Case Number: BC625473 Hearing Date: September 23, 2019 Dept: 2

Munoz v. Munoz, et al.

Defendants Lecong Lee and Tina Yang’s motion for summary judgment, or, in the alternative, summary adjudication is DENIED. Moving party to give notice.

Plaintiff is the administrator of the estate and the wife of Decedent Adan Munoz (“Decedent” or “Adan”). Adan was fatally injured while trimming a tree on the property of Defendants Lecong Lee and Tina Yang (“Homeowners”). In the Complaint, Plaintiff alleges that Defendant Efrain Munoz (sometimes referred to as “Efrain”) was negligent in hiring and supervising Adan. Plaintiff further alleges that the Homeowners “knew or should have known that Efrain Munoz’s employees were nonskilled and would not be closely supervised, thereby creating a need for adequate security measures at the site.” Based on these alleged facts, Plaintiff purports to assert four causes of action: (1) negligent supervision and hiring against Defendant Efrain Munoz; (2) Premises Liability against the Homeowners; (3) Wrongful Death against all defendants; and (4) Loss of consortium against all defendants.

The Homeowners have moved for summary judgment, or in the alternative, summary adjudication. The Homeowners argue that there is no evidence that they were negligent; that no presumption of negligence arises; and that there is no basis for imposing vicarious liability on them for Efrain Munoz’s alleged negligence. They further argue that Plaintiff’s claims are barred by the primary assumption of the risk doctrine. In opposition, Plaintiff argues that the Homeowners were deemed the employers of both Efrain and Adan. Plaintiff does not address the Homeowner’s arguments regarding negligence or primary assumption of the risk.

EVIDENCE

Efrain and Adan Munoz were brothers who worked together to provide yard maintenance service to about twenty homes. They worked as informal partners. Homeowners Lee and Yang hired Efrain Munoz to perform general yard maintenance services at their home. Lee Decl. para. 4. Homeowner Lee was aware that Efrain Munoz worked with another person in their yard but he was not certain if that other person was always the Decedent.

In July 2014, Lee spoke to Efrain Munoz about trimming a tall palm tree on the property and offered to pay Efrain extra money to have the palm tree trimmed. The tree was over 15 feet tall. Efrain agreed to provide the services but did not tell Lee whether he personally would perform the work. On July 5, 2014, Adan and Munoz discussed project and Adan agreed to perform the work as he felt he was better qualified. Neither Efrain nor Adan were licensed to trim trees.

On July 5, 2014, Adan proceeded to trim the tree. The Homeowners were not at home on the date of the incident. They did not direct Adan how to trim the tree and did not retain any control over the tree trimming. Defendants did not provide any of the equipment or tools, including safety harnesses, belt, ropes or saw. UF 8.

While Adan was trimming the tree, he accidentally cut the belt for his safety harness and fell from the tree, sustaining fatal injuries. He was pronounced dead at the scene. UF 9.

DISCUSSION

A. Whether Efrain Munoz and Adan Munoz Were Employees of the Homeowners

Plaintiff’s causes of action against the Homeowners are based on the premise that Efrain and Adan were both employees of the Homeowners by operation of law.

The law is clear that when a homeowner hires an unlicensed contractor to perform a task for which a license is required, the homeowner becomes the employer of the contractor for tort purposes. See, e.g., Jones v. Sorenson (2018) 25 Cal. App. 5th 933, 943.

The Homeowners do not seriously contest that Adan was their employee by operation of law. The palm tree that Adan trimmed was over fifteen feet in height; a tree-trimming license was required to provide that service. Adan was unlicensed. Thus, Adan was the Homeowner’s employee.

The closer question is whether Efrain Munoz became the Homeowner’s employee under the same principle. Contrary to the Homeowner’s arguments, the Court concludes that there is at least a genuine issue of material fact as to that question. Defendant Lee admits that he entered into the agreement for tree-trimming services with Efrain Munoz, not decedent, and that it was Efrain Munoz that had previously been hired to provide the yard maintenance services. Thus, it was Efrain Munoz who was the contracting party and who agreed to provide tree-trimming services for which a license was required. The Homeowners have not established as a matter of law that Efrain Munoz was not required to have a contractor’s license in connection with this job.

Jones v. Sorenson (2018) 25 Cal. App. 5th 933 is instructive. In that case, a homeowner hired a gardener to work on her property and the gardener hired a worker to help her. It was the worker who trimmed the tree, and the worker who was injured while doing so. The Court held that the gardener required a contractor’s license to trim the tree, and the fact that the gardener was unlicensed meant that the homeowner was the employer of both the gardener and the worker. Sorenson suggests that it is the contracting party who is required to have the license to perform the work, and the Homeowners have not presented any contrary authority.

In sum, the Court concludes that there is at least a genuine issue of material fact that the Homeowners here were the employers of both Efrain Munoz and Decedent in connection with the tree trimming job.

B. Whether the Homeowners Have Established That Efrain Munoz Was Not Negligent As A Matter of Law

If Plaintiff establishes that the Homeowners were Efrain Munoz’s employer for purposes of the tree-trimming job, then the Homeowners would be vicariously liable for any negligence by Munoz in the course and scope of that employment. Relying on an “absence of evidence” theory, the Homeowners argue that Plaintiff cannot establish that Munoz was negligent, and thus that the Homeowners are not vicariously liable.

