Luna v. Crane Development Corporation CA4/1 ( 2024 )

Filed 9/20/24 Luna v. Crane Development Corporation CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DAVID LUNA, D081692
Plaintiff and Appellant,
v.
(Super. Ct. No. 37-2020-
CRANE DEVELOPMENT 00025179-CU-PO-CTL)
CORPORATION,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Ronald F. Frazier, Judge. Affirmed.
Gomez Trial Attorneys, John H. Gomez, Rachel M. Garrard and
Samuel G. Lynn; Arendsen Braddock and Hamilton E. Arendsen, for Plaintiff
and Appellant.
Procopio, Cory, Hargreaves & Savitch, Rosemary K. Robinson and
Nicholas W. Fortino, for Defendant and Respondent.
David Luna appeals from a judgment entered after the trial court
granted Crane Development Corporation (Crane) summary judgment based
on the Privette doctrine—which generally protects hirers from liability for
injuries sustained by employees of an independent contractor on a worksite.
(See Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette).)
Luna was injured when he fell off scaffolding while working at a
construction site. Crane, the general contractor, hired Luna’s employer,
Stucco Specialists, Inc. (SSI), as a subcontractor, and SSI contracted with
North County Scaffold & Plank, Inc. (NCS) to erect the scaffold. Luna
received workers compensation benefits through his employer, SSI, but also
sued Crane and NCS for negligence. As he did in the trial court, Luna
asserts there is a triable issue of fact as to whether Crane retained control
over the maintenance of the scaffolding in a manner that contributed to his
fall, and therefore his lawsuit falls under the Hooker exception to the Privette
doctrine. (See Hooker v. Department of Transportation (2002) 27 Cal.4th 198,
202 (Hooker).) We agree with the trial court that Luna has not established a
triable issue of material fact under Hooker and affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Crane was the general contractor on the construction project for a four-
story multi-unit residential building in Irvine. Crane hired SSI to perform
plastering and stucco services on the project. Luna worked as a plasterer for
SSI.
The contract between Crane and SSI specified that SSI would provide
“all labor, material, scaffolding, equipment, tools, adequate supervision and
business licenses necessary to perform the work of lath and plaster.” It
stated further that SSI was to “inspect and maintain scaffold daily,” and
“remove [its] scaffolding upon direction of [the] on-site superintendent.” SSI
contracted with NCS to provide the labor and equipment to erect the
necessary scaffolding on the exterior of the building. The contract specified
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that the scaffolding would consist of three-foot wide frames with guardrails
and planks as needed.
On August 8, 2018, Luna was applying plaster to the inside of balcony
areas on the fourth floor of the building and used the scaffolding to move
from one balcony to the next. While attempting to step onto a balcony from
the scaffolding, Luna lost his balance and fell backwards towards the mid-rail
of the scaffolding. The mid-rail came loose and Luna fell approximately 48
feet to the ground. He sustained multiple serious injuries in the fall and
spent a week in the hospital.
Luna filed a complaint against Crane and NCS for negligence. He
alleged NCS was negligent in its construction of the scaffolding, and Crane
was negligent because it “did not regularly inspect the scaffolding constructed
at the work site, as required.” Crane and NCS each filed answers in which
they generally denied the allegations in the complaint and asserted various
affirmative defenses. Each also filed a cross-complaint for indemnity against
the other.
In November 2020, Crane filed a motion for summary judgment and/or
summary adjudication. Crane relied on Privette to argue that, as the hirer of
an independent contractor that employed Luna, Crane did not owe any duty
to Luna. Crane asserted Luna did not dispute that he received workers’
compensation benefits through SSI as a result of the work-related injury, and
there was no evidence that Crane retained control over SSI’s work in a
manner that affirmatively contributed to Luna’s injury as required by
Hooker. (See Hooker, supra, 27 Cal.4th at p. 202.) Crane provided a separate
statement of undisputed facts, and a compendium of evidence, which
included, among other items, certain of Luna’s discovery responses, and
excerpts from several deposition transcripts.
