Motion Summary Judgment

Cal. Super. - 6th Dist.August 16, 2018

LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mary Kay Glaspy (SBN 157167) mkglaspy@mgmlaw.com David Davidson (SBN 215969) ddavidson@mgmlaw.com Eddie B. Dennis (SBN 3 12483) edennis@mgmlaw.com MANNING GROSS + MASSENBURG LLP 444 South Flower, Suite 4100 Los Angeles, California 90071 Telephone: (213) 622-7300 Facsimile: (213) 622-7313 Attorneys for Defendant/Cross-Complainant KB HOME SOUTH BAY, INC. Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/1 5/2019 8:39 PM Reviewed By: Yuet Lai Case #1 8CV333370 Envelope: 3659554 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ZENITH INSURANCE COMPANY, Plaintiff, V. KB HOME SOUTH BAY, INC, RANDAZZO ENTERPRISES, INC., and DOES 1 - 25 INCLUSIVE, Defendants. AND ALL CROSS-CLAIMS SANTA CLARA Case No. 18CV333370 Assigned t0 Hon. MarkH. Pierce Dept. 2 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF ZENITH INSURNACE COMPANY; MEMORANDUM OF POINTS AND AUTHORITIES [Filed concurrently With Motion for Summary Judgment; Separate Statement of Undisputed Material Facts; Index of Exhibits, Declaration of Eddie B. Dennis; and [Proposed] Order] Date: February 13, 2020 Time: 9:00 am. Dept: 2 Complaint Filed: August 16, 2018 Cross-Complaint Filed: October 10, 2018 Trial: None Set TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on February 13, 2020, at 9:00 a.m., or as soon thereafter as the matter may be heard in Department 2 0f the above-entitled Court, located at 191 North First Street, San Jose, CA 951 13, Defendant and Cross-Complainant KB HOME SOUTH BAY, INC. ("KB Home”) Will move this court for summary judgment as to the Complaint of PlaintiffZENITH 1 DEFENDANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 INSURANCE COMPANY (“Zenith”). This motion is made pursuant t0 Code 0f Civil Procedure §437c and on the grounds that Zenith’s claims against KB Home are precluded as a matter 0flaw pursuant to KB Home’s Twenty- First Affirmative Defense on the grounds that the “Privette-Toland doctrine” mandates the exclusive remedy for a subcontractor’s injured employee is workers’ compensation, Without a right t0 subrogation against the property owner. (See Privette v. Superior Court (1993) 5 Ca1.4th 689; Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253.) Pursuant the California Supreme Court ruling in Privette v. Superior Court (1 993) 5 Ca1.4th 689, and its progeny, Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, Zenith, as the workers’ compensation insurance carrier for second tier subcontractor Premium Packingl, is precluded from holding the property owner KB Home liable for injuries sustained by its insured, Nerry Barrera, while working under the control and supervision 0f subcontractor, Randazzo Enterprises, Inc. (“Randazzo”). KB Home in n0 way retained any control over the worksite safety in a manner that afirmatively contributed to Mr. Barrera’s injuries. Further, Zenith has not - and cannot - show that KB Home owed Mr. Barrera a non-delegable duty. Thus, because there is n0 liability as to Mr. Barrera, KB Home has no liability to Zenith on its derivative claim for reimbursement of workers’ compensation benefits paid on behalf of Mr. Barrera. Subrogation places the Zenith in the same shoes 0f Mr. Barrera, and therefore, Zenith has no greater rights than Mr. Barrera subj ecting Zenith t0 the same assertable defenses that KB Home has against Mr. Barrera. (State Farm General Ins. C0. v. Wells Fargo, NA, 143 Cal.App.4th at 1106- 1107) /// /// /// 1 Premium Pack was a subcontractor t0 Randazzo Enterprises, Inc., Randazzo Enterprises, Inc. was a subcontractor t0 KB Home South Bay, Inc. 2 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The motion Will be based upon this Notice 0f Motion, the attached Memorandum of Points and Authorities, and the Separate Statement 0f Undisputed Facts filed concurrently herewith, the Declaration 0f Eddie B. Dennis, Exhibits in Support and deposition testimony 0f Randazzo Enterprises, Inc. Person Most Qualified, the records and files 0f this action, and upon such further oral and documentary evidence as may be presented at the hearing on this motion. Date: November 15, 2019 MANNING GROSS + MASSENBURG, LLP David Davidson Eddie B. Dennis Attorneys for Defendant KB Home South Bay, Inc. 3 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES ............................................................. 1 I. INTRODUCTION .................................................................................................................. 1 II. STATEMENT OF FACTS .................................................................................................... 2 A. Procedural Posture ............................................................................................................... 2 B. Factual Background ............................................................................................................. 2 C. KB Home’s Contract With Randazzo .................................................................................. 3 D. KB Home Did Not Control Worksite Safety Of Randazzo’s Employees And Laborers At The Proj ect. ........................................................................................................................... 4 E. KB Home Did Not Control The Method And Means Of Mr. Barrera’s Work At The Proj ect. .................................................................................................................................. 5 F. KB Homes Did Not Create A Dangerous Condition That Contributed T0 Mr. Barrera’s Injuries .................................................................................................................................. 6 III. LEGAL ARGUMENT ....................................................................................................... 6 A. Standard OfReview ............................................................................................................. 6 B. Zenith’s Claims Against KB Homes Are Barred As A Matter OfLaw Pursuant To The Privette-Toland Doctrine As Set Forth In KB Home’s Twenty-First Affirmative Defense. 7 C. No Exceptions T0 The Privette-Toland Doctrine Apply To This Case ............................. 10 1. KB Home Did Not Affirmatively Contribute To Mr. Barrera’s Injuries Through The Negligent Exercise Of Retained Control Over Worksite Safety. .................................. 10 2. Zenith Cannot Show That KB Home Owed Mr. Barrera A Non-Delegable Duty. ....... 17 IV. CONCLUSION ................................................................................................................. 1 8 i DEFENDANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Aguilar v. Atlantic Richfield C0. (2001) 25 Ca1.4th 826, 850 ..................................................... Brannan v. Lathrop Const. Associates Inc. ................... 7 (2012) 206 Ca1.App.4th 1170, 1178-1 179 .................................................. 