Sandoval v. Qualcomm Incorporated ( 2021 )

IN THE SUPREME COURT OF
CALIFORNIA
JOSE M. SANDOVAL,
Plaintiff and Appellant,
v.
QUALCOMM INCORPORATED,
Defendant and Appellant.
S252796
Fourth Appellate District, Division One
D070431
San Diego County Superior Court
37-2014-00012901-CU-PO-CTL
September 9, 2021
Justice Cuéllar authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Kruger, Jenkins, and Feuer concurred.
_______________________
* Associate Justice of the Court of Appeal, Second Appellate
District, Division Seven, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
SANDOVAL v. QUALCOMM INCORPORATED
S252796
Opinion of the Court by Cuéllar, J.
An electrical parts specialist sustained third degree burns
to over one third of the surface area of his body after he triggered
an arc flash from a circuit he did not realize was “live” with
flowing electricity. The contractor for whom he’d been working
had removed the protective cover on that live circuit while work
was underway. A jury concluded that the contractor acted
negligently and was liable for the injuries. What this case is
about is whether further liability arises for the company that
hired the contractor, owned the premises, and operated the
electrical equipment. The answer here is no.
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. (SeaBright Ins. Co. v. US Airways,
Inc. (2011) 52 Cal.4th 590, 597, 600, 602 (SeaBright).) This
presumption is rooted in hirers’ reasons for employing
contractors in the first place, and society’s need for clear rules
about who’s responsible for avoiding harms to workers when
contractors are hired. We have therefore generally avoided
subjecting hirers to tort liability for those workers’ injuries. (See
id. at pp. 598–599.) But that presumption gives way to two
recognized exceptions: where the hirer either withholds critical
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Opinion of the Court by Cuéllar, J.
information regarding a concealed hazard (Kinsman v. Unocal
Corp. (2005) 37 Cal.4th 659, 664 (Kinsman)); or retains control
over the contractor’s work and actually exercises that control in
a way that affirmatively contributes to the worker’s injury
(Hooker v. Department of Transportation (2002) 27 Cal.4th 198,
202 (Hooker)). The parties dispute how this presumption of
delegation and its two exceptions apply here. The Court of
Appeal affirmed a jury verdict finding the hirer liable under a
retained control theory of liability.
What we conclude is that defendant Qualcomm
Incorporated, the hirer in this case, owed no tort duty to plaintiff
Martin Sandoval, the parts specialist working for Qualcomm’s
contractor, at the time of Sandoval’s injuries. Although
Qualcomm performed the partial power-down process that
preceded the contractor’s work and resulted in the presence of
the live electrical circuit, we conclude on the record here that
Qualcomm neither failed to sufficiently disclose that hazard
under Kinsman nor affirmatively contributed to the injury
under Hooker. We also conclude that the pattern jury
instruction used in this case — CACI No. 1009B — does not
adequately capture the elements of a Hooker claim. So we
reverse the judgment of the Court of Appeal and remand this
case. The appellate court is instructed to remand this case to
the trial court, so it can enter judgment for Qualcomm
notwithstanding the verdict.
I.
A.
Qualcomm powers its San Diego campus from two sources
of electricity: the local electric utility and Qualcomm’s onsite
turbine generators — both of which feed into an electrical
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Opinion of the Court by Cuéllar, J.
switchgear.1 The switchgear consists largely of busbars, which
are large metal bars that conduct electricity much like power
cables, and medium-voltage circuit breakers, which are 900-
pound machines that automatically interrupt faulty current
flow much like their tiny cousins in a house’s fuse box. Each
circuit breaker and its incoming and outgoing busbars reside
within a particular cubicle in a long row of tall metal cabinets.
Each cubicle allows access from the front side and from the back
side by removing a bolted-on protective cover. The cubicles all
look very similar, particularly on the back side.
Qualcomm planned to upgrade its onsite turbine
generators in 2013. In order to accommodate this upgrade,
Qualcomm hired TransPower Testing, Inc., an electrical
engineering service company, to inspect and verify the
amperage capacity of Qualcomm’s existing switchgear
equipment. Frank Sharghi, TransPower’s president, is a
licensed electrical engineer and had worked on that switchgear
at least monthly for nearly 20 years, since before Qualcomm
acquired the campus. After Sharghi was unable to locate some
of the busbars in the “main cogen” circuit during one inspection,
Sharghi hired Sandoval — an electrical parts supply and repair
specialist with ROS Electrical Supply & Equipment — to
accompany him at a second inspection. For this second
inspection, Qualcomm approved a scope of work authorizing
TransPower to inspect the main cogen circuit from the front and
1
Because this case comes to us on appeal of the denial of
Qualcomm’s motion for judgment notwithstanding the verdict,
we summarize the evidence in the light most favorable to
Sandoval. (See Webb v. Special Electric Co., Inc. (2016) 63
Cal.4th 167, 192 (Webb).)
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Opinion of the Court by Cuéllar, J.
back. Qualcomm did not authorize TransPower to inspect (or
expose) any other circuits at this time.
On the morning of the second inspection, Sharghi
gathered with his workers — Sandoval, TransPower employee
George Guadana, and Sharghi’s son, Omid — at the Qualcomm
power plant. They attended a safety briefing led by Qualcomm
plant operator Mark Beckelman. In the course of discussing
several matters pertinent to the job, Beckelman reminded
Sharghi and his team that some circuits in the switchgear would
remain live. Both Qualcomm’s employees and TransPower’s
workers then proceeded to the switchgear room.
Qualcomm’s employees — Beckelman and two others —
then performed what we will refer to as the power-down process:
a process of multiple steps designed to ensure there would be no
live electricity flowing through the main cogen cubicle during
the inspection. Qualcomm’s employees wore arc flash protection
suits for this process. Beckelman directed the TransPower
team — who, except Guadana, were not wearing arc flash
suits — to stand at a safe distance. Having shut off all turbine
and emergency diesel generators, the Qualcomm employees
disconnected (“racked out”) the corresponding generator
breakers in the switchgear as well as the “sync-tie” breaker
connecting the main cogen circuit to utility power. This cut off
every source of power that could possibly flow to the main cogen
cubicle. They performed a “lockout/tagout” on each of these
breakers, a procedure which physically prevents anyone from
inadvertently reconnecting them. As for the main cogen
breaker, they not only racked it out and performed a
lockout/tagout, but they also opened the front panel covering its
cubicle, physically removed the 900-pound breaker, and placed
the breaker on the floor in front of the switchgear cabinets. They
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Opinion of the Court by Cuéllar, J.
now had access to the main cogen busbars deep inside the
cubicle, and they used a voltmeter to confirm that those busbars
were dead. Sharghi observed the power-down process carefully
“to make sure they [didn’t] miss anything.” All other circuits in
the switchgear room remained live with utility power.
