Lowe vs. Haverkamp

contends Plaintiff recognized the defects in the scaffolding and Plaintiff’s employer approved the scaffolding. [Defendant’s COE (ROA #167), Ex. A (John Lowe Depo.) at 44:4-45:2, 121:22-23 (“And Peter interjected then. He said ‘No. Here I got -- I got a scaffold you can borrow or use.”), 123:3 – 125:1; Ex. B (Aaron Lowe Depo – as Beach Cities’ PMK) at 119:4-11; Ex. C (11/22/23 text message) (BCG0001-4)(“offered to let us borrow your scaffolding”), 102:24- 103:8; Ex. D (Aaron Lowe 6/14/21 test message) (BCG0005).]

Further, Plaintiff’s employer (Beach Cities Glass – “BCG”) had its own scaffolding at its headquarters and Plaintiff has access to his own ladders. [Defendant’s COE, Ex. A (John Lowe Depo) at 45:12- 25. (“There is always extension ladders of different sizes on top of the rack on the outside of the van.”); Ex. B (Aaron Lowe Depo. (BCG PMK)) at 90:23-91:11.]

On the day he fell (several days after the scaffolding was erected), Plaintiff did not see any of Defendant’s employees. [Defendant’s COE Ex. A (John Lowe Depo.) at 50:14-21.; Ex. G (John Lowe Response to Special Interrogatory 32, 33 & 34 (set 2)).]

Defendant also points to testimony that before falling, Plaintiff was aware that the scaffolding was “Wasn’t good,” had improper planks, and no guardrails – and that he had previously received safety training on scaffolds from his employer. [Defendant’s COE Ex. A (John Lowe Depo) at 68:7-9, 117:23-25 (“I fell off the back of scaffold where a guardrail was missing.”), 121:19-, 122:1. (“And I think I protested a fourth time saying, “This thing is on its way out too. What’s it doing in the junk pile?”), 122:4-16. (“I told them let’s go get a good set up that has casters on the bottom that you can roll the thing around, not just spikes that stick down into the dirt.

So it would be ease of working off of as a guardrail, and it’s planks are actual fabricated planks that have U-hooks on the top of them that kind of clip into the uprights, and it’s very nice scaffold, and you can go up four levels, no problem, on the casters, and it’s stable. This -- Peter’s setup with Aaron’s help wasn’t -- wasn’t good. I didn’t have a job unless I got those parts up that day. There was nothing for me to do, and so that’s that”), 123:3-14.(Q: “And your saw the scaffold that he had?

A: Yes.”); Ex. B. (Aaron Lowe Depo.) at 31:2 – 37:24; Ex. F (Tailgate/Toolbox Safety Training BCG00044 47).

In rebuttal, Plaintiff and Intervenor present evidence that Defendant insisted Plaintiff and his employer use Defendant’s scaffolding because Plaintiff and his employer arrived without scaffolding (not intending to work the first day) and when they wanted to go back to get their own scaffolding Defendant objected because work was already behind and he was afraid they would not return. [Plaintiff’s COE (ROA #225) Aaron Lowe Depo. (Ex. C) at

74:5–24, 88:21 24, 115:7–13; John Lowe Depo. (Ex. A) at 44:23-45:2, 115:11-122:16; 123:3-9; 125:16-126:1; 117:19 122:16; 123:3-9; 125:16- 126:1.]

At the time of the incident, the project was running approximately four months behind schedule due to permitting delays. [Plaintiff’s COE, Haverkamp Depo. (Ex. B) at 56:23–57:7, 67:19–24.]

Before providing his own scaffolding, Defendant retrieved a ladder from a junk pile in the backyard for BCG to use. That ladder broke under Plaintiff while he was using it. After the ladder broke, Plaintiff again requested to leave and get BCG’s own scaffold. Defendant again refused, telling the Plaintiff and his employer: “No. Here I got — I got a scaffold you can borrow or use.” [John Lowe Depo., 44:23-45:2, 115:11-118:16, 118:18–26, 121:19–122:3, 117:23– 25, 121:20–22, 117:19-122:16; 123:3-9; 125:16 126:1, 118:18–26, 121:19–122:3; Aaron Lowe Depo., 75:12-22; Aaron Lowe Depo., 74:5– 24, 75:12-22, 88:21–24, 115:7–13.]

