Orozco vs. William Lyon Homes, Inc.

Motion for Summary Judgment/Adjudication

Cal. Super. - 4th Dist.August 22, 2014

N E W M E Y E R & D I L L I O N L L P 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NEWMEYER & DILLION LLP JOHN A. O'HARA, CBN 122377 JONATHAN C. TERRY, CBN 164162 JACK M. RUBIN, CBN 278011 895 Dove Street, 5th Floor Newport Beach, California 92660 (949) 854-7000; (949) 854-7099 (Fax) Attorneys for defendant William Lyon Homes, Inc. SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER SALVADOR OROZCO, Plaintiff, Vs. WILLIAM LYON HOMES, INC.; DOES I through XX inclusive, DOE Companies I through XX,inclusive; and DOE Corporations I through XX, inclusive, Defendants. CASE NO. 30-2014-00741314 DEPT: C-15 JUDGE: Honorable Peter Wilson WILLIAM LYON HOMES, INC.’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES [Separate Statement; Declarations ofDonna Porter, Enrique Alvarado, Craig Agrelius, Michael J. Sibley, Jennifer Meekhof, and Jack M. Rubin; Requestfor Judicial Notice; Appendix ofEvidencefiled concurrently; [Proposed] Order lodged concurrently] Hearing Date: July 7, 2016 Hearing Time: 2:00 p.m. Hearing Dept.: C-15 FILE DATE: August 22, 2014 TRIAL DATE: August 8, 2016 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that at 2:00 p.m. on July 7, 2016, or as soon thereafter as the matter may be heard, in Department C-15 of the Orange County Superior Court, located at 700 West Civic Center Drive, Santa Ana, California 92701, defendant William Lyon Homes, Inc. (“WLHI”) will and hereby does move for summary judgment pursuant to California Code of 6026205.1 WLHI’S NOTICE OF MOTION FOR SUMMARY JUDGMENT N E W M E Y E R & D I L L I O N L L P x 9 O o 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Civil Procedure section 437¢ on the ground that WLHI has metits initial burden under 437c¢(p)(2) of presenting evidence showing the existence of a complete defense under the Priverte Rule (or Privette-Toland Doctrine) which barsall of Plaintiff’s claims, and Plaintiff, Salvador Orozco hasfailed to present evidence sufficient to establish a triable issue of material fact as to Plaintiff lawsuit against WLHI.' The motion will be based on this Notice of Motion, the Memorandum of Points and Authorities and its supporting declarations and papers, the reply to be filed, the records and file herein, and such oral and documentary evidence as may be presented at or before the hearing of the motion. Dated: April 22, 2016 NEWMEYER & DILLION LLP By: (exc) CHR ) John A. O’Hara Jonathan C. Terry Jack M. Rubin Attorneys for defendant William Lyon Homes, Inc. ' Due to noncompliance with California Rules of Court, rule 2.112, Plaintiff’s complaint is ambiguous as to the causes of action alleged. However, Plaintiffs opposition to WLHI’s demurrer clarified that Plaintiff was asserting a cause of action for negligence. (Plaintiffs Opposition to WLHI’s Demurrer, p. 1:5-6.) 6026205.1 20. WLHI’S NOTICE OF MOTION FOR SUMMARY JUDGMENT N E W M E Y E R & D I L L I O N L L P O e a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1. INTRODUCTION. Plaintiff Salvador Orozco’s (“Plaintiff”) causes of action” against William Lyon Homes, Inc. (“WLHI™) are all barred by a total defense to liability known as the Privette Rule-a defense that the California Supreme Court has upheld numerous timessince recognizing it in 1993. This Rule, which the California Supreme Court established in Privette v. Superior Court (“Privette”) (1993) 5 Cal.4th 689 [21 Cal.Rptr.2d 72], states that an independent contractor’s employee who is injured on the jobsite cannot sue the hirer of the independent contractor for that injury. The hirer, like the employer, is insulated from liability. Though numerous enterprising attorneys havetried to challenge the Privette Rule since 1993, the High Court has largely responded by expanding the Rule’s application to the point where a hirer has to do something intentional and very foolish to subject itself to even the potential for liability. Here, the undisputed facts show that WLHI did not take any action at all that could be reasonably construed to vitiate its Privette protection. Privette’s progeny is so uniform in holding that the hirer of an independent contractoris protected from liability to the independent contractor’s employee that, since 1993, only three exceptions to the Rule have been recognized. These are: (1) the retained control of safety conditions exception; (2) the preexisting concealed hazardous condition exception; and (3) the hirer supplied defective equipment