Sanchez v. Alston Construction Co. CA2/2 ( 2022 )

Filed 6/24/22 Sanchez v. Alston Construction Co. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MARIA DEL CARMEN REYES B309232
SANCHEZ, Individually and as
Personal Representative, etc., (Los Angeles County
Super. Ct. No.
Plaintiff and Appellant,
BC670915)
v.
ALSTON CONSTRUCTION
COMPANY, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Olivia Rosales, Judge. Affirmed.
Greenberg & Ruby, David H. Greenberg, Emily A. Ruby; Gusdorff
Law, Janet Gusdorff; The Farias Firm and James G. Farias for Plaintiff
and Appellant.
Friedenthal, Heffernan & Brown, Daniel Friedenthal, Jay D.
Brown, James Lee; Ropers, Majeski, Terry Anastassiou and Maureen
C. O’Hara for Defendant and Respondent.
While working on a roof at a construction site, Leonel Carrasco
Torres fell through a skylight and was severely injured. His employer,
KML Services, Inc. (KML) was a subcontractor on the job. Torres and
his wife Maria Del Carmen Reyes Sanchez filed a personal injury suit.
The named defendants included the general contractor, Alston
Construction Company, Inc. (Alston). The trial court granted Alston
summary judgment based on the Privette doctrine (Privette v. Superior
Court (1993) 5 Cal.4th 689), which holds a hirer of an independent
contractor is typically not liable for contractor’s negligence. (Id. at pp.
691–692.) Plaintiffs timely appealed. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Alston is a construction general contractor. Alston acts solely in
a managerial capacity and hires independent contractors to perform
the actual construction work.
In 2015, Alston contracted with PanCal 11525 Shoemaker LLC
(PanCal) to alter an existing building and construct a parking lot for
FedEx Ground Package System, Inc. (FedEx Project). Alston
contracted with AMPCO Contracting, Inc. (AMPCO) to demolish
existing structures and pavement. In turn, AMPCO hired KML to
remove asbestos from the structures before the demolition began.
The Alston/AMPCO agreement contained a set of rules related to
worksite safety, among them Alston’s “Site Specific Safety Plan.” The
plan expressly delegated worksite safety, including “safety training and
equipment” and “[f]all prevention and/or protection” to AMPCO and its
lower-tiered subcontractors. The plan also required subcontractors to
“perform and document pre-task planning to identify any hazards
related to their work.” AMPCO understood and agreed that it was
responsible for ensuring that its lower-tiered contractors comply with
the plan. The AMPCO/KML agreement referenced and expressly
incorporated the Alston/AMPCO agreement, including worksite safety
obligations for lower-tiered contractors. Alston could inspect all
subcontractors’ work and had the right to shut down the FedEx Project
and/or have offending subcontractor employees removed if they were
not complying with safety regulations.
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Alston’s project superintendent, Chuck Gonzalez, was responsible
for general management of the worksite, including worksite safety.
However, Gonzalez “was not responsible for supervising or monitoring
the activities of the independent contractors or their employees.”
Torres was one of the KML workers assisting in the removal of
asbestos from an existing structure. On the morning of Torres’s
accident, project superintendent Gonzalez conducted a tailgate safety
meeting before work began. Among the attendees were Torres and
KML’s foreman. Gonzalez discussed job safety, including fall
protection. He also climbed a ladder to the roof line and “glanced” at
the roof where the asbestos remediation was to occur. Gonzalez then
asked the KML foreman to go up on the roof to locate tie-off points to
anchor workers’ safety harnesses. The foreman climbed the ladder and,
after a minute, stated, “ ‘Everything is good to go.’ ” The safety meeting
concluded, and KML employees began their work. Gonzalez went to
another part of the worksite.
While sweeping debris off the roof, Torres stepped through a
fiberglass skylight. The skylight broke and Torres fell to the cement
slab below. He sustained catastrophic injuries. Torres received
medical care and benefits from KML’s workers’ compensation
insurance.
Torres and Sanchez (plaintiffs) filed a complaint against Alston
and other defendants for negligence and loss of consortium.1
Specifically, plaintiffs alleged Torres’s fall resulted from defendants’
failure “to properly maintain and [sic] the premises.”
