Filed 11 / 16 / 2 3 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 fo r publication or ordered published, except as specified by rule 8.1115(b) . This opinio n has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

BRENT BROOKS

,
Plaintiff and Appellant,

v.

ONE MI RACLE PROPER TY

, 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 independ en t contractor was injured wh e n he tripped and fell through a skylight. The worker sued the building owner alleging, among other causes of ac tion, the failure to war n of a concealed hazard. The trial court granted summary judgment to the
buil ding owner o n t he ground that a landowner is not liab le for injuries to an employee of an independent contractor. The court

con cluded that no ex ception to the rule applied. We affirm.2 FACTS One Miracle Property

, LLC (One Miracle) owns m ultip le propertie s, includi ng a commer cial building in Oxna rd (Oxnard building)

. O ne Miracle purchased the land in 1 997 and built the
Oxnard building in 2004

. The Oxnard building ’ s roof has skylights, solar panels , and electric al conduits for the solar

pan els.
For more than a decad e , West Hills Construction

, Inc. (West Hills) , a li censed ge nera l contractor, has performed
constructi o n work for One Miracle, including work on the Oxnard building. One of West Hill s ’ ongoing tasks is to maintain and oversee the solar panels and skyl i ghts on th e roof of the Oxnard building. West Hills inspects th e ro of several times a year

. Should any r e pairs or maintenance be required

, West Hills perform s the work or hire s a subcontractor. P rior to Ju ly 18
, 201 8
, West Hills mark ed certain skylights on th e Ox nard building for replacement, not because the sk ylights were defective, but be caus e a different model was preferred

. A t all
times Wes t Hills was an independent contractor for One M iracle.
On or about July 19, 2018 , West Hills subcont r act ed with
KCM Land scaping Services, Inc. ( KCM)

, an independent
contractor, to clean the solar panels on the Oxnard building ’ s roof. W est Hills did not supervise KCM ’ s work and no one from
One Miracle w as present while KCM was work in g. On July 19, 2018

, Brent Brooks wa s em ployed by KCM

, assisting in cleaning the solar panels on the Oxnard build ing ’ s

roo f. He tripped on a conduit, fel l t hrou gh a skylight, and landed

on c ardboard boxes below. A ltho ugh Brooks landed on cardboard boxes, he suffered signifi c ant injuries.3 Broo ks admitted that he knew there were skylights on the
roof and that he could distin guis h what was a skylight . He
testified th a t du e to the location of the Oxnard building next to a fa ctory, the skylights were covered wi th a du s ty film.
D ISCUSSION
I. St anda rd of Review Summary judgment is properly granted only if all papers
submitted show ther e is no triable issue as to any material fa c t

an d the moving p arty is entitled to a jud gment a s a matter of
law . ( Code Civ. Proc. , § 437 c , subd. (c ) .) The trial cour t must draw all reasonable in f erences from the evidence set forth in the
papers except whe re such in ferences are contradicted by o ther
inferences or evidence that raise a triable issue of fact. ( Ibid

. ) In
examinin g the s u pporting and o pposing pape rs, the moving party ’ s affidavits or declarations are strictly construed and those
of the op pone nt liberally construed , and doubts as t o the propri e ty of granting the motion should be re solved in favor o f the party opposin g the m o tion. ( Szadol ci v. Hollywood Park Operating Co. ( 1993) 14 Cal.App.4th 16, 19 .) The moving party has the initial burd en o f showing that
one or more ele ments of a cau se of action cannot be established. ( Saelzer v. Advanced Group 400 (2001) 25 Cal

. 4th 763
, 768 .)
Where the moving p art y has carried that burden, the burden shifts to the opposing party to show a triable i ssu e of material
fact. ( Id . at p. 767 .) On summary j udgm ent
, once the defendant establi shes that
the Privette presumption of non

- l i abili ty pursuant to P r ivette v. Supe ri or C

o urt (1993) 5 Cal.4 th 689 ( Privette )

, applies, the burden shifts to the plaintiff to raise a triable issue of fact as to whether one of the exceptio ns a pplies. ( Miller v. Roseville Lodge4

