Olivera v. Beach, et. al.

Request for Judicial Notice: Defendants’ request for judicial notice of the plaintiff’s worker’s compensation file is GRANTED. (Evid. Code §452(d).)

Plaintiff’s Request to Continue Hearing – CCP §437c(h)

At pages 2-3 of the opposition, plaintiff requests a continuance under Code of Civil Procedure §437c(h). Counsel states a continuance is needed to complete a site inspection.

Section 437c(h) provides, “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” “To be entitled to a continuance, the party opposing the motion for summary judgment must show that its proposed discovery would have led to facts essential to justify opposition.” (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325-326; See also, Frazee v. Seely (2002) 95 Cal.App.4th 627, 633, 115 Cal.Rptr.2d 780 - party seeking continuance must show facts to be obtained are essential to opposing the motion and those facts could not have been presented with the opposition papers).

Here, counsel’s declaration falls well short. Plaintiff submits no evidence as to what facts would be learned through a site inspection that would relate to the issues in the pending motion.

Accordingly, the request for a continuance is DENIED.

Merits of Motion for Summary Judgment

The party moving for summary judgment “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1124.)

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 cannot be established, or that there is a complete defense thereto. (Code Civ. Proc., § 437c(p)(2).)

Here, the Defendants had a problem with bats in the attic of their home in Fawnskin, California. Following Outback Zack’s initial inspection of the Beaches’ Property, the owner of Outback Zack recommended installation of a “one way valve Bat Exclusion devices.” (UMF 4) All tools and supplies were provided by Outback Zack or plaintiff. None of the equipment was provided by the Defendants. (UMF 5) Outback Zack also trained and instructed Plaintiff on how to complete the job. (UMF 6)

The process of installing the device required plaintiff to go on the roof, which plaintiff knew was both high and steep. (UMF 8; Opp. at 16:13 – “plaintiff could see that the roof was steep.”) In fact,

plaintiff had slipped on the roof on the first day of the project and requested that Outback Zack provide an additional technician for support. (UMF 7, 9) Outback Zack did not provide an additional technician but instead recommended plaintiff use a mechanical arm boom or a “two-ladder technique” (UMF 9) Plaintiff opted for the latter approach without any input from the Defendants. (UMF 14) Plaintiff fell from the roof while attempting to execute the two-ladder technique.

The Privette doctrine bars employees of independent contractors from recovering damages from the hirer of the contractor for workplace injuries. (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594; Privette v. Superior Court (1993) 5 Cal.4th 689.) The rationale is twofold. First, because workers’ compensation insurance generally provides the exclusive remedy for employees who are injured on the job, allowing the employee to recover from the contractor’s hirer, who did not cause the injury, would unfairly subject the hirer to greater liability than that faced by the contractor who was negligent. (Hooker v.

Department of Transportation (2002) 27 Cal.4th 198, 204.) Second, “[b]y 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.” (SeaBright, at p. 594, italics added, italics omitted.)

There are two circumstances in which Privette does not apply, and an injured employee of an independent contractor may recover in tort from the party which hired that independent contractor. The first was set forth in Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198 and is based on the concept of negligent exercise of retained control. “[A] hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but ... a hirer is liable to an employee of a contractor insofar as a hirer’s exercise of retained control affirmatively contributed to the employee’s injuries.” (Hooker, 27 Cal.4th at 202.)

“The [Hooker] court reasoned that imposing tort liability where the hirer’s exercise of retained control affirmatively contributed to the injury was consistent with Privette and its progeny “because the liability of the hirer in such a case is not ‘ “ ‘in essence “vicarious” or “derivative” in the sense that it derives from the “act or omission” of the hired contractor.’ ” ' [Citation.] To the contrary, the liability of the hirer in such a case is direct in a much stronger sense of that term.” (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1348.) (Emphasis in original.)

“Affirmative contribution occurs where a general contractor is actively involved in, or asserts control over, the manner of performance of the contracted work. [Citation.] Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. [Citation.] [Citation.]” (Id.) (Emphasis in

original; internal quotations omitted.)

Here, Defendants met their burden of demonstrating that the first exception to the Privette doctrine does not apply. Defendants’ evidence shows that it did not retain control over any of the operative details of the work to be performed by Plaintiff. (See UMFs 4, 5, 9, 14 & 15) Further, the Defendants establish they were not involved in any way with the Plaintiff’s work on the roof and were not home when the incident occurred, thus showing they did not affirmatively contribute to the plaintiff falling. In opposition, plaintiff has failed to submit any evidence establishing a question of fact exists as to whether the Defendants either retained control or affirmatively contributed to his injuries.

The second Privette exception was discussed in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, and sets forth the limited circumstances in which the hirer of an independent contractor can be liable to an employee of that contractor for hazardous conditions of its property. “[A] landowner that hires an independent contractor may be liable to the contractor’s employee if the following conditions are present: the landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition.” (Id. at 664, fn. 3.)

Plaintiff argues, without success, that the hazard was concealed and that the defendants should have issued a warning. It is undisputed the roof was steep. There is no evidence suggesting any aspect of the roof was concealed from view. In fact, on the first day on the job, plaintiff slipped while on the roof but caught himself before falling off the roof. (UMF 7) Plaintiff recognized the hazard of working on a roof and requested additional support from Simmons. (UMF 9) Despite not receiving additional technical support, plaintiff proceeded with the work.

Based on the foregoing, the Court finds there is no triable issue of a material fact as to the issue of duty and that the Defendants are entitled to a judgment as a matter of law. The motion is therefore GRANTED.

Defendants to submit a proposed judgment.

Defendants are ordered to give notice of this ruling. 11 Arck Services, The unopposed motion to be relieved as counsel of record for LLC v. Bekam plaintiff Arck Services, LLC (Plaintiff) filed by Anthony W. Burton of AWB Law, P.C. is GRANTED.

Moving counsel has complied with the procedural requirements of C.R.C. 3.1362. The Court finds good cause to grant the relief requested on the merits. The motion is thus GRANTED.

The order granting relief is effective upon filing of a proof of service of the signed order on Plaintiff.