Filed 11/16/23 Brooks v. One Miracle Property CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

BRENT BROOKS,

 Plaintiff and Appellant,

v.

ONE MIRACLE PROPERTY,

LLC,

 Defendant and Respondent.

2d Civ. No. B324231

(Super. Ct. No. 56-2019-

00527617-CU-PO-VTA)

(Ventura County)

An independent contractor was hired to clean solar panels 

on the roof of a commercial building. A worker employed by the 

independent contractor was injured when he tripped and fell 

through a skylight. The worker sued the building owner alleging, 

among other causes of action, the failure to warn of a concealed 

hazard. The trial court granted summary judgment to the 

building owner on the ground that a landowner is not liable for 

injuries to an employee of an independent contractor. The court 

concluded that no exception to the rule applied. We affirm.
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FACTS

One Miracle Property, LLC (One Miracle) owns multiple 

properties, including a commercial building in Oxnard (Oxnard 

building). One Miracle purchased the land in 1997 and built the 

Oxnard building in 2004. The Oxnard building’s roof has 

skylights, solar panels, and electrical conduits for the solar 

panels.

For more than a decade, West Hills Construction, Inc. 

(West Hills), a licensed general contractor, has performed

construction work for One Miracle, including work on the Oxnard 

building. One of West Hills’ ongoing tasks is to maintain and 

oversee the solar panels and skylights on the roof of the Oxnard 

building. West Hills inspects the roof several times a year. 

Should any repairs or maintenance be required, West Hills

performs the work or hires a subcontractor. Prior to July 18,

2018, West Hills marked certain skylights on the Oxnard 

building for replacement, not because the skylights were 

defective, but because a different model was preferred. At all

times West Hills was an independent contractor for One Miracle.

On or about July 19, 2018, West Hills subcontracted with 

KCM Landscaping Services, Inc. (KCM), an independent

contractor, to clean the solar panels on the Oxnard building’s

roof. West Hills did not supervise KCM’s work and no one from 

One Miracle was present while KCM was working.

On July 19, 2018, Brent Brooks was employed by KCM,

assisting in cleaning the solar panels on the Oxnard building’s 

roof. He tripped on a conduit, fell through a skylight, and landed 

on cardboard boxes below. Although Brooks landed on cardboard 

boxes, he suffered significant injuries.
3

Brooks admitted that he knew there were skylights on the 

roof and that he could distinguish what was a skylight. He 

testified that due to the location of the Oxnard building next to a 

factory, the skylights were covered with a dusty film.

DISCUSSION

I. Standard of Review

Summary judgment is properly granted only if all papers 

submitted show there is no triable issue as to any material fact 

and the moving party is entitled to a judgment as a matter of 

law. (Code Civ. Proc., § 437c, subd. (c).) The trial court must 

draw all reasonable inferences from the evidence set forth in the 

papers except where such inferences are contradicted by other

inferences or evidence that raise a triable issue of fact. (Ibid.) In

examining the supporting and opposing papers, the moving

party’s affidavits or declarations are strictly construed and those 

of the opponent liberally construed, and doubts as to the

propriety of granting the motion should be resolved in favor of 

the party opposing the motion. (Szadolci v. Hollywood Park

Operating Co. (1993) 14 Cal.App.4th 16, 19.)

The moving party has the initial burden of showing that 

one or more elements of a cause of action cannot be established. 

(Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) 

Where the moving party has carried that burden, the burden 

shifts to the opposing party to show a triable issue of material 

fact. (Id. at p. 767.)

On summary judgment, once the defendant establishes that 

the Privette presumption of non-liability pursuant to Privette v. 

Superior Court (1993) 5 Cal.4th 689 (Privette) , applies, the 

burden shifts to the plaintiff to raise a triable issue of fact as to 

whether one of the exceptions applies. (Miller v. Roseville Lodge 
4

No. 1293 (2022) 83 Cal.App.5th 825, 834.) Our review of the trial 

court’s grant of the motion is de novo. (Saelzer v. Advanced 

Group 400, supra, 25 Cal.4th at p. 767.)

II. Rules of Liability

In Privette, supra, (1993) 5 Cal.4th, our Supreme Court 

held that a property owner hiring an independent contractor is 

not liable for work-related injuries suffered by an employee of the 

independent contractor. (Id. at p. 702.) The employee’s remedy 

is in workers’ compensation. (Ibid.)

Brooks relies on an exception to the Privette rule stated in 

Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, holding that a

landowner may be liable to an independent contractor’s employee 

for a concealed hazardous condition on the property. The 

landowner’s liability under this exception applies only where: 1) 

the landowner knew, or should have known, of a pre-existing 

latent or concealed hazardous condition on its property; 2) the 

contractor did not know and could not have reasonably discovered 

the hazardous condition; and 3) the landowner failed to warn the 

contractor about the condition. (Id. at p. 664.)

III. Evidence

One Miracle has established by uncontradicted evidence 

that both West Hills and Brooks’ employer KCM were 

independent contractors. Thus, One Miracle established that the 

Privette presumption of non-liability applies. (See Miller v.

