Filed 10/26/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

AL KHOSH,

 Plaintiff and Appellant,

v.

STAPLES CONSTRUCTION 

COMPANY, INC.,

 Defendant and Respondent.

2d Civil No. B268937

(Super. Ct. No. 56-2014-

00447304-CU-PO-VTA)

(Ventura County)

An employee of an independent contractor generally 

may not recover tort damages for work-related injuries from the 

contractor’s hirer. (Privette v. Superior Court (1993) 5 Cal.4th 

689, 702 (Privette).) There are exceptions to this rule but they do 

not apply here. We decide that the trial court correctly granted a 

motion for summary judgment against the injured employee 

when he failed to present evidence that respondent affirmatively 

contributed to his injuries. As a result, there were no triable 
2

issues of material fact on his theory that either the retained 

control exception or the nondelegable duty exception applied. 

Al Khosh was injured while performing electrical 

work at California State University Channel Islands (the 

University). He was employed by Myers Power Products, Inc. 

(Myers), a subcontractor on the project. Khosh sued the general 

contractor, Staples Construction Company, Inc. (Staples), for 

negligence. 

The trial court granted Staples’s motion for summary 

judgment because Khosh failed to establish that Staples retained 

control over his work and affirmatively contributed to his injury. 

(Code Civ. Proc., § 437c; Hooker v. Department of Transportation

(2002) 27 Cal.4th 198, 202 (Hooker).) Khosh contends that a 

reasonable jury could find Staples (1) retained control over the 

work and affirmatively contributed to Khosh’s injury; and (2) 

breached a nondelegable duty to Khosh which caused his injury.

He also contends the court erred in sustaining Staples’s 

evidentiary objections. We affirm.

FACTS AND PROCEDURAL HISTORY

The University hired Staples to install a backup 

electrical system at the university. Staples hired DK Electrical 

Systems, Inc. (DK) as the high-voltage subcontractor for the 

project. DK hired Myers to construct and install electrical 

switchgear for the system. 

The contract between Staples and the University

required Staples to “exercise precaution at all times for the 

protection of persons and their property,” and to “retain a 

competent, full-time, on-site superintendant to . . . direct the 

project at all times,” among other things. It made Staples 

“exclusively responsible” for the health and safety of its 
3

subcontractors, and required Staples to submit “comprehensive 

written work plans for all activities affecting University 

operations,” including utility shutdowns. 

Myers informed Staples it needed three days to 

accomplish its last task on the project, including a shutdown of 

the electrical system. The University scheduled a campus-wide 

electrical shutdown. The shutdown was to be followed by final 

testing of the system’s operation. 

Khosh arrived at the University two and a half hours 

before the scheduled shutdown time. The University’s project 

manager let Khosh and a helper into a substation containing 

electrical switchgear. Khosh performed work in the substation, 

while the switchgear was still energized. An electrical arc flash 

occurred, severely injuring him. The flash occurred

approximately half an hour before the shutdown was scheduled 

to begin. Staples did not have any personnel at the University at 

the time. 

Khosh filed a complaint, asserting a cause of action 

for general negligence against Staples. Staples moved for 

summary judgment relying upon the Privette doctrine, which 

generally prohibits the employee of a contractor from suing the 

hirer of the contractor for work-related injuries. (Privette, supra,

5 Cal.4th at p. 702.) 

Khosh argued Privette did not bar his claim because 

(1) Staples retained control over the work and affirmatively 

contributed to his injuries (Hooker, supra, 27 Cal.4th at p. 202.);

and (2) Staples violated nondelegable regulatory duties because it 

did not have a qualified electrical worker present to supervise 

Khosh and did not prepare a written procedure for the electrical 

shutdown. Khosh offered an expert declaration that these 
4

omissions caused or contributed to Khosh’s injuries. The trial 

court excluded most of the declaration for lack of foundation. It 

also sustained objections to a declaration of Khosh’s counsel that 

purported to authenticate records.

DISCUSSION 

Standard of Review

Summary judgment is appropriate “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 a judgment as a 

matter of law.” (Code Civ. Proc., § 437c, subd. (c).) The 

defendant bears the initial burden of showing the plaintiff cannot 

establish one or more elements of the plaintiff’s cause of action. 

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) If 

the defendant carries his burden, the burden shifts to the 

plaintiff to establish a triable issue of material fact. (Id. at p. 