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Luna and NCS each opposed the motion. Each filed their own response
to Crane’s separate statement of undisputed facts, and included their own
statement of material facts in dispute. Each asserted there were triable
issues of fact as to whether the Hooker exception applied, and specifically,
whether Crane retained control over safety at the project site in a manner
that affirmatively contributed to Luna’s injuries. (See Hooker, supra, 27
Cal.4th at p. 202.) They each provided evidence in support of their
oppositions, including portions of deposition transcripts and other documents
that Crane produced during discovery. Crane responded to each separate
statement of disputed facts, and objected to much of the evidence submitted
by both Luna and NCS.
After hearing argument from the parties, the trial court granted
Crane’s motion for summary judgment. It found Crane was not liable for
Luna’s injuries under the Privette doctrine because Luna was an employee of
a subcontractor, and neither Luna nor NCS provided evidence sufficient to
establish a triable issue of fact as to whether Crane retained control over
safety conditions at a worksite in a manner that affirmatively contributed to
Luna’s injuries. The trial court did not rule on any of Crane’s evidentiary
objections at the hearing or in the written order.
Shortly after the trial court entered judgment for Crane, Luna filed a
motion for reconsideration. He asserted the recently published opinion in
Brown v. Beach House Design & Development (2022) 85 Cal.App.5th 516(Brown) supported his position because there, the appellate court found the
plaintiff established a triable issue of material fact as to whether the general
contractor fully delegated the duty to maintain the scaffolding in a safe
condition to the subcontractor responsible for erecting the scaffolding. (Id. at
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p. 534.) The trial court found it lacked jurisdiction to hear the motion for
reconsideration.
Luna filed a timely notice of appeal.1
II. DISCUSSION
Luna asserts the trial court erred by granting summary judgment
because there was evidence Crane retained control over safety at the project
site by inspecting the scaffolding each day. He asserts further that Crane
allowed various subcontractors to use and alter the scaffolding and made its
own negligent repairs, thereby affirmatively contributing to his injury. As we
explain, the evidence does not support many of Luna’s assertions, and we find
no error in the trial court’s ruling.
A. The Privette Doctrine and Exceptions to the Doctrine
In Privette, the California Supreme Court recognized both the common
law principle, “a person who hired an independent contractor generally was
not liable to third parties for injuries caused by the contractor’s negligence in
performing the work,” and the “many exceptions to this general rule” the
courts have developed over the years. (Privette, supra, 5 Cal.4th at p. 693.)
Since then, courts have referred to the general rule that a hirer is not liable
for injuries resulting from the work of an independent contractor as the
Privette doctrine. More recently, our high court has recast the primary
rationale behind the Privette doctrine in terms of delegation. (See Sandoval
v. Qualcomm Inc. (2021) 12 Cal.5th 256, 270 (Sandoval).)
In Sandoval, the Court considered the Privette doctrine and exceptions
in the context of a hirer’s liability for injuries sustained by an electrician
while working for a contractor on the hirer’s premises. The Court began by
1 NCS also filed a timely notice of appeal and an opening brief, but
subsequently moved to dismiss its appeal.
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reiterating, “[s]trong public policy considerations readily acknowledged in our
past decisions generally support a straightforward presumption about the
responsibilities of hirers and contractors for worker injuries in situations like
this: A person or entity hiring an independent contractor (a ‘hirer’) ordinarily
delegates to that independent contractor all responsibility for the safety of
the contractor’s workers.” (Sandoval, supra, 12 Cal.5th at p. 264.)
As the Court explained further, the presumption that a hirer delegates
to an independent contractor the responsibility, and thus the liability, to do
work safely, “is grounded in two major principles: first, that independent
contractors by definition ordinarily control the manner of their own work;
and second, that hirers typically hire independent contractors precisely for
their greater ability to perform the contracted work safely and successfully.”