Qualcomm’s employees soon exited the switchgear room.
But before they did, Beckelman confirmed with Sharghi that
Sharghi was satisfied with Qualcomm’s power-down of the main
cogen circuit, and that Sharghi understood which circuits were
now dead (the “safe zone”) and which were still live (the “no-safe
zone”). Sandoval did not hear this exchange between
Beckelman and Sharghi.
At approximately this point, Guadana — wearing his arc
flash protection — performed a grounding process on the back
side of the main cogen cubicle. He removed the cubicle’s back
panels, confirmed with TransPower’s own voltmeters that the
main cogen circuit was indeed dead, bled any residual energy,
and attached grounding cables as an additional safety
precaution. The record is inconsistent regarding whether
Guadana performed this grounding process before or after
Qualcomm’s employees left the room, and with or without
Qualcomm’s employees’ assistance and/or supervision.
After Qualcomm’s employees left the switchgear room,
Sharghi instructed Guadana — still wearing his arc flash
protection — to also remove the bolted-on back protective panel
from the immediately adjacent GF-5 cubicle. As Sharghi well
knew, the GF-5 circuit was still live with electricity from utility
power. Sharghi would later testify that his reason for
instructing Guadana to remove the GF-5 cubicle’s back panel
was that he wanted to take photographs for purposes of an
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Opinion of the Court by Cuéllar, J.
unrelated previous inspection. Sharghi told no one that he was
exposing a live circuit.
Either while Guadana was removing the back GF-5 panel
or immediately afterward, the TransPower team began their
inspection of the main cogen busbars from the front side of the
switchgear cabinets.
At some point during this inspection, Sandoval walked
away from the rest of the TransPower team. Sharghi would
later testify that he thought Sandoval was going to get paper
and pen. Sandoval would later recall that he was having trouble
judging the size of some of the main cogen busbars from the front
side of the cabinet, and he thought he might be able to get a
better view from the back. Sandoval called out to Guadana to
join him. Sandoval asked Guadana to hold a flashlight as they
both approached the back side of the cabinets. Guadana was
still wearing his arc flash protection. Sandoval was holding a
metal tape measure.
The metal tape measure triggered an arc flash from the
live, exposed GF-5 circuit. As best as Qualcomm could later
reconstruct the incident from the physical evidence, Sandoval
had inadvertently tried to measure the GF-5 busbars instead of
the main cogen busbars. Sandoval recalls everything going blue,
and screaming. The 4,160-volt arc flash — thousands of degrees
in temperature — had set him aflame. Sharghi and Omid heard
the “bang” as the arc flash tripped the breaker. Guadana and
Omid managed to smother the fire. Beckelman heard the bang
from the control room downstairs. When Beckelman reached
the switchgear room, he found Sandoval lying facedown and
screaming, “Why was it live? It shouldn’t be live.”
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Sandoval spent over a month in the hospital. He
sustained third degree burns — burns so deep the whole body is
compromised, requiring multiple skin graft procedures — to
about one third of his body surface, including his face, neck,
torso, and arms. He also experienced additional second degree
burns, pneumonia, multiple infections, lasting discomfort, and
loss of full use of his left arm.
B.
Sandoval filed suit against Qualcomm, TransPower, and
ROS Electrical Supply, asserting claims for negligence and
premises liability. Qualcomm moved for summary judgment on
the basis that the presumption of delegation should shield it
from liability here. Denying the motion, the trial court found a
triable issue as to whether Qualcomm affirmatively contributed
to Sandoval’s injury. Before trial began, Qualcomm objected to
the use of CACI No. 1009B — the pattern jury instruction
setting out the elements of a Hooker claim — on the ground that
it didn’t adequately convey the element of affirmative
contribution. The trial court denied the objection. At the same
time, the trial court noted its intention to instruct the jury that
Kinsman — the case pertaining to a hirer’s duty to disclose
concealed hazards on the hirer’s premises — did not require
Qualcomm to disclose the live circuits to Sandoval personally.
As a result, Sandoval withdrew his premises liability claim
against Qualcomm.
Following trial, the jury returned a special verdict
imposing liability on Qualcomm for Sandoval’s injuries.
Applying CACI No. 1009B, the jury found that Qualcomm
retained control over the safety conditions of the worksite, that
Qualcomm negligently exercised that control, and that
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Qualcomm’s negligence was a substantial factor in causing
Sandoval’s injuries. The jury awarded Sandoval over $1 million
in past and future medical expenses and $6 million in
noneconomic damages. It apportioned the fault 46 percent to
Qualcomm, 45 percent to TransPower, and 9 percent to
Sandoval.
Qualcomm moved for judgment notwithstanding the
verdict and for a new trial. The trial court rejected Qualcomm’s
argument that it was entitled to judgment notwithstanding the
verdict for lack of any triable issue on affirmative contribution.
The court granted Qualcomm’s motion for a new trial, however,
on the ground that the jury had improperly apportioned
liability.
The Court of Appeal affirmed. It, too, rejected both of
Qualcomm’s arguments: that CACI No. 1009B was an
inaccurate statement of the law as it relates to hirer liability,
and that Qualcomm wasn’t liable to Sandoval because it did not
affirmatively contribute to his injuries. (Sandoval v. Qualcomm
Inc. (2018) 28 Cal.App.5th 381, 417–420 (Sandoval).)
We granted review to resolve whether a hirer of an
independent contractor may be liable to a contractor’s employee
based only on the hirer’s failure to undertake certain safety
measures to protect the contractor’s employees, and whether
CACI No. 1009B accurately states the relevant law.
II.
A.
When a person or organization hires an independent
contractor, the hirer presumptively delegates to the contractor
the responsibility to do the work safely. (SeaBright, supra, 52
Cal.4th at pp. 597, 600, 602; Kinsman, supra, 37 Cal.4th 659,
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Opinion of the Court by Cuéllar, J.
671.) This presumption is grounded in two major principles:
first, that independent contractors by definition ordinarily
control the manner of their own work; and second, that hirers
typically hire independent contractors precisely for their greater
ability to perform the contracted work safely and successfully.
(Privette v. Superior Court (1993) 5 Cal.4th 689, 693 (Privette).)
Because this actual transfer of control tends to be desirable for
both private parties and society, the long-standing common law
rule was that a hirer bore no liability for injuries caused by the
negligence of the contractor. (Privette, supra, 5 Cal.4th at p. 693;
see Snyder v. Southern Cal. Edison Co. (1955) 44 Cal.2d 793,
799; Green v. Soule (1904) 145 Cal. 96, 99–100; Frassi v.
McDonald (1898) 122 Cal. 400, 402; Callan v. Bull (1896) 113
Cal. 593, 598.)
