Filed 11/21/23 Martinez v. CalCom Roofing CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ROSA MARIA REYES MARTINEZ et 

al.,

Plaintiffs and Appellants,

v.

CALCOM ROOFING, INC. et al.,

Defendants and Respondents.

 D082216

 (Super. Ct. No. RIC1904392)

APPEAL from judgments of the Superior Court of Riverside County, 

Daniel A. Ottolia and Craig Riemer, Judges. Affirmed.

Steven B. Stevens, A Prof. Corp., and Steven B. Stevens; Jacoby & 

Meyers Attorneys and Laura F. Sedrish, for Plaintiffs and Appellants.

Law Office of Jillisa L. O’Brien, Inc., Jillisa L. O’Brien, Conor H. 

McElroy, for Defendant and Respondent CalCom Roofing, Inc.

Horvitz & Levy, Curt Cutting, Bradley S. Pauley; Law Offices of 

Beth M. Henderson and Robert E. Henke, for Defendants and Respondents 

Bryan Industrial Properties, Inc., Hoyt Gregory S RSH FT TR B SETT TR, 

and RS Hoyt Jr. Family Trust.
2

Defendants Bryan Industrial Properties, Inc., Hoyt Gregory S RSH FT 

TR B SETT TR, and RS Hoyt Jr. Family Trust (Bryan Industrial/Hoyt) hired 

CalCom Roofing, Inc. to reroof their commercial warehouse building. Bryan

Industrial/Hoyt defined the project to include removing the roof’s two layers 

of cap sheet from the existing plywood roof deck and then installing new roof 

board over the plywood. 

CalCom hired Honeycutt Construction Management, LLC to tear off 

the existing cap sheet and Elite Roofing Supply to supply and deliver the 

roofing materials and load them onto the roof. On the day that Honeycutt 

began tearing off the cap sheet, Elite Roofing began loading materials onto an 

area of the roof that it and Honeycutt selected. While Elite Roofing 

employee, Willfred Reyes, was carrying sheets of roof board on the roof, a 

portion of the roof that Honeycutt had stripped of cap sheet gave way 

underneath him. Reyes fell through the roof to his death. 

Reyes’ parents, Rosa Maria Reyes Martinez and Rodrigo Delgado 

Fernandez (the Parents), recovered workers’ compensation benefits from 

Elite Roofing for Reyes’ death. They then filed a wrongful death negligence 

and premises liability action against Bryan Industrial/Hoyt, CalCom, and 

Honeycutt. 

Under Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette), an 

independent contractor’s employee is generally barred from recovering 

damages from the contractor’s hirer for an on-the-job injury. (SeaBright Ins. 

Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594 (SeaBright).) Two 

exceptions exist: (1) where the injury results from a concealed hazardous 

condition on the property that the landowner-hirer knew or should have 

known of, that the contractor did not know of and could not reasonably

ascertain, and about which the landowner-hirer failed to warn the contractor 
3

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

(2) where the hirer retained control over any part of the work and exercised 

that control in a way that affirmatively contributed to the worker’s 

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

(Hooker)). 

Bryan Industrial/Hoyt and CalCom separately moved for summary 

judgment on the grounds that Privette applied and barred the claims against 

them. The Parents opposed both motions, contending that the Kinsman and 

Hooker exceptions applied. The trial court disagreed and granted the 

motions, finding the Privette doctrine applied and the Parents had not shown 

a triable issue of fact as to either exception’s application.

On appeal, the Parents argue—for the first time—that the Privette

doctrine cannot apply to Elite Roofing because it was a mere “material 

supplier” and not a contractor. The Parents further argue in the alternative 

that, even assuming Elite Roofing was a contractor to which Privette applied, 

a triable issue of fact exists as to either or both exceptions. First, they 

contend there is substantial evidence that Bryan Industrial/Hoyt and 

CalCom knew or should have known about the roof’s allegedly hazardous 

condition because the plywood underneath the roof’s cap sheet had been 

weakened by age and water damage. Second, they contend there is 

substantial evidence that Bryan Industrial/Hoyt and CalCom retained 

control over the reroof project and exercised that control in a manner that 

affirmatively contributed to Reyes’ fall, including by requiring that the cap 

sheet be removed and by failing to provide a fall protection system on the 

roof. We disagree with each of these contentions and affirm the judgments in 

favor of Bryan Industrial/Hoyt and CalCom. 
4

I.

A.

In 1967, Bryan Industrial built a commercial warehouse in Anaheim, 

California for Hoyt. When constructing the roof, Bryan Industrial used the 

thinnest plywood panels—three-eighths of an inch—acceptable for the roof 

deck at the time. As of 2019, the warehouse’s roof was still comprised of the 

original three-eighths inch plywood, which was covered with the original 

layer of cap sheet and a second layer from a past reroof. 

Bryan Industrial also managed the warehouse property for Hoyt. In 

2001, Bryan Industrial hired property manager Kevin Zeigler, who had 

decades of experience in roofing, inspecting roof systems, conducting leak 

investigations, and providing general consulting for roof system installations. 

Bryan Industrial also hired CalCom to perform annual maintenance on the

warehouse roof, much of which was preventative. According to CalCom, this 

maintenance included applying new roof mastic over the top of any areas on 

the cap sheet roofing system where existing roof mastic showed signs of 

cracking or where a nail head might have popped through the cap sheet. 

Then CalCom applied a white reflective paint over the new roof mastic to 

proof it from the sun and water. 

Over the years, CalCom also repaired water leaks in the warehouse’s 

roof. In April 2013, CalCom repaired a water leak in the roof’s northwest 

corner. It patched a leak in the roof’s southwest corner where water from the 

roof went into a downspout and was leaking into an office. CalCom 

additionally repaired leaks around May 2015 and December 2018. During 

this time, no one informed CalCom of any concerns about the roof plywood’s 

safety or condition. 
5

B.