No. 12 93 (2022) 83 C al. A pp.5th 825, 834 .) Our review of th e t r ial

court ’ s grant of the mo tion is d e n ov o. ( Saelzer v. Advanced Group 400

, supra , 2 5 Cal .4th at p. 767.) II. Rules of Liability
In P rivette

, supra , (1993) 5 Cal.4 th

, our Suprem e C o urt hel d tha t a p roperty owner hiring an ind ependent cont ractor is
not li able for work

- rel a ted injuries suffe red by an employee of the independent contractor. ( Id . at p. 702 .) The employee ’ s remedy
is in wo rke r s ’ compensation . ( Ibid .)
Brooks relies on an exceptio n to the Pr iv et te rule stated in
Kins man v. U

n ocal Corp. ( 200 5 ) 37 Cal. 4th 659
, holdi ng that a
landowner ma y be liable to an independent contractor ’ s employee
for a concealed ha zardou s condition on the property. The
landowner ’ s liability un der this except ion a pplies o n ly w here : 1)
the la ndowner kn e w , or should have known, of a pre

- e x isting latent or concealed hazardous condition on its property ; 2) the
contractor did not know and could not have re as onab l y discovered the hazardous condition; and 3) the lando wner failed to warn the

contract or about the con dition. ( Id

. a t p. 664 .)
III. E vidence
One Mira cle has established by uncontradicted evidence
th at both West Hills and Brooks ’ employer KCM were ind epen dent contractors. Thus

, One Miracle esta blished th at th e Privette presumption of n on

- liability app lies

. (See Mill er v. Rosevill e Lodge No. 1293

, supra , 83 Cal.App.5th at p. 834 .)
Brooks relies on the declaration of William Dexter. Dexter
is the for mer d irector of t he Center for Construc tion Education a t Cal ifornia Polytechnic State U niversity San Lu is Obispo. Dex t er dec lared in part:5 “ T he evidenc e submitted by [One Miracle ] in support of the

sum mary judgment motion,

. . . , shows that [On e Mir acle ] built
the [Oxnard] building in 2004; with no other evidenc e, I can o nly
assume that the s kylights we re installed at that time. The inj u ries sustained by Mr. Brooks were the result of two factors, namely failure by [One Miracle ] to install the required f all

r estraint guards above or below the skyl ights during the orig inal
constructio n and fail ure to peri odically rep lac e the skylig ht
domes after extended periods of exposure to the known harmful
and delet erious effects of the [ ultraviolet (UV)] spectrum of

su nlight

.

“ The relevant provision of the Code of California Regulations is [ title 8, section 3212 ] : Floor O p enings, Floor Holes, Skylights and Roofs. As amended with an operative date of November 8, 1993 , this section of the code s tates in pertinent

par t as follows:

“ (e ) Any employee ap proac hing within 6 feet of a ny skylight shall be protected from fa l ling th r ough th e skylight or skylight opening by any one of the following methods: [ ¶ ] (1) Skylight

s creens installed above th e skyl ight

. . . . [ ¶ ] (2) Skylight screens installed bel ow the skyligh t

. . . .

“ When the [Oxnard] building was constructed in 2 004,
therefo r e , it was subject to the laws mandating skylight screens, installed above or below the skylights. The description of the fa ll presented in the evidence shows no indication that any screen

was ever present, an d, the evidence submitted by the m ovan t includ e s n o reference to any screen ever having been installed. If such screens had been prese nt, the fifteen

- to

- twenty

- foot fall described by Mr. Brooks

. . . woul d have been stopped much
earlier.6 “ The absence of the legally required skylight scre ens made
the sky light at issue significantly more dangerous than a skylight with the legally required screen.

“ Because the law r equiring screens was in effect at the time

t he [Oxnard] building was construct ed, i t would be reasonable to
assume that such sc reens were i n s t a l led on the skylights at issue
here. It would be reasonable for the people on the sk ylights to
assume that the scre ens we re installed below the skylights s ince
no abo ve

- skylight screens were visi ble. I fou nd nothing in the
evidence submit ted i n suppor t o f t he motion indicating that
either One Miracle Property LLC or West Hills Construction, Inc. ever told anyone that the sk ylights at issue did not include t he legally r equired s creens.