10,15 Camargo v. Haarda Dairy (2001) 25 Ca1.4th 1235, 1238 .................................................. Hodge v. Kirkpatrick Dev., Inc. (2005) 130 Ca1.App.4th 540, 548 .............................................. Hooker v. Department 0f Transportation (2002) 27 Ca1.4th 198, 202 ..................................................... Kinney v. CSB C0nst., Inc. (2001) 87 Cal. App.4th 28 ...................................................... Privez‘te v. Superior Court .................... 8 .................. 10 ................... 10 11 (1993) 5 Cal.4th 689, 692 .................................................................. 1,8,9,18 Saelzler v. Advanced Group 400 (2001) 25 Ca1.4th 763, 774-776 ................................................ Seabright Ins. C0. v. US Airways, Inc. (201 1) 52 Ca1.4th 590, 604 .................................................... State Farm General Ins. C0. v. Wells Fargo, NA .....................7 .................... 17 (2010) 143 Ca1.App.4th 1098, 1105, 1106-1107 ........................................ 1,3,9,10 Stonegate Homeowners Assn. v. Staben (2006) 144 Ca1.App.4th 740, 750 ................................................................ 6 Toland v. Sunland Housing Group, Inc. (1998) 18 Ca1.4th 253, 269-270 ............................................................ 1,8,18 ii DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Statutes Code CiV. Proc. § 4370(0) ................................................................................. 6 Code CiV. Proc. § 4370(0), (p)(2) ........................................................................ 6,7 Labor Code §3600(a) ........................................................................................ 8 Labor Code § 3602(a) ...................................................................................... 8 Labor Code § 6300 et seq. ................................................................................. 17 Labor Code § 6304 .......................................................................................... 17 iii DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant/Cross-Complainant KB Home South Bay, Inc. (“KB Home”) is entitled to summaryjudgment as a matter 0flaw pursuant t0 the its Twenty-First Affirmative Defense set forth in its Answer to plaintiffZenith Insurance Company’s (“Zenith”) Complaint. KB Home’s Twenty- First Affirmative Defense is based 0n the firmly rooted “Privette-Toland doctrine” which mandates that the exclusive remedy for a subcontractor’s injured employee is workers’ compensation, Without a right to subrogation against the property owner. Pursuant the California Supreme Court ruling in Privette v. Superior Court (1993) 5 Cal.4th 689, and its progeny, Toland v. Sunland Housing Group, Inc. (1998) 18 Ca1.4th 253, Zenith, as the workers’ compensation insurance carrier for subcontractor Premium Packing, is precluded from holding property owner KB Home liable for injuries sustained by its insured, Nerry Barrera. N0 exception t0 the Privette Doctrine applies to the present action as KB Home did not retain control over worksite safety in a manner that aflirmatively contributed t0 Mr. Barrera’s injuries. Further, Zenith has not - and cannot - show that KB Home owed Mr. Barrera a non-delegable duty. Simply put, because there is n0 liability as to Mr. Barrera, KB Home has n0 liability t0 Zenith on its derivative claim for reimbursement 0f workers’ compensation benefits paid on behalf ofMr. Barrera. Subrogation places the Zenith in the shoes 0fMr. Barrera, and therefore, Zenith has n0 greater rights than its Mr. Barrera which subjects Zenith t0 the same assertable defenses that KB Home has against Mr. Barrera. (State Farm General Ins. C0. v. Wells Fargo, NA (2010) 143 Cal.App.4th at 1106-1 107). Zenith erroneously filed this subrogation action against KB Home, a property owner, on August 16, 2018, alleging a single cause 0f action for premises liability? Also named in the complaint is defendant Randazzo Enterprises, Inc. (“Randazzo”) Who was a subcontractor hired by KB Homes to perform certain excavation work on a residential development owned by KB Home. Zenith allegedly provided workers’ compensation insurance benefits t0 laborer Mr. Barrera, who 2 The allegations in the complaint frame the issues for a motion for summary judgment motion. (California Bank & Trust v. Lawlor (2013) 222 Ca1.App.4th 625, 637, fn. 3 [“[a] party may not oppose a summary judgment motion based on a claim, theory, 0r defense that is not alleged in the pleadings,” and “[e]Vidence offered on an unpleaded claim, theory, or defense is irrelevant because it is outside the scope of the pleadings”].) 1 DEFENDANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was hired by defendant Randazzo from a labor agency called Premium Packing. Zenith was the workers” compensation insurance carrier for Premium Packing. Now, Zenith improperly alleges that as a workers compensation insurer, it is entitled to recover amounts it allegedly paid on behalf ofMr. Barrera, Who sustained injuries While performing labor services for Randazzo. Despite these contentions, Zenith cannot present any admissible evidence that KB Home affirmatively contributed to Mr. Barrera’s injuries. As such, Zenith’s claims are barred pursuant to the long- established Privette-Toland doctrine as asserted in KB Home’s Answer t0 Zenith’s Complaint. II. STATEMENT OF FACTS A. Procedural Posture On August 16, 2018, Zenith filed a subrogation complaint against KB Home and Randazzo t0 recover damages for workers’ compensation benefits paid to Mr. Barrera as a result of his injuries sustained while performing labor services for Randazzo at a residential development located at 1210 California Circle, Milpitas, California (the “Project”). (Separate Statement 0f Undisputed Material Facts “UMF” No. 1). Zenith’s complaint alleges a single causes of action against all defendants for Premises Liability. (Id.). KB Home filed its Answer to Zenith’s complaint on October 10, 2018, setting forth Affirmative Defense Twenty-One contending that Zenith’s claims are barred pursuant to the Privette-Toland doctrine. (UMF No. 2). That same day, KB Home filed a cross-complaint against defendant Randazzo for express contractual indemnity, breach of contract, and equitable indemnity. (UMF N0. 3). B. Factual Background At all relevant times, KB Home was the owner for the Project. (UMF No. 4). As part 0f the Project, KB Home hired subcontractor Randazzo. (UMF No. 5) Specifically, Randazzo was the excavation and demolition subcontractor for the Proj ect, Whose job duties included but are not limited to demolishing the existing structures 0n the subject property, trenching, removal 0f underground utilities, and removal of demolished materials. (Id.). Prior to performing its work 0n the Proj ect, Randazzo hired Mr. Barrera by way of an oral subcontract agreement With Premium Packing, a labor subcontractor who supplied general laborers to perform work. (UMF N0. 