On 12/28/2017 a Personal Injury - Other Personal Injury case was filed by ANTONIO CUTTS against MORLEY BUILDERS INC in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
TERESA A. BEAUDET
DOES 1 TO 40
CLARETT WEST DEVELOPMENT LLC
HELIX ELECTRIC INC
DLJ REAL ESTATE CAPITAL PARTNERS LP
MORLEY BUILDERS INC
1/25/2018: NOTICE OF CHANGE OF ADDRESS OR OTHER CONTACT INFORMATION
2/13/2018: DEFENDANT MORLEY BUILDERS INC 'S MOTION TO STRIKE
2/13/2018: DEFENDANTS DLJ REAL ESTATE CAPITAL PARTNERS, L P AND CLARETT WEST DEVELOPMENT LLC 'S DEMURRER TO PLAINTIFF 'S COMPLAINT FOR DAMAGES
2/13/2018: RESERVATION ID 180213289463 DLJ RESERVATION ID 180213289470 CLARETT
3/1/2018: PLAINTIFF'S OPPOSITION TO DEFENDANT HELIX ELECTRIC, INC.'S MOTION TO STRIKE
3/1/2018: PLAINTIFF'S OPPOSITION TO DEFENDANT MORLEY BUILDERS, INC.'S DEMURRER TO THE COMPLAINT
3/7/2018: DEFENDANT MORLEY BUILDERS, INC.'S REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES
3/14/2018: ORDER TRANSFERRING PERSONAL INJURY (P1) CASE TO AN INDEPENDENT CALENDAR (IC) COURT
5/14/2018: Minute Order
6/28/2018: DEFENDANTS' EX PARTE APPLICATION FOR AN ORDER TO CONSOLIDATE THE MOTIONS FOR SUMMARY JUDGMENT HEARING DATES TO A SINGLE DATE AND ADVANCE THE HEARING OR, IN THE ALTERNATIVE, CONSOLIDATE HEARING DATES A
8/7/2018: FIRST AMDENDED COMPLAINT FOR DAMAGES 1. NEGLIGENCE AGAINST ALL DEFENDANTS 2. NEGLIGENCE PER SE AGAINST ALL DEFENDANTS 1 I ;;IH- A .INIT ALL
5/23/2019: Request for Judicial Notice
1/8/2018: PROOF OF SERVICE SUMMONS
1/9/2018: PROOF OF SERVICE OF SUMMONS
1/10/2018: PROOF OF SERVICE OF SUMMONS
Declaration (of Adam Ainslie ISO MSJ); Filed by Morley Construction Company (Defendant)Read MoreRead Less
Separate Statement; Filed by Morley Construction Company (Defendant)Read MoreRead Less
Request for Judicial Notice; Filed by Morley Construction Company (Defendant)Read MoreRead Less
Exhibit List; Filed by Morley Construction Company (Defendant)Read MoreRead Less
Motion for Summary Judgment; Filed by Morley Construction Company (Defendant)Read MoreRead Less
Declaration (of Mike Hetman ISO MSJ); Filed by Morley Construction Company (Defendant)Read MoreRead Less
at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Ex Parte Application (to Continue Trial and Continue the hearing on MSJ) - HeldRead MoreRead Less
at 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Status Conference - HeldRead MoreRead Less
Order (granting defendants' ex parte application); Filed by Benchmark Contractors, Inc. (Defendant); Blvd 6200 Owner South, LLC (Defendant); Helix Electric Inc (Defendant) et al.Read MoreRead Less
Minute Order ( (Status Conference; Hearing on Ex Parte Application to Continu...)); Filed by ClerkRead MoreRead Less
Proof-Service/Summons; Filed by Antonio Cutts (Plaintiff)Read MoreRead Less
Proof-Service/SummonsRead MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof-Service/SummonsRead MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
Proof-Service/SummonsRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Antonio Cutts (Plaintiff)Read MoreRead Less
COMPLAINT FOR DAMAGES 1. NEGLIGENCE AGAINST ALL DEFENDANTS 2. NEGLIGENCE PER SE AGAINST ALL DEFENDANTS 3. PREMISES LIABILITY AGAINST ALL DEFENDANTSRead MoreRead Less
Case Number: BC688363 Hearing Date: January 16, 2020 Dept: 50
morley construction company, et al.
