1

Filed 1/31/23; Certified for Publication 2/23/23 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

GABRIELA MARTINEZ MARIN 

et al.,

Plaintiffs and Appellants,

v.

DEPARTMENT OF 

TRANSPORTATION,

Defendant and Respondent.

 A161844

 (Alameda County

 Super. Ct. No. RG16819984)

This is an appeal from judgment in a wrongful death suit after the trial 

court granted summary judgment in favor of defendant Department of 

Transportation (DOT). Plaintiffs Gabriela Martinez Marin and Miguel Angel 

Rodriguez Martinez, Jr., are the surviving family members of decedent 

Miguel Angel Rodriguez De La Cruz, who was killed on a highway owned and 

operated by the DOT. At the time, decedent was employed as a construction 

worker for the DOT’s subcontractor O.C. Jones & Sons, Inc. (O.C. Jones). 

Plaintiffs sued the DOT for, inter alia, creating a dangerous condition on 

public property in violation of Government Code1 section 835 and vicarious 

liability for its employees’ negligence under section 815.2.

1 Unless otherwise stated, all statutory citations herein are to the 

Government Code.
2

On appeal, plaintiffs contend the court erred in granting summary 

judgment for the DOT because admissible evidence was wrongfully excluded 

and material issues of fact exist as to the DOT’s liability for decedent’s death.

We conclude plaintiffs failed to present evidence that the DOT retained 

control over the construction site where decedent was killed and actually 

exercised that retained control in such a way as to affirmatively contribute to 

his injuries, as required under California law. (Sandoval v. Qualcomm Inc.

(2021) 12 Cal.5th 256, 264 (Sandoval).) Accordingly, we affirm the trial 

court’s grant of summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Decedent was employed by O.C. Jones as a construction worker. 

O.C. Jones was under contract with the DOT to perform construction work 

along a stretch of Interstate 580 (I-580) within the City of Oakland 

(hereinafter, project site). This work included grinding and removing old 

asphalt and placing new asphalt. Due to heavy traffic along the I-580 

corridor, much of this work was performed at night because it required lane 

closures.

On or about September 19, 2015, decedent was part of a construction 

crew tasked with removing asphalt at the project site. To conduct this work, 

the DOT complied with O.C. Jones’s request to close the number 1 and 

number 2 lanes of I-580. To mark the closure, between 7 and 8 p.m., 

O.C. Jones placed traffic signs and an arrow board. O.C. Jones then closed 

and separated the two lanes using a cone pattern with reflective tape. In 

addition, there were multiple trucks and machines at the project site. The 

project site was further marked by multiple signs as well as by construction 

and street lights. Several DOT employees were present at the project site at 
3

this time of evening, including construction engineer Hana Khoury, 

construction field engineer Markus Lansdowne, and inspector John Ruzic.

Sometime after 8 p.m., an O.C. Jones representative phoned Ruzic to 

request a road closure in a different area in order to perform the work, which 

Ruzic authorized.

Later that evening, it was discovered that O.C. Jones’s grinding 

equipment was ineffective in removing certain pockets of asphalt and that 

manual removal was required. Decedent’s team was thus tasked with 

performing this work with hand and pneumatic tools. Decedent went to work 

along the eight-foot-wide left shoulder adjacent to the number 1 lane, 

removing the asphalt and then hand shoveling the loose material into a 

bucket. This work, located away from the main paving operation, was 

illuminated by headlights on a front loader and ladder-mounted lights on a 

pickup truck with an air compressor trailer, both of which were positioned in 

the left shoulder against a tall concrete retaining wall. 

About 12:18 a.m. on September 19, 2015, decedent was speaking with 

the operator of the front loader when a car operated by a drunk driver 

entered the closed lanes of the project site and struck him before coming to a 

stop in the number 2 lane. Decedent died on the scene from multiple blunt 

traumatic injuries.

Plaintiffs, decedent’s wife and minor child, subsequently brought this 

wrongful death lawsuit against the DOT, filing the operative second amended 

complaint on December 20, 2017.

2 This complaint asserted three causes of 

action against the DOT: (1) vicarious liability for the negligence of its 

2 Plaintiffs also sued the Department of the California Highway Patrol, 

Santos Andres Pablo-Carrillo and Does 1–30. However, the DOT is the only 

defendant involved in this appeal.
4

employees (§ 815.2); (2) failure to discharge a mandatory duty (§ 815.6); and 

(3) dangerous condition on public property (§ 835). Plaintiffs sought both 

compensatory and punitive damages. The DOT subsequently answered the 

second amended complaint, raising 26 affirmative defenses.