850.) 

Our review is de novo. (Knapp v. Doherty (2004) 123 

Cal.App.4th 76, 84.) Upon the grant of summary judgment, we 

liberally construe the opposing party’s evidence and resolve all 

doubts about the evidence in favor of the opposing party. (Lyle v. 

Warner Brothers Television Productions (2006) 38 Cal.4th 264, 

274.) 

We consider all evidence set forth in the moving and 

opposition papers, except evidence to which objections were 

properly sustained. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 

Cal.4th 1028, 1037.) 

Privette Doctrine

An employee of an independent contractor generally 

may not sue the contractor’s hirer for work-related injuries. 

(Privette, supra, 5 Cal.4th at p. 702.) Instead, the injured
5

employee is generally limited to worker’s compensation remedies 

against his employer. (Id. at pp. 698-700, 702.) 

There are exceptions to the Privette doctrine. One

allows a contractor’s employee to sue the hirer of the contractor 

when the hirer (1) retains control over any part of the work and

(2) negligently exercises that control (3) in a manner that

affirmatively contributes to the employee’s injury. (Hooker, 

supra, 27 Cal.4th at p. 209.) Another exception permits recovery 

when the hirer (1) has a nondelegable legal duty (2) which it 

breaches (3) in a manner that affirmatively contributes to the

injury. (Padilla v. Pomona College (2008) 166 Cal.App.4th 661, 

669-670, 672 (Padilla); Hooker, at pp. 210, 215; Evard v. 

Southern California Edison (2007) 153 Cal.App.4th 137, 146-147

(Evard).) Khosh presented sufficient evidence that Staples 

retained control over the work, but there is no evidence that 

Staples affirmatively contributed to Khosh’s injury.

Retained Control

Khosh presented competent evidence that Staples 

retained control over safety. In Hooker, a triable issue as to who

retained control existed. The construction manual required 

Caltrans to comply with safety laws and regulations, know about 

highway construction procedures and equipment, and recognize 

and anticipate unsafe conditions. (Hooker, supra, 27 Cal.4th at 

pp. 202, 215.) The manual required periodic visits by a 

construction safety coordinator, and authorized Caltrans to shut 

down work to correct dangerous conditions. (Id. at p. 202.) 

Similarly, in Kinney v. CSB Construction, Inc. (2001) 87 

Cal.App.4th 28, there was a triable issue as to who retained 

control because the general contractor employed a 

superintendant who was authorized to eliminate safety hazards, 
6

and who had the final say in any disagreements over safety. (Id. 

at p. 33.) 

Here too, the contract required Staples to “keep all 

phases of the work under its control,” including compliance with 

safety laws and regulations. It also required Staples to take 

affirmative safety measures, such as implementing a safety 

program and installing safety devices on job equipment. It made 

Staples “exclusively responsible” for the health and safety of its 

subcontractors and required Staples to “exercise precaution at all 

times for the protection of persons and their property” and 

“comply with all applicable laws relating to safety precautions.” 

This evidence creates a triable issue of fact as to retained control. 

But, “[i]n order for a worker to recover on a retained 

control theory, the hirer must engage in some active 

participation.” (Tverberg v. Fillner Construction, Inc. (2012) 202 

Cal.App.4th 1439, 1446 (Tverberg).) An affirmative contribution 

may take the form of directing the contractor about the manner 

or performance of the work, directing that the work be done by a 

particular mode, or actively participating in how the job is done. 

(Ibid.) Evidence of Staples’s omissions does not create a triable 

issue of fact regarding affirmative contribution.

A hirer’s failure to correct an unsafe condition, by 

itself, does not establish an affirmative contribution. (Hooker, 

supra, 27 Cal.4th at p. 215.) In Hooker, for example, there was 

no evidence of affirmative contribution where the contractor’s 

hirer, Caltrans, knew crane operators on the project were not 

extending the outriggers, but did not take any corrective action

even though it had the right to do so. (Id. at pp. 202-203, 214.) 

Caltrans’s passive omission did not constitute an affirmative 

contribution. (Id. at p. 215.) 
7

Khosh relies on similar omissions. He contends 

Staples promised to provide a written work plan for the 

shutdown, have a superintendant present to supervise Khosh’s 

work, and comply with applicable codes, statutes, and 

regulations. He contends Staples affirmatively contributed to his 

injury by breaching these promises. (Hooker, supra, 27 Cal.4th at 

p. 212, fn. 3.) 

