Filed 7/20/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

BERNIE ALVAREZ,

Plaintiff and Appellant,

v.

SEASIDE TRANSPORTATION 

SERVICES LLC et al.,

Defendants and Respondents.

 B275980

 (Los Angeles County

 Super. Ct. No. BC538128)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Holly Fujie, Judge. Affirmed.

Law Offices of Richard Devirian and Richard C. Devirian; 

Esner, Chang & Boyer and Stuart B. Esner for Plaintiff and 

Appellant.

Cox, Wootton, Lerner, Griffin & Hansen, Richard C. 

Wootton, Mitchell S. Griffin and Marc A. Centor for Defendants 

and Respondents.

_________________________
1

Plaintiff and appellant Bernie Alvarez was injured at work 

when he drove a maintenance van into a shipping container. 

Plaintiff’s employer, Pacific Crane Maintenance Company 

(PCMC), had been hired by Evergreen Container Terminal 

(Evergreen) to perform maintenance work at a marine container 

terminal. Plaintiff sued Evergreen and two of its contractors 

alleging general negligence.

The trial court granted summary judgment to defendants 

based on the Privette doctrine. Under Privette v. Superior Court 

(1993) 5 Cal.4th 689 (Privette), an independent contractor’s 

employee generally may not recover tort damages for workrelated injuries from the contractor’s hirer. On appeal, plaintiff 

argues that (1) defendants did not meet their burden as the 

moving parties on summary judgment, and (2) he raised triable 

issues of material fact as to whether the Privette doctrine did not 

apply because defendants retained control over safety conditions 

at the worksite and affirmatively contributed to his injuries. We 

disagree and affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Evergreen leases a marine container terminal in the Port of 

Los Angeles (Evergreen Terminal). Evergreen contracted with 

Marine Terminals Corporation dba Ports America (Ports 

America), Seaside Transportation Services, LLC (Seaside), and 

PCMC to provide services at the terminal. 

PCMC’s contract with Evergreen provides that “PCMC 

shall exercise reasonable care and use its best efforts to prevent 

accidents, injury, or damages to it[]s employees . . . . PCMC shall 

have an active[,] ongoing safety program and shall comply with 

all applicable safety rules, applicable laws, ordinances, and 
2

regulations.” The contract does not address any obligation on 

Evergreen’s part to ensure safe conditions at the worksite.

Plaintiff worked for PCMC for 13 years as a marine 

mechanic. He was required to watch a training video on general 

safety once a year. The video warned workers that 45-foot 

shipping containers may be located next to 40-foot containers at 

the terminal. Plaintiff was also verbally informed of this 

possibility. 

On March 11, 2012, at about 6:15 p.m., plaintiff was 

inspecting chassis at the Evergreen Terminal while driving a 

maintenance van past a row of 40-foot shipping containers. It 

was light out. As he was driving, he was glancing to his right to 

check dates written on chassis. He was driving nine to ten miles 

per hour when he collided with a 45-foot container. The 45-foot 

container was protruding into the driving lane by over seven feet. 

At the time of the accident, plaintiff did not know he had 

been injured and continued to work for three weeks. He later 

became aware of injuries to his right shoulder, lower back, and 

knees. On March 3, 2014, he filed a complaint for general 

negligence against Evergreen, Seaside, and Ports America. 

Defendants moved for summary judgment arguing they 

were not liable for plaintiff’s workplace injuries under the 

Privette doctrine. In opposition, plaintiff did not address the 

Privette doctrine but argued that the 45-foot container’s partial 

obstruction of the driving lane violated the Pacific Coast Marine 

Safety Code (Marine Safety Code).1

 

1 We take judicial notice of the fact that the International 

Longshoremen and Warehouse Union and Pacific Maritime 

Association’s Pacific Coast Marine Safety Code is a self-described 

“voluntary code for use in all ports of the Pacific Coast.”
3

The trial court granted summary judgment, holding that 

“Defendants have satisfied their burden to show that there is no 

triable issue of material fact and Defendants are entitled to 

summary judgment as a matter of law, pursuant to the Privette 

doctrine. . . . Privette and its progeny establish that the hirer of 

an independent contractor presumptively delegates to that 

contractor its duty to provide a safe workplace for the contractor’s 

employees. . . . Plaintiff has provided no evidence showing that 

Defendants retained control of the contracted work or rebutting 

the presumptive delegation to the contractor employee, PCMC, of 

responsibility for workplace safety.” 

Judgment was entered for defendants, and plaintiff timely 

appealed. 

DISCUSSION

1. The Privette Doctrine

Workers’ compensation “ ‘is the exclusive remedy against 

an employer for injury or death of an employee.’ [Citation.]” 

