1

Filed 1/27/23 Certified for Publication 2/7/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

ABRAHAM DEGALA,

Plaintiff and Appellant,

v.

JOHN STEWART COMPANY et al.,

Defendants and Respondents.

 A163130

 (San Francisco County

 Super. Ct. No. CGC18569661)

Abraham Degala was attacked and seriously injured by unknown 

assailants while he was working at a construction site at the Hunters Point 

East-West housing complex in San Francisco. Degala, who was employed as 

a foreman by a subcontractor at the site, sued the general contractor and the 

owner of the site for damages, alleging that they breached their duty to take 

reasonable security precautions at the site, which was located in a high-crime 

area. 

Defendants moved for summary judgment on the ground that Degala’s 

claims were barred by the Privette doctrine (as set forth in Privette v. 

Superior Court (1993) 5 Cal.4th 689 and subsequent cases), under which the 

hirer of an independent contractor is not liable for on-the-job injuries 

sustained by the contractor’s employees unless some exception applies. The

trial court granted summary judgment, rejecting Degala’s argument that 

defendants could be liable to him under the Hooker exception to the Privette 
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doctrine announced in Hooker v. Department of Transportation (2002) 27 

Cal.4th 198, 201-202 (Hooker) which applies when the hirer retains control 

over any part of the contractor’s work and exercises that control in a way that 

affirmatively contributes to the plaintiff’s injury. 

Because we conclude there are triable issues of fact as to whether the 

site owner and general contractor are liable to Degala under a retained 

control theory, we shall reverse. 

FACTUAL AND PROCEDURAL BACKGROUND

The Hunters Point East-West construction project involved the 

rehabilitation of 27 buildings containing residential units. John Stewart 

Company (JSC) was the general partner of the limited partnership that

owned the property, and as such signed the contract hiring Cahill 

Contractors, Inc. (Cahill) as the general contractor on the project. Cahill in 

turn hired Janus Corporation (Janus) as a subcontractor to perform 

demolition work at the site. Abraham Degala was an employee of Janus, and 

one of its foremen. The project site was located in an area known to have a 

high rate of crime. 

The contract between JSC and Cahill required Cahill to “take 

reasonable precautions for the safety of, and . . . provide reasonable 

protection to prevent damage, injury or loss to . . . employees on the work and 

other persons who may be affected thereby.” The subcontract between Cahill 

and Janus provided that Janus’s scope of work excluded “[s]ite security,” and 

that Janus was “responsible for securing [its] own tools and equipment.” In 

part of the subcontract entitled “Environmental, Health & Safety (EHS) 

Requirements,” Janus agreed to comply with all applicable EHS rules, 

regulations, policies, procedures and guidelines when performing work on the 

site, and to identify a person “knowledgeable” in those rules and guidelines
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who would “have the authority to mitigate hazards relative to [Janus’s] 

operations.” But the EHS requirements make no mention of physical site 

security. 

The rehabilitation project began in late 2015, and was done in five 

phases. Degala was attacked in January 2017, at the beginning of phase 

three of the project. 

JSC and Cahill jointly made decisions as to the appropriate amount of 

site security. JSC and Cahill had weekly discussions about site security 

because of ongoing concerns about the safety of property and people at the 

site. During phase one of the project, Cahill hired a company to provide two

uniformed security guards at the site during the day to discourage theft. But 

their services were discontinued in June 2016, when the site owners hired an 

outside company to provide a video voice system. That system included 

cameras that were monitored offsite and the capability of communicating 

with people at the project site if motion sensors were activated. The cameras, 

however, were not monitored during working hours. 

Cahill erected fencing around the areas where work was being 

performed to keep non-construction workers out of the job site during the day 

and to secure the site during non-working hours. The fencing was provided 

for the security of property, tools, and personnel. 

In the months and weeks leading up to the January 2017 attack on 

Degala, Cahill changed security measures from time to time, including 

closing the project site, in part as an apparent response to incidents in the 

neighborhood. In August 2016, Cahill stopped weekday overtime work at 

part of the project because of concerns about worker safety arising from 

neighborhood tensions. In mid-November 2016, after a shooting in the 

neighborhood, Cahill instructed workers to stop work before sundown. Later 
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that month, after another shooting, Cahill instructed workers to stay indoors 

as much as possible while working and to eat lunch and take breaks inside. 

Cahill closed the project site as a result of concerns over worker safety from 1 

p.m. on November 30 through December 1, and on December 13. On 

December 29, about two weeks before Degala was attacked, Cahill closed the 

project site early after a shooting in the neighborhood during work hours. 