“ The d eclarations of both [One Mira cle and West Hills

e mployees ] s tat e that West Hills only inspected the roof. Neither such an inspection nor merely work ing on the roof (as plainti ff
Bro oks did) would disclose that the l egally required safety sc reen had n ot be en installe d below the skylight. T here is no wa y for a

‘ r ooftop ’ observer to visually verify that a safety screen had been installed beneath the skylight since the skylight do me is
translucent white. The only metho d of inspection would be to go into the area beneat h the skylight and look up at dome. I t would
b e obv i ous if the screens were installed. This would be part of a reasonable inspection to determine the presence or a bsence of any dangerous conditions.

“ In addition

, [California Code of Regulations

, t itle 8, sect io n 163 2
, subdivision ( b )(3) ]

, sp e cifies in per tinent part that any

‘ [c]overs ’ on a skylight or other roof opening ‘ shall be capable of safely suppo rtin g the greater of 400 pounds or twice the weight of7

the employees, equipment and materials t hat m ay be im posed on

any one square f

oot ar ea of the co ver at any time

. . . . ’

“ Mr. Brooks ’ s deposition reflects, at page 63, that he weighed 230 pounds; the polyme r dome should have preven ted

t he fall. That he fell through the do m e is due to the f act that [UV] spectrum of sun ligh t causes deter ioration of the dome over
ti m e

.

“ [A photograph] shows the damage to the skylight from Mr.
Brooks fal ling a gainst it. Exposure to [UV] radiation causes significant degradati on of many polymer plasti c materials. UV
radi a tion causes degradation by promotin g oxidatio n whi c h results in breaking of the polymer chains and reduces the
mole cul e weigh t, causing deterioration of the mec hanic al strength.

“ [A photograph] shows that the dome over the skylight at issu e was so ero d ed that there was no elasticity left s o it
shattered l ike a cracker.

“ A reasonable inspection of skyli ght s would require more
than a check for safe ty sc reens by looking up from the area below
the skylight. Such an inspection would al so requi r e a close look at the polymer domes over the skyli ghts to chec k f o r the micro

cracking and other signs of fatigue. If the sk ylights had been
reasonabl y inspect ed at any time within five (5) years before the

a cciden t, th e absence of safety screens should h ave been discovered; the existence of fatigue or m icro

- cracking sh ould also
have been discovered. It is remotely p oss ible th at the existence of fatigue or micr o

- cra cking may not have been discovered unless a
reasonable i nspection occurred within a year p r ior to the
accident.8 “ This deterioration gives a polymer plas tic skylight dome a
serviceable life expectancy o f b etween five and fifteen years, depend ing u pon t he weather and temperature of th e skylight ’ s location. The deterioration also rep resents a n expected performance limitation of polymer plastic p roducts and freq uent and repeated injuries involving skylight s. Photoo xidation of organic materials is a major cause of irreversible deterioration for
a l arge number of substances. It is resp onsible n ot only for t he loss of phy sical properties of plastic s and rubber bu t has contributed to the high incidence of sky lig ht frac tures that precipitated the Ca l/OSH A req uirements for safety features such

as screen s, guard [rails] or safety netting insta lled in s kylights.

“ That the [Oxnard] building was construct ed (and skylight s installed) in 2004 means that the dome at issue ha s b een det eriorating since 2004; as of the da te of the accident at issue,
the dome ove r the skylight at issue was also at the end of its

ser v iceable life. Separately and independently of the absence of

s kylight screens, the deteriorated condition of the p oly mer dom e would make the skylig ht significa ntly more dangerous than a skylight with the polymer dome intact. These dangers ( deter ioration

, like the absence of a s afety screen below the skylight), would not be visible to someone merely working ( or visua lly inspec ting) the roof. ” (Paragraph numbering omitted.)
Dexter ’ s six page decl aratio n was met by One Miracle with 80 pages of pro forma o b jections, none of which referenced any particul ar portion o f t h e declaration

. Such “ blunderbuss objections ” were condemned b y our Supre me Court

. ( Reid v.
Goo gle, Inc. (2010) 50 Cal .4th 512
, 5 32 .) The trial court warned that partie s raisin g such objections may face inform al9

reprimands or formal sanct ions for engagin g in abusive practi ces. ( Ibid

. ) Here th e court sustained all of the o bj ections.
Brooks re lies o n Serri v. Santa Clar a Univ ersity (2014) 226 Cal.App. 4th 830 ( Serr i )

