This case was last updated from Los Angeles County Superior Courts on 10/14/2020 at 12:01:25 (UTC).

ISMAEL TORRES JR ET AL VS DESIGN GROUP FACILITY SOLUTIONS IN

Case Summary

On 01/22/2016 ISMAEL TORRES JR filed a Personal Injury - Other Personal Injury lawsuit against DESIGN GROUP FACILITY SOLUTIONS IN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MAURICE A. LEITER, PATRICIA D. NIETO and BENNY C. OSORIO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8065

  • Filing Date:

    01/22/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MAURICE A. LEITER

PATRICIA D. NIETO

BENNY C. OSORIO

 

Party Details

Plaintiff, Petitioner and Appellant

TORRES ISMAEL. JR

Guardian Ad Litems and Appellants

TORRES ISMAEL. SR

TORRES ISMAEL. JR

TORRES ISMAEL SR.

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

BARRY WEHMILLER DESIGN GROUP

TRISTAR SKYLIGHTS

WATSON PARTNERS LP

DESIGN GROUP FACILITY SOLUTIONS INC

SANTA MONICA SEAFOOD COMPANY

C & L REFRIGERATION CORPORATION

WATSON LAND COMPANY

SMITH INDUSTRIES INC.

DOES 1 THROUGH 200 INCLUSIVE

POTTER ROEMER LLC

DESIGN GROUP FACILITY SOLUTIONS INC.

WATSON PARTNERS L.P.

POTTER ROEMER LLC DBA TRISTAR SKYLIGHTS

BRISTOL FIBERLITE INDUSTRIES INC.= DOE2

SKYLIGHTS TRISTAR

H.J. VAST INC.

SMITH INDUSTRIES INC. DBA TRISTAR SKYLIGHTS DBA TRISTAR SKYLIGHTS

Respondent, Cross Defendant and Not Classified By Court

SMITH INDUSTRIES INC. DBA TRISTAR SKYLIGHTS DBA TRISTAR SKYLIGHTS

54 More Parties Available

Attorney/Law Firm Details

Respondent, Appellant and Plaintiff Attorneys

JOHNSON DANIEL WALTER

LAW OFFICES OF BERGLUND & JOHNSON

Plaintiff and Petitioner Attorney

LAW OFFICES OF BERGLUND & JOHNSON

Defendant, Respondent and Cross Plaintiff Attorneys

SCHILLER MARY ANN ESQ.

ENDRES RICHARD S. ESQ.

SUTTON MICHAEL S. ESQ.

HENKE ROBERT E. ESQ.

BAZAZ GINA ESQ.

GUERRERO ALEX D. ESQ.

DAVILA NICHOLAS W. ESQ.

FAENZA CHRISTOPHER E. ESQ.

WINDHAM TIMOTHY RAY ESQ.

CHILDS MARY ESQ.

DAVILA NICHOLAS WILLIAM

SUTTON MICHAEL SCOTT ESQ.

JOHNSON DANIEL WALTER

SCHILLER MARY ANN

Defendant, Cross Plaintiff and Cross Defendant Attorneys

SUTTON MICHAEL S. ESQ.

HENKE ROBERT E. ESQ.

BAZAZ GINA ESQ.

FAENZA CHRISTOPHER E. ESQ.

WINDHAM TIMOTHY RAY ESQ.

SCHILLER MARY ANN

SCHILLER MARY ANN ANN ESQ.

Respondent, Cross Plaintiff and Cross Defendant Attorneys

SCHILLER MARY ANN

SCHILLER MARY ANN ANN ESQ.

CHILDS MARY

Other Attorneys

BROWN CHARLES H. II ESQ

HENKE ROBERT ELDON

DAVILA NICHOLAS WILLIAM ESQ.