exception. Here, no facts exist that demonstrate any of these exceptions apply. Rather, all the evidence indicates the exceptions are inapplicable, as WLHI delegated control of safety conditions to Plaintiff's employer, WLHIdid not supply any equipment, and Plaintiff’s injury was not caused by a preexisting hazardous condition on the land. Plaintiff’s injury was caused by his falling while working at a height where no fall protection was required under the law or the relevant standard of care. Thisis tragic. Yet, Plaintiff’s efforts to blame WLHIforthis tragedy are completely barred under the law. The evidence in this regard is overwhelming and one-sided. Under these circumstances, established precedent dictates that the Court should grant WLHI’s motion for summary judgment as to Plaintiffs entire complaint. 2 plaintiffs complaintis unclear on what causes of action are being alleged. However, Plaintiffs opposition to WLHI’s demurrer clarified that Plaintiff was asserting a cause of action for negligence. (Opp. to Demurrer, 1:5-6.) 6026205.1 MEMORANDUM OF POINTS AND AUTHORITIES N E W M E Y E R & D I L L I O N L L P O o ~ ~ O y 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. STATEMENT OF UNDISPUTED MATERIAL FACTS. WLHI hired Premier Framing, Inc. (“Premier Framing”) to perform framing work at the Ora Augusta project (aka “ORA Astoria 60” or just “Augusta”) project in Tustin, California (the “Project”) during 2012. (SUF 1.) From 2012 to the present, Premier Framing has been licensed by the Contractors State License Board (“CSLB”) to perform framing work. WLHIhired Premier Framing to work on the Project as an independent contractor. (SUF 2.) Premier Framing employed Plaintiff to perform framing work, and otherrelated work,at the Project. (SUF 3.) WLHI did not provide Premier Framing or Plaintiff with any equipment or framing materials to use while working on the Project. (SUF 4.) WLHI expressly delegated the responsibility to maintain safety conditions at the worksite to Premier Framing. (SUF 5.) WLHI’s subcontract with Premier Framing (the “Subcontract”) expressly sets forth this delegation of responsibility. (SUF 5.) Specifically, the Subcontract states: Subcontractor is solely responsible and liable for executing its work in a safe and prudent manner,for establishing safety procedures and for protecting its employees and the public from property damage and/or injury during the performance of its work underthis Agreement. Safe Project conditions and safe working practices are solely the responsibility of Subcontractor and shall be followed at all times. Subcontractor, as controlling employer of its employees on multi-employer Projects shall be responsible with respect to the Subcontractor’s employees and Subcontractor’s work the Project for complying with al health and safety laws,rules, regulations and orders including, but not limited to OSHA and Cal OSHA;for implementing and enforcing an Injury and Illness Prevention Program; for checking that all equipment, tools, ladders, scaffolding and material to [use] on the Project are in safe working order; and for developing a fall protection plan for their employees. Subcontractor is specifically responsible and liable for all aspects of its use of work space jointly used by different subcontractors, and Contractor specifically does not retain supervisory control of such joint use areas for purposes of liability for unsafe conditions. (SUF 6.) WLHI did not take any actions inconsistent withits delegation ofsafety responsibility.to Premier Framing. Specifically, WLHI took no actions to retain control over safety conditions at the worksite including the safety conditions for Premier Framing’s employees. (SUF 7.) WLHI did not direct, inhibit, or advise Premier Framing regarding the use of fall protection at the Project. (SUF 8.) Premier Framing exercised total control over the decision whether and when to install or require its employees to use fall protection. (SUF 8.) WLHI and Premier Framing 6026205. 