6). Zenith is a workers’ compensation insurance carrier for Premium Packing, Who paid workers’ 2 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 compensation benefits to Mr. Barrera, as a result of injuries sustained during the course and scope of his work performed for Randazzo. (UMF No. 7). Specifically, plaintiff Zenith alleges that 0n August 22, 2016, Mr. Barrera sustained injuries by one 0r more dangerous conditions including open trenches and construction debris, located at the Project. (UMF No. 8). While under the contractual supervision and direction of Randazzo, Mr. Barrera allegedly sustained injuries t0 his chest in an open 78-inch trench dug by Randazzo when the trench wall allegedly collapsed on him. (UMF No. 9). As a result of workers compensation benefits paid to Mr. Barrera, Zenith now improperly seeks recovery by way of subrogation against both KB Home and Randazzo. (UMF N0. 10). Pursuant to KB Home’s Twenty-First Affirmative Defense to Zenith’s claims, the Privette-Toland doctrine limits Mr. Barrera’s remedies to workers” compensation and prevents a claim from being filed against KB Home. (UMF No. 2). Zenith has no greater rights than those 0f Barrera and is therefore subject to the same exact defenses. (State Farm General Ins. C0. v. Wells Fargo, NA, supra, 143 Ca1.App.4th at 1106-1 107). C. KB Home’s Contract with Randazzo On December 3, 2013, KB Home entered into a written contract With subcontractor Randazzo whereby Randazzo was hired to perform certain demolition and excavation work. (UMF N0. 11). Specifically, the contract required Randazzo t0 perform demolition of existing structures 0n the Project, ground trenching in order to remove underground existing utilities, concrete flatwork, paving, crushing of existing materials, and remove the sidewalk, among other excavation tasks. (UMF Nos. 12). Pursuant t0 Paragraph 2 of the contract, Randazzo “. . . agree[d] to furnish all labor, materials, supplies, machinery, ladders, scaffolding, tools, equipment and services necessary . . . to properly perform [its] work.” (Id.). The contract also required Randazzo to hire only employees Who are sufficiently skilled to perform the work set forth in the contract. (UMF No. 13). During deposition, of the person most qualified for Randazzo, President Mark Randazzo, acknowledged the terms of the contract, and conceded that KB Home did not bear any responsibility for supervising Randazzo’s employees 0r ensuring that they had the necessary services t0 properly perform their work. (UMF No. 14). 3 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. KB Home Did Not Control Worksite Safety of Randazzo’s Employees and Laborers at the Project. In addition t0 the above, the contract between KB Home and Randazzo set forth express terms that required Randazzo t0 comply With safety orders and procedures regarding the work it performed on the Project. (UMF No. 15). Specifically, the scope 0fwork clause required that the “[e]xcavati0n 0f trenches shall be performed in conformance With the specification and requirements of the City of Milpitas and any other governmental agencies having jurisdiction over trenching. [Randazzo] agrees that [it] shall assume sole and complete responsibility for job site conditions and for this work during the course of construction 0f this project, including safety 0f all persons and property . . . and that [Randazzo] shall defend, indemnify and hold [KB Home] harmless from any and all liability . . . in connection with the performance 0f the work 0n the Project. . .” (1d,). During deposition, Randazzo acknowledged the terms 0f the scope of work agreement and further agreed that KB Home was not responsible for ensuring the safety 0f Randazzo’s employees during the course and scope 0f their work performed under the contract. (UMF No. 16). T0 ensure safety of its employees and laborers, Randazzo further set forth numerous safety protocols and measures taken to ensure the safety of its employees and laborers while performing work on the Project. (UMF No. 17). Specifically for this Project, a Randazzo supervisor was present 0n the job site each day, and was responsible for ensuring worksite safety 0f Randazzo’s employees and laborers. (UMF N0. 18). Randazzo’s site supervisor, Jose Velasquez, was well- qualified t0 administer jobsite safety and supervision. (UMF No. 19). As part of the jobsite safety protocols, Mr. Velasquez held weekly on-site safety meetings t0 address various job site safety concerns which included trench safety protocol. (UMF N0. 20). In the weeks leading up t0 the incident, Mr. Barrera specifically attended at least two on-site safety meetings conducted by Randazzo Which included trench safety protocols. (UMF Nos. 21-22). Brief daily meetings were also held, (UMF No. 23), and it was custom and practice for Randazzo t0 provide all employees and laborers written safety materials. (UMF No. 24). 4 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Importantly, the contract between KB Home and Randazzo expressly delegated the duty 0f worksite safety t0 Randazzo for which Randazzo was aware and understood to be the case. (UMF N0. 16). As a result 0f the express agreement between KB Home and Randazzo, as well as, the mutual understanding between the parties, KB Home was not responsible for ensuring Mr. Barrera’s safety during the course and scope 0f his work with Randazzo. (UMF Nos. 15-24). E. KB Home Did Not Control the Method and Means of Mr. Barrera’s Work at the Proj ect. As noted above, the express contract between KB Home and Randazzo further required Randazzo t0 perform all duties and services necessary t0 perform its work under the contract. (UMF No. 13). Specifically, this included the agreement t0 “furnish all labor, materials, supplies, machinery, ladders, scaffolding, tools, equipment and services necessary . . . to properly perform the work.” (1d,). During deposition, Randazzo acknowledged it was solely responsible for controlling all of the work performed by its employees and laborers at the Project (UMF N0. 25) as it provided its employees and laborers with all tools, machinery, instruction, and supervision necessary to complete sufficiently complete their work. (UMF N0. 26). Mr. Barrera received all instruction from Randazzo during the duration 0f the Project. (UMF N0. 27.). Further, Mr. Barrera, like the other Randazzo employees, was driven t0 and from work in a vehicle owned by Randazzo. (UMF No. 28). On site, Randazzo was responsible for assigning Mr. Barrera’s daily task and instruction related t0 the completion 0f same. (UMF N0. 