21 More Attorneys Available

 

Court Documents

Judgment

3/12/2019: Judgment

Declaration - DECLARATION DECLARATION OF DANIEL W. JOHNSON

3/11/2019: Declaration - DECLARATION DECLARATION OF DANIEL W. JOHNSON

Appeal - Remittitur - Appeal Dismissed - Appeal - Remittitur - Appeal Dismissed B294220

3/5/2019: Appeal - Remittitur - Appeal Dismissed - Appeal - Remittitur - Appeal Dismissed B294220

Notice of Ruling

1/28/2019: Notice of Ruling

Appeal - Ntc Designating Record of Appeal APP-003/010/103

1/31/2019: Appeal - Ntc Designating Record of Appeal APP-003/010/103

Jury Instructions

1/17/2019: Jury Instructions

Motion to Bifurcate - Motion to Bifurcate and Damages

12/28/2018: Motion to Bifurcate - Motion to Bifurcate and Damages

Notice - NOTICE OF ENTRY OF JUDGMENT OR ORDER

3/21/2019: Notice - NOTICE OF ENTRY OF JUDGMENT OR ORDER

Motion in Limine - Motion in Limine No. 8 To Preclude Plaintiffs Use of Irrelevant and Prejudicial Evidence or Argument at Trial Regarding the "Reptile Theory"

12/27/2018: Motion in Limine - Motion in Limine No. 8 To Preclude Plaintiffs Use of Irrelevant and Prejudicial Evidence or Argument at Trial Regarding the "Reptile Theory"

Motion in Limine - Motion in Limine No. 15 To Preclude Double Recovery of Workers Compensation Benefits

12/27/2018: Motion in Limine - Motion in Limine No. 15 To Preclude Double Recovery of Workers Compensation Benefits

Opposition - Opposition to Pf's MIL#11

1/8/2019: Opposition - Opposition to Pf's MIL#11

Declaration - Declaration Re Plaintiff's Motion in Limine No. 16

12/27/2018: Declaration - Declaration Re Plaintiff's Motion in Limine No. 16

Motion in Limine - Motion in Limine No. 2 To exclude any and all evidence Re Osha Citations issued to C&L Refrigeration Corporation

12/27/2018: Motion in Limine - Motion in Limine No. 2 To exclude any and all evidence Re Osha Citations issued to C&L Refrigeration Corporation

Legacy Document - LEGACY DOCUMENT TYPE: Cross-Compl fld - Summons Issued

9/7/2016: Legacy Document - LEGACY DOCUMENT TYPE: Cross-Compl fld - Summons Issued

Notice of Lien

10/12/2016: Notice of Lien

Legacy Document - LEGACY DOCUMENT TYPE: Stipulation and Order

2/15/2018: Legacy Document - LEGACY DOCUMENT TYPE: Stipulation and Order

Opposition -

8/30/2018: Opposition -

520 More Documents Available

 

Docket Entries

  • 05/17/2021
  • Hearing05/17/2021 at 09:00 AM in Department A at 200 West Compton Blvd., Compton, CA 90220; Jury Trial

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  • 05/10/2021
  • Hearing05/10/2021 at 09:00 AM in Department A at 200 West Compton Blvd., Compton, CA 90220; Final Status Conference

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  • 10/13/2020
  • DocketNotice of Ruling; Filed by ISMAEL JR. TORRES (Plaintiff)

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  • 10/08/2020
  • Docketat 09:00 AM in Department A, Maurice A. Leiter, Presiding; Hearing on Motion to Strike (Plaintiff's Motion to Strike Defendant, Design Group Facility Solutions, Inc.'s Memorandum of Costs, or, in the Alternative, to Tax Costs) - Held

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  • 10/08/2020
  • DocketMinute Order ( (Hearing on Motion to Strike Plaintiff's Motion to Strike Defe...)); Filed by Clerk

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  • 10/08/2020
  • DocketCertificate of Mailing for ((Hearing on Motion to Strike Plaintiff's Motion to Strike Defe...) of 10/08/2020); Filed by Clerk

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  • 09/25/2020
  • DocketAppeal - Ntc Designating Record of Appeal APP-003/010/103 ("U"); Filed by Ismael., Jr Torres (Appellant)

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  • 09/24/2020
  • DocketDesign Group Opposition to Plaintiff's Motion to Strike its Memorandum of Costs, or in the Alternative, to Tax Costs; Filed by DESIGN GROUP FACILITY SOLUTIONS, INC. (Defendant)

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  • 09/22/2020
  • DocketNotice of Filing of Notice of Appeal (Unlimited Civil) (N.O.A. 9/16/2020 "U"); Filed by Clerk

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  • 09/16/2020
  • DocketAppeal - Notice of Appeal/Cross Appeal Filed ("U"); Filed by Ismael., Jr Torres (Appellant)

