Case Name: Darrin Braaten v. Kellogg USA Inc., et al.
Case No.: 15-CV-289372

Currently before the Court is the motion by defendants Kellogg USA, Inc. (“Kellogg”), Jeff Pasquino-Greco (“Pasquino-Greco”), and Ceferino Coles, Jr. (“Coles”) (collectively, “Defendants”) for summary judgment or, alternatively, summary adjudication.

Factual and Procedural Background

This is a slip-and-fall action. Defendants were “engaged in the business of designing, manufacturing, advertising, distributing, selling, and/or assembling food, including … waffles,” and owned, operated, controlled, and/or maintained premises located at 475 Eggo Way (“Premises”). (SAC, ¶¶ 1, 10, 12, 17.) Defendants “hired and/or directed subcontractors to perform work on said [P]remises, controlled the sequence of the work, and controlled, and/or had care and custody of said [P]remises.” (Id., at ¶ 12.) “The operation of the business caused [D]efendants to design, manufacture, install, modify, and/or renovate waffle manufacturing equipment and machinery at the [P]remises … .” (Id., at ¶¶ 10, 18.) “When [D]efendants used and/or supervised the operation of the aforementioned waffle manufacturing equipment and machinery …, the equipment and machinery emitted an oily mist in the area where bystander pedestrian traffic was anticipated, including … traffic by business invitees … . ” (Id., at ¶¶ 11, 19.)

On January 29, 2014, Plaintiff was working at the Premises as a millwright in the course of his employment with Lloyd W. Aubry, Co, Inc. (“Aubry”). (SAC, ¶¶ 1, 3, 9-10, 13, 16.) Plaintiff and his employer were on the Premises “as business invitees and were acting in the capacity of subcontractors performing maintenance and related activities with the knowledge and permission of [D]efendants.” (Id., at ¶ 13.) While acting in the course and scope of his employment, Plaintiff slipped, tripped, and/or fell on floor due to the oily mist created by the waffle manufacturing equipment. (Id., at ¶¶ 16, 19-21, 30.) As a result of the fall, Plaintiff sustained various injuries. (Id., at ¶¶ 21-24.)

Plaintiff and Aubry relied on Defendants to control the manner, sequence, and location of Plaintiff’s work “and to control and provide [P]laintiff with safe access to the machinery.” (SAC, ¶ 14.) Defendants allegedly “covenanted to control the manner, sequence and location of [P]laintiff’s maintenance work at the Kellogg[ ] facility and [D]efendants covenanted to provide [P]laintiff and [Aubry] with safe access to the … machinery.” (Ibid.) Defendants retained control over these aspects of Plaintiff’s work as well as “the peripheral activity of Kellogg’s employees on the … floor while [P]laintiff was performing his maintenance work, including control of the waffle-making activity at the premises.” (Id., at ¶ 15.) “Defendants … retained control over the … waffle-making equipment and the … waffle making activity on the premises[ ] and [they] continued to operate Kellogg’s waffle-making equipment at or near the area where [P]laintiff performed his work on the premises, even though [they] knew ( or should have known) that the … equipment emitted an oily mist that created a safety hazard for plaintiff when he performed his maintenance work.” (Id., at ¶ 27.) Plaintiff alleges that Defendants “had the duty, the power and the responsibility to curtail or cease any hazardous waffle making activities on the premises and/or to adequately warn or protect [him] against safety hazards at the … [P]remises.” (Id., at ¶ 15.) Furthermore, Defendants alleged “covenanted to provide adequate guards and safety devices along the floor such as mats, grates, cleats or other methods to protect individuals against slipping hazards,” but they “failed to provide adequate guards and safety devices along the floor … .” (Id., at ¶ 32.)

Plaintiff further alleges that Defendants hired, supervised, or retained employees who were unfit to control, manage, operate, supervise and/or oversee the waffle-making activity, machinery, and equipment. (SAC, ¶ 42.) Defendants’ employees allegedly conducted waffle-making activity and operated waffle-making equipment near the area where Plaintiff performed his work and failed to provide Plaintiff with safe access to the machinery so he could perform his work. (Id., at ¶¶ 43-44.) Defendants negligently supervised, hired, and/or retained subordinate employees who were unfit to perform their work, resulting in harm to Plaintiff. (Id., at ¶¶ 45-47.) “Defendants did not properly train their employees to operate the waffle-making equipment in a safe manner, as evidenced by the fact that the waffle-making equipment emitted a slick, oily mist when operated by [D]efendants’ employees.” (Id., at ¶ 48.) “Defendants did not properly train their employees to cease waffle-making operations when the floor became slick and hazardous” or “to cease work on the plant floor and immediately remedy hazardous conditions … when such situations arose.” (Id., at ¶¶ 49-50.)

