Opinion
F074853
08-20-2018
EDGAR VERDUGO, Plaintiff and Appellant, v. CALIFORNIA RESOURCES ELK HILLS, LLC, Defendant and Respondent.
Law Offices of Ralph B. Wegis, Ralph B. Wegis, Barry E. Rosenberg and Edward Gordon for Plaintiff and Appellant. Hennelly & Grossfeld and Susan J. Williams for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. S-1500-CV-284186)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. David R. Lampe, Judge. Law Offices of Ralph B. Wegis, Ralph B. Wegis, Barry E. Rosenberg and Edward Gordon for Plaintiff and Appellant. Hennelly & Grossfeld and Susan J. Williams for Defendant and Respondent.
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Plaintiff Edgar Verdugo was injured when an explosion occurred at an oil well owned by defendant California Resources Elk Hills, LLC, formerly known as Occidental of Elk Hills, Inc. (CREH). At the time of the accident, Verdugo was working as an employee of Weatherford International (Weatherford), an independent contractor CREH hired to perform certain oil well services at the site. Verdugo subsequently filed this action against CREH seeking to recover tort damages stemming from his personal injuries sustained in the accident. CREH moved for summary judgment on the ground that, pursuant to Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) as applied by SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590 (SeaBright), Verdugo's exclusive remedy was under the workers' compensation system and Verdugo was barred from seeking a damage recovery against CREH as hirer of the independent contractor that employed him. The trial court agreed with CREH's position and granted summary judgment. Verdugo appeals from the resulting judgment, arguing the trial court erred because this case came within one or more recognized exceptions to the Privette rule. We believe the trial court got it right, and accordingly, affirm the judgment.
FACTS AND PROCEDURAL HISTORY
The Accident
At all relevant times, CREH owned and operated an oil well in the Elk Hills oilfield in Kern County, California, identified as well number 357-29R. CREH contracted with Weatherford to perform services on the well, including installing a continuous rod in order to put the well back into production. Weatherford is a global provider of services relating to drilling, evaluation, completion, production and intervention cycles of oil and natural gas wells, and has extensive experience and expertise in the safe provision of continuous rod services.
On August 3, 2013, Verdugo and two other Weatherford employees were attempting to vent the pressure from the well in preparation for installing the continuous rod. Verdugo noticed there were no flowlines connected to the well for venting or bleeding the well's pressure away from the area of the wellhead. Therefore, Verdugo's crew vented or bled-off the well pressure directly at the wellhead itself by using a 2-inch pipe with a nipple facing downward. One of the Weatherford crew members told Verdugo that the well did not want to bleed down, and in response Verdugo told him to close the well. When the crew member started to close the well, there was an explosion. The three Weatherford employees sustained injuries, including burns.
Verdugo's Complaint
On February 20, 2015, Verdugo filed his complaint for damages against CREH in the Kern County Superior Court, setting forth causes of action for (i) negligence, (ii) premises liability, and (iii) strict liability for ultrahazardous activity. The complaint alleged that on August 3, 2013, Verdugo was seriously injured when liquids, gasses and/or vapors being discharged from a 2-inch line at the wellhead suddenly ignited and exploded. The complaint alleged that CREH was negligent for failing to provide safe conditions for venting the well and failing to take steps to minimize the risk of explosion or blow-out. Further, CREH was allegedly negligent as the owner of the well and property for maintaining the well in a condition that was unsafe for venting or bleeding the well's pressure. Finally, the complaint alleged that CREH's operations, including venting of individual oil wells, constituted ultrahazardous activities for which tort liability should attach.
CREH's Motion for Summary Judgment
On April 15, 2016, CREH moved for summary judgment on the ground that, under the undisputed facts, a complete defense existed as to each cause of action in Verdugo's complaint under the California Supreme Court's holding in SeaBright, supra, 52 Cal.4th 590. As more fully explained in the discussion portion of this opinion, in SeaBright the Supreme Court applied the Privette rule where the party hiring the independent contractor had failed to comply with a workplace safety requirement set forth in a statute or regulation. (SeaBright, supra, 52 Cal.4th at p. 594.)
In support of its motion, CREH's separate statement of material facts (separate statement) set forth a series of purportedly undisputed facts. We briefly summarize the main assertions in CREH's separate statement, which were as follows: On August 3, 2013, Verdugo was employed by Weatherford and was assigned by Weatherford to supervise a three-man crew comprised of himself, Albert Mercado and Raul Rosales, for the purpose of performing work on well no. 357-29R, owned by CREH and situated in the Elk Hills oilfield. Specifically, the Weatherford crew was to replace the downhole pump and continuous rod in the wellbore of well no. 357-29R. In order to replace the pump and rod, the crew first had to bleed the pressure out of the wellbore. Verdugo had been trained at Weatherford on the procedure for bleeding down a well, including a method for doing so when there were no flowlines, which method used a 2-inch line with a nipple facing down into the well. On the date of the incident, Verdugo briefly left the site to obtain certain information about the well. The information was not needed for the other crew members to start bleeding the well. Before he left the well site, Verdugo noticed there were no flowlines connected to the well. He did not think it was necessary to stop the work to get flowlines. Verdugo believed it was routine to do the job without flowlines, as had been done in the past. He had previously been present as a Weatherford employee on more than 100 occasions during the venting of oil wells on CREH's property. Prior to the incident, Verdugo never had any indication that the Weatherford method of bleeding wells was dangerous. He did not request any assistance, equipment or alteration of the well. No CREH employee was present at the work location or supervised the work performed by the Weatherford crew. When Verdugo returned to the well site after getting the information he needed, the well was in the process of being bled. Crew member Mercado told Verdugo that the well did not want to bleed down, so Verdugo told him to close the well. When Mercado started to close the well, there was an explosion. Having so described the material facts of the incident, CREH's separate statement summarized the nature of Verdugo's causes of action and the essential allegations of each.
CREH's separate statement then recited portions of the agreement between CREH and Weatherford, including the Master Service Agreement and the various safety policies and handbooks referenced and incorporated therein. For example, section 11.1 of the Master Service Agreement provided, in relevant part: "Contractor represents and warrants that it will fully comply with all Government Regulations ... as well as Company's security, health, environment, and safety policies and procedures, applicable to Contractor's performance of this Agreement ...." One of the incorporated safety standards mandated as follows: "Contractors shall take necessary measures to ensure the safety of all persons on the work site. Contractors shall comply with ... all applicable federal, state, and local regulatory laws in order to help prevent injury to personnel and damage to property or the environment." Another safety policy required contractors such as Weatherford to "utilize, install, control and maintain in good and safe working condition: all equipment and materials, located at or near the work site, needed for the protection and safety of the environment and all personnel, including equipment and materials for remediation, fire and gas (toxic and flammable) detection, fire fighting, blowout prevention, well control, first aid, rescue, evacuation, etc." Further, "the Contractor shall be responsible for all aspects" of health, environmental and safety standards applicable to the work or involving the contractor's personnel, and must ensure that its personnel are trained in their craft and in safety requirements.
CREH's separate statement also specified that Weatherford had operated continuous rod (also referred to as Co-Rod) rigs worldwide, and Weatherford had extensive experience and expertise in the proper and safe use of such rigs, including any oil well work preparatory to use of a continuous rod rig such as oil well venting to remove wellbore pressure. Finally, based on the Master Services Agreement and incorporated safety policies and standards, CREH's separate statement asserted that "Weatherford was responsible for ensuring that each of its COROD crews, including the COROD crew present at the time of the accident of August 3, 2013, conduct such crew's work in a safe manner, including recognizing and abating all potential well hazards present or which might be present during such crew's work, and to stop work if necessary for the safety of any person."
