Piontkowski v. Fluor Enterprises CA2/3 ( 2023 )

Filed 6/27/23 Piontkowski v. Fluor Enterprises CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ROBERT PIONTKOWSKI, B311457
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC636816
v.
FLUOR ENTERPRISES, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Deirdre Hill, Judge. Affirmed.
Arnold & Itkin, Andrew R. Gould, Brian M. Christensen;
Niddrie Addams Fuller Singh and Rupa G. Singh for Plaintiff
and Appellant.
Berkes Crane Santana & Spangler, Carmen Santana,
Robert H. Berkes, Steven M. Crane, and Barbara S. Hodus for
Defendant and Respondent.
_______________________________________
INTRODUCTION
Plaintiff and appellant Robert Piontkowski (plaintiff), an
employee of Chevron, was seriously injured on the job at the
company’s El Segundo refinery when he was splashed with super-
heated materials generated during the coking process.1 Plaintiff
alleges he was injured because a pipe that would normally have
funneled coke and other materials from the coke drum to the coke
pit was plugged. As a result, the super-heated materials did not
properly flow from the drum through a valve and chute in the
area where plaintiff was working. Instead, the materials backed
up and were violently released through a gap between the
concrete deck and the valve and chute. Plaintiff was hit and
suffered severe burns and other injuries.
Plaintiff sued a number of defendants, including defendant
and respondent Fluor Enterprises, Inc. (Fluor), asserting claims
including negligence. Several years before the accident, Chevron
had hired Fluor to design, engineer, and oversee a large
construction project that included the installation of new coke
drums at the refinery. Plaintiff alleges that based upon the
contract between Chevron and Fluor, Fluor owed him a duty to
redesign the equipment used in the coke draining process and its
configuration in relation to the concrete deck in a manner that
1 Coking is a refinery process that takes place at above atmospheric
pressure and at approximately 900 degrees Fahrenheit. Coke, a coal-
like substance, builds up in a large drum and water is used to
hydraulically cut the coke, enabling its removal from the drum. (Today
in Energy - U.S. Energy Information Administration (EIA): Coking is a
refinery process that produces 19% of finished petroleum product
exports [as of
June 23, 2023], archived at < https://perma.cc/89BD-97VW>.)
2
would have eliminated the risk that super-heated materials could
be discharged onto the deck where he was injured. According to
plaintiff, Fluor’s failure to undertake that work resulted in the
condition that led to his injury.
The trial court granted Fluor’s motion for summary
judgment and plaintiff appeals from the subsequently entered
judgment. He asserts the court erred in finding that Fluor did not
owe him a legal duty of care because his injury was foreseeable
and a close connection exists between his injury and Fluor’s
conduct. The court’s conclusion is correct. Plaintiff also asserts,
for the first time on appeal, that Fluor could be liable on a
negligent undertaking theory. Plaintiff forfeited this issue by
failing to raise it in opposition to the motion for summary
judgment. We also reject plaintiff’s contention that the court
improperly excluded his expert’s declaration. Accordingly, we
affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The Operative Complaint
Plaintiff, a Chevron employee, was seriously injured at the
company’s oil refinery in El Segundo on June 1, 2016. Plaintiff
subsequently received workers’ compensation benefits for the
injuries he sustained. Those benefits notwithstanding, plaintiff
filed the current action against multiple defendants on
October 11, 2016. In the operative first amended complaint,
plaintiff asserts causes of action for negligence, gross negligence,
design defect, manufacturing defect, marketing defect, and
breach of implied warranty.2 Plaintiff subsequently filed a Doe
2 Only the cause of action for negligence is at issue in this appeal.
3
amendment naming Fluor as a defendant. Chevron retained
Fluor in 2011 to provide engineering, procurement, contracting,
and project management support for the removal and
replacement of the cutting deck and derrick structure in one lift,
the replacement of all six coke drums through the top of the
existing coke drum structure, reinforcement of coke chutes, and
installation of a new driller’s shelter. Fluor provided construction
management support during the construction phase. The project
was completed in 2014.