Based on the foregoing, Plaintiff filed the operative SAC against Defendants, alleging causes of action for: (1) negligence; (2) negligent hiring, supervision, and retention; (3) premises liability; and (4) breach of contract.

On July 6, 2018, Defendants filed the instant motion for summary judgment or, alternatively, summary adjudication. Plaintiff filed papers in opposition to the motion on November 29, 2018.

Discussion

Pursuant to Code of Civil Procedure section 437c, Defendants move for summary judgment of the SAC or, in the alternative, summary adjudication of each and every cause of action alleged in the SAC.

I. Evidentiary Objections

In connection with his opposition, Plaintiff submits evidentiary objections to the Contractor Work Rules attached to the declaration of Vipul Thomas as Exhibit A.

Plaintiff’s evidentiary objections do not comply with California Rules of Court, rule 3.1354. Rather than submit two separate documents as required by the rule—one setting forth the objections and another setting forth a proposed order—Plaintiff submitted a single packet of objections signed by counsel, with blanks apparently for the Court to indicate its rulings, but with no place for the Court to sign. (See Cal. Rules of Ct., rule 3.1354(b) [a party must provide written objections that comply with one of the formats described in the rule] (c) [a party must provide a proposed order that complies with one of the formats described in the rule].) This hybrid document does not comply with California Rule of Court, rule 3.1354.

Because Plaintiff’s evidentiary objections do not comply with the California Rules of Court, the Court is not required to rule on the objections. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; see also Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 8 [trial court is not required to rule on objections that do not comply with California Rules of Court, rule 3.1354 and is not required to give objecting party a second chance at filing properly formatted papers].)

Accordingly, the Court declines to rule on Plaintiff’s objections.

II. Legal Standard on Motions for Summary Judgment or Adjudication

The pleadings limit the issues presented for summary judgment or adjudication and such a motion may not be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Super. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73.)

A motion for summary judgment must dispose of the entire action. (Code Civ. Proc., § 437c, subd. (a); All Towing Services LLC v. City of Orange (2013) 220 Cal.App.4th 946, 954 [“Summary judgment is proper only if it disposes of the entire lawsuit.”]; Lopez v. Super. Ct. (1996) 45 Cal.App.4th 705, 713-14 [a defendant moving for summary judgment must negate each theory of liability alleged in the complaint Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228 [“If a plaintiff pleads several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. ‘The moving defendant whose declarations omit facts as to any such theory … permits that portion of the complaint to be unchallenged.’ ”].) “Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. 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 that cause of action or a defense thereto.’ ‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ ” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272, internal citations omitted.)

“Summary adjudication works the same way, except it acts on specific causes of action or affirmative defenses, rather than on the entire complaint. ([Code Civ. Proc.,] §
437c, subd. (f).) … Motions for summary adjudication proceed in all procedural respects as a motion for summary judgment.’ ” (Hartline v. Kaiser Foundation Hospitals (2005)
132 Cal.App.4th 458, 464.)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment or adjudication must present admissible evidence. (Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468.) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny the motion on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment or adjudication “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing the motion and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717-18.)

III. Analysis

A. First and Third Causes of Action

Defendants initially argue that the first cause of action for negligence and the third cause of action for premises liability are precluded by Privette v. Super. Ct. (Contreras) (1993) 5 Cal.4th 689 (Privette) and its progeny, a series of cases that have defined and limited the circumstances in which an independent contractor’s employee may recover in tort from the party hiring the contractor. Defendants contend that, “in support of his negligence and premises liability causes of action, Plaintiff alleges that [they] supposedly created hazardous conditions on the Premises by failing to properly maintain waffle manufacturing machinery and keep the floors of the Premises free from oil and residue.” (Ds’ Mem. Ps. & As., p. 6:14-17.) Defendants assert that “both of these claims fail as a matter of law because the undisputed material facts establish that Plaintiff was on Kellogg’s premises in his capacity as an employee of an independent contractor, [Aubry], at the time of the [i]ncident.” (Id. at p. 6:17-29.) Defendants contend that they do not owe Plaintiff a duty of care under the general rule of hirer non-liability because Plaintiff was acting within the course and scope of his employment with Aubry when he sustained his alleged injuries. (Id. at p. 7:6-20.)

