The opinion
Filed 10/21/22; Certified for Publication & Modified 11/21/22 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
KYLE BROWN, as represented, etc., B314946
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV20315)
v.
BEACH HOUSE DESIGN &
DEVELOPMENT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Gary Y. Tanaka, Judge. Reversed.
Dordick Law Corporation, Gary A. Dordick and John M.
Upton, for Plaintiff and Appellant.
Yee & Associates, Steven R. Yee and William G. Sorkin, for
Defendant and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Plaintiff Kyle Brown (plaintiff) was severely injured when
he fell from a significant height while working as a carpenter at a
construction site. Plaintiff alleged that he fell from defective
scaffolding, and he sued the general contractor and the
scaffolding subcontractor for negligence. The trial court granted
summary judgment for the general contractor, concluding that
plaintiff’s claims against it were barred by exceptions to the
peculiar risk doctrine articulated by the California Supreme
Court in Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette)
and subsequent authority.
We reverse. While Privette and subsequent cases held that
a general contractor cannot be vicariously liable for the
negligence of its subcontractors, plaintiff’s claim against the
general contractor alleged direct, not vicarious, liability. Further,
there were triable issues of material fact as to whether the
general contractor fully delegated to the scaffolding subcontractor
the duty to maintain the scaffolding in a safe condition. The
motion for summary judgment therefore was improperly granted.
FACTUAL AND PROCEDURAL BACKGROUND
I. Background.
Defendant Beach House Design and Development (Beach
House) was the general contractor responsible for remodeling a
residence in Hermosa Beach, California (the property). Beach
House subcontracted with O’Rourke Construction, Inc.
(O’Rourke) to do finish carpentry, and with A&D Plastering Co.
(A&D) to erect scaffolding and to patch plaster. Plaintiff, a
carpenter, was employed by O’Rourke.
On June 16, 2017, O’Rourke’s carpenters, including
plaintiff, were on the property to mill, prime, and install window
casings. After lunch, while working by himself, plaintiff fell from
the north side of the building onto a concrete walkway, suffering
2
severe injuries. It appears that no one saw plaintiff fall, and
plaintiff has no recollection of the incident.
After plaintiff’s fall, Jeffrey Strnad, Beach House’s
principal, and Alex Daniels, A&D’s principal, inspected the
scaffolding above the area where plaintiff fell. They found that
some of the scaffolding was not properly secured to the building,
and planks, crossbars, ties, and guardrails had been cut or were
missing. Both men said the scaffolding was not safe to use in
that condition.
II. The present action; Beach House’s motion for
summary judgment.
Plaintiff, through his guardian ad litem Barbara Brown,
sued Beach House for negligence. Plaintiff asserted that he had
fallen from scaffolding Beach House had failed to properly
maintain, resulting in permanent injuries, substantial medical
expenses, and loss of income. In September 2019, plaintiff filed
an amendment substituting A&D for a Doe defendant.
Beach House moved for summary judgment. It asserted
that under Privette and its progeny, a general contractor is liable
to a subcontractor’s employee for an injury resulting from an
unsafe workplace only if the general contractor affirmatively
contributed to the conditions that led to the injury. In the
present case, Beach House asserted there was undisputed
evidence that it did not supply the scaffolding or any other
equipment used by plaintiff, did not control the manner or means
by which plaintiff performed his work, and did not take any
affirmative act that contributed to plaintiff’s injury. That
evidence included the following:
Plaintiff was an employee of O’Rourke, with whom Beach
House subcontracted to install casings for windows and exterior
3
doors, do interior door trim work, frame bay windows, waterproof
exterior doors, and install exterior siding. The subcontract
between Beach House and O’Rourke provided that O’Rourke
would furnish “all materials, labor, tools, supplies, equipment,
permits, services, and supervision necessary for completion of the
scope of work [as] noted in the attached proposal.”
The scaffolding on the property was provided and installed
by A&D, which also did plastering work on the project. The A&D
subcontract provided that Beach House would pay A&D $8,495 to
install the scaffolding and $1,500 to do plaster work. The
subcontract further provided that A&D would “furnish scaffold
and equipment that may be necessary to do the Work
expeditiously,” “provide traffic and safety controls at all times
while using such equipment at the Project,” and “[promptly]
remove and replace any defective material, damaged [sic] caused
by Subcontractor or Work upon notice from Contractor, Owner or
Architect.”