At some point, Hoyt and Bryan Industrial decided to replace the 

warehouse roof during the approximately one-month period that the 

warehouse would be vacant between tenants. Zeigler testified that they 

decided to replace the roof because they had been experiencing a few roof 

leaks over the years, and although the roof had some more “life left to it,” it 

was extremely difficult to install a new roof when the warehouse was 

occupied by a tenant. 

In May 2019, Bryan Industrial hired CalCom to reroof the warehouse. 

Bryan Industrial also hired an air conditioning contractor, AccuTemp, to 

remove some of the rooftop’s air conditioning ducts and exhaust fans that 

were no longer in use. In addition, Zeigler tasked Bryan Industrial’s 

maintenance supervisor, Octavio Salcedo, with preparing the warehouse for 

the reroof project. That work included locating and removing roof 

penetrations—pipes through the roof—that were no longer in use, marking

from inside the warehouse where skylights would be installed, and cutting

out the insulation where the skylights would be placed. 

On May 31, 2019, Bill Leinenweaver of CalCom, Zeigler and Salcedo of 

Bryan Industrial, and Kirk Vasquez of AccuTemp performed a jobsite 

walkthrough for the reroofing project, which included assessing the overall 

condition of the warehouse and rooftop. At the time of the walkthrough, the 

warehouse’s existing cap sheet roofing system was still in place. During the 

walkthrough, Zeigler, Salcedo, Leinenweaver, and Vasquez walked “all over 

the roof,” and Zeigler did not locate any weak or compromised areas. 

Likewise, Leinenweaver of CalCom did not discover or observe anything that 

concerned him about the roof’s condition. 
6

Bryan Industrial and Hoyt defined the reroof project for CalCom to 

include removing the two layers of cap sheet roof and then installing 

DensDeck roof board over the existing plywood substrate, which was 

underneath the cap sheet. CalCom’s responsibilities included adding the new 

DensDeck roofing material; determining which contractors to hire to perform 

the tear off of the existing roof and to provide the necessary roofing supplies; 

and managing the sequencing of the contractors it hired for the job. 

To that end, CalCom hired Honeycutt to tear off the existing cap sheet 

roofing. CalCom also purchased roofing supplies from Elite Roofing and 

hired Elite Roofing to deliver and load the supplies onto the rooftop. CalCom

did not offer or promise Honeycutt or Elite Roofing that it would provide any 

type of safety measures related to their work.

C.

On June 7, 2019, Elite Roofing began delivering the materials to the 

jobsite for CalCom. Before loading materials onto any roof at a jobsite, Elite 

Roofing’s normal procedure was to inspect the roof, including inspecting 

inside the building to ensure the beams were “okay” and then checking while 

on the actual roof to ensure the roof was strong. If the Elite Roofing 

employees felt the roof was unsafe or weak, they could use fall restraint 

harnesses kept in Elite Roofing’s truck. 

Before going onto the roof on June 7, 2019, Elite Roofing employees

determined that the roof appeared to be safe by inspecting the roof from 

inside the warehouse and using a ladder to visually inspect the roof from the 

outside. Jose Hernandez, an Elite Roofing employee, testified that he and 

two other Elite Roofing employees conducted a visual inspection of the

warehouse’s interior to ensure the beams were “solid” before going onto the 

roof. Elite Roofing employees testified that they decided fall restraint devices 
7

were unnecessary for their work on the warehouse roof because the roof was 

flat and “they were not going to get near the edge.”1 

When Elite Roofing started loading the roof with supplies, Honeycutt

was already on the roof tearing off the cap sheet. Elite Roofing employees 

used a forklift—which they brought to the property—to load the materials 

onto the roof. Elite Roofing employees decided to stack the materials on the 

roof in a location that they and a Honeycutt employee determined would be 

safest and out of Honeycutt’s way. CalCom did not direct Elite Roofing or its 

employees on how to deliver the materials or where to load them on the roof. 

At no time during Elite Roofing’s work did Elite Roofing observe anything on 

the roof deck that appeared unsafe. 

While two Elite Roofing employees—Willfred Reyes and a coworker—

together carried some sheets of roof board near the center of the warehouse’s 

roof, the plywood underneath Reyes gave way, and he fell through the roof to 

his death. 

The location where Reyes fell was not an area where there had been 

any previously repaired water leaks and was not near any penetrations 

removed by AccuTemp or Salcedo. Earlier that day, Salcedo of Bryan 

Industrial had walked in the general area where Reyes later fell, including on 

the plywood deck after the cap sheet had been removed, and he did not see a 

hole or notice anything out of the ordinary. CalCom had not been to the 

1 It is also undisputed that the warehouse roof did not have any anchor 

points or harness systems installed for use with fall restraint devices. 

However, the parties do not identify any evidence suggesting that Elite 

Roofing employees noticed the lack of anchor points or harness systems on 

the roof or that this influenced their decision not to wear their fall restraint 

harnesses.
8

jobsite at any point between the time Honeycutt began tearing off the cap 

sheet and Reyes’ fall. 

At some point after Reyes’ fall, Zeigler arrived to the jobsite. He later 

used a drone to take photographs of the roof, which showed that Reyes fell 

through a portion of the roof where Honeycutt had already removed the two 

layers of cap sheet. 

Following the accident, CalCom hired an engineer to design a fall 

protection system, and installed tie-off anchors and walkways for workers to 

use on the roof. In August 2019, Honeycutt and CalCom crews walked the 

entire roof deck during the tear off and reroof process without the plywood 

roof deck breaking or giving way in any other area. 

D.

After Reyes’ death, the Parents received workers’ compensation 

benefits from Elite Roofing’s insurer. They additionally filed a wrongful 

death action against CalCom, Honeycutt, Bryan Industrial, and Hoyt for 

general negligence and against Bryan Industrial and Hoyt for premises 

liability. 

