Judge William A. Crowfoot, Case Number: 19STCV20803, Date: 2023-09-26 Tentative Ruling

Judge: William A. Crowfoot, Case: 19STCV20803, Date: 2023-09-26 Tentative Ruling

Defendants Steve Lee and Tracy Lee (collectively, “Defendants”) move for summary judgment or, in the alternative, summary adjudication as to plaintiffs Elva Zaldivar, Stephanie Zaldivar, and Marina Zaldivar’s First Amended Complaint. This is Defendants’ second motion for summary judgment/summary adjudication; the first one was heard and partially granted by the Court, with the Honorable Colin P. Leis presiding, in May 2022.

Defendants argue that summary judgment or summary adjudication is proper because they did not owe Jose Zaldivar (“Zaldivar”) a duty of care at the time of his death on March 4, 2018. Defendants argue that Plaintiffs’ claims are barred by the doctrine expressed in Privette v. Superior Court (1993) 5 Cal.4th 689 (“Privette”) and its progeny.

Plaintiffs allege that Defendants are responsible for Zaldivar’s death, which occurred while Zaldivar was repairing ceiling insulation. It is undisputed that Defendants are shareholders and officers of Sweety Novelty, Inc. (“Sweety Novelty”) and between March 2017 and February 2018, Sweety Novelty pursued Safe Quality Food (“SQF”) certification, which required an inspection of its factory. John Woods (“Woods”), a maintenance mechanic for Sweety Novelty, was authorized and appointed to prepare the factory for this upcoming inspection. One of required tasks included reattaching insulation on the ceiling. Zaldivar was involved in this repair and stood inside of a metal safety cage attached to a forklift; when the cage was being lowered, it fell off the forklift with Zaldivar inside and Zaldivar suffered fatal injuries.

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) “[T]he initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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).) “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).)

The Court exercises its discretion to rule only on those objections to evidence deemed material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

Objections to Declaration of Gary White, Paragraph 20(B)-(C): Sustained, improper legal conclusion.

Objections to Declaration of Mark Burns, Paragraph 16: Sustained, improper legal conclusion.

“A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Code Civ. Proc., § 437c, subd. (f)(2).)

Plaintiffs argue that Defendants’ motion for summary judgment is an improper motion for reconsideration. In the summary judgment/summary adjudication motion filed on March 1, 2022 (the “First MSJ”), Defendants asked for summary judgment or, in the alternative, summary adjudication. Two of the grounds for their motion were that Plaintiffs’ claims for premises liability and wrongful death failed because Defendants owed no duty to Decedent – either as officers or shareholders of Sweety Novelty, or as landlord or owners of the premises where the incident took place. (See Notice of Motion, pp. 2-3, Issues 1 and 2.) Now, Defendants argue they are entitled to judgment as a matter of law on Plaintiffs’ causes of action for premises liability and wrongful death because they did not owe Decedent a duty under the Privette doctrine.

Defendants cite to several cases imploring the Court to exercise its discretion to consider their present motion because it concerns a “new issue.” The Court recognizes that the Privette doctrine was not a legal theory previously raised by Defendants as a ground for summary judgment/adjudication (nor was it addressed by Judge Leis), therefore, this motion is based on a “new issue.” (Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 827.) Plaintiffs argued in their opposition brief to the earlier motion that the Privette doctrine did not apply because Defendants furnished unsafe equipment. However, the order did not address the Privette doctrine or liability based on providing unsafe equipment. Rather, Judge Leis found that Defendants failed to meet their initial burden to show that they were not liable as officers or directors because it could reasonably be inferred that their authorization of Zaldivar’s one-week transfer included authorizing the particular projects to which Woods had assigned Zaldivar, including the allegedly tortious conduct of using the defective forklift and cage. The emphasis of the previous order was on whether Defendants authorized Woods’s use of the faulty equipment, not whether Defendants provided the equipment.