(Sandoval, supra, 12 Cal.5th at p. 269.) “Because we typically expect
contractors to perform the contracted work more safely than hirers, we have
endorsed a ‘strong policy’ of presuming that a hirer delegates all control over
the contracted work, and with it all concomitant tort duties, by entrusting
work to a contractor.” (Id. at p. 270.)
The Court also recognized “that presumption gives way to two
recognized exceptions: where the hirer either withholds critical information
regarding a concealed hazard [citation]; or retains control over the
contractor’s work and actually exercises that control in a way that
affirmatively contributes to the worker’s injury.” (Sandoval, supra, 12
Cal.5th at p. 264.) “Sometimes a hirer intends to delegate its responsibilities
to the contractor in principle but, by withholding critical safety information,
fails to effectively delegate its responsibilities in practice; or a hirer delegates
its responsibilities only partially by retaining control of certain activities
directly related to the contracted work. When such situations arise, the
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Privette doctrine gives way to exceptions.” (Id. at p. 271.) As the Sandoval
Court pointed out, the first exception was articulated in Kinsman v. Unocal
Corp. (2005) 37 Cal.4th 659, and the second in Hooker, supra, 27 Cal.4th 198.
(Sandoval, supra, 12 Cal.5th at p. 271.)
B. Review of Trial Court’s Denial of Summary Judgment
A trial court shall grant a motion for summary judgment “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).)
As the moving party, Crane had the initial burden of establishing
either that Luna could not prove or that it had a complete defense to Luna’s
sole cause of action for negligence. (Code Civ. Proc., § 437c, subd.
(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 853.)
Assuming Crane met its burden by asserting application of the Privette
doctrine, the burden then shifted to Luna (and NCS) to present evidence
demonstrating a triable issue of material fact, meaning the evidence would
allow a reasonable trier of fact to make a factual finding in favor of Luna, for
example, by concluding Crane was subject to one of the recognized exceptions
to Privette. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at pp. 843, 850.)
We review the trial court’s order granting Crane’s motion for summary
judgment under the same legal standard as the trial court and independently
assess the correctness of the ruling. (Moore v. Regents of University of
California (2016) 248 Cal.App.4th 216, 231; Coral Construction, Inc. v. City
and County of San Francisco (2010) 50 Cal.4th 315, 326.) “[W]e examine the
record de novo, liberally construing the evidence in support of the party
opposing summary judgment and resolving doubts concerning the evidence in
favor of that party.” (Miller v. Department of Corrections (2005) 36 Cal.4th
7446, 460.) Where, as here, the motion is based primarily on the application of
the Privette doctrine, we consider whether Crane met its initial burden to
establish application of the Privette doctrine, and whether Luna then
presented admissible evidence sufficient to establish a triable issue of fact as
to a recognized exception. (See Alvarez v. Seaside Transportation Services
LLC (2017) 13 Cal.App.5th 635, 643–644, 646.)
Notwithstanding this de novo standard of review, as with any appeal,
we presume the lower court’s ruling is correct and indulge all presumptions
and inferences to support the ruling. (Meridian Financial Services v. Phan
(2021) 67 Cal.App.5th 657, 684.) “Because it is [Luna’s] burden to
affirmatively demonstrate error, [he] must provide citations to the
appellate record directing the court to the evidence supporting each factual
assertion.” (Ibid.; Cal. Rules of Court, rule 8.204(a)(1)(C).) We are “not
required to develop the parties’ arguments or search the record for supporting
evidence and may instead treat arguments that are not developed or
supported by adequate citations to the record as waived.” (Meridian, at
p. 684.)
C. Luna Has Not Established Error on Appeal
Luna asserts there is a triable issue of material fact as to whether
Crane retained control over safety at the worksite, including the
responsibility for daily inspections of the scaffolding, and exercised that
control in a negligent manner, affirmatively contributing to his injury. Crane
renews its evidentiary objections and asserts Luna has not presented
evidence sufficient to establish a triable issue of material fact.
