Filed 11/17/16 ( unmodified opn. attached ) 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)

ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on October 26, 2016, and certified for publication, be modified as fol lows:

At the end of the last paragraph on page 11, delete
the last sentence that reads: “ 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.) ” There is no change in the judgment.Filed 10/26/16 ( unmodified version) 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
COM PANY, 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 triable2

issues of material fact on his theory that either the retained control exception or the nondelegable duty exception applied.

Al Kho sh 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 Constructio n Company, Inc. (Staples), for negligence.
The trial court granted Staples ’ s moti on for summary judgment because Khosh failed to establish that Staples retained
control over hi s 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 non delegable dut y to Khosh which caused his injury

. He also contends the court erred in sustaining Staples ’ s evidentiary objections. We affirm.

F ACTS AND PROCEDURAL HISTORY The University hired Staples to install a backup electrical system at the u niversity

. 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 precau tion 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 othe r things. It made Staples

“ exclusively responsible ” for the health an d safety of its3

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 proje ct, 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
be fore 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. A n electrical arc flash

occur red

, severe ly 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 genera l ne gligence 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 contr actor for work

- related injuries

. ( Privette

, supra , 5 Cal.4th at p. 70 2.)

Khosh argued Privette did not bar his claim because (1) Staples retained control over the work and affirmative ly contributed to his injuries ( Hooker

, supra , 27 Cal.4th at p. 202.) ; and (2) Staples violated nondelegable regulatory duties because it
d id not have a qualified electrical worker present to supervise
K hosh and did not prepare a written procedure for the electrical
shutdown. Khosh offered an expert declarati on that these4

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 o ne 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) 1 23 Cal.App.4th 76, 84 .) Upon the grant of summary judgment, w e liberally construe the opposing party ’ s evidence and resolve all doubts about the evidence in favor of the opposing party. ( Lyle v.
War ner 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 injured5

employee is generally limited to worker ’ s compen sation 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 co ntrol 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 recover y when the hirer (1) has a nondelegable l egal 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 p resented sufficient evidence that Staples retained control over the work, but there is no evidence that
S t aples affirmativel y contributed to Khosh’s injury

. Retained Control Khosh presented competent evidence that Staples retained control over safety. I n 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

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

c onstruction s afety c oordinator, and authorized Caltrans to shut down work to correct dangerous conditions. ( I d

. 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

.

a t 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

pro gram 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 participa tion. ” ( 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 part icular 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 esta blish 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 n ot extending the outrigg ers, 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 conten ds 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 breac hing these promises. ( Hooker

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

Hooker does not foreclose the po tential for liability
based on the hirer ’ s omission. ( Hooker

, supra , 27 Cal.4th at p. 212, fn. 3.) W hen a hirer promises to undertake a particular
safet y measure, the negligent failure to fulfill that specific promise may constitute an affirmative contribution. ( I bi d .) For example, the hirer i n 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 pr omise to be “ responsible for site safety ” did not
constitute a specific promise to undertake a partic ular 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

p p. 666

- 6 67 .) 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 ano ther 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 rep resented 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 construct ion 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 sp ecific measures that Staples was required to undertake in response to an identified safety concern

. T here is no evidence that Staples refused a request to shut off electrical power or prevented Khosh from w aiting until the
scheduled shut down before starting work. There is no evidence Myers or Khosh relied on a specific promise by Staples . There is9

no evidence of an act by Staples which affirmatively con tributed to Khosh’s injury.
Nond elegable 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)) , w hich 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, subdiv ision (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.

T he Privette rule applies “ when the party that hired
the contractor ( the hirer ) f ail[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 delegate s to that contractor the duty to provide a safe workplace for the contractor ’ s employees. ( Id

. at p. 600.) This in cludes any duty to comply with statutory or regulatory safety requirements. ( Ibid .)

In SeaBright , an airline hired an independent

contra ctor to service and maintain luggage conveyors. The plaintiff was injured when his arm was caught in its moving10

parts. An expert witness declared that Cal

- OSHA regulations required safety guards which were not present but which would have prevented the i njury. 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 Cal

OSHA regulation requiring utilities to be shut off, capped, or otherwise controlled during demolition work was a delegable duty. T he regulation only applied when specific work was be ing 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 con nected to high

voltage 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

. )

T his case is unlike Evard

, in which a regulation that required the owner of a billboard to maintain horizontal safety
lines on the billboard imposed a n ongoing, non delegable duty. ( Evard

, supra , 153 Cal.App.4th at p. 148.) “The regulation [in
Evard ] impos ed 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 nondelegabl e 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 non delegable duty imposed by statute or regulation remains subject to the Hooker test. ” ( Padilla

, supra , 166 Cal.App.4th at p. 673

. ) Therefore, even

w here there is a breach of a non delegable duty, the plaintiff must show that the breach affirmatively contributed to his injury. ( Id

. at p. 674.) T he absence of a work plan or a supervisor did not
affir matively 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 t o the
declaration of Khosh ’ s expert witness, including all paragraphs setting forth the expert ’ s opinions and the f acts the opinions were
based on. It ruled those paragraphs lacked foun dation and were argumentative. The court also sustained objection s th at certain
exhibits attached to the declaration of Khosh ’ s counsel we re not properly authenticated.

We need not decide if the court erred in excluding
thi s 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 de claration to support his contention that Staples breached r egulatory duties. But the
cited regulations do not create non delegable duties. And t he
excluded contract documents were before the court when it decided the motion, because Staples submitted the same contract docume nts 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.

CERTI FIED 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 Appellan t.

Yukevich | Cava naugh, James J. Yukevich, Cristina M. Ciminelli and Patrick J. Cimmarusti, for Defendant and Respondent.