According to the operative complaint, plaintiff was
performing his assigned job task and was required to drain a line
on a coker unit at the worksite. The line was plugged, however,
and would not properly drain. In the process of performing his
assigned task, plaintiff “ ‘sustained serious burns and other
injuries’ ” after “ ‘scalding coke and other materials were violently
released from the plugged line.’ ” Plaintiff also generally alleged
that the coker unit was defective and that the defendants
designed, manufactured, constructed, and/or marketed the
defective coker unit. With respect to the negligence claim, and as
pertinent here, plaintiff alleged that the defendants failed to
“properly and safely perform duties which Defendants agreed to
undertake or perform” and failed “to identify and remedy a
dangerous condition,” thereby causing plaintiff’s injuries.
Fluor answered the complaint and denied the allegations.
2. Summary Judgment Proceedings
In May 2020, Fluor filed a motion for summary judgment or
summary adjudication as to all plaintiff’s causes of action. Fluor
noted that Chevron’s post-accident investigation identified three
causal factors that led to the accident, none of which related to
Fluor’s work for Chevron. First, coker unit drain lines were
4
plugging, which required coker operators such as plaintiff to
drain the coke drums through the bottom Delta valves. Fluor was
not involved in the original design of the coker units and did not
design, remove, disconnect, or reconnect the drain lines as part of
the coke drum project. Second, plaintiff was on the 23-foot
concrete deck, in the immediate vicinity of the open Delta valves.
At the time of his injury, plaintiff was inserting a locking pin on
the Delta valve to ensure the valve did not close while the coke
drum was draining. This operating practice was instituted by
Chevron and was both unchanged by and unrelated to the coke
drum project. Third, the material and condition of the deck
around the coke chutes had degraded over time, creating a gap
that allowed coke and water to release onto the 23-foot deck
during coke fall-out situations. The gap was not caused by the
coke drum project. Chevron had implemented a mitigation design
prior to the accident but had not yet completed that work in the
area where plaintiff was injured.
Plaintiff opposed the motion. He argued that Fluor had a
“duty to exercise ordinary care in designing, engineering, and
constructing the replacement coke drums, coke chutes, drain
lines, and other necessary components over a four-year, multi-
million dollar” coke drum project. Further, plaintiff asserted that
“Fluor breached its duties by failing to design and install non-
plug drain lines and to resolve a gap between the Delta Valve at
the bottom of the coke drum and the floor of the 23’ deck to
prevent foreseeable injury to Chevron operators like Plaintiff
from ‘coke fallout,’ proximately causing Plaintiff’s injuries.”
Plaintiff argued that the contract between Chevron and Fluor
relating to the coke drum project (services agreement) required
Fluor to perform engineering and design services, keeping in
5
mind the safety of the workers that would ultimately perform the
coking process. In addition, plaintiff urged that Fluor had done a
substantial amount of work on and around the 23-foot deck, the
Delta valve, the coke drum chute, and related piping systems.
According to plaintiff, Fluor’s design and engineering caused a
dangerous condition for operators because the coke drum was
prone to clogging, which required coke operators to go to the
23-foot deck to work on the Delta valve, the coker chute was an
open design (i.e., a slide not a tube), and there was a gap between
the Delta valve and coke chute and the 23-foot concrete deck,
through which fallout could reach operators working on the Delta
valve. Plaintiff offered an expert declaration by mechanical
engineer Gregg Perkin supporting the opposition.
In reply, Fluor objected to Perkin’s declaration in its
entirety and to certain opinions in particular on a variety of
grounds, including that his opinions were speculative and lacked
foundation. Moreover, Fluor contended, its work for Chevron
under the services agreement “did not include the re-design of the
coker unit, the 23’ deck, the Delta valves, the drain lines or the
operations practice that required Plaintiff [to] be present on the
23’ deck which caused his injury.” Fluor also emphasized that
plaintiff was not a third-party beneficiary of the services
agreement and therefore his negligence claim failed as a matter
of law.
3. Court’s Ruling, Entry of Judgment, and Appeal
The court heard Fluor’s motion in December 2020. As an
initial matter, the court sustained all of Fluor’s objections to the
Perkin declaration, noting that expert opinions must not be
“ ‘speculative, based on unconventional matters, or grounded in
unsupported reasoning.’ ” Further, and with respect to the cause
6
of action for negligence, the court noted that Chevron identified
and remedied three issues that caused plaintiff’s injury and
Fluor’s evidence indicated that none of the three issues related to
Fluor’s work on the coke drum project. This evidence shifted the
burden to plaintiff to show the existence of a triable issue of
material fact. The court rejected plaintiff’s argument that Fluor
owed him a duty of care due to a special relationship arising from
the services agreement between Fluor and Chevron. Among other
things, the court noted that the services agreement contained a
specific provision that the agreement was not intended to benefit
any unnamed third parties.