, for t he proposition that the trial court
abused it s discretion in giving a blanket r uli n g sustaining all of
One Miracle ’ s objections . In Serri

, the defendant moved for

summary j udgment. The plaintif f pre sented evidence in

oppo s ition to the motion. The defendant objected to the plaintiff ’ s evidence. The court issued a blank et rulin g sus taining all of
defendant ’ s o bjections. The Court of Appeal s tated, “ Th is blanket
rul ing was ‘ hardly a ruling

, ’ pr ovided no basis for rev i ew and
could be t reated as a failure to rule. ” ( Id . at p. 857 .) The C ourt of Appeal held that given the nu mber of o b je ctions and that some
were sustained in error, the trial court abused its d isc retion by issuing a blanket ruling. ( Ib id .) Neve rtheless

, the C o urt of Appeal concluded that the error was harmless because the re was

no reasona ble pro bability a result m ore favora ble to the appellant
would have been r eached in the absence of the erro r. ( Ibid

. )
H ere we do not blame the trial cour t for not ruling
i n dividually on One Miracle ’ s 80 pages of objections. The court
would have been well within its discr etion to hav e i mpo sed monetary sanctions and ordered One Miracle t o limit its objections to a spec ific number of pages. We assume the co urt d id

no t do so i n this case because the defects in Dexte r ’ s declaration
are obvious. If the court abused its discre tion by issu ing a blanket ruling sustaining all of One Mirac l e ’ s objections, the

error was n ot prejudicial

. First, much of Dexte r ’ s d eclarat ion reli e s on alleged violations of safety regulations contained in California Code of Regulations

, title 8

. But t hose r eg ulat ion s apply to duties10

emplo yers owe to thei r employees. B rooks wa s employe d by
K CM , not One Miracle. Second, D exter declar es that t he life expectancy of a skylight is five to 15 years, but admits he does not know the age of the skylight throug h whic h Brooks fell. Dexter dec lares, “ I can only ass ume ” the skylights were installed in 2004 when the
Oxnard building was const ructe d, 14 y ears pri o r to the accident. Based on this assumption

– without testing or even personal inspection

– Dexter con cl ude s that th e s kylight material had
bec ome defectiv e th rough time and expo sure to the elements.
Dexter ’ s opinion is ina dmiss ible as based o n assumptions and conjecture. ( Mitchell v. United National Insurance Co. (2005) 127
C al.App.4th 457, 478 .)
Final ly , e ven if De xter ’ s declaratio n were admit ted , the
result would b e the same. Ultimately it was KCM ’ s duty to

p rotec t its e mployees from work place i njuries. California Cod e of Reg ulations , title 8, section 3212(e), requires that emp loye es working w ithin s i x feet of a sky light shall b e protected with a screen either ab o ve or below the skylight. It would have been
obvi ous the re was n o screen above the skylight. At a minimum California Code of Reg ulations

, title 8, section 3212 (e), would mandate KCM to inq ui re whether ther e was any screen below before allowing its employees to wo rk within si x feet of a skylight.
K CM shou ld have reasonabl y known that there were no scre en s

on the skylights. There is simply no evidenc e that One Miracle concealed anything fro m KCM.
Moreov er, the unc ontra dicted evidenc e is that West Hills
had the ongoing task to mai ntain and overs ee the skylights on the roof. It inspected the roof severa l tim es a ye ar. Should any repairs or maintenance be required

, West Hills would perform11

t he work or hire a subcontracto r . West Hills marke d s ome of the skylights for replacement because a b ette r model was preferred

, not because they were defective. Brooks poin ts to n ot hing tha t One Miracle knew or should have known about the skylights that

m ad e them da nge rou s . Even Dexte r declared that the dangerou s condition woul d not be apparent to someone vis ually inspecting
the roof.
DISPOSITION
Th e jud gmen t is a ffirmed. Costs are awarded to the respondent.
NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

BALTODANO , J.

CODY , J.Benjamin F . Coats, Judge

Supe rior Court County of Ventura

______________________________
Law Office of Bal l and Yor k e , Esthe r R. Sorkin and Allen R.
Ball for Plaintiff and Appellant.
Law Offices o f Beth M

. He nderson and Ann C. Hall f or Defendant and Respondent.