January 16, 2020
[TENTATIVE] ORDER RE:
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
On December 28, 2017, Plaintiff Antonio Cutts (“Cutts”) filed this action against Defendants Morley Construction Company (“Morley”), Benchmark Contractors, Inc. (“Benchmark”), Helix Electric, Inc. (“Helix”), and Blvd 6200 Owner South, LLC (“Blvd 6200”) (collectively, “Defendants”). The operative First Amended Complaint (“FAC”) was filed on August 7, 2018, and asserts causes of action for (1) negligence, (2) negligence per se, and (3) premises liability stemming from injuries sustained by Cutts while working on a construction project located at 6200 Hollywood Blvd., Hollywood, California 90028 (the “Property”).
Defendants now move for summary judgment or, in the alternative, summary adjudication of the first and second causes of action. Cutts opposes.
The Court grants Defendants’ request for judicial notice as to Items 1 and 2.
The Court rules on Cutts’s evidentiary objections to the evidence presented by Defendants as follows:
Objections 1-12: overruled
The Court rules on Defendants’ evidentiary objections as follows:
Objections 1-5: sustained
Objection 6: overruled
Objection 7: overruled
“[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.” ((Code Civ. Proc., § 437c (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ((Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ((Ibid. .) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ((Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)
When a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. ((Code Civ. Proc., § 437c(p)(2).)
Defendants contend that Cutts’s action against them is barred by the Privette doctrine. In Privette v. Superior Court (1993) 5 Cal.4th 689, the California Supreme Court held that an employee of an independent contractor performing inherently dangerous work may not seek recovery of tort damages from the person who hired the contractor but did not cause the injuries. ((Id. at p. 702.) This is so because workers’ compensation “is the exclusive remedy against an employer for injury or death of an employee” and because the hirer of the contractor “generally has no right of control as to the mode of doing the work contracted for.” ((Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 640 [internal quotations omitted].)
Nevertheless, certain exceptions to the Privette doctrine exist. First, “when the hirer retains control over safety conditions at the worksite” and “exercise[s] that control in a way that affirmatively contribute[s] to the employee’s workplace injury,” the hirer may be liable. ((Id. at p. 641 [internal quotations omitted]); (see also Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 213 [“if a hirer does retain control over safety conditions at a worksite and negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, it is only fair to impose liability on the hirer”].) The affirmative contribution “can take the form of actively directing a contractor or contractor’s employee, but can also take the form of a hirer’s omission, such as failing to undertake a particular safety measure after promising to do so.” ((Evard v. Southern California Edison (2007) 153 Cal.App.4th 137, 145 [discussing Hooker].)
Second, Privette does not apply when nondelegable duties are involved. ((Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032, 1038.) “A nondelegable duty is a definite affirmative duty the law imposes on one by reason of his or her relationship with others. One cannot escape this duty by entrusting it to an independent contractor.” ((Id. at p. 1036.) “Nondelegable duties may arise when a statute provides specific safeguards or precautions to insure the safety of others.” ((Ibid. ); see also Rest. 2d Torts, § 424 [“One who by statute or by administrative regulation is under a duty to provide specific safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.”].) Thus, a failure to comply with a specific statute or regulation may constitute an omission that “creates a triable issue of fact as to whether [a] defendant breached [his or her] nondelegable duty in a manner that affirmatively contributed to [the contractor’s employee’s] injury.” ((Evard v. Southern California Edison, supra, 153 Cal.App.4th at p. 148.)
Third, a “hirer as landowner may be independently liable to the contractor’s employee, even if it does not retain control over the work, if (1) it knows or reasonably should know of a concealed, pre-existing hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor.” ((Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675.)
“The Privette line of decisions establishes a presumption that an independent contractor’s hirer ‘delegates to that contractor its tort law duty to provide a safe workplace for the contractor’s employees.’” ((Alvarez v. Seaside Transportation Services LLC, supra, 13 Cal.App.5th at p. 642.) This presumption is one that affects the burden of producing evidence, meaning that “the trier of fact [is required] to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence . . . .” ((Id. at pp. 643-644.) In order to benefit from the Privette presumption, certain “foundational facts” must be established. In Alvarez, the evidence cited by the Court of Appeal establishing the “foundational facts” was (1) as to the defendant owner, evidence that the plaintiff’s employer was hired to perform work on a specific project by the owner, (2) as to the other defendants who were the owner’s contractors, evidence that the contractors were also hired by the owner to perform work on the same project, and (3) evidence that the plaintiff was injured while working on the project. ((Id. at p. 644.)
