Teresa Johnston vs. University Community association

Opposition

Cal. Super. - 4th Dist.June 8, 2017

OW 00 ~N 6 Oo hh W N = N N N N D N D N DN DN DN D D N A Aa am dy d d a d A a wm 0 ~N O O O0 1 A W N ~~ O OW 00 N O O OO BD W N ~~ © Gary A. Dordick, Esq. S/B# 128008 John M. Upton, Esq. S/B# 162858 Christopher V. Bulone, Esq. SB# 278882 DORDICK LAW CORPORATION 509 South Beverly Drive Beverly Hills, California 90212 Tel: (310) 551-0949 « Fax: (855) 299-4444 Attorneys for Plaintiff Mercedes Carranza ELECTRONICALLY FILED Superior Court of California, County of Orange 12/21/2018 at 02:35:00 PM Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE MERCEDEZ CARRANZA, individually and as Successor-In-Interest to ELMAN RIGO CANO, Plaintiff, Vv. DRIVER URBAN; CAL COAST STUCCO, INC.; INDEPENDENT MASONRY CORP; ELVISTA CONCRETE, INC.; and DOES 1 to 100, Inclusive, Defendants. Case No: 30-2017-00937562-CU-PO-CJC Assigned for all purposes to: Hon. David Chaffee, Dept. C20 OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT [Filed concurrently with Separate Statement, Separate Volume of Documentary Evidence; Declaration of Eugene Litwin, Declaration of John M. Upton] Date: January 4, 2019 Time: 9:30 am Dept: C20 Complaint filed: August 14, 2017 Trial: February 4, 2019 PLEASE TAKE NOTICE that MERCEDEZ CARRANZA, individually and as Successor-in-Interest to ELMAN RIGO CANO, (hereinafter, "Plaintiffs") will and hereby does oppose the Motion for Summary Judgment of Defendant Driver Urban (hereinafter “Defendant” or “Driver”) on the following grounds: 1 1. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN’S MOTION FOR SUMMARY JUDGEMENT © 00 ~N OO OO Ah W O N = N N D DN DN D N D N DND N D N D N QO ab d a a a a d c d s d e d dv a n 0 ~N O O O r A W N =~ O OW 0 N N O O 01 dB O N ~~ OO Il i I if Decedent Elman Rigo Cano (“Decedent” or “Rigo”) died when he slipped on accumulated stucco debris and fell from the fourth tier of a scaffold tower on a construction project in Fullerton, California. Decedent was in the course and scope of his employment with one of the project's subcontractors at the time of his fall. Defendant Driver Urban was the project general contractor. Decedents brought a wrongful death action against the Defendants, including Defendant Driver Urban In its Motion, Defendant Driver contends that under Privette, Plaintiff cannot maintain a viable cause of action against it. Plaintiff, on the other hand, contends there are triable issues of material fact establishing a well-recognized exception to Privette allowing an action in tort against the hirer of an independent contractor if the hirer (in this case, Defendant Driver) 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).) Plaintiff maintains that Defendant Driver negligently exercised control over the jobsite when it scheduled decedent's employer, Mas Iron Co., to work on a scaffold level that it knew was slippery and dangerous and that it has failed to have cleaned after representing to Mas Iron that it would do so before having it work there. The facts in the case at hand establish a Hooker exception to the Privette doctrine, and Defendant's Motion should be denied. Z OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT 0 N N O O O B A W N = 11 12 13 14 16 16 17 18 19 20 21 22 23 24 25 26 er 28 This Opposition is based on the accompanying Memorandum of Points and Authorities, the Declaration of John M. Upton in Support of Continuance; Declaration of John M. Upton in Support of Opposition; Declarations of Eugene Litwin, the Separate Statement, the Separate Volume of Documentary Evidence in support thereof, the papers, records, and files in this action, and such oral and documentary evidence as may be presented at the time of the hearing. DATED: December 21, 2018 DORDICK L ristopher V. Bulone, Esq. Attorneys for Plaintiff 3. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT © 0 ~N OO O A W N =a N N N N N N N N DN DN N N N QQ aA ag QQ oO QO QO a wa o w 00 ~N O O O v A W N = O © 00 N N O O O F hh W O N ~~ OO TABLE OF CONTENTS INTRODUCTION. «cities reece eee eect eet aera eee bean ea ea anaaas 6 STATEMENT OF FACTS... eee e aaa 7 A. The Subject Incident...........c. onic eee 7 B. Construction Site Management 101.............coiiiiiiii eee, 10 C. Driver Urban’s maintained control of the Malden Station project and its SUBCONEFACIONS. ......c.viiiniiiiii ieee eeeereeeee 11 1. The General Contract...........ccovviiiiiiiiii icici, 11 2. The Subcontracts.........ovvvviiiiiii ee, 13 LEGAL STANDARD ON MOTION FOR SUMMARY JUDGMENT...........c........ 14 LEGAL ARGUMENT .. cuits reer sere saree esa eae aas 15 A. The Privette DOCHING. .......ovveiiiiiiiieiie cee eee e e rea 15 B. Exception to Privette: Hooker and “retained control” ................c.c........ 16 C. Triable issues exist with regard to Defendant Driver's retention oF COMO. wmmmes : ss seommesmns « 5 swsmmmnss § § 3 SmwEED-S 15 3 688 BLE » « » sonmomne 17 D. Triable issues exist with regard to DEFENDANT's affirmative and negligent exercise of its retained control leading to the death of decedent...........c.oooiiiiiiiii en 18 4. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT OW 00 N N O O OO Bh W N = N N N N N N D ND DN DN DN DN DN @ aA ama a a d a d dd dv e d we 0 ~N O O O F A W O N 2 O O O W 0 N N O O O A W O N = O Table of Authorities Cases Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 ..........cccceevrirecceeeeireneeennan, Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.........cccceverrcueennen. Brannan v. Lathrop Construction Assocs., Inc. (2012) 206 Cal.App.4th 1170 ......... 