This case was last updated from Los Angeles County Superior Courts on 06/19/2019 at 00:50:35 (UTC).

LEONEL CARRASCO TORRES ET AL VS HARRY J OLEN ET AL

Case Summary

On 08/02/2017 LEONEL CARRASCO TORRES filed a Personal Injury - Other Personal Injury lawsuit against HARRY J OLEN. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0915

  • Filing Date:

    08/02/2017

  • 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

STEPHEN I. GOORVITCH

 

Party Details

Plaintiffs and Petitioners

TORRES LEONEL CARRASCO

SANCHEZ MARIA DEL CARMEN REYES

Defendants and Respondents

AMPCO CONTRACTING INC

FEDEX GROUND

OLEN HARRY J.

OLEN LORRAINE

DOES 1 TO 100

ALSTON CONSTRUCTION

GROUND FEDEX

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

ZIMMERMAN WILLIAM M. ESQ.

GREENBERG DAVID H. ESQ.

Defendant and Respondent Attorneys

MONIQUE R. DONAVAN

FRIEDENTHAL DANIEL R. ESQ.

O'HARA MAUREEN C.

HUA RAYMOND H.

MARCOTT JACQUELENE ANNA

 

Court Documents

SUBSTITUTION OF ATTORNEY

1/26/2018: SUBSTITUTION OF ATTORNEY

FED-EX GROUND PACKAGE SYSTEM, INC.'S (ERRONEOUSLY SERVED AND SUED AS FEDEX GROUND) ANSWER TO THE COMPLAINT OF PLAINTIFFS LEONEL CARRASCO TORRES AND MARIA DEL CARMEN REYES SANCHEZ

12/6/2017: FED-EX GROUND PACKAGE SYSTEM, INC.'S (ERRONEOUSLY SERVED AND SUED AS FEDEX GROUND) ANSWER TO THE COMPLAINT OF PLAINTIFFS LEONEL CARRASCO TORRES AND MARIA DEL CARMEN REYES SANCHEZ

PROOF OF SERVICE ON DEFENDANT HARRY J. OLEN

10/12/2017: PROOF OF SERVICE ON DEFENDANT HARRY J. OLEN

PROOF OF SERVICE ON DEFENDANT LORRAINE OLEN

10/12/2017: PROOF OF SERVICE ON DEFENDANT LORRAINE OLEN

AMPCO CONTRACTING,1NC.'S ANSWER TO THE COMPLAINT OF PLAINTIFFS LEONEL CARRASCO TORRES AND MARIA DEL CARMEN REYES SANCHEZ

9/7/2017: AMPCO CONTRACTING,1NC.'S ANSWER TO THE COMPLAINT OF PLAINTIFFS LEONEL CARRASCO TORRES AND MARIA DEL CARMEN REYES SANCHEZ

PROOF OF SERVICE ON DEFENDANT AMPCO CONTRACTING, INC.

8/28/2017: PROOF OF SERVICE ON DEFENDANT AMPCO CONTRACTING, INC.

PROOF OF SERVICE ON DEFENDANT FEDEX GROUND

8/28/2017: PROOF OF SERVICE ON DEFENDANT FEDEX GROUND

SUMMONS

8/2/2017: SUMMONS

COMPLAINT FOR DAMAGES 1. (NEGLIGENCE); ETC

8/2/2017: COMPLAINT FOR DAMAGES 1. (NEGLIGENCE); ETC

 

Docket Entries

  • 06/18/2019
  • Notice of Ruling; Filed by AMPCO CONTRACTING INC (Defendant)

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  • 06/17/2019
  • at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Ex Parte Application (for an Order Further Continuing the Hearing Date on AMPCO's Motion for Summary Judgment as to Plaintiffs' Complaint) - Held - Motion Granted

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  • 06/17/2019
  • at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Ex Parte Application (for an Order Continuing the Hearing Date on Alston Construction Company, Inc.'s Motion for Summary Judgment as to Plaintiff's Complaint) - Held - Motion Granted

