Case Number: BC705021 Hearing Date: January 21, 2020 Dept: 28

Motion for Summary Judgment

Having considered the moving papers, the Court rules as follows. No opposing papers were filed.

BACKGROUND

On May 3, 2018, Plaintiffs Alfredo Herrera and Geraldine Herrera (“Plaintiffs”) filed a complaint against Defendants Schuff Steel Company, Eric Robert Farster, Westfield Development, Inc., Scott Ernest Titmas, and Westfield, DDC, LLC (“Defendants”). The complaint alleges negligence and loss of consortium for injuries Plaintiff Alfredo Herrera sustained from a safety-post breaking free and striking him on August 6, 2016.

On July 6, 2018, the Court dismissed Defendant Eric Robert Farster without prejudice.

On November 5, 2019, Defendants Westfield Develepment, Inc. and Westfield, DDC, LLC filed a motion for summary judgment pursuant to California Code of Civil Procedure section 437c.

Trial is set for April 27, 2020.

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PARTIES’ REQUESTS

Defendants Westfield Develepment, Inc. and Westfield, DDC, LLC (“Moving Defendants”) ask the Court to grant its motion for summary judgment because Plaintiff was injured while working for a subcontractor that Moving Defendants’ contractor had hired.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the 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 “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.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Defendants contend that Plaintiff cannot prove the element of duty because the hirer of an independent contractor is not liable for injuries to the contractor or its employees under Privette v. Superior Court (1993) 5 Cal.4th 689, 695 and Seabright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 603.

“[W]hen employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594.) “By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract.” (Id. at pp. 601-602.) Additionally, “a hirer generally has no duty to act to protect the contractor’s employee when the contractor fails in that task.” (Id. at p. 602 (citation omitted).) The Privette doctrine applies when the party that hired the contractor failed to comply with workplace safety requirements concerning the precise subject matter of the contract, and the injury is alleged to have occurred as a consequence of that failure. (Id. at p. 594.) “It would be unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over the safety at the worksite. In fairness, . . . the imposition of tort liability depends on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor’s employee.” (Kinsman v. Unocal (2005) 37 Cal.4th 659, 670.)

The general rule will bar Plaintiff’s action against the hirer unless a specific exception applies. Under the Hooker exception to the Privette doctrine, the hirer of an independent contractor may be liable to the employee of the independent contractor only if Plaintiff can establish that the hirer: (1) retained control over the operative details of the contracted work, and (2) exercised that control in a way that affirmatively contributed to Plaintiff’s injuries. (Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, 202.)

Moving Defendants’ undisputed material facts establish the following. Moving Defendants entered into a contract with Defendant Schuff Steel Company (“Schuff”) to perform structural steel work at 10250 Santa Monica Boulevard, California 90057. (UMF No. 1.) Schuff entered into a subcontract with Anning-Johnson Company (“AJC”) to perform some of the structural steel work. (UMF No. 2.) AJC employed Plaintiff Alfredo Herrera as an iron worker for the job. (UMF No. 3.) On August 6, 2016, Plaintiff Alfredo Herrera was injured when he was tethered to a safety post that broke free from its welded anchorage because of an improper weld. (UMF No. 4.) Plaintiff alfredo Herrera was working in the course and scope of his employment at the time of his injury. (Ibid.) Schuff was responsible for welding the safety post to its anchorage. (UMF No. 5.) A Schuff employee welded the safety post to its anchorage. (UMF No. 6.)

Moving Defendants’ undisputed material facts also establish the following. Moving Defendants had no involvement with the means, methods, or manner in which Schuff preformed the welding of the safety post to its anchorage. (UMF No. 7.) Moving Defendants did not retain control over the manner in which Schuff welded the safety post. (UMF No. 8.) Schuff was responsible for the means, methods, and manner in which its employees and subcontractors were working. (Ibid.) Moving Defendants did not direct the safety post to be welded in any manner. (UMF No. 9.) Moving Defendants did not interfere with the means and methods by which the safety post was welded. (Ibid.) Moving Defendants were unaware of the improper weld until after Plaintiff Alfredo Herrera’s August 6, 2016 injury. (UMF No. 10.)

The Court finds Moving Defendants have met their burden. The evidence Moving Defendants submitted demonstrates that Moving Defendants were not Plaintiff Alfredo Herrera’s employer. Rather, AJC was Plaintiff Alfredo Herrera’s employer. The evidence also shows that AJC and Schuff were responsible for Plaintiff Alfredo Herrera’s safety. The evidence further shows that Moving Defendants did not retain control over the operative details of the contracted work or that Moving Defendants exercised control in a way that contributed to Plaintiff Alfredo Herrera’s injuries. Rather, the improper weld was made and controlled by an employee of Schuff. As such, Moving Defendants have met their burden.

Plaintiff Alfredo Herrera has not filed an opposition or evidence that otherwise creates a triable issue of fact. As such, Plaintiff Alfredo Herrera has not met his burden and, thus, his negligence cause of action must fail. It also follows that Plaintiff Geraldine Herrera’s loss of consortium cause of action fails because it is derivative of the negligence cause of action. (See Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1526.)

CONCLUSION

The motion for summary judgment is GRANTED.

Moving Defendants are ordered to give notice of this ruling.