Rogelio Julian v. John L. Bunce, et al

Case Number

22CV04181

Case Type

Hearing Date / Time

Wed, 02/07/2024 - 10:00

Nature of Proceedings

Defendant Giffin & Crane General Contractors, LLC’s Motion For Summary Judgment Or, In The Alternative, Summary Adjudication

Tentative Ruling

For Plaintiff Rogelio Julian: Renee J. Nordstrand, Douglas M. Black, Matthew M. Morrison, NordstrandBlack PC

For Defendant Giffin & Crane General Contractors, LLC: Kevin P. Kennedy, Erika L. Sandler, Matthew Nickell, Kennedy & Souza, APC

For Defendant Anchor Heating & Air Conditioning, Inc.: Michael E. Gallagher, Caroline B. Fawley, Edlin Gallagher, Huie Blum

For Defendants John L. Bunce and Elizabeth N. Bunce: No appearance

RULING

For all reasons discussed herein, the motion of Defendant Giffin & Crane General Contractors, LLC, for summary judgment or, in the alternative, summary adjudication, is denied.

Background

In his complaint filed on October 24, 2022, Plaintiff Rogelio Julian alleges that on December 10, 2021, he sustained injuries when Plaintiff stepped into an open access hole located in a hallway at premises located at 4455 Via Bendita in Santa Barbara, California (the premises). Plaintiff alleges two causes of action: (1) general negligence (against Defendants John L. Bunce, Elizabeth N. Bunce, and Giffin & Crane General Contractors, LLC, only); and (2) premises liability (against all named Defendants). Plaintiff’s negligence and premises liability causes of action allege essentially the same facts:

On December 10, 2021, Defendants “negligently and carelessly owned, operated, maintained, controlled[,] and inspected the …premises” so as to create and permit the existence of a dangerous condition at the premises consisting of an “open access hole approximately 3' x 3' located in a common hallway” at the premises. (Compl., ¶ GN-1.) Defendants knew or should have known about the open access hole, and failed to supervise, warn of, mark or protect against the dangerous condition. (Id. at ¶¶ GN-1 & Prem.L-1.) Plaintiff was injured when he stepped into the open access hole which was uncovered and unmarked. (Ibid.)

On January 9, 2023, Defendant Giffin & Crane General Contractors, LLC (Giffin), filed an answer to Plaintiff’s complaint generally denying its allegations and asserting fifty affirmative defenses.

Also on January 9, 2023, Giffin filed a cross complaint (the cross-complaint) against fictitious Defendants Moes 1 through 25 alleging nine causes of action: (1) breach of written contract; (2) express indemnity; (3) total equitable indemnity; (4) partial equitable indemnity; (5) contribution and repayment; (6) declaratory relief re duty to defend; (7) declaratory relief re duty to indemnify; (8) breach of written contract – additional insurance; and (9) negligence.

On March 9, 2023, Giffin filed an amendment to the cross-complaint substituting Defendant Anchor Heating & Air Conditioning, Inc. (Anchor), for the fictitious name Moe 1 wherever it appears in the cross-complaint.

On March 15, 2023, Anchor filed an answer to Plaintiff’s complaint generally denying its allegations and asserting fifty-five affirmative defenses.

On April 18, 2023, Anchor filed its answer to the cross-complaint of Giffin, generally denying its allegations and asserting forty-six affirmative defenses.

Court records reflect that Defendants John L. Bunce and Elizabeth N. Bunce (the Bunce Defendants) have not appeared in this action.

Giffin has filed a motion for summary judgment or, in the alternative, summary adjudication of each cause of action alleged in Plaintiff’s complaint on the grounds that Plaintiff’s claims are barred under Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette), and its progeny and related case law. Giffin contends that the rebuttable presumption set forth in Privette applies to Plaintiff’s causes of action. Giffin further contends that Plaintiff has not pleaded and cannot present evidence to overcome the rebuttable presumption under Privette.

Plaintiff has filed opposition to the motion of Giffin.