The court granted Fluor’s motion and entered judgment
accordingly. Plaintiff timely appeals.
DISCUSSION
1. The court did not err by excluding plaintiff’s expert’s
declaration.
Plaintiff contends the court erred in excluding his expert’s
declaration in its entirety. Specifically, plaintiff argues the court
failed to apply the proper legal standard when it made its ruling.
We disagree.
1.1. Standard of Review
“Except to the extent the trial court bases its ruling on a
conclusion of law (which we review de novo), we review its ruling
excluding or admitting expert testimony for abuse of discretion.”
(Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal.4th 747, 773 (Sargon).)
7
1.2. Analysis
In the context of summary judgment, “ ‘[s]upporting and
opposing affidavits or declarations … shall set forth admissible
evidence.’ (Code Civ. Proc., § 437c, subd. (d).) ‘Matters which
would be excluded under the rules of evidence if proffered by a
witness in a trial as hearsay, conclusions or impermissible
opinions, must be disregarded in supporting affidavits.’
[Citation.]” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 939,
946.) “An expert may testify to an opinion ‘[r]elated to a subject
that is sufficiently beyond common experience that the opinion of
an expert would assist the trier of fact.’ (Evid. Code, § 801,
subd. (a).) ‘Testimony in the form of an opinion that is otherwise
admissible is not objectionable because it embraces the ultimate
issue to be decided by the trier of fact.’ (Evid. Code, § 805.)
However, an expert is not permitted to give an opinion on
questions of law or legal conclusions. (Issakhani v. Shadow Glen
Homeowners Assn., Inc. (2021) 63 Cal.App.5th 917, 934 [‘meaning
and purpose of a legislative enactment is a question of law for the
court; an expert’s opinion on such matters is an inadmissible
legal conclusion’]; Palmieri v. State Personnel Bd. (2018) 28
Cal.App.5th 845, 860 [‘the effect of California statutes presents
purely legal questions outside the province of expert witnesses’];
People v. Jo (2017) 15 Cal.App.5th 1128, 1176 [expert opinion on
question of law inadmissible]; Downer v. Bramet (1984) 152
Cal.App.3d 837, 841 [expert may not ‘testify to legal conclusions
in the guise of expert opinion’].) It is the role of the judge to
decide purely legal issues. (Summers v. A. L. Gilbert Co. (1999) 69
Cal.App.4th 1155, 1182.)” (City of Rocklin v. Legacy Family
Adventures-Rocklin, LLC (2022) 86 Cal.App.5th 713, 728–729.)
8
According to Perkin’s curriculum vitae, he is a mechanical
engineer with over 50 years of experience in mechanical
equipment and mechanical systems design. His expert
declaration, however, does not focus on matters related to
mechanical engineering. His central opinions include, for
example, that Fluor “was under a duty to discover and should
have discovered the Gap-Hazard while evaluating, designing, and
engineering” the coke drum project, and that “[d]iscovering and
remedying any dangerous condition on the 23’ deck or the Coker
Unit is within Fluor’s Scope of Work (“SOW”) on the Project.”
These opinions, and other opinions contained in his declaration,
were properly excluded by the court because they impermissibly
invade the court’s role to decide issues of law. (Cabral v. Ralphs
Grocery Co. (2011) 51 Cal.4th 764, 770 [“Duty is a question of law
for the court, to be reviewed de novo on appeal.”]; City of Hope
National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375,
395 [interpretation of a contract is a question of law “when it is
based on the words of the instrument alone, when there is no
conflict in the extrinsic evidence, or when a determination was
made based on incompetent evidence”]; and see Kim v. TWA
Construction, Inc. (2022) 78 Cal.App.5th 808, 834 [determining
the scope of work under a construction contract requires contract
interpretation]; In re Tobacco Cases I (2010) 186 Cal.App.4th 42,
51 [“ ‘[E]xpert opinion on contract interpretation is usually
inadmissible.’ ”].)