Strnad, Beach House’s managing member, stated in a
declaration that Beach House did not direct the means or
methods of the work performed by O’Rourke or its employees,
including plaintiff, and it did not provide any equipment or
materials to O’Rourke. Beach House also did not direct the
means or methods of the work performed by A&D. Strnad had
“no information that Beach House and/or its employees
contributed in any way to the purportedly defective railing on the
scaffolding, plaintiff’s purported slipping, and/or plaintiff’s
purported fall.”
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III. Plaintiff’s opposition to motion for summary
judgment.
Plaintiff opposed the motion for summary judgment. He
contended there were triable issues as to whether Beach House
furnished dangerous equipment to plaintiff and negligently
exercised control over the job site, including the scaffolding.
Specifically, he asserted there was evidence that Beach House
retained control over the safety of the job site through its safety
plan and daily walk-throughs, and that Beach House was
responsible for procuring and maintaining the scaffolding for the
use of its subcontractors and their employees, including O’Rourke
and plaintiff. That evidence included the following:
Tony O’Rourke, an O’Rourke principal, testified that in his
experience, scaffolding usually is provided by the general
contractor. 1 O’Rourke had never set up scaffolding or chosen a
scaffolding company, and O’Rourke’s bid for the work in this case
did not include the cost of scaffolding. O’Rourke expected that
Beach House would provide scaffolding because O’Rourke’s scope
of work included installing second and third story windows,
which could not be reached without scaffolding.
Alex Daniels, an A&D principal, testified that he and his
son Danny were the A&D employees who erected scaffolding and
inspected it for safety. Once scaffolding was erected, it was not
Daniels’s practice to inspect it daily; Daniels believed daily
inspection of the scaffolding was the responsibility of the
superintendent or contractors. A&D did not have an agreement
with Beach House about allowing other subcontractors to use the
1 Throughout this opinion, we will use “O’Rourke” to refer
both to Tony O’Rourke and O’Rourke Construction.
5
scaffolding, but Daniels never told Beach House not to allow
other contractors to use the scaffolding.
Strnad, Beach House’s principal, testified that Beach
House subcontracted with A&D to erect, maintain, supervise, and
tear down the scaffolding. Beach House’s employees did not
inspect the scaffolding after it was erected because Strnad
believed “that wasn’t our role or duty in the contract with A&D.
Their responsibility was to furnish the scaffold. They took full
responsibility to supervise the scaffold and maintain it.”
Matthew Linden, Beach House’s site supervisor, testified
that he never inspected the scaffolding to ensure it was in a safe
condition because that was A&D’s responsibility. He agreed,
however, that A&D was not on site every day; to the contrary, he
said A&D’s plastering work took only about six months, but the
scaffolding remained on the job site for at least a year. Linden
acknowledged that A&D employees did not come to the site to
inspect the scaffolding on days they were not performing work,
and he said that during periods when A&D was not on site, he
was not aware that anyone was making sure the scaffolding was
safe.
Linden authenticated a weekly task document prepared by
Beach House stating that during the week of June 12, 2017,
A&D “[s]et scaffolding at West and South Elev for Mezz desk
fascia and trim installation,” “[s]et scaffolding on top of Canopy
for South elev siding installation,” and “[i]ncrease[d] scaffolding
height at East front elev for siding installation.” Linden agreed
that this document suggested Beach House had instructed A&D
to erect scaffolding for the use of O’Rourke and his employees.
Linden also authenticated an invoice from A&D to Beach House
for “Scaffold Rental––invoice due for scaffold rental above
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contract for 05/17/2017 through 06/17/2017 (32 days at $84.95 per
day).”
IV. Order granting summary judgment; appeal.
The trial court granted the motion for summary judgment
on May 26, 2021. It explained that under Privette, a general
contractor is not liable for injuries suffered by a subcontractor’s
employee unless (1) the general contractor retained control over
the subcontractor’s work and the exercise of control affirmatively
contributed to the employee’s injuries, or (2) the general
contractor provided unsafe equipment that affirmatively
contributed to the subcontractor’s employee’s injury. In the
present case, Beach House provided competent evidence that it
did not retain control over how plaintiff performed his work, did
not provide equipment to plaintiff, and did not contribute to any
purported defect in the scaffolding. In response, plaintiff
presented evidence that Beach House maintained a safety plan
that included daily walk-throughs, had supervisory responsibility
over the job site, and provided the scaffolding. The court found
that plaintiff’s evidence did not establish that any of Beach
House’s affirmative conduct caused plaintiff’s injuries because
Beach House did not direct the means or methods by which
plaintiff conducted his work. Further, plaintiff’s evidence did not
establish that Beach House was responsible for the condition of
the scaffolding because plaintiff’s evidence “actually confirms
that the scaffold was provided by A&D,” not Beach House. The
court thus concluded that plaintiff had failed to establish that an
exception existed to the Privette doctrine.
