Case Name: Ricardo Cebrero, et al. v. Skyline Decking, Inc., et al.
Case No.: 16CV300560

I. Background

Plaintiffs Ricardo Cebrero and his wife Eusebia Cebrero (collectively, “Plaintiffs”) commenced this action against defendants Skyline Decking, Inc. (doing business as Skyline Fencing) and Zakskorn Construction Company (doing business as Zcon Builders) to recover damages for the death of their son Ricardo Cebrero-Castillo at a construction site.

Plaintiffs allege their son died after falling several stories from a trellis on a patio where he was working. At the time, Plaintiffs’ son was working for Skyline Decking, Inc., which was a subcontractor hired by general contractor Zakskorn Construction Company.

Plaintiffs assert causes of action against Zakskorn Construction Company for: (1) negligence; (2) negligent exercise of retained control; and (3) negligent hiring and retention. Plaintiffs originally asserted the first and second causes of action against Skyline Decking, Inc. (“Skyline”) as well, but have since dismissed it from this action.

Currently before the Court is a motion for summary judgment by Zakskorn Construction Company (“Defendant”), which is accompanied by a request for judicial notice.

II. Standard of Review

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit [ ].” (Code Civ. Proc., § 437c, subd. (a)(1).) “A defendant [ ] 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) To carry this burden, the defendant must present evidence, such as “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

“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 Civ. Proc., § 437c, subd. (p)(2).) The plaintiff “must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party’s evidence, standing alone, is sufficient to entitle the party to judgment.” (Wiz Technology, Inc. v. Coopers & Lybrand LLP (2003) 106 Cal.App.4th 1, 10-11; Code Civ. Proc., § 437c, subds. (b)(2), (p)(2).)

A defendant moving for summary judgment must negate each theory of liability alleged in the complaint. (Lopez v. Super. Ct. (1996) 45 Cal.App.4th 705, 713-14.) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

III. Request for Judicial Notice

Defendant requests judicial notice of the complaint. A court may take judicial notice of court records pursuant to Evidence Code section 452, subdivision (d). With that said, the complaint frames the issues for purposes of this motion (Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1382), and so it must necessarily be considered by the Court. For this reason, it is unnecessary to take judicial notice of the complaint. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.) Defendant’s request for judicial notice is therefore DENIED.

IV. Discussion

Defendant presents one central argument in support of its motion for summary judgment, particularly that it cannot be liable for any of Plaintiffs’ three negligence claims based on the Privette doctrine. (See Privette v. Super. Ct. (1993) 5 Cal.4th 689.)

“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, 6 Cal.4th at p. 693.) Under the peculiar risk doctrine, a person who hired an independent contractor could, nevertheless, be liable for injuries to third parties resulting from “contracted work that poses some inherent risk of injury to others.” (Ibid.)

In Privette, the California Supreme Court considered the appropriate scope of the peculiar risk doctrine in the context of an injured construction worker’s claims against a duplex owner for injuries he sustained while carrying buckets of hot tar up a ladder at the direction of the roofing contractor who employed him. (Privette, supra, 6 Cal.4th at p. 702.) It held that when “the injuries resulting from an independent contractor’s performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers’ compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries.” (Ibid.) On that basis, the California Supreme Court concluded the roofing employee could not sue the duplex owner who contracted with his employer to fix the roof. (Ibid.)

The California Supreme Court has since considered the rule it announced in Privette in the context of modern construction projects in which there are often many layers of contractors and subcontractors performing work. (See, e.g., Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, 203-09.) It has held the Privette doctrine, subject to two exceptions, shields general contractors from liability for injuries sustained by employees of the subcontractors they hire. (Id. at pp. 210-13, citing Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28, 33-34; see also Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 258-62.)

As for the exceptions, one exception allows a contractor’s employee to sue the hirer of the contractor if the hirer retained control over the contractor’s work and negligently exercised control in a way that affirmatively contributed to the employee’s injury. (Khosh v. Staples Construction Co. (2016) 4 Cal.App.5th 712, 717.) The second exception allows a contractor’s employee to sue the hirer if the hirer breached a nondelegable legal duty in a manner that affirmatively contributed to his or her injury. (Ibid.)

When a defendant moves for summary judgment based on the Privette doctrine, he or she bears the initial burden of establishing the foundational facts justifying its application. (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 644-45.) 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, Plaintiffs allege and Defendant’s evidence confirms it was the general contractor, it hired Skyline as a subcontractor, and Plaintiffs’ son worked for Skyline at the time of his death. (Compl., ¶¶ 7, 13, 20; Parker Decl., ¶¶ 5, 12-13 & Ex. B.) Accordingly, Defendant carries its initial burden of demonstrating it cannot be held liable for the death of Plaintiffs’ son. The burden, thus, shifts to Plaintiffs to raise a triable issue of material fact with respect to the applicability of the doctrine.