Bryan Industrial/Hoyt and CalCom separately moved for summary 

judgment, contending that the Parents’ claims were barred by Privette, which 

held that the hirer of an independent contractor generally is not liable for

on-the-job injuries sustained by the independent contractor’s employees. The 

Parents opposed both motions, arguing exceptions to Privette’s nonliability 

rule applied, including that (1) defendants retained control over the jobsite 

and affirmatively contributed to Reyes’ death and (2) defendants failed to 

warn Elite Roofing about the roof’s concealed hazardous condition. 

In support of their oppositions to both motions for summary judgment, 

the Parents filed the declaration of their civil engineer expert, Brad P. Avrit. 
9

Avrit opined that three-eighths inch plywood has decreased weightbearing 

capacity and is more susceptible to structural compromise due to age, 

exposure to the elements, and other factors compared to thicker five-eighths

inch or half inch plywood. He averred that because the warehouse building’s 

original three-eighths inch plywood panels “were essentially over 50 years 

old,” they were “subject to aging and deterioration factors that would 

typically compromise such an old structural component.” He opined that he 

inspected the plywood panel that collapsed under Reyes and found that 

“either due to the old age of the plywood and/or inherent conditions, the 

subject plywood panel was delaminated, dried out, and/or otherwise defective, 

which is visible and/or identified in [his] inspection photographs.” He further 

averred that Honeycutt’s scraping and removal of layers of cap sheet further 

eroded the plywood panel’s structural integrity and stability. 

Avrit concluded that CalCom, Bryan Industrial, and Hoyt knew “there 

was a high likelihood of rotted and/or degraded wood panels on the roof.” As 

support for this opinion, he noted the roof’s 50-year-old age and observed that 

CalCom’s June 3, 2019 contract included line items for replacement of “rotted 

plywood,” and that the property had experienced previous water leaks in the

southwest and northwest corners repaired by CalCom.2

Avrit further concluded that CalCom, Bryan Industrial, and Hoyt knew 

or should have known of the roof’s “defective condition” and the dangerous 

roofing operation at the time of Reyes’ accident. As to CalCom, Avrit 

observed that CalCom had knowledge of prior leaks and repairs over the 

2 As additional support for his opinion, Avrit stated that Zeigler had

testified the plywood was either installed damaged or was damaged by water 

intrusion. However, as the parties acknowledged in letters they submitted 

after oral argument, this purported deposition testimony is not in the record 

before us. Therefore, we need not and cannot consider it.
10

previous decade, and as to all three defendants, they had the “knowledge, 

experience and roofing expertise to best assess the roof conditions.” 

Bryan Industrial/Hoyt and CalCom objected to Avrit’s declarations filed 

in opposition to their respective motions. The court overruled all objections to 

Avrit’s declarations and granted Bryan Industrial/Hoyt’s and CalCom’s 

motions for summary judgment. In both of its orders on the motions for 

summary judgment, the trial court found Privette barred liability and that no 

exceptions to Privette applied. The court then entered judgments in favor of 

Bryan Industrial/Hoyt and CalCom, and the Parents appealed.

II.

A.

Under California’s Privette doctrine, an employee of an independent 

contractor is generally barred from recovering damages from the hirer of that

contractor for an on-the-job injury. (SeaBright, supra, 52 Cal.4th at p. 594.) 

The doctrine is based on the rationale that California’s “workers’

compensation scheme ‘is the exclusive remedy against an employer for injury 

or death of an employee.’ ” (Privette, supra, 5 Cal.4th at p. 697.) It follows 

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] contractor presumably 

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

Services LLC (2017) 13 Cal.App.5th 635, 640 (Alvarez).) In other words, an 

independent contractor’s employee injured on the job is generally entitled to 

no greater damages than a similarly situated employee of the hirer—both are 

limited to workers’ compensation benefits.

Over time, our Supreme Court has “recast [the] primary rationale for 

the Privette doctrine in terms of delegation rather than workers’
11

compensation.” (Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 

270 (Sandoval).) Because contractors typically are expected to perform the 

contracted work more safely than hirers, the Supreme Court has “endorsed a 

‘strong policy’ of presuming that a hirer delegates all control over the 

contracted work, and with it all concomitant tort duties, by entrusting work 

to a contractor.” (Ibid.) As a result, “[t]here is a strong presumption under 

California law that a hirer of an independent contractor delegates to the 

contractor all responsibility for workplace safety.” (Gonzalez v. Mathis (2021)

12 Cal.5th 29, 37 (Gonzalez).)

There are two narrow exceptions to the Privette doctrine, which “apply 

where delegation is either ineffective or incomplete.” (Sandoval, supra, 

12 Cal.5th at p. 271.) One such exception—known as the concealed hazard 

exception—applies when “a hirer intends to delegate its responsibilities to 

the contractor in principle but, by withholding critical safety information, 

fails to effectively delegate its responsibilities in practice.” (Ibid.) The 

other—known as the retained control exception—similarly applies where the 

delegation is incomplete. That exception is triggered when “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.” (Ibid.) 

B.

On appeal from a judgment entered after an order granting summary 

judgment, we review the record de novo to determine whether triable issues 

of material fact exist and whether the moving party is entitled to judgment as 

a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 

(Aguilar).) Because the Privette doctrine affects the burden of producing 

evidence, once the defendant hirer establishes the foundational facts for the 

Privette doctrine to apply—that the defendant hired the plaintiff’s employer 
12

to perform work on the jobsite and the plaintiff was injured while working at 

the site—the burden shifts to the plaintiff to raise a triable issue of material 

fact. (Alvarez, supra, 13 Cal.App.5th at pp. 643–644.) Thus, the plaintiff can 

rebut Privette’s presumption of delegation only by presenting admissible 

evidence making a prima facie showing of a triable issue of fact in support of 

one or more exceptions to Privette. (Id. at pp. 644–646.) However, if the 

defendant “provided sufficient evidence to trigger the Privette presumption 

and [the] plaintiff d[oes] not raise a triable issue of fact,” the defendant is 

entitled to summary judgment. (Id. at p. 646.)