The trial court entered judgment for Beach House on
July 23, 2021. Plaintiff timely appealed.
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DISCUSSION
I. Standard of review.
“ ‘A trial court properly grants summary judgment when
there are no triable issues of material fact and the moving party
is entitled to judgment as a matter of law. (Code Civ. Proc.,
§ 437c, subd. (c).) “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.”
[Citation.]
“ ‘A defendant who moves for summary judgment bears the
initial burden to show the action has no merit—that is, “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 [that] cause of action.” (Code Civ. Proc., § 437c,
subds. (a), (p)(2).) Once the defendant meets this initial burden
of production, the burden shifts to the plaintiff to demonstrate
the existence of a triable issue of material fact. [Citation.] “From
commencement to conclusion, the moving party defendant bears
the burden of persuasion that there is no triable issue of material
fact and that the defendant is entitled to judgment as a matter of
law.” [Citation.] We review the trial court’s ruling on a summary
judgment motion de novo, liberally construing the evidence in
favor of the party opposing the motion and resolving all doubts
about the evidence in favor of the opponent. [Citation.] We
consider all of the evidence the parties offered in connection with
the motion, except that which the court properly excluded.
[Citation.]’ (Grotheer v. Escape Adventures, Inc. (2017)
14 Cal.App.5th 1283, 1292–1293.)” (Delgadillo v. Television
Center, Inc. (2018) 20 Cal.App.5th 1078, 1085–1086.)
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II. Applicable law.
A. The Privette doctrine.
At common law, a person who hired an independent
contractor to perform a task generally was not liable to third
parties for injuries caused by the independent contractor’s
negligence. Central to this rule of nonliability “ ‘was the
recognition that a person who hired an independent contractor
had “ ‘no right of control as to the mode of doing the work
contracted for.’ ” ’ ” (SeaBright Ins. Co. v. US Airways, Inc. (2011)
52 Cal.4th 590, 598 (SeaBright).)
The “peculiar risk” doctrine created an exception to the
common law rule that a hirer is not liable for the torts of an
independent contractor. Under the doctrine of peculiar risk, “a
person who hires an independent contractor to perform work that
is inherently dangerous can be held liable for tort damages when
the contractor’s negligent performance of the work causes injuries
to others. By imposing such liability without fault on the person
who hires the independent contractor, the doctrine seeks to
ensure that injuries caused by inherently dangerous work will be
compensated, that the person for whose benefit the contracted
work is done bears responsibility for any risks of injury to others,
and that adequate safeguards are taken to prevent such injuries.”
(Privette, supra, 5 Cal.4th at p. 691.) The doctrine of peculiar risk
thus represents a limitation on the common law rule and a
corresponding expansion of hirer vicarious liability.
In its 1993 decision in Privette, supra, 5 Cal.4th 689, the
California Supreme Court held that the peculiar risk doctrine did
not apply to injured employees of independent contractors.
Privette concerned a roofing contractor’s employee who was
injured when he fell off a ladder and was burned by hot tar. The
9
employee sued the owner of the home he had been roofing,
contending that the homeowner was liable for his injuries under
the doctrine of peculiar risk. (Id. at pp. 692–693.) The Supreme
Court held that while the homeowner would be liable to an
“innocent bystander” (id. at p. 701) injured by the independent
contractor’s negligence, he was not liable to the independent
contractor’s employee. The court explained: “[T]he peculiar risk
doctrine seeks to ensure that injuries caused by contracted work
will not go uncompensated, that the risk of loss for such injuries
is spread to the person who contracted for and thus primarily
benefited from the contracted work, and that adequate safety
measures are taken to prevent injuries resulting from such work.
[Citation.] But in the case of on-the-job injury to an employee 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. It ensures
compensation for injury by providing swift and sure
compensation to employees for any workplace injury; it spreads
the risk created by the performance of dangerous work to those
who contract for and thus benefit from such work, by including
the cost of workers’ compensation insurance in the price for the
contracted work; and it encourages industrial safety.” (Ibid.)
