RAFAEL PINEDA vs THE THACHER SCHOOL

Legal Standard

A motion for summary adjudication is granted when the moving party establishes a legal right to have a particular issue resolved in its favor. (Code Civ. Proc., § 437c, subd. (c).) A defendant meets its burden by showing either that the plaintiff cannot prove one or more essential elements of a cause of action, or that a complete defense applies. (Id., subd. (o).) Summary judgment— directed at the entire action or defense—is appropriate when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Id., subd. (c); Barnick v.

Longs Drug Stores, Inc. (1988) 203 Cal.App.3d 377, 384; Khan v. Shiley, Inc. (1990) 217 Cal.App.3d 848, 858–859.) The purpose of such motions is to pierce evasive pleadings and determine whether genuine issues of material fact exist. (Chern v. Bank of America (1976) 15 Cal.3d 866, 873.) The pleadings frame the material issues; the motion may not be decided on matters outside them. (Tsemetzin v. Coast Fed. Sav. & Loan Ass’n (1997) 57 Cal.App.4th 1334, 1343; FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–382.)

From beginning to end, the moving party bears the burden of persuasion that no triable issue of material fact exists and that judgment is proper as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) This requires a prima facie showing—by a preponderance of the evidence—that an element of a cause of action or a defense cannot be established. (Id. at pp. 850, 852.) For plaintiffs and cross-complainants, this means proving every element of the claim to eliminate all defenses. (Code Civ.

Proc., § 437c, subd. (p)(1).) For defendants, it means showing that at least one essential element of the claim cannot be proven, or that a complete defense applies. (Id., subd. (o).) In reviewing the motion, the court must strictly construe the moving party’s evidence, liberally construe the opposing party’s evidence, and may not weigh credibility. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839; Code Civ. Proc., § 437c, subd. (e); AARTS Productions, Inc. v. Aetna Life Ins. Co. (1986) 179 Cal.App.3d 1061, 1064.)

If the moving party fails to meet its initial burden, the motion must be denied without considering opposing evidence. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468; Noe v. Superior Court (2015) 237 Cal.App.4th 316, 326.) If the moving party meets its burden, the burden shifts to the opposing party to demonstrate a triable issue of material fact. The opposing party must present specific facts; reliance on

2024CUPP030331: RAFAEL PINEDA vs THE THACHER SCHOOL

allegations or denials in the pleadings is insufficient. (Code Civ. Proc., § 437c, subd. (p)(1).) A triable issue exists only if a reasonable factfinder could decide in the opposing party’s favor under the applicable standard of proof. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 860.) Speculative or conclusory evidence does not suffice. (Doe v. Salesian Soc. (2008) 159 Cal.App.4th 474, 481; Overland Plumbing, Inc. v. Transamerica Ins. Co. (1981) 119 Cal.App.3d 476, 483.) The court considers all admissible evidence and reasonable inferences, but disregards those contradicted by other evidence. (Code Civ.

Proc., § 437c, subd. (c).) Conflicting reasonable inferences are resolved in favor of the nonmoving party. (Boicourt v. Amex Assurance Co. (2000) 78 Cal.App.4th 1390, 1397, fn. 4.) When ruling on a summary judgment motion, the court applies the following three-step process: (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925–926.)

1. Identify the issues framed by the pleadings.

2. Determine whether the moving party has met its burden.

3. If so, assess whether the opposing party has raised a triable issue of material fact. Doubts are resolved against granting the motion. (Stokes v. Forty Niners Stadium Management Co., LLC (2024) 107 Cal.App.5th 1199, 1214; Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 100.) The court may give greater weight to deposition admissions and disregard contradictory, self-serving declarations. (Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860.) Ultimately, the court’s task is issue-finding, not issue-resolution. (Zavala, supra, at p. 926.) If any material fact is genuinely disputed, the motion must be denied. (Joseph Schlitz Brewing Co. v. Downey Distributor (1980) 109 Cal.App.3d 908, 914.) III.

Analysis

Although Defendant seeks summary adjudication of two separate causes of action, the motion is properly resolved on the threshold question of whether the Privette doctrine applies and, if so, bars Plaintiff’s claims against Defendant. The Privette doctrine addresses which party, the hirer or the independent contractor, owes the duty to ensure workplace safety under principles of delegated responsibility. (SeaBright Insurance Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 599–600.) As a general rule, “[a]n employee of an independent contractor generally may not recover tort damages for work-related injuries from the contractor’s hirer.” (Privette v.

