Case Number: BC613079 Hearing Date: November 27, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT; MOTION GRANTED

I. INTRODUCTION

On March 9, 2016, Plaintiff Mark Silva (“Plaintiff”) filed this action against Defendants Etco Homes, Inc. (“Etco”) and Afshin Etebar for general negligence and premises liability relating to a March 10, 2014 trip and fall. Etco moves for summary judgment, or in the alternative, summary adjudication, on grounds the Privette doctrine bars Plaintiff’s claims.

II. FACTUAL BACKGROUND

Etco oversaw a project consisting of the construction of two multi-story residential buildings (“the Project”). On March 10, 2014, Plaintiff was employed as the Project Manager for Masters and Associates Electrical Contractors of California, Inc. (“MAECC”), an electrical subcontractor for the Project. (Undisputed Material Fact “UMF” No. 1.) The trip and fall occurred when Plaintiff was descending a stairwell and going from the fourth floor to the third floor. (UMF No. 2.) At the time of the incident, the status of the construction of the building was at the rough-in stage of the frameworking and MAECC was “roughing” in the electrical systems. (UMF No. 3.) The stairwell was constructed of steel, wood, and concrete but was not completed at the time of the accident. (UMF No. 4.) The railing and basic frame or shell of the stairwell was steel and some of the steps and landings were constructed of wood. (UMF Nos. 5, 6.) There were no operational elevators at the site. (UMF No. 9.) Etco was not responsible for constructing the staircase. (UMF No. 10.) T.L. Fabricators, another independent contractor of Etco, was hired to erect the staircase. (UMF No. 11.) Plaintiff received $72,000.00 in workers’ compensation benefits.

III. 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 facie 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.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.)

IV. EVIDENTIARY OBJECTIONS

Plaintiff’s Evidentiary Objections to the Declaration of Babak Etebar

Objections Nos. 1-9 are OVERRULED.

Plaintiff’s Evidentiary Objections to the Declaration of Afshin Etebar

Objections 11-15 are OVERRULED.

V. DISCUSSION

As framed by the Complaint, Plaintiff alleges Etco negligently owned, maintained, managed, and operated the premises and breached its duty by failing to reasonbly and safely own, maintain, manage, control, design, inspect, construct, utilize, and supervise the construction at the site. Plaintiff also alleges Etco failed to reasoanbly and safely design the stairwell, failed to to safely construct, maintain, or repair the stairwell despite constructive notice of its condition, and failed to warn Plaintif and others of the dangerous condition of the stairwell. (Complaint, ¶ GN-1.)

The material facts are largely undisputed. It is undisputed that MAECC contractually assumed all safety responsibilities for its employees. (UMF Nos. 43, 44.) At issue is whether Etco retained control and affirmatively contributed to Plaintiff’s injuries.

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.) “By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract. That implicit delegation includes any tort law duty the hirer owes to the contractor’s employees to comply with applicable statutory or regulatory requirements.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594.)

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., supra, 52 Cal.4th at p. 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; see also SeaBright Ins. Co., supra, 52 Cal.4th at p. 594 [even where the defendant’s property lacked certain safety guards as required by applicable regulations, it was the responsibility of the independent contractor to identify the absence of the safety guards and to take reasonable steps to address the hazard].)

Because it is undisputed that MAECC contractually assumed all safety responsibilities for its employees, the Court finds that, under the Privette doctrine, Etco has met its initial burden of showing it owed no duty to Plaintiff. The burden shifts to Plaintiff to show a triable issue of material fact exists.

Plaintiff argues that: (1) Etco retained control over the safety of the site, as evidenced by its superintendent, Dan Caballero, making periodic inspections of the site; (2) Etco had actual and constructive knowledge of the dangerous condition of the stairwell based on a prior fall on the stairs and acknowledgement by Caballero that the stairwell should be fixed; and (3) Etco’s superintendent instructed workers on how to travel from floor to floor.

At the hearing on this Motion, Plaintiff wished to discuss the disputed material facts in his separate statement that were not discussed in his opposition papers. The Court continued the hearing to this date to allow Plaintiff to file a supplemental brief and Defendant to file a supplemental responsive brief on this issue only.