Based on the above facts, CREH argued it was entitled to judgment as a matter of law under Privette, supra, 5 Cal.4th 689 and SeaBright, supra, 52 Cal.4th 590, because, in accordance with those cases, (i) the tort duties involved in performing the oil well contract safely had been delegated to Weatherford and (ii) Verdugo's exclusive remedy was under worker's compensation law.
Verdugo's Opposition to the Motion for Summary Judgment
Verdugo's opposition argued that the well's lack of any flowlines, otherwise known as inter-connect lines (ICL), created a dangerous condition that constituted a violation of CREH's duty of care under Public Resources Code section 3219, which provision allegedly imposed a nondelegable duty on CREH as the owner or operator of the oil well. Section 3219 states: "Any person engaged in operating any oil or gas well wherein high pressure gas is known to exist, and any person drilling for oil or gas in any district where the pressure of oil or gas is unknown shall equip the well with casings of sufficient strength, and with such other safety devices as may be necessary, in accordance with methods approved by the supervisor, and shall use every effort and endeavor effectually to prevent blowouts, explosions, and fires." As noted by Verdugo, an exception to the Privette rule may be shown where a safety statute or regulation imposes a nondelegable duty. (See, SeaBright, supra, 52 Cal.4th at pp. 594, fn. 1, 600-601; Vargas v. FMI, Inc. (2015) 233 Cal.App.4th 638, 649 (Vargas).) By and large, Verdugo's opposition to the motion for summary judgment argued that CREH's factual showing was irrelevant to the issue of its liability because, allegedly, section 3219 created a nondelegable statutory duty to attach flowlines to the well as a safety device. Verdugo further argued that the breach of said duty affirmatively contributed to his injury.
Unless otherwise indicated, all further statutory references are to the Public Resources Code.
Verdugo's evidence in opposition to the motion included a report by the California Department of Conservation, Division of Oil, Gas, and Geothermal Resources (DOGGR). The DOGGR report described the accident as follows: "On August 3, 2013, three Weatherford employees were on site at [CREH's] well 357-29R preparing to run a continuous rod into the well to put the well back on production. While venting gas through a 2" pipe on the wellhead to release built up wellhead pressure, the gas ignited burning the 3 Weatherford employees on site." After summarizing pertinent facts, the DOGGR report concluded: "It is this Division's opinion that this incident could have been prevented if the well had been blown down through a hard line [a flowline] extended a safe distance from the wellhead, down wind and away from ignition sources."
Furthermore, Verdugo's expert, Robert Schaaf, stated the following in his declaration: "Inter connecting lines (ICL) are a safety device necessary to prevent explosions and fires. ICL include blow down lines, hard lines and other terms to denote lines which permit combustible gasses and fluids to be carried away from the wellhead. [¶] [CREH] should have equipped well 357-29R with ICL before directing any contractor to do work which required venting the well. [CREH] provided Weatherford with unsafe equipment by scheduling Verdugo's crew to go to Well No. 357-29R when the ICL had not been reconnected. With the exception of particularly low pressure wells, which was not the one at issue, it is the standard of care to utilize ICL with a portable tank ... to vent a well .... [CREH], therefore, breached the standard of care and created a very dangerous condition by allowing Weatherford to proceed with unsafe equipment." Further, Schaaf opined: "This incident could have been prevented if [CREH] had provided well 357-29R with ICL extended a safe distance from the well head."
Other evidence showed that CREH generally did not use ICL to vent gas on wells, for environmental reasons. CREH had previously paid another contractor, by the name of Brinderson, to disconnect the ICL or flowlines from the oil well where the accident occurred.
In summary, the main thrust of Verdugo's opposition to the summary judgment motion was that CREH had a nondelegable statutory duty under section 3219 to equip the well with a flowline or ICL, and by virtue thereof and the retained control over safety implied by such a nondelegable responsibility, the Privette and SeaBright cases did not preclude liability against CREH for its failure to provide flowlines or ICL at the well.
The Trial Court's Ruling
The motion for summary judgment was heard on August 4, 2016. Following oral argument, the trial court took the matter under submission. On September 23, 2016, the trial court issued its ruling granting the motion for summary judgment, explaining: "Defendant carried its burden of proof that it had lawfully delegated its tort duty to Plaintiff's employer [Weatherford] by contract, within the authority of SeaBright Ins. Co. v. U.S. Airways, Inc. (2011) 52 Cal.4th 590. Plaintiff did not raise a triable issue of fact by demonstrating through admissible evidence that an applicable exception to the Privette doctrine applied." The trial court also sustained several of CREH's evidentiary objections, including to Schaaf's declaration.
The ruling was issued in the format of a minute order; it was subsequently attached and incorporated by reference into the trial court's formal written order filed on October 5, 2016.
In elaborating on the legal basis for its ruling, the trial court first summarized the Privette doctrine: "The general rule ... is that when the hirer of an independent contractor delegates control over a work to a contractor, the hirer also delegates responsibility for performing the task safely. Therefore, an employee of a hired independent contractor who suffers injury resulting from risks inherent in the hired work is limited to worker's compensation and may not recover from the hirer ...." The trial court acknowledged that certain exceptions exist to the Privette rule, including where (i) the hirer maintains control of the work and exercises that control in a manner that affirmatively contributes to the injury, (2) the hirer exposes the injured worker to a concealed hazard, or (3) the duty involved is nondelegable.
The trial court then proceeded to explain more fully why CREH had met its burden, and why Verdugo had failed to show an exception to Privette:
"On August 3, 2013, the Plaintiff, employed by Weatherford, was the supervisor of a Weatherford crew working to replace a pump and rod in one of Defendant's wells. To do that, they had to vent gas from the wellbore. During the venting procedure, gas ignited, and the Plaintiff was burned. On the date of the accident, the moving papers establish that the Defendant had in place an extensive and comprehensive contractual scheme that delegated all safety precautions for the performance of the work to the Plaintiff's employer, Weatherford []. In essence, Weatherford agreed to 'take all necessary measures to ensure the safety of all persons on the worksite' and to comply with all laws and regulations to prevent injury to personnel, property or the environment. Under the Privette rule, this is sufficient under a summary judgment standard to shift the burden to Plaintiff to establish...that there is a triable issue of fact on the question of an exception to Privette.
"Plaintiff's efforts to raise a triable issue of fact hinge critically on the Schaaf declaration. As stated earlier in this ruling, the Schaaf declaration lacks appropriate foundation, and is not admissible. Even though inadmissible, it is instructive regarding Plaintiff's theories, and it would not raise a triable issue of fact even if admitted. The Schaaf declaration posits that due to the absence of flowlines and also 'increased' pressures in the well, there were concealed hazards 'unknown' to Weatherford. However, Plaintiff's response to undisputed fact No. 8 admits that the absence of flow lines was known to the Plaintiff as Weatherford's supervisor, and Plaintiff does not dispute that [he] always checked the well pressure.... Therefore, Plaintiff has not created a triable issue of fact as to the 'concealed hazard' exception to Privette. Likewise, Plaintiff does not dispute that Defendant exercised no control over the work, or provided any assistance or equipment ....