Citing Michaels v. Greenberg Traurig, LLP (2021) 62
Cal.App.5th 512, plaintiff argues that the court was required to
“ ‘liberally construe the evidence in favor of the party opposing’
the summary judgment motion when ruling on the evidence’s
admissibility.” There, the court of appeal considered the adequacy
9
of an expert witness’s foundation for a proffered opinion. The
court noted that “ ‘[i]n light of the rule of liberal construction, a
reasoned explanation required in an expert declaration filed in
opposition to a summary judgment motion need not be as detailed
or extensive as that required in expert testimony presented in
support of a summary judgment motion or at trial.’ ” (Id. at
p. 524.) According to plaintiff, the court should have taken a more
relaxed approach in its analysis of the foundation of Perkin’s
opinions and admitted his declaration. We disagree for two
reasons. First, Perkin is a mechanical engineer but as already
explained, his opinions largely (and improperly) relate to the
interpretation of the services agreement between Chevron and
Fluor. Second, and in any event, the record does not indicate that
Perkin reviewed the services agreement. Thus, even if it would be
appropriate for Perkin to comment on the scope of work
encompassed by the services agreement, any opinion on that
point would lack the proper foundation. (Sargon, supra, 55
Cal.4th at p. 776 [court does not abuse its discretion by excluding
expert testimony that is not “ ‘[b]ased on matter … that is of a
type that reasonably may be relied upon by an expert in forming
an opinion upon the subject to which his testimony relates … .’ ”];
Evid. Code, § 801, subd. (b).)
In sum, the court did not abuse its discretion in excluding
plaintiff’s expert’s declaration.
2. The court properly granted Fluor’s motion for
summary judgment.
Plaintiff also claims the court erred by granting Fluor’s
motion for summary judgment because he established that Fluor
owed him a duty of care. As he discusses only the court’s ruling
on his negligence claim, plaintiff has forfeited any challenge to
10
the judgment in favor of Fluor on his other five causes of action.
We therefore limit our analysis to the cause of action for
negligence.
2.1. Standard of Review
The standard of review is well established. “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.) The moving party
“bears the burden of persuasion that there is no triable issue of
material fact and that he is entitled to judgment as a matter of
law.” (Id. at p. 850; Code Civ. Proc., § 437c, subd. (c).) The
pleadings determine the issues to be addressed by a summary
judgment motion. (Metromedia, Inc. v. City of San Diego (1980)
26 Cal.3d 848, 885, reversed on other grounds by Metromedia,
Inc. v. City of San Diego (1981) 453 U.S. 490; Nieto v. Blue Shield
of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60,
74.)
On appeal from a summary judgment, we review the record
de novo and independently determine whether triable issues of
material fact exist. (Saelzler v. Advanced Group 400 (2001) 25
Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 334.) We resolve any evidentiary doubts or ambiguities in
favor of the party opposing summary judgment. (Saelzler, at
p. 768.) “In performing an independent review of the granting of
summary judgment, we conduct the same procedure employed by
the trial court. We examine (1) the pleadings to determine the
elements of the claim, (2) the motion to determine if it establishes
facts justifying judgment in the moving party’s favor, and (3) the
11
opposition—assuming movant has met its initial burden—to
‘decide whether the opposing party has demonstrated the
existence of a triable, material fact issue.’ ” (Oakland Raiders v.
National Football League (2005) 131 Cal.App.4th 621, 630.) “We
need not defer to the trial court and are not bound by the reasons
in its summary judgment ruling; we review the ruling of the trial
court, not its rationale.” (Ibid.)
The appellant has the burden to show error, even if the
appellant did not bear the burden in the trial court, and “ ‘to
point out the triable issues the appellant claims are present by
citation to the record and any supporting authority.’ ” (Claudio v.
Regents of the University of California (2005) 134 Cal.App.4th
224, 230.) Further, “an appellant must present argument and
authorities on each point to which error is asserted or else the
issue is waived.” (Kurinij v. Hanna & Morton (1997) 55
Cal.App.4th 853, 867.) Matters not properly raised or that lack
adequate legal discussion will be deemed forfeited. (Keyes v.
Bowen (2010) 189 Cal.App.4th 647, 655–656.)
2.2. Negligence
To support a negligence cause of action, a plaintiff must
plead and prove: (1) the defendant owed the plaintiff a legal duty,
(2) the defendant breached the duty, and (3) the breach was a
proximate or legal cause of the plaintiff’s injuries. (Merrill v.
