Torres v. Design Group Facility Solutions CA2/3 ( 2021 )

Filed 10/1/21 Torres v. Design Group Facility Solutions CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ISMAEL TORRES, JR., an B308630
incompetent Person, etc.,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC608065)
v.
DESIGN GROUP FACILITY
SOLUTIONS, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Maurice A. Leiter, Judge. Affirmed.
Law Offices of Berglund & Johnson and Daniel W. Johnson
for Plaintiff and Appellant.
Lynberg & Watkins, Michael J. Larin, Shant N. Nashalian;
London Fischer, Jerome P. Doctors and Nicholas W. Davila for
Defendant and Respondent.
——————————
Ismael Torres, Jr., sued Design Group Facility Solutions,
Inc. (Design) for personal injuries after he fell through a skylight
at a construction project. The trial court granted summary
judgment in favor of Design, finding that the rule set forth in
Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny
barred Torres from recovery after he failed to present evidence
that Design’s negligence affirmatively contributed to his injuries.
This is the second appeal in this matter. In our first opinion, we
reversed the trial court’s judgment, holding that Design could not
bypass the procedural safeguards afforded to a party opposing
summary judgment pursuant to Code of Civil Procedure1 section
473c by moving for reconsideration under section 1008,
subdivision (a). (Torres v. Design Group Facility Solutions, Inc.
(2020) 45 Cal.App.5th 239.) Because those due process concerns
are no longer present and Torres has failed to raise a triable
issue of material fact, we affirm.
BACKGROUND
Design was hired by Santa Monica Seafood Company
(SMS) as the general contractor to renovate and expand its
seafood processing facility. As part of the project, Design
subcontracted with C&L Refrigeration (C&L) to install new
refrigeration units. C&L in turn hired H.J. Vast (Vast) as a sub-
subcontractor to do electrical work. Torres was an employee of
Vast.
The renovation of the SMS facility required workers to be
on the roof, which contained 111 skylights. The roof was roughly
1 All
further statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2
divided into western and eastern sections by a pipe rack with the
skylights on the western section closer together than the
skylights on the eastern section. Design and C&L discussed the
safety hazard posed by the skylights. To address the hazard,
C&L created a safety plan. C&L required its workers to walk
due west and noted that there would be delineators with caution
tape in certain areas to indicate paths of travel. The plan also
required workers to use several portable skylight barricades if
any work took place closer than six feet from any skylight. C&L
made the barricades available to other contractors if they were
not being used by C&L’s workers. Design also installed
removable anchor points in certain areas to protect its workers
from falling while they cut holes in the western section of the
roof.2
Design and SMS agreed that Design would be solely
responsible for and have control over all construction, means
methods, techniques, sequences and procedures. Design had the
right to inspect the subcontractors’ work and to stop their work if
it was done in an unsafe manner. Design also required
subcontractors to make their own safety plans and to provide
their own safety equipment. C&L agreed to provide a safe place
to work for its employees and for the employees of its
subcontractors and to comply with applicable laws and
regulations and with Design’s safety plan.
Design’s construction manager, Martin Studley, was
responsible for continuously monitoring jobsite safety and
ensuring that subcontractors were using appropriate safety
2 Anchor
points allow workers to attach themselves to the
roof with a harness and lifeline or lanyard.
3
equipment. However, his presence on the jobsite did not relieve
any subcontractor of their duties and responsibilities for
performing and coordinating work and exercising necessary
health or safety precautions required by law.
On the date of the accident, Torres was on the eastern
section of the roof, installing conduit and pulling wire. He was
wearing a safety harness, but was not attached to an anchor
point. A Vast employee who witnessed the accident said that
Torres was walking on the eastern section of the roof, when he
turned to say something over his shoulder and then tripped on
the corner of the skylight. Torres crashed through the skylight
and fell 33 feet.
Torres sued Design for damages as a result of his injuries.