When Plaintiff returned to the jobsite on June 23, the scaffolding remained exactly as it had been left; no one told Plaintiff that he should not use the was never told to set up new scaffolding or to use other equipment or ladders other than Haverkamp’s scaffold. [John Lowe Depo., 53:2–8; John Lowe Decl., ¶¶ 2-3.]

Legal Standard for Summary Judgment “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” Code Civ. Proc., § 437c, subd. (a)(1).

“A cause of action has no merit if either of the following exists: (1) One or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded. (2) A defendant establishes an affirmative defense to that cause of action.” Code Civ. Proc., § 437c, subd. (o).

A defendant meets his “burden of showing that a cause of action has no merit if the party 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 the cause of action.” Code Civ. Proc., § 437c, subd. (p)(2); see, Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597 (A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law.); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855 (A defendant can show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses,

that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action.); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 (finding moving defendant may show plaintiff’s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery); see, Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81 (finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information); Krantz v.

BT Visual Images, L.L.C. (2001) 89 Cal.App.4th 164, 173 (citing Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 186) (“[T]he moving party’s ‘simply pointing to’ the absence of evidence supporting plaintiff’s position is not in itself enough to obtain summary judgment in its favor. There must be some ‘affirmative showing’ by the moving defendant that plaintiff could not obtain such evidence, before summary judgment would be proper.”).

Once the defendant meets that burden, the burden shifts to the plaintiff “to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” Code Civ. Proc., § 437c, subd. (p)(2).

Plaintiff “shall not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” Code Civ. Proc., § 437c, subd. (p)(2). Plaintiff must present substantial and admissible evidence creating a triable issue. Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163. Theoretical, imaginative, or speculative submissions are insufficient to stave off summary judgment. Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481; Bushling v. Fremont Med. Center (2004) 117 Cal.App.4th 493, 510.

The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” Code Civ. Proc., § 437c, subd. (b)(1).

The motion for summary judgment shall be granted 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. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from

the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact. Code Civ. Proc., § 437c, subd. (c).

The scope of this burden is determined by the allegations of the plaintiff’s complaint. FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 (pleadings serve as the outer measure of materiality in a summary judgment motion); 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 (defendant only required to defeat allegations reasonably contained in the complaint).

Discussion

Under the Privette doctrine, “a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job.” Gonzalez v. Mathis (2021) 12 Cal.5th 29, 41. As originally articulated, the doctrine was grounded on the principle that it would be unfair for the hirer of an independent contractor to be held liable for injuries to a contractor’s employee when the contractor’s own liability would be capped by the limits of its workers’ compensation coverage. Privette v.

Superior Court (1993) 5 Cal.4th 689, 698. More recently, the California Supreme Court has emphasized “delegation” as the “key principle” underlying the Privette doctrine, reasoning as follows: “Because the hirer presumptively delegates to the independent contractor the authority to determine the manner in which the work is to be performed, the contractor also assumes the responsibility to ensure that the worksite is safe, and the work is performed safely.” Gonzalez, supra, at 41.

An exception to the Privette doctrine exists when a hirer fails to effectively delegate all responsibility for workplace safety to the independent contractor. Gonzalez, supra, 12 Cal.5th at p.

42. As relevant here, under the retained control exception set forth in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202, the hirer may be liable to a contractor’s employee where the hirer “exercises ... retained control over any part of the contractor’s work in a manner that affirmatively contributes to the worker’s injuries.” Gonzalez, supra, at p. 42 (Italics added.)

For the retained control exception to apply, there must be some indication the hirer directed that the contractor perform its work in a certain way or interfered with the means and methods by which the work was to be accomplished. Hooker, supra, 27 Cal.4th at 214– 215. Thus, in McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, which is directly relevant here, the California Supreme Court imposed liability on a hirer who requested that an independent

contractor use the hirer’s own defective forklift in performing the contractor’s work. McKown, supra, 27 Cal.4th at 225.

In McKown, the California Supreme Court applied the retainedcontrol exception to affirm a judgment holding a hirer, Wal-Mart, liable for injuries an independent contractor’s worker suffered while using defective equipment. McKown, supra, 27 Cal.4th at 225–226. Wal-Mart had hired the plaintiff’s employer to install sound systems in its stores and had “requested that the contractor use Wal-Mart’s forklifts whenever possible in performing the work.” Id. at p. 223. The forklift that Wal-Mart furnished was missing one of two chains that secured an overhead work platform to the forklift.