29). With respect to work on the Project, KB Home never provided Mr. Barrera with any tools or machinery, (UMF No. 30), nor did KH Home at anytime instruct 0r provide Mr. Barrera With job duties or instruction. (UMF No. 3 1). Simply, any responsibility with respect to the methods and means of Randazzo’s employees and laborers, including those of Mr. Barrera, was sole responsibility of Randazzo by way 0f contract absolving KB Home of any duty t0 d0 so. (UMF Nos. 13, 25-31). Thus, KB Home cannot be liable to Zenith for any injuries sustained by Mr. Barrera as a matter of law. /// 5 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F. KB Homes Did Not Create a Dangerous Condition that Contributed to Mr. Barrera’s Injuries As noted above, Randazzo’s scope 0f work pursuant t0 the contract between KB Home and Randazzo required it to perform certain ground trenching work t0 excavate and remove underground utilities. (UMF N0. 13). Part 0f this work involved the digging of a 78-inch (Le. 6 feet 5 inches) trench Which is the subj ect trench that Mr. Barrera sustained injury. (UMF N0. 9). During deposition, Randazzo discussed various means of trench stabilization that was required by OSHA 0n trenches exceeding five (5) feet in depth. (UMF N0. 32). These safety stabilization measures included “shoring”, “benching”, “sloping” and “spoiling”, and were designed t0 adequately stabilize a trench, t0 avoid the collapse oftrench walls and ensure the safety 0fworkers in the Vicinity. (Id.). During deposition, Randazzo admitted that it failed to perform any 0f necessary trench stabilization measures, despite being required t0 do so pursuant t0 OSHA regulations. (UMF N0. 33). Immediately following the incident at the Project, OSHA conducted an investigation. (UMF No. 34). Subsequent t0 the investigation, Randazzo was found to be in Violation ofOSHA rules and regulations concerning trench safety and was cited and fined for Violations classified as “serious”. (Id.). Critically, KB Home was never cited for any OSHA Violation pertaining t0 the injuries sustained by Mr. Barrera. (UMF N0. 35). III. LEGAL ARGUMENT A. Standard 0f Review Summary judgment is properly granted if the record demonstrates that there is no triable issue as t0 any material fact and the moving party is entitled t0 a judgment as a matter of law. (Code CiV. Proc. § 4370(0).) "T0 secure summarv iudgment, a moving defendant mav prove an affirmative defense, disprove at least one essential element 0f the plaintiff‘s cause 0f action [citations], or show that an element 0f the cause 0f action cannot be established.” (Stonegate Homeowners Assn. v. Staben (2006) 144 Cal.App.4th 740, 750; Code CiV. Proc. § 4370(0), (p)(2).) Once the defendant makes this showing, the burden shifts t0 the plaintiff t0 show that a 6 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 triable issue of fact exists as to the cause of action. (Code CiV. Proc., § 437c(p)(2).) In doing so, the plaintiff cannot rely 0n the allegations in pleadings, “but, instead, shall set forth the specific facts showing that a triable issue ofmaterial fact exists...” (1d,) California Code ofCivil Procedure section 437C, subdivision (o)(2) sets forth the burden-shifting approach to summary judgment motions as follows: A defendant 0r cross-defendant has met his 0r her burden 0f showing that a cause 0f action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, 0r that there is a complete defense t0 that cause 0f action. Once the defendant 0r cross-defendant has met that burden, the burden shifts to the plaintiff 0r cross-complainant t0 show that a triable issue of one or more material facts exists as to that cause 0f action 0r a defense thereto. The plaintifl 0r cross- complainant may not rely upon the mere allegations 0r denials ofits pleadings t0 show that a triable issue ofmaterialfact exists but, instead, shall setforth the Specificfacts showing that a triable issue 0f materialfact exists as t0 that cause 0f action 0r a defense thereto. (Emphasis added.) Speculative evidence showing only that possibility that plaintiff s injuries were caused by defendant’s negligence is insufficient t0 defeat a motion for summary judgment. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 774-776.) A triable issue 0f material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor 0f the party opposing the motion in accordance with the applicable standard 0f proof.” (Aguilar v. Atlantic Richfield C0. (2001) 25 Ca1.4th 826, 850.). Therefore, pursuant to KB Home’s Answer, its Twenty-First Affirmative Defense based on the Privette-Toland doctrine serves as a basis for summary judgment as t0 Zenith’s claims. B. Zenith’s Claims Against KB Homes Are Barred as a Matter 0f Law Pursuant t0 the Privette-Toland Doctrine as Set Forth in KB Home’s Twentv-First Affirmative Defense. KB Home’s Twenty-First Affirmative Defense based 0n the Privette-Toland doctrine, bars any effort by Zenith to seek subrogation against KB Home for workers’ compensation benefits paid t0 its insured Nerry Barrera, for injuries he sustained during the course and scope 0f his employment for Randazzo. In fact, there is not a single published or unpublished California decision which entitles Zenith to damages against KB Home based on the facts of this case and the application 0f the Privette-Toland doctrine. Thus, in light 0f the landmark California Supreme 7 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Court ruling in Privette v. Superior Court (1993) 5 Cal.4th 689, there can be n0 dispute that Zenith’s claims are barred as to KB Home. Pursuant to the holding set for in Privetl‘e, a person who hires an independent contractor t0 perform inherently dangerous work cannot be held liable for tort damages When that contractor causes injury t0 a third party by negligently performing its work. (Privette v. Superior Court, supra, 5 Cal.4th at 691.). Furthermore, Labor Code § 3600(a) provides in pertinent part that “Liability for the compensation provided by this division . . . shall, Without regard t0 negligence, exist against an employer for any injuries sustained by his or her employees arising out of and in the course 0f the employment. . .”. Labor Code § 3602(a) then provides that “[W]here the conditions 0f compensation set forth in section 3600 concur, the right to recover compensation is . . . the sole and exclusive remedy of the employee . . .” In Privette, the California Supreme Court refilsed to extend the peculiar risk doctrine t0 the hired contractor’s employees for injuries subject to workers’ compensation coverage, i.e., injuries arising out 0f the course and scope of that employee’s employment for the contractor. (Id. at 696-702; see also Labor Code § 3600(a).) The California Supreme Court subsequently clarified that Privette bars a_ll actions against a hirer (i.e. KB Home) by an independent contractor’s employee, provided that the injuries are subject t0 workers’ compensation coverage. (Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 269-270.) The rationale for this exception to the peculiar risk doctrine is that a hirer should not have to pay for work-related injuries t0 the contractor’s employees, because the workers’ compensation system already covers those injuries. (Privette v. Superior Court, supra, 5 Cal.4th at 698.) The rule 0f workers’ compensation “exclusivity,” Which shields an independent contractor Who pays workers’ compensation insurance premiums from further liability t0 its employees for on-the-job injuries, should equally protect a hirer who, in hiring the contractor, is indirectly paying for the cost 0f coverage, Which has been calculated into the contract price. (Id. at 699.) Additionally, allowing such recovery would give those employees an unwarranted windfall denied t0 other workers. (Id. at 700; Camargo v. Tjaarda Dairy (2001) 25 Ca1.4th 1235, 1238 [Supreme Court 8 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 extended Privette t0 claims 0f negligent hiring by the hirer].) The facts involved in the present lawsuit are entirely analogous to those in Privette. There, the owner 0f a duplex hired a contractor t0 install a new tar and gravel roof. The contractor’s foreman directed the plaintiff-employee t0 carry buckets ofhot tar up a ladder t0 the roof. (Privette v. Superior Court, supra, 5 Cal.4th at 692). While performing this task, the plaintiff-employee fell and was burned by hot tar. (Id.). The plaintiff-employee then sought workers’ compensation benefits for his injuries Which were paid in full, and subsequently sued the non-negligent duplex owner for negligence and for strict liability as a result of the inherently dangerous work he was hired t0 perform. (Privette v. Superior Court, supra, 5 Cal.4th at 692.) Ultimately, the Court held that when injuries resulting from a hired contractor’s performance 0f work are sustained by that contractor’s employee, and are subject to workers’ compensation coverage, there is basis to seek liability for the recovery of tort damages from the person Who hired the contractor but did not cause the injuries. (Id. at 695). In other words, an employee of a contractor Who is injured 0n the job cannot recover tort damages from the hirer 0f the contractor, provided that the hirer did not cause the injuries. (1d,). Here, as in Privette, KB Home hired subcontractor Randazzo to perform certain work at the Project. (UMF Nos. 11-12). Specifically, Randazzo was hired t0 perform excavation and demolition work which required Randazzo t0 dig large trenches t0 remove existing underground utilities. (Id.). Following the retention ofRandazzo, Randazzo proceeded to hire Mr. Barrera from labor provider, Premium Packing, to supplement its labor services. (UMF N0. 6). Just like the plaintiff in Privetl‘e, Mr. Barrera was injured 0n the job While performing his work under the supervision, direction and control of Randazzo. (UMF Nos. 11-3 1). Following the incident, Mr. Barrera received full and adequate compensation by means of his workers’ compensation benefits, paid by Zenith. (UMF No. 7). Lastly, subrogation is defined as the substitution of another person in place of the claimant whose rights he succeeds in relation t0 the claim. (State Farm General Ins. C0. v. Wells Fargo Bank, NA (2006) 143 Cal.App.4th 1098, 1105). “Subrogation is the insurer’s right t0 be put in the 9 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 position of the insured, in order to recover from third parties Who are legally responsible t0 the insured . . .” (Id. at 1106; see also Hodge v. Kirkpatrick Dev., Inc. (2005) 130 Cal.App.4th 540, 548). Critically however, because subrogation places the insurer in the shoes 0f its insured, the insurer has no greater rights than the insured would have, and for those reasons is subiect to the same defenses assertable against the insured. (State Farm General Ins. C0. v. Wells Fargo, NA, supra 143 Cal.App.4th at 1106-1 107). As such, Zenith, as the workers’ compensation carrier, steps into the shoes of Mr. Barrera and is subject t0 the same defenses that KB Home has against Mr. Barrera. Thus, Zenith’s action against KB Home is barred under the Privette-Toland doctrine. C. N0 Exceptions t0 the Privette-Toland Doctrine Applv T0 This Case 1. KB Home did not Affirmatively Contribute t0 Mr. Barrera’s Injuries through the Negligent Exercise of Retained Control over Worksite Safety. An exception to the Privette-Toland doctrine exists where the hirer 0f the independent contractor has retained control over safety conditions at the worksite,M negligently exercised the retained control in a manner that affirmativelv contributed to the injury 0f contractor’s employee. (Hooker v. Department 0f Transportation (2002) 27 Cal.4th 198, 202.) The mere retention of authority to control safety conditions is insufficient to satisfv this exception. “A general contractor owes n0 duty 0f care t0 an employee 0f a subcontractor t0 prevent 0r correct unsafe procedures 0r practices t0 Which the contractor did not contribute by direction, induced reliance, 0r other affirmative conduct.” (Id. at 209.) Thus, t0 satisfy this exception, Plaintiffmust show that Defendant actively asserted control over the manner in Which the work was to be performed by either affirmatively directing Plaintiff to perform work in some specific manner, or otherwise interfered With the means and methods by Which his work was t0 be accomplished. (Id. at 214-215; also Brannan v. Lathrop Const. Associates Inc. (2012) 206 Cal.App.4th 1170, 1178- 1179) In Hooker, supra, defendant Caltrans hired a general contractor t0 construct an overpass. The general contractor’s employee, a crane operator, was killed when he attempted t0 swing the 10 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 crane boom while the outriggers were retracted causing the crane t0 fall over. The decedent’s Wife sued Caltrans for negligently exercising its retained control over worksite safety. Pursuant t0 its construction manual, Caltrans was responsible for ensuring compliance with safety laws and regulations, and retained substantial authority t0 monitor and correct safety hazards. Further, Caltrans had a representative on the jobsite Who was responsible for “safety.” (Hooker, 27 Ca1.4th at 202-203.) The California Supreme Court affirmed summary judgment. The Court found that although Caltrans did retain control over worksite safety, Caltrans’ retained control did not affirmatively contribute to the injury. Caltrans did not direct the crane operator to perform the work that led to his death. Further, there was n0 evidence that Caltrans’ exercise of retained control over safety conditions affirmatively contributed to the accident. “There was, at most, evidence that Caltrans’ safety personnel were aware of an unsafe condition and failed t0 exercise the authority they retained t0 correct it.” (Id. at 215.) The Court maintained that “it would be unfair to impose tort liability 0n the hirer of the contractor merely because the hirer retained the ability to exercise control over safety at the worksite.” (Id. at 210.) Moreover, in Kinney v. CSB C0nst., Inc. (2001) 87 Cal. App.4th 28, an employee of a subcontractor fell from a scaffold and sued the general contractor, claiming that it retained control over worksite safety and failed to provide adequate