Hooker does not foreclose the potential for liability 

based on the hirer’s omission. (Hooker, supra, 27 Cal.4th at p. 

212, fn. 3.) When a hirer promises to undertake a particular 

safety measure, the negligent failure to fulfill that specific

promise may constitute an affirmative contribution. (Ibid.) For 

example, the hirer in Tverberg could be liable when it did not 

cover holes at a construction site after it impliedly agreed to do so 

in response to the plaintiff’s employer’s request. (Tverberg, 

supra, 202 Cal.App.4th at p. 1448.) But there was no specific 

promise here. This case is more like Michael v. Denbeste 

Transportation, Inc. (2006) 137 Cal.App.4th 1082, in which a 

general promise to be “responsible for site safety” did not 

constitute a specific promise to undertake a particular safety 

measure. (Id. at p. 1096.) Likewise, in Padilla, there was no 

affirmative contribution when the hirer did not shut off utilities 

before work began although it promised to be generally 

“responsible for . . . all safety precautions,” and to “provide 

reasonable protection to prevent . . . injury . . . to . . . persons who 

may be affected” by the work. (Padilla, supra, 166 Cal.App.4th at 

pp. 666-667.) Because the hirer did not refuse a request to shut 

off service and did not prevent the independent contractor from 

installing protective devices there was no affirmative 

contribution. (Id. at p. 671.)
8

This case is unlike Regalado v. Callaghan (Sept. 22, 

2016, D069647) __ Cal.App.5th __ [2016 DJDAR 9788] (Regalado) 

in which evidence of an affirmative contribution supported a 

jury’s verdict against the hirer. There, the defendant hired a 

contractor to install a pool and spa at his home. The plaintiff, an 

employee of the pool contractor, was injured by an explosion in an 

underground vault which housed a propane heater for the pool. 

The defendant participated in the construction work, including 

installation of the underground vault. He worked with another 

contractor to modify the entry and exit points to the underground 

vault, and ran a propane line to the vault. He also obtained the 

permits for the plumbing to the vault, but did not obtain permits 

for the vault or the propane line, even though he represented to 

plaintiff’s employer that he did so. The plaintiff’s injury occurred 

when he ignited the propane heater in the inadequately 

ventilated vault, causing an explosion.

Unlike the facts in Regalado, Staples did not directly 

participate in construction activities. Staples did not assist in 

building the electrical substation or its component parts. Nor did 

Staples represent that all steps of the construction had passed 

inspection before Khosh began his work. 

Like the contract in Padilla, Staples’s agreement 

with the University imposed only a general duty to prevent 

accidents. It did not impose specific measures that Staples was 

required to undertake in response to an identified safety concern. 

There is no evidence that Staples refused a request to shut off 

electrical power or prevented Khosh from waiting until the 

scheduled shutdown before starting work. There is no evidence 

Myers or Khosh relied on a specific promise by Staples. There is 
9

no evidence of an act by Staples which affirmatively contributed 

to Khosh’s injury.

Nondelegable Duty

Khosh contends two safety regulations imposed 

nondelegable duties on Staples. He contends Staples violated 

California Code of Regulations, title 8, section 2940, subdivision 

(c) (hereafter section 2940(c)), which states: “Only qualified 

electrical workers shall work on energized conductors or 

equipment connected to energized high-voltage systems. . . . 

Employees in training, who are qualified by experience and 

training, shall be permitted to work on energized conductors or 

equipment connected to high-voltage systems while under the 

supervision or instruction of a qualified electrical worker.” He 

also contends that Staples violated National Fire Protection 

Association (NFPA) Standard 70E, section 120.2, subdivision 

(D)(2)(b), which provides that “all complex lockout/tagout 

procedures shall require a written plan of execution that 

identifies the person in charge.” We disagree. 

The Privette rule applies “when the party that hired 

the contractor (the hirer) fail[s] to comply with the workplace 

safety requirements concerning the precise subject matter of the 

contract.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 

Cal.4th 590, 594 (SeaBright).) The hirer of an independent 

contractor presumptively delegates to that contractor the duty to 

provide a safe workplace for the contractor’s employees. (Id. at p. 

600.) This includes any duty to comply with statutory or 

regulatory safety requirements. (Ibid.) 

