This case was last updated from Los Angeles County Superior Courts on 12/10/2019 at 01:04:38 (UTC).

AMERICAN CLAIMS MANAGEMENT INC VS MEMOS SCAFFOLDING NORWALK

Case Summary

On 10/12/2017 AMERICAN CLAIMS MANAGEMENT INC filed a Personal Injury - Other Personal Injury lawsuit against MEMOS SCAFFOLDING NORWALK. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9342

  • Filing Date:

    10/12/2017

  • 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 Judge

JON R. TAKASUGI

 

Party Details

Plaintiffs and Petitioners

AMERICAN CLAIMS MANAGMENT INC

GUZMAN JOSE LUIS

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

MEMO'S SCAFFOLDING NORWALK INC

DOES 1 TO 20

BERNARD'S CONSTRUCTION GROUP INC

EXCEL PLASTERING INC.

SELMA & VINE HOLLYWOOD LLC

BERNARDS BROS. INC.

EXCEL PLASTERING INC.[DOE 1]

APELDOORN FRANK

BERNARDS BUILDERS INC.

ALTA INTERIORS INC.

PATRIOT EXTERIORS INC.

Defendant and Not Classified By Court

SELMA & VINE HOLLYWOOD LLC

Intervenor and Plaintiff

GUZMAN JOSE LUIS

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

CAPALBO CHRISTOPHER J. ESQ.

VALDEZ FRANK

Defendant and Cross Plaintiff Attorneys

ORLAND JAMES J. ESQ.

ESQ. SCOTT G. PARKS

MENEKSHE AYHAN

ORLAND JAMES JOHN

GILBERT DON

PARKS SCOTT GREGORY

 

Court Documents

Request for Dismissal

5/24/2019: Request for Dismissal

Notice - NOTICE OF ENTRY OF JUDGMENT OR ORDER

8/22/2019: Notice - NOTICE OF ENTRY OF JUDGMENT OR ORDER

FIRST AMENEDED CROSS-COMPLAINT

3/1/2018: FIRST AMENEDED CROSS-COMPLAINT

BERNARDS BROS.INC'S DEMAND FOR JURY TRIAL

3/21/2018: BERNARDS BROS.INC'S DEMAND FOR JURY TRIAL

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -

4/3/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -

ORDER ON COURT FEE WAIVER -

4/3/2018: ORDER ON COURT FEE WAIVER -

SUMMONS -

4/12/2018: SUMMONS -

Proof of Service -

5/21/2018: Proof of Service -

Proof of Service -

5/21/2018: Proof of Service -

Motion for Summary Judgment

12/27/2018: Motion for Summary Judgment

Separate Statement

12/27/2018: Separate Statement

Declaration - Declaration In Support of Motion for Summary Judgment

12/27/2018: Declaration - Declaration In Support of Motion for Summary Judgment

Notice - NOTICE OF RE-SCHEDULING DEFENDANTS IN INTERVENTION BERNARD BROS. INC. AND SELMA & VINE HOLLYWOOD, LLC'S MOTION FOR SUMMARY JUDGMENT

4/8/2019: Notice - NOTICE OF RE-SCHEDULING DEFENDANTS IN INTERVENTION BERNARD BROS. INC. AND SELMA & VINE HOLLYWOOD, LLC'S MOTION FOR SUMMARY JUDGMENT

Proof of Service by Substituted Service

4/30/2019: Proof of Service by Substituted Service

Association of Attorney

5/15/2019: Association of Attorney

PROOF OF SERVICE SUMMONS -

12/27/2017: PROOF OF SERVICE SUMMONS -

NOTICE OF ACTION PURSUANT TO LABOR CODE SECTION 3853

11/21/2017: NOTICE OF ACTION PURSUANT TO LABOR CODE SECTION 3853

SUMMONS -

10/12/2017: SUMMONS -

59 More Documents Available

 

Docket Entries

  • 10/13/2020
  • Hearing10/13/2020 at 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE Dismissal