fall protection. (Kinney 87 Cal.App.4th at 29.) The contract between the owner and the general contractor provided that the general contractor was “solely and completely responsible for working conditions and the safety of all persons and property.” (Id. at 30.) The subcontract between the general contractor and the subcontractor did not impose any specific safety duties upon the subcontractor apart from complying with safety rules and regulations. (Id. at 30-3 1 .) The general contractor admitted that it was responsible for abating safety hazards, had the right to order any safety measures it felt were appropriate, including stopping the job if it saw that a subcontractor lacked adequate fall protection, and ultimately had “final say” as t0 any worksite safety issues. The general contractor never gave the plaintiff- employee any instructions on how to perform his work. (1d. at 3 1 .) The issue before the Kinney court was Whether a general contractor who retains Virtually all control over worksite safety may be liable for failing t0 direct the subcontractor t0 adopt safety 11 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 measures that would have prevented the injury. (Id. at 32.) The court affirmed summary judgment, holding that “liability cannot be imposed 0n the general contractor based upon a mere failure t0 require the subcontractor t0 take safety precautions, where the general contractor's failure is not shown t0 have affirmatively contributed t0 the creation or persistence 0f the hazard causing the plaintiffs injuries.” (Id. at 30.) Here, KB Home can bear n0 liability t0 Zenith as it did not retain control over the worksite safety of Randazzo’s employees and laborers during the course and scope 0f their employment with Randazzo, and thus, did not affirmatively contribute to Mr. Barrera’s injuries. (UMF Nos. 11-24). In addition t0 mere worksite safety, KB Homes further did not retain 0r exercise any control over the method or means 0f Mr. Barrera’s job duties. (UMF Nos. 25-31). First and foremost, the duty to control worksite safety was delegated to Randazzo by way 0fexpress contract with KB Home. (UMF Nos. 15-16). Specifically, the contract provided that “[e]xcavati0n 0f trenches shall be performed in conformance With the specification and requirements of the City 0f Milpitas and any other governmental agencies (i.e. Cal-OSHA) having jurisdiction over trenching. (Id.) [Randazzo] agrees that [it] shall assume sole and complete responsibilitv for iob site conditions and for this work during the course 0f construction 0f this proiect, including safety 0f all persons and propertv . . . and that [Randazzo] shall defend, indemnify and hold [KB Home] harmless from anv and all liabilitv . . . in connection with the performance 0f the work 0n the Proiect. . .” (1d,). It is critical to note that during the deposition 0f Randazzo’s person most qualified, Randazzo conceded the terms of the contract and testified that KB Home did not bear the responsibility to retain 0r monitor the safety ofRanazzo’s employees and laborers. (UMF No. 16). Specifically, Mark Randazzo, Who was designated as Randazzo’s Person Most Qualified testified as follows: Q. D0 you understand it t0 be KB Home’s responsibility to monitor the safety and actions 0f your employees as they perform work? A. No. Q. And this applies t0 the work performed by Mr. Barrera, as well; correct? A. Yes. Q. The contract required Randazzo to maintain the safety of its employees and laborers, correct? 12 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Yes. And so these safety meetings and safety protocols that Randazzo’s employees and laborers received was provided by Randazzo and not KB .0? Home; true? A. Yes. Q. You did not expect KB Home t0 have safety meetings for Randazzo employees, did you? A. I did not. (UMF No. 16). Even further, during the Zenith’s own cross-examination 0f Randazzo’s person most qualified, Randazzo further acknowledged it was solely responsible for the jobsite safety 0f its employees and laborers pursuant t0 the terms 0f its written contract with KB Home. (UMF N0. 16). Specifically, Mr. Randazzo testified: Q [P]er the written agreement, you, Randazzo, was in control of how excavating was t0 be done 0n the property. Correct? A. That’s correct. Q It would have been Jose’s responsibility t0 ensure that the jobsite was safe? A: Yes. (Id.) During deposition, not only did Randazzo acknowledge its duties under the contract, but further went 0n t0 discuss the voluminous safety measures implemented by Randazzo t0 ensure the safety 0f its employees and laborers. (UMF N0. 17). Specifically for this Project, Randazzo supervisor, Jose Velasquez, was present on the job site each day, and was responsible for ensuring worksite safety of Randazzo’s employees and laborers. (UMF N0. 18). As an employee for over thirty years, Mr. Velasquez is certified in both OSHA 30, OSHA 10 and OSHA 8 training, and is vastly qualified to administer jobsite safety and supervision. (UMF No. 19). As part of the jobsite safety protocols, Mr. Velasquez held weekly on-site safety meetings every Monday, t0 address various job site safety concerns Which included trench safety protocol. (UMF N0. 20). Each employee and laborer was required to sign a safety sheet, acknowledging his or her attendance at that safety meeting. (Id.). By way of example, on August 1, 2016 and again on August 8, 2016 (i.e. two weeks before his accident), Mr. Barrera attended two weekly safety meetings Where he signed and acknowledged various safety measures concerning trench safety. (UMF Nos. 21-22). 13 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Specifically, Mr. Barrera was instructed by Mr. Velasquez ofRandazzo to use caution near trench edges and to never enter a trench deeper than four (4) feet3. (Id.). In addition to the Monday meetings, Mr. Velasquez held daily safety “huddle” meetings t0 further address worksite safety concerns. (UMF N0. 23). Lastly, Mr. Randazzo testified that it was custom and practice t0 provide all employees and laborers, including Mr. Barrera, further written safety materials detailing worksite safety. (UMF No. 24). Critically, the contract between KB Home and Randazzo expressly delegated the duty of worksite safety t0 Randazzo, and Randazzo never understood and/or expected KB Home to conduct safety meetings or ensure the jobsite safety 0f Randazzo’s employees 0r laborers While performing their work pursuant to the contract. (UMF Nos. 15-24). As a result 0f the express agreement between KB Home and Randazzo, as well as, the mutual understanding between the parties, KB Home was not responsible for ensuring Mr. Barrera’s safety during the course and scope 0f his work with Randazzo. (Id.). In addition t0 not being responsible for controlling safety, during deposition of Mr. Randazzo, Randazzo conceded that KB Home did not retain responsibility for controlling the methods and means of Randazzo’s employees and laborers. (UMF Nos. 13, 25-3 1). Pursuant t0 its contract With KB Home, Randazzo was responsible t0 “furnish all labor, materials, supplies, machinery, ladders, scaffolding, tools, equipment and services necessary . . . to properly perform the work.” (UMF N0. 