"Plaintiff's opposition to this motion as framed depends entirely upon the legal question of whether Defendant has a nondelegable duty as an exception to Privette. Plaintiff argues under Public Resources Code section 3219, the Defendant had a nondelegable statutory duty as a well operator to equip the instant well with safety devices as may be necessary to prevent blowouts, explosions, or fires. If true, the Plaintiff argues, then Defendant has not met its burden ... and the motion should be denied. This brings the matter squarely within the reasoning
of SeaBright ....
"In SeaBright, the Supreme Court explained that unless the relevant statutes or regulations provide otherwise, a hirer is presumed to have delegated to an independent contractor any tort law duty it owes to the contractor's employees to ensure the safety of the workplace that is the subject of the contract.... Here Pubic Resources Code section 3219 in no way proscribes delegation. Therefore, there is no legal barrier for Defendant to assign and delegate all tort duty to Weatherford. The Privette doctrine applies."
The trial court's order went on to explain that Privette was also fully applicable to claims based on ultrahazardous activities, and therefore the third cause of action of Verdugo's complaint did not present an exception to the general rule. Based on the order granting summary judgment, the trial court entered a judgment in CREH's favor on October 5, 2016. Verdugo's notice of appeal followed.
DISCUSSION
I. Standard of Review
Summary judgment is appropriate when all of the papers submitted show there is no triable issue of material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 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.) On appeal, we independently evaluate the correctness of the trial court's ruling, applying the same legal standard as the trial court. (Havstad v. Fidelity National Title Ins. Co. (1997) 58 Cal.App.4th 654, 658.) That is, our task is to independently determine whether an issue of material fact exists and whether the moving party is entitled to judgment as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) To the extent our determination requires the interpretation or application of a statute, that question of law is likewise reviewed de novo. (Ramon v. County of Santa Clara (2009) 173 Cal.App.4th 915, 920.) II. Overview of Privette Rule A. Privette v . Superior Court
According to the rule announced by the California Supreme Court in the 1993 Privette case, an employee of an independent contractor generally may not sue the contractor's hirer for work-related injuries; instead, the injured employee is limited to workers' compensation remedies against his own employer, the independent contractor. (Privette, supra, 5 Cal.4th at p. 702; see Khosh v. Staples Construction Company, Inc. (2016) 4 Cal.App.5th 712, 717 (Khosh) [summarizing Privette rule].) In reaching this conclusion in Privette, the Supreme Court began by explaining the legal and historical background to its decision: "At common law, 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. [Citations.] Central to this rule of nonliability was the recognition that a person who hired an independent contractor had 'no right of control as to the mode of doing the work contracted for.' " (Privette, supra, 5 Cal.4th at p. 693.) The court explained that, over time, the "peculiar risk" doctrine was recognized as an exception to the rule of nonliability. The peculiar risk doctrine allowed lawsuits against those who hired independent contractors to perform work that was inherently dangerous or that was likely to create a peculiar risk of physical harm to others unless special precautions were taken. (Id. at pp. 693-695.)
In its original form, the peculiar risk doctrine only permitted lawsuits by neighbors or innocent bystanders, not injured employees of the independent contractor hired to do the work. Gradually, however, the peculiar risk doctrine was expanded by the courts to allow the hired contractor's employees to seek recovery from the hirer. (Privette, supra, 5 Cal.4th at p. 696.) With the advent of this exception (along with other exceptions) to the general rule of hirer nonliability, the rule "came to be important primarily as a preamble to the catalog of its exceptions." (Id. at p. 693.) The Supreme Court in Privette reversed that trend, disapproving prior case law after considering the impact of the worker's compensation bargain on the issue of hirer liability for injuries sustained by employees of independent contractors. (Id. at p. 702.) Among other things, Privette explained that permitting employees of the independent contractor to recover damages from the hirer of the independent contractor would give those employees an unwarranted windfall other employees would not have, and would effectively exempt a single class of employees - those who work for independent contractors - from the statutory limits of workers' compensation. (Id. at p. 700.) Based on these and other considerations, Privette held as follows: "When, as here, the injuries resulting from an independent contractor's performance of inherently dangerous work are to an employee of the contractor, and thus subject to worker's compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries." (Id. at p. 702.)
It was also noted that to impose vicarious liability for tort damages on a person who hires an independent contractor for specialized work would penalize those individuals who hire experts to perform dangerous work rather than assigning such activity to their own inexperienced employees. (Privette, supra, 5 Cal.4th at p. 700.)
In subsequent cases, the Supreme Court applied the Privette rule in a number of different settings. (See, e.g., Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253; Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235; Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518.) For purposes of the present appeal, the most important case applying and elucidating the Privette rule was SeaBright, supra, 52 Cal.4th 590, which we discuss at length below. B. SeaBright Ins . Co. v. US Airways, Inc.
In SeaBright, supra, 52 Cal.4th 590, the Supreme Court addressed the issue of whether the Privette rule applied where the hirer of an independent contractor was subject to certain statutory or regulatory workplace safety requirements, and the injury to the independent contractor's employee was allegedly caused by the hirer's failure to comply with those requirements. (SeaBright, supra, 52 Cal.4th at p. 594.) The pertinent facts were that (i) the defendant airline hired an independent contractor to maintain and repair its baggage conveyor; (ii) Cal-OSHA regulations (i.e., Lab. Code, § 6300 et seq. [Cal. Occupational Safety & Health Act of 1973 (Cal-OSHA)]; Cal. Code Regs, tit. 8, §§ 3999, 4002) required safety guards to be installed on the baggage conveyor; (iii) no safety guards were present; and (iv) after the defendant airline hired the independent contractor, an employee of the independent contractor was injured in a manner that allegedly would have been prevented by safety guards. (SeaBright, supra, 52 Cal.4th at p. 595.) The SeaBright court held the Privette rule applied in such circumstances. (SeaBright, supra, 52 Cal.4th at p. 594.)
In so holding, the Supreme Court noted at the outset: "Not present here is a situation in which the relevant statutes or regulations indicate an intent to limit the application of Privette, supra, 5 Cal.4th 689, or preclude delegation of the tort law duty, if any, that the hirer owes to the contractor's employees." (SeaBright, supra, 52 Cal.4th at p. 594, fn. 1.)
In reaching that conclusion, the Supreme Court in SeaBright relied on the principle that the hirer of an independent contractor presumptively delegates to the independent contractor any tort law duty the hirer owes to the independent contractor's employees regarding workplace safety for purposes of the subject matter of the contract. As the SeaBright opinion expressed it: "By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor's employees to ensure the safety of the specific workplace that is the subject of the contract. That implicit delegation includes any tort law duty the hirer owes to the contractor's employees to comply with applicable statutory or regulatory safety requirements." (SeaBright, supra, 52 Cal.4th at p. 594; see also, p. 600 ["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"].) Applying that delegation principle to the case before it, SeaBright held as follows: "When in this case defendant US Airways hired independent contractor Aubry to maintain and repair the conveyor, US Airways presumptively delegated to Aubry any tort law duty of care the airline had under Cal-OSHA and its regulations to ensure workplace safety for the benefit of Aubry's employees. The delegation - which, as noted on page 600, ante, is implied as an incident of an independent contractor's hiring - included a duty to identify the absence of the safety guards required by Cal-OSHA regulations and to take reasonable steps to address that hazard." (Id. at p. 601.) Accordingly, the court concluded that the plaintiffs in that case "cannot recover in tort from defendant US Airways on a theory that employee Verdon's workplace injury resulted from defendant's breach of what [the] plaintiffs describe as a nondelegable duty under Cal-OSHA regulations to provide safety guards on the conveyor." (Id. at p. 603.)