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807 More Docket Entries
  • 04/13/2016
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 01/28/2016
  • DocketNOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 01/28/2016
  • DocketNotice of Rejection - Pleadings (Application and order for appointment of guardian ad litem); Filed by Clerk

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  • 01/22/2016
  • DocketCivil Case Cover Sheet; Filed by ISMAEL JR. TORRES (Plaintiff); Ismael., Jr Torres (Plaintiff)

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  • 01/22/2016
  • DocketCOMPLAINT FOR DAMAGES (1) NEGLIGENCE - PERSONAL INJURY; ETC

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  • 01/22/2016
  • DocketComplaint; Filed by Plaintiff/Petitioner

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  • 01/22/2016
  • DocketApplication-Miscellaneous (FOR ISMAEL TORRES,JR. GUARDIAN AD LITEM ); Filed by Attorney for Pltf/Petnr

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  • 01/22/2016
  • DocketComplaint

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  • 01/22/2016
  • DocketComplaint; Filed by ISMAEL JR. TORRES (Plaintiff); Ismael., Jr Torres (Plaintiff)

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  • 01/22/2016
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

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Tentative Rulings

Case Number: BC608065    Hearing Date: October 08, 2020    Dept: A

# 9. Ismael Torres, Jr. v. Design Group Facility Solutions, Inc., et al.

Case No.: BC608065

Matter on calendar for: motion to tax costs

Tentative ruling:

  1. Background

Plaintiff Ismael Torres, Jr., was working for defendant H.J. Vast, Inc. on the roof of a building owned by defendant Santa Monica Seafood Company (“SMS”) when he fell through a skylight, falling 37 feet. Defendant Design Group Facility Solutions, Inc. (“Design Group”) was the general contractor hired by SMS for the construction project where the incident took place. Design Group contracted with defendant C&L Refrigeration Corporation (“C&L”) to install refrigeration systems at the property. C&L contracted with Vast to install electrical components for the refrigeration systems. The property owner is defendant Watson Partners L.P. (“Watson”).

The Court previously granted Design Group’s motion for summary judgment. Design Group subsequently claimed $15,724.18 in costs. Torres now moves to strike Design Group’s costs.

  1. Standard

Code of Civil Procedure § 1032(a)(b) states that a prevailing party is entitled as a matter of right to recover costs in any action or proceeding, unless a statute expressly states otherwise. Code of Civil Procedure § 1033.5(a) lists the costs that are recoverable and includes attorney’s fees when they are authorized by either contract, statute, or law. (C.C.P., § 1033.5(a)(10).)

The memorandum of cost is a verified statement by the party, attorney, or agent that the costs are correct and were necessarily incurred in the case. (Cal. Rules of Court, Rule 3.1700(a)(1).) “If the items appear to be proper charges, the verified memorandum is prima facie evidence that the costs, expenses and services therein listed were necessarily incurred by the defendant, and the burden of showing that an item is not properly chargeable or is unreasonable is upon the [objecting party].” (Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.) “[I]f the correctness of the memorandum is challenged either in whole or in part by the affidavit or other evidence of the contesting party, the burden is then on the party claiming the costs and disbursements to show that the items charged were for matters necessarily relevant and material to the issues involved in the action.” (Id. at 699.)

Per Code of Civil Procedure § 1033.5(c) provides: “(1) Costs are allowable if incurred, whether or not paid. (2) Allowable costs shall be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation. (3) Allowable costs shall be reasonable in amount. (4) Items not mention in this section . . . may be allowed . . . in the Court’s discretion.” (C.C.P., § 1033.5(c)(4).)

  1. Analysis

    The Court initially reviewed these costs on September 13, 2018, when Torres challenged Watson and SMS’s costs. In ruling on Watson and SMS’s costs, the Court found Torres’ unity of interest argument to be unpersuasive. The Court subsequently denied Torres’s motion to tax Design Group’s costs on January 28, 2019.

Before Code of Civil Procedure § 1032 was amended in 1986, it contained language allowing a Court to deny costs to a prevailing party if that party was “united in interest” with non-prevailing parties. (Charton v. Harkey (2016) 247 Cal.App.4th 730, 740.) The 1986 amendment removed the “unity of interest” language. (Id. at 740–741.) As a result, a trial court no longer has the discretion to deny costs to a prevailing party when it shares a unity of interest with a non-prevailing party. (Id. at 741.) Torres’s related argument, that Design Group seeks costs that were claimed by SMS and Watson, is likewise unpersuasive; the awarded costs were reduced to address that issue.