III.

A.

In their motions for summary judgment, CalCom and Bryan 

Industrial/Hoyt both established with undisputed evidence that Bryan 

Industrial/Hoyt hired CalCom for the reroofing project; CalCom hired Reyes’ 

employer, Elite Roofing, to supply, deliver, and load roofing materials onto 

the roof; and Reyes fell while performing that delivery and loading work for 

his employer, Elite Roofing. That was enough to establish the Privette

doctrine applied and to “shift[ ] the burden to [the Parents] to raise a triable 

issue of fact” as to the applicability of an exception to Privette. (Alvarez, 

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

Yet, for the first time on appeal, the Parents argue the Privette doctrine 

does not apply. In an argument they did not raise either in briefing or during 

the summary judgment hearings before the trial court, the Parents now 

assert that Elite Roofing was merely a “vendor” or “materials supplier” and 

not a “contractor”—which they define, without authority, as someone who 

“actually d[id] work on the land, building, or project.” The Parents’ theory 

goes that Privette applies only to “contractors,” and because Elite Roofing 
13

simply delivered and supplied roofing materials without performing any 

“work” on the warehouse roof, Privette cannot apply.

We need not consider the Parents’ new argument because it was not

raised before the trial court and thus, is forfeited. “[P]ossible theories that 

were not fully developed or factually presented to the trial court cannot 

create a ‘triable issue’ on appeal.” (American Continental Ins. Co. v. C & Z 

Timber Co. (1987) 195 Cal.App.3d 1271, 1281; cf. Ryan v. Real Estate of the 

Pacific, Inc. (2019) 32 Cal.App.5th 637, 644 [considering plaintiffs’ new 

theory on appeal regarding an issue that plaintiffs had previously challenged 

in the trial court because it presented a pure question of law to be applied to 

undisputed facts].) “A party is not permitted to change his [or her] position 

and adopt a new and different theory on appeal. To permit him [or her] to do 

so would not only be unfair to the trial court, but manifestly unjust to the 

opposing litigant.” (Ernst v. Searle (1933) 218 Cal. 233, 240–241.) 

Having determined that CalCom and Bryan Industrial/Hoyt carried 

their burden of establishing the Privette presumption applies to bar liability, 

we next consider whether the Parents have produced admissible evidence 

raising a triable issue of fact as to either exception’s application.

B.

In a premises liability action, the “usual rules about landowner 

liability” are “modified, after Privette, as they apply to a hirer’s duty to the 

employees of independent contractors.” (Kinsman, supra, 37 Cal.4th at 

p. 674.) Because the landowner delegates responsibility for employee safety 

to the independent contractor, “a hirer has no duty to act to protect the 

employee when the contractor fails in that task and therefore has no 

liability.” (Ibid.) Under the concealed hazard exception, however, “the hirer 

as landowner may be independently liable to the contractor’s employee . . . if 
14

(1) [the landowner] knows or reasonably should know of a concealed, preexisting hazardous condition on [the] premises; (2) the contractor does not 

know and could not reasonably ascertain the condition; and (3) the landowner 

fails to warn the contractor.” (Id. at p. 675.) The Parents contend a triable 

issue of fact exists as to whether this exception applies to their claims against

Bryan Industrial/Hoyt and CalCom. We disagree. 

1.

As to their premises liability claim against Bryan Industrial/Hoyt, the

Parents argue a reasonable jury could find each element of the exception:

(1) Bryan Industrial/Hoyt knew, or should have known, of a concealed 

preexisting hazardous condition on the roof; (2) Elite Roofing did not know 

and could not reasonably have discovered the hazardous condition; and 

(3) Bryan Industrial/Hoyt failed to warn Elite Roofing about the hazardous 

condition. (Kinsman, supra, 37 Cal.4th at p. 675.) Pointing to their expert’s 

declaration, the Parents contend a preexisting concealed hazard existed 

because the plywood roof deck had not been replaced in 50 years, it was built

using the thinnest plywood permitted at the time of its construction so that 

its “weight bearing potential declines” compared to thicker plywood, and the 

plywood was more susceptible to structural compromise because of its age 

and weather exposure. 

Even accepting that the roof plywood was weak and constituted a

“concealed hazardous condition,” however, the Parents fail to identify

substantial evidence that Bryan Industrial/Hoyt knew or should have known

of it. The Parents contend Bryan Industrial/Hoyt clearly knew of the 

plywood’s condition because they included a line item in their reroofing 

contract with CalCom requiring CalCom to “replace rotted plywood as 

necessary.” We do not agree that this single line item, without more, creates 
15

a triable issue of fact. The contract also required CalCom to install the 

DensDeck roof board over the existing plywood, rather than removing and 

replacing the plywood first. Thus, we cannot reasonably infer that Bryan 

Industrial/Hoyt, knowing the roof’s plywood was in such a hazardous and

rotten condition, would pay a company to install roof board over that plywood

without replacing it first. It is also undisputed that CalCom was not

informed the plywood was in poor condition or that there were any concerns 

about its safety. Accordingly, we cannot conclude this single contract term is 

evidence from which a jury could reasonably infer that Bryan Industrial/Hoyt 

actually knew the plywood was hazardous. (See Roddenberry v. Roddenberry

(1996) 44 Cal.App.4th 634, 651 (Roddenberry) [“Inferences may constitute 

substantial evidence, but they must be the product of logic and reason. 

Speculation or conjecture alone is not substantial evidence.”]; LaChapelle v. 

Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981 [A party “cannot 

avoid summary judgment by asserting facts based on mere speculation and 

conjecture, but instead must produce admissible evidence raising a triable 

issue of fact.”].) 