Ibid. “After discussing the advisability of using the forklift without a chain securing the platform,” the plaintiff and his co-worker decided to use the equipment as Wal-Mart had requested. Ibid. While his coworker was driving the forklift and the plaintiff was working on the platform, the platform hit a ceiling pipe, disengaged from the forklift, and fell about 12 to 15 feet to the floor with the plaintiff on it. Ibid. A jury found Wal-Mart was negligent in providing unsafe equipment and allocated 55 percent of the responsibility for the accident to the plaintiff’s employer, 23 percent to Wal-Mart, 15 percent to the manufacturer of the equipment, and 7 percent to the plaintiff himself.

Ibid.

Wal-Mart challenged the judgment, arguing there was insufficient evidence to establish the affirmative contribution element of the retained-control exception because Wal-Mart had “merely requested, and did not insist, the contractor use its forklift.” McKown, supra, 27 Cal.4th at 225. The California Supreme Court rejected the argument.

Although the plaintiff admitted that Wal-Mart’s “request was understood not to be a directive” (id. at p. 223), the McKown court concluded the request was nonetheless sufficient to constitute an inducement that interfered with the contractor’s choice of the means and methods by which the work was to be accomplished. Id. at 225– 226. The California Supreme Court explained: “The contractor had several contracts with Wal-Mart for the installation of sound systems in Wal-Mart stores, and Wal-Mart, the world’s largest retailer, was a customer the contractor was presumably loath to displease....

Wal-Mart presumably believed the forklift it provided was safe, and plaintiff may well have believed that refusal to use it would have generated ill will. The extra expense of renting a forklift would have been chargeable to Wal-Mart. Moreover, renting a forklift would have entailed delaying the installation project for at least 24 hours .... Admittedly, Wal-Mart was not the only one at fault, but then the jury’s verdict reflected that.” Ibid.; cf. Hooker, supra, 27 Cal.4th at 210–211.

This reasoning of the California Supreme Court is directly applicable here. See also Brown v. Beach House Design & Development (2022) 85 Cal.App.5th 516, 529 (“As we have said, a general contractor may exercise retained control over a jobsite by ‘requesting [a subcontractor] to use the [general contractor’s] own defective equipment in performing the work.’ (Gonzalez v. Mathis, supra, 12 Cal.5th at pp. 46–47, 282 Cal.Rptr.3d 658, 493 P.3d 212, citing McKown, supra, 27 Cal.4th at pp. 225, 115 Cal.Rptr.2d 868, 38 P.3d 1094.).”

Here, Defendant’s evidence is that he “offered” use of his scaffolding. [Defendant’s COE (ROA #167), Ex. A (John Lowe Depo.) at 44:4- 45:2, 121:22-23 (“And Peter interjected then. He said ‘No. Here I got -- I got a scaffold you can borrow or use.”), 123:3 – 125:1; Ex. B (Aaron Lowe Depo – as Beach Cities’ PMK) at 119:4-11; Ex. C (11/22/23 text message) (BCG0001-4)(“offered to let us borrow your scaffolding”), 102:24-103:8; Ex. D (Aaron Lowe 6/14/21 test message)(BCG0005).]

Plaintiff offers evidence that Defendant insisted, rather than offered, that Plaintiff use Defendant’s scaffolding rather than Plaintiff returning to Beach Cities Glass’s headquarters to get their scaffolding because Defendant did not want any further delays in a project that was already behind schedule. [Plaintiff’s COE (ROA #225) Aaron Lowe Depo. (Ex. C) at 74:5–24, 88:21 24, 115:7–13; John Lowe Depo. (Ex. A) at 44:23-45:2, 115:11-122:16; 123:3-9; 125:16-126:1; 117:19 122:16; 123:3-9; 125:16-126:1; Haverkamp Depo. (Ex. B) at 56:23–57:7, 67:19–24.]

On the day Plaintiff fell from the scaffolding and was injured, though he did not receive instructions to use Defendant’s scaffolding, that scaffolding remained in place and exactly as it had been left; no one told Plaintiff that he should not use it, that he should set up new scaffolding or use other equipment or ladders other than Defendant’s scaffold. [Defendant’s COE Ex. A (John Lowe Depo.) at 50:14-21.; Ex. G (John Lowe Response to Special Interrogatory 32, 33 & 34 (set 2)); John Lowe Depo., 53:2–8; John Lowe Decl., ¶¶ 2-3.]