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  • 06/17/2019
  • Minute Order ( (Hearing on Ex Parte Application for an Order Further Continui...)); Filed by Clerk

    Read MoreRead Less
  • 06/17/2019
  • Ex Parte Application (for an Order Continuing the Hearing Date on Alston Construction Company, Inc.'s Motion for Summary Judgment as to Plaintiff's Complaint); Filed by ALSTON CONSTRUCTION (Defendant)

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  • 06/17/2019
  • Ex Parte Application (for an Order Further Continuing the Hearing Date on AMPCO's Motion for Summary Judgment as to Plaintiffs' Complaint); Filed by AMPCO CONTRACTING INC (Defendant)

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  • 06/14/2019
  • Reply (Reply by Defendant Alston Construction Company, Inc. In Support of Motion for Summary Judgment As To Plaintiffs' Complaint); Filed by ALSTON CONSTRUCTION (Defendant)

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  • 06/14/2019
  • Declaration (Reply Declaration of Maureen C. O'Hara In Support of Defendant Alston Construction Company, Inc.'s Motion for Summary Judgment As To Plaintiffs' Complaint); Filed by ALSTON CONSTRUCTION (Defendant)

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  • 06/14/2019
  • Separate Statement; Filed by ALSTON CONSTRUCTION (Defendant)

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  • 06/14/2019
  • Objection (Defendant Alston Construction Company, Inc.'s Objections to Declaration of Kurt Kuhn); Filed by ALSTON CONSTRUCTION (Defendant)

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114 More Docket Entries
  • 10/12/2017
  • Proof of Service (not Summons and Complaint); Filed by LEONEL CARRASCO TORRES (Plaintiff)

    Read MoreRead Less
  • 09/07/2017
  • AMPCO CONTRACTING,1NC.'S ANSWER TO THE COMPLAINT OF PLAINTIFFS LEONEL CARRASCO TORRES AND MARIA DEL CARMEN REYES SANCHEZ

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  • 09/07/2017
  • Answer; Filed by AMPCO CONTRACTING INC (Defendant)

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  • 08/28/2017
  • Proof of Service (not Summons and Complaint)

    Read MoreRead Less
  • 08/28/2017
  • PROOF OF SERVICE ON DEFENDANT FEDEX GROUND

    Read MoreRead Less
  • 08/28/2017
  • PROOF OF SERVICE ON DEFENDANT AMPCO CONTRACTING, INC.

    Read MoreRead Less
  • 08/28/2017
  • Proof of Service (not Summons and Complaint); Filed by LEONEL CARRASCO TORRES (Plaintiff)

    Read MoreRead Less
  • 08/02/2017
  • Complaint; Filed by LEONEL CARRASCO TORRES (Plaintiff); MARIA DEL CARMEN REYES SANCHEZ (Plaintiff)

    Read MoreRead Less
  • 08/02/2017
  • COMPLAINT FOR DAMAGES 1. (NEGLIGENCE); ETC

    Read MoreRead Less
  • 08/02/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC670915    Hearing Date: October 06, 2020    Dept: C

TORRES v. OLEN, et al.

CASE NO.: BC670915

HEARING: 10/6/20

JUDGE: OLIVIA ROSALES

#3

TENTATIVE ORDER

Plaintiffs Torres, et al.’s motion for leave to amend is MOOT. Summary judgment has been granted in favor of Defendant Alston, and there are no remaining parties or pending claims in this action.

Opposing Parties to give NOTICE.

Case Number: BC670915    Hearing Date: September 29, 2020    Dept: C

TORRES v. OLEN, et al.

CASE NO.: BC670915

HEARING: 9/29/20

JUDGE: OLIVIA ROSALES

#12

TENTATIVE ORDER

Defendant Alston Construction Company, Inc.’s motion for summary judgment as to plaintiffs’ complaint is GRANTED.

Moving Party to give NOTICE.