Navegar, Inc. (2001) 26 Cal.4th 465, 477.) “ ‘[T]he threshold
element of a cause of action for negligence is the existence of a
duty to use due care toward an interest of another that enjoys
legal protection against unintentional invasion.’ ”
(Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 837
(Goonewardene).) “ ‘Duty, being a question of law, is particularly
amenable to resolution by summary judgment.’ ” (Regents of
12
University of California v. Superior Court (2018) 4 Cal.5th 607,
618.)
Fluor’s motion for summary judgment asserts that
plaintiff’s negligence claim fails as a matter of law because Fluor
did not owe plaintiff a legal duty of care and, in the alternative,
that nothing it did or did not do caused plaintiff’s injury. We
address the issue of duty first and find it dispositive.
“In considering whether a party has a legal duty in a
particular factual situation, a distinction is drawn between
claims of liability based upon misfeasance and those based upon
nonfeasance. ‘ “ ‘Misfeasance exists when the defendant is
responsible for making the plaintiff’s position worse, i.e.,
defendant has created a risk. Conversely, nonfeasance is found
when the defendant has failed to aid plaintiff through beneficial
intervention. ...’ [Citations.]” ’ [Citation.] Liability for misfeasance
is based on the general duty of ordinary care to prevent others
from being injured by one’s conduct. [Citations.] Liability for
nonfeasance is limited to situations in which there is a special
relationship that creates a duty to act. [Citations.] ‘The basic idea
is often referred to as the “no duty to aid rule,” which remains a
fundamental and long-standing rule of tort law. ... “As a rule, one
has no duty to come to the aid of another. A person who has not
created a peril is not liable in tort merely for failure to take
affirmative action to assist or protect another unless there is
some relationship between them which gives rise to a duty to
act.” ’ [Citation.]” (Seo v. All-Makes Overhead Doors (2002) 97
Cal.App.4th 1193, 1202–1203.)3
3Recently, however, the California Supreme Court noted that the
distinction between misfeasance and nonfeasance is “imprecise and
prone to misinterpretation.” (Brown v. USA Taekwondo (2021)
13
Plaintiff’s negligence claim is predicated on his contention
that his injury was foreseeable and a close connection existed
between his injury and Fluor’s conduct. Accordingly, plaintiff
asks us to recognize that Fluor owed him a legal duty under the
factors set forth in Biakanja v. Irving (1958) 49 Cal.2d 647, 650
(Biakanja). “ ‘A duty [of care] may arise through statute, contract,
or the relationship of the parties.’ ” (Lichtman v. Siemens
Industry Inc. (2017) 16 Cal.App.5th 914, 920, fn. omitted.) And a
duty running from a defendant to a plaintiff may arise from a
contract even though, as here, the parties are not in privity.
(Biakanja, at p. 650; see Goonewardene, supra, 6 Cal.5th at
p. 838.) “Under these circumstances, the existence of a duty is not
the general rule, but may be found based on public policy
considerations.” (Lichtman, at p. 921.)
In Biakanja, our Supreme Court identified multiple factors
that may support a court’s conclusion that a duty of care to a
noncontracting party may arise from a contract: “The
determination whether in a specific case the defendant will be
held liable to a third person not in privity is a matter of policy
and involves the balancing of various factors, among which are
the extent to which the transaction was intended to affect the
plaintiff, the foreseeability of harm to him, the degree of certainty
that the plaintiff suffered injury, the closeness of the connection
between the defendant’s conduct and the injury suffered, the
moral blame attached to the defendant’s conduct, and the policy
11 Cal.5th 204, 215, fn. 6.) “ ‘The proper question is not whether an
actor’s failure to exercise reasonable care entails the commission or
omission of a specific act.’ (Rest.3d Torts, [Liability for Physical and
Emotional Harm (2012)] § 37, com. c, p. 3.) Rather, it is ‘whether the
actor’s entire conduct created a risk of harm.’ ” (Ibid.)
14
of preventing future harm.” (Biakanja, supra, 49 Cal.2d at
p. 650.)
