Case Name:   Naranjo v. Dean d.b.a. Dean’s Brush Painting Contractors, et al.

Case No.:       1-10-CV-187948

After full consideration of the arguments and the authorities submitted by each party, the court makes the following rulings:

The parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).[1]

This is an action for negligence, premises liability, and violations of wage and hour laws.  The only causes of action asserted against defendants Marc Aronson and Linda Aronson (“Linda”) (collectively, “the Aronsons”) are for general negligence and premises liability.  Plaintiff Carlos Naranjo (“Plaintiff”) alleges that he was employed by defendant Kyle Dean d.b.a. Dean’s Brush Painting Contractors (“Dean”), a subcontractor hired by the general contractor defendant Lovelace Construction, Inc. (“Lovelace”), to sand, caulk, wash, and paint the Aronsons’ house, and sustained injuries when he slipped and fell off the Aronsons’ roof while caulking a window in the rain.  Plaintiff’s claims against the Aronsons are based on the allegations that the Aronsons employed him, exercised control over the painting project, demanded that he caulk windows in the rain, and failed to warn him of the risk of slipping on the roof in the rain.

The Aronsons move for summary judgment on the ground that Plaintiff cannot establish necessary elements of the causes of action asserted against them.[2]  (See Code Civ. Proc. [“CCP”], § 437c.)  They also make a request for judicial notice in support thereof.

The Aronsons’ request for judicial notice is DENIED.  (See Evid. Code, § 450 [“[j]udicial notice may not be taken of any matter unless authorized or required by law”].)  Nevertheless, the Court may consider Choto’s affidavit as evidence in support of the Aronsons’ motion for summary judgment.  (See CCP, § 437c, subd. (b)(1).)

A 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.”  (CCP, § 437c, subd. (c).)  A defendant “has met his or her burden of showing that a cause of action has no merit if that 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 that cause of action.”  (Id., at subd. (p)(2).)  Then “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.”  (Id.)

The Aronsons argue that they cannot be held liable for Plaintiff’s injuries as an employer because they did not employ Plaintiff, and present evidence indicating that they did not employ Plaintiff.  In opposition, Plaintiff states that he disputes the Aronsons’ evidence, but does not proffer any contrary evidence.  Thus, Plaintiff has not shown that there is a triable issue of material fact with respect to whether the Aronsons employed him.  The Aronsons have accordingly shown that Plaintiff cannot establish that they owed him a legal duty based on an alleged employment relationship as a matter of law.

Next, the Aronsons contend that they did not owe Plaintiff any duty for allegedly controlling the painting project.  “[T]he liability of a hirer of an independent contractor for injuries to an employee of the contractor cannot be predicated on the contractor’s negligence; rather the hirer can only be liable where it injures a worker through its own negligence.”  (Browne v. Turner Construction Co. (2005) 127 Cal. App. 4th 1334, 1344-1345.)  “[L]iability attaches only when the owner or general contractor retains control ‘over the operative details of the hired work.’”  (Zamudio v. City and County of San Francisco (1999) 40 Cal.App.4th 445, 453 [“Zamudio”], quoting Toland v. Sunland Housing Group, Inc. 91998) 18 Cal.4th 253, 264, fn. 2 [“Toland”].)  “In the absence of direct management over the means and methods of the independent contractor’s work or the provision of the equipment which caused the injury, no legal duty is created.”  (Id., citations omitted.)

The Aronsons proffer evidence demonstrating that they did not exercise the requisite degree of control over the painting project, e.g., they did not supply any equipment or instruct the contractors in how to carry out the painting project.  In opposition, Plaintiff insists that the Aronsons exercised control by selecting a paint color and instructing him to go on the roof.  Whether the Aronsons selected the paint color and communicated their choice directly to Plaintiff is immaterial to the issue of whether they exercised control over the operative details of the hired work.  In addition, the evidence proffered by Plaintiff demonstrates that his supervisor, defendant Rodrigo Choto (“Choto”), who acted as an agent for Dean, instructed Plaintiff to caulk the windows in the rain.  (Plaintiff’s Undisputed Material Fact (“UMF”) Nos. 8, 15, & 18-20, citing Plaintiff’s deposition at pp. 30:18-35:18 [testifying that on the day of the incident, Linda “wanted [him] to do a certain job before [he] left,” but since Plaintiff does not understand English, he called Choto on his cell phone, and after Choto spoke to Linda, Choto instructed Plaintiff to “[p]lease do the caulking, because [Linda] wants you to do it,” and Choto repeated his instruction after Plaintiff warned Choto that it was raining and dangerous].)  While Choto’s instruction was based on Linda’s inquiry and concern pertaining to the caulking, “[t]he general supervisory right to control the work so as to insure its satisfactory completion in accordance with the terms of the contract does not make the hirer of the independent contractor liable for the latter’s negligent acts in performing the details of the work.”  (Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430, 442 [“Lopez”], citation omitted; Zamudio, supra, at p. 453 [a property owner exercising the right to inspect the subcontractor’s work “does not demonstrate the exercise of sufficient control over the subcontracted work and thereby raise an issue precluding summary judgment”].)