1 Torres died during the pendency of this appeal and his wife
Maria Del Carmen Reyes Sanchez was granted leave to substitute in as
plaintiff on the negligence claim. (Code Civ. Proc., § 377.30; Cal. Rules
of Court, rule 8.36(a).) For simplicity, for trial court proceedings we
refer to both parties collectively as “plaintiffs” unless we need to
designate Torres alone by name. Where appropriate in the
“DISCUSSION” section, rather than use “plaintiffs” we refer solely to
“Sanchez” as appearing both in an individual and a representative
capacity in this appeal.
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Alston moved for summary judgment. Alston argued that, as a
general contractor, Alston was not liable for worksite injuries suffered
by an independent contractor’s employee. Alston reasoned it neither
retained control over worksite safety conditions nor negligently
exercised any alleged control that affirmatively contributed to Torres’s
injury.
In opposition, plaintiffs mainly argued that triable issues of fact
existed whether Alston was responsible for worksite safety and for
warning contract workers about the skylight, a concealed hazard.
Plaintiffs added that certain aspects of the Alston/AMPCO and
AMPCO/KML contracts meant that Alston solely retained
responsibility for the FedEx Project. As a result, plaintiffs contended,
worksite safety duties were never successfully delegated to the lower-
tiered contractors. Plaintiffs also alleged Alston was liable for
breaching California Occupational Health and Safety (Cal-OSHA)
regulations.
The trial court granted summary judgment, finding that Torres’s
negligence claim against Alston was barred by the Privette doctrine.
The ruling also disposed of his wife’s loss of consortium claim.
Following entry of judgment, plaintiffs appealed.
DISCUSSION
On appeal, Sanchez contends there are triable issues of fact:
(1) whether Alston presumptively delegated its worksite safety duties
to the lower-tiered contractors or, if Alston did, (2) whether the
“retained control” and “concealed hazard” exceptions to the Privette
doctrine applied, making Alston liable for Torres’s injury. Sanchez also
maintains the Privette doctrine should be abolished as unconstitutional.
I. The Privette Doctrine
“Workers’ compensation ‘ “is the exclusive remedy against an
employer for injury or death of an employee.” [Citation.]’ (Privette,
supra, 5 Cal.4th at p. 697.) In Privette, the Supreme Court held that
‘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
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presumably has calculated into the contract price.” ’ ” (Alvarez v.
Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 640.)
Thus, the so-called Privette doctrine bars an employee of an
independent contractor from recovering damages from the hirer of the
contractor for a worksite injury. (SeaBright Ins. Co. v. US Airways,
Inc. (2011) 52 Cal.4th 590, 594.) In other words, a subcontractor’s
employee injured on the job is generally entitled to no greater damages
than a similarly injured employee of a general contractor. Both
employees are limited to receiving workers’ compensation benefits.
Apart from the workers’ compensation-based rationale
undergirding the Privette doctrine, the Supreme Court has recently
placed greater emphasis on the rationale that 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.” (Sandoval v. Qualcomm Incorporated (2021) 12
Cal.5th 256, 271 (Sandoval).) “Over time, we’ve recast our primary
rationale for the Privette doctrine in terms of delegation rather than
workers’ compensation.” (Id. at p. 270; Gonzalez v. Mathis (2021) 12
Cal.5th 29, 41 [“Our more recent cases emphasize delegation as the key
principle underlying this rule”].) As a result, “[t]here is a strong
presumption under California law that a hirer of an independent
contractor delegates to the contractor all responsibility for workplace
safety.” (Gonzalez, at p. 37.)
II. Exceptions to the Privette doctrine
Nonetheless, there are exceptions to the Privette doctrine. They
apply in situations where the presumption of delegation is overcome:
Under the “retained control” exception, “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.” (Sandoval, supra, 12 Cal.5th at p. 271, citing
Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202
(Hooker).) Under the “concealed hazard” exception, “a landowner-hirer
owes a duty to a contract worker if the hirer fails to disclose to the
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contractor a concealed premises hazard.” (Sandoval, at p. 271, citing
Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664 (Kinsman).)
III. The Privette Presumption and Summary Judgment
“ ‘A defendant moving for summary judgment . . . may
demonstrate that the plaintiff’s cause of action has no merit by showing
that (1) one or more elements of the cause of action cannot be
established, or (2) there is a complete defense to that cause of action.’