Also on December 29, an electrician working at the site submitted a job 

hazard analysis form to Cahill stating that “working in the neighborhood” 

was a hazard. On December 30, Degala submitted a job hazard analysis form

to Cahill identifying “Neighborhood shooting guns” as a hazard and 

suggesting “Police officer on site escort.” 

Degala was attacked on January 11, 2017, on a day when he was 

leading a crew that was performing work in two buildings that were

separated by a walking path connecting a sidewalk on one street to a 

sidewalk on a parallel street. Each of the buildings where Degala was 

working was surrounded by a fence, but there was an unfenced walkway 

between the buildings, which was used by neighborhood residents. 

Ordinarily, it was Cahill’s practice to fence off an entire area under 

construction, rather than allowing non-construction personnel to walk 

between two buildings where construction activity was taking place. In fact, 

Cahill had originally erected a single fence around the area that included the 

two buildings where Degala was working the day of the attack. But in 

response to concerns expressed by residents that the fences blocked a 

walkway they regularly used as a route to a bus stop, Cahill changed course 

and had a separate fence constructed around each building, leaving the 

walkway open to the public so that neighborhood residents would not have to 

take a less convenient route. 
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The physical attack on Degala took place on the walkway between the 

two buildings, which was outside the fence line of the construction site. 

Degala was working in one of the buildings when he was approached by three 

men, who had somehow come through the fencing that surrounded the 

building.1 They followed him out of the building to the walkway, where they 

attacked him. The assailants fled and were never identified. As an employee 

of Janus, Degala was covered by workers compensation insurance for his 

injuries. 

Degala sued JSC and Cahill, seeking damages on the basis of 

negligence and premises liability. As to negligence, Degala alleged that JSC 

and Cahill negligently managed the operation of the project site by failing to 

monitor access to the site and failing to prevent access by people who sought 

to harm workers. As to premises liability, Degala alleged that JSC and 

Cahill had the duty to control and maintain the project site in a reasonably 

safe condition, and to exercise reasonable care in performing their voluntary 

undertakings to provide security on the site, which included monitoring safe 

and secure access to the site. Degala alleged that JSC and Cahill breached 

their duties by removing security guards from the project site and allowing 

“unfettered access” to the site without regard to worker safety. 

JSC and Cahill filed separate motions for summary judgment. The 

trial court granted the motions and judgments were entered for defendants.

Degala’s motions for new trial were denied, and Degala timely appealed. 

1 Apparently, there were open or unlocked gates or panels in the 

fencing that separated the buildings from the walkway. 
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DISCUSSION

A. The Privette Doctrine

Because Degala, as an injured employee of a contractor (Janus), sued

the hirer of the contractor (Cahill) and the landowner (JSC) in tort to recover 

for his injuries, this case implicates the Privette doctrine, a long-standing 

common law principle that a hirer or landowner is ordinarily not liable for 

injuries to contract workers.2 (Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 

256, 269-270 (Sandoval).) As our Supreme Court reaffirmed in Sandoval, the 

hirer of an independent contractor “presumptively delegates to the contractor 

the responsibility to do the work safely.” (Id. at p. 269.) “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. Our premise is ordinarily that when the hirer delegates control, the 

hirer simultaneously delegates all tort duties the hirer might otherwise owe 

the contract workers.” (Id. at p. 271.)

Our Supreme Court has recognized exceptions to the Privette doctrine, 

which “apply where delegation is either ineffective or incomplete.” (Sandoval, 

supra, 12 Cal.5th at p. 271, italics added.) At issue in this case is the 

exception for incomplete delegation, recognized in Hooker. “[W]hen the hirer 

does not fully delegate the task of providing a safe working environment, but 

in some manner actively participates in how the job is done, and that 

participation affirmatively contributes to the [contractor’s] employee’s injury, 

the hirer may be liable in tort to the [contractor’s] employee.” (Kinsman v. 

2 In analyzing the application of the Privette doctrine, we do not 

recognize any “legal distinction between a general contractor and a 

landowner who hires independent contractors; both are ‘hirers’ within the 

meaning of the doctrine.” (Michael v. Denbeste Transportation, Inc. (2006) 

137 Cal.App.4th 1082, 1097.)
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Unocal Corp. (2005) 37 Cal.4th 659, 671 (Kinsman) [discussing Hooker, 

supra].)3 Accordingly, “[i]f a hirer entrusts work to an independent 

contractor, but retains control over safety conditions at a jobsite and then 

negligently exercises that control in a manner that affirmatively contributes 

to an employee’s injuries, the hirer is liable for those injuries, based on its 

own negligent exercise of that retained control.” (Tverberg v. Fillner 

Construction, Inc. (2012) 202 Cal.App.4th 1439, 1446 (Tverberg).) 

