Alberto Gonzalez Gonzalez v. Jeffrey Walker, et al.

2 Pursuant to Code of Civil Procedure section 437c, subdivision (b)(2), Plaintiff’s opposition is untimely. Pursuant to California Rules of Court, rule 3.1300, however, this Court has discretion to consider a late-filed opposition.

damage, loss or harm to plaintiff. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) “The cases [also] require that an owner must have actual or constructive notice of the dangerous condition before incurring liability.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1203, 13.) That is true because a property owner is “not the insurer of the visitor’s personal safety” so “the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.

Although the owner’s lack of knowledge is not a defense, “[t]o impose liability for injuries suffered by an invitee due to [a] defective condition of the premises, the owner or occupier ‘must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises....’ ” (Id. at 1206.)

Plaintiff’s Request to Continue the Motion Pursuant to Code of Civil Procedure section 437c(h) Plaintiff first asks for this motion to be continued pursuant to Code of Civil Procedure section 437c, subdivision (h). Under Code of Civil Procedure section 437c, subdivision (h), “if it appears from the affidavits submitted” by the opposing party “that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, [a] court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (Code Civ.

Proc., § 437c, subd. (h).) This provision “mandates a continuance of a summary judgment hearing upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.” (Fisher v. Larsen (1982) 138 Cal.App.3d 627, 648.) However, “[t]he trial court need not grant a continuance where the proposed discovery is focused on matters beyond the scope of the dispositive issues framed by the pleadings.” (Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1023.)

For relief to be granted under subdivision (h), “[t]he affidavit must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.” (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623.)

Here, Plaintiff’s counsel does not provide an affidavit or declaration as is required by subdivision (h). Instead, he argues within Plaintiff’s opposition that: Plaintiff’s counsel has been dealing with ongoing personal medical issues in addition to significant medical issues involving counsel’s son, which substantially interfered with counsel’s ability to complete investigation, discovery, witness preparation, and preparation of a full opposition to Defendants’ Motion for Summary Judgment. (Opp. at 4.) Further, Plaintiff argues that because of these issues, he has not been able to complete the following necessary discovery: • investigation into the resurfacing and painting of the concrete area where the ladder was placed; • discovery concerning the uneven and slippery flooring condition; • discovery regarding Defendants’ knowledge of the dangerous condition;

• discovery concerning retained control over the worksite and performance of the work; • discovery regarding Plaintiff’s employment status and contractor licensing issues; • witness investigation and depositions; and • property maintenance, resurfacing, and repair records. (Opp. at 4-5.)

Defendants, in Reply, argue against a continuance because Plaintiff has already been given an extension since this motion was originally set to be heard on April 23, 2026, and an additional continuance would be prejudicial. Continuing the motion, however, would not be prejudicial because trial is now not scheduled to begin until March 27, 2027.

Further, as stated in Defendants’ motion to continue trial, Defendants stated that “[t]he parties are still completing discovery, and the additional non-expert and expert discovery that remains to be completed is expected to provide the basis for the parties to entertain serious settlement discussions,” and that “[a]ll pretrial deadlines, including discovery cut-offs, and expert witness designation deadlines, are to coincide with the new Trial date.” (Mar. 10, 2026 Ex Parte Mot. to Cont. Trial.) Thus it appears both parties could benefit from additional time to complete discovery prior to trial, and that this motion may be premature.

As such, if this information included in Plaintiff’s opposition was instead included in a sworn affidavit or declaration, the Court would continue the hearing on this motion to allow Plaintiff to conduct discovery as long as Plaintiff’s counsel files an appropriate affidavit (by June 5, 2026) as required by C.C.P § 437c(h). In the event that Plaintiff fails to file an affidavit, the Court provides a ruling below on the motion for summary judgment and will take effect on June 6, 2026.

Motion for Summary Judgment Defendants’ primary argument is that Plaintiff was an independent contractor when he was injured trimming the trees at the subject property, and as such he is ineligible for recovery. Given that Plaintiff has not submitted any evidence or contested any of Defendants’ material facts, Defendants’ motion is essentially unopposed.

On April 08, 2022, Plaintiff was working at the Walkers’ property, when he used his own equipment, including his own ladder, to trim the Walkers’ palm trees. (UMF 2, 10-11, 20.) While he was trimming the palm trees, Plaintiff fell off the ladder and sustained injuries. (UMF 27-29.) At the time, Plaintiff was an employee of Gonzalez Landscaping, which at the time of the incident, was unlicensed to trim trees. (UMF 4, 31.) At the time of the incident, neither Plaintiff nor his work was supervised or controlled by Defendants. (UMF 11-16.)

Defendants argue that the Privette doctrine applies, and extinguishes Plaintiff’s claim against all Defendants. The Privette doctrine references the California Supreme Court’s decision in Privette v. Superior Court (1993) 5 Cal.4th 689, which established that “an independent contractor’s employee generally may not recover tort damages for work-related injuries from the contractor’s hirer.” (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635,

639.) In the three decades since the California Supreme Court decided Privette, the California Supreme Court has “repeatedly reaffirmed the basic rule that 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.) Privette relies on the premise that “[b]ecause 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.” (Ibid.) “This rule applies even where the hirer was at least partially to blame due to its negligent hiring [Citation] or its failure to comply with preexisting statutory or regulatory workplace safety requirements.” (Id. at 41-42.)

The California Supreme Court, however, has identified at least two instances in which Privette would not apply: First, the “hirer will be liable where it exercises retained control over any part of the contractor’s work in a manner that affirmatively contributes to the worker’s injuries,” and second, where “injuries sustained by an independent contractor’s employee that were caused by a concealed hazard.” (Id. at 42.)

Here, it is undisputed that Gonzalez Landscaping was the employer of Plaintiff at the time he sustained the injury, and that Defendants retained no control over how Plaintiff performed his work. (UMF 4, 11-16.) As the Court of Appeal, First District just recently affirmed, the Privette doctrine “insulates all those in the hiring chain from tort liability for workplace injuries suffered by an independent contractor or an employee thereof or consultant thereto.” (Cordero v. Ghilotti Constr. Co., Inc. (2026) 119 Cal.App.5th 1105, 1113.)

As such, Defendants have met the threshold presumption that the Privette doctrine applies because it is undisputed that Plaintiff suffered an injury, he was an employee of an independent contractor at the time he suffered the injury, and that Defendants did not retain any control on how the work was performed. (UMF 4, 11-16.) For Plaintiff to then succeed, he must show one of the two exceptions to Privette applies. Since Plaintiff has not substantively filed an opposition, and cannot show an exception applies, the motion for summary judgment is granted.

Dated: May 27, 2026

____________________________ Judge Kory Mathewson

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