Thus, the court concluded, “when considered in light of the
various goals that the workers’ compensation statutes seek to
achieve, [the conclusion] that peculiar risk liability should extend
to the employees of the independent contractor, does not
withstand scrutiny.” (Id. at pp. 701–702.)
In subsequent cases, the Supreme Court expanded the
Privette doctrine to hold that a hirer could not be held vicariously
liable to an independent contractor’s employees under a variety of
10
tort theories. (E.g., Toland v. Sunland Housing Group, Inc.
(1998) 18 Cal.4th 253 [hirer of an independent contractor not
liable to contractor’s employee for failing to specify that the
contractor should take special precautions to avert a risk];
Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235 [hirer of an
independent contractor not liable to contractor’s employee for
negligent hiring]; Tverberg v. Fillner Construction, Inc. (2010)
49 Cal.4th 518, 522 (Tverberg) [“Having assumed responsibility
for workplace safety, an independent contractor may not hold a
hiring party vicariously liable for injuries resulting from the
contractor’s own failure to effectively guard against risks
inherent in the contracted work”], italics omitted.)
B. Hooker and McKown: negligent exercise of
retained control.
In 2002, our Supreme Court issued two companion
decisions addressing the circumstances in which a contractor’s
employee may sue the hirer of the contractor for negligent
exercise of retained control over a worksite. Hooker v.
Department of Transportation (2002) 27 Cal.4th 198 (Hooker)
concerned the death of a crane operator, Hooker, who was killed
on a California Department of Transportation (Caltrans) site.
The decedent was employed by a general contractor hired by
Caltrans to construct a highway overpass. The overpass was
25 feet wide, and the crane with the outriggers extended was
18 feet wide, so Hooker had to retract the crane’s outriggers to
allow other construction vehicles to pass. Shortly before the fatal
accident, Hooker retracted the outriggers; he then attempted to
swing the boom without first reextending the outriggers, causing
the crane to tip over. Hooker was thrown to the pavement and
killed. (Id. at p. 202.)
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Hooker’s widow sued Caltrans, asserting it had negligently
exercised control over the job site. The trial court granted
Caltrans’s motion for summary judgment, and the Supreme
Court affirmed. The court explained that a hirer may be liable
for a contractor’s employee’s injury only when the hirer’s conduct
“affirmatively contributed” to the employee’s injury. (Hooker,
supra, 27 Cal.4th at pp. 211–212.) In the case before it, although
Caltrans was aware that Hooker was retracting the crane’s
outriggers to allow traffic to pass, it had not ordered him to do so.
(Id. at p. 214.) Under these circumstances, the court said
Caltrans’s actions had not affirmatively contributed to Hooker’s
death. It explained: “[U]nder the standard we announce today,
summary judgment was appropriate here. Plaintiff raised triable
issues of material fact as to whether defendant retained control
over safety conditions at the worksite. However, plaintiff failed
to raise triable issues of material fact as to whether defendant
actually exercised the retained control so as to affirmatively
contribute to [Hooker’s death]. While the evidence suggests that
the crane tipped over because the crane operator swung the boom
while the outriggers were retracted, and that the crane operator
had a practice of retracting the outriggers to permit construction
traffic to pass the crane on the overpass, there was no evidence
Caltrans’s exercise of retained control over safety conditions at
the worksite affirmatively contributed to the adoption of that
practice by the crane operator. There was, at most, evidence that
Caltrans’s safety personnel were aware of an unsafe practice and
failed to exercise the authority they retained to correct it.” (Id. at
p. 215, italics added.)
The court reached a different result in McKown v. Wal-
Mart Stores, Inc. (2002) 27 Cal.4th 219 (McKown). Plaintiff
12
McKown was an employee of an independent contractor hired by
Wal-Mart to install speakers in the ceilings of Wal-Mart stores.
Wal-Mart requested that the contractor use Wal-Mart’s forklifts
whenever possible and furnished McKown a forklift for his use.
(Id. at p. 223.) That forklift was defective, and McKown was
injured as a result. (Ibid.)