Defendant Alston Construction Company, Inc. (“Alston”) moves for summary judgment pursuant to CCP 437c.

EVIDENTIARY OBJECTIONS

Plaintiffs’ evidentiary objections are OVERRULED.

Alston’s evidentiary objections to Avrit Declaration are OVERRULED as to Nos. 1, 3, 21-22, 24, 29, 31-32, and 34; and SUSTAINED as to Nos. 2, 4-11, 12 –20, 23, 25-28, 30, 33, 35-47.

Alston’s objections to Kuhn Declaration are OVERRULED.

PLEADINGS

This action is brought by Plaintiffs Leonel Carrasco Torres and Maria Del Carmen Reyes Sanchez against Defendants Harry J. Olen, Lorraine Olen, Alston Construction, Ampco Contracting, Inc., and Fedex Ground for premises liability. Torres, a construction worker, was standing on a roof when it collapsed, causing him to fall from the second floor to the first floor. The Complaint, filed on 8/2/17, asserts causes of action for:

1. Negligence

2. Loss of Consortium

STANDARD

A defendant moving for summary judgment/adjudication has met his burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP 437c(p)(2).)

MERITS

Alston moves for summary judgment on the following grounds:

1. Plaintiffs failed to state a claim against Alston.

2. Plaintiffs’ claims are barred under the Privette doctrine.

3. Plaintiffs’ discovery responses and pleadings are factually devoid.

4. Plaintiffs have no evidence of causation with regard to Alston.

Whether Plaintiff stated a cause of action against Alston

Alston’s Notice sets forth four grounds upon which the motion is based. (Notice, 2:9-19.) However, the Memorandum of Points and Authorities does not address the first ground. It is unclear to this court how the Complaint fails to state a claim.

If Alston is arguing that workers compensation is the exclusive remedy for Plaintiffs, such is irrelevant to Plaintiffs’ claims against Alston. It is undisputed that Torres is an employee of KML and has been receiving worker’s compensation medical benefits. (Defense Separate Statement (DSS) 19-20.) Plaintiffs’ claims against Alston is not based on the employer/employee relationship, but rather, are based on the exceptions to the Privette doctrine (discussed below).

The Privette Doctrine

When an employee of an independent contractor is injured in the workplace, the injured employee generally cannot sue the party that hired the contractor to do the work. (Privette v. Superior Court (1995) 5 Cal.4th 689, 695.) A hirer “delegate[s] responsibility for performing the task safely, and assignment of liability to the contractor follow[s] that delegation.” (Seabright Ins. v. U.S. Airways Inc. (2011) 52 Cal.4th 590, 600.)

An exception to the Privette general rule of nonliability provides that a hirer of an independent contractor may be liable if the hirer retained control over safety conditions and the exercise of retained control affirmatively contributed to the employee’s injuries. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202.) Because the liability of the contractor, the person primarily responsible for the worker's on-the-job injuries, is limited to providing workers' compensation coverage, it is unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over safety at the worksite. The imposition of tort liability on a hirer should depend on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor's employee. (Hooker, supra, 27 Cal.4th at 210.)

Alston submits the following evidence:

· Fedex Ground hired Alston as a general contractor for a construction project. (Babcock Decl., ¶ 5; DSS 3.)

· Alston subcontracted to AMPCO to perform demolition and asbestos treatment. (DSS 6.)

· AMPCO subcontracted to KML to provide asbestos abatement at the project site before the demolition took place. (DSS 7.)

· Torres was an employee of KML at the time of the incident, and has been receiving workers’ compensation benefits from KML. (DSS 19-20.)

· The Alston/AMPCO agreement contained a Site Specific Safety Plan that expressly delegated site safety to AMPCO and its lower-tier subcontractors, including but not limited to fall protection. (DSS 16; Defense Exhibit 3 at Ex. E.)

· AMPCO understood that it had total responsibility to ensure that its lower-tier contractors complied with Alston’s safety requirements. (DSS 18.)

· Alston did not perform any demolition or abatement work on the job site. (DSS 24.)

