Filed 6/24/22 Sanchez v. Alston Construction Co. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

MARIA DEL CARMEN REYES

SANCHEZ, Individually and as

Personal Representative, etc.,

Plaintiff and Appellant,

v.

ALSTON CON S TRUCTION

COMPANY, INC.,

Defendant and Respondent. B309232

(Los Angeles County

Super. Ct. No.

BC670915)

APPEAL from a judgment of the Superior Court of Los Angeles

County, Olivia Rosales, Judge. Affirmed.

Greenberg & Ruby, David H. Greenberg

, Emily A. Ruby; Gusdorff

Law, Janet Gusdorff; The Farias Firm and James G. Farias for Plaintiff

and Appellant.

Friedenthal, Heffernan & Brown, Daniel Friedenthal, Jay D.

Brown

, James Lee; Ropers, Majeski, Terry Anastassiou and Maureen

C. O’Hara for Defendant and Respondent

.2

While working on a roof at a construction site, Leonel Carrasco

Torres fell through a skylight and was severely injured. His employer,

KML Services, Inc. (KML) was a subcontractor on the job. Torres and

his wife Maria Del Carmen Reyes Sanchez filed a per sonal injury suit.

The named defendants included the general contractor

, Alston

Construction Company, Inc. (Alston). The trial court granted Alston

summary judgment based on the Privette doctrine ( Privette v. Superior

Court (1993) 5 Cal.4th 689), which h olds a hirer of an independent

contractor is typically not liable for contractor’s negligence. ( Id. at pp.

691

– 692.) Plaintiffs timely appealed. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Alston is a construction general contractor. Alston acts solely in

a managerial capacity and hires independent contractors to perform

the actual construction work.

In 2015, Alston contracted with PanCal 11525 Shoemaker LLC

(PanCal) to alter an existing building and construct a parking lot for

FedEx Ground Package Sys tem, Inc. (FedEx Project)

. Alston

contracted with AMPCO Contracting, Inc. (AMPCO) to demolish

existing structures and pavement. In turn, AMPCO hired KML to

remove asbestos from the structures before the demolition began.

The Alston/AMPCO agreement contai ned a set of rules related to

worksite safety, among them Alston’s “Site Specific Safety Plan.” The

plan expressly delegated worksite safety, including “safety training and

equipment ” and “ [ f

] all prevention and/or protection” to AMPCO and its

lower

- tiered subcontractors. The plan also required subcontractors to

“perform and document pre

- task planning to identify any hazards

related to their work.” AMPCO understood and agreed that it was

respo nsible for ensuring that its lower

- tiered contractors comply with

the plan. The AMPCO/KML agreement referenced and expressly

incorporated the Alston/AMPCO agreement, including worksite safety

obligations for lower

- tiered contractors. Alston could inspect all

subcontractors’ work and had the right to shut down the FedEx Project

and/or have offending subcontractor employees removed if they were

not complying with safety regulations.3

Alston’s project superintendent, Chuck Gonzalez, was responsible

for genera l management of the worksite, including worksite safety.

However, Gonzalez “ was not responsible for supervising or monitoring

the activities of the independent contractors or their employees. ”

Torres was one of the KML workers assisting in the removal of

asbestos from an existing structure. On the morning of Torres’s

accident, project superintendent Gonzalez conducted a tailgate safety

meeting before work began. Among the attendees were Torres and

KML’s foreman. Gonzalez discussed job safety, including fall

protection. He also climbed a ladder to the roof line and “glanced” at

the roof where the asbestos remediation was to occur. Gonzalez then

asked the KML foreman to go up on the roof to locate tie

- off points to

anchor workers’ safety harnesses. The foreman climbed the ladder and,

after a minute, stated

, “ ‘ Everything is good to go. ’ ” The safety meeting

concluded, and KML employees began their work. Gonzalez went to

another part of the worksite.

While sweeping debris off the roof, Torres stepped t hrough a

fiberglass skylight. The skylight broke and Torres fell to the cement

slab below. He sustained catastrophic injuries. Torres received

medical care and benefits from KML’s workers’ compensation

insurance.

Torres and Sanchez (plaintiffs) filed a complaint against Alston

and other defendants for negligence and loss of consortium. 1

Specifically, plaintiffs alleged Torres’s fall resulted from defendants’

failure “to properly maintain and [ sic ] the premises.”

1 T orres died during the pendency of this appeal and his wife

Maria Del Carmen Reyes Sanchez was granted leave to substitute in as

plaintiff on the negligence claim. (Code Civ. Proc.

