Ramirez v. PK I Plaza 580 SC LP

• Decision Date: 10 November 2022
• Docket Number: A162593
• Citation: 85 Cal.App.5th 252,301 Cal.Rptr.3d 193
• Parties: Francisco RAMIREZ et al., Plaintiffs and Appellants, v. PK I PLAZA 580 SC LP et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

85 Cal.App.5th 252

301 Cal.Rptr.3d 193

Francisco RAMIREZ et al., Plaintiffs and Appellants,

v.PK I PLAZA 580 SC LP et al., Defendants and Respondents.

A162593

Court of Appeal, First District, Division 1, California.

Filed November 10, 2022

Michael Alder, Los Angeles, Samantha Hernandez-Ortega, Alder Law, P.C.; Brooke L. Bove, Santa Ana, Bove Law Group, for Plaintiffs and Appellants.

W. Eric Blumhardt, Jessica Pliner, Walnut Creek, Lewis Brisbois Bisgaard & Smith LLP, for Defendants and Respondents.

Humes, P.J. Francisco Ramirez, a self-employed contractor, was hired by a shopping center's tenant to remove an exterior sign after the tenant vacated its space. While searching for the sign's electrical box, he entered a cupola on the shopping center's roof and fell through an opening built into the cupola's floor, sustaining serious injuries.

Ramirez and his wife (collectively, plaintiffs) filed a tort action against defendants Kimco Realty Corporation and its subsidiary, PK 1 Plaza 580 SC, LP (collectively, Kimco), who own and operate the shopping center. The trial court granted summary judgment in Kimco's favor based on the Privette doctrine, which creates "a strong presumption under California law that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety[,] ... mean[ing] that a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job." ( Gonzalez v. Mathis (2021) 12 Cal.5th 29, 37–38, 282 Cal.Rptr.3d 658, 493 P.3d 212 ( Gonzalez ), citing Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, 854 P.2d 721 ( Privette ).)

On appeal, plaintiffs contend that summary judgment was improperly granted because the Privette doctrine does not apply. We agree. Kimco did not hire its tenant or Ramirez to perform the work. Thus, Kimco did not delegate its own responsibility for the roof's condition to Ramirez through an employment relationship, as contemplated by Privette . Nor did Kimco delegate such responsibility by virtue of its landlord-tenant relationship. Since Kimco neither sought summary judgment nor argues for affirmance on any basis other than the Privette doctrine, we must reverse and remand for further proceedings. In doing so, however, we recognize the strong possibility that Kimco will prevail under general principles of premises liability.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

Kimco owns a Livermore shopping center. Freeway Insurance Services, Inc. (Freeway) leased an office suite in the center from Kimco. In October 2017, Freeway vacated the suite. Under the lease, Freeway thus became responsible for removing an exterior sign from the suite. Kimco offered to handle the removal and bill the cost to Freeway, but Freeway elected to hire Ramirez, a self-employed contractor, to perform the work.

On the afternoon of November 6, 2017, Ramirez arrived at Freeway's suite to remove the sign. Although Kimco had arranged for someone to be present to let Ramirez inside, no one was there when he arrived. While waiting to access the suite, he confirmed that the sign was powered by a low voltage electrical source that needed to be disconnected before he could complete the job.

In his deposition, Ramirez testified that after he waited outside for 20 minutes, a woman from Kimco's office arrived and gave him the keys to Freeway's suite.¹ He asked her if a security guard or maintenance worker was onsite, since they usually had "all the keys including for the attic access." The woman responded that she did not know anything about it, asked him to call her half an hour before he finished the job, and left. Ramirez denied telling the woman he might need to go onto the roof, and it is undisputed that Kimco did not provide any directions to him about how to perform his job.

Once inside the suite, Ramirez searched for the electrical box, which would usually be in the suspended ceiling behind the sign. Not finding the box there, he decided to look for it on the roof.² He went to the rear of the building and used his own ladder to climb onto the roof.

On the roof, Ramirez saw a cupola that had an unlocked and open access door. Believing the electrical box might be in the cupola, he fully opened the access door and used a flashlight to look inside. He saw a "big opening" in the drywall where he thought the electrical box might be.