· Alston did not control the mode of Torres’s work; it was all directed by KML’s foreman. (DSS 25.)

· Alston did not affirmatively contribute to the occurrence of the incident. (DSS 26.)

· Alston’s participation on the worksite was its provision of written safety standards and general site management. (DSS 27.)

· The Site Specific Safety Plan states: “Subcontractors, who contract out all or part of their work, shall have the total responsibility to see that their lower tier subcontractors comply with project safety requirements and will incorporate all health, safety and environmental provisions herein and in the Subcontract into any and all contracts with their sub-subcontractors of any tier” (Defense Ex. 5 at p. 8.) “It is the sole responsibility of all subcontractors on the project to comply with all federal, state, and local safety and health guidelines and equirements. This program is to supplement and assist in their efforts for such compliance.” (Defense Ex. 3, at Ex. E, p. 6.)

Alston hired AMPCO who then hired KML, who is Torres’s employer. Torres is currently receiving worker’s compensation benefits as an employee of KML. Under these circumstances, Alston and KML had a second tier independent contractor relationship. Based on the evidence submitted, Alston has met its burden of producing evidence establishing that the Privette doctrine bars Plaintiffs’ claim.

By hiring an independent contractor to perform the demolition and abatement, Alston delegated to the independent contractor any tort law duty it owes to the independent contractor’s employee over safety. (See 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. That implicit delegation includes any tort law duty the hirer owes to the contractor’s employees to comply with applicable statutory or regulatory safety requirements.”; Johnson v. Raytheon Company, Inc. (2019) 33 Cal.App.5th 617, 628 - “Privette applies when the injured employee’s cause of action against the hirer of the independent contractor is based on the hirer’s failure to comply with statutory or regulatory workplace safety requirements.”)

In opposition, Plaintiffs contend that the Privette exception applies because Alston retained control over safety, directed and supervised KML’s employees in the performance of their duties, and affirmatively contributed to Torres’s injuries.

Plaintiffs initially contend that Alston assumed responsibility over safety, citing Alston’s contract with Fedex. (Opposition, 4:3; Disputed DSS 25.) However, the Fedex/Alston contract is an agreement delineating duties as between Alston and Fedex, not as between Alston and KML. Further, the contract states that Alston is “responsible for the safety of its employees.” (Plaintiff’s Separate Statement (PSS) 50.) It is undisputed that Torres is not Alston’s employee; rather, he is employed by KML and is currently receiving worker’s compensation benefits through KML. The Fedex contract therefore does not apply to Torres.

Alternatively, Plaintiffs contend that Alston voluntarily assumed responsibilities over safety because every Alston project was required to have a Site Specific Safety Plan (“Safety Plan”), which was then supposed to be incorporated into each subcontract agreement. (Disputed DSS 5.) Alston also had a Corporate Safety Manual that required subcontractors to have in place certain roof safety fall protections. (Id.) Alston also completes Inspection Checklists at the start of and during each project. (Id.)

However, Alston’s Safety Plan delegates safety responsibilities onto the subcontractors. The Site Specific Safety Plan specifically provides, “Subcontractors, who contract out all or part of their work, shall have the total responsibility to see that their lower tier subcontractors comply with project safety requirements and will incorporate all health, safety and environmental provisions herein and in the Subcontract into any and all contracts with their sub-subcontractors of any tier” (Defense Ex. 5 at p. 8.) “It is the sole responsibility of all subcontractors on the project to comply with all federal, state, and local safety and health guidelines and equirements. This program is to supplement and assist in their efforts for such compliance.” (Defense Ex. 3, at Ex. E, p. 6.) Therefore, any pre-project assessments or safety plans are “to supplement and assist”; it does not establish that Alston retained control over safety.

Indeed, Alston was required by Cal/OSHA, Title 8 to have certain safety requirements in place. The fact that it followed the law and required its subcontractors to have certain safety measures in place, by itself, does not establish liability. If Plaintiffs’ theory is adopted, then there would be no incentive for hirers of independent contractors to perform any minimal safety assessments. Such would appear to be against public policy.