The Court notes that, throughout the moving separate statement, Giffin sets forth the same facts in different numbered paragraphs rather than assigning the same paragraph number to each identical fact wherever it appears. (See, e.g., Sep. Stmt., UMF Nos 2, 20, and 60 [setting forth the same facts regarding the location of the incident at issue].) The consecutive manner in which Giffin has numbered paragraphs within its separate statement has made it difficult for the Court to determine which material facts support each claim or issue of which Giffin seeks summary judgment or adjudication. The consecutive numbering of paragraphs also creates problems when citing or referring to identical facts. Therefore, the Court will cite or refer herein only to the paragraph number in which any identical facts first appear in the separate statement.

It is undisputed that the injuries alleged in Plaintiff’s complaint (the incident) occurred during construction at the premises on December 10, 2021. (Pl. Sep. Stmt., UMF Nos. 1, 2 & evidence cited therein.) The premises is owned by the Bunce Defendants. (Id. at UMF No. 2 & evidence cited therein.) At the time of the incident, Giffin was the general contractor at and had no ownership interest in the premises. (Id. at UMF Nos. 4, 23 & evidence cited therein.)

On April 19, 2019, Giffin entered into an agreement with the Bunce Defendants to perform renovation work at the premises (the renovation work). (Pl. Sep. Stmt., UMF No. 10 & evidence cited therein.) To complete the renovation work, Giffin hired subcontractors to perform various scopes of work at the premises. (Id. at UMF No. 11 & evidence cited therein.)

On March 16, 2020, Giffin contracted with independent subcontractor Cordero Painting Company, Inc. (Cordero) to install paint and staining at the premises. (Pl. Sep. Stmt., UMF Nos. 12, 13 & evidence cited therein.) At the time of the incident, Plaintiff was an employee of Cordero. (Id. at UMF Nos. 5, 14 & evidence cited therein.) Plaintiff was directed by the owner of Cordero regarding how and when to perform Plaintiff’s work. (Id. at UMF Nos. 38, 39 & evidence cited therein.)

Anchor was an independent HVAC contractor hired by Giffin to provide HVAC installation and services at the premises. (Pl. Sep. Stmt., UMF Nos. 25, 40, 41 & evidence cited therein [not reasonably disputed on this point].) The work contracted for by Giffin with Anchor was performed by Anchor’s employees. (Id. at UMF No. 46 & evidence cited therein [not reasonably disputed on this point].)

The incident occurred when Plaintiff fell into an open access hole at the premises which was located in a common hallway (the Access Hole). (Pl. Sep. Stmt., UMF No. 7 & evidence cited therein [not reasonably disputed on this point].) A workers’ compensation claim was filed, and Plaintiff received money because of that claim. (Id. at UMF No. 9 & evidence cited therein [not reasonably disputed on this point].) (Note: The Court notes that to support the material fact set forth in UMF No. 9, Giffin cites to Exhibit F which is a photo of the Access Hole. It appears that Giffin’s Exhibit E [a joint order issued by the workers’ compensation judge] is the document Giffin intended to reference as support for the fact state in UMF No. 9.)

The Access Hole is in a hallway that was commonly used by workers at the premises during construction, including Plaintiff. (Pl. Sep. Stmt., UMF No. 15 & evidence cited therein [not reasonably disputed on this point].) On the date of the incident, as Plaintiff walked down the hallway, he fell into the Access Hole. (Id. at UMF Nos. 16, 53, 54 & evidence cited therein.)

On the date of the incident, Anchor employees were performing work underneath the floor around the Access Hole. (Pl. Sep. Stmt., UMF No. 47 & evidence cited therein.) To perform their work, Anchor employees used the Access Hole and left it open while they were performing their work. (Id. at UMF Nos. 47, 48 & evidence cited therein [not reasonably disputed on these points].)

Plaintiff was working at the premises for more than two months prior to the incident. (Pl. Sep. Stmt., UMF No. 51 & evidence cited therein.) During the two-month period preceding the incident, Plaintiff was on site five days per week. (Id. at UMF No. 52 & evidence cited therein.) Plaintiff walked down the hallway containing the Access Hole three to four times a day while he was on site performing his work. (Id. at UMF No. 50 & evidence cited therein [not reasonably disputed on this point].)