It is undisputed that Blvd 6200 is the owner of the Property. (Defendants’ Undisputed Material Fact (“UMF”) 1; FAC, ¶ 5.) It is further undisputed that Benchmark was hired by Blvd 6200 to be the general contractor on the project, that Benchmark hired Morley to be the concrete construction subcontractor, that Benchmark hired Helix to be the electrical subcontractor, and that Morley hired Traxx Construction Inc. (“Traxx”) as one of the excavation subcontractors. (UMF 2-4.) Cutts was the co-owner of Traxx, with the title of President of Construction. (UMF 5.) Cutts was injured while working on the project. (UMF 28; FAC, ¶ 8.)
Based on these facts, Defendants contend that they are entitled to the Privette presumption, thus shifting the burden to Cutts to raise a triable issue of fact. Specifically as to Helix, Defendants argue that even though Helix did not hire Traxx, the Privette doctrine is equally applicable to Helix. Although not discussed explicitly by the Court of Appeal, based on judicially noticeable facts, the Court finds that the Privette doctrine applies to an allegedly negligent contractor who is not within the direct contractual hiring chain. ((Ibid. [finding that the fact that the other contractor defendants were also hired by the owner to perform work was a “foundational fact”]); Ainslie Decl., ¶ 20, Ex. 19, ¶¶ 7-12 [complaint in Alvarez, in which the plaintiff alleges direct negligence theory against the contractor defendants].)
Cutts counters that Privette does not apply as to any of the Defendants because he was not an employee of Traxx. Rather, Cutts contends that, as an owner of Traxx, he was not covered by workers’ compensation insurance, and Privette precludes recovery only when workers’ compensation insurance is available and mandatory. Cutts and Defendants both cite to Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, in support of their respective positions. In Tverberg, an independent contractor who was hired by a subcontractor sued the general contractor seeking damages for workplace injuries. ((Id. at p. 526.) The Court of Appeal found in favor of the plaintiff by reasoning that “Privette did not control because unlike the independent contractor’s employee injured at the jobsite, as occurred in Privette, the injured independent contractor [in Tverberg] was not subject to mandatory coverage for workplace injuries under California’s workers’ compensation system.” (Ibid. [emphasis in original].) The Supreme Court of California reversed, finding that “an injured independent contractor hired by a subcontractor cannot hold the general contractor vicariously liable for those jobsite injuries on a theory of peculiar risk.” (Id. at p. 527 [emphasis added].) This conclusion was based on the fact that “the doctrine of peculiar risk was developed by the courts as an exception to the common law rule of hirer nonliability ‘to ensure that innocent third parties injured by the negligence of an independent contractor hired by a landowner to do inherently dangerous work . . . would not have to depend on the contractor’s solvency in order to receive compensation for the injuries.” (Ibid. [emphasis in original].) “Privette held that an independent contractor’s injured employee, although qualifying as a ‘third party’ with respect to the contract between the hirer and the independent contractor, cannot use the doctrine of peculiar risk to recover damages from the hirer of the independent contractor for injuries compensable under workers’ compensation insurance, the cost of which is generally included in the contract price for the hired work.” (Ibid.) Nevertheless, “[w]hen an independent contractor is hired to perform inherently dangerous construction work, that contractor, unlike a mere employee, receives authority to determine how the work is to be performed and assumes a corresponding responsibility to see that the work is performed safely.” (Id. at p. 528.) Thus, “the existence of workers’ compensation coverage is not relevant to deciding whether a hirer should incur vicarious liability for workplace injury to an independent contractor who was hired by a subcontractor to do inherently dangerous work.” (Id. at p. 527 [emphasis added].) Because the independent contractor has been “delegated control over the performance of the work,” the independent contractor is no longer within the category of “innocent third parties deserving of financial protection under the doctrine of peculiar risk.” (Id. at p. 528 [internal quotations omitted].)
Stated otherwise, while the rule is that an independent contractor is barred from attempting to hold an owner or general contractor vicariously liable for work-related injuries, this is not because the Privette doctrine applies. Rather, it is because the peculiar risk doctrine does not apply. As set forth in Tverberg, the Privette doctrine is merely an exception to the peculiar risk doctrine, which itself is an exception to the common law rule that owners are not liable to innocent third parties for the negligence of hired contractors. ((Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 524-525.) Accordingly, the California Supreme Court held that “the doctrine of peculiar risk does not apply when . . . an on-the-job-injured independent contractor hired by a subcontractor seeks to hold the general contractor vicariously liable for injuries arising from risks inherent in the nature or the location of the hired work over which the independent contractor has, through the chain of delegation, been granted control.” ((Id. at pp. 528-529.) Based on this, the Court finds that neither Defendants nor Cutts have correctly applied Tverberg to the facts of this case. Defendants misconstrue Tverberg in concluding that “regardless of whether Plaintiff Cutts was an ’employee’ of Traxx Construction, which he disputes as he was an ‘owner,’ and regardless of whether he is entitled to workers’ compensation benefits through Traxx’s policy it purchased, the Privette reasoning and holding is still applicable.” (Reply, p. 4: 14-17.) Cutts cites to Tverberg in his opposition (p. 12: 13-14) but overlooks the fact that Tverberg would bar Cutts’s claims to the extent they are based on vicarious liability.