In SeaBright, an airline hired an independent 

contractor to service and maintain luggage conveyors. The

plaintiff was injured when his arm was caught in its moving 
10

parts. An expert witness declared that Cal-OSHA regulations 

required safety guards which were not present but which would 

have prevented the injury. The delegation of tort law duty “is 

implied as an incident of an independent contractor’s hiring” and 

“[t]he policy favoring ‘delegation of responsibility and assignment 

of liability’ is very ‘strong in this context’ [citation].” (SeaBright, 

supra, 52 Cal.4th at p. 602.) Because the alleged “duty” to an 

independent contractor’s employee “arose out of the contract” and 

“only existed because of the work . . . that [the independent 

contractor] was performing for the [hirer],” it “did not fall within 

the nondelegable duties doctrine.” (Id. at p. 603.)

Similarly, in Padilla, the duty to comply with a CalOSHA regulation requiring utilities to be shut off, capped, or 

otherwise controlled during demolition work was a delegable 

duty. The regulation only applied when specific work was being

performed. (Padilla, supra, 166 Cal.App.4th at p. 671.) 

The regulations at issue here are like those in 

SeaBright and Padilla. Section 2940(c) applies specifically to 

“work on energized conductors or equipment connected to highvoltage systems.” NFPA Standard 70E, section 120.2, applies 

specifically to lockout/tagout procedures. The regulations pertain 

to specific work, and apply only when that work is performed. 

(Padilla, supra, 166 Cal.App.4th at p. 673.) 

This case is unlike Evard, in which a regulation that

required the owner of a billboard to maintain horizontal safety 

lines on the billboard imposed an ongoing, nondelegable duty. 

(Evard, supra, 153 Cal.App.4th at p. 148.) “The regulation [in 

Evard] imposed a permanent obligation on the owner with 

respect to the condition of the property; no one but the [owner]
11

was in a position to ensure that condition.” (Padilla, supra, 166 

Cal.App.4th at p. 673.) 

The safety regulations here do not impose 

nondelegable duties under the Seabright test. But even if they

did, “the liability of a hirer for injury to employees of independent 

contractors caused by breach of a nondelegable duty imposed by 

statute or regulation remains subject to the Hooker test.” 

(Padilla, supra, 166 Cal.App.4th at p. 673.) Therefore, even 

where there is a breach of a nondelegable duty, the plaintiff must 

show that the breach affirmatively contributed to his injury. (Id. 

at p. 674.) The absence of a work plan or a supervisor did not 

affirmatively contribute to Khosh’s injuries for the reasons set 

forth above.

Evidentiary Objections

Khosh contends the court erred in sustaining 

Staples’s objections to evidence he filed in support of his 

opposition. The court sustained numerous objections to the 

declaration of Khosh’s expert witness, including all paragraphs 

setting forth the expert’s opinions and the facts the opinions were 

based on. It ruled those paragraphs lacked foundation and were 

argumentative. The court also sustained objections that certain 

exhibits attached to the declaration of Khosh’s counsel were not 

properly authenticated. 

We need not decide if the court erred in excluding 

this evidence because the excluded evidence does not create a 

triable issue of fact, and admitting the evidence would not 

warrant a different result. A judgment may not be reversed due 

to the erroneous exclusion of evidence unless the court finds that 

the error resulted in a miscarriage of justice. (Evid. Code, § 354.) 
12

Khosh submitted the expert’s declaration to support 

his contention that Staples breached regulatory duties. But the 

cited regulations do not create nondelegable duties. And the 

excluded contract documents were before the court when it 

decided the motion, because Staples submitted the same contract 

documents in support of its motion. None of the remaining 

exhibits are sufficient to show that Staples affirmatively 

contributed to Khosh’s injury. 

DISPOSITION

The judgment is affirmed. Respondent shall recover 

its costs on appeal.

CERTIFIED FOR PUBLICATION.

TANGEMAN, J.

We concur:

GILBERT, P. J.

YEGAN, J.
Vincent, J. O’Neill, Jr., Judge

Superior Court County of Ventura

______________________________

Angarella Law and Steven V. Angarella, for Plaintiff 

and Appellant.

Yukevich | Cavanaugh, James J. Yukevich, Cristina 

M. Ciminelli and Patrick J. Cimmarusti, for Defendant and 

Respondent.