Superior Court (1993) 5 Cal.4th 689, 702 (Privette); Khosh v. Staples Construction Co., Inc. (2016) 4 Cal.App.5th 712, 714, as modified (Nov. 17, 2016).) This rule reflects a strong presumption that the hirer has delegated responsibility for workplace safety to the independent contractor. However, California courts have recognized three principal exceptions. First, liability may arise where the hirer retains control over the contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the employee’s injury. (Hooker v.

Department of Transportation (2002) 27 Cal.4th 198, 213–214 (Hooker).) Second, the hirer may be liable where it breaches a nondelegable legal duty in a manner that affirmatively contributes to the employee’s injury. (Padilla v. Pomona College (2008) 166 Cal.App.4th 661,

2024CUPP030331: RAFAEL PINEDA vs THE THACHER SCHOOL

672.) Third, a landowner who hires an independent contractor may be liable under a premises liability theory where the injury results from a latent or concealed hazardous condition on the property that would otherwise give rise to the landowner’s liability. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664, as modified (Mar. 1, 2006).) As recently explained: In the context of summary judgment, the Privette doctrine gives rise to a rebuttable presumption that affects the burden of producing evidence. (Alvarez v.

Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 642—643 [] (Alvarez).) If the moving party establishes that it hired an independent contractor to perform certain work, and that the plaintiff is an employee of the contractor who was injured in the course of the work, the burden shifts to the opposing party to come forward with evidence raising a triable issue of fact as to whether an exception to the Privette doctrine applies. (Id. at p. 644 [].) “A party cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.” (LaChapelle v.

Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981 [].) Nevertheless, the burden of persuasion remains with the party moving for summary judgment. (Aguilar, supra, 25 Cal.4th at pp. 850-851 [].) We view the evidence in the light most favorable to plaintiff, as the nonmoving party, “liberally construing [his] evidentiary submission while strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768 [].) (Degala v.

John Stewart Co. (2023) 88 Cal.App.5th 158, 166–167.) A. Defendant’s Initial Burden Defendant’s initial evidentiary burden on a motion for summary judgment under the Privette doctrine is minimal. Defendant need only present evidence establishing that it hired an independent contractor to perform the work at issue and that Plaintiff, as an employee of that contractor, was injured in the course of performing that work. (Degala v. John Stewart Co. (2023) 88 Cal.App.5th 158, 166–167.) Nevertheless, Defendant retains the ultimate burden of persuasion. (Ibid.)

Accordingly, Defendant has submitted additional facts and evidence addressing the anticipated opposition arguments concerning the recognized exceptions to the Privette doctrine. To meet its initial evidentiary burden, must present evidence that: (1) it retained an independent contractor to perform the work at issue; (2) Plaintiff was an employee of that contractor; and (3) Plaintiff was injured while performing that work.

1. Whether Thacher Hired an Independent Contractor to Perform Certain Work Defendant submits undisputed UMFs and evidence showing that Thacher hired Bon Appetit as an independent contractor to provide food service on Thacher’s campus, as reflected in its 2015 agreement. (UMF Nos. 1-3.) This is sufficient to meet the first requirement.

2. Whether Plaintiff Was Employed by an Independent Contractor Defendant submits UMFs and supporting evidence establishing that Plaintiff was hired by Bon Appetit as a dishwasher on April 1, 2010. (UMF No. 7.) The agreement between Defendant and

2024CUPP030331: RAFAEL PINEDA vs THE THACHER SCHOOL

Bon Appetit expressly provides that Bon Appetit employees are not employees of Defendant. (UMF No. 4.) Consistent with that agreement, Plaintiff remained employed by Bon Appetit until December 5, 2025, and was never employed by Defendant. (UMF Nos. 8–9.) Defendant did not train Plaintiff, assign his work, or instruct him on how to perform his job duties. (UMF Nos. 14– 16.) This is sufficient to establish that Plaintiff was an employee of Bon Appetit, the independent contractor, thereby satisfying the second element of Defendant's initial showing under the Privette doctrine.

3. Whether Plaintiff Was Injured in the Course of Work Defendant submits UMFs and evidence showing that Plaintiff was injured on January 20, 2023, while descending stairs during the scope of his work; specifically at about 10:30 pm he was asked by his night-shift supervisor to take a tea-station tray to the kitchen and missed the last step, lost his balance, and fell. (UMF Nos. 20-23, 29-30, 36-38, 42) This is sufficient to show that Plaintiff was injured in the course of work. The Court finds that Defendant met its initial burden in support of the motion.