On January 3, 2018, the DOT successfully demurred to plaintiffs’ cause 

of action for failure to discharge a mandatory duty. The court overruled the 

DOT’s demurrer to the causes of action for a dangerous condition on public 

property and vicarious liability for its employees’ negligence.

On February 11, 2020, the DOT moved for summary judgment as to the 

remaining two causes of action. The DOT argued as to both causes of action 

that (1) it was immune from liability as a public entity (§§ 830.8, 845); (2) the 

lawsuit was barred under Privette v. Superior Court (1993) 5 Cal.4th 689 

(Privette) because the DOT properly delegated workplace safety to 

O.C. Jones; and (3) the drunk driver’s criminal conduct that caused 

decedent’s death was not reasonably foreseeable.

In support of its motion, the DOT offered a declaration from DOT 

inspector Ruzic, who attested that his role at the project site was to ensure 

O.C. Jones was complying with the terms of the contract, including its safety 

obligations. Ruzic did not instruct or control O.C. Jones as to how to comply 

with its safety obligations. Further, on the night in question, Ruzic observed 

that O.C. Jones complied with its safety plan by: (1) placing warning signs up 

at 7 p.m.; (2) putting the arrow board in place at 8 p.m.; and (3) ensuring all 

the tapers set up by the cones were in proper position by around 8 p.m. 

Sometime after 8 p.m., an O.C. Jones representative phoned Ruzic to request 

a road closure in a new area. Ruzic authorized the change before leaving the 

project site for a meal. As such, he was not present when the accident 

occurred.
5

The DOT also offered a declaration from DOT construction engineer 

Khoury, who supervised the project. Khoury attested that the contract 

between the DOT and O.C. Jones was entered into on February 18, 2015, and 

delegated to O.C. Jones the responsibility for selecting the means and 

methods for performing under the contract work, including those designed to 

ensure worker safety. According to Khoury, the DOT did not direct 

O.C. Jones (or any of its contractors) regarding the means and methods of 

performing the work required under the contract.

Plaintiffs opposed this motion and offered their own evidence. 

Plaintiffs argued, inter alia, that triable issues of fact existed as to whether 

the DOT retained control over the construction project and whether, 

notwithstanding the drunk driver’s conduct, the DOT could be held liable for 

its own negligence. In support of these arguments, plaintiffs relied on a part

of the parties’ contract entitled 2010 Standard Specifications, part 5 (Control 

of Work), which stated that the DOT’s resident engineer was responsible for 

making final decisions on questions regarding the contract, including the 

manner of work performance and work quality and acceptability.

Plaintiffs also offered the declaration of Christian Engelmann, a civil 

and traffic engineer formerly employed by the DOT (Engelmann declaration). 

Engelmann attested as to his expertise and familiarity with highway traffic 

safety in general and the DOT’s highway traffic safety policies and 

procedures in particular. Based on his professional experience with the DOT

as well as his engineering expertise and review of relevant case materials, 

Engelmann opined, inter alia, that the project site constituted a dangerous 

condition on the night in question, that decedent’s death was foreseeable 

based on said condition, and that the DOT had a duty, which it failed, to 

inspect the project site for proper safety measures.
6

On September 4, 2020, the DOT filed objections to 32 statements in the 

Engelmann declaration. The grounds asserted included irrelevance, undue 

prejudice, speculation, lack of foundation, improper legal conclusion, and 

inadmissible hearsay.

On November 9, 2020, following a contested hearing, the trial court 

concluded that, under Privette and its progeny, the DOT was not liable for 

decedent’s death as a matter of law because the DOT delegated to O.C. Jones 

its duty to provide a safe work environment. Additionally, the court found no 

liability because the conduct of the drunk driver that killed decedent was not 

reasonably foreseeable. Finally, the court sustained 31 of the DOT’s 32 

objections to the Engelmann declaration without explanation. Accordingly, 

judgment was entered for the DOT. This timely appeal followed.

DISCUSSION

Plaintiffs challenge the grant of summary judgment in DOT’s favor on 

the grounds that (1) the trial court’s “blanket ruling” sustaining 31 of 32 

evidentiary objections was a manifest abuse of discretion and (2) material 

issues of disputed fact exist as to their causes of action for vicarious liability 

under section 815.2 and creating a dangerous condition on public property 

under section 835. We address each issue in turn after setting forth our

standard of review.