Anchor has also filed an opposition to the motion of Giffin and a responding separate statement in support of Anchor’s opposition to the motion.

The above summary is not intended to be exhaustive, and the Court has considered all admissible evidence offered in support of and in opposition to the motion.

Analysis

“The purpose of the law of summary judgment is to provide Courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Accordingly, a 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 judgment as a matter of law.” (Code Civ. Proc. § 437c, subd. (c).)

“From commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th 826, 845, 850u) In addition, the moving party “bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact….” (Id. at p. 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.)

A Defendant moving for summary judgment satisfies the initial burden by producing evidence showing 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); Aguilar, supra, 235 Cal.4th at p. 850, 853 [a moving Defendant is not required to conclusively negate the element that Defendant contends the Plaintiff cannot establish].) If the moving Defendant carries its burden of production, the burden shifts to the Plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 850.)

In evaluating a motion for summary judgment, the Court “must consider all of the evidence and all of the inferences drawn therefrom []” and “determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Aguilar, supra, 25 Cal.4th at pp. 844, 856 [also noting that the Court does not make a finding of its own and “may not weigh the Plaintiff’s evidence or inferences against the Defendants’ as though it were sitting as the trier of fact”] ) The Court must also view the evidence and all reasonable inferences “in the light most favorable to the opposing party.” (Id. at p. 843.) “[I]f the Court concludes that the Plaintiff’s evidence or inferences raise a triable issue of material fact, it must conclude its consideration and deny the Defendants’ motion.” (Id. at p. 856.)

Motions for summary adjudication “‘proceed in all procedural respects as a motion for summary judgment.’ [Citation.]” (Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 399; Code Civ. Proc., § 437c, subd. (f)(2).) Summary adjudication of an affirmative defense is properly granted when there is no triable issue of material fact as to the defense, and the moving party is entitled to judgment on the defense as a matter of law. (Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 977-978.)

The pleadings frame the issues to be considered on a motion for summary judgment. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.) Therefore, a Defendant moving for summary judgment “ ‘need address only the issues raised by the complaint; the Plaintiff cannot bring up new, unpleaded issues in his or her opposing papers.’ [Citation.]” (Ibid.) In addition, “ ‘[i]f the opposing party’s evidence demonstrates a factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing on the motion. [Citations.]’ [Citation.]” (Ibid.)

As further discussed above, Plaintiff broadly alleges in the complaint that Giffin “negligently and carelessly … operated, maintained, controlled [,] and inspected the …premises” with respect to the existence of an access hole in a common hallway at the premises which Plaintiff alleges constitutes a dangerous condition. In its answer to Plaintiff’s complaint, Giffin alleges that “any recovery of the [p]laintiff … is barred by [Privette], and its progeny.” (Giffin Answer at p. 12, ll. 7-11.)

As explained by the California Supreme Court in Privette, the judicially created doctrine of peculiar risk developed as an exception to the common law rule that “a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor’s negligence in performing the work.” (Privette, supra, 5 Cal.4th at p. 693.) This exception to the common law rule of nonliability was adopted “to ensure that innocent third parties injured by the negligence of an independent contractor hired by a landowner to do inherently dangerous work on the land would not have to depend on the contractor’s solvency in order to receive compensation for the injuries” because “as between two parties innocent of any personal wrongdoing—the person who contracted for the work and the hapless victim of the contractor’s negligence—the risk of loss occasioned by the contracted work was more fairly allocated to the person for whose benefit the job was undertaken.” (Id. at p. 694.)

Over time, the peculiar risk doctrine was “expanded to allow the hired contractor’s employees to seek recovery from the nonnegligent property owner for injuries caused by the negligent contractor.” (Privette, supra, 5 Cal.4th at p. 696 [discussing cases in which the Court “approved peculiar risk liability in favor of an independent contractor’s employee”].) Beginning with Woolen v. Aerojet General Corp. (1962) 57 Cal.2d 407, the Privette Court reconsidered the line of cases in which the Court expanded peculiar risk liability to an independent contractor’s employees. (Ibid.)

