Case Number: BC589549 Hearing Date: June 07, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION; MOTION DENIED

I. FACTUAL BACKGROUND

On July 29, 2015, Plaintiffs Alfred Villanueva (“Alfred”) and Debra Villanueva (“Debra”) (collectively, “Plaintiffs”) filed this action against Defendants Four Seasons Cleaners, Inc. (“Four Seasons”) and Nancy Carter (“Carter”) (collectively, “Defendants”) for premises liability and loss of consortium relating to an injury sustained by Alfred while working on Defendants’ premises.

In July 2013, Carter hired Ruben Hernandez (“Hernandez”) to install two cooling units for the dry cleaning business on the roof of the Four Seasons’s facility. (Declaration of Nancy Carter, ¶ 3.) When the cooling units arrived, Plaintiff helped Hernandez to install the cooling units, but fell off the roof of Defendants’ facility, sustaining injuries. Defendants move for summary judgment, or in the alternative, summary adjudication, on grounds they are not liable for Plaintiff’s injuries under the Privette Doctrine and Plaintiff cannot show Defendants had actual or constructive knowledge of any dangerous condition on the roof.

II. 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 of Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code of Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia 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 of 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.)

“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 of 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.)

III. EVIDENTIARY OBJECTIONS

Defendants’ Evidentiary Objections to Declaration of Steven J. Dawson

Objections Nos. 1 and 2 are OVERRULED.

Defendants’ Evidentiary Objections to Deposition of Nancy Carter (Exh. A)

Objection No. 1 is OVERRULED

Defendants’ Evidentiary Objections to Responses to Special Interrogatories (Exh. C)

Objection No. 1 is OVERRULED.

IV. DISCUSSION

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

To establish liability for negligence, “[t]here must be some evidence . . . to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.” (Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 829; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) “The proper test to be applied to the liability of the possessor of land . . . is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others . . .” (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1334-1335.)

In his Complaint, Plaintiff alleged Defendants maintained a dangerous condition on the roof of the facility, because there was poor visibility and lack of proper lighting and fall protection in volation of Claifornia OSHA Code § 1926.

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.) 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.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 603.) “A general contractor owes no duty of care to an employee of a subcontractor to prevent or correct unsafe procedures or practices to which the contractor did not contribute by direction, induced reliance, or other affirmative conduct.” (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 209.)

Defendants contend Plaintiff is an employee of their independent contractor, Hernandez. Hernandez invited and requested that Plaintiff assist him to install the coolers on the roof, and as such, Defendants are not liable for Plaintiff’s injuries. Carter states that although she had hired Plaintiff in the past to service conveyor belts, she did not hire Plaintiff to install the coolers on the roof. (Carter Decl., ¶ 2.) Carter states Hernandez scheduled to install the second cooler in the evening because Plaintiff was coming from another job. (Carter Decl., ¶ 4.) Plaintiff brought his hydraulic lift to get the cooling units onto the roof. (Carter Decl., ¶ 4.) Defendants contend Hernandez was an independent contractor and Defendants did not control the work site. Plaintiff admitted in response to written discovery requests that Defendants did not supervise the job (Exh. C, RFA No. 20.)

Defendants also contend that regardless of Privette, they are not ensurers of safety, and there was no affirmative conduct that caused the lighting on the roof to go out moments before Plaintiff fell. Further, they had no actual or constructive knowledge of the absence of lighting or any other dangerous condition. “Generally speaking, a property owner must have actual or constructive knowledge of a dangerous condition before liability will be imposed. [Citation.]” (Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 385.) The dangerous condition, as framed by Plaintiff’s complaint, was “poor visibility caused by deficient lighting for workers performing repairs on equipment on the roof, a violation of OSHA . . .” (Complaint, ¶ 3.) Defendants argue they had no knowledge of this condition, that Hernandez scheduled the work for the evening based on Plaintiff’s schedule, and that they did not control the work site.

The Court finds Defendants met their initial burden of showing they had no actual or constructive notice of the alleged dangerous condition of deficient light for workers performing repairs on the roof. The burden shifts to Plaintiff to show a triable issue of material fact exists.

