Jeffery Scott Stephens vs. Sutter Valley Hospitals

34-2020-00289599-CU-PO-GDS: Jeffery Scott Stephens vs. Sutter Valley Hospitals 11/16/2023 Hearing on Motion for Summary Judgment in Department 53

will be forward the form to the Court Reporter’s Office and an official reporter will be provided.

The motion of Defendants Roseville Medical Office Building Associates (“Roseville”) and Sutter Valley Hospitals dba Sutter Roseville Medical Center (“Sutter”) (collectively “Defendants’) for summary judgment in their favor and against Plaintiff Jeffery Scott Stephens (“Plaintiff”) is denied.

Background

This is an action for personal injuries sustained by Plaintiff when he fell due to a hole in the lawn of a medical office building (“MOB”) in Roseville, California. (See Complaint.) The incident occurred while Plaintiff was on-site performing caulking services in the capacity of an employee of an independent contractor, American Caulking Services (“ACS”). (UMF Nos. 1-2.) ACS was in turn hired by West Fork Construction (“West Fork”), another independent contractor that was contracted with Roseville to manage the construction project and maintain the property where the incident occurred. (UMF No. 15.)

The complaint alleges Defendants are liable for Plaintiffs’ injuries based on the theory that Defendants were the owners, occupants, possessors, managers and/or lessors of the MOB, that they knew or should have known the walking surface was unsafe, and that they negligently failed to inspect and maintain the premises in a safe manner and therefore failed to discover the dangerous condition that Plaintiff’s injuries. (See Complaint.)

Defendants move for summary judgment on grounds Plaintiff cannot prove one or more of the essential elements of his cause of action. (Notice, p. 1-4.) Specifically, relying on Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny, Defendants argue Plaintiff cannot establish that they owed Plaintiff a duty or that Plaintiff’s injuries were caused by the breach of any such duty because Plaintiff was the employee of an independent contractor. In opposition, Plaintiff argues that the Privette line of cases are inapplicable because Plaintiff was not injured while performing work within the scope of ACS’ contract, because Roseville would have discovered the hole that caused Plaintiff to fall if Roseville had implemented a reasonable inspection program, and because a property owner has a non-delegable duty to maintain its property.

Preliminary Issues

Based on the undisputed material facts asserted, Defendants appear to be situated differently with respect to the MOB, such that Sutter is a tenant and not an owner of the MOB. (UMF Nos. 19 and 23.) However, Defendants’ joint motion relies on the same UMFs and arguments. In doing so, Defendants concede that each of the UMFs asserted is material to the merits of their respective request for summary judgment. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) Thus, if the Court finds there is a triable issue as to any of the material facts asserted, it will be sufficient to defeat the motion as to both Defendants. (See ibid.)

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Defendants’ separate statement initially filed in support of this motion included only 24 undisputed material facts (“UMFs”). On June 26, 2023, filed a supplemental separate statement identifying 28 UMFs along with a supplemental appendix of exhibits. At that time, the hearing was scheduled for July 27, 2023. Thus, Defendants’ supplemental separate statement and evidence was filed only 31 days before the hearing and therefore failed to provide Plaintiff 75 days’ notice of the material facts offered in support of the motion as required by Code of Civil Procedure § 437c(a)(2).

However, on July 10, 2023, at the request of Plaintiff, the Court continued the hearing to November 16, 2023. (Minute Order, 7/10/2023.) As this continuance was more than 75 days, the Court finds Plaintiff had proper notice of the supplemental UMFs and will therefore consider the supplemental separate statement. (See Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267-1268 [a continuance can cure defects in notice only where it is of sufficient length to begin the notice period anew].)

Defendants’ request, in reply, to strike portions of Plaintiff’s filings under Code of Civil Procedure § 436 is denied. This is improper. A motion to strike under Code of Civil Procedure § 436 requires a separate noticed motion and cannot be made in reply in support of a motion for summary judgment.

