Alvarez v. Seaside Transp. Servs. LLC

• Decision Date: 20 July 2017
• Docket Number: B275980
• Court: California Court of Appeals Court of Appeals
• Parties: Bernie ALVAREZ, Plaintiff and Appellant, v. SEASIDE TRANSPORTATION SERVICES LLC et al., Defendants and Respondents.

13 Cal.App.5th 635

221 Cal.Rptr.3d 119

Bernie ALVAREZ, Plaintiff and Appellant,

v.SEASIDE TRANSPORTATION SERVICES LLC et al., Defendants and Respondents.

B275980

Court of Appeal, Second District, Division 8, California.

Filed July 20, 2017

Law Offices of Richard Devirian and Richard C. Devirian, Torrance; Esner, Chang & Boyer, Pasadena, and Stuart B. Esner, Los Angeles, for Plaintiff and Appellant.

Cox, Wootton, Lerner, Griffin & Hansen, Richard C. Wootton, Mitchell S. Griffin and Marc A. Centor, San Francisco, for Defendants and Respondents.

SORTINO, J.^*

Plaintiff and appellant Bernie Alvarez was injured at work when he drove a maintenance van into a shipping container. Plaintiff's employer, Pacific Crane Maintenance Company (PCMC), had been hired by Evergreen Container Terminal (Evergreen) to perform maintenance work at a marine container terminal. Plaintiff sued Evergreen and two of its contractors alleging general negligence.

The trial court granted summary judgment to defendants based on the Privette doctrine. Under Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 ( Privette ), an independent contractor's employee generally may not recover tort damages for work-related injuries from the contractor's hirer. On appeal, plaintiff argues that (1) defendants did not meet their burden as the moving parties on summary judgment, and (2) he raised triable issues of material fact as to whether the Privette doctrine did not apply because defendants retained control over safety conditions at the worksite and affirmatively contributed to his injuries. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Evergreen leases a marine container terminal in the Port of Los Angeles (Evergreen Terminal). Evergreen contracted with Marine Terminals Corporation dba Ports America (Ports America), Seaside Transportation Services, LLC (Seaside), and PCMC to provide services at the terminal.

PCMC's contract with Evergreen provides that "PCMC shall exercise reasonable care and use its best efforts to prevent accidents, injury, or damages to it [ ]s employees.... PCMC shall have an active[,] ongoing safety program and shall comply with all applicable safety rules, applicable laws, ordinances, and regulations." The contract does not address any obligation on Evergreen's part to ensure safe conditions at the worksite.

Plaintiff worked for PCMC for 13 years as a marine mechanic. He was required to watch a training video on general safety once a year. The video warned workers that 45-foot shipping containers may be located next to 40-foot containers at the terminal. Plaintiff was also verbally informed of this possibility.

On March 11, 2012, at about 6:15 p.m., plaintiff was inspecting chassis at the Evergreen Terminal while driving a maintenance van past a row of 40-foot shipping containers. It was light out. As he was driving, he was glancing to his right to check dates written on chassis. He was driving nine to ten miles per hour when he collided with a 45-foot container. The 45-foot container was protruding into the driving lane by over seven feet.

At the time of the accident, plaintiff did not know he had been injured and continued to work for three weeks. He later became aware of injuries to his right shoulder, lower back, and knees. On March 3, 2014, he filed a complaint for general negligence against Evergreen, Seaside, and Ports America.

Defendants moved for summary judgment arguing they were not liable for plaintiff's workplace injuries under the Privette doctrine. In opposition, plaintiff did not address the Privette doctrine but argued that the 45-foot container's partial obstruction of the driving lane violated the Pacific Coast Marine Safety Code (Marine Safety Code).¹

The trial court granted summary judgment, holding that "Defendants have satisfied their burden to show that there is no triable issue of material fact and Defendants are entitled to summary judgment as a matter of law, pursuant to the Privette doctrine.... Privette and its progeny establish that the hirer of an independent contractor presumptively delegates to that contractor its duty to provide a safe workplace for the contractor's employees.... Plaintiff has provided no evidence showing that Defendants retained control of the contracted work or rebutting the presumptive delegation to the contractor employee, PCMC, of responsibility for workplace safety."