In any event, Defendants contend that they are entitled to summary judgment because of the Privette doctrine. As the moving party, Defendants bear the burden of establishing the “foundational facts” for the application of the Privette doctrine, which includes the fact that Cutts was an employee of Traxx. Defendants point to Labor Code section 3351, which defines an “employee” to include “[a]ll officers and members of boards of directors of quasi-public or private corporations while rendering actual service for the corporations for pay.” (Lab. Code
§ 3351, subd. (c).) Although Cutts himself confirms that he was the president of Traxx (Plaintiff’s Separate Statement of Material Facts in Dispute, Fact 22), Defendants offer no evidence that Cutts rendered actual service for Traxx “for pay.” Therefore, because Defendants have failed to meet their burden of showing that Cutts was an employee of Traxx pursuant to Labor Code section 3351, Defendants have failed to establish a “foundational fact” for the application of the Privette doctrine. Thus, the burden does not shift to Cutts to raise a triable issue of fact.
Separately, Defendants move for summary adjudication of the first and second causes of action (negligence and negligence per se) on the grounds that Cutts cannot prove breach or causation.
The following facts are undisputed. On June 15, 2016, Cutts was excavating foundation footing pads when he struck the power lines; he was uninjured. (UMF 28, 36-37.) On June 16, 2016, Cutts resumed digging the foundation pad with the assistance of a Helix employee hand digging to completely expose the power lines. (UMF 39.) The Helix employee was also spraying the conduits with orange/red spray paint to highlight their location and to signify that they were energized. (UMF 40.) A Morley laborer was also measuring elevations of the footing and cleaning out loose dirt. (UMF 41.) After the Helix employee left for lunch and while the Morley employee was faced the other direction, Cutts used his excavator to dig on top of the power lines to take dirt off the top in a location “several feet further up from the line that was struck the day before.” (UMF 43; Lopez Decl., ¶ 9, Ex. 8 (Vo Depo.), pp. 87:22 – 89:14.) At the time of the incident, approximately five feet of the power lines were exposed. (Ainslie Decl.,
¶ 13, Ex. 12 (Cahill Depo.) pp. 48:20 – 50:4; Ainslie Decl., ¶ 12, Ex. 11 (King Depo.) pp. 199:18 – 201:13.)
On the negligence per se claim, Cutts alleges that “Defendants violated laws and/or regulations that require making electrical line safe for others to work around.” (FAC, ¶ 19.) Cutts also alleges that the “California Public Utilities Commission requires that buried electrical lines be covered by not less than 3 inches of concrete.” (FAC, ¶ 7.) Defendants contend that Cutts cannot establish that any laws or regulations were violated. Although Cutts does not identify the specific law or regulation that is the basis for his negligence per se claim, Defendants point to Rule 43.4A of the Public Utilities Commission Rules for Construction of Underground Electric Supply and Communication Systems, General Order No. 128. That rule provides as follows: “Buried communication cables and conductors, when independently installed, shall be separated where practicable from supply system ducts and buried cables or conductors by not less than 3 inches of concrete, 4 inches of brick masonry, or 12 inches of earth.” (Cal. P.U.C., General Order No. 128, Rule 43.4A (Jan. 2006).)
It is undisputed that in May 2016, Helix installed temporary electrical power lines for the project. (UMF 29.) Defendants submit evidence that the temporary power lines were encased in plastic conduits and buried under several feet of dirt. (Hetman Decl., ¶ 10.) Cutts disputes this fact but cites only to inadmissible evidence from his expert. (See Response to UMF 30.) Importantly, Cutts offers no evidence or argument that the power lines were not buried under several feet of dirt. Nevertheless, it is unclear whether the Public Utilities Commission rule cited by Defendants actually applies. The rule seems to dictate the distance between buried cables and not to the distance between a buried cable and the surface of the ground. Therefore, it is unclear whether burying an electrical supply line under “several feet of dirt” is sufficient to establish that Defendants did not violate any applicable Public Utilities Commission rules. Because the burden is on Defendants, as the moving parties, to show that one or more elements of the cause of action cannot be established, the Court finds that Defendants have failed to meet their burden of showing that the negligence per se cause of action has no merit.