Defendants further argue that the exceptions to this general rule do not apply in this case. First, Defendants assert that they did not retain control over Plaintiff’s work in such a way that affirmatively contributed to his injuries. (Ds’ Mem. Ps. & As., pp. 7:21-10:21.) Defendants state that “Plaintiff appears to imply” that this case falls within the retained control exception “by alleging that [they] ‘retained control over … plaintiff’s work’ and further … that [they] supposedly ‘covenanted to provide [P]laintiff and [Aubry] with safe access to Kellogg’s machinery[.]’ ” (Id. at p. 8:20-23.) Defendants contend that “the undisputed material facts demonstrate the opposite—[they] did not retain any control over the operative details of [Aubry’s] maintenance servicing work, let alone Plaintiff’s work, nor did Defendants retain control over safe in connection with [Aubry’s] work area.” (Id. at p. 8:23-26.) Defendants state that they did not direct or otherwise instruct Plaintiff on how to perform his tasks; Plaintiff was acting at the direction of and under the supervision of Aubry. (Id. at p. 9:3-6.) Defendant also state that Plaintiff did not have any interactions with Kellogg employees. (Id. at p. 9:12-19.) Finally, Defendants contend that Aubry was responsible for the safety of its own employees on the premises under the Contractor Work Rules. (Id. at pp. 9:20-10:15.)

Defendants also assert that the slippery oily mist on the floor was not a concealed hazard, but open and obvious. (Ds’ Mem. Ps. & As., pp. 10:22-13:12.) Defendants point out that Plaintiff worked at the Premises on four separate occasions prior to the incident. (Id. at p. 12:2-7.) In addition, Plaintiff testified that the floor was slippery the whole time he was there, the oil was on the floor “wherever there [were] conveyors.” (Id. at pp. 12:4-13:10.)

Lastly, Defendants asserts that Cal-OSHA regulations do not furnish a basis for establishing the existence of a legal duty. (Ds’ Mem. Ps. & As., pp. 13:13-15:2.)

“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, supra, 5 Cal.4th at p. 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.’ ” (Ibid., 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.) Specifically in Privette, even though the owner of a duplex did not participate in the hired contractor’s decision to have the plaintiff employee hand-carry buckets of hot tar, the employee alleged that “because of the inherent danger of working with hot tar, [the owner] should, under the doctrine of peculiar risk, be liable for injuries to [the employee] that resulted from [the contractor’s] negligence.” (Id. at pp. 692-693.) 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.)

The California Supreme Court next discussed the peculiar risk doctrine in Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 (Toland ), in which it considered whether its holding in Privette applied when the hirer of the independent contractor failed to specify as part of the contract that the contractor should take special precautions to avert the peculiar risk. In Toland, the court extended Privette to bar liability against a hirer of an independent contractor to do inherently dangerous work even if the hirer fails to provide in the contract or in some other manner that “special precautions” be taken to avert the peculiar risks of that work. The Court held that “[i]n either situation, 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.” (Toland, supra, 18 Cal.4th at p. 267.)

In Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1243-1245 (Camargo), the same reasoning was applied by the court in holding that an employee of a contractor is barred from suing the hirer of the contractor under a negligent hiring theory. 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.” (Ibid.)

In Hooker v. Department of Transportation (2002) 27 Cal. 4th 198 (Hooker), 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.) In a companion case to Hooker, the court also confirmed that there is a basis for liability under section 414 of the Restatement in California, holding that “a hirer is liable to an employee of an independent contractor insofar as the hirer’s provision of unsafe equipment affirmatively contributes to the employee’s injury.” (McKown v. Wal–Mart Stores, Inc. (2002) 27 Cal.4th 219, 222 (McKown), fn. omitted.) “Imposing tort liability on a hirer of an independent contractor when the hirer’s conduct has affirmatively contributed to the injuries of the contractor’s employee is consistent with the rationale of [the] decisions in Privette, Toland and Camargo because the liability of the hirer in such a case is not ‘ “in essence ‘vicarious’ or ‘derivative’ in the sense that it derives from the ‘act or omission’ of the hired contractor.” ’ [Citation.] To the contrary, the liability of the hirer in such a case is direct in a much stronger sense of that term.” (Hooker, supra, 27 Cal.4th at pp. 211–212.)