Before turning to the merits, we briefly address Crane’s evidentiary
objections. Crane raised 77 objections to the evidence Luna submitted and an
additional 40 objections to the evidence NCS submitted in opposition to
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Crane’s motion for summary judgment. The trial court did not rule on the
objections in its tentative ruling, and Crane addressed them only in passing
during argument. The trial court then confirmed its tentative, granting
Crane’s motion for summary judgment, again without addressing the
objections. Crane purports to renew many of these objections on appeal, and
does so by providing a list of documents which it asserts were not properly
authenticated and a separate bullet point list of renewed objections. We need
not, and expressly do not, decide if the trial court erred by failing to rule on or
implicitly overruling Crane’s evidentiary objections, because doing so would
not change the result in this case. As we explain next, even if we consider all
the evidence in the record, we conclude Luna has not met his burden to
establish a triable issue of material fact or error on appeal.2
Turning to the merits, Luna does not dispute that the Privette doctrine
generally protects general contractors like Crane from liability based on
injuries sustained by employees of independent contractors, like himself. He
asserts there is a triable issue of fact as to whether Crane falls under the
retained control exception to Privette originally set out in Hooker, and further
refined in McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219 (McKown)
and, more recently, Brown, supra, 85 Cal.App.5th 516.
Hooker was a crane operator, employed by a general contractor hired
by the California Department of Transportation (Caltrans) to construct an
overpass. (Hooker, supra, 27 Cal.4th at p. 202.) Hooker would regularly
2 Crane also asserts Luna cannot rely on evidence submitted by NCS in
the trial court because NCS is not a party to the present appeal. The
authority Crane provides does not support its position and we likewise
decline to exclude evidence submitted by NCS in the trial court. (See, e.g.,
Truong v. Nguyen (2007) 156 Cal.App.4th 865, 882 [“Generally, documents
and facts that were not presented to the trial court and which are not part of
the record on appeal, cannot be considered on appeal”].)
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retract the outriggers—hydraulic legs that extend from a crane to provide a
stable base—to allow other construction vehicles to pass on the narrow
overpass. (Ibid.) The crane tipped over while the outriggers were retracted,
and Hooker died as a result. (Ibid.) Hooker’s widow sued Caltrans and
alleged that it negligently retained control over jobsite safety. (Id. at p. 203.)
She relied on a Caltrans construction manual, which gave Caltrans
“authority to set compliance schedules for the correction of dangerous
conditions and to shut down affected operations until the dangerous
conditions were corrected,” and asserted a Caltrans representative observed
Hooker retracting the outriggers and knew that the crane was unstable
without them but failed to intervene to correct the dangerous condition. (Id.
at pp. 202−203.)
The trial court granted Caltrans summary judgment based on Privette,
and the Court of Appeal reversed. The California Supreme Court granted
review to address the validity of the negligent exercise of retained control
theory. (Hooker, supra, 27 Cal.4th at p. 203.) The Court rejected the notion
that a hirer could be liable “merely because [it] retained the ability to
exercise control over safety,” and concluded, instead, “the imposition of tort
liability on a hirer should depend on whether the hirer exercised the control
that was retained in a manner that affirmatively contributed to the injury of
the contractor’s employee.” (Id. at p. 210.) Applying this rule, the Court
affirmed the summary judgment, and explained: “[Hooker] failed to raise
triable issues of material fact as to whether [Caltrans] actually exercised the
retained control so as to affirmatively contribute to the death of [her]
husband. While the evidence suggests that the crane tipped over because the
crane operator swung the boom while the outriggers were retracted, and that
the crane operator had a practice of retracting the outriggers to permit
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construction traffic to pass the crane on the overpass, there was no evidence
Caltrans’s exercise of retained control over safety conditions at the worksite
affirmatively contributed to the adoption of that practice by the crane
operator. There 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.” (Hooker, at p. 215.)