A defendant moving for summary judgment must show “that one or 

more elements of the cause of action . . . cannot be established, or that there 

is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. 

(p)(2).) Summary judgment is proper where “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.” (Id., subd. (c).)
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On appeal, “we take the facts from the record that was before the trial

court . . . . ‘ “We review the trial court’s decision de novo, considering all the

evidence set forth in the moving and opposing papers except that to which

objections were [properly] made and sustained.” ’ ” (Yanowitz. v. L’Oreal

USA, Inc. (2005) 36 Cal.4th 1028, 1037, citation omitted.) In doing so, “we

exercise an independent review to determine if the defendant moving for 

summary judgment met its burden of establishing a complete defense or of 

negating each of the plaintiff[s’] theories and establishing that the action was 

without merit.” (Fisherman’s Wharf Bay Cruise Corp. v. Superior Court

(2003) 114 Cal.App.4th 309, 320.) Ultimately, we must affirm summary 

judgment “ ‘if it is correct on any of the grounds asserted in the trial court, 

regardless of the trial court’s stated reasons.’ ” (Arvizu v. City of Pasadena

(2018) 21 Cal.App.5th 760, 763 (Arvizu).)

I. The court failed to discharge its duty to expressly rule on the 

DOT’s individual evidentiary objections.

Below, the DOT raised 32 objections to the 14-page expert declaration 

submitted on plaintiffs’ behalf by Christian Engelmann, a civil and traffic 

engineer who worked for the DOT from 1999 to 2016. The trial court issued a 

blanket ruling sustaining all but one of the 32 objections, without 

explanation. On appeal, plaintiffs argue this ruling was a manifest abuse of 

discretion. The following principles govern our review.

Generally, we review the trial court’s evidentiary rulings for abuse of 

discretion. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405.) 

Under this standard, we reverse an evidentiary ruling only if the appellant 

makes a showing that the trial court exercised its discretion in an arbitrary, 

capricious or patently absurd manner that resulted in a miscarriage of 

justice. (People v. Avitia (2005) 127 Cal.App.4th 185, 193.)
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This standard, however, assumes that the trial court met its 

obligation with respect to ruling on evidentiary objections. “[I]n the 

summary judgment setting, . . . a trial court presented with timely 

evidentiary objections in proper form must expressly rule on the individual 

objections, and if it does not, the objections are deemed waived and the 

objected-to evidence included in the record.” (Demps v. San Francisco 

Housing Auth. (2007) 149 Cal.App.4th 564, 578 (Demps).) Moreover, 

“expressly rul[ing] on the individual objections” (ibid.) does not mean ruling 

as the trial court did here, by simply issuing a blanket order sustaining 31 of 

32 objections without identifying any particular basis. And this is despite the 

fact that, for nearly all of its objections, the DOT offered multiple grounds for 

exclusion. Indeed, for 28 of these objections, the DOT offered four or five 

separate grounds for exclusion. Yet, given the court’s blanket ruling, we have 

no way of knowing whether the court accepted all of these grounds or just 

one. As aptly explained by our First Appellate District colleagues under more 

egregious circumstances: “It is true that the trial court ‘ruled,’ however 

conclusorily, that all objections save one were sustained. This is hardly a 

ruling, as it could not provide any meaningful basis for review.” (Nazir v. 

United Air Lines, Inc. (2009) 178 Cal.App.4th 243, 255, 257 [trial court 

committed a “manifest abuse of discretion” in sustaining all but one of the 

defendants’ 764 objections without explanation].)

Under these circumstances, where the trial court failed to discharge its 

obligation to expressly rule on the DOT’s individual objections in a manner 

that would allow a meaningful basis for our review, we give plaintiffs the

benefit of the situation and consider all the evidence in the record, including

the Engelmann declaration, as though the DOT’s objections were waived. 

(Demps, supra, 149 Cal.App.4th at p. 578.)
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Reviewing the record in this light, we nonetheless conclude for reasons 

set forth post that the trial court’s grant of summary judgment was correct. 

(Arvizu, supra, 21 Cal.App.5th at p. 763 [summary judgment upheld if correct 

on any ground].)

II. Summary judgment was proper under Privette and its progeny.

Plaintiffs’ causes of action arise under the Government Claims Act 

(§ 810 et seq.). Specifically, the first remaining cause of action arises under 

section 815.2, pursuant to which public entities are liable for injuries caused 

by their employees within the scope of their employment “if the act or 

omission would, apart from this section, have given rise to a cause of action 

against that employee . . . .” (§ 815.2, subd. (a).) Section 815.2, 

subdivision (b) then states, “Except as otherwise provided by statute, a public 

entity is not liable for an injury resulting from an act or omission of an 

employee of the public entity where the employee is immune from liability.”