1 2. MEMORANDUM OF POINTS AND AUTHORITIES N E W M E Y E R & D i L L I O N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 agree that delegating responsibility over safety conditions to the subcontractoris beneficial to the subcontractor’s employees because the subcontractor’s foreman or manageris in the best position to assess the safety requirements for the employees on a given job. (SUF 9.) On August 22, 2012, at 1:45 p.m., Plaintiff was performing framing work on the second floor of a new home under construction in the Project. (SUF 10.) The home (the “Home”) is located on lot 198 of tract 16581, in Tustin, California. (SUF 11.) When Plaintiff was working on the Home, the highest point on the second floor accessible for Plaintiff to work or walk on was not higher than 12 feet off the ground or surrounding grade. (SUF 12.) This calculation is based on several witnesses’ visual estimates and an analysis of the plans starting with the ceiling height (9 feet 1 inch or 109 inches) or a portion of the ceiling height (104 inches) plus sheeting/plywood and plates (4 inches), then adding a 16 inch joist, and an inch of plywood. Plaintiff utilized this calculation twice during his deposition. (SUF 13.) “The hazardous and dangerous condition [Plaintiff is alleging] was specifically the lack of fall protection or safety devices for workers working on the second floor of the structure situated on [Lot 178].” (SUF 14.) Both Premier Framing and Plaintiff were aware that there was no fall protection in place on the Home before Plaintiff started working on the Home. (SUF 15.) Plaintiff actually admitted in written discovery that Premier Framing was aware. (SUF 15.) Plaintiff also admits the lack of fall protection was open and obvious. (SUF 16.) On August 22, 2012, while “doing framing work on the second floor” of the Home, Plaintiff fell and was injured (the “Incident”. (SUF 17.) Plaintiff was not higher than 12 feet off the ground when he fell. (SUF 18.) When asked in deposition whether he was careless and if that is what caused his fall, Plaintiff responded as follows: “A momentofcarelessness, a misstep and I meanit was the way I fell. I got too close to the edge, I stepped on the wood that was on the edge and I went down.” (SUF 19.) When it was pointed out to him that he had notfallen at the two other buildings he had worked on that did not have fall protection, he responded: “Well, no, I mean the one I fell in was where I had bad luck. Just a moment of carelessness.” (SUF 19.) Today and at the time of the Incident, the Cal/lOSHA standard set forth in California Code 6026205.1 -3- MEMORANDUM OF POINTS AND AUTHORITIES N E W M E Y E R & D I L L I O N L L P I n O o 0 ~ ~ O Y W n 10 11 12 13 14 15 16 17 18 19 20 21] 22 23 24 25 26 27 28 of Regulations,title 8, section 1716.2 has been the specific standard that delineates the circumstances in which fall protection must be installed to protect employees working as framers. (SUF 20.) Section 1716.2, subdivision (f), states (and stated in 2012) that fall protection is required when the employee is working on a floor or walking/working surface that is over 15 feet above the surrounding grade or floor level below. (SUF 20.) Thisis the same standard that has been in force since 2004 and it is stil in force today. (SUF 20.) The 15 feet requirement in California Code of Regulations,title 8, section 1716.2, subdivision (f), was not only the relevant standard under Cal/OSHA in 2012 (and still is today) for installing fall protection for employees working as framers,itis also the standard of care in the California residential construction industry under those circumstances. (SUF 21.) The Incident was reported to Cal/OSHA. (SUF 22.) An investigation took place, but no citations or penalties were issued relating to the Incident. (SUF 22.) A. Procedural History and Discovery. This action wasfiled on August 22, 2014. (SUF 23.) There has been one continuance of trial, which the parties stipulated to in late September 2015. (SUF 23.) The parties stipulated to the continuance to avoid prejudicing WLHI after Plaintiff was not produced on his originally noticed deposition date due to the sudden illness and compacted schedule of Plaintiffs counsel. (SUF 24.) WLHI’s counsel conveyed to Plaintiff's counsel in writing that Plaintiff’s unavailability would significantly prejudice WLHI by threatening WLHI’s ability to file a timely motion for summary judgmentin this matter. (SUF 25.) Thus, Plaintiff's counsel has known since September 2015 at the latest that WLHI has been contemplating filing a motion for summary judgment. (SUF 25.) Trial is currently set for August 8, 2016. (SUF 26.) WLHI’s counsel deposed Plaintiff over the course of two half-day sessions (per Plaintiff’s request) in February-March 2016. (SUF 27.) Plaintiff served WLHI with written discovery in May 2015, to which WLHI timely responded. (SUF 27.) Plaintiff has not noticed any depositions or expressed any interest in noticing any depositions during the course ofthis action. (SUF 28.) WLHI has done nothing to prevent or deter Plaintiff from taking further discovery in this action. (SUF 28.) 