Therefore, the burden shifts to Plaintiff to come forward with evidence raising a triable issue of fact as to whether an exception to the Privette doctrine applies. B. Plaintiff’s Burden in Opposition Because Defendant has satisfied its initial burden, the burden shifts to Plaintiff to demonstrate the existence of a triable issue of material fact as to whether an exception to the Privette doctrine applies. (Degala v. John Stewart Co. (2023) 88 Cal.App.5th 158, 167.) Plaintiff contends that two exceptions apply here: (1) Defendant retained control over workplace safety and affirmatively contributed to Plaintiff’s injuries through its negligent exercise of that retained control; and (2) the absence of lighting at the bottom of the stairway constituted a concealed hazardous condition that Defendant knew or should have known about but failed to remedy or warn Plaintiff and Bon Appetit of before the work began.

1. Retained Control First, the Hooker exception applies if the general contractor retains control over the contractor’s scope of work and negligently exercises that control in a manner that affirmatively contributes to the employee’s injury, or where the hirer affirmatively contributed to the employee’s injuries. (Hooker, supra, 27 Cal.4th at pp. 213-214.) However, “courts have consistently reaffirmed that ‘[a] hirer’s failure to correct an unsafe condition’ is insufficient, by itself, to establish liability under Hooker’s exception to the Privette doctrine.” (Gonzalez v.

Mathis (2021) 12 Cal.5th 29, 46.) In the nearly two decades following our opinion in Hooker, courts have consistently reaffirmed that “[a] hirer’s failure to correct an unsafe condition” is insufficient, by itself, to establish liability under Hooker’s exception to the Privette doctrine. (Khosh v. Staples Construction Co., Inc. (2016) 4 Cal.App.5th 712, 718 []; see also Tverberg v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439, 1446 [] (Tverberg II) [“[P]assively permitting an unsafe condition to occur ... does not constitute affirmative contribution”].)

To be liable, a hirer must instead exercise its retained control over any part of the contracted-for work — such as by directing the manner or methods in which the contractor performs the work; interfering with the contractor’s decisions regarding the appropriate safety measures to adopt; requesting the contractor to use the hirer's own defective

2024CUPP030331: RAFAEL PINEDA vs THE THACHER SCHOOL

equipment in performing the work; contractually prohibiting the contractor from implementing a necessary safety precaution; or reneging on a promise to remedy a known hazard — in a manner that affirmatively contributes to the injury. (See Hooker, at pp. 212, fn. 3, 215 []; McKown, supra, 27 Cal.4th at p. 225 []; Tverberg II, at pp. 1446–1448 []; Ruiz v. Herman Weissker, Inc. (2005) 130 Cal.App.4th 52, 65–66 []; Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, 1132–1134[] (Ray).) (Gonzalez v.

Mathis, supra, 12 Cal.5th at pp. 46–47 (emphasis added).) Plaintiff contends that Defendant knew or should have known of a hazardous lighting condition at the bottom of the subject stairwell yet failed to correct it or warn others. (See AUMF Nos. 10–12.) However, mere passive allowance of an allegedly unsafe condition does not constitute “affirmative contribution” under established case law. Even assuming the scope of Bon Appetit’s authority to remedy the condition was limited, liability does not follow.

In Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, the court held no liability existed where a contractor lacked authority to install a protective railing that allegedly would have prevented the injury. Likewise, in Gonzalez, the Supreme Court reaffirmed that, under Privette’s strong presumption of delegation, a hirer owes no duty to an independent contractor or its employees to remedy known hazards or take additional protective measures. (Gonzalez, supra, 12 Cal.5th at p. 45.) This principle applies even where the contractor may be unable to mitigate the danger through reasonable safety precautions, or where the hirer arguably retains the ability and authority to address the condition. (Id. at p. 46.)

Accordingly, even accepting Plaintiff’s assertion that the stairway lighting was inadequate, such evidence does not create a triable issue of fact as to retained control or affirmative contribution. Here, the evidence shows that Plaintiff and/or Bon Appetit could have requested a work order regarding the stairway conditions. (UMF No. 5.) Yet no such request was made. (UMF No. 6.) The declaration of Hector Gomez does not establish otherwise, as it is vague, lacks specificity, and is not tied to any relevant time period.1

1 Hector Gomez was a dishwasher with Bon Appetit who was promoted to Kitchen Supervisor. Gomez declared that

he worked with Plaintiff, and that prior to January 20, 2023 the date Plaintiff fell, he “complained to employees of The Thatcher School about the lack of lighting at the stairwell that connects the pergola and dining hall on The Thacher School’s campus.” He said he made his complaints to Jesus Carbajal, a member of maintenance staff, and Robert Rogers, an electrician. Gomez declares that he “nearly fell down the stairs on several occasions because of how dark the stairs were at night.”