{Citation.] [¶] Generally, ‘the party moving for summary judgment
bears an initial burden of production to make a prima facie showing of
the nonexistence of any triable issue of material fact.’ ” (AMN
Healthcare Inc. v. Aya Healthcare Services, Inc. (2018) 28 Cal.App.5th
923, 933–934.) We review the trial court’s grant of summary judgment
de novo. (Id. at p. 934.)
In negligence cases, where an independent contractor’s employee
suffers a worksite injury, the hirer who invokes the Privette doctrine
and moves for summary judgment must present a factual showing for
the doctrine to apply. That factual showing is the hirer employed the
independent contractor for work at the jobsite and the employee was
injured while working at the site. (Alvarez v. Seaside Transportation
Services LLC, supra, 13 Cal.App.5th at p. 644.) Once this factual
showing is made, the presumption of delegation is triggered and the
burden shifts to the plaintiff/employee. If the plaintiff does not raise
triable issues of fact, the defendant/hirer is entitled to summary
judgment. (Alvarez, at p. 646.)
The plaintiff can rebut the presumption of delegation by
presenting evidence making a prima facie showing of a triable issue of
fact in support of one or more exceptions. (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 850–851.)
IV. Alston Made the Requisite Factual Showing for the
Privette Presumption To Apply
Alston established it was entitled to the presumption of
delegation. Alston presented evidence it hired AMPCO, who then hired
Torres’s employer KML for the FedEx Project. Torres was injured
while working on the project. KML’s workers’ compensation insurance
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covered Torres’s injuries. “This evidence was sufficient to establish
that the Privette presumption applied and, therefore, shifted the
burden to plaintiff to raise a triable issue of fact.” (Alvarez v. Seaside
Transportation Services LLC, supra, 13 Cal.App.5th at p. 644.)
Sanchez, however, argues that deficiencies in the Alston/AMPCO
and AMPCO/KML contracts rendered them unenforceable. As a
consequence, according to Sanchez, Alston failed to delegate its
worksite safety duties to the lower-tiered contractors; the presumption
of delegation did not apply.
Sanchez first contends the Alston/AMPCO contract may not have
been timely executed. It is undisputed that both parties signed the
agreement, but the electronic signature line reveals AMPCO signed it
on the date of Torres’s accident. Sanchez maintains this means a
triable issue exists whether the contract was signed after Torres fell,
making the agreement unenforceable. However, Sanchez cannot
speculate on potential untimeliness to create a triable issue of fact.
(Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481 [opposing
party cannot controvert moving party’s evidence by mere speculation or
possibility]; Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th
1001, 1014 [same].) In any event, Sanchez failed to show the
Alston/AMPCO agreement was not binding unless signed by both
parties. (Kaneko v. Okuda (1961) 195 Cal.App.2d 217, 225 [absent “a
showing that a contract is not to be deemed complete unless signed by
all parties, the parties signing may be bound though others have not
signed”].) Moreover, there is no evidence the parties treated the
Alston/AMPCO contract as not being fully consummated between them.
Sanchez also contends the AMPCO/KML contract was
unenforceable because it appeared contingent upon a condition
precedent, a contract with another entity, that never occurred. A
condition precedent may be impliedly waived by conduct. (See Sosin v.
Richardson (1962) 210 Cal.App.2d 258, 264.) Here, the record leaves
no question that when Torres was injured, KML was working as
AMPCO’s subcontractor on the FedEx Project in accordance with their
agreement. Further, AMPCO acknowledged it had complete
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responsibility to ensure KML and other subcontractors complied with
Alston’s safety rules while working on the project. Because the
evidence established the presumptive delegation applied, the burden
shifted to plaintiffs to raise a triable issue of fact.
V. Summary Judgment was Proper
Sanchez argues that even if Alston met its initial burden as the
moving party, they succeeded in raising triable issues of fact in support
of the “retained control” and “concealed hazard” exceptions. Sanchez
also argues Alston breached its nondelegable duties under Cal-OSHA.