Before the last hearing on December 5, 2023, the Court issued a prior tentative ruling stating that the motion did not fall within the ambit of section 437c(f)(2) as a renewed motion and cited to Marshall v. County of San Diego (2015) 237 Cal.App.4th 1095, 1107. At oral argument and in their supplemental brief filed on January 31, 2024, Plaintiffs argued that section 437c, subdivision (f)(2) prohibits a subsequent summary judgment motion without new facts or new law. Section 437c(f)(2) states, in relevant part, that “[a] party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” Plaintiffs emphasize that the Legislature added the phrase “shall not” to the statute in 2017, which is after Patterson and Marshall were decided. However, as Defendants point out in their own supplemental brief filed on January 31, 2024, this emphasis ignores that the prohibition on a subsequent summary judgment motion only applies when it is “based on issues asserted in a prior motion for summary adjudication.” (Code Civ. Proc., § 437c(f)(2).) Therefore, the Court proceeds to evaluate the motion on its merits.

Generally, a non-negligent party cannot be liable for tort to its independent contractor’s employees. (Privette v. Superior Court (1993) 5 Cal.4th 689, 702.) Privette “renders the hirer of an independent contractor immune from liability to the independent contractor’s employee even when the basis for liability was that the hirer failed to provide in the contract that the contractor must take special precautions to avert the risks of work. [Citation.] Privette also bars liability when the injured employee’s theory is that the hirer negligently hired the independent contractor. [Citation.] Finally, Privette applies when the injured employee’s cause of action against the hirer of the independent contractor is based on the hirer’s failure to comply with statutory or regulatory workplace safety requirements. [Citation.]” (Johnson v. Raytheon Company, Inc. (2019) 33 Cal.App.5th 617, 628.)

“By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract. That implicit delegation includes any tort law duty the hirer owes to the contractor’s employees to comply with applicable statutory or regulatory requirements.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594.) The California Supreme Court has held that the duty to ensure a safe workplace may be delegated, based largely on the policy rationale that because workers’ compensation limits the liability of an independent contractor to its employees, “it would be unfair to permit the injured employee to obtain full tort damages from the hirer of the independent contractor—damages that would be unavailable to employees who did not happen to work for a hired contractor. This inequity would be even greater when, as is true here, the independent contractor had sole control over the means of performing the work.” (Id. at p. 603.)

A threshold question governing the applicability of Privette is whether Woods was Defendants’ employee or an independent contractor. “Whether a common law employer-employee relationship exists turns foremost on the degree of a hirer’s right to control how the end result is achieved.” (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 528.) Factors to be considered include the nature of the work, the overall arrangement between the parties. (S. G. Borello & Sons, Inc. v. Dept. of Indus. Rel. (1989) 48 Cal.3d 341, 353 (Borello).) Other factors considered include

(a) whether the one performing services is engaged in a distinct occupation or business;

(b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;

(d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;

(g) whether or not the work is a part of the regular business of the principal; and

(h) whether or not the parties believe they are creating the relationship of employer-employee.

(Ayala, 59 Cal.4th at p. 532.) “Generally, . . . the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.” (Borello, 48 Cal.3d at p. 351 (internal citations omitted).)

Plaintiffs allege in their complaint that Woods was not an independent contractor because Woods did not possess a license. (FAC, ¶ 51.) Indeed, Labor Code section 2750.5 provides “a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, or who is performing such services for a person who is required to obtain such a license[,] is an employee rather than an independent contractor.”

Defendants argue that Zaldivar was injured as an employee of Woods, who was an independent contractor hired by Sweety Novelty. Defendants contend that Woods was never their employee or an employee of Sweety Novelty, and they never supervised, directed, or instructed Woods regarding his maintenance work for Sweety Novelty. (UMF Nos. 16, 21-23.) Woods declares that he provided his services to Sweety Novelty under his business, Acme Mechanical Supply, and that Defendants were not involved in retaining him. (Woods Decl., ¶ 4.) Woods also states that he never reported to either of them and did not discuss any details of the SQF inspection or a budget. (Woods Decl., ¶ 3.) Defendants also submit declarations stating that they were not involved in hiring Woods for Sweety Novelty and did not provide any supervision, direction, or instruction to him. (T. Lee Decl., ¶ 9; S. Lee Decl., ¶ 9.)