But ability to prevent an injury is not the only important
consideration in the formulation of tort doctrines. Courts have
now diluted the original, plain vanilla common law rule in
various ways depending on the identity of the injured party.
Where an injury befalls a hapless third party, the paramount
concerns have been about ensuring victim compensation. Lest
the victim be limited to suing an insolvent contractor, courts
have extended various theories of direct and vicarious liability
so the injured third party can recover from the hirer. (Privette,
supra, 5 Cal.4th at pp. 694–695.) As between an unrelated third
party and a hirer, courts have preferred to let the loss lie with
the party for whose benefit the contracted work was
undertaken. (Id. at p. 694.)
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Conversely, where the injury falls on a “contract worker,”2
concerns about the distribution of tort burdens as between the
hirer and contractor have become paramount: Given that the
Workers’ Compensation Act protects the contractor — but not
the hirer3 — from tort liability, and already ensures
compensation for contract worker injuries, we have concluded
that it is ordinarily unfair to let a contract worker recover from
the hirer for the contractor’s negligence. (See Toland v. Sunland
Housing Group, Inc. (1998) 18 Cal.4th 253, 270 (Toland).) The
hirer is typically less knowledgeable and more poorly positioned
to prevent injury to the contract workers than the contractor is.
(Privette, supra, 5 Cal.4th at pp. 693, 700.) Typically, the hirer
indirectly pays for workers’ compensation insurance in the
contract price. (Id. at p. 699.) And the contractor’s insurance
premiums and, often, personal relationship with its workers
already give the contractor compelling incentives to ensure a
safe workplace. (See id. at pp. 693, 700.) We refer to this
principle that a hirer is ordinarily not liable to the contract
2
We use the term “contract worker” herein as a shorthand
for the independent contractor personally, the independent
contractor’s employees, the independent contractor’s
subcontractors personally, the subcontractors’ employees, and
so on. (See, e.g., Padilla v. Pomona College (2008) 166
Cal.App.4th 661, 668–671, 676 (Padilla) [applying Privette
doctrine to subcontractor's employee]; accord, Khosh v. Staples
Construction Co., Inc. (2016) 4 Cal.App.5th 712, 718–719, 721
(Khosh) [same].)
3
In Pacific Gas & Electric Co. v. Industrial Accident
Commission (1919) 180 Cal. 497, we held unconstitutional the
award of workers’ compensation against a person other than the
immediate employer. (See id. at p. 503.)
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workers as the Privette doctrine, for the first case in which we
announced it.
Over time, we’ve recast our primary rationale for the
Privette doctrine in terms of delegation rather than workers’
compensation. Because we typically expect contractors to
perform the contracted work more safely than hirers, we have
endorsed a “strong policy” of presuming that a hirer delegates
all control over the contracted work, and with it all concomitant
tort duties, by entrusting work to a contractor. (SeaBright,
supra, 52 Cal.4th at p. 596.) In light of this presumption, we
have refused to extend liability to hirers even on theories of
nominally “direct” liability, such as negligent failure to require
precautions or negligent hiring of an incompetent contractor.
(Toland, supra, 18 Cal.4th at p. 265; Camargo v. Tjaarda
Dairy (2001) 25 Cal.4th 1235, 1241 (Camargo).) We reasoned
that liability for a hirer’s failure to ensure the contractor takes
reasonable care is “in essence ‘vicarious’ or ‘derivative,’ ” and
thus impermissible under the Privette doctrine. (Toland, at p.
265; see Camargo, at p. 1241.) Likewise, even where workers’
compensation is not available, we have refused to let an
independent contractor personally sue a hirer under a vicarious
liability theory, reasoning that society can readily expect a
competent contractor to have both good reason and knowledge
to exercise responsibility over the contractor’s own personal
safety. (Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th
518, 521 (Tverberg I).)
But the Privette doctrine has its limits. Sometimes a hirer
intends to delegate its responsibilities to the contractor in
principle but, by withholding critical safety information, fails to
effectively delegate its responsibilities in practice; or a hirer
delegates its responsibilities only partially by retaining control
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of certain activities directly related to the contracted work.
When such situations arise, the Privette doctrine gives way to
exceptions. In Kinsman, we articulated the rule that a
landowner-hirer owes a duty to a contract worker if the hirer
fails to disclose to the contractor a concealed premises hazard.
(Kinsman, supra, 37 Cal.4th at p. 664.) And in Hooker, we
articulated the rule that a hirer owes a duty to a contract worker
if the hirer retains control over any part of the work and actually
exercises that control so as to affirmatively contribute to the
worker’s injury. (Hooker, supra, 27 Cal.4th at p. 202.)
B.
Bearing these principles in mind, we begin by considering
whether this case implicates our presumption of delegation,
and, if so, whether the concealed hazards exception applies here.
The answers are yes and no, respectively.
1.
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. (Tverberg I, supra, 49
Cal.4th at p. 528; Kinsman, supra, 37 Cal.4th at p. 671.)
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.
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That said, this presumption gives way to the two
recognized exceptions that apply where delegation is either
ineffective or incomplete. We briefly consider the exception for
the former situation — the concealed hazards exception.
In Kinsman we recognized that a landowner-hirer cannot
effectively delegate its duties respecting a concealed hazard
without disclosing that hazard to the contractor. (See Kinsman,
supra, 37 Cal.4th at p. 674.) In this context, a “concealed”
hazard means something specific: a hazard that the hirer either
knows or reasonably should know exists, and that the contractor
does not know exists and could not reasonably discover without
the hirer’s disclosure. (Id. at p. 675.) We draw no distinction
between a hazard whose very existence is concealed and a
hazard which is in some way apparent but whose dangerousness
is concealed. (Id. at p. 678.) The sufficiency of the hirer’s
disclosure is “measured by a negligence standard,” that is, a
standard of reasonable care. (Id. at p. 680.) If the hirer does not
sufficiently disclose the concealed hazard, the hirer retains its
tort duties owed to the contract workers respecting that hazard.
A contrary conclusion would cut against the rationale justifying
Privette’s presumption of delegation. A contractor is not best
situated to perform work safely when the contractor lacks
critical information about relevant hazards. (Kinsman, supra,
37 Cal.4th at p. 679; see Hooker, supra, 27 Cal.4th at p. 213.)
Nor is there any unfairness in holding the hirer liable where
only the hirer possessed that critical knowledge. (See Toland,
supra, 18 Cal.4th at p. 267.)
2.
The record evidence leaves no question that Qualcomm
both turned over control of the worksite and sufficiently
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disclosed all relevant concealed hazards before Sandoval’s
injury occurred. We therefore presume that Qualcomm owed
Sandoval no tort duty respecting his injury, subject only to the
retained control exception which we discuss in the subsequent
section.
