On 04/04/2018 a Personal Injury - Other Personal Injury case was filed by SERGIO PANTOJA against ONNI CONTRACTING CALIFORNIA 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
DOES 1 TO 100
ONNI CONTRACTING (CALIFORNIA) INC
ONNI CONTRACTING CALIFORNIA INC
4/4/2018: PLAINTIFFS' COMPLAINT FOR DAMAGES
9/25/2018: Notice of Lien
9/25/2018: Notice of Lien
6/5/2019: Notice of Lodging
6/5/2019: Motion for Summary Judgment
6/5/2019: Proof of Service by Mail
6/5/2019: Separate Statement
6/5/2019: Memorandum of Points & Authorities
5/9/2018: PROOF OF SERVICE SUMMONS
4/16/2018: CIVIL DEPOSIT
Declaration (Declaration of Mike Noble); Filed by Onni Contracting (California), Inc (Defendant)Read MoreRead Less
Proof of Service by Mail; Filed by Onni Contracting (California), Inc (Defendant)Read MoreRead Less
Declaration (Declaration of Sean E. Smith, Esq.); Filed by Onni Contracting (California), Inc (Defendant)Read MoreRead Less
Declaration (Declaration of Jose Gutierrez); Filed by Onni Contracting (California), Inc (Defendant)Read MoreRead Less
Motion for Summary Judgment; Filed by Onni Contracting (California), Inc (Defendant)Read MoreRead Less
Declaration (Declaration of Edward Spurgeon); Filed by Onni Contracting (California), Inc (Defendant)Read MoreRead Less
Separate Statement; Filed by Onni Contracting (California), Inc (Defendant)Read MoreRead Less
Memorandum of Points & Authorities; Filed by Onni Contracting (California), Inc (Defendant)Read MoreRead Less
Notice of Lodging (Notice of Lodgment in Support of Onni's MSJ against Plaintiff's Complaint); Filed by Onni Contracting (California), Inc (Defendant)Read MoreRead Less
Declaration (Declaration of Armondo Lopez); Filed by Onni Contracting (California), Inc (Defendant)Read MoreRead Less
Cross-Complaint; Filed by Onni Contracting (California), Inc (Defendant)Read MoreRead Less
Answer; Filed by Onni Contracting (California), Inc (Defendant)Read MoreRead Less
Cross-ComplaintRead MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Sergio Pantoja (Plaintiff)Read MoreRead Less
Receipt; Filed by Sergio Pantoja (Plaintiff); Sky Pantoja (Plaintiff)Read MoreRead Less
CIVIL DEPOSITRead MoreRead Less
PLAINTIFFS' COMPLAINT FOR DAMAGESRead MoreRead Less
SUMMONSRead MoreRead Less
Complaint; Filed by Sergio Pantoja (Plaintiff); Sky Pantoja (Plaintiff)Read MoreRead Less
Case Number: BC700749 Hearing Date: December 11, 2019 Dept: 3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
SERGIO PANTOJA, ET AL.,
OMNI CONTRACTING (CALIFORNIA), INC., ET AL.,
CASE NO: BC700749
[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION TO QUASH
December 11, 2019
1. Background Facts
Plaintiffs, Sergio and Sky Pantoja filed this action against Defendant, Omni Contracting (California), Inc. for damages arising out of a construction-related accident.
2. Motion for Summary Judgment
At this time, Defendant moves for summary judgment on the complaint, contending it is not liable for Plaintiff’s injuries pursuant to Privette and its progeny. Plaintiff filed an opposition to the motion. Defendant filed a reply to the opposition. The Court has read and considered all papers in connection with the motion.
a. Initial Notes
The Court’s First Amended General Order Re: Mandatory Electronic Filing for Civil, dated 5/03/19, ¶9(b)(vi, requires parties to lodge tabbed courtesy copies of all papers in support of or opposition to a summary judgment motion. Defendant did not submit courtesy copies of its moving papers. Plaintiffs submitted courtesy copies of their opposition papers, but failed to tab the courtesy copies. Defendant did not submit courtesy copies of its reply papers. The Court has read and considered the papers despite this failure, but asks Counsel to provide tabbed courtesy copies of all summary judgment papers in the future in connection with this and other actions.