A. Plaintiffs Failed to Raise a Triable Issue of
Fact to Support the Retained Control Exception
Under the retained control exception, a hirer is subject to liability
if the hirer retained control over the independent contractor’s work and
exercised that retained control in a way that affirmatively contributed
to the contract worker’s injury. (Sandoval, supra, 12 Cal.5th at p. 271.)
“A hirer ‘retains control’ where it retains a sufficient degree of
authority over the manner of performance of the work entrusted to the
contractor.” (Sandoval, supra, 12 Cal.5th at p. 275.) 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.’ ” (Id. at
p. 276.)
Sanchez seeks to recover under the retained control exception
because Alston “retained and exercised control over worksite safety and
the means and manner in which KML’s employees perform their work.”
It appears Sanchez is relying on the PanCal/Alston contract and the
incorporated Site Specific Plan, which provides that Alston would be
“fully and solely responsible” for worksite safety. Alston’s position as a
worksite manager, however, does not support an inference that Alston
“in fact involve[d] itself [in the contracted work], such as through
direction, participation, or induced reliance.” (Sandoval, supra, 12
Cal.5th at p. 276; Tverberg v. Fillner Construction, Inc. (2012) 202
Cal.App.4th 1439, 1446 [“a hirer is not liable to a contractor or a
contractor’s employee merely because it retains control over safety
8
conditions”].) Nothing in the record indicates that Alston actually
exercised any form of direct control over KML’s work or that Alston
restricted Torres and other KML workers from performing their work
in their own manner. With respect to the roof in particular, Sanchez
offers no evidence that Alston had any discussions or issued any
instructions to KML regarding skylights or roof safety, undertook
responsibility to inspect the roof before KML began work, interfered
with or prohibited any inspections of the roof before work began,
advised KML employees on where or how to tie off their harnesses, or
otherwise how to perform their work on the roof. (See, e.g., Madden v.
Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1276-1277.)
Sanchez also contends Alston exercised retained control over
KML’s work based on the deposition testimony of Chuck Gonzalez,
Alston’s project superintendent. According to Sanchez, Gonzalez
“voluntarily undertook responsibility for inspecting the worksite and
supervising KML’s employees, but failed to identify any of the unsafe
conditions or work practices.” This misstates the evidence. Gonzalez’s
uncontroverted testimony was that he did not “inspect” or handle the
KML equipment to ensure it was safe for KML workers. That was
KML’s responsibility. As for the worksite, Gonzalez testified he asked
the KML foreman to go up on the roof to look for tie-off points for the
workers’ safety harnesses. But Gonzalez did not direct the foreman
concerning the location or installation of the tie-off points, which were
also part of KML’s responsibility. Gonzalez further testified it was
KML’s responsibility to identify all safety hazards on the roof,
including skylights.
Sanchez further asserts Alston affirmatively contributed to
Torres’s injury. She points to what she perceives as Alston’s failure to
undertake certain safety precautions, contrary to the Site Specific
Safety Plan. Among them were Alston’s lack of a pre-project hazard
assessment of the roof and implementation of fall protection rules.
Sanchez also makes much of Alton’s rush to have the work begin before
Gonzalez could distribute Alston’s safety materials to KML employees.
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To be sure, a hirer’s acts or omissions apart from the independent
contractors can be found to affirmatively contribute to a contract
worker’s injury. (Sandoval, supra, 12 Cal.5th at p. 277.) But Sanchez
does not explain how these omissions by Alston affirmatively
contributed to the worksite injury. To the extent Sanchez is asking us
to infer that if Alston had not omitted these safety precautions, the
skylight would have been discovered and Torres’s injuries would not
have occurred, we decline to do so. It is true that courts are to consider
all evidence and inferences reasonably drawn from that evidence in
ruling on a summary judgment motion. (Aguilar v. Atlantic Richfield
Co., supra, 25 Cal.4th at p. 843.) At the same time, those inferences
must be reasonably deducible from the evidence, rather than from mere
speculation, as is the case here. (Waschek v. Department of Motor
Vehicles (1997) 59 Cal.App.4th 640, 647.)
We conclude the evidence in the record cited by Sanchez and
reasonable inferences from that evidence do not create a triable issue of
fact regarding Alston’s exercise of retained delegation and affirmative
contribution, in part because some of the evidence cited by Sanchez
does not say what Sanchez claims it says and because some of her
arguments rest on speculation.