Perplexingly, Plaintiffs then appear to contradict themselves. On the one hand, Plaintiffs argue that Alston retained control over safety because it had Safety Plans in place. Yet, at the same time, Plaintiffs argue that Alston did not provide KML with a Site Specific Safety Plan or fall prevention training.

Plaintiffs’ evidence in support of this latter argument lacks foundation. Avrit makes the conclusorily statement that “nobody on the worksite had been provided a copy of the Site Specific Safety Plan prior to Mr. Torres’ fall.” (Avrit Decl., ¶ 17.) This statement was made without any factual support. There is no declaration or testimony from anyone from KML or even Torres himself that supports the alleged fact that KML was not provided with a copy of the Site Specific Safety Plan. Avrit speculates that “nobody was given a copy of the Site Specific Plan” because the KML/AMPCO contract was signed before the AMPCO/Alston contract was signed. However, there is no requirement that one contract must be signed before the other, and in fact, both contracts were signed before KML started work on the project. Instead, evidence in the record indicates that KML bidded for the job through an extensive bidding process before KML/AMPCO contract was finalized. Avrit’s opinion amounts to pure speculation unsupported by any facts.

In fact, Alston’s Project Manager, Richard Babcock, declares that he met with AMPCO to “discuss” AMPCO’s subcontractor agreement with KML, and that AMPCO assured him that the KML/AMPCO agreement contained a copy of the AMPCO/Alston agreement that contained the Site Specific Plan. (Babcock Decl., ¶ 9.) Plaintiffs do not dispute that the KML/AMPCO agreement contained the requisite documents. Instead, Plaintiffs attempt to create a triable issue to DSS 17 by misstating Babcock’s testimony. In response to DSS 17, Plaintiffs state, “the Site Specific Safety Plan was not provided to KML,” citing Babcock’s deposition at 187:14-188:12. However, Babcock made no such assertion. Instead, Babcock simply acknowledges that the actual written Plan was not at the meeting between him and AMPCO. However, this does not mean that the Plan was “not provided to KML” through other means. Babcock explains that the subcontracts are sent “electronically through DocuSign.” (Id. at 188:23.) Plaintiffs fail to cite to any other evidence in the record showing that the Plan was “not provided to KML” as Plaintiffs argue in response to DSS 17.

Assuming arguendo, that Plaintiffs properly submitted evidence showing that the Plan was “not provided,” then this evidence would supports non-liability because it establishes that Alston did not retain control over safety.

In fact, Moulden testified that KML’s supervisor was responsible for ensuring that Torres wore his personal protective equipment. (Ex. 25, Moulden Deposition, 323:6-324:10.) Moulden further testified that it was not her role to direct or dictate to subcontractors specific types of safety equipment (Id. at 415:17-24); it was not up to the Site Supervisor to tell the subcontractors how to do their jobs (Id. at 416:4-7); and Alston does not direct the work of its subcontractors (Id. at 46:19-428:7).

The same analyis also applies to fall prevention training. Avrit opines that Alston should have given KML/Torres “fall prevention training.” (Avrit Decl., ¶ 52.) However, Alston is not Torres’s employer, and therefore is not required to provide any training about a job function that was delegated to an independent contractor such as KML/Torres. This statement is at odds with the Privette line of cases, which establishes that an independent contractor’s hirer presumptively delegates to that contractor its tort law duty to provide a safe workplace for the contractor’s employees. (See Seabright Ins. v. U.S. Airways Inc. (2011) 52 Cal.4th 590, 600.)

Moreover, even if the existence of a Safety Plan somehow shows that Alston retained control over safety, such, by itself, does not meet the requirements for an exception under Privette. As the Supreme Court stated in Hooker v. Department of Transportation, a hirer of an independent contractor is not liable to the subcontractor’s employees merely because the hirer retained control over safety conditions on the worksite. Rather, the hirer is only liable if its exercise of retained control of safety affirmatively contributed to the employee’s injuries. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202.)

