Case Name: Mendoza v. City Sports Club, et al.
Case No.: 16CV298379

This is a personal injury action. On August 6, 2014, plaintiff Ruben Mendoza (“Plaintiff”) slipped, tripped and fell into a hole in the ground located outside the premises of property rented by Fitness International LLC dba Sports Club and City Sports Club (“Sports Club”). (See evidence cited by Pl.’s separate statement of undisputed material facts in opposition to Def.’s motion for summary judgment, nos. (“UMFs”) 1, 21-22.) At the time of the accident, Plaintiff was an employee of Novotec, a subcontractor of defendant Tilton Pacific Construction, Inc. (“Tilton”) that did plumbing work. (See evidence cited by UMFs 15-16, 20.) Defendant DPM Property Management, Inc. (“DPM”) was responsible for day-to-day maintenance and construction of commercial properties for Dollinger Properties (“Dollinger”), including the premises that was the subject of the lease with Sports Club. (See evidence cited by UMF 8.) DPM was the general contractor for the building for Sports Club, and was responsible for overseeing and supervising the subcontractors that were working for it at the project. (See evidence cited by UMFs 9-14.)

The hole in which Plaintiff fell was dug by one of DPM’s subcontractors before Tilton arrived at the project in May 2014. (See evidence cited by UMF 32.) DPM’s superintendent, Mike Strong, was aware of the hole in which Plaintiff fell after the hole was dug and before Tilton arrived at the project and before the incident. (See UMF 33.) Inside the hole was the connection between the roof drain stub-out and the utility underground brought to the building. (See UMF 34.) DPM, in fact, had other holes around the outside of the building shell during construction, but did not discuss the presence of the hole with Tilton or any of its subcontractors. (See UMFs 27, 37-38.) DPM’s position was that responsibility for protection of the hole was delegated to its subcontractors who created the holes. (See UMF 29.) During the first month that he was on site, the foreman for Novotec and Plaintiff’s brother, Ricardo Mendoza (“Ricardo”), saw four holes outside the premises, including the hole Plaintiff eventually fell into, that were uncovered. (See evidence cited by UMFs 48, 53-54, 58.) Ricardo and other foremen complained to Tilton’s senior superintendent, Son Tran (“Tran”), about the holes and said that someone needed to do something about it, but Tran responded to his complaint stating that Tilton was only responsible for work inside the building and Dollinger was responsible for work outside the building. (See evidence cited by UMFs 39, 55-56.) Ricardo drove Plaintiff to the project on the day of the incident, and did not tell Plaintiff of any hazards on the site, and did not specifically warn Plaintiff of the presence of the hole that Plaintiff fell into. (See evidence cited by UMFs 58-61.) Additionally, no one else told Plaintiff that there was a hole in front of the building. (See evidence cited by UMF 65.)

Defendant Tilton moves for summary judgment, or, in the alternative, for summary adjudication of each cause of action on the ground that it did not owe a duty to Plaintiff and no action on Tilton’s part affirmatively caused or contributed to Plaintiff’s injuries.

MOTIONS FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION

Defendants’ burden on summary judgment

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) “The moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to avoid unjustly depriving the plaintiff of a trial.’” (Id. at § 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id. at ¶ 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

The Privette doctrine

“At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor’s negligence in performing the work.” (Privette v. Super. Ct. (Contreras) (1993) 5 Cal.4th 689, 693.) “Central to this rule of nonliability was the recognition that a person who hired an independent contractor had ‘no right of control as to the mode of doing the work contracted for.’” (Id., citing Green v. Soule (1904) 145 Cal. 96, 99.) However, in Privette, the California Supreme Court noted that “[o]ver time, the courts have, for policy reasons, created so many exceptions to this general rule of nonliability that ‘the rule is now primarily important as a preamble to the catalog of its exceptions’”, expanding liability to “allow the hired contractor’s employees to seek recovery from the nonnegligent property owner for injuries caused by the negligent contractor.” (Id. at pp.693-696.)