, § 377.30; Cal. Rules

of Court, rule 8.36(a).) For simplicity, for trial court proceedings we

refer to both parties collectively as “ plaintiffs ” unless we need to

designate Torres alone by name. Where appropriate i n th e “DISCUSSION” section, rather than use “plaintiffs” we refer solely to

“Sanchez ” as appearing both in an individual and a representative

capacity in this appeal.4

Alston moved for summary judgment. Alston argued that, as a

general contractor, Alston was not liable for worksite injuries s uffered

by an independent contractor’s employee. Alston reasoned it neither

retained control over worksite safety conditions nor negligently

exercised any alleged control that affirmatively contributed to Torres’s

injury.

In opposition, plaintiffs mainly argued that triable issues of fact

existed whether Alston was responsible for worksite safety and for

warning contract workers about the skylight, a concealed hazard.

Plaintiffs added that certain aspects of the Alston/AMPCO and

AMPCO/KML contracts meant that Alston solely retained

responsibility for the FedEx Project. As a result, plaintiffs contended,

worksite safety duties were never successfully delegated to the lower

tiered contractors. Plaintiffs also alleged Alston was liable for

breaching Califo rnia Occupational Health and Safety (Cal

- OSHA)

regulations

.

The trial court granted summary judgment, finding that Torres’s

negligence claim against Alston was barred by the Privette doctrine.

The ruling also disposed of his wife’s loss of consortium cla im.

Following entry of judgment, plaintiffs appealed.

DISCUSSION

On appeal, Sanchez contend s there are triable issues of fact:

(1) whether Alston presumptively delegated its worksite safety duties

to the lower

- tiered contractors or, if Alston did, (2) whether the

“retained control” and “concealed hazard” exceptions to the Privette

doctrine applied, making Alston liable for Torres’s in jury. Sanchez also

maintain s the Privette doctrine should be abolished as unconstitutional.

I. The Privette Doctrine

“ Workers’ compensation ‘ “is the exclusive remedy against an

employer for injury or death of an employee.” [Citation.] ’ ( Privette,

supra, 5 Cal.4th at p. 697.) In Privette

, the Supreme Court held that

‘an independent contractor’s employee should not be allowed to recover

damages from the contractor’s hirer, who “ is indirectly paying for the

cost of [workers’ compensation] coverage, which the [hired] contractor5

presumably has calculated into the contract price.” ’ ” ( Alvarez v.

Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 640.)

Thus, the so

- called Privette doctrine bars an employee of an

ind ependent contractor from recovering damages from the hirer of the

contractor for a worksite injury. ( SeaBright Ins. Co. v. US Airways,

Inc. (2011) 52 Cal.4th 590, 594.) In other words, a subcontractor’s

employee injured on the job is generally entitled t o no greater damages

than a similarly injured employee of a general contractor. Both

employees are limited to receiving workers ’ compensation benefits.

Apart from the workers’ compensation

- based rationale

undergirding the Privette doctrine, the Supreme Court has recently

placed greater emphasis on the rationale that a “presumptive

delegation of tort duties occurs when the hirer turns over control of the

worksite to the contractor so that the contractor can perform the

contracted work.” ( Sandoval v. Qualcomm Incorporated (2021) 12

Cal.5th 256 , 271 ( Sandoval ) .) “Over time, we’ve recast our primary

rationale for the Privette doctrine in terms of delegation rather than

workers’ compensation

. ” ( Id. at p. 270 ; Gonzalez v. Mathis (2021) 12

Cal.5th 29, 41 [ “ Our more recent cases emphasize delegation as the key

principle underlying this rule”].) As a result, “[t]here is a strong

presumption under California law that a hirer of an independent

contractor delegates to the contractor all responsi bility for workplace

safety.” ( Gonzalez, at p. 37.)

II. Exceptions to the Privette doctrine

Nonetheless, there are exceptions to the Privette doctrine. They

apply in situations where the presumption of delegation is overcome:

Under the “retained control” exception, “a hirer owes a duty to a

contract worker if the hirer retains control over any part of the work

and actually exercises that control so as to affirmatively contribute to

the worker’s injury.” ( Sandoval, supra

, 12 Cal.5th at p. 271, citing

Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202

( Hooker ).) Under the “concealed hazard” exception, “a landowner

- hirer

owes a duty to a contract worker if the hirer fails to disclose to the6

contractor a concealed premises hazard.” ( Sandoval

, at p. 271, citing

Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664 ( Kinsman ).)