Design moved for summary judgment, arguing Torres’s claims
were barred under the doctrine articulated in Privette v. Superior
Court, supra, 5 Cal.4th 689, which shields a hirer from liability
for an independent contractor’s workplace injuries.
The summary judgment hearing was continued for several
months at Torres’s counsel’s request to conduct additional
inspections and depositions. Before Torres filed his opposition,
several witnesses were deposed, including Vast’s project foreman,
Raul Hernandez; C&L’s safety coordinator, Mike Annesley;
Torres’s coworker who witnessed the accident, Michael
Evanchock; and Torres.
The trial court initially denied Design’s motion, finding
that Studley’s testimony was sufficient to raise a triable issue of
material fact, specifically, his statement that Torres fell outside
of the established pathway on the roof and that Studley would
check to ensure the delineators marking the pathway were
connected by tape. The trial court concluded that this testimony
4
created an inference that Design affirmatively exercised its
control authority by establishing a walkway and periodically
checking the safety delineators on site and that its negligence in
doing so resulted in Torres’s injury.
Design moved for reconsideration under section 1008,
subdivision (a), submitting that it was unable to provide the trial
court with testimony from those depositions taken after it filed
its motion but before Torres filed his opposition. Design argued
that the testimony from Torres, Hernandez, Evanchock, and
Annesley showed that Design did not retain control over Torres’s
work, and, even if it retained control, Design did not affirmatively
contribute to Torres’s injuries. Design filed an attorney
declaration with its motion and attached the relevant deposition
excerpts but did not include an amended separate statement of
undisputed material facts. The motion was a regularly noticed
motion, allowing Torres approximately three weeks to file his
opposition.
The new evidence submitted by Design included extensive
testimony from Hernandez, who admitted that Design and C&L
did not direct Vast or its employees how to do their work.
Hernandez stated that Vast was aware that the skylights were a
hazard and that Vast had its own safety plan for its workers
performing work on the roof. Hernandez directed Vast employees
to work on the eastern section of the roof because the skylights
were closer to the pipe rack on the western section. Hernandez
verbally communicated the safety plan to Vast employees and did
not mark a path on the roof because he believed his verbal
instructions were sufficient. Hernandez also admitted that he
did not discuss with Design that Vast workers would be working
on the eastern section of the roof and all of his communications
5
were strictly through C&L. He agreed that Design did not
prevent or prohibit Vast from establishing its own pathway on
the roof.
The trial court granted the motion to reconsider and
summary judgment, finding that the new evidence established
that there were no triable of issues of material fact on whether
Design retained control over Torres’s work or that Design
contributed to Torres’s injuries.
Torres appealed, arguing that the trial court erred in
granting Design’s motions for reconsideration and summary
judgment and that there remained triable issues of material fact.
We reversed the trial court’s judgment on the grounds that
Torres did not receive an adequate opportunity to respond to
Design’s new evidence supporting the motion for reconsideration.
We did not address the merits of Design’s motion for summary
judgment.
On remand, Design moved again for reconsideration of the
trial court’s order denying summary judgment. This time,
however, Design moved under section 1008, subdivision (b).3
Design served the motion on Torres at least 75 days prior to the
hearing and filed a separate statement of undisputed facts. The
trial court granted Design’s motion for reconsideration and
granted summary judgment in its favor.
Torres appealed.
3 Design also moved for reconsideration under section 473c,
subdivision (f)(2), which allows a party to move for summary
judgment on the same issues that were previously denied if the
party can establish a change in law or facts to support the
reasserted issues.
6
DISCUSSION
Torres raises two contentions on appeal. First, the trial
court abused its discretion when it granted Design’s second
motion for reconsideration of its order denying summary
judgment because Design’s motion was based on facts known to
Design before the summary judgment hearing. Second, there
remained triable issues of material fact on whether Design was
liable under the retained-control exception to the Privette
doctrine. Both contentions are meritless.4
I. The trial court did not abuse its discretion when it granted
Design’s motion for reconsideration.