A jury found that Wal-Mart was negligent in providing the
contractor with unsafe equipment and allocated 23 percent of the
responsibility for the accident to Wal-Mart. The Supreme Court
affirmed. (McKown, supra, 27 Cal.4th 219.) It explained that in
Hooker, it had held “that 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, but
that a hirer is liable to an employee of a contractor insofar as a
hirer’s exercise of retained control affirmatively contributed to
the employee’s injuries.” (Id. at p. 225.) Thus, “when a hirer of
an independent contractor, by negligently furnishing unsafe
equipment to the contractor, affirmatively contributes to the
injury of an employee of the contractor, the hirer should be liable
to the employee for the consequences of the hirer’s own
negligence.” (Ibid.) In other words, “ ‘where the hiring party
actively contributes to the injury by supplying defective
equipment, it is the hiring party’s own negligence that renders it
liable, not that of the contractor.’ ” (Id. at p. 225.)
Subsequent to Hooker and McKown, the Supreme Court
noted in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 671
(Kinsman) that a useful way to understand its cases “is in terms
of delegation.” It explained that while an independent contractor
generally is presumed to have delegated to a subcontractor the
duty to provide a safe workplace for the subcontractor’s
13
employees, “when the [independent contractor] does not fully
delegate the task of providing a safe working environment, but in
some manner actively participates in how the job is done, and
that participation affirmatively contributes to the employee’s
injury, the hirer may be liable in tort to the employee.” (Ibid.)
Most recently, our Supreme Court clarified the
Hooker/McKown exception to the Privette rule 2 in Sandoval v.
Qualcomm Inc. (2021) 12 Cal.5th 256 (Sandoval). There, it
reaffirmed that although under its precedents a hirer
presumptively delegates to an independent contractor the
responsibility to do work safely, the hirer retains a duty of care to
the contractor’s employees if it does not fully delegate control to
the independent contractor. (Id. at pp. 269, 274.) To establish
that the hirer owes a duty of care to the contractor’s employees,
therefore, the plaintiff must establish both that the hirer
retained control over the contracted work, and that the hirer
actually exercised that retained control in a manner that
affirmatively contributed to the contract worker’s injury. (Id. at
p. 274.) The court noted, however, that neither “actual exercise”
nor “affirmative contribution” require that the hirer’s alleged
negligence consist of an affirmative act. Instead, “[t]he hirer’s
negligence may take the form of any act, course of conduct, or
failure to take a reasonable precaution that is within the scope of
2 Plaintiff suggests that Hooker and McKown articulate two
different exceptions to the Privette rule. In fact, as Beach House
notes, Hooker and McKown represent different applications of the
same exception––namely, that a hirer will be liable when it
exercises control over any part of an independent contractor’s
work in a manner that affirmatively contributes to a worker’s
injuries. (See Gonzalez v. Mathis (2021) 12 Cal.5th 29, 42.)
14
its duty under Hooker. . . . [¶] If a plaintiff proves that the hirer
actually exercised retained control in a way that affirmatively
contributed to the contract worker’s injury, the plaintiff
establishes that the hirer owed the contract worker a duty of
reasonable care as to that exercise of control.” (Id. at pp. 277–
278.)
III. Triable issues of material fact exist as to whether
Beach House negligently exercised retained control
by furnishing unsafe scaffolding to O’Rourke and its
employees.
Under the authorities discussed above, whether Beach
House owed a duty of care to plaintiff turns on whether it
retained control over plaintiff’s performance of the contracted-for
work and exercised control in a way that contributed to plaintiff’s
injuries. Although plaintiff will have the burden of proof at trial,
it was Beach House’s burden on summary judgment to
demonstrate the absence of triable issues of material fact as to
these issues––that is, that plaintiff cannot prevail on his claim as
a matter of law.
The central allegation of plaintiff’s complaint is that
plaintiff fell from the scaffolding because Beach House failed to
maintain it in a safe condition. Beach House acknowledged in its
motion for summary judgment that a general contractor may be
liable for providing unsafe equipment to a subcontractor that
causes injury to the subcontractor’s employee, but it urged it had
no duty to inspect or maintain the scaffolding because it did not
“supply, control, or assemble” it.
It appears undisputed that A&D, not Beach House,
supplied and erected the scaffolding. That fact alone is not
dispositive of Beach House’s motion for summary judgment,
15
however. As we have said, a general contractor may exercise
retained control over a job site by “requesting [a subcontractor] to
use the [general contractor’s] own defective equipment in
performing the work.” (Gonzalez v. Mathis, supra, 12 Cal.5th at
pp. 46–47, citing McKown, supra, 27 Cal.4th at pp. 225–226.)