There is no dispute that Qualcomm turned over control of
the worksite to TransPower before the injury. Although the
record contains some ambiguity regarding when exactly the
Qualcomm employees left the switchgear room, and when
exactly TransPower began performing its inspection of the main
cogen breaker, it is undisputed that both of these things
occurred before Sandoval’s injury. We need not resolve whether
the turning over of control occurred before or after Guadana
performed the grounding process. Even if Qualcomm did not
turn over control until after the grounding process, Sandoval’s
injury occurred at least several minutes later still — well into
TransPower’s inspection of the main cogen circuit. The evidence
therefore triggers a presumption that Qualcomm had delegated
to TransPower all duties Qualcomm otherwise would have owed
to Sandoval by the time of Sandoval’s injury.
There is likewise no dispute that Qualcomm sufficiently
disclosed to TransPower any relevant concealed hazards before
Sandoval’s injury. The relevant hazard was the presence of live
circuits in the switchgear room. Sharghi — TransPower’s
president — admitted that he was well aware which circuits
were live and which were not. Sharghi’s knowledge might
indicate that the live condition of the circuits was obvious or
reasonably ascertainable for TransPower, in which case that
condition was not actually “concealed.” Or it might indicate that
Beckelman accurately described the partially live condition of
the equipment when he communicated with Sharghi before
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leaving the switchgear room, in which case Qualcomm’s
disclosure was sufficient. Either way, the evidence establishes
that Qualcomm effectively delegated to TransPower any tort
duties Qualcomm otherwise would have owed Sandoval
respecting these live circuits under Kinsman.4
What Sandoval posits is that because the power-down
process was entirely Qualcomm’s doing, Qualcomm bore
responsibility for all power-related hazards. In other words,
since Qualcomm didn’t delegate to TransPower the performance
of the power-down process, it couldn’t have delegated its tort
duties respecting the power-down process. If Sandoval had been
injured during Qualcomm’s performance of the power-down
process, we might agree that no transfer of control or tort duties
from Qualcomm to the contractor had yet occurred. (See
Tverberg I, supra, 49 Cal.4th at p. 528 [the hirer delegates
responsibility for performing the work safely “when” the hirer
delegates control].) But timing matters, and Sandoval’s injury
occurred later. Once Qualcomm turned over control of the
worksite, any tort duties Qualcomm had with respect to the
safety of that site presumptively became TransPower’s duties.
(See Horne v. Ahern Rentals, Inc. (2020) 50 Cal.App.5th 192, 203
[where hirer performed noncontract work of driving and parking
4
By dismissing his premises liability claim, Sandoval in
fact waived any claim he might have had based on Qualcomm’s
failure to effectively delegate any landowner duties respecting
the live circuits. We discuss such duties to provide guidance in
future cases. Because there was no failure here to disclose
critical information respecting a concealed hazard, we need not
resolve whether Qualcomm’s ability to delegate its
nonlandowner duties respecting that hazard (Sandoval posits
theories of undertaking and of past practice creating a risk of
harm) may have also required a Kinsman-type disclosure.
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forklift and then turned over control, hirer delegated to
contractor responsibility for determining whether that location
and positioning of the forklift was safe for conducting the
contracted work of replacing the forklift’s tires].)
Qualcomm’s performance of the power-down process
remains relevant only to the extent it implicates our two
exceptions to this presumption. As to the first, to the extent that
Qualcomm’s performance of the power-down process resulted in
the presence of a preexisting hazard (the live circuits),
Qualcomm effectively delegated its duties respecting that
hazard either because it was not concealed or because
Qualcomm’s disclosure was sufficient. As to the second, we
consider in the following section whether Qualcomm owed
Sandoval a duty on account of incomplete delegation, whether
by virtue of Qualcomm’s performance of the power-down process
or otherwise.
C.
We now consider whether substantial evidence supports
the jury’s conclusion that Qualcomm owed Sandoval a duty
under the retained control exception to the ordinary limitations
on hirer liability for injuries sustained by contract workers. (See
Webb, supra, 63 Cal.4th at p. 192 [stating standard of review].)
We conclude that the answer is no.
1.
In Hooker, we recognized that hirers do not always fully
delegate control to their contractors. We concluded that in some
such “retained control” situations, notwithstanding Privette’s
presumption to the contrary, the hirer must owe a duty of care
to the contract workers. (Hooker, supra, 27 Cal.4th at pp. 211–
212; see SeaBright, supra, 52 Cal.4th 590 at pp. 599–600.)
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The plaintiff in such cases must establish not only that the
hirer retained control over the contracted work, but also that the
hirer actually exercised that retained control in a manner that
affirmatively contributed to the contract worker’s injury.
(Hooker, supra, 27 Cal.4th at p. 202.) Because Hooker’s
application has produced significant confusion, we dwell at some
length here on the meaning of Hooker’s three key concepts:
retained control, actual exercise, and affirmative contribution.
A hirer “retains control” where it retains a sufficient
degree of authority over the manner of performance of the work
entrusted to the contractor. This concept simply incorporates
the Restatements’ theory of retained control: Against a
backdrop of no hirer duty respecting the manner of performance
of work entrusted to a contractor, the Restatements provide that
a hirer who retains control over any part of that work owes
others a duty of reasonable care respecting the hirer’s exercise
of that retained control. (See Rest.2d Torts, § 414; Hooker,
supra, 27 Cal.4th at pp. 201–202 [incorporating Rest.2d Torts,
§ 414]; Rest.3d Torts, Liability for Physical and Emotional
Harm, § 56 [modern version of Rest.2d Torts, § 414].) So
“retained control” refers specifically to a hirer’s authority over
work entrusted to the contractor, i.e., work the contractor has
agreed to perform. For simplicity we will often call this the
“contracted work” — irrespective of whether it’s set out in a
written contract or arises from an informal agreement. A hirer’s
authority over noncontract work — although potentially giving
rise to other tort duties — thus does not give rise to a retained
control duty unless it has the effect of creating authority over
17
SANDOVAL v. QUALCOMM INCORPORATED
Opinion of the Court by Cuéllar, J.
the contracted work.5 (See Rest.3d Torts, supra, § 56, com. b,
pp. 390–392.) Furthermore, a hirer’s authority over the
contracted work amounts to retained control only if the hirer’s
exercise of that authority would sufficiently limit the
contractor’s freedom to perform the contracted work in the
contractor’s own manner. (Id., com. c, p. 392; see, e.g., Grahn v.