6026205.1 -4- MEMORANDUM OF POINTS AND AUTHORITIES N E W M E Y E R & D i L L I O N L L P S N D X v 3 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. SUMMARY JUDGMENT STANDARD. A defendant may move for summary judgment by establishing that a cause of action has no merit. Code of Civil Procedure section 437¢ states: A defendant ... has met [its] burden of showing that a cause of action has no merit if [it] has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437¢, subd. (p)(2); see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851 [107 Cal.Rptr.2d 841].) A defendant may carry its burden on summary judgment by showing that “the plaintiff cannot establish at least one element ofthe cause of action-for example, that the plaintiff cannot prove element X.” (Aguilar, supra, 25 Cal.4th at p. 853.) As the California Supreme Court noted: “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence ....” (See id. at p. 855.) For summary judgment or adjudication purposes, a moving party can rely on admissions of material fact made in the opposing party’s pleadings, responses to discovery, and testimony of witnesses at noticed depositions. (See 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1210-1211 [78 Cal.Rptr.2d 533]; Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162 [80 Cal.Rptr.2d 66].) The court shall grant the motion if it determines from the evidence presented that Defendant has presented evidence showing there a complete defense barring Plaintiffs claims under Code Civ. Proc., § 437¢, subd. (p)(2) and “there is no triable issue as to any material fact and that the moving party is entitled to judgmentas a matter of law.” (See Code Civ. Proc., § 437c, subd. (c).) 4, THE PRIVETTE RULE PROTECTS WLHI AND NO EXCEPTION APPLIES. A. The Birth and Development of the Privette Rule. The general rule in California, which has been repeatedly reaffirmed by the California Supreme Court, is that an employee of an independent contractor who is injured in the workplace cannot sue the party that hired the contractor to do the work. (SeaBright Ins. Co. v. US Airways, 6026205.1 -5- MEMORANDUM OF POINTS AND AUTHORITIES N E W M E Y E R & D i L L I O N L L P O o N N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Inc. (“SeaBright”) (2011) 52 Cal.4th 590, 594 [129 Cal.Rptr.3d 601].) This general rule is known as the Privette Rule, named after the 1993 California Supreme Court case that established this general rule of no liability.” (Id. [citing Privette v. Superior Court (1993) 5 Cal4th 689 [21 Cal.Rptr.2d 72] and Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 [74 Cal.Rptr.2d 878]].) In its 2011 decision in SeaBright the California Supreme Court summarized the original reasoning behind the Priveffe Rule: [In Privette, wle noted that work-related injuries are compensable under our state's Workers' Compensation Act (§ 3200 et seq.). [Citation.] Moreover,that act affords ‘the exclusive remedy ... for injury or death of an employee’ ” against an employer who obtains workers’ compensation insurance coverage. [Citation.] In light of that limitation on the independent contractor's liability to its injured employee, Privette concluded that it would be unfair to permit the injured employee to obtain full tort damages from the hirer of the independent contractor. That was especially so because (1) the hirer likely paid indirectly for the workers’ compensation insurance as a component of the contract price [citation], (2) the hirer has no right to reimbursement from the contractor even if the latter was primarily at fault [citation], and (3) those workers who happen to work for an independent contractor should not enjoy a tort damages windfall that is unavailable to other workers [citation]. We further noted that workers' compensation serves the same policies as the peculiar risk doctrine: It ensures the availability of compensation to injured employees, spreads the risk created by a contractor's work to those who benefit from the work, and encourages workplace safety. [Citation.] (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 598-599 [129 Cal .Rptr.3d 601].) In Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 [74 Cal.Rptr.2d 878], the California Supreme Court provided additional foundation for the Privette Rule. The Toland Court explained that another reason for the general rule that the hirer of an independent contractor is not liable for injuries to employees of the independent contractor is that hirers have the “right to delegate to independent contractors the responsibility of ensuring the safety of their own workers.” (Toland, supra, 18 Cal.4th at p. 269.) In Kinsman v. Unocal Corp. (2005) 37 Cal.4th 3 The Privette Rule is sometimesalso referred to as the Privette-Toland doctrine based on the Privette decision and the 1998 California Supreme Court decision of Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 [74 Cal.Rptr.2d 878], which expanded the Privette general rule of no liability. (Brannan v. Lathrop Const. Associates, Inc. (2012) 206 Cal.App.4th 1170, 1175 [142 Cal.Rptr.3d 336].) 