The property owner in Privette hired a roofing contractor to install a new roof at his property. (Privette, supra, 5 Cal.4th at p. 692.) While carrying buckets of hot tar up a ladder to the roof at the direction of a foreman, an employee of the contractor fell and was burned by the tar. (Ibid.) The employee sought workers’ compensation benefits for his injuries and sued the property owner alleging that the owner was negligent in selecting the roofing contractor and that, under the doctrine of peculiar risk, the owner should be liable for injuries resulting from the contractor’s negligence due to the inherent dangers of working with hot tar. (Ibid.)

Noting that workplace injuries are compensable under workers’ compensation insurance, the Court held that the doctrine of peculiar risk does not extend liability “to the employees of an independent contractor hired to do dangerous work[.]” (Privette, supra, 5 Cal.4th at p. 702.) The Court reasoned that, by ensuring compensation for workplace injuries sustained by employees of an independent contractor, “the workers’ compensation system of recovery regardless of fault achieves the identical purposes that underlie recovery under the doctrine of peculiar risk[.]” (Id. at p. 701.)

Known as the Privette doctrine, the Court concluded that “[w]hen … injuries resulting from an independent contractor’s performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers’ compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries.” (Privette, supra, 5 Cal.4th at p. 702; see also Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 270 (Sandoval) [“[w]e refer to this principle that a hirer is ordinarily not liable to the contract workers as the Privette doctrine”].)

The holding in Privette has been extended to general contractors such as Giffin. (See Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1123.)

“Over time, [the Court has] recast [its] primary rationale for the Privette doctrine in terms of delegation rather than workers’ compensation.” (Sandoval, supra, 12 Cal.5th at p. 270; see also SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 601-602 (SeaBright) [“[Privette] and its progeny “recognize a presumption that an independent contractor’s hirer delegates to that contractor the responsibility to perform the specified work safely”]; Gonzalez v. Mathis (2021) 12 Cal.5th 29, 53 [same].) Because the hirer presumptively delegates control over the contracted work to the contractor, the hirer’s liability is essentially vicarious or derivative and therefore generally does not extend to “theories of nominally ‘direct’ liability, such as negligent failure to require precautions”, even in circumstances under which workers’ compensation is not available. (Sandoval, supra, 12 Cal.5th at pp. 270-271 [also noting a competent contractor has “both good reason and knowledge to exercise responsibility over the contractor’s own personal safety”]; see also Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 267 [expanding Privette doctrine to claim that hirer failed to specify precautions that independent contractor should take for the safety of employees]; (Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1244-1245 [Privette doctrine applied to negligent hiring claim].)

Accordingly, because a contractor is expected to perform contracted work in a safer manner than the hirer, the Court has “endorsed a ‘strong policy’ of presuming that a hirer delegates all control over the contracted work, and with it all concomitant tort duties, by entrusting work to a contractor.” (Sandoval, supra, 12 Cal.5th at p. 270.)

On a motion for summary judgment, “the Privette presumption arises once the Defendant establishes the requisite factual foundation—namely, that it hired an independent contractor to perform certain work, and the independent contractor’s worker was injured in the course of that work.” (Miller v. Roseville Lodge No. 1293 (2022) 83 Cal.App.5th 825, 834 (Miller).)

Giffin has offered an undisputed factual foundation showing that Giffin hired Cordero as an independent contractor to provide painting and staining at the premises, that Plaintiff was an employee of Cordero at the time of the incident, and that the incident occurred during the painting and staining work that Giffin hired Cordero to perform at the premises. (Pl Sep. Stmt., UMF Nos. 1, 2, 5-7, 11-16, 25, 40-41, 46-48 & evidence cited therein; see Miller, supra, 83 Cal.App.5th at p. 834.) Further, Plaintiff does not dispute that Giffin has met its initial burden to produce evidence demonstrating that the presumption in Privette further discussed above applies with respect to the work for which Cordero was contracted to perform. (See Pl. Opp. at p. 2, ll. 14-15.)

For all reasons discussed above, the Court finds that Giffin has met its initial burden to demonstrate that Privette presumption further discussed above applies with respect to Cordero’s work at the premises. The burden now shifts to Plaintiff to raise a triable issue of fact. (Miller, supra, 83 Cal.App.5th at p. 834.)