In his supplemental brief, Plaintiff contends that at least 15 of Etco’s 79 purported material facts are either unsupported by the evidence cited or disputed by admissible evidence proffered by Plaintiff. Specifically, Plaitniff contends the following facts are material, but unsupported or disputed: (1) that safety of using the stairwells was never discussed at any of the weekly safety meetings MAECC held at the project (UMF Nos. 40, 69); and (2) that T.L. Fabricators was solely responsible for the safety of the subject staircase (UMF Nos. 11, 61). Plaintiff argues that T.L. Fabricators was not solely responsible for the safety of the staircase as evidenced by: (1) Caballero’s duties included warning of and fixing/remedying site hazards (Pltff’s Additional Material Facts “AMF” Nos. 1, 2); (2) Caballero told an Etco employee to fix the stairs prior to Plaintiff’s fall (AMF No. 3); (3) after Plaintiff’s fall, Caballero mentioned to MAECC employee, James Carroll, that Caballero had called someone to fix the steps but that they never did (AMF No. 4); (4) Etco barricaded the staircase entrances following Plaintiff’s fall (AMF No. 5); and (5) Etco repaired the staircase after Plaintiff’s fall (AMF No. 6).

However, even viewing the evidence most favorably to Plaintiff, the Court finds Plaintiff has failed to meet his burden of showing a triable issue of material fact exists.

First, some of the facts that Plaintiff argues are unsupported or disputed are not material facts. Plaintiff cites to The Rutter Guide for the proposition that a “separate statement effectively concedes the materialiaty of whatever facts are included” and Plaintiff argues that if any fact included in the separate statement is disputed, a triable issue is raised and the motion may be denied. The Court disagrees that every fact included in a party’s separate statement is per se material, and that any dispute as to that fact then constitutes a triable issue. For instance, whether or not staircase safety was ever discussed at weekly meetings is not material to the determination of whether any affirmative conduct by Etco contributed to Plaintiff’s injuries. Absent evidence that the safety discussion itself or the content of any safety discussion constituted affirmative conduct by Etco, the mere fact of a safety discussion not taking place is not a material fact. Moreover, in Etco’s brief in response, Etco notes that the incorrect cite to Plaintiff’s deposition transcript (Pltff’s Depo., 50:13-53:12) was an oversight by counsel, and that in viewing the correct portion of deposition transcript (Pltff’s Depo., 53:12-14), Plaintiff answered that he did not recall any of the Masters safety meetings ever discussing any issues with the stairway. Regardless, as explained, this fact is not material.

Second, Etco’s knowledge of the alleged unsafe condition of the stairwell does not impose a duty on it to repair or warn, particularly where the condition was clear to the workers on the site. It is undsiputed that at the time of the incident, the stairwell was not complete. A property owner’s liability for injuries to an independent contractor’s employee arising from a hazardous condition on the premises may exist where the hazard is concealed from the contractor, but known to the landowner. (Kinsman v. Unocal Corporation (2005) 37 Cal.4th 659, 675.) However, the result is different where the hazard is known to the contractor and the contractor contractually assumes responsibility for the safety of its employees. Here, MAECC contractually assumed responsibility for the safety of its employees and the workers on the site were aware that the building was in a state of rough construction and the stairwell was not complete.

Third, even if Etco retained control over the safety of the site through its superintendent and employees whose duties included overseeing the safety of the site, a “hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions of a worksite.” (Hooker, supra, 27 Cal.4th 198 at p. 202.) Rather, “a hirer is liable to an employee of a contractor insofar as the hirer’s exercise of retained control affirmatively contributed to the employee’s injuries.” (Ibid.) Such affirmative conduct can be established where, for example, the hirer negligently provided unsafe equipment for use. (McKown v. Wal-Mart Stores, Inc. (2000) 82 Cal.App.4th 562). Here, just the act of having employees whose duties included overseeing safety and warning of any safety hazards does not show affirmative conduct contributing to the Plaintiff’s injuries. (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1278 [evidence that hirer provided supervision at the site was insufficient to show affirmative conduct absent evidence that subcontractor was powerless to take other reasonable safety precautions]; see also Rest.2d Torts § 414, com. c, p. 388 [“It is not enough that [the hirer] has merely a general right to order the wrok stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations . . . There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way”].)