Section 1008 allows a party to move the trial court to
reconsider a prior order based upon new or different facts. The
moving party must provide a “ ‘satisfactory explanation for the
failure to produce [the] evidence at an earlier time.’ ” (Garcia v.
Hejmadi (1997) 58 Cal.App.4th 674, 689; § 1008.) We review the
trial court’s ruling on a motion for reconsideration for abuse of
discretion. (New York Times Co. v. Superior Court (2005)
135 Cal.App.4th 206, 212.)
When Design moved for reconsideration, it explained to the
trial court that it was unable to produce the evidence at an
earlier time because the depositions were taken after it filed its
4 On May 24, 2021, Design requested judicial notice of the
reporter’s transcript from the hearing on Design’s first motion for
reconsideration. Torres did not oppose the request. Design’s
request for judicial notice is granted. (Evid. Code, § 452,
subd. (d).)
7
motion for summary judgment.5 Further, Design had agreed to
two prior continuances of the summary judgment hearing to
permit Torres to complete additional discovery. The trial court
granted the motion, finding Design’s explanation satisfactory
while acknowledging that there may have been other means to
present the new evidence before the summary judgment hearing.
However, Torres provided no authority that would require Design
to do so.
Torres contends this was an abuse of discretion, arguing
that Design should have put these new facts in its reply to
Torres’s opposition, filed a supplemental brief, or requested a
continuance of the summary judgment hearing to permit Design
to amend its separate statement. This contention misses the
mark. Torres cannot show that the trial court abused its
discretion by offering alternative means for Design to present the
new evidence before the summary judgment hearing. “ ‘The
appropriate test for abuse of discretion is whether the trial court
exceeded the bounds of reason. When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court.’ ”
(Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) Thus, the
fact that Design had other potentially appropriate options is
insufficient to show error. Nor has Torres cited to any authority
that would require Design to present the new evidence in the
manner Torres suggests here. Design chose to move for
reconsideration under section 1008, subdivision (b). This is an
5 Design also notes for the first time on appeal that it was
unable to provide the testimony earlier because the subject
witnesses were outside of its control.
8
appropriate means to request reconsideration of a prior ruling on
summary judgment based on new facts so long as the moving
party is not allowed to bypass the procedural safeguards under
section 437c that protect the party opposing summary judgment.
(Torres v. Design Facility Solutions, Inc., supra, 45 Cal.App.5th
239, 243.) Moreover, unlike Torres’s first appeal, where Design’s
initial motion for reconsideration was a regular noticed motion
and did not include a separate statement, we are satisfied that
Design complied with the 75-day notice and separate statement
requirements of section 437c, giving Torres an adequate
opportunity to respond.
Accordingly, we find no abuse of discretion.
II. The trial court properly granted summary judgment in
favor of Design
A. Standard of review
Summary judgment is proper when there are no triable
issues of material fact and the moving party is entitled to
judgment as a matter of law. (§ 437c, subd. (c).) “The purpose of
the law of summary judgment is to provide courts with a
mechanism to cut through the parties’ pleadings in order to
determine whether, despite their allegations, trial is in fact
necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 843.)
“A defendant who moves for summary judgment bears the
initial burden to show the action has no merit—that is, ‘one or
more elements of the cause of action, even if not separately
pleaded, cannot be established, or that there is a complete
defense to [that] cause of action.’ [Citation.] Once the defendant
meets this initial burden of production, the burden shifts to the
9
plaintiff to demonstrate the existence of a triable issue of
material fact. [Citation.] ‘From commencement to conclusion,
the moving party defendant bears the burden of persuasion that
there is no triable issue of material fact and that the defendant is
entitled to judgment as a matter of law.’ [Citation.] We review
the trial court’s ruling on a summary judgment motion de novo,
liberally construing the evidence in favor of the party opposing
the motion and resolving all doubts about the evidence in favor of
the opponent. [Citation.] We consider all of the evidence the
parties offered in connection with the motion, except that which
the court properly excluded.” (Grotheer v. Escape Adventures,
Inc. (2017) 14 Cal.App.5th 1283, 1292–1293.)
B. The Privette doctrine
Subject to certain exceptions, the Privette doctrine bars
employees of independent contractors from recovering damages
from the hirer of the contractor for workplace injuries.
(SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590,
594.) The reasoning is that, because workers’ compensation
generally provides the exclusive remedy for employees who are
injured on the job, allowing the employee to recover from the
contractor’s hirer, who did not cause the injury, would unfairly
subject the hirer to greater liability than that faced by the
contractor who was negligent. (Hooker v. Department of
Transportation (2002) 27 Cal.4th 198, 204 (Hooker).) Further,
“[b]y 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 the specific
workplace that is the subject of the contract.” (SeaBright Ins.
Co., at p. 594, italics omitted.) This delegation includes any “duty
10
the hirer owes to the contractor’s employees to comply with
applicable statutory or regulatory safety requirements.” (Ibid.)
The parties do not dispute that Design was the general
contractor on the project, and that Design subcontracted with
C&L, who in turn sub-subcontracted with Torres’s employer,
Vast. The agreement between Design and C&L required C&L to
comply with all occupational health and safety regulations and to
comply with Design’s safety plan. C&L also agreed to provide a
safe place to work for its employees and for the employees of its
subcontractors. Vast also admitted that it came up with its own
safety practices for its employees who would be working on the
roof. Thus, Design has met its initial burden to show that the
Privette doctrine bars Torres’s claims. The burden then shifts to
Torres to create a triable issue of material fact showing that an
exception to Privette applies. (Alvarez v. Seaside Transportation
Services LLC (2017) 13 Cal.App.5th 635, 644.)
C. Retained-control exception
Torres seeks to recover under the retained-control
exception to Privette. This exception subjects the hirer to liability
“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.” (SeaBright Ins. Co. v. US
Airways, Inc., supra, 52 Cal.5th at p. 595.) For the exception to
apply, Torres must show: (1) Design retained control over any
part of the work; (2) Design negligently exercised that control;
and (3) did so in a manner that affirmatively contributed to his
injuries. (Khosh v. Staples Construction Co., Inc. (2016)
4 Cal.App.5th 712, 717.) Torres has failed to present evidence
that would create a triable issue of fact with respect to whether
11
Design retained control over his work or that Design
affirmatively contributed to his injuries.
To establish that Design retained control over Torres’s
work, he relies on Design’s agreement with SMS that Design
would be responsible for safety conditions on the jobsite and
Studley’s testimony that he would check to ensure there were
delineators on the roof that were connected with tape or rope to
mark the pathway. However, this evidence is insufficient to
create an inference that Design retained control either generally
or over the area where Torres fell on the eastern section of the
roof. Design delegated responsibility for enacting the site safety
plan to C&L. Vast operated according to C&L’s safety plan, but
decided it was safer to work outside the area marked by C&L.
Design did not instruct Vast to work in the specific area where
Torres fell at the time of the injury, nor is there evidence it
retained control over the path near where the injury occurred.
Moreover, there is no evidence that Vast requested specific safety
measures from Design.
Design’s general supervisory role at the jobsite does not
create an inference that it retained control over Torres’s work
when those responsibilities were delegated to C&L. “The Privette
line of decisions . . . establishes that an independent contractor’s
hirer presumptively delegates to that contractor its tort law duty
to provide a safe workplace for the contractor’s employees.”
(SeaBright Ins. Co. v. US Airways, Inc., supra, 52 Cal.4th at
p. 600.) “[A] hirer is not liable to a contractor or a contractor’s
employee merely because it retains control over safety
conditions.” (Tverberg v. Fillner Construction, Inc. (2012) 202
Cal.App.4th 1439, 1446.) Torres must show that Design actively
directed Torres about the manner of performance of the
12
contracted work, required the work be done by a particular
means, or otherwise interfered with the means of accomplishing
the work. (Ibid.) He has not done so.
Torres also argues that Studley’s use of the word “we” when
discussing the safety plan with C&L creates a triable issue of
material fact as to whether Design retained control over rooftop
safety. However, Torres has taken this statement out of context.
Our review of Studley’s testimony in its entirety and his
communications with C&L show that C&L was responsible for
creating the safety plan to address the skylight hazard. While
Design identified the skylights as a hazard, C&L established the
marked pathway to address them. As such, the evidence
submitted by Torres does not create a triable issue of material
fact that Design retained control over his work.
Nevertheless, even assuming that Design’s general
supervisory role over the jobsite and its discussions with C&L
regarding the skylight hazard was sufficient to create a triable
issue of fact on whether Design retained control over Torres’s
work, he has not presented evidence that shows Design
contributed to his injuries.
The facts here are analogous to those in Hooker, supra,
27 Cal.4th 198. “Hooker was a crane operator. He was employed
by a general contractor hired by the California Department of
Transportation (Caltrans) to construct an overpass. The overpass
was 25 feet wide, and the crane with the outriggers extended was
18 feet wide, so Hooker would retract the outriggers to allow
other construction vehicles or Caltrans vehicles to pass. Shortly
before the fatal accident, Hooker retracted the outriggers and left
the crane. When Hooker returned, he attempted, without first
reextending the outriggers, to swing the boom. Because the
13
outriggers were retracted, the weight of the boom caused the
crane to tip over. Hooker was thrown to the pavement and
killed.” (Id. at p. 202.)
Regarding the question of whether Caltrans had
negligently exercised the control it had retained over safety at
the jobsite, Hooker relied on Caltrans’s construction manual and
the testimony of Caltrans officials responsible for supervising the
jobsite. (Hooker, supra, 27 Cal.4th at p. 202.) The Caltrans
construction manual provided that: “ ‘[C]altrans is responsible
for obtaining the Contractor’s compliance with all safety laws and
regulations. . . . [¶] The construction safety coordinator must be
familiar with highway construction procedures and equipment,
construction zone traffic management and be able to recognize
and anticipate unsafe conditions created by a Contractor’s
operation. . . . [¶] The Construction Safety Coordinator shall
visit contracts [sic] periodically to observe the Contractor’s
operation and traffic conditions affected by the construction.’ ”
(Ibid., italics omitted.) The manual also “gave the Caltrans
resident engineer authority to set compliance schedules for the
correction of dangerous conditions and to shut down affected
operations until the dangerous conditions were corrected.” (Ibid.)
“The senior Caltrans representative on the jobsite, whose
responsibilities included safety, had previously observed the
crane operators on this project retract their outriggers to let other
vehicles pass; he knew they did so ‘from time to time[ ] or
frequently’; and he realized that a crane would be unstable if its
boom were extended over its side when its outriggers were
retracted. The resident Caltrans engineer on the project had the
power to shut the project down because of safety conditions and
to remove employees of the contractor for failing to comply with
14
safety regulations. He answered ‘probably’ to the following two
questions: (1) ‘Do you agree that if [the crane operator] had been
given priority in the area he was working in and the [overpass]
was flagged off, that he wouldn’t have had to retract his
outriggers to permit vehicles to pass?’ and (2) ‘And if he hadn’t
retracted his outriggers, the crane wouldn’t have become
unstable and tipped over, correct?’ A Caltrans transportation
engineer on the project, whose responsibilities included bringing
unsafe conditions to the attention of the resident engineer or the
general contractor, conceded that if he had seen a crane operator
retract the outriggers to permit vehicles to pass, he would have
felt ‘odd’ because the more the outriggers are extended, ‘the
better the stability. That’s simple physics.’ ” (Hooker, supra,27 Cal.4th at pp. 202–203.)
The California Supreme Court affirmed the trial court’s
grant of summary judgment in favor of Caltrans, determining
that Hooker raised triable issues of material fact as to whether
Caltrans retained control over safety conditions at the jobsite, but
failed to raise a triable issue as to whether Caltrans exercised the
retained control so as to affirmatively contribute to Hooker’s
death. (Hooker, supra, 27 Cal.4th at p. 202.)
Similarly, here, in its agreement with SMS, Design
assumed sole responsibility for safety on the jobsite, including
ensuring all work was done according to any applicable laws and
regulations. Design could inspect the subcontractors’ work and
had the right to shut down work if it was done in an unsafe
manner. Studley, who was responsible for jobsite safety, testified
that he would check to make sure the delineators designating the
roof pathway were linked, and had he known of Vast’s plan to
work on the eastern section of the roof, he would have required a
15
walkway route and protective barriers. Design was well aware
that the skylights were a hazard and discussed this with C&L.
But, just as in Hooker, none of these facts show anything
more than Design’s responsibility to provide general supervision
over jobsite safety, which is not enough to create a triable issue
on whether Design affirmatively contributed to Torres’s injury.
Design is not liable to Torres merely because it retained some
control over safety conditions. (Tverberg v. Fillner Construction,
Inc., supra, 202 Cal.App.4th at p. 1446.) Rather, Torres must
show that Design actively directed Torres about the manner of
performance of the contracted work, required the work be done by
a particular means, or otherwise interfered with the means of the
accomplishing the work. (Ibid.) The record supports the
conclusion that Design did not otherwise control or interfere with
Torres’s work.
Moreover, while this appeal was pending, our Supreme
Court decided Sandoval v. Qualcomm Inc. (Sept. 9, 2021,
S252796) ___ Cal.5th ___ [2021 Cal.Lexis 6327] and reaffirmed
the principle that for the retained control exception to Privette to
apply, the plaintiff “must establish not only that the hirer
retained control over the contracted work, but also that the hirer
actually exercised that retained control in a manner that
affirmatively contributed to the contract worker's injury.”6
(Sandoval, at p. *22, citing Hooker, supra, at p. 202.) Sandoval
clarified that “a hirer’s authority over the contracted work
amounts to retained control only if the hirer’s exercise of that
6 After oral argument, the parties submitted letter briefs
discussing the impact of Sandoval v. Qualcomm Inc. on the issues
raised in this appeal.
16
authority would sufficiently limit the contractor’s freedom to
perform the contracted work in the contractor's own manner.”
(Sandoval, at p. *23.) As stated above, there is no evidence that
Design limited Vast’s freedom to conduct the contracted work in
its own manner. While Design retained general supervisory
control over the worksite, Vast was free to create its own safety
plan and did so by instructing Torres to work on the eastern
section of the roof where the skylights were further apart.
Torres makes several additional arguments to show Design
affirmatively contributed to his injuries. We will address each
point in turn. First, Torres argues that Design understaffed the
SMS project which compromised safety. This is just another
iteration of Torres’s argument that Design breached its duty to
generally supervise safety on the jobsite, thus affirmatively
contributing to the accident. Again, “mere retention of the ability
to control safety conditions is not enough. ‘[A] general contractor
owes no duty of care to an employee of a subcontractor to prevent
or correct unsafe procedures or practices to which the contractor
did not contribute by direction, induced reliance, or other
affirmative conduct. 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.’ ” (Hooker,
supra, 27 Cal.4th at p. 209.) To the extent Torres argues that
Design made a specific promise to supervise him or Vast’s
employees, he has not submitted evidence to support such an
inference. Absent a specific promise to undertake a particular
safety measure, a hirer’s failure to institute safety measures is
not actionable. (Ruiz v. Herman Weissker, Inc. (2005) 130
Cal.App.4th 52, 66.)
17
Second, Torres contends that Design’s failure to comply
with the regulations set by the Division of Occupational Safety
and Health (Cal/OSHA) affirmatively contributed to his injury.
However, our Supreme Court rejected a similar argument in
SeaBright Ins. Co. v. US Airways, Inc., supra, 52 Cal.4th at
pages 603 and 604, finding no reason to limit Privette because the
tort law duty, if any, that the hirer owes happened to be one
based on a statute or regulation, including Cal/OSHA.
Third, Torres asserts that Design affirmatively contributed
to his injuries by establishing a pathway on the roof and
periodically checking to make sure the delineators along the
pathway were linked. However, Torres has not presented any
evidence that Design established the pathway or restricted
Torres or any other Vast employees’ movement while they were
working. Hernandez testified that he, not Design, determined
the safest pathway on the roof for Vast employees. To the extent
the roof was marked, C&L, not Design, stated it would mark a
pathway on the roof with delineators and caution tape. Further,
nothing in the relevant agreements or safety plans says that
Design would establish a path for workers on the roof. Torres
relies on the agreement between SMS and Design which made
Design solely responsible for jobsite safety. However, as
discussed above, retained control over the general safety of a
jobsite does not constitute the necessary affirmative contribution
to establish the retained-control exception to Privette. (Hooker,
supra, 27 Cal.4th at p. 202.)
Fourth, Torres contends Design should have provided a
horizontal lifeline, anchor points, or other means of fall protection
to prevent Torres and other workers from falling through a
skylight. But there is no evidence that Design agreed to provide
18
Torres with adequate anchor points or any other safety
equipment. The failure to implement specific safety measures is
not actionable unless there is some evidence that the hirer agreed
to implement them. (Tverberg v. Fillner Construction, Inc.,
supra, 202 Cal.App.4th at p. 1446.) To the extent Torres argues
that Design’s installation of anchor points for its own employees
created a duty to make anchor points available to Torres, this is
not the law. “The Privette line of decisions . . . establishes that an
independent contractor’s hirer presumptively delegates to that
contractor its tort law duty to provide a safe workplace for the
contractor’s employees.” (SeaBright Ins. Co. v. US Airways, Inc.,
supra, 52 Cal.4th at p. 600.)
Fifth, Torres argues that Design affirmatively contributed
to Torres’s injuries by cutting holes in the roof and installing
anchor points for its workers, but not Torres. This contention
fails for a number of reasons. As stated above, Torres has not
produced any evidence that shows that Design promised to
provide him with anchor points or other safety equipment.
Indeed, in its agreement with C&L, Design required
subcontractors to supply their own safety equipment. There is
also no evidence to connect the holes on the roof to Torres’s fall.
The holes that Design cut into the roof were on the western
section of the roof and there is no evidence that Torres tripped on
anything but the skylight while walking on the eastern section.
Lastly, Torres asserts that Design pressured him to work
hurriedly and that Studley told him to “[g]et it done.” But a
general contractor’s control over a project’s schedule, without
more, is not an affirmative contribution. (Brannan v. Lathrop
Construction Associates, Inc. (2012) 206 Cal.App.4th 1170, 1178.)
Further, beyond Studley’s statement to Torres and the conclusory
19
assertion by Torres’s expert that the rushed schedule
compromised safety, there is no evidence that Design controlled
the pace of Torres’s work or that the schedule contributed to the
accident.
Accordingly, Torres failed to meet his burden to show a
triable issue of fact on whether Design retained control over his
work or that it affirmatively contributed to his injuries.
DISPOSITION
The judgment is affirmed. Design Group Facility Solutions,
Inc. is awarded its costs on appeal.
NOT TO BE PUBLISHED.
HILL, J.*
We concur:
EDMON, P. J.
LAVIN, J.
* Judge of the Superior Court of Santa Barbara County,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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