Plaintiff does not dispute that Cordero directed Plaintiff regarding how and when to perform Plaintiff’s work. (Pl. Sep. Stmt., UMF Nos. 38 & 39.) Plaintiff contends, however, that material facts demonstrate that Giffin provided Anchor with materials, tools, or equipment, including safety cones and tape, to mark the Access Hole while Anchor was using it. (Pl. Sep. Stmt., UMF Nos. 42-44 & evidence cited therein.) Plaintiff also contends that Giffin chose the location of the Access Hole and was responsible for constructing it, that the Access Hole determined how the HVAC equipment would be brought by Anchor to its location of installation and accessed by Anchor for future maintenance and repair, and that Anchor requested and was denied an outdoor access point instead of the Access Hole. (Id. at UMF Nos. 44, 45 & evidence cited therein.)

Based on the material facts offered by Plaintiff, Plaintiff argues that there exist triable issues regarding whether Giffin interfered with or directed the operative details of the work of Anchor and its employees including the method or way Anchor’s employees performed their tasks, whether Giffin retained and exercised control over the work of Anchor, and whether Giffin’s exercise of retained control over Anchor’s work affirmatively contributed to Plaintiff’s injuries.

In the memorandum submitted in support of the motion, Giffin presents factual and legal argument to support its contention that Giffin did not retain control over Plaintiff or Cordero’s work or affirmatively contribute to Plaintiff’s injuries. However, Giffin fails to address whether the presumption under Privette further discussed above applies to the work Anchor was contracted to perform at the premises.

As the moving party, Giffin bears the burden to negate all theories of liability alleged in Plaintiff’s complaint. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 332-333 [also noting that a moving Defendant need not refute liability on theories not included in the pleadings].) The allegations of Plaintiff’s complaint further discussed above do not limit the issues raised in this matter to the work performed by Plaintiff or Cordero at the premises. For this reason, Giffin has failed to meet its burden to negate the theories of liability alleged in the complaint with respect to work performed by Anchor at the premises, including whether the Privette presumption applies to Anchor’s work. As Giffin has failed to meet its burden in this respect, this alone is a sufficient basis on which the Court may deny the motion.

In addition, even if the Court were to find that Giffin met its burden to demonstrate that the Privette doctrine applies with respect to the work Anchor was contracted to perform at the premises, Plaintiff offers evidence which is sufficient to raise triable issues of material fact with respect to whether Giffin retained control over Anchor’s contracted work and affirmatively contributed to Plaintiff’s injuries.

The evidence offered by Plaintiff includes facts which tend to demonstrate that Giffin had numerous safety cones and caution tape in various locations at the jobsite including in a room next to the Access Hole, each of which were available to “whomever” needed them and “wherever” they were needed. (Pl. Exh. A at p. 60, l. 24-p. 61, l. 6; Exh. B at p. 42, l. 13-44, l. 18.)

Plaintiff also offers evidence to show that Anchor did not supply safety cones until after the incident, and that Anchor relied on Giffin to provide safety cones, caution tape, and other safety devices to protect the Access Hole. (Pl. Exh. C at pp. 18, ll. 20-22; 30, ll. 17-21; 44, l. 24-45, l. 8.) For example, an Anchor journeyman testified that prior to the incident, there were safety cones at the job site which were provided by Giffin, and he never brought any himself. (Pl. Exh. D at p. 50, ll. 3-23.) Further, an Anchor apprentice testified that he relied on Giffin to provide safety measures such as safety cones and tape. (Pl. Exh. E at p. 58, l. 23-59, l. 2.)

Plaintiff’s evidence also shows that the Access Hole did not exist when Anchor contracted to do the HVAC installation work for Giffin at the premises, that the staircase in the hallway slid out exposing an “opening”, and that Anchor wanted to construct an access point from outdoors to ensure uniformity with respect to other exterior access points and to permit Anchor to service the HVAC equipment without causing damage to the premises. (Pl. Exh. C at pp. 35, l. 12-36, l. 2-14; 37, ll. 5-15; 38, ll. 11-20.) Anchor discussed an outdoor access point with Giffin but Giffin denied Anchor’s request for an outdoor access point. (Id. at pp. 37, l. 5-38, l. 12.) The evidence further shows that Giffin provided Anchor with the Access Hole. (Id. at p. 37, l. 5-38, l. 12.)