Our Supreme Court applied these and other policy-related
factors recently, in Goonewardene. There, an employer contracted
with a company to provide payroll services. A former employee
sued her employer under a variety of theories relating to the
employer’s failure to pay wages due. (Goonewardene, supra, 6
Cal.5th at p. 822.) The court considered, as pertinent here,
whether the employee could also sue the payroll company for lost
wages. The plaintiff asserted the payroll company breached the
oral payroll services contract with her employer and she was
entitled to enforce the contract as a third-party beneficiary. She
also claimed the payroll company negligently performed its
contract with the employer and, as a third-party beneficiary of
the contract, she was entitled to recover from the company in tort
as well. (Id. at p. 825.)
The court rejected both arguments. First, the court
addressed the plaintiff’s contention that she could assert a breach
of contract action against the payroll company. (Goonewardene,
supra, 6 Cal.5th at pp. 826–837.) Summarizing its prior cases
relating to contract enforcement by third-party beneficiaries, the
court explained that in addition to examining the plain language
of the contract, courts must consider three additional factors:
“(1) whether the third party would in fact benefit from the
contract, but also (2) whether a motivating purpose of the
contracting parties was to provide a benefit to the third party,
and (3) whether permitting a third party to bring its own breach
of contract action against a contracting party is consistent with
the objectives of the contract and the reasonable expectations of
the contracting parties. All three elements must be satisfied to
15
permit the third party action to go forward.” (Id. at p. 830.) With
respect to the second element, the court clarified that “the
contracting parties must have a motivating purpose to benefit the
third party, and not simply knowledge that a benefit to the third
party may follow from the contract.” (Ibid.) And as to the third
element, the court explained that it “calls for a judgment
regarding the potential effect that permitting third party
enforcement would have on the parties’ contracting goals, rather
than a determination whether the parties actually anticipated
third party enforcement at the time the contract was entered
into.” (Id. at p. 831.)
The court concluded the plaintiff was not a third-party
beneficiary of the contract between her employer and the payroll
company. Because no written contract existed, the court turned
directly to an examination of the three factors just described.
Assuming without deciding that the plaintiff would have
benefited from her employer’s use of a payroll company, the court
noted that an incidental benefit to an employee was insufficient
to establish that the employee was a third-party beneficiary of a
contract. Instead, the court stated, “a motivating purpose of the
contracting parties must be to provide such a benefit to
employees.” (Goonewardene, supra, 6 Cal.5th at p. 835.) With
respect to an employer’s use of a payroll company, the court
concluded that “the relevant motivating purpose is to provide a
benefit to the employer, with regard to the cost and efficiency of
the tasks performed and the avoidance of potential [statutory]
penalties.” (Ibid.) Moreover, even if it could be said that a
motivating purpose of the contract was to provide the employees
a benefit, “it still may be inconsistent with the objectives of the
contract and the reasonable expectations of the contracting
16
parties to permit the employees to sue the payroll company for an
alleged breach of the contract.” (Id. at p. 836.) The court
examined several factors, including the employer’s availability to
enforce the contract and the substantial additional costs that
would result from payroll company liability to employees for
wages, and concluded that permitting employees to sue a payroll
company for wage and hour violations would generally not be
consistent with the reasonable expectations of an employer and a
payroll company. (Ibid.)
Moving to the employee’s negligence claim against the
payroll company, the court examined the Biakanja factors to
determine whether the employee could sue the payroll company
for damages arising from its negligent contract performance. In
concluding the payroll company did not owe the plaintiff a legal
duty of care arising from the contract, the court considered a
variety of policy considerations. First, even if an employee
sustained a loss of wages due to the payroll company’s
negligence, California’s wage and hour laws already provide the
employee with “a full and complete remedy” against the
employer. Accordingly, the court saw the imposition of a separate
tort duty of care as “generally unnecessary to adequately protect
the employee’s interest.” (Goonewardene, supra, 6 Cal.5th at
p. 839.) Second, deterrence was not a significant factor because
the payroll company was already obligated to the employer to
perform its services with due care. (Ibid.) Third, and as the court
explained in its breach of contract analysis, the payroll company
had no special relationship with the plaintiff that would warrant
the recognition of a contractually-based duty of care. And “[g]iven
this conclusion, it would clearly be anomalous to impose tort
liability, with its increased potential damages, upon the payroll
17
company based upon its alleged failure to perform its obligations
under its contract with [the] plaintiff’s employer.” (Id. at p. 840.)