Further, Torres’s motion does not address which specific items should be reduced as unreasonable. This fails to meet Torres’s burden.

  1. Ruling

    The motion to tax costs is denied.

    Next dates:

    Notice:

Case Number: BC608065    Hearing Date: September 01, 2020    Dept: A

# 15. Ismael Torres, Jr. v. Design Group Facility Solutions, Inc., et al.

Case No.: BC608065

Matter on calendar for: motion to be relieved as counsel

Tentative ruling:

  1. Background

Plaintiff Ismael Torres, Jr., was working for defendant H.J. Vast, Inc. on the roof of a building owned by defendant Santa Monica Seafood Company (“SMS”) when he fell through a skylight, falling 37 feet. Defendant Design Group Facility Solutions, Inc. (“Design Group”) was the general contractor hired by SMS for the construction project where the incident took place. Design Group contracted with defendant C&L Refrigeration Corporation (“C&L”) to install refrigeration systems at the property. C&L contracted with Vast to install electrical components for the refrigeration systems. The property owner is defendant Watson Partners L.P. (“Watson”).

Attorney Michael Larin of Lynberg and Watkins now moves to withdraw as counsel for Design Group. The motion is unopposed.

  1. Standard

Code of Civil Procedure § 284(2) provides that “[an] attorney in an action or special proceeding may be changed at any time before or after judgment or final determination…upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” Additionally, attorneys seeking to be relieved as counsel must comply with California Rule of Professional Conduct 1.16 in seeking to be relieved.

A motion to be relieved as counsel must comport with California Rules of Court Rule 3.1362. The Rule requires the notice of motion and motion to be on the Judicial Council of California form MC-051, and the accompanying declaration to be on form MC-052. The proposed order must be form MC-053.

A client has the absolute right to discharge his counsel, with or without cause, at any time. (Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App.4th 149, 156.) In contrast, an attorney is limited in when he may withdraw. The California Rules of Professional Conduct allows an attorney to withdraw, if among other things, the client insists on presenting a claim or defense that is not supported by a good faith argument; the client seeks to or insists that his attorney pursue a criminal or fraudulent action; or the client has breached his contract with the attorney. (Cal. Rules of Professional Conduct, rule 1.16.)

Withdrawal is generally permitted unless there is a compelling reason to continue the representation. (Heple v. Kluge (1951) 104 Cal.App.2d 461, 462.) There is a compelling reason when the withdrawal would prejudice the client, the other parties in the action, or a third party. (People v. Prince (1968) 268 Cal.App.2d 398, 406; Linn v. Superior Court in and for Los Angeles County (1926) 79 Cal.App. 721, 725.)

  1. Analysis

    Counsel has submitted the proper forms. Counsel’s declaration states that he was retained solely as appellate counsel and, now that the appeal has been completed, his role in the case has ended. It appears Design Group still has other representation.

  2. Ruling

    The motion to be relieved is granted. The order will be effective when it is served upon Design Group.

    Next dates:

    Notice:

Case Number: BC608065    Hearing Date: July 23, 2020    Dept: A

# 14. Ismael Torres, Jr. v. Design Group Facility Solutions, Inc., et al.

Case No.: BC608065

Matter on calendar for: Motion for Summary Judgment

Tentative ruling:

  1. Background

Plaintiff Ismael Torres, Jr., was working for defendant H.J. Vast, Inc. on the roof of a building owned by defendant Santa Monica Seafood Company (“SMS”) when he fell through a skylight, falling 37 feet. Defendant Design Group Facility Solutions, Inc. (“Design Group”) was the general contractor hired by SMS for the construction project where the incident took place. Design Group contracted with defendant C&L Refrigeration Corporation (“C&L”) to install refrigeration systems at the property. C&L contracted with Vast to install electrical components for the refrigeration systems. The property owner is defendant Watson Partners L.P. (“Watson”).