18, Brantley v. Pisaro (1996) 42 Cal. App.4th 1591 .......cceieieeeee ce cre r er Browne v. Turner Const. Co. (2005) 127 Cal.App.4th 1334, 1345........ccccovvvvevirecinnnenns Estate of Nelson (1964) 227 Ca2d 42...........coueeveireeieeeeeeieeceeeeecene cre ereeene e esse sne e nns Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198 ........ccccccvvevveenvenns 6, 15, 16, Martins v. Winder (1961) 191 Ca2d 143 ........ooooiiecieecreeeeeecreeeree eee er ct ess s ene McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal. 4th 219 ........eeeeeeeveeeeeeeeeeeeeeeeeeennn. Millard v. Biosources, Inc. (2007) 156 Cal. App. 4th 1338.........ccoeeeevevveeevevveverrvvciveenens Privette v. Superior Court (1993) 5 Cal.4th 889............ccceeevveeceeeieecieecee e e 6, 15, Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120.........cccovvevvveiverrrereeereee SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590 ..........c.ccoevvevviirincnnnns 6, TVEIDOIG V. FllNEF ........oooeeeetieeeeee ete eee este ee staessetaes seas ss tb ess se eseenessennee ae Statutes CCP A370 coiiiiiiitteee eee e erate eset ease aett eae essa ea na eb etna tees see aeaanrneraaesas Other Authorities Weil & Brown, Civil Procedure Before Trial, Chap. 10--Summary Judgment, 10:270- 5. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT OW 00 N N OO O h W O N = N N N N N D N N N N D N N = a d m a m d m d md m d m d w d o n WW ~N O O O F Ah W N 2 O O OW 00 N O OO A O W N 2 OO POINTS AND AUTHORITIES l. INTRODUCTION Elman Rigoberto “Rigo” Cano, age 29, lost his life on August 24, 2015 when he slipped on accumulated stucco gravel and fell nearly thirty feet from the fourth tier of a scaffolding tower that had been erected on a construction site in Fullerton, California. His mother, Plaintiff Mercedez Carranza, brought suit for the wrongful death of her son. Mr. Cano was employed at the time with Mas Iron Co., a subcontractor working at Malden Station, a multi-level, multi-residential new construction jobsite in Fullerton, California. The general contractor on the project was Defendant Driver Urban. The stucco subcontractor was Defendant Cal Coast Stucco. Defendant Driver Urban (‘Driver’) has 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), Plaintiff's exclusive remedy was under the workers' compensation system and that was barred from seeking a damage recovery against Driver as the hirer of the independent contractor that employed him. Plaintiff, on the other hand, contends there are triable issues of material fact establishing a well-recognized exception to Privette which 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).) Plaintiff maintains that Defendant Driver negligently exercised control over the jobsite when it scheduled decedent's employer, Mas Iron Co., to work on a scaffold level that it knew was slippery and dangerous and that it has failed to have cleaned after representing to Mas Iron that it would do so before having it work there . For all such reasons, the Hooker exception applies, and Defendant's Motion should be denied. 6. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT WOW 00 N N OO O r Ah W N = N N ND N N N D D N D N N N N A aA AQ Q Q @ OQ a2 a a o a 0 ~N O O O O A W N =~ O O WOW 0 N O O W Bb W N ~~ O [NX STATEMENT OF FACTS A. The Subject Incident On August 24, 2015, Defendant Driver Urban had scheduled Mas Iron, a commercial contracting company specializing in ornamental iron and structural steel, to perform some of its work on the fourth level of the scaffold tower at the Malden Station new construction jobsite in Fullerton California. [Plaintiff's Additional Undisputed Material (hereinafter “AUMF “) #15.] Mas Iron had four employees at Malden Station that day- a foreman, Abel Ramirez, and three helpers- Decedent Rigo Cano, Oscar Caceras, and Fabian Mony. [AUMF #16.] When his crew arrived that morning, Abel conducted a safety and planning meeting to prepare them for their assignments that day. [AUMF #17.] The plan for Oscar and Rigo was to have them run a string line along the wall adjacent to the fourth level of the scaffold tower, to mark locations where trellises would be installed at a later time, and to make cutouts for those pieces. [AUMF #18.] Fabian was to work in another area of the project. [AUMF #19.] At the conclusion of the meeting, Abel took Oscar and Rigo to the section of the scaffold tower where they were going to be making these measurements. [AUMF #20.] When they arrived on the fourth level of the tower, Abel and Oscar both noticed a considerable accumulation of gravel-like stucco debris on the flooring planks of the scaffold. [AUMF #21.] In fact, when Abel began demonstrating how he wanted Oscar and Abel to do the job, he slipped on this gravel-like stucco on the flooring planks and had to grab onto a guardrail to steady himself. [AUMF #22.] After finishing the demonstration, he left the scaffold to consult with one of Driver Urban’s superintendents about these slippery and unsafe conditions, leaving Oscar and Rigo on the scaffold to run the string line and mark locations. [AUMF #23.] 1 7. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT © 00 N N O O O r Ah W N ~~ N N N D N N D N D N N N D M N QO a a a a a a a a a a 00 ~N O O O F pA W N 2 O O © 0 ~N O O O v db W O N ~~ OO Abel found one of Driver Urban'’s project superintendents and reported on conditions of the fourth level of the scaffold tower, telling him that he thought the scaffolding was unsafe and slippery. [AUMF #24.] Driver Urban’s superintendents had previously advised Mas Iron that the fourth-level scaffold would be cleaned before Mas Iron would be asked to perform work on this level. [AUMF #25.] The clean-up, however, was not done. [AUMF #26.] Abel Ramirez's recollection of this exchange, expressed during his November 20, 2018 deposition, is as follows Are you familiar with the name Jason King? Is that- Yes. Is that the superintendent from- Yes. -- from Driver Urban? Uh-huh. Is that the man that you went and discussed scaffolding with- He was -- -- that morning? He was one of the ones that | brought up to the attention. Okay. And did you tell him that you thought the scaffolding was unsafe? That it was slippery? Yes. What did he say? That they were going to clean it. Where did you have this conversation with him? Was it in the trailer or outside? Oh, man. don't know if | met him halfway to the trailer when | was walking over there or at the actual trailer. | don't recall. > 0 PO P > Dp ®0 Pp PO PP PJ 8. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT © 00 N N O O G h , W N N N O N N N N D ND NN DND N N N D B @Q@ A a aa wd a d e d o d o d 0 ~N O O O F Bh W N ~~ © OW 0 ~N O O O h Ah W N ~~ OO Q. And what did you specifically tell him about the condition of the scaffolding? A. They had called us prior to showing up that day that they needed this done, so we had went there before, and it wasn't ready. When | mean it wasn't ready that it wasn't, you know, accessible. So we didn't we didn't do anything. So when we went back again, "Oh, yeah. It's cool. It' s clean. It's ready. You know, it's going to be clean.” So that day they were supposed to clean it, | guess, and it wasn't. ‘Oh, we were going to clean it.” [AUMF #27.] Despite failing to deliver on assurances that the debris on the fourth scaffold level would be cleared before Mas Iron would be asked to perform its work there, and despite being advised of the slippery and unsafe conditions there by Abel Ramirez on the morning of August 24, 2015, Driver Urban’s superintendent told Abel that they needed Mas Iron to get their job done using words like “we need to get that done,” “how are you going to do it” and “when are you going to do it.” [AUMF #28.] Feeling pressure from Driver Urban to get the job done despite these dangerous conditions, Abel and his crew, including Oscar and Rigo, continued to work up to the time of Rigo's fall. [AUMF #29.] When Abel left the scaffold tower to consult with Defendant Driver's superintendent, Oscar and Rigo began carrying out their work duties on the fourth level of the tower. [AUMF #30.] They spent approximately fifteen minutes analyzing the assignments that Abel had given them before running the string line. [AUMF #31.] They affixed the string line to a point on one side of the building and walked it over to the other side. [AUMF #32.] Once this was done, Rigo had to go back and re-check the initial attachment. [AUMF #33.] Oscar held on to the one end while Rigo went to check on the other. [AUMF #34.] Oscar then focused his attention elsewhere and he did not watch Rigo as Rigo walked back across the fourth level of the scaffold tower. [AUMF #35.] Ten to fifteen seconds later, Oscar heard a loud bang from the direction that Rigo had walked. [AUMF #36.] Oscar turned around but did not see Rigo. [AUMF #36.] He then looked down and saw Rigo face down on the ground thirty feet below. [AUMF #37.] /] 9. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT © 0 N N O O O F Hh W O N = N N DN ND D N D N DN MN DN 2 a a a aa a a a aa aa C0 ~N OO OO Hh W N = O © 0 N N O O bp W O N ~~ © No witness saw Rigo fall, but there is ample evidence that he slipped due to the accumulated stucco debris on the scaffold floor, lost his balance, fell out of the scaffolding structure, bounced off of the roof of a portable toilet on the way down, and landed hard on the ground. Rigo died from his injuries approximately an hour later. [AUMF #38] Defendant Cal Coast Stucco, Inc. had been applying the stucco materials to the surface of the building in the days preceding the incident. [AUMF #65.] As they did their work, stucco plaster overspray would drop and accumulate on the wood flooring planks of the scaffold tower structure, including those on the fourth level. [AUMF #66.) This accumulation of stucco debris caused that surface to become quite slippery. Both Oscar Caceras and Abel Ramirez stated that the stucco plaster and debris collected on the scaffolding planks and made for a slippery working surface. [AUMF #40.] Despite representations from Defendant Driver that it would see that this debris was removed before Mas Iron commenced the work scheduled for August 24, 2015, the Mas Iron crew had to begin their string-line work before the stucco debris was removed. [AUMF #25, 26, 27, 28, 29.] B. Construction Site Management 101 A construction site is, by its very nature, almost always going through a state of change. In a properly managed project, these changes do not occur in a haphazard or random fashion; to the contrary, there is necessarily a sequence of events in which various basic construction tasks need to be performed- clear and stake the lot, install temporary utilities, clear and rough grade, excavate, pour footings, foundation, sewer, backfill, slab plumbing, slab, framing, etc. [AUMF #50.] Many of these tasks must be performed sequentially, others may be performed simultaneously. [AUMF #50.] On multi-contractor construction sites, the various trades and subcontractors will often need to perform their respective work assignments in the same location on the jobsite, but they cannot all work on the same part of the project at the same time. [AUMF #50.] 10. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT © 00 N N O O OO AA W N N N N N N N N D N N DN DN NM NN 2 a dd a d a a c d c d w d 0 ~N O O O h A W N =~ O O © 0 N O OO A W O N ~~ O Accordingly, it is the responsibility of the general contractor to orchestrate and develop a construction schedule to effectively manage the process for efficiency and safety purposes (one contractor cannot be welding in the same area where other trades may be attempting to apply stucco or paint, for example). [AUMF #50.] It is also commonplace on construction sites for usage of certain equipment to be shared by various contractors sequentially. [AUMF #51.] Cranes and scaffolding are typical examples of equipment shared in this manner. [AUMF #51.] Many different trades may need use of a scaffold tower on a jobsite, and it would be extraordinarily burdensome and wasteful for each contractor to set up a tower for its own use, take it down when they are done, and then have the next contractor start all over with erecting a new scaffold tower at that same spot. [AUMF #51.] Instead, one contractor erects a scaffold tower and leaves it up for other contractors to use when needed. [AUMF #51.] The general contractor who controls when the scaffold is used by each successive subcontractor, and this usage control is typically accomplished through the general contractor's construction schedule. [AUMF #1.] In short, while the means and methods of how the subcontractors perform their work and manage their employees is typically under the subcontractors’ control, the timing and sequence of when and where they perform their work is under the control of the general. [AUMF #52.] C. Defendant Driver Urban maintained control of the Malden Station project and its subcontractors. Defendant Driver's control over the project and its subcontractors is documented in the Construction Agreement with the project owner and in the subcontractor agreements. 1. The General Contract Defendant Driver was retained by the owner of the Malden Station project, LMC Malden Station Holdings, LLC, as the general contractor for this project pursuant to an 11. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT © 00 N N O O OO Bh W N N N D N D N DN N D DN D N D N a aA aA @a a a a a a aa 0 ~N O O O O BH W N =~ O O © 00 N O OO b&b W N ~~ OO April 25, 2014 “Construction Agreement.” [AUMF #53.] That Construction Agreement specified the duties and responsibilities of Defendant Driver, including: Article 3.3: “Contractor shall cooperate with Owner and with separate contractors employed by Owner to coordinate the Work and facilitate the prompt performance of the work of other trades and to ensure first class workmanship and the proper sequence of work on the Project.” [AUMF #53, 54.] Article 3.10: “Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for, and have control over, construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract. The Contractor shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures.” [AUMF #55.] Article 3.26: “Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. Continually throughout the Project, the Contractor shall remove waste materials, rubbish, the Contractor's tools, construction equipment, machinery and surplus materials from the Project. [AUMF #56.] Article 10.4: “Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to employees on the Project and other persons who may be affected thereby.” [AUMF #57.] Article 11.2: “Contractor shall submit to Owner for review a detailed critical-path- method schedule ... (the " Performance Schedule"). The Performance Schedule shall represent Contractor's best judgment as to how it shall complete the Work, and any other procurement and construction activities required to complete the Work.” [AUMF #58.] Article 11.3: “[tlhe Performance Schedule shall contain an appropriate level of detail, satisfactory to Owner, and at a minimum show a sequence of activities including: the separate phases of Work to be performed by Contractor and its Subcontractors; the 12, OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT 0 N N O O O A W N = N N D N D N N N N N ND N N A @& a a dv aa ad c a a a a 0 ~N O O O r A W N =~ O O © 00 N O OO W N ~~ O © anticipated commencement, detailed sequencing, and completion of construction and procurement activities, by area, including the early/late start dates and finish dates and available float for each activity; and an uninterrupted critical path from commencement of the Work through Final Completion of each designated portion of the Work and the entire Work.” [AUMF #59.] Article 11.7: “Contractor shall coordinate the Work with the work of Owner's other contractors, if any, in such manner to ensure that no delays or interferences will occur in completion of any part or all of the Project.” [AUMF #60.] In short, per the terms of the Construction Agreement, Defendant Driver retained ultimate control over the Malden Station jobsite. It had a duty to supervise the work done on the jobsite, to manage and schedule the subcontractors, to keep the jobsite free of accumulated waste materials, and to take measures necessary to preserve the safety of those working on the jobsite. 2. The Subcontracts Defendant Driver and Defendant Cal Coast Stucco entered in to a “Master Subcontractor Agreement” on December 15, 2014. [AUMF #61.] Article 3.1.1 of that Agreement included a provision stating “Contractor shall provide Subcontractor with copies of Contractor's construction schedule of submittals, together with such additional scheduling details as will enable Subcontractor to plan and perform Subcontract Work properly. Subcontractor shall be notified of subsequent changes in the construction and submittal schedules and additional scheduling changes.” [AUMF #61.] Driver's December 17, 2012 Master Subcontractor Agreement with Mas Iron Co. contained an identical provision. [AUMF #62.] Again, these contracts confirm the control retained and exercised by Defendant Driver over the subcontractors in terms of when and where they are to perform their duties on any given day. I 13. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT © 0 N O O h W N N N DN N N D N D N NN N N QQ a a a a a d cd c d c d a a 0 N N O O O F bh W N = O O O W 0 N O O O Bb W N ~~ © lil. LEGAL STANDARD ON MOTION FOR SUMMARY JUDGMENT Summary judgment is appropriate "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437¢, subd. (c).) The defendant bears the initial burden of showing the plaintiff cannot establish one or more elements of the plaintiff's cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) When a Defendant or Cross-Defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. CCP § 437¢c(p)(2). If the defendant carries his burden, the burden shifts to the plaintiff to establish a triable issue of material fact. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) Whether a triable issue of fact exists is determined by the supporting papers, not the pleadings. Martins v. Winder (1961) 191 Ca2d 143. Such supporting papers must be evidentiary, and not ultimate facts or conclusions of law, and must be based upon the affined’s personal knowledge. Estate of Nelson (1964) 227 Ca2d 42. As a general rule, in reviewing the evidence presented on summary judgment, the moving party's evidence is strictly construed and the opposing party's evidence is liberally construed. See e.g., Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, and Binder] v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832. The court is to consider all evidence submitted by the parties, direct and circumstantial, except that to which a proper objection has been sustained. CCP §437c¢(c. The court must also consider all reasonable inferences drawn therefrom. CCP § 437¢(c. The court's function on summary judgment is issue-finding, not issue-determination. Weil & Brown, Civil Procedure Before Trial, Chap. 10--Summary Judgment, 10:270-272.10. The court is not to consider the weight or credibility of the evidence. It should only determine if a triable issue of material fact exists which requires the weighing procedures of trial. /d. I 14. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT 0 ~N OO O O hr W N = N N N N N N N N N D N D ND N N mR ma m a m d a a m a m d a d dy 0 N N O O O F BA W N 2 O O OW 00 N O O h W N a2 O O © Iv. LEGAL ARGUMENT Driver seeks summary judgment solely on the basis that the Privette doctrine bars plaintiffs’ claims against Driver as a matter of law. But even after Privette, California law still imposes liability on the hirer of an independent contractor for injuries to an independent contractor's employee if the hirer (1) retained control as to the work contracted for, and (2) exercised such retained control in a negligent manner which affirmatively contributed to the accident. Affirmative contribution is part of the test under the “retained control” exception to the Privette doctrine, as discussed by the high court in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081 (Hooker) and McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 115 Cal.Rptr.2d 868, 38 P.3d 1094. As more particularly discussed below, Defendant Driver's negligent exercise of retained control affirmatively contributed to the fall leading to Rigo’s death. A. The Privette Doctrine Generally speaking, employees of independent contractors who are injured in the workplace cannot sue the party that hired the contractor to do the work. Privette v. Superior Court (1993) 5 Cal.4th 689 (“Privette”); SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594. The California Supreme Court has recognized “a presumptive delegation of responsibility for workplace safety from the hirer to the independent contractor, and a concomitant delegation of duty.” Id at p. 597. Thus, subject to certain exceptions, when a general contractor hires a subcontractor, the general contractor is not liable for injuries that occur to the subcontractor's employees. See, e.g., Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338. 1 1 15. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT 0 ~N OO O O & W N = 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Exception to Privette: Hooker and “retained control” In the twenty-five years since Privette was decided, several exceptions have evolved narrowing the doctrine. One exception, known as the “retained control” exception, allows a contractor's employees to sue the “hirer” of the contractor (that is, the higher-tiered party who “hired” the lower-tiered party whose employee is injured) when the hirer retains control over any part of the work and negligently exercises that control in a manner that affirmatively contributes to the employee's injury. Hooker v. Department of Transportation (2002) 27 Cal.4th 198 (“Hooker. In Hooker, the widow of a deceased crane operator who had been employed by a general contractor hired by the Department of Transportation (Caltrans) to construct an overpass, sued Caltrans for negligently exercising its retained control over jobsite safety. The Caltrans construction manual provided Caltrans was responsible for obtaining the contractor's compliance with all safety laws and regulations, and Caltrans's onsite engineer had the power to shut the project down because of safety conditions and to remove employees of the contractor for failing to comply with safety regulations. The plaintiff's husband died after the crane tipped over when he attempted to operate it without reextending the crane's outriggers. He had retracted the outriggers in order to allow Caltrans vehicles and other construction vehicles to use the narrow overpass. The plaintiff alleged Caltrans was negligent in permitting this traffic to use the overpass while the crane was being operated. Hooker at pp. 202-203, 214-215. In language applicable here, the court concluded 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." Hooker at p. 202. The court pointed out that "if an employee of an independent contractor can show that the hirer of the contractor affirmatively contributed to the employee's injuries, then permitting the employee to sue the hirer for negligent exercise of retained control cannot be said to give the employee an unwarranted windfall. The tort liability of the hirer is warranted by the hirer's own affirmative conduct." Hooker at p. 215. 16. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT 0 N O O h W N N N N N N D N M NN D D N = m a d a d o d c d wd o d o d 0 N N O O O F Ah W O N ~~ O O WW 0 0 N O O O Bh W N ~~ O © "Such affirmative contribution need not always be in the form of actively directing a contractor or contractor's employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer's negligent failure to do so should result in liability if such negligence leads to an employee injury." Hooker at p. 212 fn 3. See also Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, 1123. The “retained control” exception on Hooker has resonated through later cases. “If a hirer entrusts work to an independent contractor but retains control over safety conditions at a jobsite and then negligently exercises that control in a manner that affirmatively contributes to an employee's injuries, the hirer is liable for those injuries, based on its own negligent exercise of that retained control.” (Tverberg v. Filner Construction, Inc. (2012) 202 Cal.App.4th 1439, 1446 (Tverberg).) Similarly, when the hirer does not fully delegate the task of providing a safe working environment but in some manner actively participates in how the job is done, the hirer may be held liable to the employee if its participation affirmatively contributed to the employee's injury. Id. C. Triable issues exist with regard to Defendant Driver's retention of control. As set forth above, there is no doubt that Defendant Driver retained considerable control over the jobsite as a whole. Per the April 25, 2014 “Construction Agreement,” it retained control over the performance of the trades working on the job (Article 3.3), the sequences and procedures and for coordinating all portions of the Work under the Contract (Article 3.10), the cleanliness of the jobsite (Article 3.26), the safety of persons on the jobsite (Article 10.4), performance Scheduling (Articles 11.2, 11.3 and 11.7). Driver Urban also retained control of the scheduling of the subcontractors, including Cal Coast Stucco and Mas Iron per Article 3.1.1 of their respective “Master Subcontractor” Agreements. At minimum, these contracts establish triable issues concerning the control retained and exercised by Defendant Driver over the subcontractors in terms of when and where they were to perform their duties on any given day. 17. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT 0 N N O O O h W N N N N D N N DN N D N N N M DN aA a a d a d a d a d a d a a a a 0 ~N OO 0 HA W N ~ ~ © © 0 ~N O O C v bh W O N = O © D. Triable issues exist with regard to Defendant Driver Urban’s affirmative and negligent exercise of its retained control leading to the death of decedent. The Court in Privette essentially held that a non-negligent hirer of a contractor is not liable for injuries suffered by the contractor's employee while performing inherently dangerous work. (Privette, supra at 702 (emphasis added).) The hirer can still be responsible under general tort principles based on the hirer's own negligence. (Browne v. Turner Const. Co. (2005) 127 Cal.App.4th 1334, 1345.) "Nothing in these cases suggests that with respect to its own actual (as distinct from imputed or constructive) negligence, the hirer should enjoy any more freedom from liability to workers on its site than would an invitee or passerby." (/bid.) Similar issues to those in the case at hand were addressed in Brannan v. Lathrop Construction Assocs., Inc. (2012) 206 Cal.App.4th 1170 (“Brannan”) but with one important difference. Brannan, a bricklayer employed by a subcontractor while working on a construction project. The general contractor had the final say on coordination of the work at the site under the subcontract agreement. While working at the site, Brannan slipped on wet scaffolding that had been left in place by another subcontractor, injured his back, and sued the general contractor, who brought a summary judgment motion under Privette. In opposition, Brannan alleged that the general contractor negligently scheduled masonry work to commence before the framers had finished and permitted the scaffold to remain on the jobsite, which required the injured mason to repetitively climb over and through the scaffold to perform his work. He alleged this was an affirmative act by the general contractor that presented an unnecessary tripping, slipping, and falling hazard. Brannan, supra, at 1178. In essence, he asserted a Hooker exemption. I lj I 18. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT © 00 N N O O O A W N N N N N N N DN N N Q Q a a a a a aA a a a 0 ~N O O 0 Hh W N =~ © © 0 ~N O O 0 Ah W N ~~ O The Brannan court found that the Hooker exception did not apply because the general did not direct Brannan's work, did not tell Brannan to access the scaffold in this fashion, and thus did not affirmatively contribute to Brannan’s injury despite evidence showed that Brannan was left with no option but to climb over the scaffold rungs. Brannan, supra, at 1179. The Brannan Court helpfully distinguish the facts before it from a hypothetical situation in which the general contractor could actually be held liable on a negligent exercise of retained control (or Hooker) exception . The Brannon court posited a situation where the subcontractor’s foreman or one of its employees asks the general to remove the scaffolding for safety reasons, the general contractor promises to do so, and then negligently fails to follow through. The Court stated that if Brannan had been injured after stepping on scaffolding that the general contractor had previously promised to remove, the general contractor's failure to remove