Tosco Corp. (1997) 58 Cal.App.4th 1373, 1395 [“the ‘control’
necessary to give rise to a duty of care under Restatement
[Second of Torts] section 414” is “not simply general control over
the premises,” but control “over the methods of the work or the
manner in which the contractor’s employees perform the
operative details of their tasks”], disapproved on other grounds
in Hooker, supra, 27 Cal.4th at p. 214 and Camargo, supra, 25
Cal.4th at p. 1245; McDonald v. Shell Oil Co. (1955) 44 Cal.2d
785, 790 [“the [hirer] may retain a broad general power of
supervision and control as to the results of the work so as to
insure satisfactory performance of the independent contract —
5
Some line-drawing questions will of course arise when it
comes to how generally or specifically to understand the scope
of the contracted work. Consistent with the Privette
presumption that the hirer delegates the responsibility to
perform the contracted work safely, we presume that scope
encompasses at minimum the taking of reasonable precautions
during the performance of the work.
We also acknowledge that it will not always be easy to
distinguish between (a) contracted work over which the hirer
retained control, and (b) noncontract work in which the
contractor had some involvement but which the hirer controlled
to such a great extent that we would not say it was entrusted to
the contractor. For instance, it might be difficult to say whether
the hirer in Regalado v. Callaghan (2016) 3 Cal.App.5th 582(Regalado) was performing the noncontract work of obtaining
permits, or retaining control over the permitting aspect of the
contracted work. (See id. at pp. 587–588.)
18
SANDOVAL v. QUALCOMM INCORPORATED
Opinion of the Court by Cuéllar, J.
including the right to inspect [citation], the right to stop the
work [citation], the right to make suggestions or
recommendations as to details of the work [citation], the right
to prescribe alterations or deviations in the work [citation] —
without” incurring a retained control duty].)
The parties dispute whether Qualcomm retained control
“over safety conditions at the worksite,” a phrase we used in
Hooker. (Hooker, supra, 27 Cal.4th at pp. 202, 215.) But the
pivotal question here is whether the hirer retained a sufficient
degree of control over the manner of performing the contracted
work. Hooker itself gave us no reason to draw a meaningful
distinction between control over the manner of performing the
contracted work and control “over safety conditions at the
worksite,” because the hirer was alleged to have retained control
over the manner of performing the contracted work by retaining
the right to take corrective safety measures during the
contractor’s performance of the work entrusted to it. (Id. at p.
202.) And in any event, one might question whether it’s even
possible to retain control over safety conditions without also
retaining some control over the manner of performing the
contracted work. To the extent that “control over safety
conditions” (ibid.) might be taken to mean control over the
presence of preexisting hazards, though, as Sandoval argues by
implication, the phrase is unhelpful here. A hirer might be
responsible for the presence of a hazard and even convey an
expectation that the contractor perform its work without
eliminating that hazard altogether, and yet leave the contractor
ample freedom to accommodate that hazard effectively in
whatever manner the contractor sees fit. (See, e.g., Padilla,
supra, 166 Cal.App.4th at p. 671 [hirer did not retain control by
expecting contractor to work in presence of pressurized water
19
SANDOVAL v. QUALCOMM INCORPORATED
Opinion of the Court by Cuéllar, J.
pipe where hirer disclosed the pipe’s condition and contractor
had ample freedom to perform its work in its own
manner without contacting the pressurized pipe].) In such
instance, the hirer does not necessarily retain a sufficient degree
of control over the contractor’s manner of performing the
contracted work to constitute “retained control.”
What we decided in Hooker was that, even if hirers may
owe unrelated third parties a retained control duty based on
retained control alone, hirers owe the contract workers a
retained control duty only with something more. Contract
workers must prove that the hirer both retained control and
actually exercised that retained control in such a way as to
affirmatively contribute to the injury. (Hooker, supra, 27
Cal.4th at p. 202.)
A hirer “actually exercise[s]” its retained control over the
contracted work when it involves itself in the contracted work
“such that the contractor is not entirely free to do the work in
the contractor’s own manner.” (Rest.3d Torts, supra, § 56, com.
c, p. 392; see Thompson v. Jess (Utah 1999) 979 P.2d 322, 327;
Hooker, supra, 27 Cal.4th at p. 209 [endorsing an approach
similar to Thompson’s].) In other words, the hirer must exert
some influence over the manner in which the contracted work is
performed. Unlike “retained control,” which is satisfied where
the hirer retains merely the right to become so involved, “actual
exercise” requires that the hirer in fact involve itself, such as
through direction, participation, or induced reliance.6 (See, e.g.,
6
Although “active participation” may be one way of exerting
influence over the manner of performance (Tverberg v. Fillner
Construction, Inc. (2012) 202 Cal.App.4th 1439, 1446 (Tverberg
20
SANDOVAL v. QUALCOMM INCORPORATED
Opinion of the Court by Cuéllar, J.
Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28, 39
(Kinney) [a hirer’s “mere failure to exercise a power to compel
the [contractor] to adopt safer procedures does not, without
more, violate any duty owed to the [contract worker]”]; Hooker,
supra, 27 Cal.4th at p. 209 [quoting and agreeing with this
passage in Kinney].)
“Affirmative contribution” means that the hirer’s exercise
of retained control contributes to the injury in a way that isn’t
merely derivative of the contractor’s contribution to the injury.
(See Hooker, supra, 27 Cal.4th at p. 212 [hirer liability based on
affirmative contribution does not merely “ ‘ “derive[] from the
‘act or omission’ of the hired contractor” ’ ”].) Where the
contractor’s conduct is the immediate cause of injury, the
affirmative contribution requirement can be satisfied only if the
hirer in some respect induced — not just failed to prevent — the
contractor’s injury-causing conduct. (See, e.g., Kinney, supra, 87
Cal.App.4th at p. 36 [requiring that the hirer “induc[e] [the
contractor’s] injurious action or inaction through actual
direction, reliance on the hirer, or otherwise”]; Hooker, at p. 211
[quoting and agreeing with this passage in Kinney]; McKown v.
Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 225 [finding
affirmative contribution where hirer “requested” that contractor
use faulty equipment, thus at least in part inducing the
II); see Khosh, supra, 4 Cal.App.5th at p. 718; Alvarez v. Seaside
Transportation Services LLC (2017) 13 Cal.App.5th 635, 641), it
is not necessarily the only way. (See, e.g., Ray v. Silverado
Constructors (2002) 98 Cal.App.4th 1120, 1133–1134 (Ray)
[finding Hooker test satisfied where hirer had contractually
prohibited contractor from unilaterally undertaking a crucial
safety measure but was not actively participating in the
contracted work at the time of the injury].)
21
SANDOVAL v. QUALCOMM INCORPORATED
Opinion of the Court by Cuéllar, J.
contractor’s decision to use it].) It is not enough for the hirer’s
exercise of control to incidentally give the hirer the opportunity
to prevent the contractor’s injury-causing conduct. (See Hooker,
at p. 214 [finding no affirmative contribution where the onsite
hirer had the authority and opportunity to stop the contractor
from allowing traffic across the overpass, but did not induce the
contractor to allow such traffic — the hirer merely “permitted”
the traffic].)
