Case Number: BC493636    Hearing Date: September 09, 2014    Dept: 91

Defendants’ Motion for Summary Judgment, or Alternatively for Summary Adjudication of the Complaint filed by State Compensation Insurance Fund is DENIED. Defendants have not met their burden of establishing that they are entitled to judgment in their favor based on the material facts proffered, which remain in dispute. The court notes that the parties settled the Complaint-In-Intervention, and Defendants no longer request an order adjudicating those issues. Reply 10:26-28, fn 1. This motion is limited to the issues relevant to the Complaint filed by State Compensation Insurance Fund (SCIF).

The opposition was served 1 day late on 9/27/14. It was due 14 days before the hearing on 9/26/14. Late oppositions are not permitted without a prior court order showing good cause. Bozzi v. Nordstrom, Inc., 186 Cal. App. 4th 755, 765 (Cal. App. 2d Dist. 2010). However, Bozzi, which relies on Hobson v. Raychem Corp., 73 Cal. App. 4th 614, 624 (Cal. App. 1st Dist. 1999) are both distinguishable as they concerned “late submitted evidence” (16 days after deadline) or “surrebuttal” evidence submitted after the opposition was filed. In this case, Plaintiff is one day late.

Defendants did not suffer any prejudice because the opposition was one day late. Defendants were able to file a substantive Reply brief, which the court has considered. Kapitanski v. Von’s Grocery Co., 146 Cal. App. 3d 29 (Cal. App. 4th Dist. 1983).

Ordinarily, as a hirer, Defendants do not owe a duty to the independent contractor or its employees for injuries sustained on the job. Hooker v. Department of Transportation, 27 Cal. 4th 198, 200-201 (Cal. 2002); Gravelin v. Satterfield, 200 Cal. App. 4th 1209, 1214 (Cal. App. 1st Dist. 2011). An exception to the general rule of non-liability exists where the hirer “retains control” of the work and affirmatively contributes to the injury. SeaBright Ins. Co. v. US Airways, Inc., 52 Cal. 4th 590, 595 (Cal. 2011).

Defendants’ objections to the Declaration of Avrit are all OVERRULED.

Defendants’ material facts remain in dispute as to whether Defendants controlled the work.

Fact 3 – whether Forever 21 “supervised” Todd’s employees is in dispute. Hernandez was Forever 21’s “coordinator,” “facilitator on the remodel job” whose job was to “check on their construction methods.” Plaintiff’s Ex. A, 15:6-19. He was on the site on a daily basis. 17:24-25.

He met with Macy’s personnel prior to demolition to go over exactly “what could not be touched, what could be touched, and I marked it with a spray can, green for go and red for stay off.” 37:5-9.

He did not mark any red or green in the room where the accident occurred. 37:16-19; 42:4-15.

Fact 4 is disputed as to Todd’s scope of the work.

Fact 5 is in dispute as to who was responsible for safety on the job. Hernandez’s deposition testimony did not equivocally state that safety was Todd’s responsibility. He said “yes and no.” 125:21-22. He agreed that as superintendent for the contractor, he would make sure everything would be done safely, that the site was safe. 126:14-19. See Facts 4 and 5 and evidence cited therein in opposition.

While there is no dispute that it was Todd’s ladder, no one told Mr. Gonzalez to ascend it, (UF 9, UF 10) or the facts as to how the accident occurred (UF 11-12), these facts are not material. The material issue is whether Defendants controlled the work (the demolition) not the ladder.

The issue of whether Defendants’ retained control of the work affirmatively contributed to the injury cannot be adjudicated as the material facts remain in dispute. Defendants focus on control of the ladder that Plaintiff was using. However, the Plaintiff’s theory of negligence is that Defendants failed to mark the area one way or another (with red or green paint) to indicate whether or not the area was safe to work in.

Plaintiff’s AF 4 states that Hernandez’s job was to use green and red paint to indicate areas where communication wires were not to be removed, as opposed to unmarked areas where virtually all material was to be removed.

Hernandez established a protocol for marking specific items to indicate cables that were not to be removed. He did not follow that protocol in the area where the incident occurred. AF 5.

Hernandez admitted in his deposition that he gave verbal instructions as to specific cables to be removed or left in place. AF 6.

Hernandez exercised control over the scheduling of the work and the location of the contractors in order to avoid conflicts. AF 7. See Disputed Additional Facts AF 4 – 7 and evidence cited therein.

Defendants objections to the deposition of Hernandez, as set forth in its Reply to Plaintiff’s Additional Facts are not considered. Defendants did not file evidentiary objections to this particular evidence as required by Cal Rules of Court 3.1354. These objections are required to be separately filed at the time of the Reply, and conform to one of three formats described. Cal Rules of Court 3.1354.

The claims for equitable indemnity and declaratory relief (declaring the right to indemnification) cannot be adjudicated in Defendants’ favor as the material facts remain in dispute on the issue of Defendants’ retained control and affirmative contribution to the injury. Whether Defendants “contributed” to the negligence remains a triable issue of fact. “Active participation” in the negligent conduct will foreclose the right of indemnity. Baldwin Contracting Co. v. Winston Steel Works, Inc., 236 Cal. App. 2d 565, 573-574 (Cal. App. 1st Dist. 1965).

While Defendants argue that Baldwin is distinguishable on its facts, it is applicable in that it articulates the general rule with respect to how negligence affects indemnity rights.