Ornelas v. R-2 Contractors, Inc., et al

9. Ornelas v. R-2 Contractors, Inc., et al, Case No. CIVSB2504507 Defendants’ Motion for Summary Judgment 9/3/26, 9:00 a.m., Dept. S-17

Tentative Rulings As to Plaintiff’s Evidentiary Objection: The Court would OVERRULE. As to the Motion: The Court would DENY. Case Summary

This is a personal injury and premises liability case. Plaintiff contends that he was injured in February of 2023 after his motorcycle fell into an unmarked trench near the US-395 in Boron. As such, he filed suit against the various Defendants R-2 Contractors, Inc. (R-2); Cupertino Electric, Inc. (Cupertino); Resurgence Capital, LLC; Resurgence Financial, LLC; Resurgence I Energy Storage, LLC; Resurgence Solar I, LLC; Resurgence Solar II, LLC; Nextera Blythe Solar Energy Center, LLC; Nextera Energy Marketing, LLC; Nextera Energy Operating Services, LLC; Nextera Energy Project Management, LLC; Nextera Energy Resources Development, LLC; Nextera Energy Solutions, LLC; Nextera Home, LLC; and Nextera Mobility, LLC. He asserts claims for (1) negligence; (2-4) negligent hiring, supervision, and retention; and (5) premises liability.

The complaint indicates Defendants were negligent in, essentially, the ownership, management, operation, control, maintenance, and supervision of the property, which was in a known dangerous condition. Or, as the causes of action suggest, Defendants were purportedly negligent in the hiring, supervision, or retention of employees.

Statement of Law

Summary judgment is proper where there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c(c).) The analysis requires three steps: First, the court must identify the issues framed within the pleading. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.) Second, it must determine whether the moving party has established facts sufficient to negate the claim and justify a judgment in movant’s favor. (Ibid.)

Third, and finally, when a summary judgment motion, as a prima facie matter, justifies a judgment, the court must determine whether the opposition demonstrates the existence of a triable issue of material fact. (Ibid.) The court’s sole function on a motion for summary judgment is issue finding, not issue determination. (See Zavala v. Arce (1997) 58 Cal.App.4th 915, 926.)

Presented Facts

The facts presented with the motion indicate that at the time of the accident, Plaintiff was on his way to work at the Boron job site. (UF, 3.) Plaintiff was a member of a union that would send him job opportunities, and his paychecks also said “Cupertino,” an apparent reference to Cupertino Electric. (UF, 4.) Cupertino was a subcontractor of R-2, and R-2 was hired by Defendants, which own and operate the property. (Opening Brief, 2:15-18; see also UF, 5.)

Defendants further contend Plaintiff further received all of his directions regarding how to do his job, how to check in, and how to check out exclusively from his employer and its supervisors. (UF, 8.)

Defendants did not give Plaintiff instructions on how to perform his work at the jobsite nor did they direct, supervise, or control the manner or means by which he performed his work at the premises. (UF, 9.) Plaintiff also attended safety meetings at the job site, though he does not know who led them, but the meetings were for all workers at the site regardless of the union or company they were with. (UF, 11.)

The facts also indicate Plaintiff was required to “punch in” each day before he started work and was required to check in first at a guard shack and then with his work group. He had checked in already at the shack and was in the process of traveling to meet his group when the incident occurred. (UF, 6.) After the incident, his medical visits were through the workers compensation insurance and his workers compensation claim has been resolved. (UF, 10.) Finally, Defendants indicate Plaintiff testified he was unaware of having any conversations with “a company called NextEra.” (UF, 7.)

Opposing Facts – In connection with the opposition, Plaintiff indicates that the trench was unmarked, and Defendants were the owners and operators of the property and hired R-2 to perform the work. The trench was not present the day before the incident and was dug sometime within the preceding 24 hours. The path on which the trench was located was also the only route by which Plaintiff could reach his job, and he had traveled the same route in the dark on numerous occasions over the preceding 2-3 months. (UF, 1-2 & 4-7.) Defendants have not addressed whether they knew or should have known about the trench. (UF, 9.) Finally, Plaintiff notes that in the separate statement Defendants wrote “cite additional evidence” at times to support a factual assertion; the moving papers inconsistently state Plaintiff was an employee of R-2 and Cupertino; and discovery is ongoing. (UF, 10-12.)