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  • 04/09/2020
  • Hearing04/09/2020 at 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 03/25/2020
  • Hearing03/25/2020 at 10:00 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 12/05/2019
  • DocketDeclaration (of Scott G. Parks In Support of Motion for Summary Judgment of Defendants In Intervention); Filed by Bernard's Construction Group, Inc. Erroneously Sued As Bernards Bros. Inc. (Defendant); Selma and Vine North Hollywood LLC Erroneously Sued As Selma & Vine Hollywood, LLC. (Defendant)

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  • 12/05/2019
  • DocketSeparate Statement (Of Undisputed Material Facts and Supporting Evidence in Support of Motion for Summary Judgment of Defendant Bernards Bros. Inc.); Filed by Bernard's Construction Group, Inc. Erroneously Sued As Bernards Bros. Inc. (Defendant)

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  • 12/05/2019
  • DocketMemorandum of Points & Authorities (In Support of Motion for Summary Judgment of Defendants In Intervention); Filed by Bernard's Construction Group, Inc. Erroneously Sued As Bernards Bros. Inc. (Defendant); Selma and Vine North Hollywood LLC Erroneously Sued As Selma & Vine Hollywood, LLC. (Defendant)

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  • 12/05/2019
  • DocketNotice of Motion (Motion for Summary Judgment of Defendant's in Intervention); Filed by Bernard's Construction Group, Inc. Erroneously Sued As Bernards Bros. Inc. (Defendant); Selma and Vine North Hollywood LLC Erroneously Sued As Selma & Vine Hollywood, LLC. (Defendant)

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  • 12/05/2019
  • DocketSeparate Statement (of Undisputed Material Facts and Supporting Evidence In Support of Motion for Summary Judgment of Defendants In Intervention); Filed by Bernard's Construction Group, Inc. Erroneously Sued As Bernards Bros. Inc. (Defendant); Selma and Vine North Hollywood LLC Erroneously Sued As Selma & Vine Hollywood, LLC. (Defendant)

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  • 12/05/2019
  • DocketNotice of Motion (and Motion for Summary Judgment of Defendant); Filed by Bernard's Construction Group, Inc. Erroneously Sued As Bernards Bros. Inc. (Defendant)

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  • 12/05/2019
  • DocketDeclaration (of Scott G. Parks In Support of Motion for Summary Judgment of Defendants In Intervention); Filed by Bernard's Construction Group, Inc. Erroneously Sued As Bernards Bros. Inc. (Defendant); Selma and Vine North Hollywood LLC Erroneously Sued As Selma & Vine Hollywood, LLC. (Defendant)

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104 More Docket Entries
  • 02/07/2018
  • DocketANSWER TO COMPLAINT

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  • 12/27/2017
  • DocketProof of Service (not Summons and Complaint); Filed by AMERICAN CLAIMS MANAGMENT INC (Plaintiff)

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  • 12/27/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 12/27/2017
  • DocketProof-Service/Summons; Filed by AMERICAN CLAIMS MANAGMENT INC (Plaintiff)

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  • 12/27/2017
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 11/21/2017
  • DocketNOTICE OF ACTION PURSUANT TO LABOR CODE SECTION 3853

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  • 11/21/2017
  • DocketNotice; Filed by AMERICAN CLAIMS MANAGMENT INC (Plaintiff)

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  • 10/12/2017
  • DocketComplaint; Filed by AMERICAN CLAIMS MANAGMENT INC (Plaintiff)

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  • 10/12/2017
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 10/12/2017
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC679342    Hearing Date: February 25, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AMERICAN CLAIMS MANAGEMENT INC.,

Plaintiff(s),

vs.

MEMO’S SCAFFOLDING NORWALK, ET AL.,

Defendant(s).

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CASE NO: BC679342

[TENTATIVE] ORDER

Dept. 31

1:30 p.m.

February 25, 2020

1. Background Facts

Plaintiff American Claims Management Inc., for Everest National Insurance Company as real party in interest, filed this action against Defendants Memo’s Scaffolding Norwalk, Inc. and Bernard’s Construction Group, Inc. for damages arising out of a workplace accident that injured Jose Luis Guzman.  Jose Luiz Guzman, as plaintiff in intervention, brings claims against Memo’s Scaffolding Norwalk, Inc., Bernard’s Construction Group, Inc., and Selma and Vine North Hollywood LLC for damages arising out of the same accident.