B. Plaintiffs Failed to Raise a Triable Issue of
Fact to Support the Concealed Hazard Exception
Under Kinsman’s “concealed hazard” exception, the hirer is liable
only if (1) it knew, or should have known, of a latent or concealed
preexisting hazardous condition on its property; (2) the independent
contractor did not know and could not reasonably have discovered the
hazardous condition; and (3) the hirer failed to warn the contractor
about the condition. (Kinsman, supra, 37 Cal.4th at p. 675.)
The trial court found the key issue was whether Alston knew or
should have known of the hazardous condition. Even the most cursory
review of the evidence in this case shows plaintiffs cannot satisfy this
element. Nothing in the record suggests Alston knew or should have
known about the skylights. In his deposition, FedEx Project manager
Richard Babcock testified the skylights were never discussed during
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pre-project worksite meetings. He also stated the skylights were not
visible from above or below, and because the structure was 50 years
old, there were no drawings depicting the skylights. Project
superintendent Gonzalez testified he never saw the FedEx Project
before the day of the accident, and he had no prior knowledge of the
skylights on the roof. Further, Gonzalez did go on top of the roof, but
quickly looked at it from the top of the ladder. He never saw the
skylights. And, as we have discussed above in connection with the
Hooker exception, Alston never undertook the responsibility to inspect
the roof for any hazards that could endanger KML employees. That
responsibility was exclusively KML’s.
Sanchez counters the project site plans may have shown the
skylights on the roof, and had Gonzalez been afforded adequate time
for a pre-job inspection, he may have found the skylights. Sanchez
further claims the KML foreman’s notes from the pre-accident meeting
that day expressly warned workers not to step on the skylights.
However, because the plaintiffs’ expert determined the admonition was
not written by the foreman, Sanchez argues a triable issue of fact exists
whether Alston added the admonition later as a “coverup.” Once again,
Sanchez improperly relies on speculation, but also argument and
theory in an attempt to defeat summary judgment. (Wiz Technology,
Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 10–11.)
We conclude Sanchez has failed to raise a triable issue of fact
whether Alston knew or should have known of the skylights, a
concealed hazardous condition.
VI. Cal-OSHA Does Not Impose Nondelegable Duties
Upon Alston
Sanchez additionally contends the Cal-OSHA regulations set
forth in California Code of Regulations, title 8, section 1511,
subdivision (b) (pre-work worksite hazard survey), section 1644 (metal
scaffold), and section 3212, subdivision (a)(1) (floor and roof opening
guards) impose a nondelegable duty on Alston.
Generally, a plaintiff can rely on statutory or regulatory law to
show that a defendant owes the plaintiff a duty of care. (Elsner v.
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Uveges (2004) 34 Cal.4th 915, 927, fn. 8.) However, our Supreme Court
has held that Cal-OSHA regulations do not impose nondelegable duties
upon a hirer of an independent contractor. (SeaBright Ins. Co. v. US
Airways Inc., supra, 52 Cal.4th at p. 594.) In SeaBright, an employee
of an independent contractor hired by an airline to repair a luggage
conveyor was injured when his arm was caught in the conveyor’s
moving parts. (Id. at p. 594.) Here, Sanchez attempts to distinguish
SeaBright by arguing the Supreme Court intended that the hirer
presumptively delegates its tort duties only with respect to the job that
the contract worker was specifically hired to do. According to Sanchez,
unlike the injured worker in SeaBright, Torres was not hired “to
perform work on the skylights, or discuss the skylights with anyone
prior to KML beginning work.” We are not persuaded. The Supreme
Court expressly stated the delegation “includes any tort law duty the
hirer owes to the contractor’s employees to comply with applicable
statutory or regulatory safety requirements.” (SeaBright, at p. 594.)
Thus, there are no triable issues of fact whether nondelegable duties
exist.
VII. Constitutionality of the Privette doctrine
Notwithstanding the two recent California Supreme Court
opinions reaffirming the Privette doctrine, Sanchez contends it is
unconstitutional. We are bound by our high court’s decisions on this
issue and conclude the doctrine is not unconstitutional. (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
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DISPOSITION
The judgment is affirmed. Alston Construction Company, Inc. is
to recover its costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
HOFFSTADT, J.
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