III. The Privette Presumption and Summary Judgment

“ ‘ A defendant moving for summary judgment

. . . may

demonstrate that the plaintiff’s cause of action has no merit by showing

that (1) one or more elements of the cause of action cannot be

established, or (2) there is a complete defense to that cause of action. ’

{Citation.] [¶] Generally, ‘ the party moving for summary judgment

bears an initial burden of production to make a prima facie showing of

the nonexistence of any triable issue of material fact. ’ ” ( AMN

Healthcare Inc. v. Aya Healthcare Services, Inc. (2018) 28 Cal.App.5th

923, 933

– 934.) We review the trial court’s grant of summary judgment

de novo. ( Id. at p. 934.)

In negligence cases, where an independent contractor’s employee

suffers a worksite injury, the hirer who invokes the Privette doctrine

and moves for summary judgment must present a factual showing for

the doctrine to apply. That factual showing is the hir er employed the

independent contractor for work at the jobsite and the employee was

injured while working at the site. ( Alvarez v. Seaside Transportation

Services LLC

, supra

, 13 Cal.App.5th at p. 644.) Once this factual

showing is made, the presumption of delegation is triggered and the

burden shifts to the plaintiff/employee. If the plaintiff does not raise

triable issues of fact, the defendant/hirer is entitled to summary

judgment. (

Alvarez

, at p. 646.)

The plaintiff can rebut the presumption of delegation by

presenting evidence making a prima facie showing of a triable issue of

fact in support of one or more exceptions. ( Aguilar v. Atlantic Richfield

Co . (2001) 25 Cal.4th 826, 850

– 851.)

IV. Alston Made the Requisite Factual Showing for the

Privette Presumption To Apply

Alston established it was entitled to the presumption of

delegation. Alston presented evidence it hired AMPCO, who then hired

Torres’s employer KML for the FedEx Project. Torres was injured

while working on the project. KML’s workers’ compensation insur ance7

covered Torres’s injuries. “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.” ( Alvarez v. Seaside

Transportation Services LLC

, supra , 13 Cal.App.5th at p. 644.)

Sanchez

, however, argue s that deficiencies in the Alston/AMPCO

and AMPCO/KML contracts rendered them unenforceable. As a

consequence, according to Sanchez

, Alston failed to delegate its

worksite safety duties to the lowe r

- tiered contractors; the presumption

of delegation did not apply.

Sanchez first contend s the Alston/AMPCO contract may not have

been timely executed. It is undisputed that both parties signed the

agreement, but the electronic signature line reveals AMPCO signed it

on the date of Torres’s accident. Sanchez maintain s this means a

triable issu e exists whether the contract was signed after Torres fell,

making the agreement unenforceable. However, Sanchez cannot

speculate on potential untimeliness to create a triable issue of fact.

( Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481 [ oppos ing

party cannot controvert moving party’s evidence by mere speculation or

possibility]; Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th

1001, 1014 [same].) In any event, Sanchez failed to show the

Alston/AMPCO agreement was not binding unless signed by both

parties. (

Kaneko v. Okuda (1961) 195 Cal.App.2d 2 17, 225 [ a bsent “ a

showing that a contract is not to be deemed complete unless signed by

all parties, the parties signing may be bound though others have not

signed”].) Moreover, there is no evidence the parties treated the

Alston/AMPCO contract as not being fully consummated between them.

Sanchez also contend s the AMPCO/KML contract was

unenforceable because it appeared contingent upon a condition

precedent, a contract with another entity, that never occurred. A

condition precedent may be impliedly waived by conduct. (See Sosin v.

Richardson (1962) 210 Cal.Ap p.2d 258, 264.) Here, t he record leaves

no question that when Torres was injured, KML was working as

AMPCO’s subcontractor on the FedEx Project in accordance with their

agreement. Further, AMPCO acknowledged it had complete8

responsibility to ensure KML a nd other subcontractors complied with

Alston’s safety rules while working on the project. Because the

evidence established the presumptive delegation applied, the burden

shifted to plaintiffs to raise a triable issue of fact.

V. Summary Judgment was Prope r

Sanchez argue s that even if Alston met its initial burden as the

moving party, they succeeded in raising triable issues of fact in support

of the “retained control” and “concealed hazard” exceptions. Sanchez

also argue s Alston breached its nondelegable duties under Cal

- OSHA.

A. Plaintiffs Failed t o Raise a Triable Issue of

Fact t o Support the Retained Control Exception

Under the retained control exception, a hirer is subject to liability

if the hirer retained control over the independent contractor’s work and

exercis ed that retained control in a way that affirmatively contributed

to the contract worker’s injury. ( Sandoval

, supra , 12 Cal.5th at p. 271.)