Selma and Vine North Hollywood LLC is the owner of the building under construction. Bernards Bros, Inc. (erroneously sued as Bernard’s Construction Group, Inc.) is the general contractor. Excel Plastering, Inc. was Bernard’s subcontractor for stucco work. Excel hired a scaffolding sub-subcontractor, Memo’s Scaffolding Norwalk, and another sub-subcontractor for preliminary lathing, Patriot Exteriors, Inc. Jose Luiz Guzman was an employee of Patriot who fell from the scaffolding installed by Memo’s while working on the project.

2. History of Motion for Summary Judgment/Motion for Leave to Amend

On 12/27/18, Bernards and Selma (“Defendants”) filed a motion for summary judgment against Guzman, setting it for hearing on 3/19/19.  On 4/5/19, Defendants rescheduled the hearing for 6/10/19. On 8/2/19, Defendants and Guzman filed a stipulation to continue the hearing, the trial and all related dates, which was rejected by the Court on 8/9/19. On 8/22/19, the Court heard and granted an ex parte application to continue the trial date and all related dates. On 12/5/19, Defendants re-notice and re-filed the motion for summary judgment against Guzman, setting it for hearing on 2/25/20.

3. Motion for Summary Judgment

a. Parties’ Positions

Defendants move for summary judgment, contending (a) it cannot be liable for the injuries sustained by Guzman, (b) as the hirer of a subcontractor, it cannot be liable as a matter of law for injuries to the subcontractor’s employees per Privette, (c) none of the exceptions to Privette apply because Defendants did not retain control over Guzman’s work or provide Guzman with equipment or affirmatively contribute to Guzman’s accident by providing “safety oversight”.

Guzman opposes the motion.  He argues Privette does not apply because: Selma hired Bernards to ensure the safety of the scaffolding; Bernards set standards for erection and maintenance of the scaffolding; Bernards knew that Memo’s did not itself inspect the scaffolding; Bernards regularly inspected the scaffolding and directed subcontractors to make repairs; and Bernards took the lead role at all times in directing safety on the worksite including by directing Patriot how it wanted work done safely. Therefore, the retained control exception to Privette applies.

Defendants, in reply, contends Selma delegated responsibility for safety to Bernards, which in turn delegated responsibility for daily inspection of the scaffolding to the subcontractors using the scaffolding: Patriot. On the morning of the accident Patriot inspected the scaffolding. Informing a subcontractor of safety concerns with the scaffolding is not retention of control under the recent decision Strouse v. Webcor (2019) 34 Cal.App.5th 703.

b. Improper Citation to Case Under Review

Defendants and Guzman cite to Strouse v. Webcor (2019) 34 Cal.App.5th 703, which is improper under California Rules of Court 8.1105 and 8.1115 because the California Supreme Court has granted review of that case. The Court will not consider Strouse.

c. Evidentiary Objections

Defendants submitted evidentiary objections with their reply papers.  The objections to the Brown Declaration are sustained.

Bernards also submitted new evidence with its reply: the Declaration of John Martinet and its Exhibits A and B. The Court will not consider this new evidence because Guzman had no chance to respond to it. See Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333 (new issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded).

d. Privette Rule

“Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work.  By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract.”  (Brannan v, Lathrop Construction Associates, Inc. (2012) 206 Cal.App.4th 1170, 1175.)  “One of the doctrine’s underpinnings is the availability of workers’ compensation to the injured employee: ‘[W]hen the person injured by negligently performed contracted work is one of the contractor’s own employees, the injury is already compensable under the workers’ compensation scheme and therefore the [law] should provide no tort remedy, for those same injuries, against the person who hired the independent contractor.’” (Id.)  “Thus, subject to certain exceptions, when a general contractor hires a subcontractor, the general contractor is not liable for injuries that occur to the subcontractor’s employees.”  (Id. at 1176.)  This is known as the Privette rule.

Here, Defendants has submitted evidence that Selma hired Bernards as general contractor. (UMF 2.) Bernards, as the general contractor, hired subcontractors. (UMF 3-5; Parks Dec., Ex. A ¶¶ 5-7.) Implicitly, hiring subcontractors itself delegated to the contractor any tort law duties to the contractor’s employees, even though the party hiring the subcontractors was itself a general contractor. (Brannan, supra, 206 Cal.App.4th at pp. 1175-76.) The burden shifts to Guzman to prove an exception to the Privette doctrine applies.