Likewise, there is no evidence from which a reasonable jury could find 

that Bryan Industrial/Hoyt reasonably should have known of the plywood’s 

concealed hazardous condition. Before Reyes’ fall, there were several visual 

inspections of the roof, all of which indicated that the roof’s condition 

appeared safe. One of those inspections took place during a May 31, 2019

walkthrough, before Honeycutt began tearing off the roof’s cap sheet. During 

that pre-job walkthrough, representatives from CalCom, Bryan Industrial, 

and AccuTemp walked “all over the roof,” and both Bryan Industrial’s and 
16

CalCom’s representatives testified they did not discover or observe anything 

concerning about the roof’s condition. 

A second inspection took place about a week later, on the morning of 

Reyes’ fall. The undisputed evidence shows that before loading materials 

onto the roof, Elite Roofing employees visually inspected the roof from both 

the inside and outside of the warehouse and determined that the roof

appeared safe. Elite Roofing employees also testified that they never 

observed anything on the roof deck—even where the cap sheet had been 

removed by Honeycutt—that appeared unsafe. Finally, the undisputed 

evidence also shows that Salcedo of Bryan Industrial walked on the plywood 

deck after the cap sheet’s removal in the general area where Reyes later fell 

and did not observe a hole or notice anything out of the ordinary.

The Parents attempt to challenge some of this evidence by 

characterizing Elite Roofing as an unsophisticated delivery company that 

lacked sufficient roofing knowledge or expertise to evaluate a roof’s safety. 

The undisputed evidence, however, shows that Elite Roofing regularly loaded 

materials onto roofs using specialized equipment like forklifts and that its 

normal procedure before doing so included inspecting the roof at a jobsite, 

both from the interior and exterior of the building. Elite Roofing employees 

also testified to having received training from Elite Roofing about inspecting 

roofs and safety. 

The Parents further contend the inspection-related evidence 

“establishes nothing conclusively.” But that is not Bryan Industrial/Hoyt’s 

burden. Rather, it is the Parents’ burden to proffer admissible evidence

showing a triable issue of fact as to whether Bryan Industrial/Hoyt knew or 

should have known of the plywood’s hazardous condition. Although we 

construe all reasonable inferences in the Parents’ favor, we cannot reasonably 
17

infer from this evidence that, as the Parents contend, the inspections were 

somehow “unreasonable.” (Annod Corp. v. Hamilton & Samuels (2002) 

100 Cal.App.4th 1286, 1298–1299.)

The Parents additionally complain that this inspection evidence does 

not conclusively establish “there were no weaknesses in the roof.” As 

discussed above, we assume for purposes of our analysis that the plywood 

roof was weak and posed a hazardous condition. 

The Parents next emphasize Zeigler’s significant roofing experience 

and expertise. In their separate statement, the Parents relied on their 

expert’s opinion that someone with Zeigler’s experience should have known 

“there was a high likelihood of rotted and/or degraded wood panels on the 

roof” because of the age of the roof and previously repaired water leaks. But 

expert opinion that someone should have known of a “high likelihood” of a 

hazardous condition existing is not evidence from which a jury could 

reasonably find that person knew or reasonably should have known of an 

existing concealed hazardous condition. (See also Roddenberry, supra, 

44 Cal.App.4th at p. 651 [“Opinion testimony which is conjectural or 

speculative ‘cannot rise to the dignity of substantial evidence.’ ”].) Moreover, 

the expert’s opinion that, simply by virtue of his credentials, Zeigler knew or 

should have known of the plywood’s hazardous condition is not substantial 

evidence raising a triable issue of fact, particularly where (1) the undisputed 

evidence shows that the plywood’s condition was not visible when covered by 

the cap sheet at the time Zeigler inspected the roof and (2) Zeigler expressly 

testified that he was unaware of the plywood’s hazardous condition. 

Throughout their briefing on appeal, the Parents additionally insinuate 

that Bryan Industrial/Hoyt should have known of the plywood’s condition 

because water leaks and/or the three-eighths inch thickness of the plywood 
18

may have contributed to its unsafe state. Those arguments, too, are 

unpersuasive. First, the Parents offer no evidence that any of the previously

repaired water leaks occurred in the vicinity of Reyes’ fall. Meanwhile, 

Bryan Industrial/Hoyt produced undisputed evidence that no leaks had been

previously observed in the roof’s central area where Reyes fell. Second, it is 

undisputed that the plywood’s three-eighths inch thickness was codecompliant at the time the roof was built, and the Parents identify no evidence 

indicating, for example, that other parts of the plywood roof had to be 

replaced with thicker plywood during the reroofing project. In other words, 

the Parents’ expert’s opinion that thinner three-eighths inch plywood is 

generally more likely to weaken over time than thicker plywood does not 

create a triable issue that Bryan Industrial/Hoyt reasonably should have 

known this roof’s three-eighths inch plywood was, in fact, dangerously weak 

and unsafe. 

Moreover, the Parents do not identify any admissible evidence 

supporting the second element of this Privette exception—that Elite Roofing

could not reasonably have discovered the plywood roof deck’s hazardous 

condition. Because Elite Roofing was hired to deliver materials to the roof, 

the area of the roof without cap sheet that Elite Roofing selected for 

placement of those materials was necessarily part of the worksite and within 

its duty to inspect. (See Acosta v. MAS Realty (2023) 96 Cal.App.5th, 634, 

662 [“[A]lthough Acosta’s employer, Horizon, was not hired to inspect or 

repair the roof hatch, the electrical work for which it was hired required roof 

access. Because Horizon, through Acosta, chose to access the roof through 

the roof hatch by means of the fixed ladder, the roof hatch and ladder 

necessarily were part of the worksite and were within Horizon’s duty to 

inspect.”].) Thus, to the extent the roof’s unsafe condition was ascertainable
19

as the Parents contend, Elite Roofing was in the best position to discover the 

hazard because its employees were the individuals who inspected the roof

deck after Honeycutt began tearing off the cap sheet.