Plaintiffs’ second remaining cause of action arises under section 835, 

which provides: “Except as provided by statute, a public entity is liable for 

injury caused by a dangerous condition of its property if the plaintiff 

establishes that the property was in a dangerous condition at the time of the 

injury, that the injury was proximately caused by the dangerous condition, 

that the dangerous condition created a reasonably foreseeable risk of the kind 

of injury which was incurred, and that either: [¶] (a) A negligent or wrongful 

act or omission of an employee of the public entity within the scope of his 

employment created the dangerous condition; or [¶] (b) The public entity had

actual or constructive notice of the dangerous condition under Section 835.2 a 

sufficient time prior to the injury to have taken measures to protect against 

the dangerous condition.”
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Relevant to both claims, plaintiffs contend disputed issues of fact exist 

as to whether decedent’s death was the result of dangerous conditions at the 

project site that the DOT and its employees had notice of yet negligently 

failed to prevent or correct. These dangerous conditions included “the 

positioning of the [construction] equipment in the shoulder, the widths [sic] of 

the shoulder lane, the inadequate lighting, the proximity of the closure to 

incoming traffic, and the lack of attenuator vehicles.”

We agree with the trial court that, under Privette, supra, 5 Cal.4th 689,

and its progeny, the DOT cannot be held liable under plaintiffs’ theory

because the DOT expressly delegated jobsite safety to decedent’s employer, 

O.C. Jones.

A. Privette and Its Progeny.

Privette, supra, held that when “the injuries resulting from an 

independent contractor’s performance of inherently dangerous work are to an 

employee of the contractor, and thus subject to workers’ compensation 

coverage, the doctrine of peculiar risk affords no basis for the employee to 

seek recovery of tort damages from the person who hired the contractor but 

did not cause the injuries.” (5 Cal.4th at p. 702.)

Subsequent to Privette, the California Supreme Court decided a case 

more on point with ours (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 

Cal.4th 590). There, the court considered whether the rule announced in

Privette applied when a hirer failed to comply with workplace safety

requirements concerning the subject matter of the contract and a worker’s

injury is alleged to have occurred as a consequence of that failure. Holding

that the Privette rule applies in that circumstance, the court held: “By hiring

an independent contractor, the hirer implicitly delegates to the contractor

any tort law duty it owes to the contractor’s employees to ensure the safety of
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the specific workplace that is the subject of the contract. That implicit

delegation includes any tort law duty the hirer owes to the contractor’s

employees to comply with applicable statutory or regulatory safety

requirements.” (Id. at p. 594.)

There are, of course, exceptions to the Privette rule. Relevant here, 

plaintiffs argue this case falls under the exception established in Hooker v. 

Department of Transportation (2002) 27 Cal.4th 198 (Hooker) because the 

DOT retained control over jobsite safety.

Plaintiffs read Hooker too broadly. Hooker held that “a hirer of an 

independent contractor is not liable to an employee of the contractor merely 

because the hirer retained control over safety conditions at a worksite”; 

rather, “a hirer is liable to an employee of a contractor insofar as a hirer’s 

exercise of retained control affirmatively contributed to the employee’s 

injuries.” (Hooker, supra, 27 Cal.4th at p. 202 [upholding summary judgment

where, “although plaintiff raised triable issues of material fact as to whether 

defendant retained control over safety conditions at the worksite, plaintiff 

failed to raise triable issues of material fact as to whether defendant actually 

exercised the retained control so as to affirmatively contribute to the 

[decedent’s] death” (italics added)].) Thus, the court affirmed summary 

judgment for the defendant because “[t]here was, at most, evidence that 

Caltrans’s safety personnel were aware of an unsafe practice and failed to 

exercise the authority they retained to correct it.” (Id. at p. 215; see Kinney v. 

CSB Construction, Inc. (2001) 87 Cal.App.4th 28, 39 [“The mere failure to 

exercise a power to compel the subcontractor to adopt safer procedures does 

not, without more, violate any duty owed to the plaintiff”].)