If it does so, the general contractor need not own the allegedly
defective equipment to be liable for injuries caused by its use––
instead, under the principles discussed above, the general
contractor may assume a duty of care to its subcontractor’s
employees if it “undert[akes] to arrange and supply” equipment
for the employees’ use. (See, e.g., Browne v. Turner Construction
Co. (2005) 127 Cal.App.4th 1334, 1345.)
Where a general contractor contracts with a third party to
supply equipment for the use of its subcontractors, the
contractor’s potential liability to its subcontractors’ employees for
defective equipment turns on the extent of the contractor’s
delegation to the third party––that is, whether the contractor
“fully delegate[d]” to the third party the duty to maintain the
equipment in a safe condition. (Kinsman v. Unocal Corp., supra,
37 Cal.4th at p. 671; Sandoval, supra, 12 Cal.5th at p. 274.) If
the general contractor fully delegates to the third party the duty
to provide safe equipment, the third party is responsible for any
failure to take reasonable precautions to keep the equipment in a
safe condition. But if the general contractor does not fully
delegate the task of providing safe equipment, it may be liable in
tort to an employee. (Sandoval, at p. 671; see also Kinsman, at
p. 671; Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120
[cited with approval in Ray; reversing grant of summary
judgment for independent contractor where there was a triable
issue as to whether the general contractor, who was alleged to
16
have acted negligently by failing to close a road, had retained the
sole authority to close the road].)
Applying these principles to the present case suggests that
the essential questions for purposes of Beach House’s motion for
summary judgment are (1) whether Beach House undertook to
supply scaffolding for the use of O’Rourke and its employees,
(2) whether Beach House fully delegated to A&D the alleged duty
to provide and maintain the scaffolding, and (3) if Beach House
did not fully delegate the responsibility to maintain the
scaffolding to A&D, whether it exercised its retained control in a
manner that affirmatively contributed to plaintiff’s injury. As we
discuss, there are triable issues of material fact as to each of
these questions.
A. There are triable issues of fact as to whether
Beach House undertook to supply scaffolding
for O’Rourke and its employees.
In support of its motion for summary judgment,
Beach House asserted through the declaration of its principal,
Strnad, that it “did not provide any equipment or materials to
O’Rourke to perform its work,” including the scaffolding. Beach
House also relied on subcontracts it entered into with A&D and
O’Rourke, which required the subcontractors to “furnish all labor,
materials, equipment, and other facilities required to complete
the Work” and to “furnish scaffold and equipment that may be
necessary to do the Work.”
In response, plaintiff contended that triable issues of
material fact existed as to whether Beach House procured the
scaffolding for the use of O’Rourke’s employees (as well as for
others), therefore assuming a duty of care for its maintenance.
Plaintiff cited the following evidence in support:
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● O’Rourke’s work on the project included installing
exterior trim on the second and third floors, which required the
use of scaffolding.
● Tony O’Rourke testified that in his experience,
scaffolding typically is provided by the general contractor for the
use of its subcontractors. O’Rourke’s bid on the project did not
include the cost of scaffolding because he understood scaffolding
would be provided by Beach House.
● O’Rourke observed other subcontractors using the
scaffolding erected by A&D, and he believed he and his
employees had permission to use it. He has never asked for
permission to use scaffolding on a job site, and he was not told
not to use the scaffolding in connection with this project. After
plaintiff’s accident, he and his employees were permitted to use
the scaffolding once it was repaired.
● A&D’s plastering work took about six months, but
the scaffolding remained up on the property for more than a year.
● Beach House’s site manager was aware that
O’Rourke’s employees made regular use of the scaffolding, and he
never asked them not to do so.
● A task document prepared by Beach House stated
that during the week of June 12, 2017, A&D increased the height
of the scaffolding “for siding installation.” The siding was
installed by O’Rourke’s employees. Beach House’s site manager
acknowledged that the task document appeared to instruct A&D
to “erect scaffolding for the use of O’Rourke Construction
employees.”
● Beach House paid an invoice from A&D to Beach
House dated June 29, 2017 “for scaffold rental.”
18
Taken together, this evidence would allow a reasonable
jury to conclude that Beach House undertook to provide
scaffolding for the use of its subcontractors, including plaintiff.
B. There are triable issues as to whether Beach
House fully delegated to A&D the responsibility
to provide and maintain the scaffolding.
