Miller v. Roseville Lodge No. 1293, C090751

• Docket Number: C090751
• Decision Date: 02 September 2022
• Citation: 83 Cal.App.5th 825,299 Cal.Rptr.3d 151
• Parties: Ricky Lee MILLER, Jr., Plaintiff and Appellant, v. ROSEVILLE LODGE NO. 1293 et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

83 Cal.App.5th 825

299 Cal.Rptr.3d 151

Ricky Lee MILLER, Jr., Plaintiff and Appellant,

v.ROSEVILLE LODGE NO. 1293 et al., Defendants and Respondents.

C090751

Court of Appeal, Third District, California.

Filed September 2, 2022

Demas Law Group, John N. Demas, Brad A. Schultz, Sacramento; and C. Athena Roussos, Sacramento, for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Ernest Slome, San Diego, and Joann M. O. Rangel for Defendants and Respondents.

EARL, J.

This case involves application of the so-called Privette doctrine, which deals with whether an entity that hires an independent contractor can be liable for on-the-job injuries sustained by the independent contractor's workers. Under the Privette doctrine, the answer is no, unless an exception applies.

Defendant and respondent Roseville Lodge No. 1293, Loyal Order of Moose, Inc. (the Lodge) hired Charlie Gelatini to move an automated teller machine (ATM) on its premises. Plaintiff and appellant Ricky Lee Miller, Jr., worked for Gelatini and was the person who performed the work. Miller was injured on the job when he fell from a scaffold, and he seeks to hold the Lodge and its bartender John Dickinson liable for his injuries. Citing the Privette doctrine, the Lodge and Dickinson argued they are not liable, and they moved for summary judgment. Miller argued triable issues of fact exist over whether an exception applies. The trial court granted the motion, and Miller appealed. We now affirm.

IFACTUAL AND PROCEDURAL BACKGROUND

Gelatini owns Tri-Valley Amusement, Inc. (collectively Gelatini). Miller worked part time for Gelatini installing, upgrading, repairing, maintaining, and cleaning ATM's. Gelatini was the point of contact with the customer, and about 40 percent of the time he would be at the job site with Miller. Gelatini would tell Miller what needed to be done, and Miller would complete the work. Miller was working for Gelatini at the time of the incident and considered himself to be Gelatini's employee.¹

Gelatini was hired by the Lodge to relocate an ATM. On the day of the incident, Gelatini and Miller arrived at the Lodge without a ladder. They walked inside the Lodge and saw a scaffold up against one of the walls near the bar area. Dickinson was the only other person present at the Lodge when the incident occurred. He was working as a bartender and was in charge of the area where the scaffold was located.

Miller, Gelatini, and Dickinson offered slightly different accounts of what happened next. Miller states he asked Dickinson for a ladder so he could check where in the ceiling he was going to have to run cables for the ATM.

Dickinson replied that he did not have a ladder, but that Miller could use the scaffold. Miller states he asked Dickinson if the scaffold was safe, and Dickinson responded that it was and that he used it to change lightbulbs.

According to Gelatini, the scaffold was already in the room where the work would be done. Miller put his hands on the scaffold and yelled to Dickinson, "Hey, is this thing safe?" Dickinson responded, "I don't know." Miller then proceeded to climb the scaffold.

According to Dickinson, Gelatini asked him if Miller could use the scaffold. Dickinson replied, "Does he know how to use it?" and Gelatini responded, "Of course he does because he does this for a living."

The scaffold had four wheels that had to be locked to prevent it from moving while in use. Miller had never used a scaffold before, and did not know that it had wheels or that the wheels had to be locked in order to prevent it from moving. Dickinson did not say anything about the scaffold having wheels or the wheels needing to be locked, and he did not know whether the wheels were locked.

Miller proceeded to climb onto the scaffold. He testified he was not actually moving the ATM while he was on the scaffold, and that he was "just looking at where we can run the line." While getting down off the scaffold he put his hand on the wall, the scaffold shifted away from the wall, and he fell and hit his head. Immediately after the incident, Dickinson took a picture of the scaffold that showed one of the wheels was unlocked.

Miller sued the Lodge and Dickinson for negligence and respondeat superior.² In support of his negligence claim, Miller alleged the Lodge owned, controlled, and maintained the scaffolding. He also alleged: (1) the defendants negligently permitted, encouraged, or instructed him to use the scaffold; (2) they knew or should have known the scaffold was dangerous, or unsecured, or unsafe; and (3) he was not aware the scaffold was dangerous, or unsecured, or unsafe. Finally, he alleged that, as a result of the defendants’ negligence, the scaffold moved while he was on it, which caused him to fall to the ground and suffer personal injuries. In support of his respondeat superior claim, Miller alleged Dickinson was an employee of the Lodge, and was acting within the scope of his employment at the time of the incident.