(Privette, supra, 5 Cal.4th at p. 697.) In Privette, the Supreme 

Court held 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.’ [Citation.]” (Tverberg v. Fillner Construction, 

Inc. (2010) 49 Cal.4th 518, 525.) 

The Privette holding was based on the principle that the 

hirer of an independent contractor generally has “ ‘ “ ‘no right of 

control as to the mode of doing the work contracted for.’ ” ’ ” 

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

213 (Hooker).) Precisely because the hirer “has no obligation to 

specify the precautions an independent hired contractor should 
4

take for the safety of the contractor’s employees, . . . [a]bsent an 

obligation, there can be no liability in tort.” (Toland v. Sunland 

Housing Group, Inc. (1998) 18 Cal.4th 253, 267.) 

There is an exception to the general rule of nonliability 

when the hirer retains control over safety conditions at the 

worksite.2 The “hirer of an independent contractor can be liable 

for a workplace injury of the contractor’s employee if the hirer 

retained control over the contractor’s work and exercised that 

control in a way that ‘affirmatively contribute[d]’ to the 

employee’s workplace injury. [Citation.]” (SeaBright Ins. Co. v. 

US Airways, Inc. (2011) 52 Cal.4th 590, 604 (SeaBright).)

“In order for a worker to recover on a retained control 

theory, the hirer must engage in some active participation. 

[Citation.]” (Tverberg v. Fillner Construction, Inc. (2012) 202 

Cal.App.4th 1439, 1446.) “An affirmative contribution may take 

the form of actively directing a contractor or an employee about 

the manner of performance of the contracted work. [Citations.] 

When the employer directs that work be done by use of a 

particular mode or otherwise interferes with the means and 

methods of accomplishing the work, an affirmative contribution 

occurs. [Citations.] When 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, the hirer 

may be held liable to the employee if its participation 

 

2 Another exception to the general rule of nonliability exists 

when a landowner fails to warn an independent contractor about 

a “latent or concealed preexisting hazardous condition on its 

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

Appellant does not argue this exception applies, nor do we believe 

it is at issue given the 45-foot container was not latent or 

concealed.
5

affirmatively contributed to the employee’s injury. [Citation.]” 

(Ibid.)

2. Defendants Met Their Burden as the Moving Parties on 

Summary Judgment

“[S]ummary judgment or summary adjudication is to be 

granted when there is no triable issue of material fact and the 

moving party is entitled to judgment as a matter of law.” (Mills 

v. U.S. Bank (2008) 166 Cal.App.4th 871, 894–895.) The “party 

moving for summary judgment bears an initial burden of 

production to make a prima facie showing of the nonexistence of 

any triable issue of material fact; if he carries his burden of 

production, he causes a shift, and the opposing party is then 

subjected to a burden of production of his own to make a prima

facie showing of the existence of a triable issue of material fact.” 

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861–862.)

“A defendant seeking summary judgment bears the initial 

burden of proving the cause of action has no merit by showing 

that one or more of its elements cannot be established or there is 

a complete defense to it . . . . [Citations.]” (Cucuzza v. City of 

Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) However, a 

defendant moving for summary judgment is “ ‘entitled to the 

benefit of any relevant presumptions . . . .’ [Citation.]” (Security 

Pac. Nat. Bank v. Associated Motor Sales (1980) 106 Cal.App.3d 

171, 179–180; Engalia v. Permanente Medical Group, Inc. (1997) 

15 Cal.4th 951, 977.) 

Depending on the type of presumption at issue—one 

affecting the burden of proof or one affecting the burden of 

producing evidence—a moving party’s burden on summary 

judgment may shift once it shows the presumption applies. A 

presumption affecting the burden of proof “does not affect the 
6

showing required for a summary judgment . . . .” (Security Pac. 

Nat. Bank v. Associated Motor Sales, supra, 106 Cal.App.3d at p. 

179.) By contrast, a presumption affecting the burden of 

producing evidence operates to shift the burden on summary 

judgment to the opposing party to show there are triable issues of 

fact. (Id. at pp. 179–180.)

The Privette line of decisions establishes a presumption 

that an independent contractor’s hirer “delegates to that 

contractor its tort law duty to provide a safe workplace for the 

contractor’s employees.” (SeaBright, supra, 52 Cal.4th at p. 600.) 

Plaintiff acknowledges this presumption but argues that it only 

affects the burden of proof at trial. According to plaintiff, 

defendants, as the moving parties on summary judgment, bore 

the burden of presenting evidence that they did not retain control 

over safety conditions at the worksite in a manner that 

affirmatively contributed to his injuries. We disagree because we 

conclude the Privette presumption affects the burden of producing 

evidence.