Next, Defendants argue that the negligence cause of action has no merit because Cutts cannot prove breach of a legal duty or causation.
Defendants present evidence that there was no requirement within the Benchmark-Helix contract that required Helix to have the temporary power lines encased in concrete. (Hetman Decl., ¶ 10.) Although Cutts purports to dispute this fact, no evidence is cited that actually creates a dispute. (See Response to UMF 31.) Defendants also present evidence that on June 13, 2016, Cutts attended a safety meeting where trenching and excavations were discussed. (UMF 32.) Although Cutts also disputes this fact, no evidence is cited that creates a dispute. (See Response to UMF 32.) At this meeting, the topics included calling an underground service alert prior to any trenching or excavations, hand digging being required within 24 inches on both sides of the marked utility, not using machines to scrape off dirt to expose a utility, and changes in underground utility elevation. (UMF 33.) On the same day, the superintendent for Benchmark, the superintendent for Morley, and the assistant superintendent for Morley made the decision to use Helix employees to hand dig each side within two feet of the buried conduits to address Cutts’s concerns about encountering temporary power lines during excavations. (UMF 34.) Again, Cutts purports to dispute this fact, but the argument and cited evidence does not reveal a material dispute. (See Response to UMF 34.) Cutts contends that he was never going to be providing employees to hand dig, but Cutts does not suggest that Defendants either failed to respond to his concerns about encountering power lines or that Defendants did not provide Helix employees to do the digging. It is undisputed that Cutts was told not to dig within two feet of either side of the “conduits hanging from the shoring wall at N line.” (UMF 35.)
Defendants argue that based on their safety policies, standard industry practices, contractual obligations of the excavator, and legal obligations of the excavator under Cal OHSA, they had no reason to suspect that the location of the lines was in dangerous proximity to the excavation of foundation footing pads to be performed by Cutts. (UMF 15-27.) Defendants argue that they reasonably believed and expected Cutts to locate subsurface utilities, expose them by hand digging, and stay clear of exposed power lines. Defendants also argue that Cutts’s injuries were not the result of any of Defendants’ acts or omissions but of Cutts’s own failure to provide protective equipment and devices, failure to locate existing subsurface utilities prior to opening an excavation, and failure to allow digging by hand to expose the utility.
Cutts counters that he could not have known that he was digging in a dangerous location because “the danger was buried.” (Opp’n, p. 17: 15-16.) Cutts offers evidence (in the form of his own testimony) that he was informed that the buried power lines would not run in the path of the digging. (Cutts’s Additional Material Fact (“AMF”) 44.) Cutts also testified that he was informed that the lines were encased in concrete, so he would be “okay” if he hit the lines. (AMF 45, 60-61.) When he hit the lines on June 15, 2016, the electrical wires were exposed and only half were contained in concrete. (AMF 63.) Cutts offers evidence that the lines were not properly located because they were not underneath the bottom of the footings. (AMF 64, 82.) Cutts also testified that on June 16, 2016, he requested to attach a ground wire to his excavator to minimize the effect of an electrical shock. (AMF 70.) This request was refused. (AMF 72.) When the incident happened, Cutts was digging “several feet” from the area where he hit the line on June 15, 2016. (AMF 76.)
Based on the evidence presented, the Court finds that Cutts has raised a triable issue of fact as to whether the elements of breach and causation can be established in support of the negligence cause of action.
For the foregoing reasons, Defendants’ motion for summary judgment or, in the alternative, summary adjudication is denied in its entirety.
Cutts is ordered to provide notice of this ruling.
DATED: January 16, 2020 ________________________________
Hon. Teresa A. Beaudet
Judge, Los Angeles Superior Court
Case Number: BC688363 Hearing Date: October 24, 2019 Dept: 50
THE COURT NEEDS ADDITIONAL TIME TO COMPLETE ITS REVIEW OF THE SUMMARY JUDGMENT PAPERS. CONSEQUENTLY, THE HEARING WILL NOT GO FORWARD TOMORROW. THE CLERK WILL CONTACT THE PARTIES TO DETERMINE A NEW DATE FOR THE HEARING. DEFENDANTS ARE ORDERED TO GIVE NOTICE.