b. Evidentiary Objections
Plaintiff filed evidentiary objections with his opposition to the motion. The objections are overruled.
c. Undisputed Facts
Most of the facts relating to this motion are undisputed. Defendant was the general contractor on a construction project. Plaintiff was working for JT Wimsatt, which was the concrete subcontractor on the project, at the time of the accident. Plaintiff was attaching wall panels to vertical and horizontal aluminum beams on the building at the project when the incident occurred. As one of the wall panels was being hoisted into place by a tower crane, a tag line used to position the wall panel became entangled on upright rebar. Plaintiff attempted to untangle the tag line, and the wall panel that was suspended above him came apart and a piece fell and struck his head. Plaintiff lost consciousness, fell forward onto the exposed rebar, and was impaled through the chest.
Plaintiff alleges Defendant was negligent because it failed to (1) provide safe access to all elevations on the premises, such as with a ladder, (2) resolve known and longstanding issues with tag lines getting caught on the rebar, (3) place caps onto the rebar to protect against the hazard of impalement, (4) ensure the wall panels were safely designed, erected, supported, braced, and maintained, and (5) ensure the loads being hoisted were properly rigged to prevent falling.
d. Burdens on Summary Judgment
Summary judgment is proper “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 judgment as a matter of law.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)
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.) A defendant moving for summary judgment 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. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,
[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)
Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)
Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.
Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)
e. Privette Doctrine
Causes of action available to an injured employee of an independent contractor against the hirer of that contractor (i.e., the general contractor, owner, developer, etc.) have been severely limited. Vicarious liability-based causes of action or theories are precluded. Hooker v. Department of Transportation (2002) 27 Cal.4th 198.
However, the hirer can be held directly liable if its conduct affirmatively contributed to the plaintiff’s injuries. Ordinarily, the person hiring an independent contractor is not liable to the contractor's employees for on-the-job injuries. The independent contractor's employer's liability for such injuries is limited by workers' compensation, and the party who hired the contractor (and who indirectly paid for the contractor's workers' compensation coverage) likewise gets the benefit of that coverage. Privette v. Superior Court (1993) 5 Cal.4th 689, 693, 700-702; Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1244-1245; Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 264-270.
The Supreme Court has held that it would be unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for its worker’s on-the-job injuries, is limited to providing workers’ compensation coverage. As such, even if there is evidence that the hirer was directly liable for the plaintiff’s injuries, recovery is not available under the peculiar risk doctrine. Privette, supra.
f. Moving Burden
Pursuant to the recent case of Alvarez v. Seaside Transportation Services, LLC (2017) 13 Cal.App.5th 635, because of the Privette presumption of non-liability on the part of general contractors for injuries sustained by subcontractors and their employees, the general contractor can meet its moving burden on summary judgment merely by submitting certain foundational facts showing the Privette presumption applies. Specifically, the Court held, “Here, defendants provided the requisite factual foundation for the Privette presumption to apply. Their separate statement presented evidence that Evergreen hired plaintiff’s employer to perform work at the Evergreen Terminal, that the other defendants—Seaside and Ports America—were also hired by Evergreen to perform work there, and that plaintiff was injured while working at the site. This evidence was sufficient to establish that the Privette presumption applied and, therefore, shifted the burden to plaintiff to raise a triable issue of fact.” Id. at 644.