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.” (Ibid.) Additionally, the court held that “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”].)

When a defendant moves for summary judgment based on the Privette doctrine, the defendant bears the initial burden of establishing the foundational facts justifying its application. (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 644-645 (Alvarez).) If a defendant does so, the burden shifts to the plaintiff to raise a triable issue of material fact by, for example, presenting evidence establishing one of the exceptions applies. (Ibid.)

Here, Defendants provide the requisite factual foundation for the Privette presumption to apply. Defendants present undisputed material facts and evidence showing that Kellogg hired Plaintiff’s employer, Aubry, as an independent contractor to perform maintenance work at its waffle-making facility and that Plaintiff was injured while working at the site. (Ds’ UMF Nos. 1-4.) This evidence is sufficient to establish that the Privette presumption applies and, therefore, the burden shifts to Plaintiff to raise a triable issue of fact. (See Alvarez, supra, 13 Cal.App.5th at p. 644 [finding that the defendants provided the requisite factual foundation for the Privette presumption to apply because “[t]heir separate statement presented evidence that Evergreen hired plaintiff’s employer to perform work at the Evergreen Terminal, that the other defendants—Seaside and 127 Ports America—were also hired by Evergreen to perform work there, and that plaintiff was injured while working at the site”].)

In opposition, Plaintiff raises a triable issue of material fact. A cause of action based on the theory that the hirer’s own independent negligence has affirmatively contributed to the plaintiff’s injury survives the Privette/Toland line of cases. (Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, 1128 (Ray) [“a direct negligence cause of action may be maintained against the hirer of an independent contractor without running afoul of Privette and Toland”]; see Hooker, supra, 27 Cal.4th at p. 214; see also McKown v. Wal–Mart Stores, Inc. (2002) 27 Cal.4th 219, 222; Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1331–1332 (Biles); Tverberg v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439, 1447-1448.)

For example, in Biles, the plaintiff worked as an insulator for a subcontractor engaged to assist in the construction of an oil refinery. (Biles, supra, 124 Cal.App.4th 1315, 1320.) The plaintiff alleged that the oil company’s employees contributed to his asbestos-related injuries because the oil company’s employees used air hoses to blow asbestos dust in his direction while he was working near those employees on the company’s premises. (Id. at pp. 1319-1321, 1330-1333.)

In its decision, the Biles court stated:

[The California Supreme Court] has made clear that the policies underlying the limitations on the peculiar risk doctrine are not violated when a hirer is held liable to a contractor’s employee based on the hirer’s own affirmative negligence. …

Indeed, nothing in section 409 of the Restatement purports to absolve a hirer from liability for the hirer’s own negligent acts, merely because a contractor happens to be on the scene at the time, or because the injured party happens to be employed by that contractor. Thus, whether or not there is liability under Restatement section 416, or any other exception to Restatement section 409, is not relevant when the direct negligence at issue is that of the hirer, not the contractor. [Citations.] Instead, the hirer’s liability for its own negligence is covered by the principles enunciated in Hooker and McKown, as well as by general principles of California tort law regarding the duty of premises owners to persons coming upon their land.

In short, if a hirer’s own employees, working side-by-side with the employees of a contractor, negligently injure one of the contractor’s employees, the hirer may be held liable under the normal principles of respondeat superior for its own employees’ negligence. Nothing in the Privette line of cases is to the contrary … .

(Biles, supra, 124 Cal.App.4th at pp. 1331–1332.) Applying those principles, the Biles court found that there was a triable issue of fact regarding whether the oil company was liable based on the affirmative acts of its own employees that allegedly contributed to the plaintiff’s asbestos exposure. (Id. at p. 1332.)