Roseville Lodge No. 1293, supra, 83 Cal.App.5th at p. 834.)

Brooks relies on the declaration of William Dexter. Dexter 

is the former director of the Center for Construction Education at 

California Polytechnic State University San Luis Obispo. Dexter 

declared in part: 
5

“The evidence submitted by [One Miracle] in support of the 

summary judgment motion, . . . , shows that [One Miracle] built 

the [Oxnard] building in 2004; with no other evidence, I can only 

assume that the skylights were installed at that time. The 

injuries sustained by Mr. Brooks were the result of two factors, 

namely failure by [One Miracle] to install the required fall 

restraint guards above or below the skylights during the original 

construction and failure to periodically replace the skylight 

domes after extended periods of exposure to the known harmful 

and deleterious effects of the [ultraviolet (UV)] spectrum of 

sunlight.

“The relevant provision of the Code of California 

Regulations is [title 8, section 3212]: Floor Openings, Floor Holes, 

Skylights and Roofs. As amended with an operative date of

November 8, 1993, this section of the code states in pertinent

part as follows:

“(e) Any employee approaching within 6 feet of any skylight 

shall be protected from falling through the skylight or skylight 

opening by any one of the following methods: [¶] (1) Skylight 

screens installed above the skylight . . . . [¶] (2) Skylight screens 

installed below the skylight . . . .

“When the [Oxnard] building was constructed in 2004,

therefore, it was subject to the laws mandating skylight screens, 

installed above or below the skylights. The description of the fall

presented in the evidence shows no indication that any screen 

was ever present, and, the evidence submitted by the movant

includes no reference to any screen ever having been installed. If 

such screens had been present, the fifteen-to-twenty-foot fall 

described by Mr. Brooks . . . would have been stopped much 

earlier.
6

“The absence of the legally required skylight screens made

the skylight at issue significantly more dangerous than a skylight 

with the legally required screen.

“Because the law requiring screens was in effect at the time 

the [Oxnard] building was constructed, it would be reasonable to 

assume that such screens were installed on the skylights at issue 

here. It would be reasonable for the people on the skylights to 

assume that the screens were installed below the skylights since 

no above-skylight screens were visible. I found nothing in the 

evidence submitted in support of the motion indicating that

either One Miracle Property LLC or West Hills Construction, Inc. 

ever told anyone that the skylights at issue did not include the 

legally required screens.

“The declarations of both [One Miracle and West Hills 

employees] state that West Hills only inspected the roof. Neither 

such an inspection nor merely working on the roof (as plaintiff

Brooks did) would disclose that the legally required safety screen

had not been installed below the skylight. There is no way for a 

‘rooftop’ observer to visually verify that a safety screen had been 

installed beneath the skylight since the skylight dome is

translucent white. The only method of inspection would be to go 

into the area beneath the skylight and look up at dome. It would 

be obvious if the screens were installed. This would be part of a 

reasonable inspection to determine the presence or absence of 

any dangerous conditions.

“In addition, [California Code of Regulations, title 8, section 

1632, subdivision (b)(3)], specifies in pertinent part that any 

‘[c]overs’ on a skylight or other roof opening ‘shall be capable of 

safely supporting the greater of 400 pounds or twice the weight of 
7

the employees, equipment and materials that may be imposed on 

any one square foot area of the cover at any time . . . .’

“Mr. Brooks’s deposition reflects, at page 63, that he 

weighed 230 pounds; the polymer dome should have prevented 

the fall. That he fell through the dome is due to the fact that

[UV] spectrum of sun light causes deterioration of the dome over 

time.

“[A photograph] shows the damage to the skylight from Mr. 

Brooks falling against it. Exposure to [UV] radiation causes

significant degradation of many polymer plastic materials. UV 

radiation causes degradation by promoting oxidation which 

results in breaking of the polymer chains and reduces the 

molecule weight, causing deterioration of the mechanical

strength.

“[A photograph] shows that the dome over the skylight at 

issue was so eroded that there was no elasticity left so it 

shattered like a cracker.

“A reasonable inspection of skylights would require more 

than a check for safety screens by looking up from the area below 

the skylight. Such an inspection would also require a close look

at the polymer domes over the skylights to check for the microcracking and other signs of fatigue. If the skylights had been 

reasonably inspected at any time within five (5) years before the 

accident, the absence of safety screens should have been

discovered; the existence of fatigue or micro-cracking should also 

have been discovered. It is remotely possible that the existence of

fatigue or micro-cracking may not have been discovered unless a 

reasonable inspection occurred within a year prior to the 

accident.
8

“This deterioration gives a polymer plastic skylight dome a 

serviceable life expectancy of between five and fifteen years, 

depending upon the weather and temperature of the skylight’s

location. The deterioration also represents an expected 

performance limitation of polymer plastic products and frequent 

and repeated injuries involving skylights. Photooxidation of 

organic materials is a major cause of irreversible deterioration for 

a large number of substances. It is responsible not only for the 

loss of physical properties of plastics and rubber but has 

contributed to the high incidence of skylight fractures that 

precipitated the Cal/OSHA requirements for safety features such 

as screens, guard [rails] or safety netting installed in skylights.

