Judge: Steven A. Ellis, Case: 23STCV06520, Date: 2024-04-18 Tentative Ruling

Case Number: 23STCV06520    Hearing Date: April 18, 2024    Dept: 29

Motion for Summary Judgment, filed by Defendant Ava Arts District, L.P. and Covi Concrete Construction, Inc.

TENTATIVE

The motion is granted.

Background

On March 24, 2023, Plaintiff Raul Gutierrez Rosas (“Plaintiff”) filed the complaint in this action against Defendants Ava Arts District, L.P. (“Defendant”); Covi Concrete Construction, Inc. (“Covi”); and Does 1 through 50, asserting causes of action for negligence and premises liability arising out of fall at a construction site on February 2, 2022, at or near 1540 East Industrial Street in Los Angeles.

Defendant and Covi filed answers on May 18, 2023.

On February 1, 2024, Defendant filed this motion for summary judgment or, in the alternative, for summary adjudication. Plaintiff filed his opposition on April 4, and Defendant filed its reply on April 12.

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

The Court GRANTS Defendant’s request for Judicial Notice of Plaintiff’s complaint in this action.

Discussion

Plaintiff asserts causes of action against Defendant for 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, and that no exception to Privette applies here. In addition, and alternatively, Defendant argues that the undisputed facts show that it did not breach any duty to Plaintiff and that nothing that Defendant did (or failed to do) was a proximate cause of Plaintiff’s injuries.

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 the 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 delegates 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 could 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 on-the-job accident that occurred at a construction site. (Complaint, ¶ 11, 13; Defendant’s Statement of Undisputed Material Facts [“DSUMF”], Nos. 8-9.) Plaintiff alleges that he “fell from the third story, approximately thirty (30) feet below when he stepped through a hole on the floor covered by an unsecured piece of plywood that had been left and created by DEFENDANTS.” (Complaint, ¶ 13; DSUMF, No. 9.)

Defendant owned and was the general contractor of the construction project. (DSUMF, No. 1.) Defendant is not itself a contractor that specializes in wood framing. (DSUMF, No. 2.) Defendant hired an independent contractor, Davis Development Company, Inc. (“Davis”) to perform wood framing on the site. (DSUMF, No. 3.) At the time of the accident, Plaintiff was working as an employee of Davis. (DSUMF, Nos. 7-8.)

These undisputed facts establish that Plaintiff’s claims against Defendant fall within the scope of the Privette doctrine. Plaintiff concedes as much but argues that this case falls within either the retained control (Hooker) exception and/or the concealed hazard (Kinsman) exception to Privette. (Opp. at p. 8.) The Court now turns to these exceptions.

Retained Control

For the Hooker exception to apply, the hirer or general contractor must (1) retain control over the subcontractor’s work; (2) actually exercise that control; and (3) do so in a manner that affirmatively contributes to the employee’s injury. (Sandoval, supra, 12 Cal.5th at p. 274.) The issue is not whether the hirer had a contractual or other abstract or general right of control or whether the hirer maintained a general level of supervision over safety on the site. Nor is it sufficient to show that the hirer allowed an unsafe condition to persist on the worksite. Rather, this exception only applies when the hirer becomes actively involved in the work or interferes with the subcontractor’s ability to do the work as the subcontractor sees fit. (Id., 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.)

Here, Plaintiff points out that Defendant’s employee Jonathan Torres was the project safety engineer; he was at the job site almost daily, he conducted safety orientations, and his role was to promote safety culture. (Plaintiff’s Statement of Additional Material Facts [“PSAMF”], Nos. 1-3.) Torres testified that it was “more than likely” that he walked through the area in which Plaintiff fell within “a couple of days or so” prior to the accident. (PSAMF, No. 15; Miles Decl., Exh. 3 [Torres Depo.], at 73:6-19.)

Prior to the accident, Defendant Covi had been conducting some concrete work in the area in which Plaintiff fell. Covi’s work in that area ended on approximately January 18, about two weeks before the accident. (PSAMF, No. 20.) Covi left a hole in Level 3, in Section C; viewing the evidence in the light most favorable to the non-moving party, there were no guardrails around the hole, but the hole was protected by shoring and decking. (PSAMF, Nos. 12, 20-22.) The purpose of the hole was for a ventilation shaft for the restaurant kitchen. (Miles Decl., Exh. 2 [Garcia Depo.], at 28:19-24.)

Covi removed the shoring and decking on February 1, the day before the accident. (PSAMF, No. 23.) At that point, with the shoring and decking removed, there was no fall protection at the hole. (PSAMF. Nos. 23-24.)