Here, Plaintiff alleges that Defendants’ actions directly caused his injuries. In the SAC, Plaintiff does not merely allege that Defendants—as the hirer of his employer Aubry—should be held liable for his injuries because they had the power to control worksite safety and failed to implement certain safety precautions. (See Hooker, supra, 27 Cal.4th at pp. 211–12.) Rather, Plaintiff alleges that Defendants affirmatively and directly contributed to his injuries by continuing to operate the waffle-making machine, which sprayed the slick oily-mist onto the floor of the Premises. (SAC, ¶¶ 27-28, 30, 39, 56.) Plaintiff presents evidence that waffle-making equipment—Mod 1—was “fired up” and “running” about 1 hour prior to the incident; at the time of the incident, waffles were coming out of the Mod 1 equipment on conveyor belts; it was Kellogg’s decision to turn on the equipment; only Kellogg employees (machine operators and production supervisors) could turn off the equipment; he slipped and fell in the Mod 1 wheel room, near the door between Mod 1 and Mod 2; the floor where he fell was slick with oil; and the floor had oil on it because Mod 1 was running and the irons that run through the machine are oiled by compressed air (i.e., oil is compressed with air and blown through little nozzles onto the irons in a fine mist as the irons pass by the nozzles). (Hollinshead Depo. Transcript, pp. 13:25-14:14; Coles Depo. Transcript, pp. 36:18-39:4, 42:13-19, 112:25-113:14; Hale Depo. Transcript, pp. 41:20-43:22 & 47:17-49:18; Fulghum Dec., ¶¶ 13 & 16.) This evidence raises a triable issue of fact regarding whether Defendants are liable based on the affirmative acts of Kellogg employees that allegedly ran the waffle-making equipment while Plaintiff worked nearby.

Furthermore, there is a triable issue of material fact regarding whether the open and obvious condition of the floor precludes liability. “Kinsman … indicates that under the ‘principles of delegation’ set forth in Privette and its progeny [citation], a hirer cannot be held liable for injuries resulting from open or known hazards the contractor could have remedied through the adoption of reasonable safety precautions. As a corollary, the hirer can be held liable when he or she exposes a contractor (or its employees) to a known hazard that cannot be remedied through reasonable safety precautions.” (Gonzalez v. Mathis (2018) 20 Cal.App.5th 257, 272–273.) “[U]nder Kinsman, a hirer’s liability for injuries resulting from an open hazard is not dependent on the foreseeability that a contractor might encounter the hazard, but rather on whether the hazard was one that the contractor could have remedied through the adoption of reasonable safety precautions.” (Id. at p. 275, fn. 2.) Here, Defendants do not present any undisputed material facts or evidence showing that Plaintiff, or Aubry, could have remedied the alleged hazards through the adoption of reasonable safety precautions. (See id. at p. 273 [the defendant moving for summary judgment failed to meet his burden to establish as a matter of law that the plaintiff could have remedied the dangerous conditions through the adoption of reasonable safety precautions].)

Additionally, the evidence before the Court permits a reasonable inference that Plaintiff and/or Aubry could not have remedied the alleged hazard by adoption reasonable safety precautions. There is evidence that Plaintiff’s employment required him to walk over the floor in Mod 1 in order to bring a scissor lift and a cart of tools to his next work location, Mod 2. (Hale Depo. Transcript, pp. 42:12-16, 47:4-20, 77:8-25, 108:1-24; Braaten Depo. Transcript, p. 38:5-24.) There is no indication that there was another way for Plaintiff to walk that would have allowed him to avoid the oil slick. Kellogg made the decision to turn on the waffle-making equipment. (Hale Depo. Transcript, pp. 42:22-43:2, 77:8-25.) Only Kellogg employees (machine operators and production supervisors) could turn off the equipment, and Aubry did not have any part in the decision as to when to turn off the equipment. (Coles Depo. Transcript, pp. 36:18-38:12.) A Kellogg sanitation crew was in charge of sanitizing the floors and equipment, in part by removing oil from the floor with a chemical. (Coles Depo. Transcript, pp. 39:8-41:10, 84:2-8, 84:13-86:6, 120:2-121:11.) There is no indication that Aubry was allowed to clean the floors. Mats or grates were not available in Mod 1 for people to put down on the floor. (Coles Depo. Transcript, p. 86:7-25; Hale Depo. Transcript, p. 55:3-12.) Kellogg supervisors told Aubry workers they were not allowed to put anything on the ground. (Hale Depo. Transcript, pp. 31:1-10, 55:3-22.)

For these reasons, Defendants are not entitled to summary judgment of the SAC or summary adjudication of the first and third causes of action. Accordingly, Defendants’ motion for summary judgment of the SAC and summary adjudication of the first and third causes of action is DENIED.