B. Standard of Review

A trial court properly grants a motion for summary judgment “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).) “We review a grant of summary judgment 

de novo; we must decide independently whether the facts not subject to 

triable dispute warrant judgment for the moving party as a matter of law.” 

(Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) 

A defendant “moving for summary judgment bears the burden of 

persuasion that there is no triable issue of material fact and that [the 

defendant] is entitled to judgment as a matter of law.” (Aguilar v. Atlantic 

Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A defendant can meet 

this burden by showing “that there is a complete defense to [a] cause of 

action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A defendant’s initial burden in 

moving for summary judgment is to come forward with evidence to make a 

3 Delegation is ineffective in the context of a concealed hazard, as 

recognized in Kinsman, which held that a hirer “cannot effectively delegate to 

the contractor responsibility for the safety of its employees if it fails to 

disclose critical information needed to fulfill that responsibility, and therefore 

the [hirer] would be liable to the contractor’s employee if the employee’s 

injury is attributable to an undisclosed hazard.” (Kinsman, supra, 37 Cal.4th

at p. 674.) The Kinsman exception is not at issue in this case. 
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prima facie showing that there is no triable issue of material fact (Aguilar, 

supra, 25 Cal.4th at p. 850), where the material facts are determined by the 

pleadings. (Fisherman’s Wharf Bay Cruise Corp. v. Superior Court (2003) 114 

Cal.App.4th 309, 320.) If the defendant meets that burden of production, the 

burden of production shifts to the plaintiff to make a showing that there is a 

triable issue of material fact. (Aguilar, supra, 25 Cal.4th at p. 850.)

In the context of summary judgment, the Privette doctrine gives rise to 

a rebuttable presumption that affects the burden of producing evidence. 

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

642-643 (Alvarez).) If the moving party establishes that it hired an 

independent contractor to perform certain work, and that the plaintiff is an 

employee of the contractor who was injured in the course of the work, the 

burden shifts to the opposing party to come forward with evidence raising a 

triable issue of fact as to whether an exception to the Privette doctrine 

applies. (Id. at p. 644.) “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.” (LaChapelle v. 

Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981.) Nevertheless, 

the burden of persuasion remains with the party moving for summary 

judgment. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) We view the evidence 

in the light most favorable to plaintiff, as the nonmoving party, “liberally 

construing [his] evidentiary submission while strictly scrutinizing 

defendants’ own showing, and resolving any evidentiary doubts or 

ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group 400 (2001) 25 

Cal.4th 763, 768.) 
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C. Defendants’ Burden

Each of the defendants in this case met its initial burden to show that 

it is presumptively entitled to the benefit of the Privette doctrine. Degala 

alleges in his complaint that he was injured while working as a foreman for 

Janus on the Hunters Point East-West construction site. It is undisputed 

that JSC was the general partner of the owner of the property; that as the 

general partner JSC signed the contract hiring Cahill as general contractor 

on the construction project; and that Cahill hired Janus as a demolition 

subcontractor on the project. That is all that is required for JSC and Cahill 

to shift the burden of production to Degala to come forward with evidence 

raising a triable issue of fact as to the applicability of an exception to the 

Privette doctrine.4 (Alvarez, supra, 13 Cal.App.5th at p. 644.) 

D. The Retained Control Exception to the Privette Doctrine 

Degala contends that JSC and Cahill retained control over site 

security, and that at the very least there are triable issues of fact was to 

whether they exercised their retained control in a manner that affirmatively 

contributed to the attack in which he was injured. JSC and Cahill argue that 

the Hooker exception does not apply. 

In Sandoval, our Supreme Court explained that to establish that a 

hirer owes a duty of care to a contractor’s employee, the plaintiff must show 

that the hirer retained control over the contracted work and exercised that 

control in a manner that affirmatively contributed to the contract worker’s 

injury. (Sandoval, supra, 12 Cal.5th at p. 274.) 

4 Degala contends that Cahill failed to meet its initial burden because it 

failed to show that its contract with Janus “actually” delegated site security 

to Janus. But under Alvarez, no such showing is required. (Alvarez, supra, 

13 Cal.App.5th at p. 644.) 
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“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. 274.) “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 entirely free to do 

the work in the contractor’s own manner.’ ” (Id. at p. 276.) “Unlike ‘retained 

control’ which is satisfied where the hirer retains merely the right to become 

so involved, ‘actual exercise’ requires that the hirer in fact involve itself, such 

as through direction, participation, or induced reliance.” (Ibid.) 