The Lodge and Dickinson moved for summary judgment on the ground that the Privette doctrine provides a complete defense to Miller's claim for negligence and his derivative claim for respondeat superior.³ The trial court agreed and granted the motion. Judgment was entered in favor of the Lodge and Dickinson.

Miller timely appealed.

IIDISCUSSION

1. Standard of Review

On appeal from the grant of a motion for summary judgment, " ‘ " ‘[w]e review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.’ " [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.’ " ( Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 717, 68 Cal.Rptr.3d 746, 171 P.3d 1082.) "We accept as true both the facts shown by the losing party's evidence and reasonable inferences from that evidence." ( Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1036, 207 Cal.Rptr.3d 120.) " ‘A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law. [Citations.] The moving party bears the burden of showing the court that the plaintiff "has not established, and cannot reasonably expect to establish," ’ the elements of his or her cause of action." ( Wilson , at p. 720, 68 Cal.Rptr.3d 746, 171 P.3d 1082.)

Because the trial court's judgment is presumed to be correct, Miller (as the appellant) has the burden of affirmatively establishing reversible error. ( Jameson v. Desta (2018) 5 Cal.5th 594, 608-609, 234 Cal.Rptr.3d 831, 420 P.3d 746 ; Swigart v. Bruno (2017) 13 Cal.App.5th 529, 535, 220 Cal.Rptr.3d 556.) Because "we review ‘the ruling, not the rationale,’ " on this appeal from summary judgment, we may affirm on any basis supported by the record and the law. ( Skillin v. Rady Children's Hospital & Health Center (2017) 18 Cal.App.5th 35, 43, 226 Cal.Rptr.3d 505.)

2. The Privette Doctrine and its Exceptions

The Privette doctrine takes its name from Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 (Privette ), which held that a person or entity that hires an independent contractor to do work generally is not liable for on-the-job injuries to the independent contractor's workers. The doctrine has produced a large body of case law, including 10 cases from our Supreme Court alone: Privette, supra , 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 ; Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 74 Cal.Rptr.2d 878, 955 P.2d 504 (Toland ); Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 108 Cal.Rptr.2d 617, 25 P.3d 1096 (Camargo ); Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081 (Hooker ); McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 115 Cal.Rptr.2d 868, 38 P.3d 1094 (McKown ); Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 36 Cal.Rptr.3d 495, 123 P.3d 931 (Kinsman ); Tverberg v. Fillner Construction, Inc., supra , 49 Cal.4th 518, 110 Cal.Rptr.3d 665, 232 P.3d 656 (Tverberg ); SeaBright Ins. Co. v. US Airways , Inc. (2011) 52 Cal.4th 590, 129 Cal.Rptr.3d 601, 258 P.3d 737 (Seabright ); Gonzalez v. Mathis (2021) 12 Cal.5th 29, 282 Cal.Rptr.3d 658, 493 P.3d 212 (Gonzalez ); and Sandoval v. Qualcomm Incorporated, supra , 12 Cal.5th 256, 283 Cal.Rptr.3d 519, 494 P.3d 487 (Sandoval ). According to our Supreme Court, the rationale for the doctrine is delegation .⁴

"[A]t common law it was regarded as the norm that when a hirer delegated a task to an independent contractor, it in effect delegated responsibility for performing that task safely, and assignment of liability to the contractor followed that delegation." ( Kinsman, supra , 37 Cal.4th at p. 671, 36 Cal.Rptr.3d 495, 123 P.3d 931 ; see also Gonzalez, supra , 12 Cal.5th at p. 54, 282 Cal.Rptr.3d 658, 493 P.3d 212 [noting "strong presumption under Privette that a [hirer] delegates all responsibility for workplace safety to the independent contractor"]; SeaBright, supra , 52 Cal.4th at p. 594, 129 Cal.Rptr.3d 601, 258 P.3d 737 ["By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor's employees to ensure the safety of the specific workplace that is the subject of the contract"]; Tverberg, supra , 49 Cal.4th at p. 528, 110 Cal.Rptr.3d 665, 232 P.3d 656 ["When an independent contractor is hired to perform inherently dangerous construction work, that contractor, unlike a mere employee, receives authority to determine how the work is to be performed and assumes a corresponding responsibility to see that the work is performed safely. The independent contractor receives this authority over the manner in which the work is to be performed from the hirer by a process of delegation"].) In its most recent ...