In the course of its discussion, the Supreme Court in SeaBright rejected the argument that the Cal-OSHA regulations in question created a nondelegable duty. (SeaBright, supra, 52 Cal.4th at pp. 600-601.) The court noted that "[t]he nondelegable duties doctrine prevents a party that owes a duty to others from evading responsibility by claiming to have delegated that duty to an independent contractor hired to do the necessary work. The doctrine applies when the duty preexists and does not arise from the contract with the independent contractor." (Ibid.) The court found there was no preexisting duty to the employees of the independent contractor regarding workplace safety in regard to the subject matter of the contract, and therefore the nondelegable duties doctrine did not apply. (Id. at p. 603.)
In so holding, the high court noted the distinction drawn by the Court of Appeal between safety requirements that arise from the work performed by the independent contractor and those that predate the contractor's hiring and apply to the hirer by virtue of its role as property owner. The Court of Appeal had viewed the latter requirements as nondelegable. The Supreme Court acknowledged the distinction, but found the Court of Appeal had not applied it correctly (SeaBright, supra, 52 Cal.4th at p. 602), explaining as follows: "Before hiring independent contractor Aubry, defendant US Airways owed its own employees a duty to provide a safe workplace. We do not suggest that defendant could delegate that preexisting duty to Aubry (such that defendant could avoid liability if the conveyor had injured defendant's own employee). But ... [because] the employees of an independent contractor like Aubry are not considered to be the hirer's own employees, ... the issue here is whether defendant US Airways implicitly delegated to contractor Aubry the tort law duty, if any, that it had to ensure workplace safety for Aubry's employees. The latter duty did not predate defendant's contract with Aubry; rather, it arose out of the contract. Any tort law duty US Airways owed to Aubry's employees only existed because of the work (maintenance and repair of conveyor) that Aubry was performing for the airline, and therefore it did not fall within the nondelegable duties doctrine." (Id. at p. 603.)
Further, in concluding that the Cal-OSHA requirements did not create a nondelegable duty, the Supreme Court in SeaBright emphasized the "policy favoring 'delegation of responsibility and assignment of liability' is very 'strong in this context.' " (SeaBright, supra, 52 Cal.4th at p. 602.) The court articulated some of the reasons for the strong policy favoring delegation: "The policy favoring delegation in this case is bolstered by the same factors we considered persuasive in Privette, supra, 5 Cal.4th 689. Privette noted that the cost of workers' compensation insurance for an independent contractor's employees is presumably included in the contract price the hirer pays to the contractor, and therefore the hirer indirectly pays for that insurance. [Citation.] Privette further noted that workers' compensation guarantees compensation for injured workers, 'spreads the risk created by the performance of dangerous work to those who ... benefit from such work,' and 'encourages industrial safety.' [Citation.] Also, in light of the limitation that the workers' compensation law places on the independent contractor's liability (shielding the latter from tort liability), it would be unfair to permit the injured employee to obtain full tort damages from the hirer of the independent contractor - damages that would be unavailable to employees who did not happen to work for a hired contractor. This inequity would be even greater when, as is true here, the independent contractor had sole control over the means of performing the work. [Citation.] In sum, we see no reason to limit our holding in Privette simply because the tort law duty, if any, that the hirer owes happens to be one based on a statute or regulation." (Id. at p. 603.) C. Exceptions to Privette Rule
There are recognized exceptions to the Privette rule. One exception would allow an action in tort against the hirer of an independent contractor if the hirer retained control over the work and exercised that control negligently so as to affirmatively contribute to the worker's injury. (Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, 210, 215 (Hooker).) An example of this form of hirer liability was shown where the hirer negligently furnished defective or unsafe equipment to an independent contractor, resulting in injury to the independent contractor's employee. (McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 225 (McKown) [defective forklift supplied by hirer Wal-Mart].) Another exception to the Privette rule would allow an action in tort against the hirer of an independent contractor if the hirer was subject to a nondelegable statutory or regulatory duty and breached said nondelegable duty in a manner that affirmatively contributed to the worker's injury. (Khosh, supra, 4 Cal.App.5th at pp. 717, 719-721; Padilla v. Pomona College (2008) 166 Cal.App.4th 661, 673 (Padilla); see Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078, 1087-1091 (Delgadillo) [stating exception, but holding that property owner's regulatory duty to install structural roof anchor to which controlled descent equipment used by window washers could be securely attached was not a nondelegable duty].) A third exception to the Privette rule has been found to exist where the hirer of an independent contractor knew or should have known of a concealed hazardous condition on its property, the contractor did not know and could not have reasonably discovered the same, and the hirer failed to warn the contractor about the concealed hazardous condition. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664 (Kinsman).)
In SeaBright, supra, 52 Cal.4th at p. 601, the Supreme Court noted appellate courts have generally concluded that a hirer's statutory or regulatory duties regarding workplace safety would constitute a form of "retained control if those duties [were] nondelegable[,]" in which case hirer liability would exist if the nondelegable duties were breached in a manner that "affirmatively contributed" (per Hooker test) to the worker's injury.
III. Summary Judgment Properly Granted
A. SeaBright Governs Because the Tort Duty was Delegable
Verdugo argues the trial court erred in granting summary judgment because an exception to the Privette rule was applicable here based on the breach of an allegedly nondelegable duty under section 3219 to provide the well with a flowline as a safety device. CREH responds that the tort duty, if any, was delegable and the trial court correctly found this case to be materially indistinguishable from the Supreme Court's holding in SeaBright. On balance, we agree with CREH.
Here, as in SeaBright, Verdugo was an employee of an independent contractor attempting to recover tort damages from the hirer of the independent contractor based on the hirer's alleged failure to comply with a statutory or regulatory duty to install certain safety equipment at the worksite. In SeaBright, the defendant airline had failed to install a safety guard on the baggage conveyor as specifically required by Cal-OSHA regulations; here, CREH failed to attach a flowline or ICL to the oil well, as allegedly required by section 3219. As was the case in SeaBright, the key issue before us is whether the applicable tort duty arising by virtue of statute or regulation could be delegated by the hirer to the independent contractor. As explained below, we conclude the particular duties involved here were delegable.
The fact that we are not dealing with a Cal-OSHA requirement does not affect our analysis, since SeaBright is not limited to worksite safety duties created by Cal-OSHA. (Delgadillo, supra, 20 Cal.App.5th 1078, 1090-1091 [SeaBright not limited to Cal-OSHA requirements, but would apply to all statutory or regulatory worksite safety requirements, except nondelegable duties].)
1. Analysis of Delegabilty Issue
We begin with a brief caveat. Our decision on the issue of delegability of the relevant tort duty in this case is meant to be a very limited one. We are not attempting to decide, in an all or nothing fashion, that all duties arising from section 3219 are delegable or not delegable. Our decision here is a far narrower one, and is limited to the discrete issue of whether the particular tort duty involved in the present case - namely, the purported tort duty to attach flowlines to the oil well, which Verdugo argues was a reasonable implication of section 3219 - was subject to delegation. Although in resolving that issue herein below we have at times made somewhat broader comments about section 3219, we have done so only to the extent necessary to shed light on the limited issue before us, for we do not have any occasion here to decide broader issues of statutory intent.
