JOSE A GARCIA VS JEFFREY LEWIS HEWITT ET AL

Motion for Summary Judgment, or in the alternative, Summary Adjudication

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On April 26, 2017, Plaintiff Jose A. Garcia (“Plaintiff”) filed a complaint against Defendants Jeffrey Lewis Hewitt, individually and d.b.a. as Skyline Construction; Ron Hewitt, individually and d.b.a. Skyline Construction; George C. Hopkins Construction Co., Inc; and Vivere Residential II, LLC.  The complaint alleges negligence for a fall off of a ladder that occurred on October 16, 2015.

On February 9, 2018, the Court dismissed the complaint as to Defendants Jeffrey Lewis Hewitt, individually and d.b.a. as Skyline Construction; Ron Hewitt, individually and d.b.a. Skyline Construction without prejudice.

On July 17, 2019, Defendants George C. Hopkins Construction Co., Inc. and Vivere Residential II, LLC filed a motion for summary judgment, or in the alternative, summary adjudication pursuant to California Code of Civil Procedure section 437c.

On September 12, 2019, the Court continued the hearing on the motion for summary judgment, or in the alternative, summary adjudication, to January 9, 2020.

Trial is set for April 30, 2020.

PARTIES’ REQUESTS

Defendants George C. Hopkins Construction Co., Inc. and Vivere Residential II, LLC (“Moving Defendants”) request the Court to grant its motion for summary judgment, or in the alternative, summary adjudication because Plaintiff was injured while working for a subcontractor Moving Defendants’ had hired.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Defendants contend that Plaintiff cannot prove the element of duty because the hirer of an independent contractor is not liable for injuries to the contractor or its employees under Privette v. Superior Court (1993) 5 Cal.4th 689, 695 and Seabright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 603.

“[W]hen employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work.” SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594.)  “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.” Id. at pp. 601-602. Additionally, “a hirer generally has no duty to act to protect the contractor’s employee when the contractor fails in that task.” Id. at p. 602 (citation omitted).)  The Privette doctrine applies when the party that hired the contractor failed to comply with workplace safety requirements concerning the precise subject matter of the contract, and the injury is alleged to have occurred as a consequence of that failure. Id. at p. 594.)  “It would be unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over the safety at the worksite. In fairness, . . . the imposition of tort liability depends on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor’s employee.” Kinsman v. Unocal (2005) 37 Cal.4th 659, 670.)

The general rule will bar Plaintiff’s action against the hirer unless a specific exception applies. Under the Hooker exception to the Privette doctrine, the hirer of an independent contractor may be liable to the employee of the independent contractor only if Plaintiff can establish that the hirer: (1) retained control over the operative details of the contracted work, and (2) exercised that control in a way that affirmatively contributed to Plaintiff’s injuries. Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, 202.)

Moving Defendants undisputed material facts establish the following.  Defendant Vivere owned 1725 S. Auburn Way, Anaheim, California at all relevant times.  (UMF No. 1, p. 2:9-2:14.)  Defendant Vivere hired Defendant Hopkins as a general contractor to construct an apartment complex at 1725 S. Auburn Way, Anaheim, California.  (UMF Nos. 2, 16, pp. 2:14-2:20, 5:4-5:8.)  Defendant Hopkins subcontracted carpentry work to Skyline Construction.  (UMF Nos. 3, 17, pp. 2:20-2:24, 5:8-5:13.)  Skyline Construction hired Plaintiff as a carpenter.  (UMF No. 4, pp. 2:24-3:5.)  Plaintiff fell off of a ladder while working at the jobsite.  (UMF Nos. 5-7, p. 3:5-3:20.)  Plaintiff alleges Moving Defendants failed to secure the ladder prior to Plaintiff standing on it and failed to provide fall protection measures where Plaintiff was working.  (UMF No. 8, pp. 3:20-4:4.) as a result of the incident.  (UMF No. 26, p. 7:1-7:7.)

Moving Defendants undisputed material facts also establish the following.  Defendant Vivere was not involved in the day-to-day construction activities of the property after contracting with Defendant Hopkins.  (UMF No. 12, p. 4:18-4:22.)  Defendant Vivere did attend subcontractor safety meetings on the jobsite.  (UMF No. 13, p. 4:22-4:25.)  No representative of Defendant Vivere’s was on the jobsite at the time of the incident.  (UMF No. 14, p. 4:25-4:28.)  Defendant Vivere did not directly hire Plaintiff or Skyline.  (UMF No. 15, p. 5:1-5:4.)

Moving Defendants undisputed material facts further establish the following.  Defendant Hopkins delegated all responsibility for jobsite safety for Skyline’s employees to Skyline.  (UMF No. 18, p. 5:13-5:18.) Defendant Hopkins was not involved in the rough carpentry work that Plaintiff was performing at the time of the injury.  (UMF No. 21, 6:5-6:9.)  Defendant Hopkins did not provide any instructions to Skyline or Plaintiff as to how to perform their scope of work.  (UMF No. 22, p. 6:9-6:13.)  Defendant Hopkins did not own, maintain, or provide the tools or equipment used by Skyline or Plaintiff on the day of the incident.  (UMF No. 23, p. 6:13-6:17.)  Defendant Hopkins had two representatives on the jobsite, neither of whom were involved in overseeing the work being done by Skyline at the time.  (UMF No. 25, p. 6:21-6:27.)

The Court finds Moving Defendants have met their burden.  The evidence Moving Defendants submitted demonstrates that Moving Defendants were not Plaintiff’s employer.  Rather, Skyline was Plaintiff’s employer.  The evidence also shows that Skyline was responsible for Plaintiff’s safety.  The evidence further shows that Moving Defendants did not retain control over the operative details of the contracted work or that Moving Defendants exercised control in a way that contributed to Plaintiff’s injuries.  Rather, Skyline provided the tools for Plaintiff, including the ladder that Plaintiff fell off of.  There is no evidence showing that Defendant Hopkins’ two representatives that oversaw the work being done by Skyline exercised any control whatsoever over Skyline’s or Plaintiff’s decisions to carry out the contracted carpentry.  Plaintiff has not submitted contrary evidence.

Accordingly, the motion for summary judgment is GRANTED.

Moving Defendants are ordered to give notice of this ruling.