Beach House contended below that even if it undertook to
provide scaffolding for the use of O’Rourke and its employees, it
delegated to A&D through the Beach House/A&D subcontract the
responsibility to provide and maintain the scaffolding, and thus
any failure to do so properly was a breach of A&D’s duty, not
Beach House’s. The undisputed facts did not support this
conclusion, however.
As an initial matter, we cannot conclude with certainty
that the A&D subcontract provided by Beach House in support of
its motion for summary judgment remained in effect at the time
of plaintiff’s injury on June 16, 2017. That subcontract defined
A&D’s scope of work with reference to the “attached proposal,”
which stated that A&D would “[s]et scaffolding where needed for
lathing and plastering for a period of 90 days.” (Italics added.)
Other documents provided in connection with the motion for
summary judgment suggested that the scaffolding was initially
erected on September 20, 2016, approximately nine months
before the accident. Accordingly, we cannot conclude that Beach
House and A&D were continuing to operate under the terms of
the A&D subcontract in June 2017.
In any event, even if the subcontract remained in effect in
June 2017, it did not clearly set forth who was responsible for
inspecting and maintaining the scaffolding after its installation—
that is, during the more than one-year period that the scaffolding
19
remained up on the property. Beach House suggested that
inspection and maintenance of the scaffolding was A&D’s
responsibility under paragraph 5.1(4) of the contract, which
addressed “safety controls” relating to the scaffolding.
Paragraph 5.1(4), however, said only that A&D would furnish
scaffolding and “provide traffic and safety controls at all times
while using such equipment at the Project.” (Italics added.) In
other words, while this paragraph appeared to require A&D to
provide safety controls while A&D’s employees were using the
scaffolding, it did not clearly require A&D to provide such
controls at other times or for the protection of other
subcontractors or their employees.
Nor did other evidence before the trial court establish that
there were no triable issues of material fact as to who had the
responsibility to maintain the scaffolding in a safe condition.
Beach House’s principal, Strnad, and its site manager, Linden,
testified that it was A&D’s responsibility, not Beach House’s, to
inspect the scaffolding and safely maintain it. But A&D’s
principal, Daniels, testified that once scaffolding is erected, he
does not examine it on a daily basis because it is the
responsibility of “the superintendent or contractors on a daily
basis to inspect.” Daniels further testified that when he contracts
to erect scaffolding on a job site, he relies on the general
contractor to monitor the scaffolding during periods when he and
his employees are not actively working at the site and to “stop
people from making alterations to [the] scaffolding.” And,
although site manager Linden testified that he believed A&D was
responsible to insure the safety of the scaffolding, he conceded he
knew A&D employees did not come to the job site to inspect the
scaffolding on days they were not performing plastering work.
20
For all of these reasons, there are triable issues of material fact
as to whether Beach House fully delegated to A&D the
responsibility to maintain the scaffolding during the duration of
the project.
Further, we reject Beach House’s suggestion that plaintiff
is judicially estopped from urging that Beach House was
responsible for maintaining the scaffolding because he asserted
otherwise in his opposition to A&D’s motion for summary
judgment. The opposition to which Beach House refers was not
before the trial court when it ruled on Beach House’s motion for
summary judgment, and thus it is not a proper part of our
appellate record. (See, e.g., People v. Avila (2004)
117 Cal.App.4th 771, 780, fn. 4 [“We review the correctness of the
trial court’s ruling at the time it was made and not by reference
to evidence produced at a later date”]; In re Zeth S. (2003)
31 Cal.4th 396, 405 [“It has long been the general rule and
understanding that ‘an appeal reviews the correctness of a
judgment as of the time of its rendition, upon a record of matters
which were before the trial court for its consideration’ ”].) In any
event, to establish judicial estoppel, Beach House must establish,
among other things, that the party against whom judicial
estoppel is asserted “ ‘was successful in asserting the first
position (i.e., the tribunal adopted the position or accepted it as
true)’ ” and “ ‘the two positions are totally inconsistent.’ ” (The
Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 842.) In
the present case, Beach House has not shown either that plaintiff
successfully asserted that A&D was responsible for maintaining
the scaffolding or that the plaintiff’s position on appeal and in
opposition to A&D’s motion for summary judgment were
inconsistent. To the contrary, we see no inconsistency in the
21
assertion that Beach House and A&D had nonexclusive
responsibility for maintaining the scaffolding in a safe condition.
Accordingly, Beach House has not established that plaintiff’s
claim is barred by the doctrine of judicial estoppel.