Plaintiff contends Privette does not apply, because Defendants do not have workers’ compensation insurance which covers Plaintiff. Therefore, the rationale behind applying Privette does not apply.

Based on the facts and evidence submitted, the Court is not convinced that Privette applies to this case. It is not clear that Hernandez was an independent contractor and even if he was, it appears undisputed that Plaintiff was not being paid to assist on the job as an employee of either Defendants or Hernandez.

Plaintiff argues he and Carter became friends and Carter relied on that friendship to call in favors and to have him help service conveyer belts, free of charge. Plaintiff states Carter asked Plaintiff to lend his personal hoist to lift replacement coolers up to the roof, then have him get on the roof to grab and drag the cooler onto the roof. Plaintiff contends he was an invitee, and, as such, Defendants owed a duty of care to make a reasonable inspection of the roof and to prevent unreasonable risk of harm.

“An invitee enters at the ‘express or implied invitation’ of the occupant, for a purpose ‘of common interest or mutual licensor to the licensee’” and “[t]he duty owed an invitee or business visitor ‘is to exercise ordinary care to keep the premises in a reasonably safe condition.’” (Boucher v. American Bridge Co. (1950) 95 Cal.App.2d 659, 667.) Where an invitee enters portions of the premises which has exceeded the scope of permission or invitation, “the correlative rights and obligations of the invitor and invitee vary as the orbit of the invitation is either adhered or exceeded.” (Powell v. Jones (1955) 133 Cal.App.2d 601, 607.)

Carter testified at her deposition, multiple times, that it was Hernandez’s project. Carter testified that she paid Hernandez to install the coolers, and that it was his responsibility to complete the job. She did not invite or request that Plaintiff help Hernandez and did not supervise the project. Plaintiff contradicts Carter in several respects. Therefore, a triable issue of material fact exists as to Plaintiff’s status and whether a duty was owed to him. Carter contends she did not hire or invite Plaintiff to work on the roof. A reasonable trier of fact could conclude Plaintiff entered portions of the premises that exceeded Carter’s permission and therefore, Defendants did not owe a duty to him to inspect the roof and to prevent unreasonable risk of harm.

On the other hand, Carter testified at her deposition that she saw Plaintiff at the premises on the date of the installation, greeted him, may have brought food or drink to him, and did not tell him not to go on the roof. (See Carter’s Depo., Exh. A, 59:7-13, 60:3-17.) A reasonable trier of fact could conclude that in light of Plaintiff’s history of doing favors for Carter and using his personal hoisting equipment to raise coolers to the roof, and Carter’s possibly bringing him food or drink on the day of the installation and non-objection to his working on the project, that Plaintiff had permission to be there and that Carter owed him a duty to exercise reasonable care. Carter admitted in her deposition that she had not conducted any inspection of the roof or of the lighting on the roof and stated it was Hernandez’s project. However, as explained, it is not clear that Hernandez was a independent contractor or that ensuring the lights were working was within the scope of his duties.

In Reply, Defendants argue Plaintiff cannot raise issues of his status as an invitee, as these issues were not defined in his Complaint. Rather, the Complaint alleges Defendants allowed a dangerous condition to exist on the premises, which was “poor visibility caused by deficient lighting for workers performing repairs on the roof . . . and a lack of fall protection for workers on the roof . . .” (Complaint, ¶ 3.) Defendants contend that since Plaintiff did not identify himself as an “invitee” in the Complaint or allege that Defendants breached their duty of care to invitees, Plaintiff cannot now raise his status as a triable issue of fact. The Court is not persuaded that Plaintiff is precluded from raising his status as a triable issue of fact. The term “Workers” is ambiguous such that the issues framed by the Complaint may include Plaintiff’s status and the duty owed to him.

The Court finds Plaintiff has met his burden of showing a triable issue of fact exists.

V. CONCLUSION

In light of the foregoing, the Motion for summary judgment is DENIED.

Moving party to give notice.