Thus, Plaintiff has not demonstrated a triable issue of material fact as to whether the Aronsons exercised the requisite control over the painting project.  The Aronsons have accordingly demonstrated that they cannot be liable for Plaintiff’s injuries for allegedly controlling the project as a matter of law.

The Aronsons further contend that they are not liable for the negligent conduct of Dean or Lovelace under the peculiar risk doctrine.  Hirers of a subcontractor are not vicariously liable for injuries to the subcontractor’s own employees.  (Privette v. Super. Ct. (1993) 5 Cal.4th 689, 691 [“Privette”]; Toland, supra, at pp. 267-268; Lopez, supra, at pp. 444-445.)

It is undisputed that Dean employed Plaintiff to work on the Property at the time of the incident, and that Dean instructed Plaintiff to sand, apply caulking, prime, and wash the exterior of the Aronsons’ house.  (The Aronsons’ UMF Nos. 8 & 16; Plaintiff’s UMF Nos. 8 [stating that Plaintiff was working for Dean] & 15 [“Plaintiff, while an employee of Dean . . .”].)  Moreover, the Aronsons proffer evidence demonstrating that Dean’s agent, Choto, was the only party with the authority to instruct Plaintiff to go onto the roof.  The Aronsons have therefore met their initial burden to show that the negligence of a hired independent contractor caused Plaintiff’s alleged injuries.  In opposition, Plaintiff argues that the Aronsons instructed him to caulk the windows in the rain.  However, the evidence he presents in support of this position does not indicate that the Aronsons ever gave such an instruction.  Rather, as set forth in detail above, Plaintiff’s evidence shows that Choto instructed Plaintiff to caulk the windows in the rain, even though Plaintiff advised Choto that it was dangerous to do so.  (Plaintiff’s UMF Nos. 8, 15, & 18-20, citing Plaintiff’s deposition testimony at pp. 30:18-35:18.)  This evidence does not support Plaintiff’s assertion that Linda instructed him to go on the roof in the rain.

Therefore, Plaintiff has not demonstrated that there is a triable issue of material fact as to whether Linda instructed him to go on the roof, and the Aronsons have demonstrated that Plaintiff cannot establish liability against them under the peculiar risk doctrine as a matter of law.

In light of the foregoing, the Aronsons have demonstrated that Plaintiff cannot prevail on his cause of action for general negligence against them as a matter of law.

Lastly, the Aronsons assert that Plaintiff cannot prevail on his premises liability claim because they did not owe Plaintiff any duty to warn of the obvious danger posed by working on the roof in the rain.  “[W]hen there is a known safety hazard on a hirer’s premises that can be addressed through reasonable safety precautions on the part of the independent contractor, a corollary of Privette and its progeny is that the hirer generally delegates the responsibility to take such precautions to the contractor, and is not liable to the contractor’s employee if the contractor fails to do so,” even if the safety hazard is caused by a preexisting condition on the property.  (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 673-674.)  If the landowner knows of a concealed safety hazard, the landowner will be liable for injuries to the contractor’s employees caused by that hazard.  (Id., at p. 674.)

The Aronsons proffer evidence demonstrating that Plaintiff was injured by an apparent hazard (i.e. working on a roof) while performing job-related duties on the Property, and thus, the Aronsons have met their initial burden to demonstrate that they delegated responsibility to take safety precautions to the contractors.  Plaintiff argues that the dangerous condition (i.e. working on a roof that became slippery in the rain) was concealed, and thus, the Aronsons had a duty to make the condition safe or warn him of the danger.  Plaintiff relies on a declaration not mentioned in his separate statement wherein he states that he did not know of the risk posed by wet mossy wooden roof shingles.  Courts generally disregard evidence not set forth in the supporting separate statement.  (See Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 473.)

Moreover, in his separate statement, Plaintiff presents his deposition transcript as evidence, wherein he testified that he knew going on the roof in the rain would be dangerous, and advised Choto of the danger while protesting Choto’s instruction for him to caulk the windows immediately before the incident.  (Plaintiff’s UMF Nos. 8, 15, & 18-20, citing Plaintiff’s deposition testimony at pp. 30:18-35:18; see also Plaintiff’s deposition at p. 35: 11-12 [“I said it was raining and it was dangerous”].)  Given that Plaintiff’s declaration states facts that directly contradict his prior sworn testimony, even if Plaintiff had mentioned his declaration in his separate statement, his declaration is “disingenuous” and insufficient to demonstrate a triable issue of material fact as to whether the dangerous condition was concealed.  (See Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1989) 199 Cal. App. 3d 791, 800.)  Since Plaintiff testified that he knew of the danger posed by caulking the windows in the rain, it follows that he has not proffered evidence sufficient to demonstrate a triable issue of material fact as to whether the dangerous condition was concealed.

Accordingly, the Aronsons have shown that Plaintiff cannot establish a necessary element of his premises liability claim against them as a matter of law.

To summarize, the Aronsons have demonstrated that there is no triable issue of material fact and Plaintiff cannot establish necessary elements of his general negligence and premises liability causes of action against them as a matter of law.

The Aronsons’ motion for summary judgment is accordingly GRANTED.

The Aronsons’ objections to evidence do not affect the basis for the Court’s ruling, and therefore, they are OVERRULED.

Plaintiff’s objections to evidence lack merit and are accordingly OVERRULED.

 

The Court will prepare the order.