Judge: William A. Crowfoot, Case: 21STCV09003, Date: 2022-12-07 Tentative Ruling

Case Number: 21STCV09003    Hearing Date: December 7, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On March 8, 2021, plaintiff Felipe Ricky Carraman filed this action against defendant Linda Pyburn alleging a single cause of action for general negligence.  Plaintiff alleges that on March 26, 2019, he was hired by Defendant to: (1) prune a tree on Defendant’s property that was at least 15 feet tall, (2) haul debris, and (3) conduct weed abatement.  Defendant provided Plaintiff with a ladder to use while pruning two branches on a tree that was allegedly at least 15 feet tall and when Plaintiff pruned the last branch, the branch fell on him and knocked him off the ladder.

          On September 22, 2022, Defendant filed this motion for summary judgment or, in the alternative, summary adjudication of issues.  Defendant argues that Plaintiff cannot establish that she: (1) breached any duty to Defendant, (2) caused or contributed to Plaintiff’s injuries, (3) concealed any hazards, (4) retained control or dictated Plaintiff’s work, or (5) affirmatively contributed to Plaintiff’s injuries.  Defendant also argues that she cannot be liable under Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny

II.      FACTUAL BACKGROUND

          At all times pertinent to this action, Defendant was the owner of the property located at 31040 Hasley Canyon Road in Castaic, California (“Property”).  (Defendant’s Undisputed Material Fact (“UMF”) No. 3.)  Defendant hired and paid Plaintiff to perform yard work on the Property, to include pruning of trees, hauling of debris and to conduct weed abatement.  (UMF No. 4.)  Plaintiff had visited the Property approximately 20-30 times before the incident.  (UMF No. 6.)  Plaintiff began working for the Defendant in 2012 or 2013.  (UMF No. 7.)  Plaintiff would go to the Property every summer and perform weed abatement, tree trimming, and trash hauling.  (UMF No. 8.)  Plaintiff has trimmed trees for clients for at least two years prior to the incident.  (UMF No. 10.) 

On March 26, 2021, Plaintiff performed tree trimming on the Property after completion of weed abatement.  (UMF No. 12.)  On March 26, 2021, Plaintiff was cutting multiple trees.  (UMF No. 13.)  The trees were oak trees that varied in height from 20 to 30 feet.  (UMF No. 14.)  When the Plaintiff drove to the property on that day, he understood he would be performing tree trimming on the property.  (UMF No. 15.)  The incident occurred at about 3:00 pm or 3:30 pm and it was sunny. (UMF No. 29.)  The ladder was placed on flat, solid grassy ground.  (UMF No. 32.)  Plaintiff climbed a ladder that was held by his coworker to cut a large branch. Plaintiff cut the branch and when it fell, it hit the ladder knocking Plaintiff to the ground.  (UMF No. 35.) 

Defendant was inside the house when Plaintiff fell.  (UMF No. 45.) Defendant was not in the vicinity of the Plaintiff at the time of the fall.  (UMF No. 46.)  Defendant provided general comments that she wanted the trees to look uniform.  (UMF No. 48.)  It was up to the Plaintiff to determine how to approach each tree.  (UMF No. 49.)  Defendant did not tell the Plaintiff how to approach each tree.  (UMF No. 50.)  Defendant did not provide Plaintiff with instructions regarding the manner in which he was to perform any of the work he was performing on the incident date.  (UMF No.51.) 

III.     LEGAL STANDARDS

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.)  “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).)  A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment.  (Code Civ. Proc., § 437c, subd. (f)(2).) 

“[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).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)  To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.)

“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 plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV.     DISCUSSION

Plaintiff asserts in his Complaint that he is presumed to be an employee under Labor Code section 2750.5 because he did not have a license to trim trees.  Labor Code Section 2750.5 states:

There is 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.

Plaintiff further alleges that Defendant violated Labor Code section 6401 and California Occupational Safety and Health Act (“Cal-OSHA”) section 1511 and was negligent per se.  Labor Code section 6401 states:

“Every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful.  Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.” 