it would constitute affirmative action contributing to the Plaintiff's injury and thus expose it to liability. Brannan, supra, at 1180. This hypothetical is essentially the Plaintiff's situation in the case at hand. Per the testimony of Abel Ramirez, the superintendent at Driver Urban had represented that the fourth scaffold tier would be cleaned before Mas Iron would have to perform the work scheduled for August 24, 2015, the scaffold was not cleaned as represented, the gravely stucco and other debris accumulated on the scaffold constituted a dangerous and unsafe condition, and the decedent fell to his death after slipping on this debris. Per Plaintiff's construction site expert, Defendant Driver Urban was negligent in affirmatively scheduling Mas Iron Co. to work in this accident area before Cal Coast Stucco had cleaned up its dusty debris from this walkway. Driver Urban’s construction schedule was defective because it put Mas Iron Co. workers there on August 24, 2015 when the slippery planking was unduly dangerous to its employees. I 1] 19. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT OW 0 ~N O O Oh Br W N = N N N N DN N N D M N @@ a aa a a c d m d o d o d e d = 0 ~N O O a bh W N 2 © OW 0 ~N O O ; Bh W O N =~ OO General Contractor Driver Urban was responsible for creating, updating and enforcing the construction schedule for this project. It was their schedule which Subcontractors were required to abide by. Driver Urban was negligent for scheduling Mas Iron Co. to work at the accident location on August 24, 2015 when Defendant Driver knew, or reasonably should have known, that the conditions were unsafe for such work at that time. This defective schedule, along with Defendant Driver unfulfilled representation that the scaffold would be cleaned prior to Mas Iron being asked to commence work, affirmatively contributed to Mr. Cano’s death when he slipped on the stucco debris of the fourth tier of the stucco tower and fell to his death. This sequence of events constitutes a Hooker exception to the Privette rule, and Defendant's motion should thus be denied. V. CONCLUSION Substantive, triable issues of material fact exist as to whether Defendant Driver Urban'’s affirmative and negligent exercise of retained control caused or contributed to decedent's fatal fall. Defendant Driver maintained control over many aspects of the Malden Station project, including retaining control over the scheduling of work to be performed by its subcontractors on the jobsite. Plaintiff has furnished facts showing Defendant Driver was negligent in its exercise of this retained control when it scheduled Mas Iron Co. to work on the fourth tier of the structure before Defendant Cal Coast's stucco debris had been removed and negligently failed to see that this debris was in fact removed despite assuring Defendant Mas Iron’s foreman that it would be cleared before Mas Iron would be asked to commence it work. In so doing, Driver contributed to the sequence of events leading to decedent's death when he slipped on stucco that had dropped onto the flooring planks and fell off the scaffold tower. I / 20. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT Accordingly, Plaintiff requests that the Motion be denied as triable issues of material fact exist concerning Defendant Driver's negligent exercise of retained control over the scheduling of the subcontractors on the date of the subject incident and over OW 0 ~N O O O O A W N = N N N N N N D DN D D N A A dm a d a y a m m wa a 0 N N O O O F BA W N 2 O O OW 0 N O O O h Ah W N =~ O the debris accumulated on the fourth tier of the scaffold tower, which contributed to decedent's fatal fall from the scaffold tower. DATED: December 21,2018 DORDICK LAW CORPORATION By: 21. Gary A. Dordick, Esq. John M. Upton, Esq. Christopher V. Bulone, Esq. Attorneys for Plaintiffs OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT 0 N O O R W N = N N N N N N DN N N ND DN 2 a a md a d a d o d a d a o n 0 ~N O O O O A W N «2 © OW 0 0 N O O BB W N =~ O © DECLARATION OF JOHN M. UPTON, ESQ 1. I, John M. Upton, declare that | am an attorney at law duly authorized to practice law in all courts of the State of California. | am an associate attorney with the Dordick Law Corporation, attorneys of record for Plaintiff MERCEDEZ CARRANZA, individually and as Successor-In-Interest to ELMAN RIGO CANO in this action. | have personal knowledge of all matters set forth herein, except at to those matters that are stated upon information and belief as permitted by California Code of Civil Procedure §36.5. If called as a witness, | could and would testify competently as to such facts. | make this declaration in support of Plaintiff's substantive opposition to Defendant Driver Urban’s Motion for Summary Judgment. 2. Attached as Exhibit A to Plaintiff's Separate Volume of Documentary Evidence in Support of Plaintiff's Opposition to Motion for Summary Judgment by Defendant Driver Urban concurrently filed herewith (“Plaintiff's Separate Volume”) is a true and correct copy of C.V. of Eugene Litwin. 3. Attached as Exhibit B to Plaintiff's Separate Volume is a true and correct copy of a digital image attached as ‘Exhibit 21” to the deposition transcript of Driver urban’s PMK, James Wathen and produced by Defendant Driver Urban in response to Plaintiff's Document Inspection Demand, Set One. 4, Attached as Exhibit C to Plaintiff's Separate Volume is a true and correct copy of Plaintiff's Document Inspection Demand, Set One served on Defendant Driver Urban. 5. Attached as Exhibit D to Plaintiff's Separate Volume is a true and correct copy of Defendant Driver Urban written response to Plaintiff's Document Inspection Demand, Set One. 6. Attached as Exhibit E to Plaintiff's Separate Volume is a true and correct copy of the April 25, 2014 “Construction Agreement” between Defendant Driver and the owner of the Malden Station project, LMC Malden Station Holdings, LLC produced by Defendant Driver Urban in response to Plaintiff's Document Inspection Demand, Set 1. 22. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT 0 N N O O O o h Ww N N 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 a7 28 7. Attached as Exhibit F to Plaintiff's Separate Volume is a true and correct copy of the December 15, 2014 “Master Subcontractor Agreement” between Defendant Driver Urban and Defendant Cal Coast Stucco produced by Defendant Driver Urban in response to Plaintiff's Document Inspection Demand, Set One. 8. Attached as Exhibit G to Plaintiff's Separate Volume is a true and correct copy of a December 17, 2012 “Master Subcontractor Agreement” between Defendant Driver Urban and Defendant Mas Iron, Co. produced by Defendant Driver Urban in response to Plaintiff's Document Inspection Demand, Set One. 9. Attached as Exhibit H to Plaintiff's Separate Volume is a true and correct copy of excerpts from deposition of Driver Urban's PMK, James Wathen. 10. Attached as Exhibit | to Plaintiff's Separate Volume is a true and correct copy of excerpts from deposition of Cal Coast Stucco’s PMK, Hugo Navarro. 11. Attached as Exhibit J to Plaintiff's Separate Volume is a true and correct copy of excerpts from deposition of Jesus Gudino Gallegus. 12. Attached as Exhibit K to Plaintiff's Separate Volume is a true and correct copy of a digital image attached as ‘Exhibit 12” to the deposition transcript of Driver Urban’s PMK, James Wathen and produced by Defendant Driver Urban in response to Plaintiff's Document Inspection Demand, Set One. 13. Attached as Exhibit L to Plaintiff's Separate Volume is a true and correct copy of excerpts from deposition of Oscar Caceras. 14. Attached as Exhibit M to Plaintiff's Separate Volume is a true and correct copy of excerpts from deposition of Abel Ramirez. 15. Attached as Exhibit N to Plaintiff's Separate Volume is a true and correct copy of excerpts from deposition of Marco Suarez. | declare under penalty of perjury, under the laws of the State of California the foregoing is true and correct. Executed this 21st day of December 201 it alifornia, Joh [ey dd 23. OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT © 0 N N O O O h W N - N O N DN NN N D N D BN D D N D N QA a QQ @Q QQ @ a a a o a wo ~N OO a BA W N 2 O O © 0 0 N O O O O E E W N ~~ OO PROOF OF SERVICE STATE OF CALIFORNIA ) ) SS. COUNTY OF LOS ANGELES ) | am employed in the County of Los Angeles, State of California. | am over the age of 18 and not a party to the within action; my business address is: 509 SOUTH BEVERLY DRIVE, BEVERLY HILLS, CALIFORNIA 90212. On December 21, 2018, | served the foregoing documents described as OPPOSITION OF PLAINTIFF TO DEFENDANT DRIVER URBAN'S MOTION FOR SUMMARY JUDGEMENT, on all parties in this action by placing a true copy thereof enclosed in sealed envelopes addressed as follows. [SEE ATTACHED SERVICE LIST] () BY UNITED STATES MAIL. | enclosed the documents in a sealed envelope or package addressed to the persons at the addresses listed below and () deposited the sealed envelope with the United States Postal Service with postage fully prepaid. () placed the envelope for collection and mailing, following our ordinary business practices. | am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. | am employed in the county where the mailing occurred. The envelope or package was placed in the mail at Beverly Hills, California. () BY OVERNIGHT DELIVERY. | enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons listed in the attached service list. | placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. () BY MESSENGER SERVICE. | placed the documents in an envelope or package addressed to the persons at the addresses listed in the 1. PROOF OF SERVICE -_ OO © 00 N N Oo Oo Bh Ww MN attached service list and providing them to a messenger service for service BY PERSONAL SERVICE. | caused such documents to be delivered personally delivered to the persons addresses listed below. ( ) Fora party represented by an attorney, delivery was made to the attorney or at the attorney's office by leaving the documents, in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or an individual in charge of the office, between normal business hours. () Fora party, delivery was made to the party or by leaving the documents at the party's residence with some person not younger than 18 years of age between normal business hours. BY FAX TRANSMISSION. | caused all of the pages of the above entitled document to be sent to the recipients noted on the attached service list via electronic transfer (FAX) at the respective FAX numbers pursuant to C.C.P. §1013(e) from DORDICK LAW CORPORATION on the date set forth above. The machine | used complied with California Rules of Court, Rule 2.306(h)(3) and no error was reported by the machine. BY ELECTRONIC SERVICE [E-MAIL] | caused the documents to be sent to the persons at the electronic notification addresses listed in the attached service list. | did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful Executed on December 21, 2018, at Beverly Hills, California. | declare under penalty of perjury under the laws of the State of California that the above is true and correct. KAREN SANCHEZ 2. PROOF OF SERVICE © 0 N N oO Oo hs W N = N N N N D N D N N D NN NM DN = A am a a ao a a a a 0 N N O O OO Bh W N 2 O O OW O N O O ; BA W N ~~ OO SERVICE LIST Carranza v. Driver Urban, et al. Case No. 30-2017-00937562-CU-PO-CJC Samuel A. Wyman, Esq. Michael H. Shen, Esq. Jason D. Hunter, Esq. WOLFE & WYMAN, LLP 2301 Dupont Drive, Suite 300 Irvine, CA 92612-7351 Tel: (949) 475-9200 Fax: (949) 475-9203 E-mail: 3. PROOF OF SERVICE