25.). In fact, Randazzo acknowledged during deposition that it was solely responsible for controlling all of the work performed by its employees and laborers at the Project. (UMF No. 25). Specifically, Mr. Randazzo, who was designated as Randazzo’s Person Most Qualified testified as follows: Q. Pursuant to the contract between KB Home and Randazzo, would you agree that in addition to its labor, Randazzo was responsible for controlling the work that it performs 0n a job site? A Iwould say in general, yes. Q. KB Home was never responsible for providing Mr. Barrera with any tools to complete any job? 3 The subj ect trench in Which Mr. Barrera sustained injuries was approximately 78-inches (Le. greater than 4 feet in depth). (UMF No.) 14 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Correct. Randazzo was responsible for providing all of the machinery that was necessary t0 complete its scope of work? Yes. Did KB Home ever provide Randazzo With any machinery necessary t0 complete Randazzo’s scope ofwork for the proj ect? No. Mr. Barrera did not report t0 any KB Home employees With respect to his actual job duties that he was required to carry out pursuant to the scope 0f work? A. That’s correct. .0? .0? .0? (UMF Nos. 25). Randazzo - not KB Home - provided its employees and laborers With all tools, machinery, instruction, and supervision necessary to complete sufficiently complete their work. (UMF No. 26). During the entire duration 0f the Proj ect, Mr. Barrera received all instruction from Randazzo and the on-site supervisor, Mr. Velasquez. (UMF No. 27). Each day, Mr. Barrera would meet at Randazzo’s off-site office where he would ride to the Project in a company truck owned by Randazzo. (UMF No. 28). Once arriving at the Project, Randazzo would dictate Mr. Barrera’s daily work tasks and provide instruction as to how the tasks were performed. (UMF N0. 29). T0 the extent Mr. Barrera - or any Randazzo employee or laborer - had questions, Randazzo would provide the answers and supervision to ensure the tasks were adequately completed. (Id.). Additionally, the present action is similar t0 Brennan v. Lathrop Const. Associates, Inc. (2012) 206 Cal.App.4th 1170, where an employee of a subcontractor was injured when he slipped 0n a wet scaffold, and sued the general contractor for negligence and premises liability. The employee alleged that the general contractor negligently sequenced the proj ect by scheduling the subcontractor to work in an area obstructed by a scaffold, and failed to call a “rain day,” thereby causing the injury. (Id. at 1172-1 173.) The general contractor had an onsite manager and foreman at the worksite, both 0fWhom were in charge of managing safety, and had authority t0 stop work they deemed unsafe. Under the terms of the subcontract, the subcontractor similarly had authority to call off work due t0 unsafe conditions. (Id. at 1174.) The general contractor did not direct employee’s work, and did not instruct him t0 access the scaffold. (Id. at 1178.). The court of appeal affirmed summary judgment, concluding that the general contractor’s act of allowing 15 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 scaffolding to remain in place while the subcontractor’s work proceeded did not constitute an exercise of retained control over safety that affirmatively contributed to the accident. (Id. at 1179 (“[General contractor’s] exercise ofretained control over safety no more affirmatively contributed to the accident than Caltrans affirmatively contributed to the accident in H00ker.”).) The court explained, “there was no evidence that [general contractor] knew before [employee’s] fall that he . . . was climbing over scaffold in the manner that he did, or that this practice posed a safety hazard.” (Id. at 1179.) Even stronger than the facts in Brennan, and as noted in detail above, KB Home never directed Mr. Barrera’s work, 0r instruct him 0n how t0 perform his work duties while on the Project. (UMF Nos. 13, 25-31). Rather, Randazzo’s own on-Site supervisor provided Randazzo employees and laborers, including Mr. Barrera, instructions and training on how to perform theirjob duties, and the tools and equipment necessary to carry out their respective duties. (UMF Nos. 25-28). Mr. Randazzo, Who was designated as Randazzo’s Person Most Qualified, testified in deposition that it was Randazzo’s sole responsibility to be present to instruct its employees and further acknowledged that KB Home was not responsible in any way for providing instruction or training to Randazzo employees and laborers. (UMF N0. 25). In addition t0 job duties, and as discussed in great detail above, Randazzo further retained all control of worksite safety for its employees and laborers. (UMF Nos. 12, 15-24). This is evidenced by Randazzo’s daily safety instruction, as well as, the express contract between Randazzo and KB Home whereby delegating this duty solely to Randazzo. (1d,). Further, there is no evidence whatsoever that KB Home was aware of any hazardous conditions associated with the trenching performed by Randazzo. (1d,). KB Homes did not dig the subject trench, nor did it direct Randazzo 0r its employees as to how to perform its trenching work. (Id.). Thus, because KB Homes did not retain control 0f any jobsite safety of Randazzo employees, it follows that KB Home cannot be liable t0 Zenith for injuries sustained by Mr. Barrera. (Id.). For the reasons discussed in detail above, KB Home cannot be liability to Zenith pursuant to the Privette-Toland doctrine. Because KB Homes did not retain control over worksite safety or job duties, and because KB Home in n0 way aflirmaz‘ively contributed to Mr. Barrera’s injuries, 16 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Zenith’s claims against KB Home are barred as a matter of law. As set forth above, subrogation places Zenith into the shoes of Mr. Barrera which subjects Zenith to the same defenses that KB Home could assert against Mr. Barrera. 