Vasquez v. Green

while he was rolling/unwinding/opening a tarp on an 18-wheeler trailer.

Defendant moves for summary judgment.

II. Request for Judicial Notice

Defendant requests judicial notice of six items: (1) Defendant’s Answer; (2) Plaintiff’s verified

responses to requests for admissions; (3) Plaintiff’s verified responses to special interrogatories;

(4) Plaintiff’s verified responses to requests for production; (5) Plaintiff’s workers’ compensation

claim and compromise and release; and (6) Plaintiff’s qualified medical examination report.

The Court DENIES Defendant’s request. The Court need not judicially notice its own records.

Further, discovery responses are not a proper basis for judicial notice and are instead addressed

through the evidentiary rules governing admissibility at summary judgment.

III. Evidentiary Objections

Plaintiff objects to certain testimony in the declaration of Defendant’s site manager, Jackie

Kuhlman.

The Court RULES as follows:

1. Kuhlman Decl. ¶ 25 — Overruled

2. Kuhlman Decl. ¶ 27 — Sustained (improper lay opinion)

3. Kuhlman Decl. ¶ 30 — Overruled

4. Kuhlman Decl. ¶ 31 — Overruled

5. Kuhlman Decl. ¶ 32 — Overruled

6. Kuhlman Decl. ¶ 33 — Overruled

IV. Legal Standards

A negligence-based claim requires proof of duty, breach, causation, and damages. Premises

liability is treated under the same negligence framework.

Where the injured worker is employed by an independent contractor, the hirer’s tort liability is

governed by the doctrine established in Privette v. Superior Court and its subsequent

development. Under Privette, an independent contractor’s employee generally may not recover

tort damages from the hirer for work-related injuries because responsibility for workplace safety

is presumed to be delegated to the contractor.

However, Privette recognizes exceptions, including where the hirer exercises retained control in

a manner that affirmatively contributes to the injury (Hooker), as further refined by Sandoval to

require: (1) retained control actually exercised over the contracted work’s manner of

performance, and (2) affirmative contribution to the injury through that control, including

inducement of the injury-causing conduct rather than merely failing to prevent it.

V.

Discussion

A. Privette generally applies

The material facts for purposes of this motion show that Plaintiff was employed by Custom

Lumber Designs at the time of the incident, and Custom Lumber Designs was an independent

contractor hired by Defendant. Defendant argues that, as a result, Plaintiff’s claims are barred by

Privette unless an exception applies.

The Court agrees that Privette would bar the claims unless Plaintiff establishes a recognized

exception.

B. Hooker/Sandoval exception—retained control actually exercised with affirmative contribution

Plaintiff contends that the exception applies because Defendant’s loader operator was in actual

control of the loading process that caused the injury. Defendant, through Kuhlman’s declaration,

asserts that Defendant did not require or permit the relevant tarp handling in the loading area

and did not control how drivers operated their trucks or tarp systems; Defendant also maintains

that loading could be stopped or delayed and that Defendant did not provide defective

equipment.

In evaluating summary judgment, the Court must view the evidence in the light most favorable to

the nonmoving party. Here, Plaintiff points to deposition testimony describing that:

• Plaintiff gave hand signals to the loader operator to hold and to indicate the opening statu

s of the tarp;

• the loader operator acknowledged the signals; and

• the loader dumped approximately 5,000 pounds of material before Plaintiff could signal lo

ading to begin, while the tarp was only partially opened.

Plaintiff further explains the mechanism of injury: the tarp was struck and pulled toward the trailer

bed while Plaintiff was holding the tarp bar, throwing Plaintiff approximately eight feet and

causing injuries to his knees and lower back.

On this record, the Court finds a genuine dispute as to whether Defendant’s agent/operator

actually exercised retained control over aspects of the manner of the work—specifically the

timing and execution of the loading conduct that directly preceded the injury—and whether that

control affirmatively contributed to the injury under Sandoval. The Court cannot resolve these

disputes at summary judgment.

Defendant’s arguments about the lack of control over tarp/un-tarping and about the general

ability to stop loading do not eliminate the triable issues created by Plaintiff’s evidence regarding

the interaction between Plaintiff’s signals and the operator’s loading actions, and the causal

sequence between the loading conduct and the injury.

C. Summary judgment is therefore inappropriate

Because Plaintiff has presented evidence sufficient to raise a triable issue of material fact

regarding the Hooker/Sandoval retained-control exception to Privette, Defendant has not shown

that it is entitled to judgment as a matter of law.

VI. Conclusion / Order

For the reasons stated above, the Court ORDERS as follows:

1. Defendant’s Request for Judicial Notice Nos. 1–6 is DENIED.

2. Plaintiff’s evidentiary objections are OVERRULED in part and SUSTAINED in part, as foll

ows: Kuhlman Decl. ¶ 25 overruled; ¶ 27 sustained; ¶¶ 30–33 overruled.

3. Defendant’s Motion for Summary Judgment is DENIED.

There is a triable issue of material fact whether the Privette doctrine is inapplicable under the

retained-control exception under Hooker, as refined by Sandoval.