonably
should know exists, and that the contractor does not know exists and could not
reasonably discover without the hirer’s disclosure.” (Sandoval, supra, 12
Cal.5th at pp. 271-272; see also, e.g., Gonzalez, supra, 12 Cal.5th at
pp. 38, 42-43; Kinsman, supra, 37 Cal.4th at p. 664.)
The Kinsman exception is a limited in scope. As
the California Supreme Court explained in Kinsman:
[W]hen there is a known safety hazard on a hirer’s premises that can be
addressed through reasonably safety precautions on the part of the independent
contract, a corollary of Privette and its progeny is that the hirer
generally delegate the responsibility to take such precautions to the contractor,
and is not liable to the contractor’s employee if the contractor fails to do
so. We see no persuasive reason why this principle should not apply when the
safety hazard is caused by a preexisting condition on the property, rather than
by the method in which the work is conducted.
(37 Cal.4th at pp. 673-674.) The landowner or hirer
may be liable only when the hazard “is concealed from the contractor.” (Id.
at p. 674.) For the exception to apply, there must be a showing that (1) the landowner
or hirer “knows or reasonably should know of a concealed, preexisting hazardous
condition on its premises”; (2) the contractor “does not know and counsel not
reasonably ascertain the condition”; and (3) the landowner or hirer does not
warn the contractor. (Id. at p. 675.)
The Second District Court of Appeal recently
addressed the scope of the Kinsman exception in Acosta v. MAS Realty,
LLC (2023) 96 Cal.App.5th 635, a detailed and thorough opinion authored by Justice
Edmon. The basic delegation principle of the Privette doctrine, as summarized
in Acosta, is as follows: “Because the hirer presumptively delegates to
the independent contractor the authority to determine the manner in which the
work is to be performed, the contractor also assumes the responsibility to
ensure that the worksite is safe, and the work is performed safely.” (Id., at
p. 650.)
The
Application of the Privette Doctrine
Plaintiff
alleges that he was injured in an accident that occurred at a multi-unit
residential building owned or controlled by Defendant. (Complaint, ¶ 2;
Defendant’s Statement of Undisputed Material Facts [“DSUMF”], Nos. 1, 10.) Defendant
contracted with Circulating Air, Inc. to perform maintenance on air conditioning
units on the premises. (Plaintiff’s Statement of Additional Material Facts [“PSAMF”],
No. 33; DSUMF, No. 11.)
At the
time of the accident, Plaintiff was working as an HVAC technician/installer
employed by Circulating Air. (DSUMF, Nos. 2, 9; PSAMF, No. 34.) Although the
word “roof” is used in the Complaint, it is undisputed that the area of the
skylight is a floor (or patio) and not a roof. (PSAMF, No. 37.) After servicing
two or three units on the fourth-floor roof, Plaintiff descended by ladder to a
patio area in which the skylight is located. (PSAMF, Nos. 45-46.) As Plaintiff
took a step back, his foot hit the border of the skylight and he tripped and
fell into the plastic dome of the skylight. (DSUMF, No. 23; PSAMF, No. 47.) He
fell through the skylight and landed on the floor, approximately two floors
below. (PSAMF, Nos. 7, 48.) The skylight was not obstructed or concealed.
(DSUMF, Nos. 27-28.)
Circulating
Air was not performing any maintenance or other work on the skylight in
question. (PSAMF, Nos. 33, 35.)
As an
initial matter, the Privette doctrine applies here. It is undisputed
that the accident at issue occurred while Plaintiff was working within the
course and scope of his employment with Circulating Air, Inc. (DSUMF, Nos. 1-2,
9-10; PSAMF, No. 34.) It is also undisputed Defendant hired Circulating Air, an
independent contractor, to perform maintenance work on Defendant’s premises. (DSUMF,
No. 11; PSAMF, No. 33.) On these undisputed facts, unless an exception applies,
Privette bars a claim against Defendant for an on-the-job injury
sustained by the independent contractor’s employee. (E.g., Gonzalez, supra, 12 Cal.5th at p.
41; Privette, supra, 5 Cal.4th at p. 702.)