2. Zenith Cannot Show That KB Home Owed Mr. Barrera a Non- Delegable Duty. Another exception t0 the Privette-Toland doctrine exists When the injury t0 an employee of an independent contractor was caused by the hirer’s breach of a non-delegable duty articulated in a safety statute or regulation. (Seabright Ins. C0. v. US Airways, Inc. (201 1) 52 Ca1.4th 590, 604.) However, the non-delegable duty exception does not extend t0 a hirer’s Violation of Ca1- OSHA safety regulations (Labor Code § 6300 et seq), Which are not only delegable, but “presumptively delegated to independent contractors.” (Id. at 605.) In Seabright, supra, the defendant hired an independent contractor to maintain the conveyer at an airport. The defendant neither directed nor had its employees participate in the contractor’s work. The conveyer lacked certain safety guards required by Cal-OSHA. During an inspection of the conveyer, the contractor’s employee was injured when his arm got caught in the conveyer’s moving parts. The employee received benefits from his employer’s workers” compensation insurer. The insurer sued the defendant, seeking t0 recover What it paid in benefits, and the employee subsequently intervened as plaintiff in the action, alleging causes of action for negligence and premises liability. The insurer argued that the conveyer lacked safety guards in Violation of Cal-OSHA regulations, and that the safety guards would have prevented the injury. (Id. at 594-595.) The principle issue before the Seabright court was whether a hirer can be liable to the contractor’s employee for workplace injuries resulting from the hirer’s failure to comply with Ca1- OSHA safety regulations. Specifically, whether the hirer of a contractor owes a non-delegable duty to comply with Cal-OSHA safety regulations t0 the employees of the contractor. (Id. at 600.) The court held that the defendant was not subj ect t0 liability under the non-delegable duty doctrine, reasoning that the “independent contractor’s hirer implicitly delegates to that contractor its tort law duty, if any, t0 provide the employees 0f that contractor a safe workplace.” (Id. at 597.) “That 17 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 implicit delegation includes any tort law duty the hirer owes t0 the contractor's employees to comply with applicable statutory or regulatory safety requirements.” (1d. at 594.) The Court further explained that the hirer was not an “employer” 0f the contractor’s employee under Ca1- OSHA (Labor Code § 6304.), and therefore owed no duty of care t0 the contractor’s employee. (Id. at 603.) Accordingly, the employee could not recover in tort on the theory that his workplace injury resulted from the defendant’s failure t0 provide safety guards under applicable Cal-OSHA regulations, and summary judgment in favor the defendant was affirmed. (Id.) Here, there can be no dispute that KB Home breached a non-delegable duty to Mr. Barrera. As noted above, KB Home never violated any OSHA regulations, nor does Zenith allege that KB Home ever violated any OSHA regulations. In fact, it was Randazzo Who violated the rules and regulations established by OSHA by failing to adequately maintain trench stability. (UMF Nos. 32-35). Mark Randazzo, Randazzo’s Person Most Qualified, testified that Randazzo failed t0 take a_ll necessary safety measures (i.e. shoring, benching, sloping and spoiling) that are required and designed to avoid the collapse 0f trench walls. As a result of Randazzo’ s negligence and failure to abide by OSHA mandated regulations, Randazzo was found t0 be in Violation and received fines in connection With same. (1d,). Critically, KB Home was never cited for any OSHA Violation pertaining to the injuries sustained by Mr. Barrera. (UMF N0. 35). As such, KB Homes cannot be found to have breached a non-delegable duty t0 Mr. Barrera, and as such, Zenith’s claims against KB Home fail as a matter of law. IV. CONCLUSION For the reasons discussed in detail herein, KB Home is entitled to summary judgment against Zenith pursuant to its Twenty-First Affirmative Defense set forth in its Answer t0 Zenith’s Complaint. The California Supreme Court ruling in Privette v. Superior Court (1993) 5 Cal.4th 689, and its progeny Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, mandate that workers” compensation be the exclusive remedy for injuries sustain by Mr. Barrera while performing work for Randazzo. As noted, KB Home did not retain control over worksite safety 0r any other job duties, in a manner that afirmatively contributed t0 Mr. Barrera’s injuries. Further, Zenith has not and cannot show that KB Home owed Mr. Barrera a non-delegable duty. Thus, 18 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LAW OFFICES OF MANNING GROSS + MASSENBURG LLP 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 because there is no liability as t0 Mr. Barrera, KB Home has no liability t0 Zenith in subrogation since they have no greater rights than those 0f Mr. Barrera. Date: November 15, 2019 MANNING GROSS + MASSENBURG, LLP David Davidson Eddie B. Dennis Attorneys for Defendant KB Home South Bay, Inc. 19 DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT AGAISNT PLAINTIFF ZENITH INSURANCE COMPANY LA W O FF IC E S O F 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Zenith Insurance Company v. KB Home South Bay, Inc.; Randazzo Enterprises, Inc. Santa Clara Superior Court, Case No. 18CV333370 Our Client: KB Home South Bay STATE OF CALIFORNIA/COUNTY OF LOS ANGELES I am a citizen of the United States and an employee in the County of Los Angeles. I am over the age of eighteen (18) years and not a party to the within action. My business address is 444 South Flower Street, Suite 4100, Los Angeles, CA 90071. On the date set forth below, I served DEFENDANT/CROSS-COMPLAINANT KB HOME SOUTH BAY, INC.'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF ZENITH INSURNACE COMPANY; MEMORANDUM OF POINTS AND AUTHORITIES on the following parties: SEE ATTACHED SERVICE LIST X BY FIRST CLASS MAIL: I caused such envelope to be deposited in the mail at Los Angeles, California. I am readily familiar with the firm's practice for collection and processing of correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. BY FACSIMILE: By personally transmitting a true copy thereof via an electronic facsimile machine, from fax number 213-622-7313 to the fax number(s) listed on the attached service list. BY OVERNIGHT MAIL: I caused the above-referenced document(s) to be delivered to UPS/Federal Express for next day delivery to the address(es) listed on the attached service list. BY ELECTRONIC TRANSMISSION: I electronically mail served the above- referenced document(s) to the persons and e-mails address(es) indicated on the attached service list. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. BY PERSONAL SERVICE: I caused a copy of said documents to be hand delivered to the interested party(ies) at the address(es) on the attached service list. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on November 15, 2019 at Los Angeles, C mia. er Gurze PROOF OF SERVICE LAW OFFICES 0F MANNING GROSS + MASSENBURG LLP QONUIAUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Zenith Insurance Company v. KB Santa Clara Supe Jeffrey J. Williams, Esq. CHERNOW AND LIEB 2 1 25 5 Califa Street Woodland Hills, CA 9 1 367 Tel: 8 1 8-592-3 841; Fax: 8 1 8-227-31 12 Email: iwilliam52@thezenith.com Larry J. Lichtenegger, Esq. LICHTENEGGER LAW OFFICE 3850 Rio Road, #58 Carmel, CA 93923 Tel: 83 1-626-2801; Fax: 83 1-886-1639 Email: 1awyer@mbay.net Home South Bay, Ina; Randazzo Enterprises, Inc. rior Court, Case No. 18CV333370 Attorneys for Plaintiff ZENITH INSURANCE COMPLANY Attorneys for Defendant RANDAZZO ENTERPRISES, INC. SERVICE LIST