Further, it is undisputed that there was a second layer of subcontractors between Bernards and Guzman’s employer, Patriot. Bernards subcontracted to Excel, which subcontracted to both Memo’s Scaffolding and Patriot. (UMFs 3-5 and Responses thereto.) Accordingly, Guzman must overcome not only the presumption that Bernards delegated tort duties to Excel but also the presumption that Excel delegated tort duties to Patriot. Guzman’s causes of action against Bernards will fail unless he can show one of the Privette exceptions applies to both Bernards and Excel. Guzman’s claims against Selma will fail unless Guzman can show a Privette exception applies to each of Excel, Bernards, and Selma.

e. Privette Exceptions

One of the exceptions concerns the situation in which a hirer knows about a latent hazardous condition.  The Privette rule does not preclude the employee of an independent contractor from suing the hirer/premises owner where (a) the hirer knew or should have known about a latent or concealed pre-existing hazardous condition, (b) the independent contractor did not know and could not have reasonably discovered the hazard, and (c) the hirer failed to warn the independent contractor about the hazard.  (See Kinsman, supra, 37 Cal.4th 659, 664, 675.)

Another exception involves the situation in which a hirer provides unsafe equipment.  The hirer will be “directly liable to an employee of an independent contractor when the hirer’s provision of unsafe equipment affirmatively contributes to the employee’s injury.”  (Brannan, supra, 206 Cal.App.4th at 1176 [citing McKown (2002) 27 Cal.4th 219].)

In addition, there is a “retained control” exception.  “If a hirer entrusts work to an independent contractor, but retains control over safety conditions at a jobsite and then negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, the hirer is liable for those injuries, based on its own negligent exercise of that retained control.”  (Tverberg (2012) 202 Cal.App.4th 1439, 1446; see also Brannan, supra, 206 Cal.App.4th at 1176 [citing Hooker (2002) 27 Cal.4th 198].)

“Even so, a hirer is not liable to a contractor or a contractor’s employee merely because it retains control over safety conditions. . . .  The imposition of tort liability turns on whether the hirer exercised that retained control in a manner that affirmatively contributed to the injury.”  (Tverberg, supra, 202 Cal.App.4th at 1446.)  “An affirmative contribution may take the form of actively directing a contractor or employee about the manner of performance of the contracted work. . . .  When the employer directs that work to be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work, an affirmative contribution occurs. . . .  When the hirer does not fully delegate the task of providing a safe working environment but in some manner actively participates in how the job is done, the hirer may be held liable to the employee if its participation affirmatively contributed to the employee’s injury.” (Id.)

“By contrast, passively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution. . . .  The failure to institute specific safety measures is not actionable unless there is some evidence that the hirer or the contractor had agreed to implement these measures. . . .  Thus, the failure to exercise retained control does not constitute an affirmative contribution to any injury.  Such affirmative contribution must be based on negligent exercise of control. . . .  In order for a worker to recover on a retained control theory, the hirer must engage in some active participation.”  (Id.)

However, “if the hirer promises to undertake a particular safety measure, then the hirer's negligent failure to do so should result in liability if such negligence leads to an employee injury.” Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, 212 fn 3.

Here, Guzman argues only one exception to the Privette rule applies: retained control. Guzman argues Defendants retained control of Guzman’s work for Patriot because (1) Bernards provided Patriot with a scaffold checklist for inspections that included checking for overlapping planks, the condition that caused Guzman’s fall; (2) directed subcontractors to inspect the scaffolding; (3) Bernards regularly inspected the scaffolding and ordered repairs to the scaffolding; (4) Bernards knew the scaffolding subcontractor Memo’s would not inspect the scaffolding. Guzman’s arguments fail as to Selma but raise a triable issue as to Bernards.

Guzman fails to present any evidence that Selma retained any control of Guzman’s work. Guzman’s only evidence involving Selma shows merely that Selma hired Bernards as a general contractor and expected Bernards to run the construction project in a safe manner. Guzman presents zero evidence that Selma had any direct involvement in his work and therefore cannot show Selma affirmatively contributed to Guzman’s injury.