However, it is unclear what Gomez said or wrote to Carbajal or Rogers, as well as when or in what form those communications occurred. It is also unclear why Gomez did not make the request through Richard Maxwell, or to whomever was the Director of Facilities Operations. The declaration also fails to state how long Gomez was employed by Bon Appétit; it merely indicates that he was hired in 2003 or 2004 and was later promoted to Kitchen Supervisor. It is equally unclear when Gomez made his complaint, in particular whether it was before the 2018 remodel of the lower steps or afterwards.

While Gomez states that he is not aware of “anyone from The Thacher School doing anything in response to [his] complaints prior to January 20, 2023” (¶5), because the timing of his employment with Bon Appetit is unclear, there is no foundation or personal knowledge established that he would know. Finally, there is no claim that Defendant made any promise with respect to the lighting on the stairs.

2024CUPP030331: RAFAEL PINEDA vs THE THACHER SCHOOL

There is no evidence that Defendant prohibited or discouraged Bon Appetit from implementing any safety measures or requesting repairs. Nor is there evidence that Plaintiff ever complained about, or experienced any issues with, the stairway or lighting, despite using the same stairs at least 20 times since they were remodeled in 2018, including at least five nighttime occasions. (UMF Nos. 24–26.) Further, there is no evidence that Defendant directed Bon Appetit’s work, controlled Plaintiff’s manner of work, or instructed Plaintiff to use the subject stairway rather than an alternative route.

Alternative pathways to the kitchen were available, and Defendant did not restrict Plaintiff’s ability to use them. (UMF No. 34.) In addition, Plaintiff’s supervisor warned him immediately before the incident to be careful due to the darkness and potential fall hazard. (UMF No. 35.) Plaintiff also identifies no evidence that Defendant prevented Bon Appetit from employing reasonable alternative lighting measures, such as temporary lighting, a headlamp, or a flashlight, to mitigate any alleged insufficiency in stairway lighting.

Finally, to the extent Plaintiff relies on alleged statutory or regulatory violations referenced by his expert, such assertions do not establish retained control, as responsibility for workplace safety rests with the independent contractor. (See SeaBright Insurance Co., supra, 52 Cal.4th at 599-601; Delgadillo v. Television Center, Inc. (2018) 20 Cal.App.5th 1078, 1088-1089.) Finally, although independent contractors may, in some circumstances, be reluctant to raise safety concerns with the hirer, the evidence here demonstrates otherwise.

Defendant and Bon Appetit maintained a longstanding working relationship dating back to at least 2015. During the ensuing ten-year period, Bon Appetit submitted approximately 90 work orders concerning electrical and lighting issues. This history demonstrates that Bon Appetit routinely raised maintenance and safety-related concerns with Defendant. Accordingly, the record does not support any inference that Bon Appetit was unable or unwilling to report hazardous conditions or request that they be addressed.

In short, the evidence presented is not sufficient to demonstrate a triable material dispute regarding whether Defendant affirmatively contributed to Plaintiff’s injury. Plaintiff has not provided facts showing that the retained control exception to Privette is applicable here.

2. Concealed Dangerous Condition Second, Plaintiff contends that the alleged hazard at the bottom of the subject stairway constituted a concealed dangerous condition. In Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 673, the Supreme Court articulated a threepart test for the concealed hazard exception to the Privette doctrine: (1) the landowner knew or should have known of a concealed, preexisting hazardous condition; (2) the contractor did not know and could not reasonably have discovered the condition; and (3) the landowner failed to warn the contractor.

Even assuming Plaintiff could satisfy the first and third elements, the exception applies only where the contractor could not reasonably be expected to ascertain or discover the hazard. (Id.) Here, the undisputed evidence demonstrates that both Plaintiff and Bon Appetit were aware of the condition and its potential danger. Plaintiff had used the stairway multiple times, including at night, and was expressly warned by his supervisor immediately before the incident to be careful due to the darkness and risk of falling.

Plaintiff also proceeded down the stairs cautiously, further

2024CUPP030331: RAFAEL PINEDA vs THE THACHER SCHOOL

confirming his awareness of the condition. Under these circumstances, the alleged hazard was not concealed. Because the record establishes actual awareness of the condition by Plaintiff and his employer, there is no triable issue of fact as to the applicability of the concealed dangerous condition exception to the Privette doctrine. IV.

Conclusion

Defendant has met its burden of demonstrating that both causes of action lack merit because Plaintiff cannot establish the essential element of duty. Accordingly, there is no need for the Court to reach Defendant’s remaining arguments, including its contention that the alleged condition constitutes a trivial defect. For these reasons, the Court GRANTS the Motion for Summary Judgment as to both causes of action. Defendant shall give notice.

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