“That the [Oxnard] building was constructed (and skylights 

installed) in 2004 means that the dome at issue has been 

deteriorating since 2004; as of the date of the accident at issue, 

the dome over the skylight at issue was also at the end of its 

serviceable life. Separately and independently of the absence of 

skylight screens, the deteriorated condition of the polymer dome 

would make the skylight significantly more dangerous than a 

skylight with the polymer dome intact. These dangers 

(deterioration, like the absence of a safety screen below the 

skylight), would not be visible to someone merely working (or 

visually inspecting) the roof.” (Paragraph numbering omitted.)

Dexter’s six page declaration was met by One Miracle with 

80 pages of pro forma objections, none of which referenced any 

particular portion of the declaration. Such “blunderbuss

objections” were condemned by our Supreme Court. (Reid v.

Google, Inc. (2010) 50 Cal.4th 512, 532.) The trial court warned 

that parties raising such objections may face informal 
9

reprimands or formal sanctions for engaging in abusive practices. 

(Ibid.) Here the court sustained all of the objections.

Brooks relies on Serri v. Santa Clara University (2014) 226 

Cal.App.4th 830 (Serri), for the proposition that the trial court

abused its discretion in giving a blanket ruling sustaining all of

One Miracle’s objections. In Serri, the defendant moved for 

summary judgment. The plaintiff presented evidence in 

opposition to the motion. The defendant objected to the plaintiff’s 

evidence. The court issued a blanket ruling sustaining all of 

defendant’s objections. The Court of Appeal stated, “This blanket 

ruling was ‘hardly a ruling,’ provided no basis for review and 

could be treated as a failure to rule.” (Id. at p. 857.) The Court of 

Appeal held that given the number of objections and that some 

were sustained in error, the trial court abused its discretion by 

issuing a blanket ruling. (Ibid.) Nevertheless, the Court of

Appeal concluded that the error was harmless because there was 

no reasonable probability a result more favorable to the appellant 

would have been reached in the absence of the error. (Ibid.)

Here we do not blame the trial court for not ruling 

individually on One Miracle’s 80 pages of objections. The court 

would have been well within its discretion to have imposed 

monetary sanctions and ordered One Miracle to limit its 

objections to a specific number of pages. We assume the court did 

not do so in this case because the defects in Dexter’s declaration

are obvious. If the court abused its discretion by issuing a 

blanket ruling sustaining all of One Miracle’s objections, the 

error was not prejudicial.

First, much of Dexter’s declaration relies on alleged 

violations of safety regulations contained in California Code of 

Regulations, title 8. But those regulations apply to duties 
10

employers owe to their employees. Brooks was employed by 

KCM, not One Miracle.

Second, Dexter declares that the life expectancy of a 

skylight is five to 15 years, but admits he does not know the age 

of the skylight through which Brooks fell. Dexter declares, “I can 

only assume” the skylights were installed in 2004 when the 

Oxnard building was constructed, 14 years prior to the accident. 

Based on this assumption – without testing or even personal 

inspection – Dexter concludes that the skylight material had 

become defective through time and exposure to the elements. 

Dexter’s opinion is inadmissible as based on assumptions and 

conjecture. (Mitchell v. United National Insurance Co. (2005) 127 

Cal.App.4th 457, 478.)

Finally, even if Dexter’s declaration were admitted, the 

result would be the same. Ultimately it was KCM’s duty to 

protect its employees from workplace injuries. California Code of 

Regulations, title 8, section 3212(e), requires that employees 

working within six feet of a skylight shall be protected with a 

screen either above or below the skylight. It would have been

obvious there was no screen above the skylight. At a minimum

California Code of Regulations, title 8, section 3212(e), would 

mandate KCM to inquire whether there was any screen below

before allowing its employees to work within six feet of a skylight. 

KCM should have reasonably known that there were no screens 

on the skylights. There is simply no evidence that One Miracle 

concealed anything from KCM.

Moreover, the uncontradicted evidence is that West Hills 

had the ongoing task to maintain and oversee the skylights on 

the roof. It inspected the roof several times a year. Should any 

repairs or maintenance be required, West Hills would perform 
11

the work or hire a subcontractor. West Hills marked some of the 

skylights for replacement because a better model was preferred,

not because they were defective. Brooks points to nothing that

One Miracle knew or should have known about the skylights that 

made them dangerous. Even Dexter declared that the dangerous 

condition would not be apparent to someone visually inspecting 

the roof. 

DISPOSITION

The judgment is affirmed. Costs are awarded to the

respondent.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

BALTODANO, J.

CODY, J.
Benjamin F. Coats, Judge

Superior Court County of Ventura

______________________________

Law Office of Ball and Yorke, Esther R. Sorkin and Allen R. 

Ball for Plaintiff and Appellant.

Law Offices of Beth M. Henderson and Ann C. Hall for 

Defendant and Respondent.