Judge: Theodore R. Howard, Case: 22-1242889, Date: 2023-06-15 Tentative Ruling

The Motion for Summary Judgment or in the alternative Summary Adjudication filed by Defendants San Leon Apartments LLC (erroneously named as San Mateo Apts. LLC), Irvine Management Company, and The Irvine Company LLC (“Defendants”)

is GRANTED.

As a preliminary matter, all of Plaintiff’s evidentiary objections are OVERRULED.

The Privette doctrine creates a rebuttable presumption that affects the burden of producing evidence on summary judgment. (Alvarez v. Seaside Transp. Servs., Inc. (2017) 13 Cal.App.5th 635, 642-643; Degala v. John Stewart Co. (2023) 88 Cal.App.5th 158, 166-167.) Once a defendant establishes that it hired an independent contractor to perform certain work, and that the plaintiff is an employee (or independent contractor) thereof, who was injured in the course of the work, the burden then shifts to plaintiff to produce evidence raising a triable issue of fact as to application of a Privette exception.

Here, it is undisputed that Defendants had a contractual agreement with Superior as an independent contractor and that Plaintiff was working for Superior when injured at the worksite.  Though Plaintiff appears to dispute which of the Defendants the controlling agreement was with, the argument is irrelevant. Defendants have clearly shifted the burden by showing that Privette applies, shifting the burden to Plaintiff. 

Plaintiff appears to assert that the “retained control” exception applies under (Hooker v. Dept. of Trans. (2002) 27 Cal.4th 198), asserting that some unnamed manager told him not to put items on the roof that could fall on residents using the dumpster below.  The retained control exception applies where “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.” (Hooker v. Dept. of Trans., supra, 27 Cal.4th at 213.) While there is considerable dispute about whether this evidence should even be considered as the only source is Plaintiff’s self-serving declaration submitted in opposition to the present motion, even if accepted the evidence does not show a triable issue of material fact as to the retained control exception. The direction Plaintiff asserts he received does not indicate retained control over safety conditions of the worksite, nor does the instruction to refrain from placing objects on the roof that could fall onto residents affirmatively contribute to Plaintiff’s injuries.  Plaintiff has failed to meet his burden to show a triable issue of material fact as to an exception to the Privette doctrine. As such, the motion for summary judgment is GRANTED.

The court notes that Plaintiff requests a continuance to obtain the deposition of one of Defendant’s witnesses under CCP § 437c(h), however, no affidavit has been submitted that shows the reasons that facts essential to justify opposition cannot be presented. As such, the court declines to grant a continuance for further discovery before ruling on the motion.

Moving party to give notice.