Cal-OSHA section 1511 states:

“(a) No worker shall be required or knowingly permitted to work in an unsafe place, unless for the purpose of making it safe and then only after proper precautions have been taken to protect the employee while doing such work.  (b) Prior to the presence of its employees, the employer shall make a thorough survey of the conditions of the site to determine, so far as practicable, the predictable hazards to employees and the kind and extent of safeguards necessary to prosecute the work in a safe manner. 

First, Defendant admits she owned the Property at the time of the incident but contends that she was not negligent and that no act or omission on her part caused or contributed to the incident or Plaintiff’s injuries.  Defendant contends that the undisputed facts recited above show that her involvement in Plaintiff’s incident was limited purely to her ownership of the property because she was not present at the time of the incident and did not instruct Plaintiff on how to perform his tree-trimming work, which he had done for her since 2012.  Plaintiff testified that nothing was wrong with the equipment that he borrowed from the Defendant and that his assistant, Jaime Avila, was working with him on the day of the incident.  (Compendium of Exhibits, Ex. 2, 23:5-9, 25:17-21, 30:21-31:1.)  Defendant contends that Plaintiff and his negligence were the sole cause of Plaintiff’s injuries and argues in her reply brief that Cal-OSHA section 1511 does not apply because tree-trimming of a private residence qualifies as a “household domestic service.”  (Fernandez v. Lawson (2003) 31 Cal.4th 36-39 [homeowner who hires someone to trim a tree is not required to comply with Cal-OSHA tree trimming regulations].) 

However, Defendant does not address the allegations in the Complaint that she violated Labor Code section 6401.  For instance, she does not demonstrate that Plaintiff cannot show that she failed to provide safety devices, implement safety protocols, or create a safe working environment. She only argues that she was not involved with the tree trimming task and was not in the vicinity when Plaintiff fell, which is not enough to satisfy her burden on summary judgment.  Therefore, Defendant has not met her burden to show that no triable issues of material fact exist regarding her own negligence. 

Second, Defendant argues that Plaintiff was an independent contractor, not an employee, and therefore, she is not liable for his injuries.  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.)  Defendant further claims the exception to the Privette doctrine do not apply because there is no admissible evidence that she failed to warn of a known hazard or retained any control over Plaintiff’s work which affirmatively caused or contributed to Plaintiff’s injuries. 

However, Labor Code section 2750.5 creates a rebuttable presumption that a worker performing services for which a license is required is an employee and not an independent contractor.  (Labor Code, § 2805.5.)  The statute also makes a valid license a condition of independent contractor status.  (Ibid.)  The California Supreme Court has interpreted this statute to provide that “the person lacking the requisite license may not be an independent contractor.”  (State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1985) 40 Cal.3d 5, 15; see Cedillo v. Workers' Comp. Appeals Bd. (2003) 106 Cal.App.4th 227, 233.)  “Accordingly, the presumption that the person who employs the unlicensed contractor is the employer is conclusive. [Citations.]” (Cedillo, supra, at p. 233.)

Defendant does not present any legal argument in her moving papers regarding Plaintiff’s status as an employee under Labor Code section 2750.5.  Therefore, Defendant did not meet her moving burden to show that the Privette doctrine even applies to Plaintiff. 

The Court acknowledges that Defendant argues in her reply brief that Plaintiff is not an employee under Labor Code section 2750.5 because the work he was performing was for less than $500 and therefore, he did not need a license.  The chapter of the Business and Professions Code governing licensing for contractors “does not apply to any work or operation on one undertaking or project by one or more contracts, the aggregate contract price for which labor, materials, and all other items, is less than five hundred dollars ($500), that work and operations being considered of casual, minor, or inconsequential nature.”  (Bus. and Prof. Code, § 7048.)  It is undisputed that Defendant paid $300 to Plaintiff for the work.  (UMF No. 5.)  However, triable issues of fact remain as to whether the tree trimming work can be considered “casual, minor or inconsequential”.  Therefore, even if this argument had been originally made in her moving papers, it would not shift the burden to Plaintiff to raise a triable issue of material fact.

V.      CONCLUSION

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

Moving party to give notice. 

          Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s 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