Guzman presents evidence that Bernards retained control of Guzman’s work by directing the inspection and repairs of the scaffolding. Guzman cites deposition testimony from Bernards’s person most knowledgeable stating Bernards provided a scaffold safety checklist to it subcontractors, including Patriot, directing certain measures be taken to ensure the scaffolding was safe before work began each day. (AMF 4.) Further, Bernards knew from experience that the subcontractor who erected the scaffolding would not inspect it. (AMF 2.) On approximately fifty occasions, Bernards ordered that the scaffolding be fixed after its PMK personally inspected the scaffolding and found it unsafe. (AMF 15.) Thus, Guzman has raised a triable issue of whether Bernards retained control of the work Guzman performed on top of the scaffolding by directing the inspection and repair of that scaffolding.

Guzman argues Bernards’s failure to inspect the scaffolding qualifies as Bernards affirmatively contributing to Guzman’s injury. Guzman cites to a footnote in Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, 212 fn 3, which states “if the hirer promises to undertake a particular safety measure, then the hirer's negligent failure to do so should result in liability if such negligence leads to an employee injury.” This same proposition was applied in Regalado v. Callahan (2016) 3 Cal.App.5th 582, 597, where the court of appeal held a building owner had retained control over safety conditions for a new propane line because the building owner was required to get a safety permit for the new propane line. (Ibid.) The building owner failed to exercise reasonable care when he failed to get the permit and the propane line exploded. (Ibid.) Defendants offer no argument distinguishing the Hooker footnote.

Here, Guzman also presents evidence that Bernards affirmatively contributed the Guzman’s injury by negligently exercising Bernards duty to inspect and direct repairs of the scaffolding. Viewed in the light most favorable to the non-moving party, evidence that Bernards regularly inspected and directed repairs of the scaffolding could carry an implied promise to ensure the safety of the scaffolding by continuing to inspect and direct repairs, particularly when there is evidence that Bernards did so about 50 times. (AMF 15.) Bernards failure to inspect the scaffolding on the day of Guzman’s injury raises a triable issue as to Bernards affirmative contribution to Guzman’s injury. Thus, Guzman has overcome the Privette presumption that Bernards is not liable for injuries to its sub-subcontractor’s employees.

f. Conclusion

Selma’s motion for summary judgment is granted.  Selma has presented unrebutted evidence that it hired subcontractors to perform the work that injured Guzman, creating a presumption that Selma delegated its tort law duties to those subcontractors. Guzman has failed to produce evidence to overcome the presumption, and therefore cannot establish an essential element of its claims against Selma: Selma’s duty to the insured Guzman.

Bernard’s motion for summary judgment is denied. Although Bernards presented evidence that it hired subcontractors to perform the work that injured Guzman, Guzman presented evidence creating a triable issue of fact that Bernards retained control over an aspect of Guzman’s work – inspecting the scaffolding – and Bernards affirmatively contributed to Guzman’s injury by negligently failing to undertake the scaffold inspections and repairs Bernards had promised to undertake.

Defendants ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Case Number: BC679342    Hearing Date: February 24, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AMERICAN CLAIMS MANAGEMENT INC.,

Plaintiff(s),

vs.

MEMO’S SCAFFOLDING NORWALK, ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

)

CASE NO: BC679342

[TENTATIVE] ORDER

Dept. 31

1:30 p.m.

February 24, 2020

1. Background Facts

Plaintiff American Claims Management Inc., for Everest National Insurance Company as real party in interest, filed this action against Defendants Memo’s Scaffolding Norwalk, Inc. and Bernard’s Construction Group, Inc. for damages arising out of a workplace accident that injured Jose Luis Guzman.  Jose Luiz Guzman, as plaintiff in intervention, brings claims against Memo’s Scaffolding Norwalk, Inc., Bernard’s Construction Group, Inc., and Selma and Vine North Hollywood LLC for damages arising out of the same accident.