A hirer’s conduct also satisfies the affirmative
contribution requirement where the hirer’s exercise of retained
control contributes to the injury independently of the
contractor’s contribution (if any) to the injury. (See, e.g., Hooker,
at p. 212, fn. 3 [observing that hirer liability would be
appropriate where “the hirer promises to undertake a particular
safety measure, then . . . negligent[ly] fail[s] to do so”]; Ray,
supra, 98 Cal.App.4th at pp. 1133–1134 [finding Hooker liability
where hirer prohibited contractor from erecting road barricade
that might have prevented injury].)
The critical factor here is the relationship between the
hirer’s conduct and the contractor’s conduct, not whether the
hirer’s conduct, assessed in isolation, can be described as
“affirmative conduct.” (Madden v. Summit View, Inc. (2008) 165
Cal.App.4th 1267, 1276.) Importantly, neither “actual exercise”
nor “affirmative contribution” requires that the hirer’s
negligence (if any) consist of an affirmative act. The hirer’s
negligence may take the form of any act, course of conduct, or
failure to take a reasonable precaution that is within the scope
of its duty under Hooker. (See Rest.3d Torts, supra, § 3, com. c,
pp. 29–30; Hooker, supra, 27 Cal.4th at p. 212, fn. 3 [noting that
a hirer may be liable based on failing to undertake a promised
safety measure]; Ray, supra, 98 Cal.App.4th at pp. 1133–1134
22
SANDOVAL v. QUALCOMM INCORPORATED
Opinion of the Court by Cuéllar, J.
[finding triable issue on affirmative contribution where hirer
retained exclusive authority over road barricades and failed to
erect barricade around fallen debris that contractor was trying
to clear when injury occurred].)
Contrary to the Court of Appeal’s reasoning (Sandoval,
supra, 28 Cal.App.5th at p. 417; see also Regalado, supra, 3
Cal.App.5th at pp. 594–595), affirmative contribution is a
different sort of inquiry than substantial factor causation. For
instance, a fact finder might reasonably conclude that a hirer’s
negligent hiring of the contractor was a substantial factor in
bringing about a contract worker’s injury, and yet negligent
hiring is not affirmative contribution because the hirer’s
liability is essentially derivative of the contractor’s conduct.
(See Camargo, supra, 25 Cal.4th at p. 1238 [applying the
Privette doctrine to reject negligent hiring as a theory under
which contract workers may sue hirers]; Hooker, supra, 27
Cal.4th at pp. 211–212 [contrasting affirmative contribution
with Camargo].) Conversely, affirmative contribution does not
itself require that the hirer’s contribution to the injury be
substantial.
If a plaintiff proves that the hirer actually exercised
retained control in a way that affirmatively contributed to the
contract worker’s injury, the plaintiff establishes that the hirer
owed the contract worker a duty of reasonable care as to that
exercise of control. (Cf. Rest.3d Torts, supra, § 56, subd. (b).)7
7
We emphasize that the test we articulated in Hooker
establishes only whether the hirer owed a duty to the contract
worker. (See Kinney, supra, 87 Cal.App.4th at p. 39.) The
Hooker test does not establish, for instance, whether the hirer’s
23
SANDOVAL v. QUALCOMM INCORPORATED
Opinion of the Court by Cuéllar, J.
The Privette doctrine does not bar liability. (See Hooker, supra,27 Cal.4th at pp. 211–212.)
Imposing this duty on the hirer where Hooker’s test is
satisfied is consistent with the strong policy of delegation that
undergirds the Privette doctrine. (See SeaBright, supra, 52
Cal.4th at p. 596.) A hirer’s mere authority to prevent or correct
a contractor’s unsafe practices (retained control) does not,
without more, limit the contractor’s delegated control over the
work. But to the extent that the hirer exerts influence over the
contracted work such that the contractor is not entirely free to
perform the work in the contractor’s own manner (actual
exercise), the hirer does limit the contractor’s delegated control.
Still, we impose a duty only where that limitation itself
contributed to the worker’s injury (affirmative contribution),
rather than where that limitation incidentally created an
opportunity for the hirer to prevent the contractor’s injury-
causing conduct. (See Hooker, supra, 27 Cal.4th at pp. 211–212;
Kinsman, supra, 37 Cal.4th at pp. 671–672 [explaining the
holdings in Ray, supra, 98 Cal.App.4th 1120 and Austin v.
Riverside Portland Cement Co. (1955) 44 Cal.2d 225 in terms of
limited delegation].)
Imposing a duty on the hirer under these limited
circumstances also furthers at least three of the major tort law
goals underlying the policy of delegation we detailed in our past
cases applying Privette. First, Hooker’s rule should tend to
conduct was negligent, whether the hirer’s negligence was a
substantial factor in causing the injury, or what the comparative
level of fault may have been between the hirer and the
contractor. (Contra, Padilla, supra, 166 Cal.App.4th at p. 670.)
24
SANDOVAL v. QUALCOMM INCORPORATED
Opinion of the Court by Cuéllar, J.
improve worksite safety, because it generally discourages hirer
involvement in contracted work. This is preferable because we
presume the contractor is best situated to prevent contract
worker injury given its relative proximity to the work, superior
expertise and resources, ability to internalize costs, and
relationship with the workers. (See Hooker, supra, 27 Cal.4th
at p. 213; Rest.3d Torts, supra, § 57, com. c, p. 392.) At the same
time, the rule incentivizes the hirer to use reasonable care when
the hirer does get involved. (See Hooker, at p. 213.) Second, the
rule distributes liability equitably as between the hirer and the
contractor. Where the hirer’s contribution to an injury is merely
derivative of the contractor’s, it seems unfair to subject the hirer
to tort liability while workers’ compensation shields the
contractor — not so where the hirer induces or independently
contributes to the injury. (See Hooker, at pp. 204, 210–214;
Toland, supra, 18 Cal.4th at p. 267; Privette, supra, 5 Cal.4th at
p. 701; see also Rest.3d Torts, § 57, com. c, p. 392.) Finally,
Hooker’s rule tends to strike an appropriate balance between
victim compensation and socially undesirable hirer burdens,
avoiding a tort scheme that might lead hirers to impose
inappropriate safety requirements (see Rest.3d Torts, § 56, com.
b, pp. 390–392) or avoid assigning dangerous jobs to those with
the necessary expertise (see Privette, at p. 700).
2.
In this case, substantial evidence does not support the
conclusion that Qualcomm both retained control over some part
of TransPower’s work and actually exercised that control in a
manner that affirmatively contributed to Sandoval’s injury.
Sandoval’s arguments implicate four distinct theories regarding
how the evidence establishes these elements. Two of these
theories fall short of establishing retained control. The third
25
SANDOVAL v. QUALCOMM INCORPORATED
Opinion of the Court by Cuéllar, J.
fails for lack of an actual exercise of retained control. And the
fourth lacks any showing of affirmative contribution. We
address each in turn.