In considering the issue of delegability, SeaBright stated that the test was whether "the relevant statutes or regulations indicate an intent to limit the application of Privette, supra, 5 Cal.4th 689, or preclude delegation of the tort law duty, if any, that the hirer owes to the contractor's employees." (SeaBright, supra, 52 Cal.4th 594, fn. 1; see Vargas, supra, 233 Cal.App.4th at p. 662 [the test is whether the statute "indicate[s] an intent to preclude delegation of the tort law duty"].) It was also recognized in SeaBright that a duty is nondelegable when it "preexists and does not arise from the contract with the independent contractor." (Id. at p. 601.) In applying these criteria, SeaBright observed that because any statutory duty owed by the defendant airline to the contractor's employees under the specific Cal-OSHA regulations "existed because of the work (maintenance and repair of the conveyor) that [the contractor] was performing for the airline," the duty to the contractor's employees did not predate the contract but arose out of it, and thus did not fall within the nondelegable duties doctrine. (Id. at p. 603.) As a result, the presumptive rule of delegation applied, and the duties delegated by the airline to the independent contractor regarding worksite safety would include a duty "to identify the absence of the safety guards required by Cal-OSHA regulations and to take reasonable steps to address that hazard." (Id. at p. 601.) Therefore, the Supreme Court held: "plaintiffs cannot recover in tort from defendant US Airways on a theory that employee Verdon's workplace injury resulted from defendant's breach of what plaintiffs describe as a nondelegable duty under Cal-OSHA regulations to provide safety guards on the conveyor." (Id. at p. 603.)
In Vargas, supra, 233 Cal.App.4th 638, the court concluded the relevant duties in that case were nondelegable because the statutory and regulatory provisions at issue prohibited carriers from delegating to independent contractors the responsibility to safely operate vehicles on public highways. (Id. at pp. 654, 662-664.)
Turning to the case before us, it is necessary to consider the statute in question to determine whether the duty or duties created by it were intended to be nondelegable. (Padilla, supra, 166 Cal.App.4th at p. 673.) Section 3219 states: "Any person engaged in operating any oil or gas well wherein high pressure gas is known to exist, and any person drilling for oil or gas in any district where the pressure of oil or gas is unknown shall equip the well with casings of sufficient strength, and with such other safety devices as may be necessary, in accordance with methods approved by the supervisor, and shall use every effort and endeavor effectually to prevent blowouts, explosions, and fires." The present litigation is not about well "casings," but concerns only the remaining portion of the statute, which requires persons "engaged in" operating an oil or gas well and/or persons "drilling for oil or gas" to equip the well with "safety devices as may be necessary," and to "use every effort and endeavor effectually to prevent blowouts, explosions and fires." (§ 3219.) As noted, Verdugo's position is that (i) this wording created a duty to provide the well with flowlines or ICL as a type of safety device, and (ii) said duty was nondelegable.
It is apparent from the statutory language in section 3219 that the duties of providing safety devices and using every effort to avoid blowouts, explosions and fires, are imposed based upon the nature of the work or activities that are being conducted - that is, operating and/or drilling oil and gas wells where there may be a risk of high pressure. In other words, the duties are imposed on those engaged in the specific type of activity described in the statute. Also, there is nothing in the statute fixing such duties on the landowner or owner of the well as such, or suggesting that the duties may never be delegated. Instead, "any person" engaged in the work or activities described in the statute (i.e., operating or drilling under the conditions indicated) would be required to comply with the safety measures specified therein to ensure a safe wellsite where such work would be carried out. (§ 3219; see also § 3009 ["operator" of a well broadly includes "a person who, by virtue of ownership, or under the authority of a lease or any other agreement, has the right to drill, operate, maintain or control a well or production facility"].) (Italics added.) In accordance with the approach taken in SeaBright and other cases, these considerations reflect that the statutory duty at issue may be delegable to an independent contractor. (See, e.g., SeaBright, supra, 52 Cal.4th at p. 603 [where hirer's tort law duty owed to the contractor's employees regarding the need for safety guards on the conveyor arose because of the particular work that contractor was performing, the nondelegable duties doctrine did not apply]; Padilla, supra, 166 Cal.App.4th at p. 673 [regulation pertaining solely to the condition of worksite when specific work was being done did not create nondelegable duty]; Khosh, supra, 4 Cal.App.5th at p. 717 [regulations pertaining to specific high-voltage work being performed created duties that were delegable, distinguishing another case where the regulation was imposed on the property owner as permanent obligation].) Because the language of section 3219 does not evidence an intent to preclude delegation of all duties arising thereunder, and because the statute's work-based description of when the duties would be triggered is consistent with delegation under the case law, we conclude that the trial court correctly held the particular tort duty allegedly arising from the statute (i.e., to attach flowlines to the well) was not subject to the nondelegable duties doctrine.
This contrasts with laws fixing a safety duty upon a person solely due to their status as the owner of a particular type of property. (See Evard v. Southern California Edison (2007) 153 Cal.App.4th 137, 147 [safety regulation placed duty exclusively on owners of billboards, as such, found to be nondelegable]; Barclay v. Jesse M. Lange Distributor, Inc. (2005) 129 Cal.App.4th 281, 300-301 [fire code extinguisher requirement "was triggered by the fact that Lange owned property where flammable liquids were stored for distribution," thus "[t]he duty to supply fire extinguishers was on the owner of the bulk plant"].)
2. Verdugo's Counter-Arguments Unpersuasive
Verdugo offers various arguments in an effort to show that the duty to attach flowlines, which allegedly arose under section 3219, was nondelegable. As discussed below, we find Verdugo's arguments to be ultimately unpersuasive.
Verdugo argues from the nature of the responsibilities set forth in section 3219 that no duty arising thereunder may be delegated. Verdugo notes that section 3219 includes a mandate to equip wells "with casings of sufficient strength, and with such other safety devices ..." and insists that the provision of items such as well casings would logically require an investment of capital and a commitment of resources that an independent contractor would not reasonably be expected to make. Verdugo concludes from this observation that the statute was intended to place all duties arising thereunder solely and permanently upon the owner or operator of the well, with no ability to delegate them to an independent contractor. We disagree with Verdugo's conclusion. While his argument may have plausible appeal with respect to some kinds of safety improvements requiring a capital investment or substantial commitment of resources (i.e., something that only the owner or long-term operator would be able to carry out), the present case involves a purported duty to attach or reconnect a flowline to a well as a safety device, which would appear to be fairly comparable to the duty in SeaBright to attach a safety guard. (SeaBright, supra, 52 Cal.4th at p. 601 [presumptive delegation included the duty to identify the absence of the safety guards required by Cal-OSHA and to take reasonable steps to address that hazard].) Moreover, even if Verdugo is correct that some types of safety responsibilities are of a nature that only the owner or permanent operator would be in a position to carry them out, that is plainly not true of all duties arising under section 3219. Nothing in the record indicates that an independent contractor such as Weatherford would not be fully capable of equipping a well with a flowline or ICL in connection with its performance of contracted well services, or otherwise taking steps to reasonably address that situation.
In light of the strong policy favoring delegation of tort duties (see SeaBright, supra, 52 Cal.4th at pp. 602-603), we believe it would be reasonable to view some duties arising from a statute or statutory scheme as being delegable even if others arguably were not, unless there were some clear indication in the statute that all of the duties were of a nondelegable nature.
Reasonably addressing the situation might include installing a flowline as a means of venting the well as a necessary part of the contracted work, or requesting that CREH provide or reconnect flowlines or ICL to the well.
Verdugo also argues that section 3219's requirement that any person engaged in operating or drilling an oil well use "every effort" to prevent blowouts, explosions or fires is inconsistent with the delegation of that duty to an independent contractor. We disagree. We fail to see how a duty to devote a high level of effort toward safety creates an obligation that could not itself be delegated to a well-qualified independent contractor in performing particular work. As SeaBright explained, the delegation implicit in the independent contractor relationship normally includes "any tort law duty the hirer owes to the contractor's employees to comply with applicable statutory or regulatory safety requirements." (SeaBright, supra, 52 Cal.4th at p. 594, italics added.)