Fourth, the court noted that the imposition of a duty of care to
employees could improperly distort a payroll company’s
performance of its contract with an employer—essentially, the
court concluded the payroll company could not, in some
circumstances, serve both masters. (Ibid.) Finally, the court
indicated that “imposition of a tort duty of care on a payroll
company is likely to add an unnecessary and potentially
burdensome complication to California’s increasing volume of
wage and hour litigation.” (Id. at p. 841.) Because employees are
already fully protected under existing law, the court concluded,
the possible benefit of expanded liability would be substantially
outweighed by the significant burden on the judicial system
resulting from increased and complicated litigation. (Ibid.)
Plaintiff does not expressly argue that he is a third-party
beneficiary of the services agreement and instead relies solely on
the policy factors set forth in Biakanja.4 Because we conclude
those factors do not support plaintiff’s claim, we will not engage
in a detailed analysis of the services agreement except to note
that the services agreement does not suggest that the coke drum
project was intended to benefit Chevron’s employees. Instead, the
project was intended to benefit Chevron by increasing the
efficiency and reliability of operations at the refinery.
(Goonewardene, supra, 6 Cal.5th at p. 830 [noting that “the
contracting parties must have a motivating purpose to benefit the
4Plaintiff asserts, without any meaningful analysis, that his “injuries
arose directly from Fluor’s negligent performance” of its agreement
with Chevron.
18
third party, and not simply knowledge that a benefit to the third
party may follow from the contract.”].)
Moving to the policy factors identified in Biakanja, we
follow the rubric used by the court in Goonewardene. First, to the
extent an employee is injured in the workplace, California’s
workers’ compensation laws provide the employee with a full and
complete remedy against the employer. Accordingly, and as in
Goonewardene, the imposition of a separate tort duty of care here
is unnecessary to adequately protect the employee’s interest.
Second, deterrence is not a significant factor in the present case
because Fluor was obligated to Chevron to perform its services
with due care under the services agreement. Third, and as noted
above, Fluor had no special relationship with plaintiff that would
warrant the recognition of a contractually-based duty of care.
And therefore, like Goonewardene, “it would clearly be anomalous
to impose tort liability, with its increased potential damages
[citation], … based upon [Fluor’s] alleged failure to perform its
obligations under its contract with” Chevron. (Goonewardene,
supra, 6 Cal.5th at p. 840.) Finally, and again similar to
Goonewardene, the imposition of a tort duty of care in this
circumstance is likely to foster litigation by plaintiffs seeking to
avoid the workers’ compensation bargain. As the court has said,
because employees are already fully protected under existing law,
the possible benefit of expanded liability would be substantially
outweighed by the significant burden on the judicial system
resulting from increased and complicated litigation.
Plaintiff relies on Beacon Residential Community Assn v.
Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, a case in
which the court applied the Biakanja factors. There, the high
court held that an “architect owes a duty of care to future
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homeowners in the design of a residential building where … the
architect is a principal architect on the project—that is, the
architect, in providing professional design services, is not
subordinate to other design professionals. The duty of care
extends to such architects even when they do not actually build
the project or exercise ultimate control over construction.” (Id. at
p. 571.) Plaintiff’s reliance on this case is misplaced. In Beacon,
unlike here, the defendants’ primary role in the design of the
project bore a close connection to the injury alleged by the
plaintiff. (Id. at p. 581.) That is, unlike in Beacon, the connection
between Fluor’s work under the services agreement and
plaintiff’s injury is not “direct and immediate.” (Ibid.) Moreover,
much of the court’s analysis focused on the foreseeability of injury
to the plaintiff homeowners due to the architects’ negligent
design of their homes. That situation is unlike the circumstance
here, which involves construction at an oil refinery rather than
residential units.
In sum, we conclude that plaintiff cannot maintain a
negligence action against Fluor because it did not owe him a duty
of care.5
5 Relying heavily upon the Restatement of Torts, plaintiff also asserts
that Fluor may be liable on a negligent undertaking theory. We decline
to consider this argument because plaintiff did not raise it in
opposition to the motion for summary judgment. (See LAOSD Asbestos
Cases, supra, 87 Cal.App.5th at p. 955 [noting theories that were not
fully developed or factually presented to the trial court cannot create a
triable issue on appeal].)
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DISPOSITION
The judgment is affirmed. Fluor Enterprises, Inc., shall
recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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