Contrary to Sandoval’s primary argument, Qualcomm did
not owe him a retained control duty respecting the power-down
process itself. Qualcomm’s control over the power-down process
was not “retained control” over contracted work, because the
power-down process was not within the scope of work Qualcomm
had entrusted to TransPower. True: Qualcomm directed
TransPower to observe the power-down process. And it asked
TransPower to confirm that TransPower was satisfied with
Qualcomm’s performance of the power-down process.
Qualcomm nonetheless stopped short of offering — and
TransPower never agreed — that TransPower take
responsibility for actually performing the power-down process.
Nor is it enough here that the power-down process was a
necessary precondition for TransPower’s work, or that both the
power-down process and TransPower’s work were essential
components of a single larger job. Instead, Qualcomm’s
performance of the power-down process implicates a retained
control duty only to the extent that performance actually
resulted in retained control over the work Qualcomm did
entrust to TransPower: the inspection of the main cogen
circuit.8
8
As we determined above, Qualcomm ceased performing
the power-down process and turned over control of the worksite
well before Sandoval’s injury. This case does not present, and
thus we do not address, the issue of a hirer performing
noncontract work and the contractor performing contracted
work at the same time. (See, e.g., Tverberg II, supra, 202
26
SANDOVAL v. QUALCOMM INCORPORATED
Opinion of the Court by Cuéllar, J.
Although Qualcomm’s performance of the power-down
process arguably limited TransPower’s own freedom to power
down additional circuits during its inspection, Sandoval’s
Hooker claim on this basis still fails to establish that Qualcomm
retained control. To wit: On the evidence here, Qualcomm did
not retain control over the inspection of the main cogen circuit
merely by keeping certain other circuits live. Qualcomm’s
creation of this condition at the worksite imposed too little a
degree of control over TransPower’s manner of performing the
inspection. Even if Qualcomm could be said to have conveyed
an expectation that TransPower perform its work in the
presence of live circuits, TransPower was aware of and had
ample freedom within the scope of its entrusted work to
accommodate the presence of the live circuits effectively in its
own manner, particularly since they were safely covered by
bolted-on protective panels and not relevant to TransPower’s
inspection. Qualcomm did not retain control over the inspection
merely by declining to shut down these circuits or to give
TransPower the authority to do so. (See Padilla, supra, 166
Cal.App.4th at p. 671 [finding that hirer did not retain control
by expecting contractor to work in presence of pressurized water
pipe where hirer disclosed the pipe’s condition and contractor
had ample freedom to perform its work in its own
manner without contacting the pressurized pipe].) It is not
enough to say that the presence of live circuits pertained to
“safety conditions at the worksite.” Under the circumstances
here, Qualcomm’s control over what was and what was not
Cal.App.4th at pp. 1442–1443 [hirer (through another
subcontractor) performing bollard hole work at same time
plaintiff contractor performed canopy construction work].)
27
SANDOVAL v. QUALCOMM INCORPORATED
Opinion of the Court by Cuéllar, J.
powered down did not constitute retained control over the
contracted work.
Qualcomm may have had authority — by virtue of
performing the power-down process or otherwise — to require
specific precautions during the inspection, but even if so,
Qualcomm did not “actually exercise” that authority. Even
assuming that Qualcomm retained control9 by retaining the
authority to require or provide such precautions — e.g.,
supervision, a personal warning for Sandoval, arc flash
protection suits, barricades, and/or additional warning
signage — TransPower remained entirely free to implement (or
not) any of these precautions in its own manner, issues over
which Qualcomm exerted no influence. Although Sandoval
argues that Qualcomm’s performance of the power-down process
gave rise to a “duty” on Qualcomm’s part to take these
precautions, he does not argue — nor is there any indication in
the evidence — that Qualcomm’s performance of the power-
down process induced TransPower’s failure to take any of these
precautions itself. Likewise, that Qualcomm may have
previously supervised TransPower’s work does not establish, in
this case, that Qualcomm induced TransPower’s reliance on
Qualcomm supervision. Sharghi’s uncontradicted testimony
established that the reason TransPower did not request or wait
for Qualcomm’s supervision was that Sharghi felt “in charge,”
“knew what [he was] doing,” and didn’t “need” a monitor. That
Qualcomm’s employees may have been trained to provide
9
Given this assumption, we decline to resolve whether the
doctrines of waiver or invited error preclude Qualcomm from
contesting that it retained control over at least some parts of the
inspection.
28
SANDOVAL v. QUALCOMM INCORPORATED
Opinion of the Court by Cuéllar, J.
personal warnings to everyone in the room, or that Qualcomm’s
managers and experts may have considered such warnings
“critical,” does not establish that Qualcomm induced
TransPower’s reliance on Qualcomm to provide them.
(Sandoval, supra, 28 Cal.App.5th at p. 418.) Substantial
evidence does not support the conclusion that Qualcomm
actually exercised its retained control with regard to any of
these precautions.
Qualcomm did take one critical precaution, though
Sandoval contends it was insufficient: Qualcomm left the
bolted-on protective covers over all of the live circuits. But even
if Qualcomm could be said to have retained and actually
exercised control over the inspection by implementing this
precaution, there is no evidence that Qualcomm thereby
“affirmatively contributed” to Sandoval’s injury. Qualcomm’s
decision to leave bolted-on protective covers in place certainly
did not induce TransPower’s decision to open them. Nor does
the evidence suggest that Qualcomm otherwise induced that
decision by, for instance, misrepresenting to TransPower the
live condition of the GF-5 circuit. Qualcomm merely failed to
prevent TransPower from opening the back GF-5 panel.
Substantial evidence thus does not support the conclusion that
Qualcomm affirmatively contributed to Sandoval’s injury
through any exercise of control over the bolted-on protective
panels.
In this situation, Qualcomm owed Sandoval no injury-
prevention tort duty. By turning over control of the worksite,
Qualcomm presumptively delegated to TransPower any
preexisting duties Qualcomm otherwise owed Sandoval. As
noted above, this case does not fall within the concealed hazards
exception to Privette’s general bar to hirer liability. Nor does
29
SANDOVAL v. QUALCOMM INCORPORATED
Opinion of the Court by Cuéllar, J.
any substantial evidence support application of the retained
control exception. Qualcomm is therefore entitled to judgment
notwithstanding the verdict.
D.
Complex tort law concepts like the retained control
exception to the Privette doctrine ultimately get explained to
juries by way of standardized pattern jury instructions. This
case raised the question of whether the CACI No. 1009B pattern
jury instruction adequately instructs juries on the necessary
elements of a Hooker claim. It does not.