“A presumption is either conclusive or rebuttable. Every 

rebuttable presumption is either (a) a presumption affecting the 

burden of producing evidence or (b) a presumption affecting the 

burden of proof.” (Evid. Code, § 601.) All presumptions not 

declared by law to be conclusive are rebuttable. (Evid. Code, 

§ 620.) “We are required initially by the Evidence Code to 

characterize a rebuttable presumption as one affecting either the 

burden of proof or the burden of producing evidence (Evid. Code, 

§ 601), where the statutory or decisional law creating the 

presumption has failed to so specify.” (In re Marriage of 

Ashodian (1979) 96 Cal.App.3d 43, 46.) 

Here, the presumption created by the Supreme Court based 

on the Privette doctrine was not declared to be conclusive. 
7

Therefore, the presumption is rebuttable. The Supreme Court in 

creating this presumption did not specify whether it affected the 

burden of proof or the burden of producing evidence. We are 

therefore required to characterize the presumption as one 

affecting either the burden of proof or the burden of producing 

evidence.

“A presumption affecting the burden of proof is a 

presumption established to implement some public policy other 

than to facilitate the determination of the particular action in 

which the presumption is applied, such as the policy in favor of 

establishment of a parent and child relationship, the validity of 

marriage, the stability of titles to property, or the security of 

those who entrust themselves or their property to the 

administration of others.” (Evid. Code, § 605; see, e.g., Pellerin v. 

Kern County Employees’ Retirement Assn. (2006) 145 Cal.App.4th 

1099, 1106 [presumptions affecting the burden of proof are those 

intended “to advance some substantive policy goal”].)

“A presumption affecting the burden of producing evidence 

is a presumption established to implement no public policy other 

than to facilitate the determination of the particular action in 

which the presumption is applied.” (Evid. Code, § 603.) “The 

code makes clear that the purpose of such a rebuttable 

presumption relates solely to judicial efficiency, and does not rest 

on any public policy extrinsic to the action in which it is invoked.” 

(TG Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 

1355, 1375.) Such a presumption “dispense[s] with unnecessary 

proof of facts that are likely to be true if not disputed.” (Cal. 

Law. Revision Com. com., 29B West’s Ann. Evid. Code (1995 ed.) 

foll. § 603, p. 57.)
8

Here, we conclude the Privette presumption affects the 

burden of producing evidence.3 The Privette doctrine is derived 

from the principle that an independent contractor’s hirer 

generally has no right of control over the mode of doing the work 

contracted for and, therefore, should not be vicariously liable for 

the independent contractor’s negligence in ensuring the safety of 

its workers. The presumption is a logical extension of this

doctrine because it dispenses with “unnecessary proof of facts 

that are likely to be true if not disputed”—that a hirer generally 

has “ ‘ “ ‘no right of control as to the mode of doing the work 

contracted for.’ ” ’ ” (Hooker, supra, 27 Cal.4th at p. 213.) The 

presumption thus operates solely to facilitate the resolution of 

particular disputes, not to further any other public policy. 

Accordingly, it affects the burden of producing evidence.

“The effect of a presumption affecting the burden of 

producing evidence is to require the trier of fact to assume the 

existence of the presumed fact unless and until evidence is 

introduced which would support a finding of its nonexistence, in 

which case the trier of fact shall determine the existence or 

 

3 At oral argument, appellant’s counsel argued this would be 

a “ground-breaking” rule. Although other cases have not 

expressly described this rule before, it has been clearly implied, 

as respondents argued. Courts applying the Privette doctrine 

have routinely placed the burden on the plaintiff to raise a triable 

issue of fact. (See, e.g., Gravelin v. Satterfield (2011) 

200 Cal.App.4th 1209, 1214 [“Privette bars plaintiff’s action 

absent a triable issue of fact as to whether an exception applies 

that would permit plaintiff to recover against defendants. 

[Citation.]”]; Khosh v. Staples (2016) 4 Cal.App.5th 712, 714 [“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”].)
9

nonexistence of the presumed fact from the evidence and without 

regard to the presumption.” (Evid. Code, § 604.) As stated above, 

on summary judgment, a moving party need only show it is 

entitled to the benefit of a presumption affecting the burden of 

producing evidence in order to shift the burden of proof to the 

opposing party to show there are triable issues of fact. (Security 

Pac. Nat. Bank v. Associated Motor Sales, supra, 106 Cal.App.3d 

at pp. 178–179.)