Analysis

Now, through the pending motion, all the Defendants, with the exception of R-2 and Cupertino (referred to herein as “Defendants” for purposes of this motion), seek summary judgment, or in the alternative summary adjudication as to each claim against them, on the grounds that the claims are barred by the Privette doctrine because Plaintiff was employed by R-2 as an independent contractor; he was covered by R-2’s workers compensation insurance; and the Defendants did not retain control over the manner or means of R-2’s work.

Generally speaking, under the “peculiar risk” doctrine, “a private landowner who engages in inherently dangerous activity on his land should not be able to insulate himself from liability for injuries to others simply by hiring an independent contractor.” (Privette v. Superior Court (1993) 5 Cal.4th 689.) However, in Privette, the California Supreme Court rejected the application of the peculiar risk doctrine to suits by employees of a contractor as against the landowner: “[A]pplying the peculiar risk doctrine to the independent contractor’s employees would illogically and unfairly subject the hiring person, who did nothing to create the risk that caused the injury, to greater liability than that faced by the independent contractor whose negligence caused the employee’s injury.” (Toland v.

Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 256 [summarizing Privette]; Privette, supra, 5 Cal.4th at pp. 696-699.)

There are, however, exceptions to Privette: In Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, the California Supreme Court held that an independent contractor’s employee can sometimes recover in tort from the contractor’s hirer if the hirer retained control of the contracted work and “‘fail[ed] to exercise his control with reasonable care . . . .’” (Hooker, supra, 27 Cal.4th at p. 206.) The Supreme Court in Hooker concluded that the hirer cannot be liable “merely because [it] retained the ability to exercise

control over safety at the worksite,” but it is fair to make the hirer liable if it “exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor’s employee.” (Id. at p. 210.) Under that standard, a general contractor contributes to an unsafe procedure or practice by its affirmative conduct, or by its omission, where the general contractor “‘is actively involved in, or asserts control over, the manner of performance of the contracted work,” or “if the hirer promises to undertake a particular safety measure,” and the negligent failure to do so leads to an employee injury. (Id. at pp. 212, 215.)

Perhaps more relevant is Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659. In Kinsman an employee of an independent contractor that built and dismantled scaffolding used by other trades was exposed to airborne asbestos produced by those trades. In another exception to the Privette doctrine, the Supreme Court found that “where there is a known safety hazard on a hirer’s premises that can be addressed through reasonable safety precautions on the part of the independent contractor, . . . the hirer generally delegates the responsibility to take such precautions to the contractor and is not liable to the contractor’s employee if the contractor fails to do so.” (Kinsman, supra, 37 Cal.4th at pp. 673-674.)

The Supreme Court went on to hold that “the hirer as landowner may be independently liable to the contractor’s employee, even if it does not retain control over the work, if: (1) it knows or reasonably should know of a concealed, preexisting hazardous condition on its premises; (2) the contractor does not known and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor.” (Id. at p. 675.)

In this case, Defendants have not introduced any evidence indicating they did not know about, or should not have known about, the trench. Nor is there any evidence indicating Defendants warned the contractors about the condition. It is also not clear whether the contractors knew about the condition through other means or who even caused the trench to be dug and when, at least based on the moving papers. Defendants do not even suggest they did not dig the trench themselves.

To the extent Defendants knew about the trench, but their contractors did not, Privette does not apply because Defendants did not provide the contractors with the “critical information” they would need to fulfill their responsibilities. Furthermore, to the extent the trench was dug overnight and to the extent the incident happened in the morning on an unlit road, then for that period of time at least the trench would appear to be “concealed” given the darkness and how new and unknown the trench purportedly was. (Ornelas Depo. at p. 46 [no trench the “day” prior]; 117 [merely speculating about who dug the trench]; pp. 37, 110 and 113 [indicating it was dark and the roadway was not lit at the time]; see also Additional Fact No. 6 [roadway was the only way to reach the jobsite].)

To the extent they had knowledge of the trench but the contractors or Plaintiff did not, would have a duty of care and it was Defendants obligation to disprove that negligence theory. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 674, as modified (Mar. 1, 2006) [“when the landowner knows or should know of a concealed hazard on its premises, then under ordinary premises liability principles, the landowner may be liable for a resultant injury to those employees”].) Defendants also fail to address whether the trench, even if an “obvious hazard, for which no warning is necessary,” still gave rise to a duty to “remedy the hazard because knowledge of the hazard is inadequate to prevent injury.” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 674, as modified (Mar. 1, 2006); Johnson v. The Raytheon Co., Inc. (2019) 33 Cal.App.5th 617, 631-632.)

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