The pattern version of CACI No. 1009B provides: “[Name
of plaintiff] claims that [he/she/nonbinary pronoun] was harmed
by an unsafe condition while employed by [name of plaintiff’s
employer] and working on [name of defendant]’s property. To
establish this claim, [name of plaintiff] must prove all of the
following: [¶] 1. That [name of defendant] [owned/leased/
occupied/controlled] the property; [¶] 2. That [name of
defendant] retained control over safety conditions at the
worksite; [¶] 3. That [name of defendant] negligently exercised
[his/her/nonbinary pronoun/its] retained control over safety
conditions by [specify alleged negligent acts or omissions]; [¶] 4.
That [name of plaintiff] was harmed; and [¶] 5. That [name of
defendant]’s negligent exercise of [his/her/nonbinary pronoun/
its] retained control over safety conditions was a substantial
factor in causing [name of plaintiff]’s harm.”10
10
The trial court in this case gave a modified version of the
CACI No. 1009B instruction as follows: “Martin Sandoval
claims that he was harmed by an unsafe condition while
employed by ROS Electrical and working on Qualcomm’s
30
SANDOVAL v. QUALCOMM INCORPORATED
Opinion of the Court by Cuéllar, J.
We observe at the outset that the pattern instruction
improperly mixes the Privette exceptions we recognized in
Kinsman and Hooker. It does so by including as an element of
the Hooker theory that the defendant owned or controlled the
property on which the incident occurred. Although the
concealed hazards exception we elucidated in Kinsman applied
only to landowner-hirers, no such limit governs the retained
control exception we recognized in Hooker.
To establish a duty under Hooker, a plaintiff must
establish (1) that the hirer retained control over the manner of
performance of some part of the work entrusted to the
contractor; and (2) that the hirer actually exercised its retained
control over that work in a way that affirmatively contributed
to the plaintiff’s injury. The CACI instruction need not replicate
these exact words, but its instructions must be consistent with
the meaning of these terms as we have clarified them in this
opinion. Whether the hirer “retained control over safety
conditions at the worksite” (CACI No. 1009B) does not properly
capture whether the hirer retained control over the manner of
performance of some part of the work entrusted to the
contractor. Whether the hirer “negligently exercised [its]
retained control over safety conditions” (ibid.) does not properly
capture whether the hirer actually exercised its retained
property. To establish this claim, Martin Sandoval must prove
all of the following: [¶] 1. That Qualcomm owned the property;
[¶] 2. That Qualcomm retained control over safety conditions at
the worksite; [¶] 3. That Qualcomm negligently exercised its
retained control over safety conditions concerning the main co-
gen cabinet inspection; [¶] 4. That Martin Sandoval was
harmed; and [¶] 5. That Qualcomm’s negligent exercise of its
retained control over safety conditions was a substantial factor
in causing Martin Sandoval’s harm.”
31
SANDOVAL v. QUALCOMM INCORPORATED
Opinion of the Court by Cuéllar, J.
control. And whether the hirer’s “negligent exercise of [its]
retained control over safety conditions was a substantial factor
in causing [plaintiff]’s harm” (ibid.) does not properly capture
whether the hirer’s exercise of retained control affirmatively
contributed to the plaintiff’s injury.11 The Judicial Council and
its Advisory Committee on Civil Jury Instructions should
update this instruction with suitable language consistent with
this opinion.
III.
The plaintiff sustained atrocious injuries that could have
been prevented. But a rule subjecting Qualcomm to tort liability
merely for failing to prevent those injuries could easily lead to
more, rather than fewer, injuries in future cases. For instance,
making the hirer liable under the circumstances presented here
might incentivize hirers to impose and enforce requirements on
their contractors that — owing to the hirer’s more limited
expertise and experience — actually impede the contractor’s
ability to do the job safely. Or it might discourage hirers from
engaging more expert contractors at all.
We retain here the balance struck in our past decisions
recognizing a rule that hirers who fully and effectively delegate
work to a contractor owe no tort duty to that contractor’s
workers. The same rule also provides that hirers may be liable
for a failure to use reasonable care when they withhold critical
information or actually exercise retained control in a way that
affirmatively contributes to the injury. Applying this rule here,
11
We leave it to the Judicial Council to determine how to
convey the distinct negligence and causation elements of the
cause of action, once it has revised the duty element in
accordance with this opinion.
32
SANDOVAL v. QUALCOMM INCORPORATED
Opinion of the Court by Cuéllar, J.
we conclude that Qualcomm owed Sandoval no tort duty. We
reverse the judgment of the Court of Appeal and remand with
instructions to remand to the trial court to enter judgment for
Qualcomm notwithstanding the verdict.
CUÉLLAR, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
JENKINS, J.
FEUER, J.*
_______________________
* Associate Justice of the Court of Appeal, Second Appellate
District, Division Seven, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
33
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Sandoval v. Qualcomm Incorporated
__________________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 28 Cal.App.5th 381Review Granted (unpublished)
Rehearing Granted
__________________________________________________________________
Opinion No. S252796
Date Filed: September 9, 2021
__________________________________________________________________
Court: Superior
County: San Diego
Judge: Joan Marie Lewis
__________________________________________________________________
Counsel:
Thon Beck Vanni Callahan & Powell, Daniel P. Powell, Michael P.
O’Connor; Esner, Chang & Boyer and Stuart B. Esner for Plaintiff and
Appellant.
Alan Charles Dell’Ario for Consumer Attorneys of California as Amicus
Curaie on behalf of Plaintiff and Appellant.
Horvitz & Levy, Stephen E. Norris, Jason R. Litt, Joshua C. McDaniel;
Wingert Grebing Brubaker & Juskie, Alan K. Brubaker and Colin H.
Walshok for Defendant and Appellant.
California Appellate Law Group, Katy Graham, Greg Wolff; U.S.
Chamber Litigation Center and Janet Galeria for the Chamber of
Commerce of the United States, the American Property Casualty
Insurance Association and the Civil Justice Association of California as
Amici Curiae on behalf of Defendant and Appellant.
Lewis Brisbois Bisgaard & Smith, Lann G. McIntyre and Andrew D.
Bluth for Western States Petroleum Association as Amicus Curiae on
behalf of Defendant and Appellant.
June Babiracki Barlow and Neil Kalin for California Association of
Realtors as Amicus Curiae on behalf of Defendant and Appellant.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Joshua C. McDaniel
Horvitz & Levy LLP
3601 W. Olive Ave., 8th Floor
Burbank, CA 91505
(818) 995-0800
Stuart B. Esner
Esner, Chang & Boyer
234 E. Colorado Blvd., Suite 975
Pasadena, CA 91101
(626) 535-9860
Daniel P. Powell
Thon Beck Vanni Callahan & Powell
1100 E. Green St.
Pasadena, CA 91106
(626) 795-8333