However, a presumption affecting the burden of producing 

evidence does not arise until the foundational facts are 

established. (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 

416, 421.) Here, defendants provided the requisite factual 

foundation for the Privette presumption to apply. Their separate 

statement presented evidence that Evergreen hired plaintiff’s 

employer to perform work at the Evergreen Terminal, that the 

other defendants—Seaside and Ports America—were also hired 

by Evergreen to perform work there,4 and that plaintiff was 

injured while working at the site. This evidence was sufficient to 

establish that the Privette presumption applied and, therefore, 

shifted the burden to plaintiff to raise a triable issue of fact.

3. Plaintiff Failed to Raise a Triable Issue of Material Fact

Plaintiff argues that even if defendants met their burden as 

the moving parties on summary judgment, he succeeded in 

raising triable issues of fact as to whether defendants’ placement 

of a 45-foot container in a row of 40-foot containers affirmatively 

contributed to his injuries. We conclude that plaintiff did not 

raise a triable issue of material fact.

 

4 The Privette doctrine is “equally applicable in determining 

the liability of the hirer’s agent.” (Ruiz v. Herman Weissker, Inc. 

(2005) 130 Cal.App.4th 52, 62.)
10

Under the retained-control exception to the Privette 

doctrine, an affirmative contribution occurs when a general 

contractor “ ‘is actively involved in, or asserts control over, the 

manner of performance of the contracted work. [Citation.] Such 

an assertion of control occurs, for example, when the principal 

employer directs that the contracted work be done by use of a 

certain mode or otherwise interferes with the means and methods 

by which the work is to be accomplished. [Citations.]’ [Citation.]” 

(Hooker, supra, 27 Cal.4th at p. 215.) 

Here, plaintiff presented no evidence that defendants were 

“actively involved in” or “assert[ed] control over” “the manner of 

performance of the contracted work.” (Hooker, supra, 27 Cal.4th 

at p. 215.) He did not, for example, present evidence that 

defendants directed him to perform his work in any particular 

manner. In fact, plaintiff, in a declaration stated it was his own 

“habit and custom in performing [] inspections and maintenance 

for . . . PCMC” to drive the maintenance van with only “6–7 feet 

of clearance and parallel to the line of 40 foot parked container on 

chassis.” Plaintiff did not state that defendants directed him to 

perform his job in this manner.

In the alternative to showing that a hirer directed an 

independent contractor’s employee to perform his work in a 

particular manner, an employee may also seek to hold a hirer 

liable for any failure to undertake a promised safety measure. 

“[A]ffirmative contribution need not always be in the form of 

actively directing a contractor or contractor’s employee. There 

will be times when a hirer will be liable for its omissions. For 

example, if the hirer promises to undertake a particular safety 

measure, then the hirer’s negligent failure to do so should result 
11

in liability if such negligence leads to an employee injury.” 

(Hooker, supra, 27 Cal.4th at p. 212, fn. 3.) 

Here, however, plaintiff did not present evidence that 

defendants promised to undertake any particular safety measure. 

At most, plaintiff’s separate statement presented evidence that 

defendants were “obligated to comply” with the Marine Safety 

Code and then violated that code by obstructing the driving lane 

with a 45-foot container. There was no evidence that any of the 

defendants promised PCMC that they would comply with the 

Marine Safety Code. The agreement between PCMC and 

Evergreen, for example, only tasked PCMC with undertaking 

certain safety measures; it did not provide that Evergreen would 

retain control of any safety conditions at the worksite. 

Rather, the undisputed facts show that PCMC was 

responsible for its employees’ safety on the job. Plaintiff did not 

raise a triable issue of fact suggesting either that defendants 

exercised the power to control the manner of performance of 

plaintiff’s work or that they promised (and failed) to undertake 

any safety measures at the worksite. Accordingly, plaintiff did 

not meet his burden on summary judgment of showing that 

defendants retained control over safety conditions at the worksite 

in a manner that affirmatively contributed to his injuries. 

A presumption affecting the burden of producing evidence 

“operates to eliminate the existence of a triable issue of fact 

where no contrary evidence is offered.” (Security Pac. Nat. Bank 

v. Associated Motor Sales, supra, 106 Cal.App.3d at p. 180.) “If a 

party moving for summary judgment in any action, . . . would 

prevail at trial without submission of any issue of material fact 

for determination, then he should prevail on summary 

judgment.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 
12

at p. 851.) Here, defendants provided sufficient evidence to 

trigger the Privette presumption and plaintiff did not raise a 

triable issue of fact. Therefore, summary judgment was properly 

granted.

DISPOSITION

The judgment is affirmed. Respondents are entitled to 

recover their costs on appeal.

SORTINO, J.*

WE CONCUR:

FLIER, J.

GRIMES, J.

 

*

 Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.