The same is true in this case. Luna has not presented evidence
sufficient to establish Crane’s exercise of retained control over safety
conditions at the worksite affirmatively contributed to Luna’s injury. Rather,
at most, Luna has presented evidence that at least certain of Crane’s 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.)
Larry Trujillo worked for Crane as the senior superintendent on the
project. As Luna points out, Trujillo agreed that he was generally in charge
of everyone’s safety on the project. But in Hooker, the Court rejected the
notion that retaining the ability to exercise control over safety, in general,
was enough to establish an exception to Privette. (Hooker, supra, 27 Cal.4th
at p. 210.) And here, Trujillo clarified he meant that he would check in with
the different foremen and confirm whether they had any questions or
concerns about safety.
Trujillo also conceded that he saw the plaster crew move the planks on
the scaffolding to reach different places, but he explained that he did not
know “if they had permission internally to alter the scaffold within their
organization.” As Luna concedes, SSI contracted with NCS to provide the
scaffolding and agreed to inspect and maintain it daily. Trujillo, or Crane’s,
mere knowledge of any unsafe practices that SSI employed is not sufficient to
11
establish retained control in a manner that affirmatively contributed to
Luna’s injury.
Luna also relies on the testimony of Eric Wilson, the assistant
superintendent for Crane. Wilson testified that, although part of his job was
maintaining worksite safety, he only did a visual inspection of the scaffolding
for obvious defects. He explained that it was common practice for workers to
alter the scaffolding, even if they were not supposed to, and said that Crane
had spoken to or reprimanded workers, and particularly those working for
the stucco company, for making alterations to the scaffolding, including
moving planks and railings.
Luna asserts, “even if Crane intended at the outset to entrust [SSI]
with the work of inspecting, maintaining, and repairing the scaffold, Crane
also exercised daily responsibility over those tasks.” But that fact is also
insufficient to confer liability on Crane. Even if Crane retained some control
over safety in general, Crane’s failure to correct the unsafe practices of the
subcontractor, SSI, and its employees, with respect to the scaffolding is not a
basis for liability. (See Hooker, supra, 27 Cal.4th at p. 215.) SSI had an
obligation to inspect the scaffolding each day, and to ensure the scaffolding it
provided, through a secondary contract with NCS, was in adequate, safe
working condition. Crane’s attempts to add a “another layer” of safety in
addition to the obligations SSI willingly undertook do not make it liable for
SSI’s failure to protect its own employee, and Luna presents no evidence
suggesting that Crane affirmatively directed or precluded SSI from doing
anything it felt necessary with respect to the scaffolding.
Luna asserts that Wilson conceded that other subcontractors, including
painters, framers, and electricians, would sometimes use the scaffolding.
Luna suggests that this created a responsibility on Crane’s behalf to ensure
12
that others used the scaffolding appropriately, but the testimony he relies on
does not establish that Crane directed (or even allowed) the other trades to
use the scaffolding. Nor does Luna provide any evidence suggesting SSI did
not know about other crews using the scaffolding or that it had expressly
approved such use. Crane agreed to provide all scaffolding required for its
portion of the project, and to inspect and maintain the scaffold on a daily
basis. The only agreement in the record regarding the scaffolding is between
SSI and NCS. Trujillo testified that each trade spoke directly to NCS, the
scaffold company, about accessing the scaffolding, and Luna admitted that
SSI was aware that other trades were using the scaffolding. There is no
evidence Crane had any involvement in dictating who else could use the
scaffolding, or under what conditions.
Luna asserts that Crane and its employees sometimes either repaired
the scaffolding themselves, or directed others to make repairs. For instance,
Wilson’s assistant, Alfredo Alvarez, testified that Wilson trained him to clip
guardrails on the scaffolding back into place if he noticed they were loose.