Plaintiff also offers evidence to demonstrate that Giffin changed the access to the crawl space by framing the Access Hole and changed the structure of the Access Hole prior the incident. (Pl. Exh. F at p. 54, l. 14-55, l. 3; Exh. B at p. 26, l. 20-27, l. 2; 29, ll. 10-23.)

“[T]he Privette doctrine has its limits. Sometimes a hirer intends to delegate its responsibilities to the contractor in principle but, by withholding critical safety information, fails to effectively delegate its responsibilities in practice; or a hirer delegates its responsibilities only partially by retaining control of certain activities directly related to the contracted work. When such situations arise, the Privette doctrine gives way to exceptions.” (Sandoval, supra, 12 Cal.5th at pp. 270-271.)

One exception to the general rule of nonliability announced in Privette exists under circumstances where the hirer of an independent contractor retains control over safety conditions or the manner of performance of the contractor’s work at the worksite and negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 213 (Hooker); SeaBright, supra, 52 Cal.4th at p. 604.) In such cases, the hirer owes a duty of care to the contract workers and can be liable for a workplace injury to the contractor’s employee. (Ibid.; see also Sandoval, supra, 12 Cal.5th at p. 274 [also noting that “hirers do not always fully delegate control to their contractors”].)

“A hirer ‘retains control’ where it retains a sufficient degree of authority over the manner of performance of the work entrusted to the contractor.” (Sandoval, supra, 12 Cal.5th at p. 274.) However, “[a] hirer’s authority over noncontract work … does not give rise to a retained control duty unless it has the effect of creating authority over the contracted work. [Citation.] Furthermore, a hirer’s authority over the contracted work amounts to retained control only if the hirer’s exercise of that authority would sufficiently limit the contractor’s freedom to perform the contracted work in the contractor’s own manner.” (Id. at pp. 274-275.)

Evidence showing that Giffin provided safety equipment at the premises is not, by itself, necessarily sufficient to demonstrate a triable issue of fact with respect to whether Giffin retained control over Anchor’s work or safety conditions at the premises. (See Sandoval, supra, 12 Cal.5th at p. 276 [“[a] hirer might be responsible for the presence of a hazard and even convey an expectation that the contractor perform its work without eliminating that hazard altogether, and yet leave the contractor ample freedom to accommodate that hazard effectively in whatever manner the contractor sees fit”].)

Moreover, “a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite[.]” (Hooker, supra, 27 Cal.4th at p. 202.) In addition, the evidence presented by Plaintiff does not suggest that Giffin affirmatively contributed to any unsafe procedures or practices by Anchor or with respect to the Access Hole in a manner that would give rise to a duty by Giffin to prevent or correct any such unsafe procedures or practices. (Id. at p. 209.)

Furthermore, the act of permitting Anchor to use the Access Hole alone is insufficient to demonstrate that Giffin retained control or exercised retained control in a manner that affirmatively contributed to Plaintiff’s injuries. (Hooker, supra, 27 Cal.4th at pp. 214-215.) For example, Plaintiff has presented no evidence showing that Giffin retained the authority to require or provide safety precautions, that Giffin exerted its influence over any safety issues or precautions with respect to the Access Hole, or that Anchor was not free to implement its own safety precautions with respect to the Access Hole. (Sandoval, supra, 12 Cal.5th at pp. 271, 281 [once a presumptive delegation of tort duties occurs, “the contractor alone — and not the hirer — [is] responsible for any failure to take reasonable precautions”].)

In addition, the fact that Giffin did retain or may have retained a general power of supervision or control over the renovation work, the power to inspect or stop Anchor’s work, or authority to make suggestions or recommendations as to details of Anchor’s work is also, by itself and for present purposes, insufficient to demonstrate a retained control duty on the part of Giffin. (Sandoval, supra, 12 Cal.5th at p. 275.)