These facts track those in McKown. As a result, this evidence at least raises a triable issue of fact whether Plaintiff’s claim falls within the “retained control” exception to the Privette Doctrine.

Defendant relies heavily on Gonzalez v. Mathis (2021) 12 Cal.5th 29 to argue Plaintiff’s recognition of the lack of guardrails on the scaffolding bars his claim. First, this is contrary to McKown, where the California Supreme Court found the hirer liable even where the

contractor recognized the lack of safety features in the proffered equipment. Second, Gonzalez is distinguishable because it dealt with a premises liability claim involving a known hazard rather than the hirer’s equipment.

If there is a known hazard on a property that the independent contractor cannot remedy or protect against through the adoption of reasonable safety precautions, and the contractor or one of its workers is injured after proceeding to do the work anyway, is the landowner liable to the contractor in tort? We conclude that, pursuant to Privette’s strong presumption that a hirer delegates to an independent contractor all responsibility for workplace safety, a landowner owes no duty to the contractor or its workers to remedy a known hazard on the premises or take other measures that might provide protection against the hazard.

Privette’s “no duty” rule applies even where the contractor is unable to minimize or avoid the danger through the adoption of reasonable safety precautions. A landowner does not fail to delegate responsibility to the contractor for workplace safety simply because there exists a known hazard on the premises that cannot be readily addressed by the contractor.

Gonzalez v. Mathis (2021) 12 Cal.5th 29, 45 (bold added).

Defendant also objects that, according to his description, Plaintiff’s discovery responses were inconsistent as to the force of Defendant’s “offer” of his scaffolding equipment. [See Reply (ROA #239) at 2-3.] But just adds to the conflict in the evidence. There is no rule relating to summary judgment motions against a plaintiff giving conflicting discovery responses. This is something the trier of fact can weigh.

The rule is that a plaintiff defending against a motion for summary judgment may not create a triable issue of fact by submitting a declaration that contradicts his prior, unequivocal discovery responses. Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087-88 (discussing cases addressing issue and setting out parameters). See also D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22; Scheiding v. Dinwiddie Construction Co. (1999) 59 Cal.App.4th 64, 76; Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522. See also Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.5th 1510, 1521-1522 (distinguishing admissions in deposition testimony from written discovery responses and finding the former can be weighty and not properly treated as

conclusive judicial admission because not necessarily complete or studied or overseen by counsel and reversing summary judgment); Scheiding, supra, at 77-78; Price v. Wells Fargo Bank (1989) 213 Cal. App. 3d 465, 483; Benavidez v. San Jose Police Dept. (1999) 71 Cal. App. 4th 853, 861-61.

There is no claim that Plaintiff has done that here.

Accordingly, Defendant’s motion for summary judgment is denied. Again, see Brown v. Beach House Design & Development (2022) 85 Cal.App.5th 516, 531 (“Taken together, this evidence would allow a reasonable jury to conclude that Beach House undertook to provide scaffolding for the use of its subcontractors, including plaintiff.”).

10. 2024-1424606 Vega vs. Bearley Case Management Conference

The demurrer of plaintiffs Philip Vega, Kevin Vega, and Contractors and Developers Bonding & Insurance Services Inc. to defendant Matthew Caldwell’s answer is overruled in part and sustained in part as set forth below.

Legal Standard

An answer to a complaint shall contain: (1) the general or specific denial of the material allegations of the complaint controverted by the defendant and (2) a statement of any new matter constituting a defense. Code Civ. Proc. § 431.30(b). The same pleading of ultimate facts rather than legal conclusions is required in pleading an answer as in pleading a complaint. See FPI Development, Inc. v. Nakashimi (1991) 231 Cal. App. 3d 367, 384 (stating rule that answer must allege facts “averred as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.”). The defenses shall be separately stated and are to refer to the causes of action which they are intended to answer. Code Civ. Proc. § 431.30(g).

The Rutter Guide says that a demurrer can be an effective tool for eliminating “boilerplate” affirmative defenses that often appear in answers (e.g., “waiver,” “estoppel,” “unclean hands,” etc.). A demurrer may be made on the ground of failure to plead sufficient facts to constitute a defense.

In general, whatever a defendant bears the burden of proving at trial is “new matter” (also referred to as an “affirmative defense”) and thus must be specially pleaded in the answer. See California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442 (finding failure to plead equitable defenses waived those