Hector Zamora Ornelas v. D.R. Horton, Inc.

Hector Zamora Ornelas v. D.R. Horton, Inc. 25CV002388

[1] MOTION TO BE RELIEVED AS COUNSEL

TENTATIVE RULING: The Motion is DENIED. Counsel asserts that “Plaintiff is deceased . . . [and] . . . [k]nown family members have been made aware of the claim, but no heir or personal representative has been located or stepped forward.” (Notice of Motion at ¶ 3.) The effect of granting a motion to be relieved as counsel, in this context, would be to leave the action without either plaintiff or plaintiff’s counsel. The Court does not find that the interests of justice would be served by facilitating that situation.

The Court notes that the original Complaint in the action was filed some 11 months after Plaintiff’s death. (See Complaint; see also Notice of Death of Plaintiff.) The Court understands that this was done inadvertently. While the Court is sympathetic to counsel’s predicament, it cannot overlook the fact that it is a predicament of counsel’s own making.

[2] DEFENDANT D.R HORTON BAY, INC.’S DEMURRER TO PLAINTIFF HECTOR ZAMORA ORNELAS’ COMPLAINT

TENTATIVE RULING: The Demurrer is SUSTAINED. Plaintiff is granted 20 Court days’ leave to amend the Complaint to state good claims.

The moving party failed to include in the notice of this motion proper notice of the Court’s tentative ruling system as required by Local Rule 2.9. Moving party is directed to immediately provide, by telephone call AND email, the missing notice to opposing party/ies forthwith. The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.

Defendant D.R. Horton Bay, Inc., erroneously sued and served as D.R. Horton, Inc. demurs, pursuant to California Code of Civil Procedure 430.41 and 430.10 (e), to the Complaint filed on behalf of Hector Zamora Ornelas. Defendant contends that each of the three causes of action asserted through the Complaint are barred by the so-called Privette doctrine.

A general demurrer will lie “where the complaint has included allegations that clearly disclose some defense or bar to recovery.” (Cryolife, Inc. v. Super. Ct. (2003) 110 Cal.App.4th 1145, 1152.) Where a plaintiff has pled facts that appear to demonstrate an affirmative defense to the claims, they must then “plead around” the defense by alleging facts sufficient to avoid the apparent defense. (See Gentry v. eBay Inc. (2002) 99 Cal.App.4th 816, 825.)

“Strong public policy considerations readily acknowledged in our past decisions generally support a straightforward presumption about the responsibilities of hirers and contractors for worker injuries in situations like this: A person or entity hiring an independent contractor (a ‘hirer’) ordinarily delegates to that independent contractor all responsibility for the safety of the contractor’s workers.” (Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256,

264 (Sandoval).) “We refer to this principle that a hirer is ordinarily not liable to the contract workers as the Privette doctrine, for the first case in which we announced it. (Id. at 270.) Pursuant to the Privette doctrine, “an independent contractor’s employee should not be allowed to recover damages from the contractor’s hirer, who ‘is indirectly paying for the cost of [workers’ compensation] coverage, which the [hired] contractor presumably has calculated into the contract price.’ [Citation.]” (Tverberg v.

Fillner Construction, Inc. (2010) 49 Cal.4th 518, 525.) Thus, “[a] presumptive delegation of tort duties occurs when the hirer turns over control of the worksite to the contractor so that the contractor can perform the contracted work. Our premise is ordinarily that when the hirer delegates control, the hirer simultaneously delegates all tort duties the hirer might otherwise owe the contract workers. [Citation.] Whatever reasonable care would otherwise have demanded of the hirer, that demand lies now only with the contractor.

If a contract worker becomes injured after that delegation takes place, we presume that the contractor alone – and not the hirer – was responsible for any failure to take reasonable precautions.” (Sandoval, supra, at p. 271.)

Plaintiff alleges that “[o]n or about November 17, 2023, Plaintiff, while performing services for Pro Custom Solar LLC, which had been hired by Defendant D.R. HORTON, INC., was present at the premises located at 49 Capri Ct, American Canyon, CA 94503. While lifting a load of shingles onto the roof of a house, Plaintiff's boot slipped due to the presence of mud and water on the ladder, causing him to fall approximately five (5) feet. As a result of this fall, Plaintiff sustained severe injuries, which continue to cause pain and impairment to this date., and he suffered severe injuries which persist to this date.” (Complaint at ¶ 11.)

Plaintiff further alleges that “Plaintiff HECTOR ZAMORA ORNELAS was lawfully working at the premises located at 49 Capri Ct, American Canyon, CA 94503., while performing work as part of a subcontracted construction workers [sic] that had been hired by Defendant D.R. HORTON, INC. and/or DOES 1 through 50, inclusive.” (Id. at ¶ 18, 28; see also id. at ¶ 37.)

The Court finds that the foregoing allegations are sufficient to disclose that Plaintiff’s claims against Defendant are barred pursuant to the Privette doctrine.

The Privette doctrine “gives way to two recognized exceptions: where the hirer either withholds critical information regarding a concealed hazard [citation]; or retains control over the contractor’s work and actually exercises that control in a way that affirmatively contributes to the worker’s injury [citation].” (Sandoval, supra, 12 Cal.5th at 264.)

The Court does not find allegations in the Complaint sufficient to bring the claims within either of these exceptions.

Based on the foregoing, the demurrer is SUSTAINED.

Generally, it is an abuse of discretion for a court to deny leave to amend where there is any reasonable possibility that a Plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The Court finds a reasonable possibility that the Complaint can be amended to state valid claims. For that reason, the demurrer is SUSTAINED WITH LEAVE TO AMEND.

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