Selma and Vine North Hollywood LLC is the owner of the building under construction. Bernards Bros, Inc. (erroneously sued as Bernard’s Construction Group, Inc.) is the general contractor. Excel Plastering, Inc. was Bernard’s subcontractor for stucco work. Excel hired a scaffolding sub-subcontractor, Memo’s Scaffolding Norwalk, and another sub-subcontractor for preliminary lathing, Patriot Exteriors, Inc. Jose Luiz Guzman was an employee of Patriot who fell from the scaffolding installed by Memo’s while working on the project.

2. History of Motion for Summary Judgment/Motion for Leave to Amend

On 12/27/18, Bernards filed a motion for summary judgment against American Claims, setting it for hearing on 3/21/19.  On 4/5/19, Bernards rescheduled the hearing for 6/11/19. On 8/2/19, Bernards and American filed a stipulation to continue the hearing, the trial and all related dates, which was rejected by the Court on 8/9/19. On 8/22/19, the Court heard and granted an ex parte application to continue the trial date and all related dates. On 12/5/19, Bernards re-notice and re-filed the motion for summary judgment against American Claims, setting it for hearing on 2/24/20.

3. Motion for Summary Judgment

a. Parties’ Positions

Bernards moves for summary judgment, contending (a) it cannot be liable to American Claims or Everest National Insurance Company because it cannot be liable for the injuries sustained by the insured Jose Luis Guzman, (b) as the hirer of a subcontractor, it cannot be liable as a matter of law for injuries to the subcontractor’s employees per Privette, (c) none of the exceptions to Privette apply because Bernards did not retain control over Guzman’s work or provide Guzman with equipment or affirmatively contribute to Guzman’s accident.

American Claims opposes the motion.  It argues jobsite safety was under Bernard’s control because Bernard’s had a statutory duty under Cal/OSHA regulations to maintain a safe worksite as the general contractor in this construction project. It argues (1) Bernards never explicitly or implicitly assigned its safety obligations to any of its subcontractors. Bernards failed in its duty to ensure the scaffolding was safe for Guzman to use, affirmatively contributing to the injury. (2) Bernards as falls within the exception to Privette for retained control over the work by retaining its safety duties and requiring its subcontractor Excel to complete the project according to Bernard’s Prime Contract, plans and specifications.

Bernards, in reply, contends Patriot assumed safety duties for the scaffolding by inspecting it the morning of the accident and Bernards delegated safety responsibilities to its subcontractors. Also, the retained control exception to Privette does not apply because (1) Bernards did not retain control of safety and inspection of the scaffolding and (2) nothing Bernards did or failed to do caused the accident.   

b. Untimely Service of Opposition

Bernards contends American Claims’s opposition should be disregarded because American Claims failed to serve the opposition in a manner reasonably calculated to ensure delivery by the close of the next business day, as required by Code of Civil Procedure section 1005(c). Bernards cites to the Declaration of David Strong for the fact that the opposition was not received until 2/14/2020 when it was due 2/11/2020. However, Bernards failed to file any Declaration of David Strong. Additionally, while the proof of service for American Claims’s opposition shows impermissible service by regular mail, the Court in its discretion will consider the opposition, finding that Bernards is not prejudiced by the late service of the opposition. The issues on this motion for summary judgment are limited and Bernards was able to produce a reply. Further, because the opposition was timely filed electronically with the Court, Bernards could have accessed it by the Court’s website on 2/11/2020. Bernards has made no showing it did not have actual notice of the opposition.

c. Evidentiary Objections

Bernards submitted evidentiary objections with its reply papers.  The objections to the Brown Declaration are sustained.

Bernards also submitted new evidence with its reply: the Declaration of John Martinet and its Exhibits A and B. The Court will not consider this new evidence because American Claims had no chance to respond to it. See Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333 (new issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded).

d. Privette Rule

“Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work.  By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract.”  (Brannan v, Lathrop Construction Associates, Inc. (2012) 206 Cal.App.4th 1170, 1175.)  “One of the doctrine’s underpinnings is the availability of workers’ compensation to the injured employee: ‘[W]hen the person injured by negligently performed contracted work is one of the contractor’s own employees, the injury is already compensable under the workers’ compensation scheme and therefore the [law] should provide no tort remedy, for those same injuries, against the person who hired the independent contractor.’” (Id.)  “Thus, subject to certain exceptions, when a general contractor hires a subcontractor, the general contractor is not liable for injuries that occur to the subcontractor’s employees.”  (Id. at 1176.)  This is known as the Privette rule.