Recently, our Supreme Court revisited Hooker’s exception to the 

Privette doctrine in Sandoval, supra, 12 Cal.5th 256. In doing so, the court
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confirmed, “If a contract worker becomes injured after that delegation [of 

safety] takes place, we presume that the contractor alone—and not the 

hirer—was responsible for any failure to take reasonable precautions.” (Id. 

at p. 271.) Thus, “[c]ontract workers must prove that the hirer both retained 

control and actually exercised that retained control in such a way as to 

affirmatively contribute to the injury.” (Id. at p. 276.) “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.’ (Rest.3d Torts, [Liability for 

Physical and Emotional Harm], § 56, com. c, p. 392; [citations].)” (Ibid.) 

Moreover, “the affirmative contribution requirement can be satisfied only if 

the hirer in some respect induced—not just failed to prevent—the contractor’s 

injury-causing conduct,” or “where the hirer’s exercise of retained control 

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

any) to the injury.” (Id. at p. 277.)

B. Application of These Principles to the Undisputed 

Evidence in the Record.

To begin, it is undisputed that the DOT hired O.C. Jones, decedent’s 

employer, to perform work on a jobsite owned by the DOT and that decedent 

was killed while working at the site. It is also undisputed that the contract 

between the DOT and O.C. Jones includes section 7, which expressly 

delegated matters of safety at the project site to O.C. Jones. This section

states in relevant part: “In the performance of this contract, the contractor 

shall comply with all applicable Federal, State, and local laws governing 

safety, health and sanitation [citation]. The contractor shall provide all 

safeguards, safety devices and protective equipment and take any other needed 

actions as it determines, or as the SHA contracting officer may determine, to 

be reasonably necessary to protect the life and health of employees on the job 
13

and the safety of the public and to protect property in connection with the 

performance of the work covered by the contract. [¶] . . . [T]he contractor and 

any subcontractor shall not permit any employee, in performance of the 

contract, to work in surroundings or under conditions which are . . .

hazardous or dangerous to his or her health or safety . . . .” (Italics added.)

“This evidence was sufficient to establish that the Privette presumption 

applied and, therefore, shifted the burden to plaintiff[s] to raise a triable 

issue of fact.” (Alvarez v. Seaside Transportation Services LLC (2017) 13 

Cal.App.5th 635, 644.) To do so, plaintiffs direct us to section 5 of the 

contract. This provision states in relevant part that the DOT’s residential 

engineer at the project site (here, Hana Khoury) is authorized to make the 

final decision on questions regarding the contract, including as to “[w]ork 

quality and acceptability” and the “manner of performance of the work.”

We agree with the DOT that this provision does not suffice to raise a 

triable issue as to whether the DOT retained control over safety at the project

site and actually exercised this retained control in such a way as to 

affirmatively contribute to decedent’s death. (Sandoval, supra, 12 Cal.5th at 

p. 276.) Section 5 refers to work quality/acceptability and the manner of 

work performance, not project site safety. As to that particular issue, 

plaintiffs concede the DOT “did not direct or order the means and methods 

used by O.C. Jones to provide worker safety” and “did not have the 

responsibility for setting up the barriers, cones or warning signs.” Plaintiffs 

further concede the DOT “did not prevent OC Jones from complying with its 

obligation to provide a safe work site.”

Notwithstanding their concessions, plaintiffs point to the following 

facts in their continued attempt to create a triable issue as to the DOT’s 

liability. First, the DOT was “responsible for assessing whether the 
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construction zone was eminently unsafe and to stop the construction work 

from proceeding.” Moreover, “while [the DOT] did not have the responsibility 

for setting up the barriers, cones or warning signs . . . , it did authorize lane 

closures. It could also authorize the use of attenuator vehicles at 

construction sites.” Finally, the DOT “expected its employees to be familiar 

with its Code of Safe Practices” and required its resident engineer “to file 

daily reports on the condition of the [project] site,” which it did not do.

Consistent with these facts, plaintiffs’ expert Engelmann opined that 

the project site constituted a dangerous condition on the night of decedent’s 

death, that it was foreseeable that an errant vehicle would enter the project 

site and injure or kill a worker, and that DOT employees had a duty of care to 

consider the safety of O.C. Jones’s employees. According to Engelmann, the 

DOT employees assigned to the project site when decedent was killed

“exercised a poor standard of care” by failing (1) “to inspect for proper safety 

measures, such as a proper escape route [from errant vehicles], or barrier 

vehicle, located such that it provides protection to workers [at the project 

site]”; (2) “to fill out or be familiar with form CEM-0606,” i.e., construction 

safety checklists utilized by the DOT to ensure compliance with safety rules;

or (3) “to inspect for proper lighting located such that it provides minimum 

required illumination [at the project site].” This evidence, viewed in a light 

favorable to plaintiffs, does not overcome the barrier to liability effected by

Privette and its progeny. Evidence that the DOT could have authorized a 

lane closure or use of an attenuator vehicle, “at most, [proved] that [DOT] 

safety personnel were aware of an unsafe practice and failed to exercise the 

authority they retained to correct it.” (Hooker, supra, 27 Cal.4th at p. 215.)