“A hirer ‘retains control’ where it retains a sufficient degree of

authority over the manner of performance of the work entrusted to the

contractor.” ( Sandoval

, supra , 12 Cal.5th at p. 275.) A “hirer ‘actually

exercise[s]’ its retained control over the contracted work when it

involves itself in the contracted work ‘ such that the contractor is not

e ntirely free to do the work in the contractor’s own manner. ’ ” ( Id. at

p. 276.)

Sanchez seeks to recover under the retained control exception

because Alston “retained and exercised control over worksite safety and

the means and manner in which KML ’s employees perform their work.”

It appears Sanchez is relying on the PanCal/Alston contract and the

incorporated Site Specific Plan, which provides that Alston would be

“fully and solely responsible” for worksite safety. Alston’s position as a

worksite m anager, however, does not support an inference that Alston

“in fact involve[d] itself [in the contracted work], such as through

direction, participation

, or induced reliance. ” ( Sandoval, supra , 12

Cal.5th at p. 276; Tverberg v. Fillner Construction, Inc

. (2012) 202

Cal.App.4th 1439, 1446 [“ a hirer is not liable to a contractor or a

contractor’s employee merely because it retains control over safety9

conditions”].) Nothing in the record indicates that Alston actually

exercised any form of direct control ove r KML’s work or that Alston

restricted Torres and other KML workers from performing their work

in their own manner. With respect to the roof in particular, Sanchez

offer s no evidence that Alston had any discussions or issued any

instructions to KML regard ing skylights or roof safety, undertook

responsibility to inspect the roof before KML began work, interfered

with or prohibited any inspections of the roof before work began,

advised KML employees on where or how to tie off their harnesses

, or

otherwise ho w to perform their work on the roof. (See

, e.g.

, Madden v.

Summit View, Inc. (2008) 165 Cal.App.4th 1267 , 1276

- 1277 .)

Sanchez also contends Alston exercised retained control over

KML’s work based on the deposition testimony of Chuck Gonzalez,

Alston’s project superintendent. According to Sanchez, Gonzalez

“voluntarily undertook responsibility for inspecting the worksite and

supervising KML’s employees, but failed to identify any of the unsafe

conditions or work practices.” This misstates the evidence. Gonzalez’s

uncontroverted testimony was that he did not “inspect” or handle the

KML equipment to ensure it was safe for KML workers. That wa s

KML’s responsibility. As for the worksite, Gonzalez testified he asked

the KML foreman to go up on the roof to look for tie

- off points for the

workers’ safety harnesses. But Gonzalez did not direct the foreman

concerning the location or installation of the tie

- off points, which were

also part of KML’s responsibility. Gonzalez further testified it was

KML’s responsibility to identify all safety hazards on the roof,

including skylights.

Sanchez further asserts Alston affirmatively contributed to

Torres’s injury. She points to what she perceive s as Alston’s failure to

undertake certain safety precautions, contrary to the Site Specific

Safety Plan. Among them were Alston’s lack of a pre

- project hazard

assessment of the roof and implementation of fall protection rules.

Sanchez also make s much of Alton’s rush to have the work begin before

Gonzalez could distribute Alston’s safety materials to KML employees.10

To be sure, a hir er’s acts or omissions apart from the independent

contractors can be found to affirmatively contribute to a contract

worker’s injury. ( Sandoval, supra, 12 Cal.5th at p. 277.) But Sanchez

do es not explain how these omissions by Alston affirmatively

contri buted to the worksite injury. To the extent Sanchez is asking us

to infer that if Alston had not omitted these safety precautions, the

skylight would have been discovered and Torres’s injuries would not

have occurred, we decline to do so. It is true that courts are to consider

all evidence and inferences reasonably drawn from that evidence in

ruling on a summary judgment motion. ( Aguilar v. Atlantic Richfield

Co

. , supra

, 25 Cal.4th at p. 843.) At the same time, those inferences

must be reasonably deducible from the evidence, rather than from mere

speculation, as is the case here. ( Waschek v. Department of Motor

Vehicles (1997) 59 Cal.App.4th 640, 647.)

We conclude the evidence in the record cited by Sanchez and

reasonable inferences from that evidence do not create a triable issue of

fact regarding Alston’s exercise of retained delegation and affirmative

contribution, in part because some of the evidence cited by Sanchez

does not say what Sanchez claim s it says and because some of her

arguments rest on speculation.