The operative First Amended Complaint (“FAC”) alleges:

  1. Negligence–personal injury;

  2. Failure to provide a safe place to work;

  3. Strict product liability resulting in personal injury;

  4. Negligent product liability;

  5. Breach of express and implied warranty; and

  6. Claim for punitive damages.

The Court denied Design Group’s original motion for summary judgment on September 13, 2018. Design Group then moved for reconsideration, relying on new depositions that were taken after the original motion was filed, but before the hearing. The Court erroneously allowed the motion for reconsideration to proceed on 10-days’ notice, under Code of Civil Procedure § 1008(a); the Court then granted the summary judgment motion. The Court of Appeal reversed, finding the Court should have required 75-days’ notice for a renewed motion under Code of Civil Procedure § 1008(b) or § 437c(f)(2). Torres v. Design Group Facility Solutions, Inc. (2020) 45 Cal.App.5th 239, 243.

Design Group now renews its motion for summary judgment. Torres opposes.

For the reasons set forth below, the Court grants the motion.

  1. Standard

A “motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (C.C.P., § 437c(c).) "A moving party need only show it is entitled to the benefit of a presumption affecting the burden of producing evidence in order to shift the burden of proof to the opposing party to show there are triable issues of fact. [Security Pac. Nat. Bank v. Associated Motor Sales (1980) 106 Cal.App.3d 171, 178–179.]" (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 644.) Once the moving party has met its burden of demonstrating that there is no triable issue as to any material fact, the opposing party cannot rest upon the mere allegations of the pleadings but must present admissible evidence showing that there is a genuine issue for trial. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 844.) “In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom… and must view such evidence… in the light most favorable to the opposing party.” (Id. at 844-845; C.C.P., § 437c(p)(2).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (C.C.P., § 437c(f)(1).)

  1. Analysis

    1. New or different facts

Design Group filed its original motion for summary judgment on March 22, 2018; it was heard on September 13, 2018. In the months between filing and hearing the parties took several additional depositions: (1) Mike Annesley, the safety coordinator at C&L, taken on August 14, 2018; (2) Raul Hernandez, project manager for Vast, taken on June 12 and July 2, 2018; (3) Michael Evanchock, a co-worker of Torres’s and employee of Vast, taken on July 19, 2018; and (4) an additional deposition of Torres, taken April 25, 2018. Design Group argues these depositions contain new or different facts that are relevant to the relationships among, and actions of, the parties. Design Group included these depositions in its prior motion for reconsideration.

In the instant motion, Torres argues these depositions do not represent new facts because they were discovered after the original motion was filed, but before it was heard. But once Design Group filed its original motion, it could not add new facts to that motion or its separate statement before the hearing. While it might have withdrawn or continued its original motion and amended its separate statement to include the additional evidence, the Court is unaware of any authority requiring it to do so, and Torres does not provide any. Nor is the Court aware of authority that would preclude Design Group from renewing its motion for summary judgment based on evidence uncovered after the first motion was filed, but before the hearing.

The Court is satisfied that the additional evidence included in the renewed motion for summary judgment are “newly discovered facts” supporting the issues reasserted in this motion. (CCP §§ 437c(f)(2), 1008(b).)

    1. Judicial notice and evidentiary objections

Design Group requests judicial notice of the FAC, rulings from this Court and the Court of Appeal, and information from the California Contractors State License Board. The request is granted. (Evid. Code, § 452(d) and (h).)

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (C.C.P., § 437c(q).) Design Group objects to the declarations of Torres’s experts and counsel; these objections were not material to the Court’s decision on this motion. Objections 215–219, which target certain deposition excerpts, are overruled.

    1. Privette Doctrine

The California Supreme Court has, in a series of cases starting with Privette v. Superior Court (1993) 5 Cal.4th 689, “delineated the circumstances under which the employee of an independent contractor who is injured on the job may sue the hirer of that contractor.” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664; Privette, supra, 5 Cal.4th 689; Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253; Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235; Hooker v. Department of Transportation (2002) 27 Cal.4th 198; Seabright Insurance Company v. US Airways, Inc. (2011) 52 Cal.4th 590.)

Generally, employees of an independent contractor cannot sue the party that hired the contractor to do the work. (Seabright, supra, 52 Cal.4th at 594, citing Privette, supra, generally.) When a party hires an independent contractor it implicitly delegates to the contractor “any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace . . . .” (Ibid.) This “includes any tort law duty the hirer owes to the contractor’s employees to comply with applicable statutory or regulatory safety requirements.” (Ibid.) The hirer usually “has no obligation to specify precautions an independent hired contractor should take for the safety of the contractor’s employees.” (Kinsman, supra, 37 Cal.4th at 268.) Further, retaining control is insufficient to extend liability unless the “hirer’s exercise of retained control affirmatively contributed to the employee’s injuries.” (Hooker, supra, 27 Cal.4th at 202.)