In a similar vein, Verdugo argues that because many of the provisions in the larger statutory scheme of which section 3219 is a part impose duties on the operator and/or owner of oil wells (see, e.g., § 3203 [operator must file a written notice of intent to commence drilling]; § 3204 [operator must post an indemnity bond prior to engaging in drilling]; §§ 3210-3211 [owner or operator required to keep a log of the history of the drilling of the well]; § 3227 [owner required to file monthly production reports]), the Legislature must have intended that all duties specified in the entire statutory scheme are nondelegable. Again, we disagree. Even acknowledging that many statutory provisions within chapter 1 of division 3 of the Public Resources Code impose responsibilities that, by their nature, or else by the terms of the specific provisions themselves, could only be carried out directly by the owner or long-term operator, that does not require that the same be true of section 3219 or that the Legislature intended to preclude any delegation of safety duties arising under section 3219.
The statutory scheme is found in chapter 1 of division 3 of the Public Resources Code.
Finally, Verdugo argues that prior case law has held that all duties embodied in or derived from section 3219 are nondelegable. On that point, he specifically relies on CAZA Drilling (California), Inc. v. TEG Oil & Gas U.S.A., Inc. (2006) 142 Cal.App.4th 453 (CAZA). However, contrary to Verdugo's suggestion, that case did not address the question of whether statutory duties were delegable. The dispositive issue in CAZA was the enforceability of a contractual limitation of liability. In CAZA, an oil field operator entered into a "Daywork Drilling Contract" with a drilling contractor on a daywork basis. (Id. at p. 457.) The contract defined "daywork basis" to mean that that the contractor would provide services for a specified sum per day " 'under the direction, supervision and control of Operator.' " (Id. at p. 458.) The contract further provided that except for certain liabilities specifically assumed by the contractor, the operator would be solely responsible for all financial consequences of the operations conducted by both parties. (Id. at p. 466.) After a blowout occurred causing various damages, the operator filed a cross-complaint against the contractor arguing that the contractual limitation of the contractor's liability was invalid under Civil Code section 1668. The trial court disagreed and granted the contractor's motion for summary judgment against the cross-complainant. (Id. at p. 464.) On appeal, the Court of Appeal affirmed, holding as follows: "[W]e conclude that the challenged provisions in the 2002 Daywork Drilling Contract represent a valid limitation on liability rather than an improper attempt to exempt a contracting party from responsibility for violation of law within the meaning of [Civil Code] section 1668." (Id. at p. 475.)
Important to the appellate court's analysis in CAZA was the fact that no showing had been made that the contractor may have violated a specific statutory provision so as to potentially trigger application of Civil Code section 1668. (CAZA, supra, 142 Cal.App.4th at p. 476.) In that regard, the court rejected the argument that the contractor in that case potentially violated section 3219. (Id. at p. 477.) The sole issue concerning section 3219 was whether that particular contractor, as a limited daywork driller acting under the operator's retained control, was required to comply with section 3219 in the first instance. The court did not address or consider the issue of whether duties arising under section 3219 may potentially be delegated, much less whether they were delegated in that case. In resolving the narrow issue before it, CAZA found that "[i]t would be stretching the definition of 'operator' to include a company performing drilling work by the day." (Id. at p. 477.) Thus, section 3219 was not potentially violated by the contractor. (Id.) The court explained that its conclusion was confirmed by the overall statutory scheme in the Public Resources Code that placed certain responsibilities on the "operator" of oil wells, and the nature of such responsibilities indicated an "operator" possessed much greater authority, control and responsibility for well operations than the daywork driller did in that case, since the specified responsibilities entailed matters that a limited daywork driller would not reasonably be expected to fulfill. (Id. at pp. 477-478.) In that regard, CAZA quoted with approval the following excerpt from Wells Fargo Bank v. Goldzband (1997) 53 Cal.App.4th 596, 605-606 (Wells Fargo): " 'It would be illogical to impose upon someone who has no authority or responsibility for a well the duty to: file a notice of intent to drill (§ 3203); post an indemnity bond prior to engaging in drilling (§ 3204); maintain a log of drilling operations (§ 3211); employ specific safety devices on wells and drilling techniques (§§ 3219, 3220); file monthly production reports (§ 3227); or abandon a well in accordance with the instructions of the Division (§§ 3288, 3229, 3230, and 3232.)' " (CAZA, supra, 142 Cal.App.4th at p. 477.) For these reasons, CAZA found that the daywork contractor in that case did not come within the scope of the statutory language of section 3219. (Id. at pp. 477-478.)
The Wells Fargo case addressed the issue of whether the holder of a mineral interest may be responsible for plugging and abandoning wells pursuant to section 3251 and other provisions, in the absence of other responsible parties. (Wells Fargo, supra, 53 Cal.App.4th at pp. 604-619.) The case did not consider section 3219 or the issue of whether duties arising under section 3219 may be delegated.
For purposes of the matter before us, the bottom line is that CAZA addressed only the question of whether the contractor in that case came within the reach of section 3219 in the first instance. CAZA did not involve the issue of an owner or operator delegating safety duties concerning the worksite to an independent contractor who would have control over the mode and manner of the work. Moreover, nothing in that decision addressed or decided the issue of whether duties arising under section 3219 may potentially be delegated to such an independent contractor. Therefore, we reject Verdugo's argument that CAZA established that section 3219 duties may not be delegated. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 ["Language used in any opinion is of course to be understood in the light of the facts and the issue then before the court, and an opinion is not authority for a proposition not therein considered"].)
In the final analysis, Verdugo has failed to present a persuasive argument that the duty at issue in the present case (i.e., to provide flowlines), which allegedly was premised on section 3219, could not be delegated. We conclude based on SeaBright that said duty was presumptively and effectively delegated to Weatherford as an incident of the independent contractor relationship. Furthermore, the evidence in support of the motion for summary judgment clearly evidenced the parties' contractual intent and understanding that CREH was delegating to Weatherford all responsibility to perform the work in a safe manner including using safety equipment and following all applicable safety laws. For these reasons, we conclude that CREH as moving party met its burden of showing the absence of a triable issue of fact and entitlement to summary judgment as a matter of law. B. Verdugo Failed to Show Retained Control Exception to Privette Rule
Verdugo contends for the first time on appeal that duties arising under section 3219 should be deemed nondelegable because well owners or operators must receive a permit to drill and drilling operations are a regulated activity. In Vargas, supra, 233 Cal.App.4th 638, it was recognized that safety duties imposed by law on highly-regulated common carriers operating under a public franchise on public highways were nondelegable. (Id. at pp. 650, 652-654.) We disregard Verdugo's cursory contention that CREH's activities are on par with a highly-regulated common carrier granted a public franchise because it was not raised in the trial court, and because the contention is factually and legally undeveloped, inadequately supported and presented in a perfunctory manner. (See Tilbury Constructors, Inc. v. State Comp. Ins. Fund (2006) 137 Cal.App.4th 466, 482 [perfunctory argument, without adequate legal analysis, treated as waived]; Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1381 [failure to raise an issue or argument in trial court waives the point on appeal].)