6026205.1 -6- MEMORANDUM OF POINTS AND AUTHORITIES N E W M E Y E R & D I L L I O N L L P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 659 [36 Cal.Rptr.3d 495], the California Supreme Court further emphasized this concept of delegation, holding that “a hirer is presumed ‘to delegate to an independent contractor the duty to provide the contractor's employees with a safe working environment.” ” (SeaBright Ins. Co., supra, 52 Cal.4th at p. 600, emphasis added [citing Kinsman, supra, 37 Cal.4th at p. 671.) In SeaBright, the California Supreme Court also emphasized the broad scope of the hirer’s presumptive delegation to an independent contractor of the duty to provide a safe work environment to the independent contractor’s workers. The SeaBright Court held that a hirer cannot be held liable to an independent contractor's employees for workplace injuries, even when those injuries allegedly resulted from the hirer's failure to comply with Cal-OSHA safety requirements and regulations. (SeaBright Ins. Co., supra, 52 Cal.4th at p. 603.) The Privette rule protects not only the hirer of an independent contractor, but also the hirer of the hirer of the independent contractor, and the hirer of the hirer of the hirer of an independent contractor. (Zamudio v. City and County ofSan Francisco (1999) 70 Cal.App.4th 445, 448-450 [82 Cal.Rptr.2d 664][landowner hired construction manager who hired independent contractor]; Tverberg v. Fillner Const., Inc. (2010) 49 Cal.4th 518, 521, 528-529 [110 Cal.Rptr.3d 665] [general contractor hired subcontractor who hired another subcontractor who hired independent contractor].) These cases affirm the general rule that employees of independent contractors, such as Plaintiff, will not be able to state a cause of action against the hirers of the independent contractors for injuries sustained at the worksite. B. WLHI Is Protected by the Privette Rule. Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267 [81 Cal.Rptr.3d 601], involved a construction site injury lawsuit in which the plaintiff fell from a platform and was injured, and he sued the hirer of his employer based on the theory that the hirer was responsible for the absence offall protection. (Id. at pp. 1270-1271.) In its decision granting the hirer’s motion for summary judgment, the appellate court explained the requirements to establish application of the Privette Rule: 6026205. 1 -7- MEMORANDUM OF POINTS AND AUTHORITIES N E W M E Y E R & D I L L I O N L L P l e E E ) O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It was undisputed that Summit View was the general contractor and Madden was an employee of the subcontractor at the Welsh construction site. It was undisputed that Summit View had no control over the methods and supplied none of the materials that Madden's employer used for its electrical work at the site. Consistent with the Privette-~Toland line of cases, these facts were sufficient to shift the burden to Madden to produce evidence that Summit View nonetheless retained control over safety conditions and practices at the site, and that it contributed by its affirmative conductto an unsafe condition or practice that caused Madden's injury. (Id. at pp. 1275-1276.) Here, there can be no reasonable dispute that: (1) WLHI hired independent contractor Premier Framing who employed Plaintiff to perform work on the Project (SUF 1-3), and (2) WLHI did not control the Premier Framing’s work with respect to safety nor did it supply Premier Framing with any materials (SUF 4-8). Thus, the Privette Rule covers WLHL Having demonstrated the application of the Privette Rule, the burden shifts to Plaintiff to prove that one ofthe three recognized exceptions to the Privette Rule applies. (Madden, supra, 165 Cal.App.4th at p. 1276.) These exceptions are explained below. C. Plaintiff Cannot Satisfy His Burden of Showing that One of the Three Recognized Exceptions to the Privette Rule Applies. 