Accordingly, because the Parents identify no evidence sufficient to 

create a triable fact on either the issue of whether Bryan Industrial/Hoyt

knew or reasonably should have known that the roof’s plywood constituted a 

concealed hazard for Elite Roofing workers, or that Elite Roofing could not 

have reasonably ascertained the plywood’s hazardous condition, we agree 

with the trial court that this exception does not apply.

2.

The Parents’ argument that a triable issue of fact exists as to the

concealed hazard exception’s application to CalCom fails for a different 

reason. Because CalCom did not own the property where Reyes fell, CalCom

was not a “landowner-hirer.” And as CalCom contends, the concealed hazard 

exception to the Privette doctrine applies only to landowner-hirers and thus, 

cannot apply to CalCom. (Sandoval, supra, 12 Cal.5th at p. 282.) 

We are unpersuaded by the Parents’ reliance on Michael v. Denbeste 

Transportation, Inc. (2006) 137 Cal.App.4th 1082, 1097 (Michael) for the 

proposition that “[u]nder the Privette doctrine, there is no legal distinction 

between a general contractor and landowner who hires independent 

contractors; both are ‘hirers’ within the meaning of the doctrine.” The 

appellate court’s statement in Michael does not undermine our Supreme 

Court’s later observation in Sandoval that the concealed hazard exception to 

the Privette doctrine “applie[s] only to landowner-hirers.” (Sandoval, supra,

12 Cal.5th at p. 282.) Regardless, even if we were to assume that CalCom

was subject to the exception, we would still conclude that no triable fact 
20

existed as to its application to CalCom for many of the same reasons we 

found it did not apply to Bryan Industrial/Hoyt. 

C.

The Parents next contend that triable issues of fact exist as to whether 

Bryan Industrial/Hoyt and CalCom owed Reyes a duty under the retained 

control exception to the Privette doctrine. (See Hooker, supra, 27 Cal.4th at

p. 202.) That exception applies where the hirer “retained control” over the 

contracted work and “negligently exercise[d] that retained control in a 

manner that affirmatively contribute[d] to the [worker’s] injury.” (Gonzalez, 

supra, 12 Cal.5th at p. 38.) We conclude the Parents fail to show a triable 

issue of fact on any element of this exception. 

1.

First, there is no evidence that Bryan Industrial/Hoyt or CalCom

retained or exercised control over the reroof project or Reyes’ work on it. “[A] 

hirer’s authority over the contracted work amounts to retained control only if 

the hirer’s exercise of that authority would sufficiently limit the contractor’s 

freedom to perform the contracted work in the contractor’s own manner.” 

(Sandoval, supra, 12 Cal.5th at p. 275.) Here, there is no evidence that 

Bryan Industrial/Hoyt “sufficiently limit[ed]” CalCom’s freedom to execute 

the reroofing project in its own manner, or that Bryan Industrial/Hoyt in any 

way managed or directed the contractors that CalCom hired for the job. 

Likewise, there is no evidence that CalCom retained or exercised control over 

the work of Elite Roofing or Honeycutt. Specifically, there is no evidence that 

CalCom provided instruction to Elite Roofing about how to deliver the roofing 

materials, load the roofing materials onto the roof, or perform any other work 

necessary to the job. There is also no evidence that CalCom instructed 

Honeycutt on how to tear off the cap sheet roof it was hired to remove. 
21

Finally, it is undisputed that CalCom did not offer or promise Elite Roofing or 

Honeycutt that it would provide any safety measures related to their work. 

The Parents’ contentions to the contrary are unpersuasive. They posit 

that Bryan Industrial/Hoyt retained control by hiring CalCom to perform the 

reroofing project, by requiring CalCom to remove the two layers of cap sheet, 

and by selecting the roof system to be installed. To accept this argument, 

however, would mean broadening the retained control exception to include a 

hirer’s act of defining a particular project for the contractor hired to complete 

it. Similarly, the Parents allege that CalCom retained control by hiring 

Honeycutt to remove the cap sheet and by scheduling, or “sequencing,” the 

contractors it hired for the reroof job. Again, the Parents’ position requires 

stretching the retained control exception to impose liability on a contractor 

for carrying out its contracted work and for hiring other independent 

contractors to perform aspects of that work. We disagree that this

conduct—typical of how contractors function in relation to one

another—amounts to retaining control, much less that it qualifies as 

affirmative conduct. The Parents offer no authorities supporting such broad 

readings of this exception. 

The Parents next theorize that Bryan Industrial retained control by 

organizing the May 31, 2019 pre-job walkthrough to schedule the roof project 

and to provide “instructions” to CalCom and Bryan Industrial’s maintenance 

supervisor, Salcedo. The evidence, however, shows that the purpose of the 

walkthrough was to give the contractors an overview of the property and 

proposed project, the roof’s condition, and the access points—not to control 

the way that CalCom conducted the reroof work, as the Parents suggest. 

Although the Parents point to Salcedo’s presence at the walkthrough as 

evidence that Bryan Industrial retained control, Salcedo—Bryan Industrial’s 
22

maintenance supervisor—testified that he attended the walkthrough merely 

to learn “what was going to happen” during the reroof project and to complete 

his limited role of removing fixtures from the roof and marking out where the 

skylights would be in preparation for the reroof work. In contrast to the 

Parents’ characterization of Salcedo as “boots on the ground” for Bryan 

Industrial, there is no evidence that Salcedo was tasked with supervising 

CalCom’s or the other contractors’ work. Tellingly, the Parents again do not

identify any authority supporting such broad interpretations of retained 

control. 