In opposition, Plaintiffs state they “agree” Privette “control[s],” but dispute whether it bars their claims based on the retained control exception. (Opp. at p. 7:20-27.) Apparently anticipating this argument, Defendant asserts in its motion it did not retain control over the work performed. Because it is Plaintiffs’ burden to establish the existence of an exception, the Court first considers their position before addressing the points advanced by Defendant. (See Alvarez, supra, 13 Cal.App.5th at pp. 644-45.)

As the California Supreme Court has explained, when a hirer “retain[s] control over safety conditions at a worksite and negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, it is only fair to impose liability on the hirer” because it participated in creating the hazard. (Hooker, supra, 27 Cal.4th at p. 213.) “An affirmative contribution may take the form of directing the contractor about the manner or performance of the work, directing that the work be done by a particular mode, or actively participating in how the job is done.” (Khosh, supra, 4 Cal.App.5th at p. 718.) Courts consider both the retention of control as a matter of contract as well as practice. (See, e.g., Khosh, supra, 4 Cal.App.5th at p. 719; Toland, supra, 18 Cal.4th at pp. 266-69; Padilla v. Pomona College (2008) 166 Cal.App.4th 661, 666-67.)

Plaintiffs assert Defendant had control over the construction schedule for the entire project and insisted Skyline meet construction deadlines. They present evidence supporting this assertion. (M. Cardenas Decl., ¶¶ 6, 8, 11-12; B. Cardenas Decl., ¶¶ 6, 10-11.) With that said, Plaintiffs do not demonstrate this fact is material to the retained control analysis. There is no legal analysis in Plaintiffs’ memorandum of points and authorities or even a bare citation to supporting legal authority. Furthermore, the Court is unaware of any authority establishing a general contractor may be liable under a retained control theory based on control of the construction schedule. Plaintiffs’ position is undercut by Sheeler v. Greystone Homes, Inc. (2003) 113 Cal.App.4th 908 in which the Second District held a general contractor did not retain control based on scheduling debris removal and cleanups at the job site. Additionally, the First District rejected a similar argument in Brannan v. Lathrop Construction Associates, Inc. (2012) 206 Cal.App.4th 11 when it held a general contractor did not retain control by scheduling when a certain subcontractor would complete work at the job site. For these reasons, Plaintiffs do not demonstrate a general contractor’s management of the schedule for completion of an entire construction project constitutes retained control for purposes of establishing an exception to Privette.

In actuality, the general contractor must have retained control over how the work was performed, and thus, whether it was performed in a safe manner. (Hooker, supra, 27 Cal.4th at p. 213.) For example, a general contractor retains control and is liable when it furnishes unsafe equipment to a subcontractor’s employee and requests that such equipment be used on the job site. (McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 225-26.) As another example, a general contractor may be liable when it affirmatively directs the drilling of holes in an area of the job site and then directs that work be performed near those holes in a manner that is unsafe and results in injury to a subcontractor’s employee. (Tverberg v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439, 1447-48.) Such circumstances are not analogous to those presented here.

Additionally, Plaintiffs do not demonstrate Defendant negligently exercised control over the schedule in a manner that affirmatively contributed to the death of their son. Although not especially clear, it appears Plaintiffs’ position may be that, by insisting on compliance with construction deadlines, Defendant forced Skyline’s employees to rush to complete work in an unsafe manner. Plaintiffs do not provide any explanation, evidence or authority to substantiate such an argument. There is no basis for concluding Defendant hindered Skyline’s ability to meet deadlines in the first instance. For example, Plaintiffs do not present any evidence showing a delay or risk of missing a deadline was attributable to Defendant’s scheduling and not Skyline’s decisions about staffing and time management. Otherwise, there is no evidence Defendant affirmatively directed Skyline’s employees to cut corners and perform work in an unsafe manner to meet deadlines. And so, even assuming Plaintiffs could rely on control over the schedule for purposes of establishing retained control, they do not demonstrate Defendant exercised control in a way that affirmatively contributed to their son’s death.

In summary, Plaintiffs do not substantiate their argument that the retained control exception applies.

In contrast, Defendant presents evidence showing Skyline, in fact, had control over the manner in which work was performed, inclusive of the safety procedures utilized by its employees.