Further, evidence that the DOT expected O.C. Jones’s employees to learn and 

to follow safety policies is not evidence that the DOT “both retained control
15

and actually exercised that retained control in such a way as to affirmatively 

contribute to the injury.” (Sandoval, supra, 12 Cal.5th at p. 276; see id. at p. 

281 [“That [the hirer’s] employees may have been trained to provide personal 

warnings to everyone in the room, or that [its] managers and experts may 

have considered such warnings ‘critical,’ does not establish that [the hirer] 

induced [the independent contractor’s] reliance on [the hirer] to provide 

them”].) Under these circumstances, where it was undisputed the DOT did 

not direct the means or methods of decedent’s work on the day in question or 

instruct his employer on how to provide for his or his coworkers’ safety, 

summary judgment was appropriate.

Horne v. Aherne Rentals, Inc. (2020) 50 Cal.App.5th 192 is instructive. 

There, similar to here, summary judgment was affirmed for the defendant, 

who hired the decedent’s employer as an independent contractor, because,

“[a]t most, plaintiffs’ evidence shows defendant passively permitted an unsafe 

condition.” (Id. at p. 203.) As the reviewing court explained: “This . . . would 

be a different case if [the contractor] or one of its employees had asked 

defendant to take safety measures to be sure the forklift was stable, and 

defendant promised to do so, but did not follow through. There is no evidence 

that defendant ever agreed with [the contractor] to implement any safety 

measure related to the position of the forklift (or any other safety measure). 

There is no evidence anyone with [the contractor] asked defendant to move 

the forklift or lower the boom, but defendant did not do so; or that it was 

impossible or impractical to ask defendant to be sure the forklift was safely 

positioned to change the tires.” (Ibid.; accord, Brannon v. Lathrop 

Construction Associates, Inc. (2012) 206 Cal.App.4th 1170, 1180 [“[The 

hirer’s] act of allowing the scaffolding to remain in place while the masonry 

work proceeded was no more an exercise of retained control over safety than 
16

was Caltrans’s decision in Hooker to allow construction traffic to access the 

overpass while the crane was being used”].)

Accordingly, for the reasons stated, we agree with the trial court that 

the Privette doctrine serves as an absolute bar to holding the DOT liable for 

decedent’s death under section 835 (dangerous condition) or section 815.2 

(vicarious liability for its employees’ negligence). In the words of Sandoval, 

supra, “a hirer’s mere authority to prevent or correct a contractor’s unsafe 

practices (retained control) does not, without more, limit the contractor’s 

delegated control over the work.” (12 Cal.5th at p. 278.)3

DISPOSITION

The judgment is affirmed.

_________________________

Jackson, P. J.

WE CONCUR:

_________________________

Simons, J.

_________________________

Burns, J.

A161844/Marin v. Department of Transportation

3 Given this holding, we need not address plaintiffs’ remaining 

argument that the trial court erred in concluding that, as a matter of law, the 

DOT cannot be held liable for the criminal conduct of the drunk driver that 

killed decedent. As stated, we uphold the trial court’s grant of summary 

judgment so long as it is correct on any grounds. (Arvizu, supra, 21 

Cal.App.5th at p. 763.)
1

Filed 2/23/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

GABRIELA MARTINEZ MARIN 

et al.,

Plaintiffs and Appellants,

v.

DEPARTMENT OF 

TRANSPORTATION,

Defendant and Respondent.

 A161844

 (Alameda County

 Super. Ct. No. RG16819984)

 ORDER CERTIFYING OPINION

 FOR PUBLICATION

THE COURT:*

The opinion in the above-entitled matter filed on January 31, 2023, was 

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

appears that the opinion should be published in the Official Reports and it is 

so ordered.

Date: , P. J.

* Jackson, P. J.; Simons, J.; Burns, J.
2

A161844/Marin v. Department of Transportation

Trial Court: Superior Court of the County of Alameda

Trial Judge: Paul Herbert

Counsel: Liberation Law Group and Arlo Garcia Uriarte for 

plaintiffs and appellants.

Tyson & Mendes, James E. Sell and Molly A. Gilardi, for 

defendant and respondent.