B. Plaintiffs Failed t o Raise a Triable Issue of

Fact t o Support the Concealed Hazard Exception

Under Kinsman’s “concealed hazard” exception, the hirer is liable

only if (1) it knew, or should have known, of a latent or concealed

preexisting hazardous condition on its property; (2) the independent

contractor did not know and could not reasonably have discovered the

hazardous condition; and (3) the hirer failed to warn the contractor

about the condition. ( Kinsman, supra, 37 Cal.4th at p. 675.)

The trial court found the key issue was whether Alston knew or

should have known of the hazardous condition. Even the most cursory

review of the evidence in this case shows plaintiffs cannot satisfy this

element. Nothing in the record suggests Alston knew or should have

known about the skylights. In his deposition, FedEx Project manager

Richard Babcock testifie d the skylights were never discussed during11

pre

- project worksite meetings. He also stated the skylights were not

visible from above or below, and because the structure was 50 years

old, there were no drawings depicting the skylights. Project

superintende nt Gonzalez testified he never saw the FedEx Project

before the day of the accident, and he had no prior knowledge of the

skylights on the roof. Further, Gonzalez did go on top of the roof, but

quickly looked at it from the top of the ladder. He never sa w the

skylights. And, as we have discussed above in connection with the

Hooker exception, Alston never undertook the responsibility to inspect

the roof for any hazards that could endanger KML employees. That

responsibility was exclusively KML’s.

Sanchez counter s the project site plans may have shown the

skylights on the roof, and had Gonzalez been afforded adequate time

for a pre

- job inspection, he may have found the skylights. Sanchez

further claim s the KML foreman’s notes from the pre

- accident meeting

that day expressly warned workers not to step on the skylights.

However, because the plaintiffs’ expert determined the admonition was

not written by the foreman, Sanchez argue s a triable issue of fact exists

whether Alston added the admonition lat er as a “coverup.” Once again,

Sanchez improperly rel ies on speculation, but also argument and

theory in an attempt to defeat summary judgment. ( Wiz Technology,

Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 10

– 11.)

We conclude Sanchez has failed to raise a triable issue of fact

whether Alston knew or should have known of the skylights, a

concealed hazardous condition.

VI. Cal

- OSHA D oes Not Impose Nondelegable Dut ies

Up on Alston

Sanchez additionally contend s the Cal

- OSHA regulations set

forth in California Code of Regulations, title 8, section 1511,

subdivision (b) ( pre

- work worksite hazard survey ) , section 1644 ( metal

scaffold ) , and section 3212, subdivision (a)(1) ( floor and roof opening

guards ) impose a no ndelegable duty on Alston.

Generally, a plaintiff can rely on statutory or regulatory law to

show that a defendant owes the plaintiff a duty of care. ( Elsner v.12

Uveges (2004) 34 Cal.4th 915, 927, fn. 8.) However, our Supreme Court

has held that Cal

- OSHA regulations do not impose nondelegable duties

upon a hirer of an independent contractor. ( SeaBright Ins. Co. v. US

Airways Inc., supra, 52 Cal.4th at p. 594.) In SeaBright

, an employee

of an independent contractor hired by an airline to repair a luggage

conveyor was injured when his arm was caught in the conveyor’s

moving parts. ( Id. at p. 594.) Here, Sanchez attempt s to distinguish

SeaBright by arguing the Supreme Court intended that the hirer

presumptively delegates its tort duties only with respect to the job that

the contract worker was specifically hired to do. According to Sanchez

,

unlike the injured worker in SeaBright

, Torres was not hired “ to

perform work on the skylights, or discuss the skylights with anyone

prior to KML beginning work.” We are not persuaded. The Supreme

Court express ly stated the delegation “ includes any tort law duty the

hirer owes to the contractor’s employees to comply with applicable

statutory or regulatory safety requirements .” ( SeaBright

, at p. 594 .)

Th us, there are no triable issues of fact whether nondelegable dut ies

exist

.

VI I

. Constitutionality of the Privette doctrine

Notwithstanding the two recent California Supreme Court

opinions reaffirming the Privette doctrine, Sanchez contend s it is

unconstitutional. We are bound by our high court’s decisions on this

issue and conclude the doctrine is not unconstitutional. ( Auto Equity

Sales

, Inc. v. Superior Court ( 1962) 57 Cal.2d 450, 455.)13 DISPOSITION

The judgment is affirmed. Alston Construction Company, Inc. is

to recover its costs on appeal.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN

- GERST, J.

HOFFSTADT, J.