Finally, we reject Beach House’s suggestion that liability in
the present case is barred by Brannan v. Lathrop Construction
Associates, Inc. (2012) 206 Cal.App.4th 1170, 1172 (Brannan).
There, a bricklayer’s employee was injured when he fell from
scaffolding erected by another subcontractor. But unlike in the
present case, the plaintiff in Brannan did not allege that the
scaffolding had been provided by the general contractor for his
use or that it was defective. To the contrary, it was undisputed
that the parties had agreed that the bricklayer’s employees would
not use the scaffolding. (Id. at p. 1174.) The court’s holding in
Brannan that summary judgment had been properly granted for
the general contractor, therefore, is not relevant to our analysis.
C. There are triable issues as to whether Beach
House exercised retained control in a manner
that affirmatively contributed to plaintiff’s
injury.
Finally, Beach House contended below that because
plaintiff did not allege it engaged in any affirmative misconduct,
it could not be liable for plaintiff’s injury as a matter of law. Not
so. As noted above, our Supreme Court has explained that the
critical inquiry for purposes of evaluating the exercise of retained
control “is the relationship between the [general contractor’s]
conduct and the [subcontractor’s] conduct, not whether the
[general contractor’s] conduct, assessed in isolation, can be
described as ‘affirmative conduct.’ ” (Sandoval, supra, 12 Cal.5th
at p. 277, italics added.) That is, “neither ‘actual exercise’ nor
22
‘affirmative contribution’ requires that the [general contractor’s]
negligence (if any) consist of an affirmative act. The [general
contractor’s] negligence may take the form of any act, course of
conduct, or failure to take a reasonable precaution that is within
the scope of its duty under Hooker. (See Rest.3d Torts, Liability
for Physical and Emotional Harm, § 3, com. c, pp. 29–30; Hooker,
supra, 27 Cal.4th at p. 212, fn. 3 [noting that a hirer may be
liable based on failing to undertake a promised safety measure];
Ray, supra, 98 Cal.App.4th at pp. 1133–1134 [finding triable
issue on affirmative contribution where hirer retained exclusive
authority over road barricades and failed to erect barricade
around fallen debris that contractor was trying to clear when
injury occurred].)” (Sandoval, at p. 277, italics added.)
Under this standard, were a jury to conclude that Beach
House assumed a duty to provide scaffolding for the use of
O’Rourke employees and that it failed to fully delegate to A&D
the duty to maintain the scaffolding in a safe condition, it could
also reasonably conclude that Beach House’s alleged failure to
inspect and maintain the scaffolding gave rise to liability.
Accordingly, there are triable issues as to whether Beach House
exercised retained control in a manner that affirmatively
contributed to plaintiff’s injury. 3
3 Because we are reversing the grant of summary judgment,
we will deny Beach House’s request for appellate sanctions for
pursuing a frivolous appeal.
23
DISPOSITION
The judgment is reversed. Appellant is awarded his
appellate costs. Respondent’s request for appellate sanctions is
denied.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
ADAMS, J. *
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
24
Filed 11/21/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
KYLE BROWN, as represented, B314946
etc.,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 19STCV20315)
v. ORDER MODIFYING OPINION
AND CERTIFYING OPINION FOR
BEACH HOUSE DESIGN & PUBLICATION [NO CHANGE IN
DEVELOPMENT, JUDGMENT]
Defendant and Respondent.
THE COURT:
It is ordered that the opinion filed herein on October 21,
2022, be modified as follows:
On page 16, in the second sentence of the first full
paragraph, change the citation from “Sandoval, at p. 671” to
“Sandoval, at p. 274” and change “cited with approval in Ray” to
“cited with approval in Sandoval” so the citation reads:
“But if the general contractor does not fully delegate the
task of providing safe equipment, it may be liable in tort to
an employee. (Sandoval, at p. 274; see also Kinsman, at
p. 671; Ray v. Silverado Constructors (2002) 98 Cal.App.4th
1120 [cited with approval in Sandoval; reversing grant of
summary judgment for independent contractor where there
was a triable issue as to whether the general contractor,
who was alleged to have acted negligently by failing to close
a road, had retained the sole authority to close the road].)”
[There is no change in the judgment.]
The opinion in the above-entitled matter filed October 21,
2022, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be published in
the Official Reports and it is so ordered.
____________________________________________________________
EDMON, P. J. EGERTON, J. ADAMS, J. *
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
2