Fourth, Plaintiff argues the superintendent “directed” the employees on how to travel from floor to floor, affirmatively contributing to his injuries. However, in reading the portion of deposition transcript cited by Plaintiff, the Court is not convinced that a triable issue of fact exists. For example, at the deposition of Afshin Etebar, Plaintiff’s counsel specifically referred to the paragraph of his declaration in support of this motion for summary judgment, where Eteba stated Etco did not instruct plaintiff as to how plaintiff was to perform his job duties at any time, including as to how he would travel from floor to floor. (Etebar Depo., 135:1-7.) Plaintiff’s counsel then asked, “How were the subcontractor’s employees supposed to travel from floor to floor?” to which Etebar answered, “As directed by the superintendant.” (Etebar Depo., 135:8-10.) Plaintiff’s counsel then posed the hypothetical: “If the subcontractors were using stairwell one, that leads you to believe that the subcontractor—or that the superintendent directed them to use stairwell one?” Defense counsel objected that this question called for speculation.

The Court agrees that this question called for speculation by Etebar as to what would cause a subcontractor’s employee to use stairwell one and does not necessarily show affirmative conduct by Etco that contributed to Plaintiff’s injuries. In fact, there is no evidence submitted that Caballero actually instructed Plaintiff to use the stairwell and that based on that directive, Plaintiff used the stairwell, leading to his fall.

Finally, at the hearing, Plaintiff argued that Caballero’s statements that he had called someone to repair the stairs but that they never came shows Etco retained control of the stairs and made a promise to undertake a safety measure. It is true that “affirmative contribution need not always be in the form of actively directing a contractor or contractor’s employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer’s negligent failure to do so should result in liability if such negligence leads to an employee injury.” (Hooker, supra, 27 Cal.App.4th at p. 212, fn. 3.) However, this statement made to Carroll after Plaintiff’s fall does not evidence a “promise to undertake a safety measure.” There is no evidence that Caballero made such a promise to MAECC prior to the fall. Further, as to the evidence that Etco baricaded and repaired the stairwell after Plaintiff’s fall, evidence of subsequent remedial measures is inadmissible to show culpability or negligence. (Evid. Code, § 1151.) Even if Plaintiff offers this evidence to show only that Etco retained control over the staircase, this again, does not show Etco retained control over the staircase such that it limited MAECC’s ability to take reasonable safety measures and does not demonstrate affirmative conduct causing Plaintiff’s injuries.

VI. CONCLUSION

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

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT7@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT; MOTION DENIED AS TO ETCO, GRANTED AS TO OTHER MOVING DEFENDANTS

On March 9, 2016, Plaintiff Mark Silva (“Plaintiff”) filed this action against Defendants Etco Homes, Inc. (“Etco”) and Afshin Etebar for general negligence and premises liability relating to a March 10, 2014 trip and fall. On January 8, 2018, Hunters Best Cleaning, Inc. (“Hunters”) was named as Doe 51, TL Fab, LP was named as Doe 76, TL Fab, LLC was named as Doe 77, and TL Fab, LP was named as Doe 91. On March 23, 2018, Hunters, TL Fab, LP, and TL Fab, LLC filed an Answer. On April 2, 2018, SMA Builders, Inc. (“SMA”) was named as Doe 52, Cell-Crete Corporation (“Cell-Crete”) was named as Doe 53, and Courage Safety Systems, LLC (“Courage Safety”) was named as Doe 92. On May 7, 2018, SMA filed an Answer. On May 14, 2018, Courage Safety filed an Answer. On August 24, 2018, Cell-Crete filed an Answer.

Etco, Hunters, TL Fab, LP, TL Fab, LLC, Cell-Crete, and SMA (“Moving Defendants”) seek leave to file a Cross-Complaint against Courage Safety for implied equitable indemnity, equitable allocation of loss, declaratory relief, and contribution and apportionment. Etco also seeks to assert a cause of action for express indemnity.

A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint. (Code of Civ. Proc. § 428.50, subd. (a).) Any other cross-complaint may be filed at any time before the court has set a date for trial. (Code of Civ. Proc., § 428.50, subd. (b).) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action. (Code of Civ. Proc., § 428.50(c).) Where the proposed cross-complaint arises out of the same transaction as plaintiff’s claim, the court must grant leave to file the cross-complaint so long as defendant is acting in good faith. (Code of Civ. Proc., § 426.50.)