As another theory supporting retained control, the Parents contend 

that because Elite Roofing was not invited to attend the May 31, 2019

walkthrough, we should infer “there was no expectation . . . [Elite Roofing] 

would have any rol[e] or responsibility for actual work on the roof.” The 

undisputed evidence, however, shows that CalCom did not hire Elite Roofing 

until June 4, 2019, after the May 31, 2019 walkthrough. Thus, the Parents’ 

proposed inference is not supported by the evidence. Moreover, that 

inference is further undermined by the testimony of Elite Roofing employees

regarding their understanding of their role on the project and their roofing 

experience and training. 

Next, the Parents allege that CalCom’s installation of a fall protection 

system after Reyes’ accident is evidence of CalCom’s control over the jobsite. 

First, such evidence is inadmissible to prove negligence as a matter of law. 

(See Evid. Code, § 1151 [“When, after the occurrence of an event, remedial or 

precautionary measures are taken, which, if taken previously, would have 

tended to make the event less likely to occur, evidence of such subsequent 

measures is inadmissible to prove negligence or culpable conduct in 

connection with the event” (emphasis added)].) The Parents’ reliance on a 
23

distinguishable case that preceded the Supreme Court’s creation of the 

Privette doctrine is unpersuasive and does not require a contrary conclusion. 

(See Morehouse v. Taubman Co. (1970) 5 Cal.App.3d 548, 555 [in pre-Privette

case, post-accident evidence admissible to show defendant’s “control of the 

premises, and as to whose duty it was under the contract to take such safety 

measures”].) Second, and even if it were admissible, we conclude that 

evidence of CalCom’s actions taken in the months after Reyes’ accident are 

not evidence that, before Reyes’ accident, CalCom controlled the jobsite. 

Relatedly, and in contrast to the Parents’ arguments, we also see no basis for 

concluding that CalCom’s actions are evidence that Bryan Industrial or Hoyt

controlled the jobsite. 

We are similarly unpersuaded by the Parents’ attempt to show Bryan 

Industrial/Hoyt’s control by arguing that Zeigler of Bryan Industrial 

controlled the work of a structural engineer, who CalCom hired after Reyes’ 

accident to develop a fall protection system for the roof. First, CalCom’s

hiring of the engineer after Reyes’ accident is again an inadmissible 

subsequent remedial measure. (See Evid. Code, § 1511.) And although the 

Parents contend that Zeigler’s communications with the engineer are 

evidence that Bryan Industrial/Hoyt controlled the engineer’s work, a review 

of this evidence shows the opposite. In fact, Zeigler was uninvolved in 

CalCom’s hiring of the engineer, and Zeigler met the engineer at the jobsite 

only to give him access to the warehouse’s interior because CalCom did not 

have a key. There is no evidence that Zeigler directed or managed CalCom’s 

engineer’s work in any capacity. 

2.

Even assuming there was a triable issue of fact that Bryan 

Industrial/Hoyt controlled the reroof job, the Parents still fail to demonstrate 
24

a triable issue that Bryan Industrial/Hoyt or CalCom negligently used their 

purported control in a way that “affirmatively contributed” to Reyes’ fall. The 

Parents identify no affirmative conduct by either Bryan Industrial/Hoyt or 

CalCom that related to Reyes’ fall from the roof. Indeed, neither Bryan 

Industrial/Hoyt nor CalCom supervised Elite Roofing or any of its employees 

during their work on the roof. And they did not direct Elite Roofing on how to 

load the materials onto the roof or where on the roof to load them. In fact, 

besides Bryan Industrial’s maintenance supervisor (Salcedo), no one from 

Bryan Industrial/Hoyt or CalCom was present at the jobsite when Reyes fell. 

There is also no evidence that Salcedo retained or exercised control over the 

work of Honeycutt, Elite Roofing, or CalCom on the day of Reyes’ accident or 

at any other time. 

The Parents argue that Bryan Industrial/Hoyt’s and CalCom’s 

decisions not to install a fall protection system on the roof before Reyes’ fall

constitutes sufficient affirmative conduct because they “induced the

workers . . . to rely on the apparent strength of the roof.” We disagree. 

California courts have consistently held that a hirer’s passive failure to 

provide safety equipment is not enough to establish the hirer’s affirmative 

contribution to injuries sustained by a contractor’s employee, unless there is 

evidence the hirer or contractor agreed to implement those measures. (See 

e.g., Seabright, supra, 52 Cal.4th at p. 594 [hirer’s failure to install OSHArequired safety guards did not create liability]; Delgadillo v. Television 

Center, Inc. (2018) 20 Cal.App.5th 1078, 1093 (Delgadillo) [hirer did not 

affirmatively contribute to death of contractor’s employee by failing to 

provide anchor points for window washer’s cables].) Here, there is none. 

The Parents’ evidence does not require a different conclusion. For 

example, the Parents again point to Bryan Industrial/Hoyt’s and CalCom’s 
25

contract, which includes Bryan Industrial/Hoyt’s brief list of tasks required 

by the project, including, “Provide all necessary equipment to complete the 

project.” Without more, we are not persuaded that this single line item about 

“all necessary equipment” creates a triable issue that CalCom agreed to 

provide all safety measures for the project, including a fall protection system. 

Moreover, for induced reliance to constitute affirmative conduct under 

the retained control exception, there must be actual direction by the hirer

upon which the worker relied. (Gonzalez, supra, 12 Cal.5th at p. 47.) In 

other words, “[t]o be liable, a hirer must instead exercise its retained control 

over any part of the contracted-for work—such as by directing the manner or 

methods in which the contractor performs the work; interfering with the 

contractor’s decisions regarding the appropriate safety measures to adopt; 

requesting the contractor to use the hirer’s own defective equipment in 

performing the work; contractually prohibiting the contractor from 

implementing a necessary safety precaution; or reneging on a promise to 

remedy a known hazard in a manner that affirmatively contributes to the 

injury.” (Id. at pp. 46–47.) Yet, the Parents identify no evidence that Bryan 

Industrial/Hoyt or CalCom promised to implement any safety measures, 

prevented Elite Roofing from taking safety measures it deemed necessary, or 

prevented Elite Roofing from stopping its work had Elite Roofing felt there 

was a safety concern. For that reason, there can be no induced reliance 

amounting to affirmative conduct. 