Notably, Defendants in their motion did not address whether Woods was required to be licensed, as Plaintiffs allege. Rather, Defendants state in their supplemental brief filed on January 31, 2024, that Woods was not required to be licensed because Business and Professions Code section 7048 (the “Minor Work Exemption”) states that a license is not required where “the aggregate contract price for which labor, materials and all other items is less than five hundred dollars ($500), that work or operations being considered of casual, minor, or inconsequential nature.” Defendants refer to Woods’ declaration, submitted in support of co-defendant Sean Lee’s summary judgment motion, in which he states that the total cost for the labor and materials for the work performed at the time of the incident was less than $500. (Woods Decl., ¶ 10.) Defendants also refer to Exhibit S to the exhibit list filed in support of Sean Lee’s summary judgment motion, which is a copy of an invoice showing that the cost of labor for March 4, 2018, was $240 total for 3 individuals at a rate of $15 to $30 dollars an hour. Defendants also argue that the work being performed was of a “casual, minor, or inconsequential nature” because Woods characterized the repairs as involving “simple reattachment of ceiling insulation.” (Ibid.) Defendants also cite to Zaldivar’s coworker, Jose Godinez, who testified in his deposition that he and Zaldivar were supposed “[t]o put paper on the ceiling.” (Defs.’ Ex. I, 29:8-13; 69:16-22.) Another coworker, Sacramento Valdez, testified that Zaldivar and Mr. Godinez were “put[ting] some aluminum on the ceiling of the factory. (Ex. J at 23:15-21; Ex. H at 32:1-6, 33:2-6.) To the extent that Defendants rely on the declaration of Bruce D. Rudman as an expert opinion concluding that Zaldivar’s work falls within the “Minor Work Exemption”, the Court disregards this testimony as an improper expert opinion on an issue of law.

Defendants fail to meet their moving burden. Their evidence raises conflicting inferences about the nature of Woods’s relationship with Sweety. Although Woods claims that the work Zaldivar was involved in on the day of the accident was minor, the evidence also shows that the work performed by Zaldivar that day was part of a significantly larger project; Woods was entrusted with a renovation project for the facility intended to secure regulatory approval, the aggregate contract price of which more than likely exceeded $500. Zaldivar was only one worker out of several hired by Woods. Furthermore, Judge Leis previously held that it could be reasonably inferred that Defendants authorized Woods’ assignment of Zaldivar to specific projects spanning a period of more than one day. Such authorization raises triable issues of fact regarding Woods’ status as an independent contractor. Triable issues of fact also exist regarding the nature of the work that Woods and Zaldivar were engaging in as casual, minor or inconsequential, because it involved use of heavy equipment, i.e., the forklift and safety cage, and no other equipment was available or used to reach the ceiling.

Moreover, even if Defendants met their moving burden, the Court finds that Plaintiffs submit sufficient evidence to demonstrate a triable issue of material fact with respect to the licensing requirement, and, therefore Woods’ independent contractor status. Plaintiffs attach a copy of an invoice for labor spanning the week of February 26, 2018, to March 14, 2018, totaling $4,956 at a rate of $28 an hour. (Flores Decl., filed 11/21/2023, Ex. 26, SNI000444.) A 2-page long summary for work performed on February 28 and March 1, 2018, also raises triable issues of fact regarding the “aggregate contract price” of the work Woods was retained to perform during this period. (Id., Ex. 27.)

In light of the foregoing, Defendants’ motion for summary judgment/summary adjudication is DENIED.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

On June 14, 2019, plaintiffs Elva Zaldivar, Stephanie Zaldivar, and Marina Zaldivar (collectively, “Plaintiffs”), individually and as successors in interest to Jose Zaldivar (“Zaldivar”) filed this action against Steve Lee and Tracy Lee for negligence (pursuant to Labor Code section 3706), premises liability, and wrongful death.

On December 6, 2021, Plaintiffs filed the operative First Amended Complaint (“FAC”). Plaintiffs amended the FAC on December 8, 2021, to add Sean Lee (“Defendant”) as a Doe defendant.

The action arises out of Zaldivar’s death while performing improvements at a frozen desserts factory owned by non-party Sweety Novelty, Inc. (“Sweety”) on March 4, 2018 (the “Incident”). The factory is located on property owned by Steve Lee and Tracy Lee (the “Subject Premises”) and was leased to Sweety.

Defendant filed this motion for summary judgment or, in the alternative, summary adjudication on the grounds that: (1) he owed no duty of care to Zaldivar, (2) Plaintiffs’ claims were barred by the Privette doctrine, and (3) he was not Zaldivar’s statutory employer.