Plaintiff failed to comply with the requirements of Cal. Rules of Court, rule 3.1350(g) to separately bind evidence and to provide a table of contents where the evidence exceeds 25 pages. Nonetheless, the Court will exercise its discretion to consider the evidence at this time without the need for a further continuance.

“Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement.” (Cal. Rules of Court, rule 3.1354(b).) Here, Plaintiff improperly states and argues objections in its separate statement. The Court declines to rule on any such objections on grounds they were not properly asserted.

Plaintiff and Defendants each filed separate written objections. However, on their face, the parties’ objections relate to the specific material facts asserted by the parties, not to the underlying evidence. Objections must be made to the “specific evidence” offered in support of one or more material facts, not to the material facts themselves. (See Cal. Rules of Court, rule 3.1354(b); see also Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1.) Accordingly, the Court declines to rule on the parties’ objections as they were not properly asserted to the evidence presented.

Alternatively, except as otherwise set forth herein, the Court declines to rule on the parties’ objections on grounds they are immaterial to the Court’s decision. (Code Civ. Proc. § 437c(q).)

Legal Standard

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2020-00289599-CU-PO-GDS: Jeffery Scott Stephens vs. Sutter Valley Hospitals 11/16/2023 Hearing on Motion for Summary Judgment in Department 53

In evaluating a motion for summary judgment or summary adjudication the Court engages in a three-step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings.

The Court cannot consider an unpled issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant's motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Indeed, it has often been noted that "[i]t would be patently unfair to allow plaintiffs to defeat UCI's summary judgment motion by allowing them to present a “moving target” unbounded by the pleadings.” (Melican v.

Regents of University of California, (2007) 151 Cal. App. 4th 168, 176-177.)

Next, the Court must determine whether the moving party has met its burden. A defendant or cross-defendant moving for summary judgment or summary adjudication "bears the burden of persuasion that there is no triable issue of material fact and that [the defendant] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar); Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1301.) A defendant satisfies this burden by showing one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Aguilar, supra, 25 Cal.4th at p. 850.)

A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v Advanced Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is required to show only that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, 25 Cal.4th at 853-855.) At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make "an affirmative showing" in support of its motion. (See Aguilar, 25 Cal.4th at 854-855 n.23; Addy v Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.)

Further, the initial burden requires a showing that the plaintiff “could not prevail on any theory raised by the pleadings.” (Hawkins v. Wilton (2006) 144 Cal. App. 4th 936, 939-940.) Even if no opposition is presented, the moving party still has the burden of eliminating all triable issues of fact. (Wright v. Stang Manufacturing Co. (1997) 54 Cal. App. 4th 1218, 1228; see also Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal. App. 4th 377, 397.)

Once a moving party meets his or her initial burden, “‘the burden shifts to the [opposing party] . . . to show that a triable issue of one or more material facts exists as to that cause of action or a

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2020-00289599-CU-PO-GDS: Jeffery Scott Stephens vs. Sutter Valley Hospitals 11/16/2023 Hearing on Motion for Summary Judgment in Department 53

defense thereto.’” (Aguilar, supra, 25 Cal.4th at p. 849.) To satisfy this burden, the opposing party must present admissible evidence and may not rely upon the allegations or denials of its pleading. (Ibid.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, at 843.)

Analysis

As a general rule, a person who hires an independent contractor is not liable to third parties for injuries caused by the contractor’s negligence in performing the work. (Privette, supra, 5 Cal.4th at p. 693.) This rule generally applies to injuries sustained by the independent contractor’s employers because the hirer of an independent contractor implicitly delegates the responsibility for worksite safety to the independent contractor. (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594.)

Here, Roseville contracted with West Fork Construction (“West Fork”) to manage a construction project and provide property maintenance at the MOB. (UMF No. 15.) West Fork in turn hired ACS. (UMF Nos. 2 and 14.) Plaintiff was injured while on-site to perform work in the course and scope of employment with ACS. (UMF No. 1.) Based on these facts, Defendants have met their initial burden to demonstrate, as a general rule, that they did not owe a duty to Plaintiff because Plaintiff was the employee of an independent contractor.