The Privette court noted that the effect of such an expansion of the doctrine of peculiar risk was such that it gave “an independent contractor’s employees who incur[red] work-related injuries under the workers’ compensation system… the right to recover tort damages for industrial injuries caused by their employer’s failure to provide a safe working environment—something that is denied to other workers… [thereby] exempt[ing those employees]… from the statutorily mandated limits of workers’ compensation, while penaliz[ing] those individuals who hire experts to perform dangerous work rather than assigning such activity to their own inexperienced employees.” (Id. at pp.696-701.) Therefore, the Privette court changed course, and determined that “because workplace injuries are covered by workers’ compensation, liability under the doctrine of peculiar risk does not extend to the employees of an independent contractor hired to do dangerous work.” (Id. at p.702.)

In Toland v. Sunland Housing Group, Inc. (1998), 18 Cal. 4th 253, the California Supreme Court “recognized the principle of delegation of duty as a rationale for our decision.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal. 4th 590, 599-600, discussing, Toland, supra, 18 Cal.4th at pp.267-270.) Citing Toland, supra, in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, the California Supreme Court noted that “an employee of a contractor should be barred from seeking recovery from the hirer under the theory of negligent hiring… [as] it would be unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for the worker’s on-the-job injuries, is limited to providing workers’ compensation coverage.” (Id. at p. 1243-1245.) In Hooker v. Department of Transportation (2002) 27 Cal. 4th 198, the California Supreme Court further refined its opinion, concluding that “a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirer’s exercise of retained control affirmatively contributed to the employee’s injuries.” (Id. at p.202 (emphasis added).) In Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, the California Supreme Court noted that those prior cases were premised on the common law principle “that when a hirer delegated a task to an independent contractor, it in effect delegated responsibility for performing that task safely, and assignment of liability to the contractor followed that delegation.” (Id. at p.671.) The Kinsman court noted that “[n]onetheless, when the hirer does not fully delegate the task of providing a safe working environment, but in some manner actively participates in how the job is done, and that participation affirmatively contributes to the employee’s injury, the hirer may be liable in tort to the employee.” (Id.) Thus, “the hirer as landowner may be independently liable to the contractor’s employee, even if it does not retain control over the work, if: (1) it 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 fails to warn the contractor.” (Id. at pp.675-679 (also stating that “[a] landowner’s duty generally includes a duty to inspect for concealed hazards”; also stating that “under the premises liability theory, the hirer would only have liability if the contractor did not know and could not reasonably have ascertained the hazard”; also stating that “we fully reaffirm the right of hirers ‘to delegate to independent contractors the responsibility of ensuring the safety of their own workers’… [b]ut we would recognize that such delegation is ineffective when the hirer, as landowner, fails to provide the contractor with the information—the existence of a latent hazard—necessary to fulfill that responsibility”).)

Finally, in SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, the California Supreme Court stated that the previously discussed cases “establish[] that an independent contractor’s hirer presumptively delegates to that contractor its tort law duty to provide a safe workplace for the contractor’s employees.” (Id. at p.600.) In SeaBright, the defendant U.S. Airways used a conveyor to move luggage that was owned by the airport, but used it under a permit and had responsibility for its maintenance. (Id. at p. 594.) U.S. Airways hired independent contractor Lloyd W. Aubry Co. to maintain and repair the conveyor and neither directed nor participated in Aubry’s work. (Id.) The conveyor lacked certain safety guards required by applicable regulations and Aubry’s employee got his arm caught in moving parts, resulting in an injury for which the employee received workers’ compensation benefits. (Id.) The plaintiff SeaBright Insurance Company, Aubry’s workers’ compensation insurer, then sued U.S. Airways claiming the airline caused the employee’s injury and seeking to recover what it paid in benefits, and the employee intervened, alleging claims for negligence and premises liability. (Id. at pp.594-595.) U.S. Airways moved for summary judgment based on the Privette doctrine, and, in opposition, SeaBright and the employee presented “a declaration by an accident reconstruction expert, who stated that the lack of safety guards at ‘nip points’ on the conveyor violated Cal-OSHA regulations… and that the safety guards would have prevented Verdon’s injury.” (Id. at p.595.) U.S. Airways, however, argued that, assuming Cal-OSHA imposed on it a tort law duty of care that extended to Aubry’s employees, it delegated any such duty to Aubry as part of its contract hiring Aubry to maintain and repair the conveyor. (Id. at p.597.) The SeaBright court noted that U.S. Airways owed its own employees a duty to provide a safe workplace, and since “[a]ny tort law duty US Airways owed to Aubry’s employees only existed because of the work (maintenance and repair of the conveyor) that Aubry was performing for the airline, … therefore it did not fall within the nondelegable duties doctrine.” (Id. at p.603.) The SeaBright court thus agreed with the trial court’s granting of the motion for summary judgment, noting that “plaintiffs here cannot recover in tort from defendant US Airways on a theory that employee Verdon’s workplace injury resulted from defendant’s breach of what plaintiffs describe as a nondelegable duty under Cal-OSHA regulations to provide safety guards on the conveyor.” (Id.)