Plaintiff concedes
that the Hooker exception does not apply in this case. (Opp. at p. 11.) Thus,
the Court now turns to the Kinsman exception, upon which Plaintiff
primarily relies. (Opp. at pp. 11-22.)
For the Kinsman
exception to apply, the starting point (as noted above) is that, there must
be a showing that (1) the landowner or hirer “knows or reasonably should know
of a concealed, preexisting hazardous condition on its premises”; (2) the
contractor “does not know and counsel not reasonably ascertain the condition”;
and (3) the landowner or hirer does not warn the contractor. (Kinsman,
supra, 37 Cal.4th at p. 675.) Here, there is at least a triable issue on some
of the elements of this test. For example, there is at least a triable issue on
whether Defendant either knew or should have known about the preexisting
hazardous condition, and there is no evidence that Defendant warned the
contractor about the condition (See PSAMF, Nos. 4, 39; DSUMF, No. 10.)
The skylight
itself was not concealed. (DSUMF, No. 28.) Nonetheless, Plaintiff argues, that
it was the potential for harm from the skylight that constitutes a latent
hazard, and that Plaintiff did not know, and could not have known, that
Defendant had not taken appropriate protective measures required by statute and
regulation. (Opp. at pp. 16-17.) The duty to make the hazardous condition safe
(or warn of the hazardous condition) remains with the property owner, Plaintiff
argues, and is not delegated to the independent contractor under these
circumstances. (Opp. at pp. 18-20.)
The Court of
Appeal’s opinion in Acosta, supra, is to the contrary, however. In Acosta,
the Court of Appeal recognized that the hazard was neither obvious nor known to
the employee. (96 Cal. App. 5th at p. 660.) Nonetheless, the hazard would have
been discovered if the employer (the independent contractor) had inspected the
premises for safety issues. (Id. at p. 661.) Where the contractor failed
to conduct a safety inspection of the worksite, and the inspection would have
revealed the hazardous condition, the employee cannot recover from the property
owner as a matter of law under Privette. (Ibid.)
The contractor’s
duty to inspect and to identify safety hazards is not narrowly limited to “the
scope of the work [the contractor] was hired to do.” (Ibid.) As Justice
Edmon explains:
[Plaintiff] is correct that an independent
contractor does not have a duty to inspect all of the landowner’s property or
to identify hazards wholly outside of [the contractor’s] area of expertise. But
a landowner who hires an independent contractor presumptively delegates to that
contractor its tort law duty to provide a safe workplace for the contractor’s
employees, and thus the independent contractor has a duty to determine whether
its employees can safely perform the work they have been hired to do. That
includes a duty to inspect not only the worksite itself, but the means to
access the worksite.
(Id. at
pp. 661-662 [citations omitted]; see also Gonzalez, supra, 12 Cal.5th at
p. 55 [holding that a contractor had a duty to inspect the path that workers
will need to travel to reach the worksite]; Tverberg v. Fillner
Construction, Inc. (2010) 49 Cal.4th 518, 529 [same]; Blaylock v. DMP (2023)
92 Cal.App.5tha 863, 866 [same].)
These same
principles apply here with full force. Defendant delegated the responsibility
for workplace safety to the contractor. That includes not only the safety of
the worksite itself but the safety of the areas that the contractor’s employees
are reasonably expected to access in coming or going to the worksite or
otherwise in connection with the work that the contractor is performing. There
is no dispute here that the hazard here – which Plaintiff contends is latent –
would easily have been discovered and identified by a reasonable inspection by
Plaintiff’s employer. Accordingly, under the case law, as a matter of law, the Kinsman
exception does not apply here.
Finally,
Plaintiff argues that the landowner’s duty to maintain the safety of its
premises is non-delegable. (Opp. at pp. 22-24.) Although that is true in many
contexts, in the specific context here, of a landowner hiring a contractor to provide
services, the Privette doctrine (and its exceptions) specifically provides for delegation
of safety issues to the contractor under certain circumstances, including (as a
matter of law) those present in this case.
Accordingly,
Defendant’s motion for summary judgment is granted.
Conclusion
The
Court GRANTS Defendant’s motion for summary judgment.
Moving
Party is to give notice.