Defendant’s evidence shows and Plaintiffs do not dispute the subcontract required Skyline “to provide all design, engineering, labor, material, and equipment necessary to furnish, install[,] and decorate metal and glass railing, decorative canopy, and metal trellis work [ ].” (Sep. Stat., ¶ 5; Parker Decl., ¶ 12.) Plaintiffs do not dispute “Skyline was responsible for [performing] all of its work on the Project [ ] in a safe and workmanlike manner in accordance with all applicable codes, regulations, and ordinances including OSHA.” (Sep. Stat., ¶ 9; Yen Decl., Ex. 2, Singfield Dep. at pp. 45, 50:14-20.) Additionally, it is undisputed Skyline had its own safety plan for its work on the project and held weekly safety meetings. (Sep. Stat., ¶¶ 42-43; Yen Decl., Ex. 3 [safety plan]; Yen Decl., Ex. 2, Singfield Dep. at pp. 74:1-9, 75:10-24.) Plaintiffs do not dispute that, as set forth in the safety plan, Skyline’s managerial and supervising employees were responsible for providing workers with safety training, ensuring compliance with safety procedures and the safety plan, and monitoring the job site for unsafe conditions. (Sep. Stat., ¶ 44; Yen Decl., Ex. 3.) Thus, it is indisputable that as a matter of contract and workplace policy, Skyline remained responsible for performing work in a safe and workmanlike manner and retained control of the safety practices utilized by its employees.

The undisputed evidence also shows Skyline had control over the manner in which work was performed, inclusive of safety procedures, as a matter of practice as well. Plaintiffs do not dispute Skyline supervisor Isaac Cerritos (“Cerritos”) gave their son his work assignment and was “the only person on the Project who decided what tools and equipment [their son] would use and provided [him] with the tools needed to perform his job on the day of the accident.” (Sep. Stat., ¶¶ 17, 21, 25; Yen Decl., Ex. 4, Cerritos Dep. at pp. 44-45, 54:1-15, 55:8-14; see also Yen Decl., Ex. 2, Singfield Dep. at pp. 40:5-10, 46:1-7, 75:10-24.) Plaintiffs do not dispute Cerritos gave their son fall protection equipment on the day of the accident — including a safety harness, lanyard, and beam strap — and told him he needed to be roped in when working more than eight feet off the ground. (Sep. Stat., ¶¶ 18, 26; Yen Decl., Ex. 4, Cerritos Dep. at pp. 19-24, 42, see also Yen Decl., Ex. 2, Singfield Dep. at p. 28:13-21; Yen Decl., Ex. 3 at pp. 191-92 [Skyline’s protocol for fall protection].)

In summary, the undisputed evidence shows Skyline, not Defendant, had control over the manner in which work was performed, inclusive of safety procedures, as a matter of contract, workplace policy, and practice.

Plaintiffs, nevertheless, appear to be arguing Defendant may be liable because it had some input on safety. Plaintiffs assert Defendant had a “toolbox meeting” every Monday that “would address safety issues” as well as scheduling. (M. Cardenas Decl., ¶ 6; B. Cardenas Decl., ¶ 7.) They also assert Defendant historically conducted orientations that “included safety issues” (M. Cardenas Decl., ¶ 19), although they simultaneously concede their son was not required to attend any such orientation (M. Cardenas Decl., ¶ 20). “[A]n issue of fact is not raised by cryptic, broadly phrased, and conclusory assertions. . . .” (Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196-97 [internal quotation marks and citations omitted].) And so Plaintiffs’ vague and conclusory statements about “safety issues” are insufficient to raise a triable issue of material fact with respect to the retained control exception.

To be sure, it is fundamentally unclear from the evidence presented what exactly occurred at these toolbox meetings. For example, Defendant could have addressed safety issues by providing a report of injuries on the job site or an overview of upcoming work so Skyline could ensure the safety of its employees. To the extent Plaintiffs are suggesting Defendant affirmatively directed the manner in which Skyline’s employees performed their work or dictated compliance or noncompliance with certain safety procedures, their evidence does not state as much and is not reasonably susceptible to such an inference.

Ultimately, in light of all of the undisputed evidence about Skyline’s responsibility for and control over work performed and safety practice used by its workers, Plaintiffs’ position appears to be that Defendant had some additional input on “safety issues.” But Plaintiffs provide no authority or analysis to support the conclusion that a general contractor’s additional discussion of “safety issues” usurps the subcontractor’s authority sufficient to constitute retained control. For this reason, and because Plaintiffs do not articulate or present any evidence about this purported input on safety issues, they do not raise a triable issue of material fact with respect to the retained control exception.

Based on the foregoing, Defendant demonstrates it is not liable based on the Privette doctrine, which precludes liability for all three of the negligence claims asserted (see Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1241-45). Plaintiffs do not raise any triable issue of material fact in opposition. Defendant’s motion for summary judgment is therefore GRANTED.