If Alston had a Safety Plan in place, as argued by Plaintiffs, then Plaintiffs must identify the provision in the Safety Plan that affirmatively contributed to Torres’s injury.

Affirmative conduct can be established where, for example, the hirer negligently provided unsafe equipment for use. (McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 225-226.)

Alston did not provide KML or any of its employees with any tools or equipment. (Undisputed DSS 46.)

“[A]n assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished.” (Hooker, supra, 27 Cal.4th 202.)

Plaintiffs contend that Alston directed the work to be done in a specific manner, citing Disputed DSS 45. However, Alston’s Site Superintendent, Charles Gonzalez, testified that he would “observe” or climb the ladder “to see.” Merely observing a job being done is a passive exercise, which does not establish any interference with the job.

Plaintiffs also contend that Gonzalez instructed KML on how to do the job when he asked the KML foreman whether there were adequate “tie-off points for his men before they get up there.” (Gonzalez Deposition, 57:16-19.) Gonzalez was merely asking the KML foreman if he had adequate “tie-off points; Gonzalez did not instruct KML about how to do its job. Indeed, in response to the question, “Did you give any specifics regarding what type of tie-off points to look for?” Gonzalez replied:

No. I leave that up to the subcontractors being that they’re responsible and… that’s all part of their scope of work. I would have assumed through their companies to know what are the tie-off points and what aren’t. And I asked him if there’s nothing that he is capable of, to let me know, and as he came down the ladder, he said, “everything is good to go.”… I don’t go and… give directives on where to tie off. That is for the subcontractor to make that decision being they’re the professionals.

(Gonzalez Deposition, 66:5-9.)

More importantly, even if Gonzalez’s question is somewhow construed as retention of control over safety, Plaintiffs failed to produce evidence that Gonzalez’s question affirmatively contributed to Torres’s injury. In other words, Gonzalez asked whether KML had adequate anchorage points. He did not direct KML on what achorage points to use. KML responded that “everything is good to go.” If KML/Torres failed to tie themselves off properly, then such was KML/Torres’s decision. There is nothing in the record to indicate that Gonzalez’s general question affirmatively contributed to Torres’s injury.

Plaintiff’s expert, Brad Avrit, faults Alston for failing to ensure that there were adequate anchor points to tie off to on the roof (Avrit Decl., ¶ 26), as a hirer of an independent contractor, Alston was under no duty to check the roof for anchorage points.

In Tverberg v. Fillner Constr., Inc. (2012) 202 Cal.App.4th 1439, the Defendant contractor directed another subcontractor to dig holes where the Plaintiff independent contractor was expected to erect a canopy. There was also evidence that the general contractor failed to cover the holes after the independent contractor twice asked it to do so. The court reasoned that by ordering these holes to be created, and requiring the Plaintiff to conduct unrelated work near them, the contractor’s conduct may have affirmatively contributed to the injury.

Here, unlike in Tverberg, Plaintiffs have presented absolutely no evidence that Alston “created” any known dangerous condition on the property or that Torres/KML made any request to avoid a known dangerous condition. As the court in Tverberg acknowledged, “passively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution.” (Ibid.) In Tverberg, the independent contractor asked the Defendant to cover up a dangerous condition. Here, KML’s foreman advised Gonzalez that “everything is good to go.” (Disputed DSS 45.) There is no evidence that KML or Torres made any specific safety requests.

Accordingly, Plaintiffs fail to point to any evidence in the record showing that Alston directed that the work be done by use of a certain mode or method and that this instruction affirmatively contributed to Torres’s injuries.

Plaintiffs also contend that Alston failed to warn Torres about the skylights on the roof. (Opposition, 12:17-21.) It is unclear if Plaintiffs are trying to raise the Kinsman exception to the Privette doctrine because although the fact is referenced, Plaintiffs fail to raise this exception in their papers.