A hirer’s exercise of retained control is an “affirmative contribution” if 

it “contributes to the injury independently of the contractor’s contribution (if 

any) to the injury.” (Sandoval, supra, 12 5th at p. 277.) Neither “ ‘actual 

exercise’ ” nor “ ‘affirmative contribution’ ” requires that the hirer’s alleged 

negligence must itself be an affirmative act. (Ibid.) Rather, “[t]he hirer’s 

negligence may take the form of any act, course of conduct, or failure to take 

a reasonable precaution that is within the scope of its duty under Hooker.” 

(Ibid.) Accordingly, a hirer may be liable for failing to undertake a promised 

safety measure. (Ibid., citing Hooker, supra, 27 Cal.4th at p. 212, fn. 3.) “If a 

plaintiff proves that the hirer actually exercised retained control in a way 

that affirmatively contributed to the contract worker’s injury, the plaintiff 

establishes that the hirer owed the contract worker a duty of reasonable care 

as to that exercise of control.” (Sandoval, supra, 12 Cal.5th at p. 278.) 

Whether JSC and Cahill owed a duty of care to Degala thus turns on 

whether JSC and Degala retained control over the performance of the 

demolition work that Janus was contracted to perform, and exercised that 

control in a way that contributed to Degala’s injuries. To prevail on summary 

judgment, JSC and Cahill must demonstrate the absence of triable issues of 
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material fact as to the applicability of the retained control doctrine. (See 

Brown v. Beach House Design & Development (2022) 85 Cal.App.5th 516, 521, 

529-534, petn. for review pending, petn. filed Dec. 23, 2022 [reversing 

summary judgment where there were triable issues of fact whether hirer 

undertook to supply scaffolding, delegated duty to provide and maintain 

scaffolding, and exercised control over scaffolding in a manner that 

contributed to plaintiff’s injuries incurred in fall from unsafe scaffolding]; 

Tverberg, supra, 202 Cal.App.4th at pp. 1447-1448 [reversing summary 

judgment where hirer directed performance of contracted work in the vicinity 

of work outside the scope of the contract and defendant’s employee concluded 

that sufficient safety measures were in place; jury could infer exercise of 

retained control constituting affirmative contribution to plaintiff’s injury];

Browne v. Turner Construction Co. (2005) 127 Cal.App.4th 1334, 1345-1346 

[reversing summary judgment where safety systems that defendants 

undertook to arrange were withdrawn before contractor’s project was 

complete; evidence raised possibility that defendants “not only actively 

contributed to plaintiff’s injuries, but actually created the situation in which 

they were likely to occur”].)

First we consider whether JSC and Cahill retained control over site 

security at the construction site. Degala has come forward with evidence 

from the written contracts: the contract between Cahill and Janus excluded 

site security from Janus’s scope of work, and although the contract between 

JSC and Cahill delegated site security to Cahill, JSC retained the power to 

direct how the site security was set up. It was undisputed that in practice, 

JSC and Cahill jointly decided on the appropriate amount of site security, 

and that JSC purchased and installed a camera system for that purpose. All 

of this is evidence that JSC and Cahill retained control over site security. 
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Security measures taken at the site after the attack on Degala provide 

more evidence of retained control: JSC hired off-duty police officers to be

stationed on site during work hours, and Cahill added a perimeter fence 

around the entirety of phase three of the project, eliminating the public 

walkway where Degala sustained his injuries. Although JSC and Cahill

point out that under section 1151 of the Evidence Code, evidence of remedial 

measures taken after the incident is inadmissible to show negligence, the 

evidence is admissible and relevant here to show that JSC and Cahill had 

retained control over site security.

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We next consider whether Degala has come forward with evidence that 

JSC and Cahill retained control over Janus’s contracted work and actually 

exercised that control. (Sandoval, supra, 12 Cal.5th at p. 276.) We conclude

Degala has done so. Maintaining site security at Hunters Point East-West 

was an ongoing issue throughout the time of Janus’s contracted demolition 

work. While Janus and Degala were performing their contracted work on site 

(which did not include site security), JSC and Cahill were having weekly 

discussions about site security because of ongoing concerns about the safety 

of property and people at the site, and implementing different measures to 

protect property and people in response to incidents in the neighborhood. 