Thus, any argument advanced by Plaintiffs that Defendant did not meet its moving burden is unavailing, as Defendant herein clearly established the required foundational facts under Alvarez. The Court finds Defendant met its moving burden to show it is entitled to judgment as a matter of law, and the burden shifts to Plaintiffs to raise a triable issue of material fact.
b. Plaintiff’s Shifted Burden
i. Overall Responsibility for Safety
The vast majority of Plaintiffs’ additional facts address Defendant’s retained control over the general safety of the project, including Defendant’s knowledge that the rebar was not covered and ladders were not provided. The Court considered a similar argument in Zamudio v. City and County of San Francisco (1999) 70 Cal.App.4th 445, 453. In Zamudio, Tutor was the general contractor on a construction project. The owner of the premises was the City and County of San Francisco, which the Court referred to as “CCSF.” The plaintiff was a concrete contractor at the site, and he sued Tutor and CCSF after he sustained injuries when he stepped on a piece of plywood and the plywood gave way. The Court held, “And finally, contrary to appellant’s belated argument, the presence of a provision in the main contract delegating CCSF’s safety responsibilities to Tutor, does not itself create a duty of care upon Tutor toward appellant and does not preclude summary judgment.”
Similarly here, the fact that there is a provision in the contract giving Defendant overall responsibility for safety would not give rise to a duty running in favor of Plaintiff that can circumvent the holding of Privette and its progeny.
Plaintiff argues Tverberg v. Fillner Constr. (2012) 202 Cal.App.4th 1439 in on point in this regard. In Tverberg, the general contractor instructed one of its subcontractors to create holes in the construction area where the plaintiff was working. The plaintiff fell into one of the holes. The plaintiff presented evidence that the holes were not necessary to the work he was doing and were not expected in connection with the type of work he was doing. There was also evidence that the plaintiff had asked that the holes be covered, but the materials necessary to cover the holes were not present. The trial court granted summary judgment, finding no evidence of affirmative contribution. The court of appeals reversed, finding triable issues of material fact concerning whether the general contractor’s instruction to its subcontractor to create the holes at issue constituted affirmative contribution to the plaintiff’s accident.
The Court finds this case is not substantially similar to Tverberg. Plaintiff did not provide evidence that Defendant directed a subcontractor to create a dangerous condition, such as a hole in the floor. Instead, Plaintiff’s evidence is that Defendant knew about and ignored safety concerns, including the need for caps on rebar and the need for a ladder.
Liability against Defendant, as the general contractor on the project, can only be asserted if Defendant affirmatively contributed to Plaintiff’s injuries. Defendant met its initial burden to show it was a mere general contractor, and Plaintiffs failed to raise a triable issue of material fact in this regard. Defendant’s motion for summary judgment is therefore granted.
3. Motion to Quash
Plaintiff recently added Omni South Hill, LP as Doe 2 in this action. Omni South Hill, LP moves to quash and/or strike the complaint against it, contending Plaintiff unreasonably delayed in filing his doe amendment after learning Defendant’s identity.
a. Law Governing Relation Back Under the Circumstances
The court has discretion to deny a motion for leave to substitute a named person or entity for a “Doe” defendant where there is evidence of laches, i.e., an unreasonable delay by the plaintiff in seeking leave to amend after acquiring knowledge of the defendant's identity and culpability, that has prejudiced the defendant. See Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 939; Barrows v. American Motors Corp. (1983) 144 Cal.App.3d 1, 8; Okoro v. City of Oakland (2006) 142 Cal.App.4th 306, 313.
Even if the plaintiff has been dilatory in identifying a “Doe” defendant, the moving defendant must show specific prejudice resulting from the delay. Delay alone will not bar the amendment. Barrows, supra, at 9; see also Sobeck & Assocs., Inc. v. B & R Investments No. 24 (1989) 215 Cal.App.3d 861, 870; Winding Creek v. McGlashan (1996) 44 Cal.App.4th 933, 942-943.
Moving Defendant shows that Plaintiff knew of its identity since 10/10/18, but failed to name it for over a year. Defendant establishes that it has been prejudiced by this delay because the original trial date has already passed, because it has not been able to conduct discovery, and because it did not obtain the benefit of being able to join in the motion for summary judgment, discussed above.
Any opposition to the motion was due on or before 11/26/19. The Court has not received opposition to the motion. Moving Defendant met its moving burden to show it was prejudiced by Plaintiff’s delay in naming and serving it. In light of the lack of opposition, the motion is granted. The case against Moving Defendant is dismissed.
Moving Defendants are ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at firstname.lastname@example.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. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.