On December 15, 2023, the Court continued the hearing to allow for supplemental briefing. Defendant and Plaintiffs both filed supplemental briefs on December 29, 2023. Plaintiffs also filed two supplemental declarations. On January 2, 2024, Defendant filed objections to the supplemental declarations. Defendant also filed a supplemental reply brief on February 22, 2024.

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

Plaintiffs “object” to paragraphs 2, 7, 8, 9, 11, 12, 14 of the Declaration of Sean Lee on the grounds that they contradict his prior testimony at his deposition. These contradictions do not eliminate the evidentiary value of the declaration and the rule expressed in D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 does not involve the admissibility of evidence, but whether evidence is sufficient to create a triable issue of material fact. Accordingly, Plaintiffs’ objections are OVERRULED.

Defendant’s request for the Court to take judicial notice of the FAC is GRANTED.

To prevail on a cause of action for negligence, a plaintiff must establish that the defendant owed a duty of care, the defendant breached that duty of care, the breach proximately caused injury to the plaintiff, and the plaintiff suffered damages. (Ladd v. Cty of San Mateo (1996) 12 Cal.4th 913, 917- 918.) Generally speaking, all persons have a duty to take reasonable care in their activities to avoid causing injury, though particular policy considerations may weigh in favor of limiting that duty in certain circumstances. (Civ. Code, § 1714; Rowland v. Christian (1968) 69 Cal.2d 108.) If it is found that the defendant owed no duty of care to the plaintiff, negligence cannot be established. (Hamilton v. Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706, 1711 [citation omitted].)

Plaintiffs allege that Defendant had a “duty to safeguard [Zaldivar]’s safety and use ordinary care when requesting their employee perform work on the [Subject Premises].” (FAC, ¶ 18.) Plaintiffs allege Defendant “had the supervision, control, and ownership of the subject property and had hired [Zaldivar] to perform repair on the insulative ceiling tiles.” (FAC, ¶ 18.) Plaintiffs also allege that Defendant had a “duty to exercise reasonable care when hiring and requesting work be performed by [Zaldivar] on the [Subject Premises].” (FAC, ¶ 51.)

Defendant argues he did not owe a duty of care to Zaldivar because he did not own or control the Subject Premises or the equipment used by Zaldivar at the time of the Incident. (Motion, p. 6.) Defendant also argues that he cannot be liable as an officer, director, or shareholder of Sweety because he is only Sweety’s general manager. (Motion, p. 7.) Defendant declares that in his role as General Manager, he was “generally responsible for overseeing Sweety’s business operations” and would visit Sweety’s facility betweeen 3 to 7 times a month. (Declaration of Sean Lee (“S. Lee Decl.”), ¶ 2; Exhibit List, Ex. C-1, p. 36:1-2.) In March 2017, he decided that the business would benefit from a Safe Quality Food (SQF) certification. (Id., ¶• 6.) He understood that as part of the certification process, the Subject Premises needed to meet a certain standard and would require certain general maintenance and repairs. (Ibid.) In February 2018, Defendant “instructed, appointed and authorized Sweety’s maintenance mechanic John Woods (“Woods”) to prepare the Subject Premises for its upcomng SQF inspection. (Id., ¶ 7.) They did not discuss the specifics of any repairs or the individuals that would be working. (Id., ¶ 8.) Defendant further declares that he never owned the forklift or safety cage used by Zaldivar and was not involved in Sweety’s purchase of those items. (Id., ¶ 13.) He had also never inspected, assessed, or evaluated the forklift and metal safety cage at any time “because [he] had no reason to” and had no understanding prior to the Incident whether they were operational or in good repair. (Id., ¶ 14.)

In Defendant’s supplemental brief, Defendant cites to Towt v. Pope (1959) 168 Cal.App.2d 520, in which the court refused to hold a defendant vice president of a corporation liable for failure to instruct the plaintiff employee on safety or provide a safe place of employment. The Towt court noted that the vice president was an officer in a large corporation, “particularly one whose duties require him to be often absent from the plant”, and “could not and did not personally supervise, or give any orders or instructions to, any employee of the 230 working in the steel division.” (Id. at pp. 527-528.) The court stated, “In the absence of active participation in an act of misfeasance, generally an officer of a corporation is not personally liable to a third person for nonfeasance.” (Id. at p. 530.) The court emphasized the need to distinguish executive officials, presidents, vice-presidents, and managing agents, from superintendents, foremen, and “those immediately in control and management of the particular employee, his work and his place of employment.” (Id. at pp. 528-529.)