Exceptions to the general rule exist where the hirer of an independent contractor maintains control over the independent contractor’s employees (Hooker v. Department of Transportation (2002) 27 Cal.4th 198) or where the hirer fails to warn the independent contractor of a latent hazardous condition that the hirer reasonably should have known exists and that the independent contractor did not know of and could not have reasonably discovered (Kinsman v. Unocal Corporation (2005) 37 Cal.4th 659).

Here, Defendants assert it is undisputed that Plaintiff was injured when he stepped into a “natural undulation/divot” on the ground in a grassy area (UMF Nos. 4-5 and 18), that Defendant was unaware of any “undulations or divots” in the grassy area (UMF Nos. 7 and 11), that Plaintiff’s supervisor and employer were aware of the “divot” in the grassy area prior to the incident (UMF No. 8 and 26-27), and that Defendants did not direct or control ACS or its employees (UMF No. 3.)

In opposition, Plaintiff argues the general rule of nonliability applies only when the employee of an independent contractor is performing tasks “within the scope of their work their employer had contracted to perform.” (Opposition, p. 12:5-7.) Defendants argues that any such exception is inapplicable because it is undisputed that Plaintiff was working the scope and course of employment and that walking on the job site was necessary for Plaintiff to perform the caulking work that ACS was contracted to complete.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2020-00289599-CU-PO-GDS: Jeffery Scott Stephens vs. Sutter Valley Hospitals 11/16/2023 Hearing on Motion for Summary Judgment in Department 53

While Plaintiff’s argument could have been more clearly stated, the Court finds support for the argument in Kinsman, supra, 37 Cal.4th 659. As noted above, the Supreme Court in Kinsman, supra, 37 Cal.4th at p. 676 discussed an exception where the hirer of an independent contractor could be held liable for injuries resulting from latent hazardous conditions. However, in discussing the scope of this exception, the Court concluded that a landowner’s general duty to contractor’s employees to inspect for concealed hazards may be limited where the responsibility for job safety is delegated to the independent contractor. (Id. at p. 677.)

The Court concluded that the landowner’s duty may be limited when the injury occurs while the employee is performing “‘the object of the work of the independent contractor’.” (Id. at p. 677 quoting Grahn v. Tosco Corp. (1997) 58 Cal.App.4th 1373, 1398.) Applying this distinction, the Court noted that a landowner would not owe a duty to the employee of a roofing contractor to warn of structural defects in the roof the contractor was hired to repair but would have a duty to warn of defects that would cause a wall where a ladder is propped to collapse if the defect in the wall was no related to the roof under repair. (Id. at pp. 677-678.)

Applied to the facts of this case, Defendants would have no duty to warn Plaintiff of latent defects related to and that might cause an injury while Plaintiff was performing the work of caulking windows, but would have a duty to warn of latent defects in the walkways that Plaintiff would foreseeably use to access the windows. This analysis confirms that if the condition at issue actually is an “undulation/divot,” then Defendants had a duty to warn of the undulation/divot that caused Plaintiff to fall if 1) they reasonably should have known of the existence of the defect, 2) they failed to warn ACS of the existence of the undulation/divot despite it being reasonably foreseeable that ACS or its employees might be injured by it, and 3) ACS did not know of and could have reasonably discovered the undulation/divot.

Here, as set forth above, Defendants have asserted UMFs to indicate that ACS had actual knowledge of the “undulation/divots” (to the extent that is the condition at issue).

However, the Court notes that Defendants’ motion is based on an underlying assumption that Plaintiff’s injury was caused by a “natural undulation/divot” in the grassy area. (See UMF Nos. 4, 5, 7, 8, 11, 18.) Plaintiff’s complaint, however, does not allege facts or assert a theory that Plaintiff tripped on an “natural undulation/divot” in the grassy area. Rather, the complaint expressly alleges that Plaintiff “fell due to a hole which had been negligently dug into the law of the premises which hole was uncovered, unmarked and obscured by the grass growing around and over it and which hole was negligently allowed to exist . . . .” (Complaint, p. 3:10-14.)