There is a triable issue as to whether Tilton affirmatively contributed to Plaintiff’s injury.

Defendant Tilton asserts that there are only two applicable exceptions to the Privette doctrine here: failure to warn and retained control. As Tilton states, in a situation where a party “hires an independent contractor whose employee is injured by a hazardous condition on the premises… when there is a known safety hazard on a hirer’s premises that can be addressed through reasonable safety precautions on the part of the independent contractor, 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.” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 673–674 (also stating that “the hirer generally delegates to the contractor responsibility for supervising the job, including responsibility for looking after employee safety”).) “However… the hirer as landowner may be independently liable to the contractor’s employee, even if it does not retain control over the work, if (1) it knows or reasonably should know of a concealed, pre-existing hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor.” (Id. at pp.674-675.) Here, Tilton meets its burden to demonstrate that Novotec was aware of the hole, delegated any responsibility to provide a safe area to Novotec, and did not affirmatively contribute to Plaintiff’s injury. (See evidence cited by UMFs 1-24, 26-27, 29-34, 36-61, 65-66.)

Plaintiff’s objections to Tilton’s evidence based on relevance, vagueness and ambiguity, and misstating of evidence are OVERRULED.

In opposition, Plaintiff presents the deposition testimony of Tilton superintendent Tran who states that: Labor Ready was retained by Tilton “[t]o help us clean up”; he “directed Labor Ready”; he “g[a]ve specific instructions on the locations in which they were to clean up”; he did not “specifically tell them that their cleanup responsibilities were limited to the inside of the building, the staging area and the path”; and, he would instruct them as to the specific area that Labor Ready was to clean, including “outside cleaning the staging area.” (See Coates decl., exh. 1 (“Tran depo”), pp. 42:21-25, 43:5-23.) Plaintiff also presents the deposition testimony of DPM’s superintendent, Mike Strong, who stated that the hole was covered prior to the incident, first with plywood and later with a pallet; the “hole [was] covered with a pallet that day [of the incident]”; he believes Tilton removed the pallet and the plywood the day before the incident because after the plywood cover was removed, it was replaced by a pallet, and he witnessed Labor Ready’s employees cleaning the area prior to the accident. (See Coates decl., exh. 2 (“Strong depo”), pp.76:25, 77:1-4, 78:7-10, 80:3-25, 104:23-25, 105:1-14, 113:6-25, 115:3-25, 119:9-25.) Here, Plaintiff demonstrates, albeit weakly, the existence of a triable issue of material fact as to whether Tilton affirmatively contributed to Plaintiff’s injuries and whether Tilton exercised control over the area that included the subject hole. The inference of the evidence submitted by Plaintiff is that Tilton’s superintendent Tran directed Labor Ready to clean up the area around the hole and that Tilton’s subcontractor removed the pallet from the hole, thereby leaving the previously covered hole exposed.

Tilton submits evidence in connection with its tardy reply brief. This evidence has not been considered. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 (stating that evidence submitted with a reply is not generally allowed); San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 (stating that considering evidence in connection with a reply violated the opposing parties due process rights because the opposing party was “not informed what issues it was to meet in order to oppose the motion”).)

Defendant Tilton’s motion for summary judgment and alternative motion for summary adjudication of each cause of action is DENIED.

The Court shall prepare the Order.