Regardless, so that the record is complete, this court will address the Kinsman exception here. In order to be liable on a failure to warn theory, Plaintiffs must present evidence that a landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, and the landowner failed to warn the contractor about this condition (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664).

Plaintiff’s expert, Brad Avrit, opines that the skylight is a dangerous condition and that Alston “exacerbated the dangerous condition… by failing to visually distinguish and/or warn.” (Avrit Decl., ¶ 59.) Simply concluding that Alston failed to warn of a condition is not enough. Plaintiffs must present evidence that Alston knew or should have known of a latent or concealed preexisting hazardous condition on its property, and failed to warn the contractor about this condition. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664.)

Here, there is no evidence that Alston knew or should have known about the skylights. In fact, according to Babcock, the skylights were never discussed during any pre-project jobsite walks, and they were not visible from above or below, and because the buildings were 50 years old there were no drawings available that would show the skylights. (PSS 72.) Gonzalez had no prior knowledge that skylights existed on the roof. (PSS 75.)

Further, Avrit makes conclusory statements that are not supported by any evidence, and as such, his opinion may be disregarded. For example, he states that the skylights were “known by AMPCO to exist on the rooftop” (Avrit Decl., ¶ 58), but this statement is not supported by any evidence. Further, whatever AMPCO knew does not mean that Alston possessed the same knowledge. There is simply a lack of evidence in the record that shows that specifically Alston knew about the skylights on the roof.

Avrit also opines that Alston should have been aware of the unsafe skylight had it performed the necessary pre-project safety assessment. (Avrit Decl., ¶ 56) However, this conclusion is not supported by any evidence, and lacks foundation. There is no evidence before the court that Alston was required to walk the roof to determine if skylights or other dangerous conditions existed on the roof, prior to allowing the subcontractor onto the roof.

Instead, Alston was required by Cal OSHA to require its subcontractors to follow certain safety guidelines. Cal OSHA determined that Alston did NOT violate of any Cal OSHA safety standards and dismissed the citation. (DSS 23.) The Cal OSHA Appeals Board made the following findings: “On August 3, 2015, Leonel Torres (Torres), a KML employee, fell through a skylight on the roof when he was not wearing fall protection. Fall protection had been provided and was readily available for his use, but Torres did not put it on. Torres had been trained in fall protection and was present at the safety meeting the morning of his accident, when Gonzalez instructed the workers that they were required to be “100 percent tied off” when they were working on the roof. Torres sustained a serious injury as a result of falling 16 feet to the concrete below the skylight… ‘The general contractor is not normally required to inspect for hazards as frequently or to have the same level of expertise and knowledge of applicable standards as the subcontractor it hired.’ … The Division failed to establish that Employer’s Injury and Illness Prevention Program was deficient. Employer implemented its procedures to identify safety hazards through periodic inspections and its program contained provisions for ensuring that employees complied with safe work practices.” (Cal/OSHA Appeals Board Decision.)

Accordingly, the court finds that the Privette doctrine bars Plaintiffs’ negligence cause of action against Alston. It follows that Plainiffs’ loss of consortium cause of action also fails. (CACI 3920.)

Based on the foregoing, motion for summary judgment is GRANTED.

Because summary judgment was granted based on Privette, the court need not address the remaining grounds cited in the moving papers, i.e. devoid discovery responses and causation.

Case Number: BC670915    Hearing Date: June 25, 2020    Dept: SEC

TORRES v. OLEN

CASE NO.: BC670915

HEARING: 06/25/2020

JUDGE: OLIVIA ROSALES

#9

TENTATIVE ORDER

Plaintiffs’ Motion to Tax Costs is OFF-CALENDAR as MOOT. Plaintiffs’ Motion for New Trial was GRANTED on May 11, 2020.

Moving party to give Notice.

The Court notes that there is a Status Conference scheduled for July 7, 2020 at 9:30 a.m. in Dept. SE-C regarding the potential re-setting of a Motion for Summary Judgment hearing.