Judgment was entered for defendants, and plaintiff timely appealed.

DISCUSSION

1. The Privette Doctrine

Workers' compensation " ‘is the exclusive remedy against an employer for injury or death of an employee.’ [Citation.]" ( Privette, supra, 5 Cal.4th at p. 697, 21 Cal.Rptr.2d 72, 854 P.2d 721.) In Privette , the Supreme Court held that "an independent contractor's employee should not be allowed to recover damages from the contractor's hirer, who ‘is indirectly paying for the cost of [workers' compensation] coverage, which the [hired] contractor presumably has calculated into the contract price.’ [Citation.]" ( Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 525, 110 Cal.Rptr.3d 665, 232 P.3d 656.)

The Privette holding was based on the principle that the hirer of an independent contractor generally has " ‘ " ‘no right of control as to the mode of doing the work contracted for.’ " ' " ( Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 213, 115 Cal.Rptr.2d 853, 38 P.3d 1081 ( Hooker ).) Precisely because the hirer "has no obligation to specify the precautions an independent hired contractor should take for the safety of the contractor's employees , ... [a]bsent an obligation, there can be no liability in tort." ( Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 267, 74 Cal.Rptr.2d 878, 955 P.2d 504.)

There is an exception to the general rule of nonliability when the hirer retains control over safety conditions at the worksite.² The "hirer of an independent contractor can be liable for a workplace injury of the contractor's employee if the hirer retained control over the contractor's work and exercised that control in a way that ‘affirmatively contribute[d]’ to the employee's workplace injury. [Citation.]" ( SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 604, 129 Cal.Rptr.3d 601, 258 P.3d 737 ( SeaBright ).)

"In order for a worker to recover on a retained control theory, the hirer must engage in some active participation. [Citation.]" ( Tverberg v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439, 1446, 136 Cal.Rptr.3d 521.) "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. [Citations.] When the hirer does not fully delegate the task of providing a safe working environment but in some manner actively participates in how the job is done, the hirer may be held liable to the employee if its participation affirmatively contributed to the employee's injury. [Citation.]" ( Ibid. )

2. Defendants Met Their Burden as the Moving Parties on Summary Judgment

"[S]ummary judgment or summary adjudication is to be granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law." ( Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 894–895, 83 Cal.Rptr.3d 146.) The "party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861–862, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

"A defendant seeking summary judgment bears the initial burden of proving the cause of action has no merit by showing that one or more of its elements cannot be established or there is a complete defense to it.... [Citations.]" ( Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037, 128 Cal.Rptr.2d 660.) However, a defendant moving for summary judgment is " ‘entitled to the benefit of any relevant presumptions....' [Citation.]" ( Security Pac. Nat. Bank v. Associated Motor Sales (1980) 106 Cal.App.3d 171, 179–180, 165 Cal.Rptr. 38 ; Enga l la v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 977, 64 Cal.Rptr.2d 843, 938 P.2d 903.)

Depending on the type of presumption at issue—one affecting the burden of proof or one affecting the burden of producing evidence—a moving party's burden on summary judgment may shift once it shows the presumption applies. A presumption affecting the burden of proof "does not affect the showing required for a summary judgment...." ( Security Pac. Nat. Bank v. Associated Motor Sales , supra , 106 Cal.App.3d at p. 179, 165 Cal.Rptr. 38.) By contrast, a presumption affecting the burden of producing evidence operates to shift the burden on summary judgment to the opposing party to show there are triable issues of fact. ( Id. at pp. 179–180, 165 Cal.Rptr. 38.)

The Privette line of decisions establishes a presumption that an independent contractor's hirer "delegates to that contractor its tort law duty to provide a safe workplace for the contractor's employees." ( SeaBright , supra , 52 Cal.4th at p. 600, 129 Cal.Rptr.3d 601, 258 P.3d 737.) Plaintiff acknowledges this presumption but argues that it only affects the burden of proof at trial. According to plaintiff, defendants, as the moving parties on summary judgment, bore the burden of presenting evidence that they did not retain control over safety conditions at the worksite in a manner that affirmatively contributed to his injuries. We disagree because we conclude the Pri...