Notwithstanding whether Plaintiff has met its burden to demonstrate the existence of triable issues of fact with respect to safety measures or precautions as further discussed above, there exist triable issues of fact with regard to whether Giffin asserted control or authority over Anchor’s contracted work, and whether Giffin’s exercise of retained control contributed to the injury “in a way that isn’t merely derivative of [Anchor’s] contribution to the injury.” (Sandoval, supra, 12 Cal.5th at p. 277.)

For present purposes, the undisputed evidence offered by Plaintiff demonstrates that Giffin made the decision to locate the Access Hole in a hallway at the premises that was commonly used by workers such as Plaintiff. It can be reasonably inferred from the evidence present here that Giffin retained sole authority to determine the location of the access point for HVAC equipment to be installed by Anchor.

In addition, while a reasonable jury could infer that the process of selecting the location of and constructing the Access Hole was not necessarily within the scope of Anchor’s contracted work, it can also be reasonably inferred from the evidence offered by the parties that Giffin’s decision to locate the Access Hole in a commonly used hallway created authority over Anchor’s contracted work to the extent that Giffin, by exercising its authority to determine the location of the Access Hole, solely determined the manner and location in which the HVAC equipment would be installed by Anchor at the premises.

For reasons discussed above, a reasonable jury could find that, based on the evidence presented by the parties including inferences that can be drawn therefrom, Giffin retained “a sufficient degree of authority over the manner of performance of the work” that was entrusted to Anchor by choosing the location of the access point from and through which Anchor was required to install HVAC equipment at the premises. (Sandoval, supra, 12 Cal.5th at p. 274.) By exercising sole authority to choose the location of the Access Hole, a reasonable jury could further find, either expressly or by inference, that Giffin effectively and sufficiently limited Anchor’s “freedom to perform the contracted work in [Anchor’s] own manner.” (Sandoval, supra, 12 Cal.5th at p. 275.) To the extent a jury could find that Giffin limited Anchor’s freedom or ability to perform its work, or influenced or directed the manner in which Anchor would install the HVAC equipment, a triable issue of fact exists as to whether Giffin retained and exercised control over the manner of performance of Anchor’s work sufficient to overcome the Privette presumption. (See Sandoval, supra, 12 Cal.5th at p. 276.)

“A hirer’s conduct also satisfies the affirmative contribution requirement where the hirer's exercise of retained control contributes to the injury independently of the contractor's contribution (if any) to the injury.” (Sandoval, supra, 12 Cal.5th at p. 277.) “An affirmative contribution may take the form of actively directing a contractor or an employee about the manner of performance of the contracted work. [Citations.] When the employer directs that work be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work, an affirmative contribution occurs.” (Tverberg v. Fillner Constr. (2012) 202 Cal.App.4th 1439, 1446.)

The same analysis applies. For the same reasons discussed above, there exist triable issues of fact as to whether Giffin actively participated in and affirmatively contributed to Plaintiff’s injury by retaining and exercising authority to determine the location of the Access Hole in a hallway commonly used by contractors and their employees. (See Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, 1133-1134 [triable issue of fact regarding affirmative contribution existed where hirer retained exclusive authority over road barricades and failed to erect barricade around fallen debris].)

Viewing the evidence in the light most favorable to Plaintiff, a reasonable jury could infer that Giffin did not fully delegate tort duties to Anchor with respect to the location or manner of constructing the Access Hole. Because there exist triable issues of fact with respect to whether Giffin retained control over Anchor’s contracted work and whether Giffin’s exercise of retained control contributed to Plaintiff’s injury independently of any contribution by Anchor, the Court will deny the motion.

Plaintiff asserts sixteen objections to facts set forth in Giffin’s separate statement at paragraphs 7, 9, 15, 25, 28, 36, 37, 42, 43, 44, 45, 57, 67, 75, 76, and 82. In support of its reply to Plaintiff’s opposition, Giffin asserts twenty-two objections to supplemental or additional facts set forth in Plaintiff’s response separate statement.

The Court rules only on objections to evidence that are material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).) The Court will overrule Plaintiff’s objection nos. 2 through 4, 6 through 11, 14, and 15. The Court will also overrule Giffin’s objection nos. 1 through 13, 15 through 19, and 22.