B. Second Cause of Action

Defendants argue that the second cause of action for negligent hiring, supervision, and retention is precluded by the Privette doctrine. (Ds’ Mem. Ps. & A., pp. 15:20-16:3.) Defendants cite Camargo, supra, for the proposition that an employee of a contractor is barred from seeking recovery from the hirer under the theory of negligent hiring because 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. 15:21-28.) Defendants contend that because Plaintiff is an employee of Aubry, he cannot prevail on his second cause of action. (Id. at p. 16:1-3.)

Defendants’ argument is not well-taken because Privette, and its progeny Camargo, do not bar negligence claims where the hirer’s affirmative conduct contributes to or directly causes the alleged injury. In Camargo, the court concluded “an employee of a contractor should be barred from seeking recovery from the hirer under the theory of negligent hiring … .” (Camargo, supra, 25 Cal.4th at p. 1244.) This was because the negligent hiring theory was predicated on derivative liability because the hired contractor was the one who caused the employee’s injury as opposed to the hirer. (Ray, supra, 98 Cal.App.4th at p. 1126, citing Camargo, supra, 25 Cal.4th at p. 1244.) Here, Plaintiff’s negligent hiring, supervision, and retention claim is predicated on direct liability, not derivative liability. Plaintiff alleges that Defendants, not Aubry or some other party, are the ones who caused his injuries because Defendants’ own employees were unfit to control and/or operate the waffle-making machinery and Defendants failed to properly train and supervise their employees. (SAC, ¶¶ 42-50.) Thus, the second cause of action is not a derivative liability claim based on the negligence of the contractor.

For these reasons, Defendants fail to meet their initial burden and are not entitled to summary adjudication of the second cause of action. Accordingly, Defendants’ motion for summary adjudication of the second cause of action is DENIED.

C. Fourth Cause of Action

In the fourth cause of action for breach of contract, Plaintiff alleges that Defendants “contracted … to be responsible for coordinating all portions of work” at the Premises. (SAC, ¶ 69.) Additionally, Defendants allegedly “contracted … to employ a competent superintendent, to erect and maintain reasonable safeguards for safety and protection of [P]laintiff and [Aubry], including … providing safe access to [P]laintiff’s work and posting warning and/or danger signs and/or other warnings against hazards in the workplace.” (Ibid.) Plaintiff further alleges that he “was known and intended to be a third party beneficiary of said contracts and agreements, including any and all contract(s) between defendants and [Aubry] for work” at the Premises. (Id. at ¶ 72.) Defendants allegedly breached their contracts on the date of the incident. (Id. at ¶ 73.)

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Defendants argue that the fourth cause of action for breach of contract fails as a matter of law because Plaintiff has no evidence that they entered into contracts relating to worksite safety on the Premises that contractually obligated them to enact safety measures or other safety precautions for Aubry employees, such as Plaintiff. In support of their argument, Defendants offer the following undisputed material facts: “Plaintiff has no evidence that Defendants entered into any contracts relating to worksite safety on the Premises that would have contractually obligated Defendants to enact safety measures or other safety precautions for Lloyd Aubry’s employees, including Plaintiff”; “Kellogg did not enter into any agreements with Lloyd Aubry (or any other individuals or entities) concerning worksite safety on the Premises that would have contractually obligated Kellogg to enact safety measures for Lloyd Aubry’s employees, including Plaintiff”; and “Defendants Ceferino Coles, Jr. and Jeff Pasquino-Greco did not enter into any agreements with Lloyd Aubry (or any other individuals or entities) concerning worksite safety on the Premises that would have contractually obligated them to enact safety measures for Lloyd Aubry’s employees, including Plaintiff.” (Ds’ UMF Nos. 10-12.)

Defendants’ undisputed material facts are sufficient to meet their initial burden to show that they did not enter into the alleged contract to enact safety measures or other safety precautions for Plaintiff’s benefit.
In opposition, Plaintiff concedes that the foregoing material facts are not in dispute. Furthermore, Plaintiff does not present any argument or evidence in opposition with respect to the fourth cause of action. Consequently, Plaintiff fails to raise a triable issue of material fact as to this claim.

Accordingly, Defendants’ motion for summary adjudication of the fourth cause of action is GRANTED.