Here, Bernards has submitted evidence that it, as the general contractor, hired subcontractors. (UMF 3-5; Parks Dec., Ex. A ¶¶ 5-7.) Implicitly, hiring subcontractors itself delegated to the contractor any tort law duties to the contractor’s employees, even though the party hiring the subcontractors was itself a general contractor. (Brannan, supra, 206 Cal.App.4th at pp. 1175-76.) The burden shifts to American Claims.

American Claims does not dispute that Bernards hired subcontractors, instead arguing that the presumption should be reversed because Bernards had a statutory duty under Cal/OHSA regulations to be responsible for safety at the jobsite because Bernards was the general contractor. However, American Claims has cited no law holding that Cal/OHSA’s administrative regulations apply to this question of tort law. The case law of the Privette doctrine explicitly states a presumption that a general contractor delegates safety responsibility by hiring subcontractors which contradicts the presumption in Cal/OSHA’s regulations. The Court will follow the law in the binding court of appeals decisions.

Further, it is undisputed that there was a second layer of subcontractors between Bernards and Guzman’s employer, Patriot. Bernards subcontracted to Excel, which subcontracted to both Memo’s Scaffolding and Patriot. (UMFs 3-5 and Responses thereto.) Accordingly, American Claims must overcome not only the presumption that Bernards delegated tort duties to Excel but also the presumption that Excel delegated tort duties to Patriot. American Claims causes of action will fail unless it can show one of the Privette exceptions applies to both Bernards and Excel.

e. Privette Exceptions

One of the exceptions concerns the situation in which a hirer knows about a latent hazardous condition.  The Privette rule does not preclude the employee of an independent contractor from suing the hirer/premises owner where (a) the hirer knew or should have known about a latent or concealed pre-existing hazardous condition, (b) the independent contractor did not know and could not have reasonably discovered the hazard, and (c) the hirer failed to warn the independent contractor about the hazard.  (See Kinsman, supra, 37 Cal.4th 659, 664, 675.)

Another exception involves the situation in which a hirer provides unsafe equipment.  The hirer will be “directly liable to an employee of an independent contractor when the hirer’s provision of unsafe equipment affirmatively contributes to the employee’s injury.”  (Brannan, supra, 206 Cal.App.4th at 1176 [citing McKown (2002) 27 Cal.4th 219].)

In addition, there is a “retained control” exception.  “If a hirer entrusts work to an independent contractor, but retains control over safety conditions at a jobsite and then negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, the hirer is liable for those injuries, based on its own negligent exercise of that retained control.”  (Tverberg (2012) 202 Cal.App.4th 1439, 1446; see also Brannan, supra, 206 Cal.App.4th at 1176 [citing Hooker (2002) 27 Cal.4th 198].)

“Even so, a hirer is not liable to a contractor or a contractor’s employee merely because it retains control over safety conditions. . . .  The imposition of tort liability turns on whether the hirer exercised that retained control in a manner that affirmatively contributed to the injury.”  (Tverberg, supra, 202 Cal.App.4th at 1446.)  “An affirmative contribution may take the form of actively directing a contractor or employee about the manner of performance of the contracted work. . . .  When the employer directs that work to be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work, an affirmative contribution occurs. . . .  When the hirer does not fully delegate the task of providing a safe working environment but in some manner actively participates in how the job is done, the hirer may be held liable to the employee if its participation affirmatively contributed to the employee’s injury.” (Id.)

“By contrast, passively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution. . . .  The failure to institute specific safety measures is not actionable unless there is some evidence that the hirer or the contractor had agreed to implement these measures. . . .  Thus, the failure to exercise retained control does not constitute an affirmative contribution to any injury.  Such affirmative contribution must be based on negligent exercise of control. . . .  In order for a worker to recover on a retained control theory, the hirer must engage in some active participation.”  (Id.)