Indeed, this allegation demonstrates that Plaintiff’s claim is based upon the exact opposite condition that Defendants base their motion upon. That is, Defendants’ entire motion is premised upon asserted undisputed material facts pertaining to a “natural undulation/divot” in the grassy area. Plaintiff’s allegation in the complaint, on the other hand, is based upon a “hole” that was not a “natural undulation/divot” at all, but rather, was “dug into the lawn of the premises.” A motion for summary judgment must respond to the allegations in the complaint. (Laabs v.

City of Victorville (2008) 163 Cal.App.4th 1242, 1258.) Thus, Defendants’ cannot prevail on a motion for summary judgment merely by demonstrating they are not liable to Plaintiff for injuries sustained due to tripping on a “natural undulation/divot” in the grassy area. To satisfy their initial

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2020-00289599-CU-PO-GDS: Jeffery Scott Stephens vs. Sutter Valley Hospitals 11/16/2023 Hearing on Motion for Summary Judgment in Department 53

burden, Defendants must have also presented undisputed material facts demonstrating that either Plaintiff’s injury was actually caused by an “natural undulation/divot” and not a hole “dug into the lawn of the premises” as alleged in the complaint, or that even if the defect was a hole “dug into the lawn of the premises,” that Defendants did not have a duty to warn Plaintiff of the existence of such hole on the premises.

Here, none of Defendants’ asserted UMFs sufficiently demonstrate that the condition that caused Plaintiff’s fall was undisputedly not a “hole dug into the lawn” but instead, was merely a “natural undulation/divot.” The closest Defendants apparently come to addressing this point is their asserted UMF 18, which only states, “[t]he divot plaintiff fell on was a natural undulation/divot in the grassy area.” While this asserted UMF is entirely silent as to addressing and negating what Plaintiff actually alleged (i.e., a “hole dug into the lawn”), it also is reliant upon only two photos attached as Exhibit F to Defendant’s Appendix of Exhibits. These photos, by themselves, do not (and cannot) depict that the condition in the lawn was undisputedly one of a natural occurring undulation/divot as opposed to a “hole dug into the lawn.” Thus, asserted UMF 18 does not remove from dispute Plaintiff’s allegation that he fell on a “hole which had been negligently dug into the law of the premises.” This deficiency alone requires denial of Defendants’ motion.

Further, Defendants’ other asserted UMFs are expressly based on the nature of the injury-causing condition as a “natural undulation/divot” and not a “hole dug into the lawn.” As an example, UMF No. 11 expressly indicates defendants did not “know of any undulations or divots in the grass area,” but makes no mentions as to whether defendants had knowledge of holes that had been “dug into the lawn.” The evidence supporting this UMF is also expressly dependent on the characterization of the defect as a natural undulation or divot, rather than a hole dug into the lawn. (Covert Decl., ¶¶ 1-6 [referring to “the undulation in the grass”].) These deficiencies also require denial of Defendants’ motion.

Notably, Defendants have also altered the characterization of evidence which tends to improperly frame the issue in a manner other than that clearly presented by the complaint. For instance, UMF No. 4 purports to provide a quote from Claimant’s Response to Sutter Valley Hospitals’ [SR1] Special Interrogatories stating Plaintiff injury occurred when “his left foot fell into a divot in the ground that was covered by and obscured by the grass growing in the lawn which surrounded the divot, causing Mr.

Stephens to fall to the ground.” (UMF No. 4 quoting Evid. Exh. A, Response, p. 3:6-9.) A review of the evidence, however, indicates Claimant’s actual response was that he was injured “when his left foot fell into a hole in the ground that was covered by and obscured by the grass growing in the lawn which surrounded the hole . . . .” (Evid., Exh. A, Response, p. 3:6-9.) Again, the “hole” referred to is presumably that alleged in the complaint and does not make any reference instead to a natural undulation/divot.