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

came to the same conclusion about a similar argument, finding that the 

general contractor-hirer was not liable for injuries suffered by an 

independent contractor’s employee, who fell from a raised patio during 

construction of a residential home. (Id. at pp. 1271, 1276–1278.) The injured 
26

worker claimed the general contractor-hirer was negligent for failing to 

install a protective railing along the open side of the raised patio. (Id. at

pp. 1270–1271.) The court held this was insufficient to amount to affirmative 

contribution, explaining that, although the worker alleged its contractoremployer had no authority to install a protective railing, there was also no 

evidence that the general contractor-hirer “participated in any discussion 

about placing a safety railing along the patio, became aware of any safety 

concern due to the lack of such a railing, or intervened in any way to prevent 

such a railing from being erected.” (Id. at p. 1277.) Put another way, there 

was no evidence that the general contractor-hirer “directed that no 

guardrailing or other protection against falls be placed along the raised patio, 

or that it acted in any way to prevent such a railing from being installed.”

(Id. at pp. 1276–1277.) Similarly, here, there is no evidence that either 

Bryan Industrial/Hoyt or CalCom directed that no safety measures or fall 

protection system be implemented, or that it acted in any way to prevent 

such measures from being implemented. 

The Parents complain it would have been expensive and inefficient for 

Elite Roofing to install a fall protection system on the warehouse’s roof. The 

California Supreme Court has squarely addressed the issue and concluded 

that this risk is nonetheless delegated to the contractor, explaining: “We 

acknowledge that there will sometimes be financial and other real world 

factors that might make it difficult for an independent contractor to raise 

safety concerns with the hirer or to simply walk away from a job it has 

deemed to be unsafe. But independent contractors can typically factor the 

cost of added safety precautions or any increased safety risks into the 

contract price.” (Gonzalez, supra, 12 Cal.5th at p. 51.) The same logic applies 

here. The testimony of Elite Roofing employees about their decision not to 
27

wear fall protection harnesses indicates they understood their role to include 

making their own safety decisions and that they did not believe the roof was 

unsafe. Although we acknowledge the expense and difficulty of installing a 

fall protection system or implementing other safety measures on the roof, 

Elite Roofing is still presumed under the law to have “factor[ed] the cost of 

added safety precautions or any increased safety risks into the contract 

price.” (Ibid.) Accordingly, we disagree with the Parents that this forms a 

basis for imposing a duty on Bryan Industrial/Hoyt or CalCom. 

The Parents further contend that various state and federal regulations 

required Bryan Industrial/Hoyt and CalCom to implement certain safety 

measures at the jobsite, which they failed to do. Under Privette, however, 

Bryan Industrial/Hoyt delegated to CalCom, and CalCom delegated to Elite 

Roofing, any tort law duty they owed to provide a safe workplace for Elite 

Roofing’s employees. Our conclusion is consistent with caselaw addressing 

this argument. For example, in SeaBright, supra, 52 Cal.4th 590, the 

California Supreme Court addressed whether a hirer could be liable where an 

employee of an independent contractor hired to maintain and repair a 

luggage conveyor belt was injured because the conveyor belt lacked the safety 

guards required by Cal-OSHA regulations. (Id. at pp. 594–595.) In finding 

the retained control exception did not apply, the Supreme Court explained 

that although the hirer’s regulatory duty to install the safety guards 

preexisted the contract, the hirer delegated to the independent contractor 

“any tort law duty it owe[d] to the contractor’s employees to ensure the safety 

of the specific workplace that is the subject of the contract.” (Id. at p. 594; see 

also id. at pp. 601, 603.) 

Other Court of Appeal decisions have likewise found no hirer liability 

in circumstances like those presented here. In Delgadillo, supra,
28

20 Cal.App.5th 1078, an employee of an independent contractor fell to his 

death when his descent apparatus detached from the roof while he was 

washing a commercial warehouse’s windows. (Id. at p. 1081.) The plaintiffs 

submitted evidence that (1) the warehouse’s owners had a statutory and 

regulatory duty to provide approved anchor points on the roof to support 

window washers; (2) the warehouse contained no such anchor points; and 

(3) without the anchor points, there was no safe way to clean the 

windows. (Id. at pp. 1083–1084.) The appellate court nevertheless 

determined the owners owed no duty because, under SeaBright, they 

delegated to the contractor the duty to comply with all statutory and 

regulatory requirements necessary to provide a safe workplace. (Id. at 

p. 1091.) The court also found that the owners did not exercise retained 

control over the contractor’s work in a manner that affirmatively contributed 

to the injury because, although the warehouse had inadequate anchor points, 

the owners did not “suggest or request” that the contractor use them in 

cleaning the windows. (Id. at p. 1093.) 

Like SeaBright, Delgadillo illustrates that even where an unsafe 

condition exists at a jobsite due to the hirer’s failure to comply with specific 

statutory and regulatory duties, the hirer is not liable because it is the hired 

contractor who is responsible for its own workers’ safety. The same logic 

applies here. Regardless of whether Bryan Industrial/Hoyt and CalCom 

failed to comply with their regulatory safety duties, they are not liable 

because it was Elite Roofing who was responsible for the safety of its own 

workers, including Reyes.

For these reasons, we conclude that no triable issue of fact existed as to 

the application of either exception to Privette, and thus, summary judgment 

was properly granted in favor of Bryan Industrial/Hoyt and CalCom. 
29

IV.

The judgments granting summary judgment are affirmed.

Respondents are entitled to recover their costs on appeal.

CASTILLO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

KELETY, J.