Ramon Garcia was the foreman for Covi at the project. (PSAMF, No. 19.) Mr. Garcia explained that the purpose of the shoring and decking is to provide “a platform to pour wet concrete, which means to build the floor for that level.” (Miles Decl., Exh. 2 [Garcia Depo.], at 26:23-27:8.) Mr. Garcia testified that the shoring and decking was removed because he “had the okay from the GC that they have the test results of the compression, it’s okay to start removing the shoring.” (Id., at 26:16-22.)

Covi removed the decking and shoring from below, on the second floor. (Id., at 28:3-8.) By that time, February 1, Davis was working on Level 3, in Section 3, doing the framing work. (Id., at 28:10-18.) No other subcontractor was working in that area. (Torres Depo., at 74:5-12.)

On a construction site, there are sometimes conflicts between the subcontractors in the different trades. Covi complained that other subcontractors were leaving trash and debris in the shaft areas. (PSAMF, No. 17.) Defendant’s project safety engineer Torres was aware of this. (PSAMF, No. 16.) Debris in the shafts was an issue for Covi as it removed shoring from below. (PSAMF, No. 18.)

The Court has carefully reviewed all of the evidence and argument presented by both sides. None of this evidence creates a triable issue of fact with regard to retained control. There is simply no evidence from which a trier of fact could draw a reasonable inference that Defendant directed Covi or Davis regarding how to perform their work or otherwise interfered with their ability to do their job in the manner that each subcontractor thought was appropriate. Rather, Defendant did what general contractors often do on complicated job sites: Defendant provided general safety orientations, encouraged safety culture, coordinated the scheduling and work of the various subcontractors (including through periodic meetings), and provided approvals when requested by subcontractors. Defendant did not tell Covi (or Davis) how to do their work; rather, at most, Defendant granted the request of Covi “to start removing the shoring.” (Garcia Depo., at 26:16-22.)

On this record, as a matter of law the retained control exception to the Privette doctrine does not apply.

Concealed Hazard

Under the Privette doctrine, there is a strong presumption that the general contractor delegates to the subcontractor “the responsibility to ensure that the worksite is safe.” (Acosta, supra, 96 Cal.App.5th at p. 650.) To overcome that presumption, and to hold the general contractor responsible under the concealed hazard exception, there must be a showing, as noted above, (1) that the general contractor knew, or reasonably should have known, of a concealed, preexisting hazardous condition on the premises; (2) that the subcontractor did not know about, and could not have reasonably ascertained, the hazard; and (3) that the general contractor did not warn the subcontractor. (Kinsman, supra, 37 Cal.4th at p. 675.)

Here, when Covi removed the shoring and the decking, there was a hazard: a hole that (viewing the evidence in the light most favorable to the non-moving party) did not have any guardrails. But under the case law, there is a strong presumption that it was the responsibility of Davis – the subcontractor who was working in this area and who employed Plaintiff – to provide a safe working environment for Plaintiff and the other employees. That includes the affirmative duty to inspect the worksite, identify potential safety hazards (including holes for shafts), and address such hazards. (See Gonzalez, supra, 12 Cal.5th at p. 55; Acosta, supra, 96 Cal.App.5th at pp. 661-662.) “When a person or organization hires an independent contractor, the hirer presumptively delegates to the contractor the responsibility to do the work safely.” (Sandoval, supra, at p. 269.)

There is no evidence in the summary judgment record that would support a reasonable inference that Defendant had actual or constructive knowledge of a concealed hazard that David did not know about and could not reasonably ascertain. At most, Defendant’s project safety engineer Torres had walked through the area a “couple of days” before the accident. (PSAMF, No. 15.) But if the hazard was or should have been apparent to Torres during a walk through, then it was or should have been more apparent to Davis, which had the primary responsibility for ensuring the safety of this area of the worksite and had the affirmative duty to inspect the area for safety issues. Similarly, the issue of debris in the shafts was discussed at least twice at the weekly meetings that were held with a representative of each subcontractor (including Davis) present. (DSUMF, No. 18; Torres Decl., ¶ 14 & Exh. 1.) If, as Plaintiff contends, the debris complaints were sufficient to put Torres (and therefore Defendant) on notice of a hazardous condition, then Davis was equally on notice. There is simply nothing in the record that would support an inference that Defendant knew or should have known about a safety issue that was concealed or otherwise not known to Davis and that Davis could not have reasonably ascertained in discharging its duty to inspect its area of the worksite for safety issues.

Accordingly, the Court concludes that there are no triable issues of material fact with regard to the Privette doctrine. On the undisputed facts, and drawing all inferences in favor of the nonmoving party, neither the retained control exception nor the concealed hazard exception applies. As a matter of law, Defendant owed no duty to Plaintiff and breached no duty to him. Defendant is therefore entitled to judgment on the causes of action asserted against Defendant in the Complaint.

The Court need not reach, and does not reach, Defendant’s other arguments. 

Conclusion

The Court GRANTS the motion for summary judgment of Defendant Ava Arts District, L.P.

Moving Party is to give notice.