Here, American Claims argues only one exception to the Privette rule applies: retained control. American Claims argues Bernards retained control of Guzman’s work for Patriot because Bernards (1) “retained safety duties tied to the premises”; (2) Bernard’s contract with Excel declared the “work is to be performed in accordance with the Prime Contract and the plans and specifications” and Excel’s “subcontractors will be and are bound by any and all of [the] Prime Contract and Contract Documents insofar as they related in any part or in any way, directly or indirectly to the work covered by this Agreement” (Capalbo Dec. Ex. B, Recitals and §1); and (3) because Excel retained the supervisory position between its two subcontractors – Memo’s and Patriot – since Excel subcontracted with Memo’s and Patriot separately. American Claims arguments each fail.

American Claims argument that Bernards retained safety duties tied to the premises is based on the same erroneous interpretation of Cal/OHSA regulations discussed above. This argument fails.

American Claims argument that Bernards contract with Excel is unavailing because American Claims fail to cite case law holding a general contractor explicitly retains tort law duties of care by including contract provisions that bind subcontractors to either an architectural plan or the prime contract between the building owner and the general contractor. Given how common such provisions are in construction subcontracts, American Claims’s interpretation would effectively abrogate the Privette rule in every situation. Additionally, this contract language says nothing about control of the work; it merely establishes the common objective in the architectural plan and the common legal duties to the building’s owner in the Prime Contract. Even if the contract language creates a triable issue about retained tort law duties, American still cannot create a triable issue on Bernard’s liability without showing Excel also retained tort law duties for its subcontractor, Patriot, which employed Guzman.

American Claims argument that Excel retained “the supervisory position” between its two subcontractors fails because American Claims cites no case law holding a “supervisory position” has anything to do with the retained control Privette exception and because American Claims presents no evidence from which this Court could find that Excel retained control of Patriot’s work. The only evidence American Claims presents of Excel’s relationship with Patriot or involvement in Patriot’s work is the job bid that Patriot submitted to Excel and a Notice of No Accident-Related Violation After investigation from the Department of Industrial Relations which states Patriot’s part in Guzman’s injury did not violate the California Labor Code or corresponding regulations. (Hart Dec., Exs. A, C.) Both documents say nothing about Excel’s tort law duties or involvement in and control of Patriot’s work.

American Claims also argues that Guzman was an innocent bystander because of his relation to Memo’s Scaffolding and its activities. American Claims cites no law for this innocent bystander argument and the Court finds Guzman’s relation to the scaffolding subcontractor is not at issue because American Claims has presented no evidence that Excel retained control over Memo’s scaffolding work. Alternatively, if American Claims is trying to argue Bernards provided faulty equipment, in the form of the scaffolding, American Claims argument fails because it is undisputed that Memo’s provided and erected the scaffolding at issue. (UMF 4.)

Similarly, American Claims fails to convince the Court that Bernards and Excel created a hazardous condition by requiring Guzman to use the scaffolding set up by Memo’s to reach the second story where Guzman was working. American Claims fails to provide any evidence to establish the three elements of the hazardous condition exception: (a) the hirer knew or should have known about a latent or concealed pre-existing hazardous condition, (b) the independent contractor did not know and could not have reasonably discovered the hazard, and (c) the hirer failed to warn the independent contractor about the hazard.  (See Kinsman, supra, 37 Cal.4th 659, 664, 675.) American Claims offers no evidence that Bernards knew there was a hidden, faulty scaffolding plank that would cause Guzman to fall. American Claims offers no evidence that Patriot could not have reasonably discovered the faulty plank.

Lastly, American Claims’s argument that Bernards affirmatively contributed to Guzman’s injury because Bernards retained control of the subject premises fails for lack of evidence. American Claims does not present a single piece of evidence to show Bernards occupied or controlled the property, failed to delegate tort duties to its subcontractors, or failed to perform safety inspections.

f. Conclusion

Bernards’s motion for summary judgment is granted.  Bernards has presented unrebutted evidence that it hired subcontractors to perform the work that injured Guzman, creating a presumption that Bernards delegated its tort law duties to those subcontractors. American Claims has failed to produce evidence to overcome the presumption, and therefore cannot establish an essential element of its claims against Bernards: Bernards’s duty to the insured Guzman.

Bernards is ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.