1) The Retained Control Over Safety Conditions Exception Does Not Apply Here Because WLHI Did Not Actively Participate in Controlling Safety Conditions for Premier Framing’s Employees. In its 2002 decision in Hooker v. Department of Transportation (2002) 27 Cal.4th 198 [115 Cal.Rptr.2d 853], the California Supreme Court established an exception to the Privette rule when the hirer of an independent contractor retains control over safety conditions at the worksite, and the hirer’s negligent exercise ofthat control affirmatively contributes to the plaintiff's injury. (Id. at p. 202.) [A] hirer of an independent contractoris 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. (Ibid) 6026205.1 -8- MEMORANDUM OF POINTS AND AUTHORITIES N E W M E Y E R & D i t L I O N L L P w n B x W N O 0 0 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This exception rarely applies, as “[g]enerally, when an independent contractor is hired to perform inherently dangerous work, the contractor receives authority to determine how the work is to be performed and assumes a corresponding responsibility to see that the work is performed in a safe manner.” (Tverberg v. Fillner Const., Inc. (2012) 202 Cal.App.4th 1439, 1446 [136 Cal.Rptr.3d 521].) [Passively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution. [Citations.] The failure to institute specific safety measures is not actionable unless there is some evidence that the hirer or the contractor had agreed to implement these measures. [Citation.] Thus, thefailure to exercise retained control does not constitute an affirmative contribution to an injury. Such affirmative contribution must be based on a negligent exercise of control. [Citation.] In orderfor a worker to recover on a retained control theory, the hirer must engage in some active participation. [Citation.] (Ibid., emphasis added.) Here, Plaintiff cannot demonstrate the exception applies because the evidence overwhelmingly shows WLHI delegated control over safety conditions to Premier Framing and did not take any actions it retained any measure of control that might have affirmatively contributed to Plaintiff’s injury. 2) The Concealed Preexisting Hazardous Condition Exception. In Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 [36 Cal.Rptr.3d 495], the California Supreme Court established an exception to the Privette Rule for injuries to employees of independent contractors caused by concealed preexisting hazardous conditions on the owner’s premises. (Id. at pp. 674-675.) This exception requires that the plaintiff employee demonstrate: (1) defendant landowner knew or reasonably should have known of a concealed preexisting hazardous condition on its premises; (2) the plaintiff’s employer did not know and could not reasonably ascertain the condition; and (3) defendant landownerfailed to warn plaintiff's employer of the concealed hazardous condition. (Ibid.; Gravelin v. Satterfield (2011) 200 Cal.App.4th 1209, 1215 [132 Cal.Rptr.3d 913].) Plaintiff asserts the concealed preexisting hazardous condition at issue is the absence of fall protection at the Home. (SUF 14.) He admits both he and Premier Framing knew ofthis 6026205.1 -9. MEMORANDUM OF POINTS AND AUTHORITIES N E W M E Y E R & D I L L I O N L L P A N «w w N N W n - S O 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 condition before he began working on the Home, and that the condition was open and obvious. (SUF 15-16.) Accordingly, Plaintiff cannot satisfy this exception. 3) The Provision of Defective Equipment Exception. In McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219 [115 Cal.Rptr.2d 868], an exception to the Privette Rule was recognized where a hirer negligently provides defective equipmentto the independent contractor’s employee and that equipment causes the employee to suffer an injury. (Jd. at p. 225.) The exception does not apply if the hirer does not provide equipment. (Elsner v. Uveges (2004) 34 Cal.4th 915, 937 [22 Cal.Rptr.3d 530].) Plaintiff admits WLHI provided no equipment. (SUF 4.) S. CONCLUSION Plaintiff can point to only one fact to try to push his claims in front of a jury: he was injured. This is a tragedy. However,it is not enough to state a prima facie case against WLHI under any cause of action in light of the Privette Rule. Accordingly, WLHIrequests that the Court grant its motion for summary judgmentas all of Plaintiffs’ claims. Dated: April 22,2016 NEWMEYER & DILLION LLP By: JeoCK John A. O’Hara Jonathan C. Terry Jack M. Rubin Attorneys for defendant William Lyon Homes, Inc. 6026205.1 -10 - MEMORANDUM OF POINTS AND AUTHORITIES