To establish liability under the retained control exception to the Privette rule, it is necessary to show that the hirer of the independent contractor retained control over the worksite and that such control was exercised by the hirer in a manner that affirmatively contributed to the injury. (Hooker, supra, 27 Cal.4th at pp. 210, 215; SeaBright, supra, 52 Cal.4th at p. 595.) Verdugo argues a triable issue of fact existed regarding retained control. We disagree.
As the Supreme Court explained in Hooker: "We are not persuaded that Caltrans, by permitting traffic to use the overpass while the crane was being operated, affirmatively contributed to Mr. Hooker's death. [...¶] [U]nder the standard we announce today, summary judgment was appropriate here. Plaintiff raised triable issues of material fact as to whether defendant retained control over safety conditions at the worksite. However, plaintiff failed to raise triable issues of material fact as to whether defendant actually exercised the retained control so as to affirmatively contribute to the death of plaintiff's husband.... 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, supra, 27 Cal.4th at p. 215.) The Hooker "affirmative contribution" test has been summarized as follows: "[A]n affirmative contribution to injury occurs '[w]hen the [hirer] directs that work be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work.... [Citations.] By contrast, 'passively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution.' " (Delgadillo, supra, 20 Cal.App.5th at p. 1092, see Hooker, supra, 27 Cal.4th at pp. 214-215; Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 641 (Alvarez); Khosh, supra, 4 Cal.App.5th at p. 718.) For a worker to recover on a retained control theory, the hirer must engage in some "active participation" concerning the mode or method of performing the work which affirmatively contributes to the injury. (Alvarez, supra, 13 Cal.App.5th at p. 641; Khosh, supra, 4 Cal.App.5th at p. 718.) A hirer's failure to correct an unsafe condition, by itself, does not establish an affirmative contribution. (Khosh, supra, 4 Cal.App.5th at p. 718.)
Here, as the trial court correctly ruled, there was no evidence sufficient to raise a triable issue of fact that CREH, as the hirer of Weatherford, retained control over the means or method of the contracted work, much less that any such retained control was actually exercised in a manner that affirmatively contributed to Verdugo's injury. It was undisputed that none of CREH's personnel were present when Weatherford was performing the work prior to or on the date of the incident, and no Weatherford employees requested any assistance of any kind, any equipment, or any alteration of the well. These undisputed facts were consistent with the clear terms of the parties' contractual relationship giving CREH "no power or authority to direct, supervise, or control" Weatherford's employees and giving to Weatherford control over "the means, manner and method" of performing the work. Furthermore, as the trial court correctly observed based on CREH's evidentiary showing, on the date of the accident "[CREH] had in place an extensive and comprehensive contractual scheme that delegated all safety precautions for the performance of the work to [Verdugo's] employer, Weatherford []. In essence, Weatherford agreed to 'take all necessary measures to ensure the safety of all persons on the worksite' and to comply with all laws and regulations to prevent injury to personnel, property or the environment."
Despite the lack of evidence of any actual retention of control here, Verdugo argues, based on a footnote in Hooker, that retained control liability may be premised on an omission where a hirer promises to undertake a particular safety measure and its failure to do so leads to the worker's injury. (Hooker, supra, 27 Cal.4th at p. 212, fn. 3.) Here, however, there was no evidence of any specific promise or other contemplated undertaking of a safety measure. Neither section 3219 nor the parties' contractual documents specified a particular safety measure that CREH was required to undertake. Further, as CREH correctly points out, there was no evidence to suggest that Verdugo was relying on a particular promise of a safety measure being performed by CREH or that it refused a request of any kind. To the contrary, it was undisputed that Weatherford's employees did not ask CREH for assistance, equipment or any alteration of the well prior to the incident. Also, the fact that Verdugo did not rely on any promise to provide flowlines was further confirmed by the fact he knew there were no flowlines at the well and did not think it was necessary to stop the work without flowlines. Lacking evidence of a specific promise or other circumstances demonstrating that Verdugo was relying on CREH's provision of a specific safety measure, it is clear that Verdugo has failed to establish a triable issue of fact that CREH affirmatively contributed to his injury under this theory. (Khosh, supra, 4 Cal.App.5th at pp. 718-719 [no liability where hirer did not make a specific promise or refuse a request for a safety measure]; Michael v. Denbeste Transportation, Inc. (2006) 137 Cal.App.4th 1082, 1096.)
Finally, contrary to Verdugo's additional suggestion, liability under Hooker cannot be established merely because CREH hired and scheduled Weatherford to perform the work at a time when the flowlines were not attached or reconnected. (Brannan v. Lathrop Construction Associates, Inc. (2012) 206 Cal.App.4th 1170, 1178-1180 [scheduling and sequencing of work is not an adequate basis for demonstrating retained control over worksite safety, absent a promise that scheduling would be done in a manner to guarantee safety conditions].) C. No Other Exceptions to Privette Rule Shown
Verdugo argues that a triable issue of fact existed whether CREH was liable under McKown, supra, 27 Cal.4th 219, a retained control case involving the hirer's affirmative act of providing faulty equipment that caused injury. In McKown, the hirer, Wal-Mart, had requested that the contractor use one of Wal-Mart's own forklifts in performing the contracted work of installing speakers in the store ceiling. The forklift provided by Wal-Mart was missing one of the chains that would be used to secure the forklift platform when extended. After the forklift platform hit a ceiling pipe during the work, the platform disengaged and fell about 12 to 15 feet with McKown on it. (Id. at p. 223.) The Supreme Court in McKown held that hirer liability existed under the rule announced in Hooker, explaining as follows: "In Hooker, we held that a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries. Imposing tort liability on a hirer of an independent contractor when the hirer's conduct has affirmatively contributed to the injuries of the contractor's employee is consistent with the rationale of our decisions in Privette, Toland and Camargo, because the liability of the hirer in such a case is not in essence vicarious or derivative in the sense that it derives from the act or omission of the hired contractor. 'To the contrary, the liability of the hirer in such a case is direct in a much stronger sense of that term.' [Citation.] [¶] For the same reason, when a hirer of an independent contractor, by negligently furnishing unsafe equipment to the contractor, affirmatively contributes to the injury of an employee of the contractor, the hirer should be liable to the employee for the consequences of the hirer's own negligence." (McKown, supra, 27 Cal.4th at p. 225.)
Verdugo is mistaken that potential liability exists in this case under McKown, supra, 27 Cal.4th 219. Unlike the situation in McKown, here CREH did not affirmatively contribute to the injury by intervening into the method or mode of performing the work by actively requesting use of its own equipment and then furnishing defective equipment to Weatherford. Instead, CREH's failure, if any, was in the form of an omission to act, which is inadequate to create liability under McKown. (Delgadillo, supra, 20 Cal.App.5th at p. 1093 [so holding].)
Nor was any exception to the Privette rule shown under Kinsman, supra, 37 Cal.4th 659. As the trial court correctly ruled, no concealed hazard liability existed here because the undisputed facts showed that Verdugo was aware of the lack of flowlines and the pressure of the oil well at the time the work was performed.
Based on the foregoing, we conclude that CREH's moving papers showed it was entitled to summary judgment under the Privette rule, and Verdugo failed to set forth evidence sufficient to establish a triable issue of material fact that an exception to Privette potentially applied.