This again highlights the fact that Defendants’ motion is based upon issues not presented by the complaint and not established by undisputed material facts.

Based on the foregoing, the Court finds Defendants failed to meet their initial burden because

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they failed to present sufficient evidence to support their asserted UMFs that the condition at issue was undisputedly a “natural undulation/divot” and further, because they failed to include sufficient asserted UMFs to negate the theory that an exception to the rule of nonliability exists because Defendants had a duty to warn Plaintiff of a latent defect in the form of a “hole dug into the lawn” of the premises. Based upon Defendants’ failure to satisfy their initial burden, their motion is denied.

As an independent grounds for denying the motion, even if Defendants had satisfied their initial burden, the Court finds Plaintiff has also successfully raised triable issues of material fact. Plaintiff asserts UMF Nos. 4, 5, 7, 18, and 20 are disputed. With the exception of the response to UMF No. 18, Plaintiff’s separate statement fails to cite to any evidence supporting evidence as required by Code of Civil Procedure § 437c(b)(3). Defendants’ UMF No. 18 states that “[t]he divot plaintiff fell on was a natural undulation/divot in the grassy area” and is supported by a reference to two photos. Plaintiff disputes this fact and offers four photographs as supporting evidence for the contention that Plaintiff’s fall was instead “caused by a hole in the lawn that measured 8 inches deep and 4-5 inches wide,” and not by a “natural undulation/divot.”

The Court notes that Defendants’ objection No. 41 references “Entry 18” and appears to object to Plaintiff’s response to UMF No.

18. As noted above, objections to the separate statement itself rather than the sufficiency of the supporting evidence are improper and need not be considered by the Court. (See Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1.) This defect alone is grounds for overruling the objection. Nonetheless, to the extent Defendants intended to object to the sufficiency of Plaintiff’s evidence, the Court finds the declarations offered by Plaintiff contain sufficient factual information to authenticate the photographs as pictures of the hole that Plaintiff contends caused the incident and that the width and depth of the hole are depicted in the same condition as at the time of the injury. (Swartz Decl., ¶¶ 4-8, Exh. A; Plaintiff’s Decl., ¶¶ 7, 10-15.) Defendants’ objections are therefore overruled.

Based on the foregoing, the Court finds Plaintiff has raised a dispute as to UMF No.

18. By including asserted UMF No. 18 in its separate statement, Defendants concede the materiality of the asserted fact that “[t]he divot plaintiff fell on was a natural undulation/divot in the grassy area.” (See Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 252.) Thus, by successfully raising a dispute to UMF No. 18, Plaintiff has met its burden to raise a triable issue of material fact.

Further, the factual dispute as to whether Plaintiff’s injury was caused by “a natural undulation/divot” or whether Plaintiff’s injury “was caused by a hole in the lawn that measured 8 inches deep and 4-5 inches wide” also raises a triable issue with respect to other UMFs. As set forth above, many of Defendants’ UMFs and motion are based on the contention that Plaintiff’s injuries were caused by a “natural undulation/divot” in the grass. For example, while Defendants contend they were unaware of “undulations or divots” in the grass (UMF Nos. 7 and 11) Defendants do not offer any UMFs indicating they were unaware of holes in the grass of such a

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2020-00289599-CU-PO-GDS: Jeffery Scott Stephens vs. Sutter Valley Hospitals 11/16/2023 Hearing on Motion for Summary Judgment in Department 53

nature that they measured 8 inches deep and 4-5 inches wide. Thus, by raising a dispute as to whether Plaintiff’s fall was caused by nothing more than a “natural undulation/divot” or instead, was caused by “a hole in the lawn that measured 8 inches deep and 4-5 inches wide,” Plaintiff has also raised triable issues as to whether Defendants had knowledge or should have had knowledge as to the existence of the hole alleged to have caused Plaintiff’s injuries. Again, as Defendants have conceded the materiality of the asserted UMFs, Plaintiff has successfully met its burden to raise a triable issues of material fact. The Court need not proceed further.

Based on the foregoing, the motion for summary judgment is denied.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.