Etco was the general contractor for the project at issue. TL Fab, LP and TL Fab, LLC were the steel subcontractors, Hunters was a site clean-up subcontractor, Cell-Crete was a concrete subcontractor, and SMA was a framing subcontractor for the stairway at issue. (Declaration of Michele L. Benson, ¶ 2.) Pursuant to a written contract, Courage Safety served as safety consultant for the project and its duties included providing a comprehensive risk control and safety program to help prevent accidents and to help Cal OSHA compliance. (Benson Decl., ¶ 5.) Moving Defendants argue their cross-complaint does not present any new or additional issues and that additional or different discovery is not required. (Benson Decl., ¶ 6.) Counsel for Moving Defendants states the delay in bringing this Motion was due to the time it took to sort out representation for each defendant, who were each added by various Doe amendments at different times. Counsel completed the process of appearing for each of the Moving Defendants on August 29, 2018 by filing a substitution of attorney. (Benson Decl., ¶ 7.) Counsel believed it was in the interests of judicial economy to wait and file one motion for all Moving Defendants rather than to have each file on a piecemeal basis. (Benson Decl., ¶ 8.)

Courage Safety’s Requests for Judicial Notice of the Complaint, summary of proceedings, stipulation to continue trial, Plaintiff’s amendment naming Courage Safety as Doe 92, and Etco’s Motion for summary judgment are GRANTED. (Evid. Code, § 452, subds. (d), (h).)

In Opposition, Courage Safety argues the proposed cross-complaint is not compulsory and that Moving Defendants unreasonably delayed in filing this Motion. Moving Defendants knew of the existence of their claims, both equitable and contractual, at the time of service and Etco knew of its claims against Courage Safety when it filed its Answer. Courage Safety argues Moving Defendants inexcusably waited over two and a half years after the case was filed to seek leave to file this cross-complaint.

A third-party cross-complaint must be filed before the first trial date is set, regardless of whether the date is later vacated by the court, otherwise leave of court is required. (Loney v. Superior Court (1984) 160 Cal.App.3d 719, 722.) “The law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may – of itself – be a valid reason for denial. The cases indicate that the denial may rest upon the element of lack of diligence in offering the amendment after knowledge of the facts, or the effect of the delay on the adverse party.” (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-940.)

As to Etco, the Court agrees it unreasonably delayed in seeking leave to file this cross-complaint. Its proposed causes of action for equitable and contractual indemnity were or should have been known to it at the time of filing its Answer or shortly thereafter. Etco does not provide a sufficient reason for its delay and the Motion as to Etco is DENIED.

As to the other Moving Defendants, the Court disagrees with Courage Safety’s contention that they waited over two and a half years to file their cross-complaint. Courage Safety argues: “Etco was fully aware of Courage’s involvement with the Project, and any potential claims or cross-claims against Courage, on the date Plaintiff was injured. By extension, therefore, Moving Defendants were fully aware of their claims in March 2016, when Plaintiff filed this lawsuit. Similarly, Moving Defendants were aware of the existence of their claims in May 2016, when Etco filed its Answer to the Complaint. Despite this knowledge, Moving Defendants chose to disregard their obligation to timely file a cross-complaint . . .” (Opp., 5:6-12.) However, the Moving Defendants (except Etco) were added in January 2018 and April 2018. Moving Defendants could not have filed a third-party cross-complaint before they were added as Doe Defendants to the action.

In the time between January 2018 and April 2018 and October 2018, when Moving Defendants filed this Motion, defense counsel states representation of each defendant was being sorted, which was finalized in August 2018. Further, there is no evidence that Courage Safety will be prejudiced by the granting of this Motion. To date, Courage Safety has not propounded any written discovery or noticed any depositions. Therefore, there is ample time before the February 19 2019 trial date for Courage Safety to conduct any discovery necessary as it relates to defending the Cross-Complaint.

The Motion for leave to file a Cross-Complaint is GRANTED as to Hunters, TL Fab, LP, TL Fab, LLC, Cell-Crete, and SMA and DENIED as to Etco. Moving Defendants are ordered to file their Cross-Complaint within ten (10) days of the date of this Order.

Moving party to give notice.