“An affirmative contribution may take the form of directing the contractor about the manner or performance of the work, directing that the work be done by a particular mode, or actively participating in how the job is done. [Citation.]” (Khosh v. Staples Construction Co., Inc. (2016) 4 Cal.App.5th 712, 718.) In certain circumstances omissions may lead to affirmative contribution, such as promising to undertake a certain safety measure but then negligently failing to do so. (Ibid.) However, “[a] hirer’s failure to correct an unsafe condition, by itself, does not establish an affirmative contribution. [Hooker, supra, 27 Cal.4th at 215.]” (Ibid.) Further, a general promise to be responsible for all site safety measures is insufficient; it does not constitute a “specific promise to undertake a particular safety measure. [Citation.]” (Ibid.)

    1. Design Group’s initial burden

Design Group argues it designated control to C&L and that it did not affirmatively contribute to Torres’s injury. The facts it provides include the following:

Design Group’s evidence satisfies its initial burden of showing it delegated control over the site to C&L, did not retain control, and did not take any actions that affirmatively contributed to Torres’s injury. The burden shifts to Torres to show a triable issue of material fact.

    1. Torres’s burden

Torres argues Design Group retained control by establishing a walkway and checking its delineators, leading to his injury. He offers the testimony of Design Group’s Site Construction Manager Martin Studley, who stated:

Studley also testified:

To avoid the Privette shield, Torres must show a triable issue of material fact as to both retained control and affirmative contribution. (Hooker, supra, 27 Cal. 4th at 202.) Torres’ evidence does not create a triable issue of fact as to whether Design Group retained control either generally or over where the accident occurred. It is undisputed that responsibility for enacting the site safety plan was delegated to C&L. Vast operated according to C&L’s safety plans, and Vast was working outside the area demarcated by C&L. Vast did not make safety requests to Design Group. Design Group did not instruct Vast to work in the specific area at the time of the injury, nor is there evidence it retained control over markings for the delineated path near where the injury occurred.

Nor does Torres’ evidence show a triable issue as to whether Design Group affirmatively contributed to Torres’ injury. At most, that evidence may show Design Group was aware of an unsafe condition. But there is no evidence that Design Group undertook to establish or maintain a pathway on the east side of the roof, or that it made a “specific promise to undertake a particular safety measure. [Citation.]” (Hooker, supra, 27 Cal.4th at 215.) As the court in Khosh held, “[a] hirer’s failure to correct an unsafe condition, by itself, does not establish an affirmative contribution. [Id.]” (Khosh, supra, 4 Cal.App.5th at 718.)

Hooker is instructive. The California Department of Transportation (“Caltrans”) had supervisory authority over a job site to construct an overpass. Outriggers on cranes on the jobsite needed to be retracted to allow other vehicles to pass, but then had to be re-extended for the cranes to be operated safely. Hooker attempted to operate the crane without re-extending the outriggers. The crane tipped over and Hooker was killed. (Hooker, supra, 27 Cal.4th at 202.) The California Supreme Court held that Caltrans, by permitting the crane to be operated while vehicles used the overpass, did not affirmatively contribute to the fatal injury: “There was, at most, evidence that Caltrans’s safety personnel were aware of an unsafe practice and failed to exercise the authority they retained to correct it.” (Id. at 215.)

Torres argues this case is similar to Tverberg v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439. In Tverberg the subcontractor asked the general contractor to cover bollard holes on the construction site, but the general contractor failed to do so, determining that such action was unnecessary. (Id. at 1447–1448.) Here, as noted, Vast did not request safety precautions from Design Group.

Torres also provides evidence that Design Group installed anchor points for carpenter subcontractors. (This evidence was not submitted in opposition to the first summary judgment motion.) Anchor points are tie-off points that a worker, wearing a harness, may connect to, preventing a fall.

But there is no evidence that Torres’ injury was caused by a faulty anchor point attributable to Design Group; this evidence does not create a triable issue as to whether Design Group affirmatively contributed to the injury Torres suffered.

  1. Ruling

    The motion for summary judgment is granted.

    Next dates:

    Notice: