Ayala v. Tyler Development CA2/2 ( 2022 )

Filed 8/16/22 Ayala v. Tyler Development CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ALBERTO AYALA et al., B310262
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC697015)
v.
TYLER DEVELOPMENT
COMPANY, INC. et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Craig D. Karlan, Judge. Affirmed.
Banafsheh, Danesh & Javid, Olivier A. Taillieu, Jennifer R.
Bagosy and Gilda Gazor, for Plaintiffs and Appellants.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Ernest
Slome, Philip N. Blanco and Tracy D. Forbath, for Defendants
and Respondents.
_________________________
Luis Ayala tragically died while working on a sump pump
at a construction site. His parents, Alberto Ayala and Laura
Dominga Roque de Ayala (collectively the Ayalas), filed a
wrongful death suit against, among others, general contractor
Tyler Development Company, Inc. (Tyler). The trial court
granted Tyler summary judgment based on the Privette doctrine
(Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette)), which
holds that a hirer of an independent contractor is typically not
liable for the contractor’s negligence. (Id. at pp. 691–692.)
Plaintiffs timely appealed. For the reasons below, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. The Underlying Construction Project
Tyler is a general contractor working in the home
construction industry. In 2014 and 2015 Tyler contracted with
D&D Construction Specialties, Inc. (D&D), an excavation
company, to perform various remediation tasks on a residential
construction site in Bel-Air, such as clearing, grading, and
shoring the land. D&D employed Luis as a construction worker.1
The 2014 and 2015 agreements each contained an identical
set of rules related to worksite safety. These rules required D&D
to comply with all applicable safety regulations in conducting its
work, and to keep the worksite “clean and free of trash, debris, or
material waste caused by its employees or its work.”
On May 1, 2015, Tyler expanded the scope of D&D’s
original responsibilities to include building a large hole to collect
water runoff and pump it offsite (sump pump). This entailed
digging a shaft approximately 50 feet deep and installing a series
of prefabricated concrete liners to secure the sump pump’s walls.
1 Because some of the parties share surnames, we refer to
Luis by his first name. No disrespect is intended.
2
Once D&D completed its assigned work, Tyler installed a
bolt-fastened lid over the opening of the sump pump to prevent it
from becoming “an open fall hazard.”
On or before October 18, 2016, Jeffrey Tapper, a project
superintendent at Tyler, opened the lid of the sump pump to
begin the next phase of construction. Upon noticing an
accumulation of mud and water at the bottom of the pit, Tapper
sent an e-mail to D&D’s president, Dan Moore, asking him to
have his workers clean out the sump pump. Tapper opined that
the cleaning job was D&D’s responsibility, as “they built this pit
and covered it until we uncovered it to find it was full of mud and
water.”
After briefly disputing which company was responsible for
the cleanup, Moore agreed that D&D would handle it. Tapper
later testified that he did not expect D&D to “lower a person
down into the sump pit,” instead anticipating that they would use
“a suction hose” or “lower a bucket” to “scoop [the mud and water
out].”
II. The Accident
On October 21, 2016, D&D employees received a work order
instructing them to use a crane-mounted basket to lower an
employee into the sump pump to clean it. One employee, Carlos
Casteneda, responded by gathering an electric pump, a hose, and
shovels to be used in the cleanup.
As Tapper walked through the worksite, he asked another
D&D employee, Jason Carr, if D&D would be able to clean the
sump pump that day. Carr confirmed that the D&D crew “was
working on it.” Tapper advised Carr that any employee working
around the sump pump should wear a safety harness connected
to a rope to prevent accidental falls.
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Mechanical issues with the crane delayed the job. Carr told
Casteneda that Moore had called the worksite “very angry about
the situation,” and had instructed Luis, Carr, and Casteneda to
get the crane working.
Once they got the crane started, Luis put on a safety
harness. At the last minute, he decided not to attach the harness
to a retractable rope. Luis mounted the basket, and Carr used
the crane to lower him into the sump pump. Casteneda watched
Luis’s descent from the opening of the pump.
As Luis descended, Casteneda could see him begin to
exhibit signs of dizziness. Casteneda shouted for Carr to stop the
crane, but it was too late. Luis lost consciousness, pitched
forward, and fell out of the basket to the bottom of the shaft. He
died before rescuers arrived.
III. The Lawsuit
On March 5, 2018, the Ayalas initiated a lawsuit against
Tyler and several other parties associated with the construction
project. Their complaint asserted two causes of action against
Tyler, namely, wrongful death and survival damages. They
alleged that Tyler directed Luis to “place himself into a basket to
be lowered into the sump well,” and claimed that Tyler failed to
properly train Luis or advise him of the dangers associated with
entering the sump pump.
On July 31, 2019, Tyler moved for summary judgment. It
argued that the Privette doctrine relieved Tyler, a general
contractor, of any liability for injuries sustained by its
independent subcontractor’s employees, including Luis. The
Ayalas opposed Tyler’s motion, arguing that the Privette doctrine
did not apply because Tyler retained control over the worksite
and engaged in negligent conduct that directly caused Luis’s
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death. They also argued that the nondelegable duty doctrine
imposed a duty on Tyler to ensure compliance with state safety
regulations, including regulations about workers entering
confined spaces like the sump pump.
The matter proceeded to a hearing on October 22, 2020. On
November 30, 2020, the trial court granted summary judgment in
Tyler’s favor. In a lengthy ruling, the court agreed with Tyler’s
assertion that the Privette doctrine barred liability, and rejected
the Ayalas’ arguments to the contrary.
The Ayalas timely appealed.
DISCUSSION
I. Applicable Law and Standard of Review
A. The Privette Doctrine
“[W]orkers’ compensation scheme ‘is the exclusive remedy
against an employer for injury or death of an employee.’
[Citations.]” (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.]’” (Alvarez v.
Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635,
640 (Alvarez).) Thus, the Privette doctrine bars an employee of an
independent contractor from recovering damages from the hirer
of the contractor for a worksite injury. (SeaBright Ins. Co. v. US
Airways, Inc. (2011) 52 Cal.4th 590, 594 (SeaBright).)
In addition to the workers’ compensation rationale, the
Supreme Court has recently placed greater emphasis on the
reason that a “presumptive delegation of tort duties occurs when
the hirer turns over control of the worksite to the contractor so
5
that the contractor can perform the contracted work.” (Sandoval
v. Qualcomm Incorporated (2021) 12 Cal.5th 256,
271 (Sandoval).) “Over time, we’ve recast our primary rationale
for the Privette doctrine in terms of delegation rather than
workers’ compensation.” (Sandoval, supra, at p. 270; Gonzalez v.
Mathis (2021) 12 Cal.5th 29, 41 (Gonzalez) [“Our more recent
cases emphasize delegation as the key principle underlying this
rule”].) As a result, “[t]here is a strong presumption under
California law that a hirer of an independent contractor delegates
to the contractor all responsibility for workplace safety.”
(Gonzalez, supra, at p. 37.)
However, the Privette doctrine has exceptions. As relevant
here, the nondelegable duty doctrine provides that an employee
of an independent contractor “‘may sue the general contractor for
[violations of] specific, nondelegable duties in certain cases.’”
(Evard v. Southern California Edison (2007) 153 Cal.App.4th
137, 147 (Evard).) Additionally, the “retained control” exception
provides that “a hirer owes a duty to a contract worker if the
hirer retains control over any part of the work and actually
exercises that control so as to affirmatively contribute to the
worker’s injury.” (Sandoval, supra, 12 Cal.5th at p. 271, citing,
Hooker v. Department of Transportation (2002) 27 Cal.4th 198,
202 (Hooker).)
B. Summary Judgment in Privette Doctrine Cases
A “motion for summary judgment shall be granted 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).) A triable
issue of fact exists only if a trier of fact could reasonably conclude
under the applicable standard of proof that a contested fact in
6
favor of the opposing party is established. (Alexander v.
Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139.)
If a defendant hirer invoking the Privette doctrine moves
for summary judgment, it must present a valid factual basis for
applying the doctrine. In cases involving a workplace injury, this
is typically satisfied by showing that (1) the hirer employed the
independent contractor to work at the jobsite and (2) the
employee was injured while working at the site. (Alvarez, supra,
13 Cal.App.5th at p. 644.)
If the hirer meets this burden, the presumption of
delegation is triggered and the burden shifts to the plaintiff. The
plaintiff can rebut the presumption of delegation by presenting
evidence making a prima facie showing of a triable issue of fact in
support of one or more exceptions to the Privette doctrine.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850–851.)
If the plaintiff fails to raise a triable issue of fact, the hirer is
entitled to summary judgment. (Alvarez, supra, 13 Cal.App.5th
at p. 646.)
C. Standard of Review
Summary judgment is subject to de novo review.
(Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967,
975.) In “reviewing the trial court’s decision to grant summary
judgment, we liberally construe the evidence in support of the
party opposing summary judgment and resolve all doubts about
the evidence in that party’s favor. [Citation.]” (Caliber Paving
Co., Inc. v. Rexford Industrial Realty & Management, Inc. (2020)
54 Cal.App.5th 175, 190.)
II. Analysis
Tyler established that it is entitled to the presumption of
delegation under the Privette doctrine. It presented evidence that
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it hired Luis’s employer, D&D, to work on the construction
project, and that Luis died while working on the project. This
evidence “sufficient[ly] . . . establish[ed] that the Privette
presumption applied and, therefore, shifted the burden to
plaintiff to raise a triable issue of fact.” (Alvarez, supra, 13
Cal.App.5th at p. 644.)
The Ayalas assert that two exceptions to the Privette
doctrine apply to this case. First, they argue that the
nondelegable duty doctrine prohibits Tyler from delegating its
duties to comply with workplace safety regulations to D&D.
Alternately, they argue that the retained control exception
applies. We address each of these exceptions in turn.
A. Nondelegable Duty Doctrine
As we outlined above, “[w]hen a hirer delegates contracted
work to an independent contractor, it also impliedly delegates its
duty to provide a safe workplace to that contractor.” (Tverberg v.
Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439, 1445.)
These delegable duties include the duty to comply with
most safety regulations promulgated under the California
Occupational Safety and Health Act of 1973 (Cal-OSHA; see Lab.
Code, § 6300 et seq). (See, e.g., SeaBright, supra, 52 Cal.4th at
p. 602; Padilla v. Pomona College (2008) 166 Cal.App.4th 661,
673.) However, Cal-OSHA regulations that expressly require a
general contractor to ensure the safety of independent
subcontractors are not delegable. (Khosh v. Stables Construction
Co., Inc. (2016) 4 Cal.App.5th 712, 720 [regulations imposing
permanent obligations on specific parties are nondelegable]; see,
e.g., Evard, supra, 153 Cal.App.4th at p. 148 [regulation
requiring the owner of a billboard to maintain horizontal safety
lines on the billboard imposed an ongoing, nondelegable duty].)
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The Ayalas argue that California Code of Regulations,
title 8, section 5157, subdivision (c)(8) imposes specific, ongoing,
nondelegable duties on a “host employer” to ensure the safety of a
contractor’s employees tasked with entering confined spaces,
such as the sump pump.2 However, assuming arguendo that this
regulation imposes a nondelegable duty on general contractors, it
does not apply to D&D’s work cleaning the sump pump.
California Code of Regulations, title 8, section 5157,
subdivision (c)(8) only applies when a host employer “arranges to
have [a contractor’s] employees . . . perform work that involves
. . . confined space entries.” Here, the record shows that Tyler did
not arrange to have D&D employees perform work involving
entering the confined space of the sump pump. It merely
arranged to have D&D clean the water and mud at the bottom of
the sump pump. Tyler did not specify any particular method for
cleaning the sump pump, and its project superintendent testified
that he expected D&D to use “a suction hose or a bucket.” The
fact that Tyler did not obtain a confined entry space permit for
anyone on the site, including its own employees, further
demonstrates that Tyler did not anticipate that D&D would lower
an employee to the bottom of the sump pump to accomplish the
cleanup.
Accordingly, we conclude that the nondelegable duty
doctrine does not bar the Privette doctrine from relieving Tyler of
liability for Luis’s death.
2 The regulation defines “host employer” as an employer who
hires work out to a contractor. (Cal. Code Regs., tit. 8, § 5157,
subd. (c)(8).) As an employer who hired D&D to handle
construction of the sump pump, Tyler arguably qualifies as a host
employer subject to this regulation.
9
On appeal, the Ayalas alternately argue that any otherwise
delegable duties to maintain safety during the sump pump
cleanup cannot be delegated under the Privette doctrine, because
the cleanup was outside the scope of the work D&D was
contracted to perform. They contend that Privette limits
delegable duties to “safety requirement[s] . . . connected to the
precise subject matter of the agreement between the hirer and
contractor.”
We need not delineate the precise boundaries of the Privette
doctrine here, because the record in this case demonstrates that
Tyler and D&D agreed that cleaning the mud and water from the
bottom of the sump pump was a part of D&D’s contractual
obligations. Under the terms of the contract, D&D agreed to keep
the worksite clean, including by cleaning “debris or material
waste caused by its employees or its [w]ork.”
Although it is unclear whether the water and mud at the
bottom of the sump pump constitute “debris or material waste
caused by” D&D, Tapper opined in writing that the mud and
water was left over from D&D’s construction work. D&D
eventually agreed to undertake the cleanup, apparently agreeing
with Tapper’s interpretation. And ultimately, it was D&D, not
Tyler, that ordered its employees to clean out the sump pump. If
the cleanup job was completely outside the scope of D&D, it
should not have acceded to Tyler’s request to undertake it.
B. Retained Control Exception
The presumption of delegation under Privette is partially
grounded in the principle that “independent contractors by
definition ordinarily control the manner of their own work.”
(Sandoval, supra, 12 Cal.5th at p. 269.) If a hirer entrusts work
to an independent contractor, but retains control over safety
10
conditions at a jobsite and then negligently exercises that control
in a manner that affirmatively contributes to an employee’s
injuries, it undermines this principle. Accordingly, the hirer
becomes liable for the employee’s injuries based on its own
negligent exercise of retained control. (Kinsman v. Unocal Corp.
(2005) 37 Cal.4th 659, 670; Hooker, supra, 27 Cal.4th at p. 213.)
Here, D&D exercised sole control over the manner in which
it cleaned the sump pump. It was responsible for determining
the general method and specific techniques it would employ
during the cleanup, and, as the party who built the sump pump,
had knowledge of the dangers inherent in working on or in a
space of that depth.
Conversely, Tyler’s involvement in the task was limited to
asking D&D to clean the sump pump and unbolting the lid to
allow D&D’s employees access to the sump pump’s opening.
Tyler did not dictate how the sump pump should be cleaned, and
it did not direct any D&D employee to enter it. To the contrary, a
Tyler representative recommended that all D&D employees
working in the area around the sump pump be connected to a
safety harness after the lid was opened, so that employees would
not accidentally fall into the sump pump.
The Ayalas put forth several factors purporting to
demonstrate Tyler’s retained control over all work performed on
the sump pump after its construction. They point out that Tyler
controlled access to the sump pump by retaining the sole means
of unlocking its lid, and that D&D was not contractually
obligated to ensure that the sump pump was in good order for the
duration of the construction project. These factors are not
sufficient to establish a triable issue of material fact as to
11
whether Tyler retained control over D&D’s execution of the sump
pump cleanup.
Lastly, the Ayalas argue that there is a triable issue of
material fact over whether Tyler’s conduct in providing
inadequate safety warnings or failing to issue a directive
prohibiting D&D employees from entering the sump pump
constituted an affirmative act of negligence, amounting to a
negligent exercise of retained control. However, in the words of
our Supreme Court, “‘[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 [subcontractor’s employee].’” (Hooker, supra, 27
Cal.4th at p. 209.)
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III. Conclusion
The Ayalas did not meet their burden to demonstrate that
either the nondelegable duty doctrine or the retained control
exception precluded application of the Privette doctrine.
Accordingly, we conclude that the trial court properly granted
summary judgment to its causes of action against Tyler.
DISPOSITION
The judgment is affirmed. Tyler is awarded costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, Acting P. J.
ASHMANN-GERST
We concur:
________________________, J.
CHAVEZ
_______________________, J.
HOFFSTADT
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