As the moving party, the Homeowners bear the initial burden of production to show that one or more elements of Plaintiff’s causes of action cannot be established or that there is a complete defense to that cause of action. CCP 437c(p)(2). A defendant can show that an element of a plaintiff’s cause of action cannot be established either by (1) presenting affirmative evidence negating, as a matter of law, an essential element of the plaintiff’s claim, or (2) presenting evidence showing that plaintiff “does not possess and cannot reasonably obtain” needed evidence. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. App. 4th 826, 854.

The defendant may show that the defendant does not (and cannot reasonably obtain) necessary evidence by relying on factually-devoid discovery responses. Union Bank v. Superior Court (1995) 31 Cal. App. 4th 573, 590. But the absence of evidence may be inferred from factually-devoid discovery responses only if the discovery requests at issue are sufficiently comprehensive to call for the specific factual contentions at issue. Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal. App. 4th 64, 80-81. Unless and until a defendant meets his or her initial burden as the moving party in a summary judgment motion, the plaintiff has no burden to oppose.

Here, the Homeowners base their argument that Efrain Munoz was not negligent on an absence-of-evidence theory. The Homeowners rely on Plaintiff’s responses to contention interrogatories asking Plaintiff to state all facts supporting claims against Efrain Munoz and the Homeowners.

Plaintiff provided concise responses to these interrogatories, stating in relevant part: “The defendants knew or should have known that it was customary to employ a spotter for anyone to do tree trimming work. However, defendant failed to provide a spotter and [Decedent] fell from the tree.” Plaintiff also objected to several of the interrogatories as calling for the premature disclosure of expert opinion.

The Court does not find these responses so factually deficient to satisfy the Defendant’s initial burden to establish, as a matter of law, that negligence cannot be proved. The responses make clear that Plaintiff is alleging that the absence of a spotter was a substantial factor in causing the accident. The Homeowners claim that the responses were factually deficient because they did not lay out precisely how the lack of a spotter contributed to the accident, but such a theory of causation would properly be the subject of expert opinion, which Plaintiff was not required to disclose at the time the interrogatory responses were served. The interrogatory responses are not sufficient to establish that the Homeowners do not possess and cannot obtain necessary evidence to show that Efrain Munoz was negligent in supervising the job.

The Court’s conclusion is bolstered by the declaration of the Homeowner’s own expert, Lisa E. Smith. Ms. Smith does not provide any opinion at all as to whether the presence of a spotter could have prevented this accident or whether a spotter should have been provided. Thus, the declaration provides no value in negating that element of Plaintiff’s case. Further, the expert provides another affirmative basis for concluding that Efrain Munoz was negligent. Ms. Smith states in relevant part: “From photographs produced by the Los Angeles Sheriff’s Department it appears that Adan Munoz did not use ropes as additional safety measure. Instead, the photographs taken at the scene of the accident show that the ropes remained in the truck.” This opinion constitutes affirmative evidence that Munoz, as the contracting party, was negligent in supervising the job by failing to ensure that Adan used the ropes.

In sum, the Court thus finds that the Homeowners have failed to shift the burden to Plaintiff on the issue of whether Efrain Munoz was negligent. The Court need not consider whether Plaintiff has presented any controverting evidence. This alone is a sufficient basis for denying the motion, at least as to the wrongful death cause of action.

C. Whether the Homeowners Have Met Their Burden of Proving That the Homeowners Were Not Directly Negligent As A Matter of Law.

The Homeowners argue that the affirmative evidence establishes that the Homeowners were not negligent as a matter of law. In support of that argument, the Homeowners rely on evidence that they were not home at the time of the accident and that they provided no materials, direction or supervision in connection with the job. The Homeowner’s showing is not sufficient because it does not address Plaintiff’s theory of liability against the Homeowners.

As previously noted, the Complaint alleges that the Homeowners “knew or should have known that Efrain Munoz’s employees were nonskilled and would not be closely supervised, thereby creating a need for adequate security measures at the site.” The claim is essentially one for negligent supervision, and the Homeowners admit in their moving papers that they provided no supervision.

The key issue is whether the Homeowners had a duty to supervise. The Homeowner’s only argument for why they had no duty to supervise is that Efrain Munoz was not the Homeowner’s employee. As previously discussed, there is at least a genuine issue of material fact on that issue, thus precluding summary adjudication.

The Court reaches no conclusion as to whether the Homeowners did, in fact, have a duty to supervise Efrain Munoz (even assuming Plaintiff will prevail on the claim that Munoz was the Homeowner’s employee). There may be other grounds for concluding that no such duty exists. But the Homeowners did not raise any additional grounds in connection with this motion.

D. Primary Assumption of the Risk

The Homeowners argue that Plaintiff’s complaint is barred under the primary assumption of the risk doctrine. However, as the Homeowners concede, the doctrine of However, as Defendants concede, the doctrine of primary assumption of the risk does not apply if the evidence establishes that Defendants’ conduct increased the risk of harm to the decedent. Motion, 13: 1-2. A Defendant may be charged with the duty to take such precautions as will prevent the risk. Moore v. William Jessup University (2015) 243 Cal.App.4th 427, 435; Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal. App. 4th 525, 530. Defendants have not proffered any material facts to establish that their acts or omissions did not increase the inherent risk of harm to Adan. Defendants have not established that they are entitled to summary judgment based on this theory.