Wilson testified that the workers would sometimes leave only two planks, but
it was preferable, safer, to have three, so on some occasions he asked the crew
to replace planks that had been removed. Other times, if a plank was slightly
askew, he would kick it or otherwise “move it back in.” Or, if it was
something simple, like replacing a brace or missing plank, he or his crew
would make the repair, and make sure it was secure, in the interest of safety.
If it was something that could not be easily remedied, Crane would put a red
safety tag on it. Wilson reported issues with the scaffolding to Trujillo and
they would discuss those issues “with the stucco guys” in the weekly safety
meeting.
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Reading the testimony in context, it is apparent that although Crane
would at times repair or direct others to repair minor issues, SSI retained
primary responsibility for the inspection and maintenance of the scaffolding.
Despite making broad assertions about retained control, Luna points to no
evidence suggesting that Crane affirmatively directed SSI to do anything
with the scaffolding besides pointing out deficiencies that SSI or NCS needed
to address, or that Crane otherwise interfered with SSI’s ability to maintain
and inspect the scaffolding as they saw fit for the safety of their own
employees. To the contrary, Wilson repeatedly stated that “they were the
professionals” and he would not tell them how to do their jobs.
Nor does Luna point to evidence suggesting that Crane’s additional
oversight or occasional fixing of planks or crossbars that were out of place
affirmatively contributed to Luna’s injury. Luna asserts that inspections of
the scaffolding after the accident revealed deficiencies, including tripping
hazards, such as misplaced and missing planks, and falling hazards, such as
cross bars with broken locks, but these were all items that SSI should have
seen itself in its daily inspections. Luna provides no evidence suggesting that
a Crane employee repaired, or directed someone else to repair, the specific
portion of the scaffolding where Luna fell. Even if Crane had replaced the
crossbar, SSI still had a responsibility to inspect the scaffolding before Luna
used it that day, to ensure that any such repairs were adequate.
Luna relies on McKown and Brown, but neither supports his
contentions. In McKown, the California Supreme Court found there was an
exception to Privette where the hirer, Wal-Mart, requested the contractor use
its forklifts whenever possible, and then provided a defective forklift which
led to McKown’s injury. (McKown, supra, 27 Cal.4th at p. 223.) The key was
that Wal-Mart negligently furnished unsafe equipment. (Ibid.) By contrast
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here, Crane did not provide the scaffolding. Rather, SSI was directly
responsible for obtaining and inspecting its own scaffolding.
In Brown, the court found there was a triable issue of material fact as
to whether the general contractor, Beach House, retained control over
scaffolding “in a manner that affirmatively contributed to plaintiff’s injury.”
(Brown, supra, 85 Cal.App.5th at p. 534.) Beach House contracted directly
with A&D to erect and maintain the scaffolding, but A&D was not on site for
months at a time, and Beach House made no attempt to inspect it or ensure it
was safe for other contractors to use. (Id. at p. 523.) The court explained,
when “a general contractor contracts with a third party to supply equipment
for the use of its subcontractors, the contractor’s potential liability . . . turns
on the extent of the contractor’s delegation.” (Id. at p. 530.) “If the general
contractor fully delegates to the third party the duty to provide safe
equipment, the third party is responsible for any failure to take reasonable
precautions to keep the equipment in a safe condition. But if the general
contractor does not fully delegate the task of providing safe equipment, it
may be liable in tort to an employee.” (Ibid.) Because the contract “did not
clearly set forth who was responsible for inspecting and maintaining the
scaffolding,” there was a triable issue as to delegation. (Id. at p. 532.)
Here, the contract between Crane and SSI clearly stated SSI was to
“inspect and maintain scaffold daily,” and Luna admitted in his discovery
responses that SSI “was required to inspect the scaffold before [he] used it.”
Accordingly, Luna has not established a triable issue of material fact
regarding the extent of Crane’s delegation of the responsibility for inspecting
and maintaining the scaffolding.
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III. DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
KELETY, Acting P. J.
WE CONCUR:
CASTILLO, J.
RUBIN, J.
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