In opposition, Plaintiffs argue that Defendant oversaw all of Sweety’s operations, including the decision to pursue the SQF certification, and that Defendant was aware that work would need to be done to the ceiling. (AMF Nos. 21-22.) Plaintiffs also contend that Defendant decided the scope of the facilities’ improvements, including ceiling insulation. (AMF Nos. 31-32.) Plaintiffs also emphasize that Sweety was a small corporation with only 14 to 15 workers and the building was only 12,000 square feet. (AMF No. 40.) Plaintiff further argues that Defendant knew or should have known that workers would need to use the forklift and cage to complete any work in high places because this was the only forklift and cage available on the premises. (AMF Nos. 46-48.)

Based on this additional evidence, the Court finds Towt factually inapposite and concludes that Defendant has not shown, as a matter of law, that he owed no duty to Zaldivar.

Alternatively, Defendant argues that he is not liable for Zaldivar’s death because of the Privette doctrine. In Privette v. Superior Court (1993) 5 Cal.4th 689, the California Supreme Court held that the hirer of an independent contractor automatically delegates to that independent contractor the responsibility to perform that work safely. Here, Plaintiffs allege in their complaint that Woods was not an independent contractor because Woods did not possess a license as required by Division 3 of the Business and Professions Code. (FAC, ¶ 51.) Labor Code section 2750.5 provides “a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, or who is performing such services for a person who is required to obtain such a license[,] is an employee rather than an independent contractor.” “[A]ny person performing any function or activity for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code shall hold a valid contractors’ license as a condition of having independent contractor status.” Therefore, as a threshold matter, Defendant must show that Woods did not need to be licensed as part of showing that Woods was an independent contractor.

Defendant argues that Woods was not required to be licensed because of Business and Professions Code section 7048, which states that a contractor’s license is not required where “the aggregate contract price for which labor, materials and all other items is less than five hundred dollars ($500), that work or operations being considered of casual, minor, or inconsequential nature.” Defendant refers to Woods’s declaration, in which he declared that the total cost of labor and materials for the work performed at the time of the incident was less than $500. (Woods Decl., ¶ 10.) An invoice attached as Exhibit S of Defendant’s exhibit list also shows that the cost of labor for March 4, 2018, was $240 total for 3 individuals at a rate of $15 to $30 dollars an hour.

However, Defendant’s evidence raises conflicting inferences about the nature of Woods’s relationship with Sweety. Although Woods claims that the work Zaldivar was involved in on the day of the accident was minor, the evidence also shows that Woods was entrusted with a significant renovation project of the facility for regulatory compliance purposes, the aggregate contract of which more than likely exceeded $500, and that Zaldivar was only one worker out of several hired by Woods. Furthermore, Judge Leis previously held that it could be reasonably inferred that Defendants authorized Woods’ assignment of Zaldivar to specific projects over a period of more than one day. Such authorization raises triable issues of fact regarding Woods’ status as an independent contractor. Triable issues of fact also exist regarding the consequential nature of the work that Woods and Zaldivar were engaging in because it involved use of heavy equipment, i.e., the forklift and safety cage.

Moreover, even if Defendant met his moving burden with respect to factors supporting Woods’ status as an independent contractor, the Court finds that Plaintiffs’ submit sufficient evidence to demonstrate a triable issue of material fact with respect to the licensing requirement. Plaintiffs attach a copy of an invoice for labor spanning the week of February 26, 2018, to March 14, 2018, totaling $4,956 at a rate of $28 an hour. (Flores Decl., filed 11/3/2023, Ex. 45, SNI000444.) A 2-page long summary for work performed on February 28 and March 1, 2018 also raises triable issues of fact regarding the “aggregate contract price” of the work Woods was retained to perform during this period. (Id., Ex. 44.) Accordingly, the Court finds that triable issues of material fact preclude a finding that the Privette doctrine shields Defendant from liability.

In light of the foregoing, Defendant’s motion for summary judgment/summary adjudication is DENIED.

William A. Crowfoot

Judge of the Superior Court