Ramirez climbed into the cupola through the access door. Nine feet from the access door, the cupola's floor "transitions to an opening with [two foot by six foot] joists," which are two feet apart from each other.³ After travelling 12 feet into the cupola, Ramirez fell through the opening and the drywall of the ceiling below. He landed on the sidewalk, sustaining serious injuries.

Ramirez and his wife sued Kimco in January 2019. In the operative complaint, Ramirez brought causes of action for general negligence, premises liability, negligence per se, and negligent infliction of emotional distress. His wife also brought separate causes of action for negligent infliction of emotional distress, based on the allegation that she witnessed Ramirez's fall, and loss of consortium.

Kimco moved for summary judgment, claiming it did not owe a duty of care to plaintiffs. Kimco argued that the roof's "opening was neither a concealed condition nor ... unascertainable to Ramirez," and its duty to "tak[e] proper precautions to protect against obvious hazards in the workplace ... was delegated to [him] under the Privette doctrine." Plaintiffs responded that the Privette doctrine did not apply because, among other reasons, there was no employment relationship between Ramirez and Kimco.

The trial court granted Kimco's motion for summary judgment. The court concluded that Kimco "had no duty to ensure [Ramirez's] safety," because the Privette doctrine applied even though Kimco did not directly hire Ramirez. The court also found there was no triable issue of material fact as to whether an exception to the doctrine applied. Accordingly, it entered judgment in Kimco's favor in April 2021.

II.

DISCUSSION

A. Standard of Review

Summary judgment is properly granted if "there is no triable issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." ( Code Civ. Proc., § 437c, subd. (c).) "A defendant seeking summary judgment must show that the plaintiff cannot establish at least one element of the cause of action." ( Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618, 230 Cal.Rptr.3d 415, 413 P.3d 656 ; see Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant meets this burden, "the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto." ( Code Civ. Proc., § 437c, subd. (p)(2).)

On appeal, we independently review an order granting summary judgment, " ‘ " ‘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.’ " ( Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 286, 172 Cal.Rptr.3d 653, 326 P.3d 253.) "We must affirm a summary judgment if it is correct on any of the grounds asserted in the trial court, regardless of the trial court's stated reasons. [Citation.] Even if the grounds entitling the moving party to a summary judgment were not asserted in the trial court, we must affirm if the parties have had an adequate opportunity to address those grounds on appeal." ( Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 181, 153 Cal.Rptr.3d 693.)

B. General Legal Standards

The existence of Kimco's legal duty to Ramirez is essential to all of plaintiffs’ claims. "The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury." ( Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158, 210 Cal.Rptr.3d 283, 384 P.3d 283.) Claims of negligent infliction of emotional distress are generally premised not on a breach of a duty to avoid causing emotional distress but on the breach of some other duty that proximately causes emotional distress. ( Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 985, 25 Cal.Rptr.2d 550, 863 P.2d 795.) Similarly, a spouse's claim for loss of consortium is premised on the success of the other spouse's claims against the defendant. ( Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1315–1316, 144 Cal.Rptr.3d 326.) "[T]he existence and scope of a duty are questions of law." ( Staats v. Vintner's Golf Club, LLC (2018) 25 Cal.App.5th 826, 832, 236 Cal.Rptr.3d 236.)

1. A landowner's general duty of care

Civil Code section 1714 ( section 1714 ) establishes this state's " ‘basic policy ... that [one] is responsible for an injury caused to another by [one's] want of ordinary care or skill in the management of [one's] property .... The proper test to be applied to the liability of the possessor of land in accordance with [the statute] is whether in the management of [one's] property [one] has acted as a reasonable [person] in view of the probability of injury to others.’ " ( Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 672, 36 Cal.Rptr.3d 495, 123 P.3d 931 ( Kinsman ).) "As a consequence of this general duty, those who own or occupy property have a duty to maintain their premises in a reasonably safe condition. [Citations.] To comply with this duty, a person who controls property must ‘ " ‘ "inspect [the premises] or take other proper means to ascertain their condition" ’ " ’ and, if a dangerous condition exists that would have been discovered by the exercise of reasonable care, has a duty to give adequate warning of or remedy it." ( Staats v. Vintner's Golf Club,...