Case Number: BC670915    Hearing Date: May 11, 2020    Dept: SEM

TORRES v. OLEN, et al.

CASE NO.: BC670915

JUDGE: MARGARET BERNAL

HEARING: 5/11/20

ORDER

Plaintiffs Torres and Sanchez’s motion for new trial is GRANTED.

Moving Parties to give NOTICE.

Plaintiffs Torres and Sanchez move for a new trial pursuant to CCP 657. 

NEW TRIAL: “A new trial is a re–examination of an issue of fact in the same court after a trial and decision by a jury, court or referee.” (CCP 656.) CCP 657 provides, “The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

5. Excessive or inadequate damages.

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7. Error in law, occurring at the trial and excepted to by the party making the application.

The granting of a motion for a new trial rests so completely within the discretion of the trial judge that an appellate court will not interfere with his action unless a manifest and unmistakable abuse of discretion clearly appears. (Wiley v. Southern Pacific Transportation Co. (1990) 220 Cal.App.3d 177, 188.) 

The court finds that a new trial is warranted because it was error to sustain Defendant’s Objection No. 1 to the declaration of Brad Avrit in its entirety. Therefore, in the interest of justice, the motion is GRANTED.

The court sets a status conference on July 7, at 9:30am in Dept C for the parties to determine if they want to reset the MSJ for hearing. No further briefing would be necessary. Counsel are urged to appear electronically for this hearing.

Case Number: BC670915    Hearing Date: January 14, 2020    Dept: SEC

TORRES, et al. v. OLEN, et al.

CASE NO.:  BC670915

HEARING 1/14/20

JUDGE: OLIVIA ROSALES

#6

TENTATIVE ORDER

Plaintiffs Torres, et al.’s motion for leave to amend the complaint to add punitive damages claim is MOOT.

Moving Parties to give NOTICE.

This action is brought by Plaintiffs Leonel Carrasco Torres and Maria Del Carmen Reyes Sanchez against Defendants Harry J. Olen, Lorraine Olen, Alston Construction, Ampco Contracting, Inc., and Fedex Ground for premises liability.

On 12/26/19, this court granted summary judgment in favor of Defendant Alston Construction Company, Inc.

Defendants Harry and Lorraine Olen were dismissed on 8/23/19; Defendant Ampco Contracting, Inc. was dismissed on 11/4/19; and Defendant Fedex has indicated to this court that it has been dismissed. (The court is awaiting the dismissal.)

Subject to Fedex’s dismissal, it does not appear that there are any remaining claims against any Defendant in this matter. The motion for leave to amend is MOOT and is taken off-calendar.

Case Number: BC670915    Hearing Date: December 17, 2019    Dept: SEC

TORRES, et al. v. OLEN, et al.

CASE NO.:  BC670915

JUDGE: OLIVIA ROSALES

HEARING 12/17/19

#10

TENTATIVE ORDER

Plaintiffs Torres, et al.’s motion for leave to amend the complaint to add punitive damages claim is CONTINUED to Tuesday, 1/14/20.

Moving Party to give NOTICE.

Case Number: BC670915    Hearing Date: December 03, 2019    Dept: SEC

TORRES, et al. v. OLEN, et al.

CASE NO.:  BC670915

HEARING 12/3/19

#8

TENTATIVE ORDER

Plaintiffs Torres, et al.’s motion for leave to amend the complaint to add punitive damages claim is CONTINUED to Tuesday, 12/17/19.

Moving Party to give NOTICE.

Case Number: BC670915    Hearing Date: November 19, 2019    Dept: SEC

TORRES, et al. v. OLEN, et al.

CASE NO.:  BC670915

HEARING 11/19/19

JUDGE: MARGARET M. BERNAL

#6

TENTATIVE ORDER

Plaintiffs Torres, et al.’s motion for leave to amend the complaint to add punitive damages claim is CONTINUED to Tuesday, 12/3/19.

Moving Party to give NOTICE.

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