IV. Evidentiary Issues
Verdugo argues that the trial court erred in sustaining objections to certain evidence he offered in opposition to the motion. The parties disagree as to the appropriate standard of review. In Reid v. Google, Inc. (2010) 50 Cal.4th 512, the Supreme Court concluded that a trial court's failure to expressly rule on a party's evidentiary objection at the summary judgment hearing did not waive those objections on appeal. (Id. at pp. 516-517.) In the course of the discussion, the Supreme Court briefly considered an argument of whether, as a general rule, evidentiary rulings in summary judgment proceedings should be reviewed de novo. (Id. at p. 535.) For various reasons, the Supreme Court decided that it was unnecessary to reach the issue: "[W]e need not decide generally whether a trial court's rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo." (Ibid.) This statement by the high court has caused some uncertainty in the appellate courts as to the correct standard of review. (See In re Automobile Antitrust Cases (2016) 1 Cal.App.5th 127, 141 [describing the issue as unsettled]). Nevertheless, as one Court of Appeal recently observed, "the weight of authority, both before and after Reid, holds that an appellate court applies an abuse of discretion standard under these circumstances." (Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 226 (Alexander) [cases listed].) The same court further explained: "De novo review is proper where evidentiary objections raise questions of law, such as whether or not a statement is hearsay. [Citations.] In contrast, evidentiary objections based on lack of foundation, qualification of experts, and conclusory and speculative testimony are traditionally left to the sound discretion of the trial court. These are the types of evidentiary objections at issue in this case, and thus, we apply an abuse of discretion standard of review." (Ibid.)
Since the abuse of discretion standard continues to be generally accepted as the correct test, we will apply that standard of review unless the particular issue appears, in context, to be one of law. In any event, we note that the outcome here would be the same under either standard. Moreover, regardless of the standard of review, certain tenets apply to appellate review of the propriety of evidentiary objections: "[T]he erroneous exclusion of evidence by the trial court is not grounds for reversal unless we also determine that the error was prejudicial." (In re Automobile Antitrust Cases, supra, 1 Cal.App.5th at p. 141; see Evid. Code, § 354, subd. (a); see also, Cal. Const., art. VI, § 13.) Thus, the party challenging the evidentiary ruling "must demonstrate that, absent the error, 'a different result would have been probable.' " (In re Automobile Antitrust Cases, supra, 1 Cal.App.5th at p. 142.) A. The Schaff Declaration
In opposing summary judgment, Verdugo submitted the declaration of his expert, Robert Schaaf. In the declaration, Schaaf outlines his expertise and experience and then abruptly jumps to conclusions about the well, including his opinion that CREH's failure to reconnect an ICL to the well created the existence of a dangerous condition and/or unsafe equipment, violating the standard of care. Schaaf further opined that because of the absence of ICL, and the presence of increased well pressure, the well constituted a concealed hazard. CREH objected to the declaration on the ground that it lacked adequate foundation, including because the witness did not state what, if any, source documents or other information he reviewed in order to arrive at the opinions and conclusions set forth in the declaration. CREH's objection noted the types of foundational information that were lacking: "[T]he witness cites no foundational source of information concerning the design, construction and components of Well No. 357-29R; the non-operational state and condition of the well at the time of the Weatherford crew's work on August 3, 2013; the specific work performed by the Weatherford crew and the facts surrounding the subject fire; the respective roles of Weatherford and [CREH] and allocation of responsibilities between the companies; Weatherford's and [Verdugo's] extensive experience venting wells during Co-Rod jobs, without vent lines or other lines; information concerning the relative knowledge and expertise of Weatherford versus [CREH] as regards Co-Rod operations and well venting, among other relevant issues."
Two days before the hearing date on the motion, Verdugo filed a supplemental Schaaf declaration which stated that "in addition[] to my training and experience, in reaching my opinions in my prior declaration, I reviewed, without limitation, DOGGR report, depositions of percipient witnesses Verdugo, Mercado and Rosales, and the deposition of investigator Ricker."
In its written ruling, the trial court sustained CREH's objection to the Schaaf declaration on the grounds of lack of adequate foundation. Considering the conclusory nature of the declaration, even as supplemented, we conclude that the trial court did not abuse its discretion here. "An 'expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. [Citation.] Moreover, an expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based.' " (Alexander, supra, 23 Cal.App.5th at p. 225.) Even with the supplemental declaration, it is unclear what facts Schaaf relied on and how those facts support his conclusions.
But even if the trial court erred in sustaining CREH's objections to the Schaaf declaration, Verdugo has failed to demonstrate that the error had any bearing on the outcome of the motion. The trial court's ruling stated that the declaration "would not raise a triable issue of fact even if admitted." We agree with the trial court. If admitted, the declaration would show in essence that CREH failed to provide a flowline or ICL to the well as a safety device that could be used to vent pressure away from the wellhead, the provision of which safety device Schaaf believes could have prevented the accident. However, because we have concluded that the tort duty of care was delegated to Weatherford to conduct the work in a safe manner and to comply with all statutory or regulatory safety laws, CREH's omission does not show a triable issue of fact that CREH engaged in conduct which affirmatively contributed to the accident for purposes of supporting a Privette exception. (Delgadillo, supra, 20 Cal.App.5th at p. 1092; Alvarez, supra, 13 Cal.App.5th at p. 641; Khosh, supra, 4 Cal.App.5th at p. 718.) Accordingly, no prejudicial error or abuse of discretion has been shown regarding the trial court's evidentiary ruling. (See, e.g., Khosh, supra, 4 Cal.App.5th at p. 721 ["We need not decide if the court erred in excluding this evidence because the excluded evidence does not create a triable issue of fact, and admitting the evidence would not warrant a different result"].) B. Rosales Deposition Excerpt
Of course, the declarant's conclusions that were unsupported by any facts, such as the allegedly concealed hazard, would remain inadmissible.
Verdugo requests that we take judicial notice of a DOGGR publication authored by Peter R. Wygle, "Blowout Prevention in California," designed to provide technical guidance to DOGGR engineers and to inform oil and gas well operators about blowout prevention equipment. We will deny the request. "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." (Truong v. Nguyen (2007) 156 Cal.App.4th 865, 882.) No exceptional circumstances exist that would justify deviating from that rule here. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; California School Boards Assn. v. State of California (2011) 192 Cal.App.4th 770, 803.)
The trial court sustained CREH's objection to a transcript excerpt from the deposition of Raul Rosales, a Weatherford employee, taken in connection with another action or proceeding. The record does not reflect the deposition was signed by the witness under oath or at all, and because the statements made by the witness arose out of a separate proceeding, it was incumbent upon Verdugo to show grounds for a hearsay exception (see Gatton v. A.P. Green Services, Inc. (1998) 64 Cal.App.4th 688, 692-696), which was not done here. We do not discern any error or abuse of discretion in the trial court's evidentiary ruling. But even if error was made, Rosales's testimony would not establish a triable issue of material fact, for the same reasons we noted above relating to Schaaf's declaration.
Verdugo requests that we judicially notice evidence reflecting that Rosales's account in the transcript was testimony taken under oath. We decline to do so because such evidence was not before the trial court at the time of its ruling. (See fn. 16, ante.) Even assuming Verdugo is correct that a transcript of testimony from another case or proceeding may be admissible in a summary judgment motion (notwithstanding hearsay concerns) on the ground that it may be treated by the court as tantamount to a declaration (see Williams v. Saga Enterprises (1990) 225 Cal.App.3d 142, 149, fn. 3), it was incumbent upon Verdugo to have demonstrated in his papers submitted to the trial court that the transcript excerpt was actually of testimony taken under oath.
DISPOSITION
The judgment is affirmed. California Resources Elk Hills, LLC is awarded its costs on appeal.
/s/_________
ELLISON, J. WE CONCUR: /s/_________
PEÑA, Acting P.J. /s/_________
SMITH, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------