From the elimination of overtime, the instructions to stop work before 

sundown and stay indoors for lunch and breaks, the occasional closures of the 

site, and the configurations of the fences around the site where Degala 

5 In support of its motion for summary judgment, JSC asserted in the 

trial court that responsibility for and control over site security was “shared” 

among JSC, Cahill, and Janus. But to the extent control over site security 

was shared with Janus, there was some retention of control by JSC and 

Cahill. In any event, there is no evidence that Janus had any authority to 

decide on or implement site security measures.
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worked—from all of this a jury could infer that defendants’ exercise of control 

over site security amounted to the exercise of control over the manner in 

which Janus performed its demolition work. (Sandoval, supra, 12 Cal.5th at 

p. 274.) A jury could infer that Janus was “not entirely free to perform the 

[contracted] work in the contractor’s own manner.” (Id. at p. 278.) 

The next question is whether Degala came forward with evidence from 

which a jury could infer that JSC and Cahill’s allegedly negligent exercise of 

their retained control affirmatively contributed to the harm he suffered. 

(Sandoval, supra, 12 Cal.5th at p. 283.) “[P]assively permitting an unsafe 

condition to occur rather than directing it to occur does not constitute 

affirmative contribution. [Citations.] The failure to institute specific safety 

measures is not actionable unless there is some evidence that the hirer . . . 

had agreed to implement these measures.” (Tverberg, supra, 202 Cal.App.4th 

at p. 1446; see also Gonzalez v. Mathis (2021) 12 Cal.5th 29, 46 [“ ‘[a] hirer’s 

failure to correct an unsafe condition’ is insufficient” to establish liability 

under Hooker].) Here, Degala came forward with evidence that JSC and 

Cahill undertook the responsibility of taking reasonable precautions and 

providing reasonable protection to prevent injury to subcontractors’ 

employees arising from unauthorized access to the Hunters Point East-West 

worksite, and evidence that Janus did not have obligations for site security. 

Degala’s evidence included constructing (and taking down) fences at the job 

site, hiring security guards, installing a camera system, and evidence as to

how these measures changed over time. This is not a case where JSC and 

Cahill passively permitted an unsafe condition to exist: there is ample 

evidence that JSC and Cahill took affirmative steps to address the dangers 

posed to workers in an area known to have a high rate of crime.
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Degala argues that the evidence shows that the site security measures

in place at the time he was attacked were not reasonable in the 

circumstances; that JSC and Cahill were negligent in configuring the fences, 

removing security guards, and failing to monitor the on-site cameras during 

the day; and that their negligence contributed to his injuries. He argues that 

by their actions JSC and Cahill left him with no safe means of completing his 

work, and observes that there is no evidence that Degala or Janus could have 

made alternative site security arrangements. JSC argues that Janus could 

have required its employees to work in pairs or groups; or required employees 

to close or secure the fences around the buildings after entering or leaving 

the walkway; or required employees to carry whistles or phones to call for 

help. This may be, but JSC does not cite to any evidence on the point.

Whether the measures taken by JSC and Cahill were reasonable, and 

whether or to what extent the alleged unreasonableness of those measures 

contributed to Degala’s injuries are all questions of fact for a jury to resolve. 

On the record here, these issues cannot be resolved as a matter of law, and 

therefore it was error to grant summary judgment. 

DISPOSITION

The judgments are reversed and the matter is remanded to the trial 

court for further proceedings consistent with this opinion. Appellant shall 

recover his costs on appeal.
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_________________________

Miller, J.

WE CONCUR:

_________________________

Stewart, P.J.

_________________________

Richman, J.

A163130, Degala v. John Stewart Company, et al.
Filed 2/7/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

ABRAHAM DEGALA,

Plaintiff and Appellant,

v.

JOHN STEWART COMPANY et al.,

Defendants and Respondents.

 A163130

 (San Francisco County

 Super. Ct. No. CGC18569661)

The opinion in the above-entitled matter filed on January 27, 2023, was 

not certified for publication in the Official Reports. For good cause and 

pursuant to California Rules of Court, rule 8.1105, it now appears that the 

opinion should be published in the Official Reports, and it is so ordered.

Dated: _______________________ __________________________

Stewart, P.J.
Court: San Francisco County Superior Court

Trial Judge: Hon. Ethan P. Schulman

Alan Charles Dell’Ario; Heinrich Law, Marjorie Heinrich, Ethan A. Wimert, 

for Plaintiff and Appellant 

Tyson & Mendes, James E. Sell, Molly A. Gilardi, Shelley Kramer, Louis R. 

Barella, for Defendant and Respondent John Stewart Company

Hayes, Scott, Bonino, Ellingson, Guslani, Simonson & Clause, Mark G. 

Bonino, Andrea S. Nguyen, for Defendant and Respondent Cahill 

Contractors, Inc.

A163130, Degala v. John Stewart Company et al.