Mendoza v. Mellinkoff

Filed 7/24/07 Mendoza v. Mellinkoff CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County. Jan A. Pluim, Judge. Affirmed.

Gabriel & Associates and John S. Buzas for Plaintiff and Appellant.

King, Corrado & Jack, Thomas Jack, Michael King, and Adrianna M. Corrado; Haffner, Haffner & Kirwin, LLP, P. Mark Kirwin, and Bevin A. Berube for Defendants and Respondents.

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Plaintiff and appellant Jose Mendoza appeals from the judgment in favor of respondent Daniel Mellinkoff, entered after Mellinkoff's motion for summary judgment was granted.[1] We affirm.

Summary

Mendoza was injured while working as a laborer on the renovation of a building owned by Mellinkoff. He sued Mellinkoff for negligence, alleging that while he was on the roof to remove a skylight, the skylight framing gave way, causing him to fall through the skylight, to the ground.

Mellinkoff moved for summary judgment on the theory that Mendoza was not his employee, but was employed by Reid Werner, a contractor or construction manager hired by Mellinkoff in connection with the renovation, so that liability was barred under Privette v. Superior Court (1993) 5 Cal.4th 689. In that case and in cases which followed, "[O]ur Supreme Court . . . defined the circumstances under which an injured worker who is an employee of an independent contractor may sue the hirer of that contractor." (Michael v. Denbeste Transportation, Inc. (2006) 137 Cal.App.4th 1082, 1091.)

The trial court agreed with Mellinkoff, finding that he "presented evidence demonstrating that he did not employ plaintiff and that he did not engage in any affirmative conduct that proximately caused or contributed to plaintiff's injuries. Plaintiff has not demonstrated a triable issue of material fact on these issues."

On appeal and in the trial court, Mendoza contended that he could recover against Mellinkoff because Mellinkoff (not Werner) was his employer, because Mellinkoff retained control over safety conditions at the work site and negligently exercised that control in a manner that affirmatively contributed to the injury (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 213), and under the rule that "a landowner that hires an independent contractor may be liable to the contractor's employee if the following conditions are present: the landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition."

(Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664.)

Facts

It was undisputed that the Construction Management Agreement between Mellinkoff and Werner provided that Werner was "to provide services to [Mellinkoff] generally consisting of the overall supervision and management of the construction of the Project." It was also undisputed that it was Werner who instructed Mendoza to go onto the roof and remove the skylight, that Werner was Mendoza's supervisor, and that Werner was the construction manager and gave directions to Mendoza and other workers. Finally, and perhaps most importantly, it was undisputed that after the accident, Mendoza filed a claim for workers' compensation benefits with Werner's workers' compensation carrier, which paid the claim.[2]

There were also disputed facts:

Mellinkoff proposed as undisputed that Werner paid Mendoza. He supported the fact with deposition testimony, and Mendoza disputed it with reference to other deposition testimony. Taken together, the testimony establishes that Werner paid Mendoza and the other laborers on the job with cash, after they submitted time slips. He obtained the cash from the property management company.

Mellinkoff also proposed a fact based on his testimony that Mendoza was not his employee, and that Werner had the power to hire and fire. Mendoza disputed the fact with reference to Werner's deposition testimony that "I had to ask the owner prior to bringing anybody on the project," and that "Dan Mellinkoff made the decisions to hire and fire." Werner also testified that he first met Mendoza when Mendoza approached him and asked for work. Werner, who believed that more workers were needed on the job, asked Mellinkoff if he could hire. Mellinkoff answered, "if you need more guys, get more guys."

Based on his own deposition testimony, Mellinkoff also proposed as undisputed that he made no decisions "as to how construction was going to be performed," other than scheduling, and had no experience in construction. Mendoza disputed those facts with reference to Mellinkoff's deposition testimony that before he hired Werner, he had hired, and fired, a general contractor, John P. Ingram & Associates, that after Ingram was fired he entered into contracts with Ingram's subcontractors, and that during an earlier renovation on the building, between 1986 and 1992, he had sometimes worked through a general contractor but sometimes hired subcontractors, including a plasterer and an electrical contractor.

Mendoza also lodged additional deposition testimony and documents. The documents consist mainly of bids, invoices, change orders and similar documents relating to Jim Martin Construction, the framing contractor on the renovation, and copies of plans from a structural engineer. Mendoza relies in particular on one of the Jim Martin change orders, change order No 5. It is dated October 29, 2002 (the accident was on November 1, 2002) and reads "extra work at large skylite - sk drawings - dated 10-21-02," and "*originally told to sister 4 sides/sister 3' slopes studs," and "*new SK drawings not received until after started job."

The deposition testimony is to the effect that a worker on the site at times saw Mellinkoff give instructions to subcontractors (although not to laborers), that Mellinkoff pulled permits on the job, and that Mellinkoff approved change orders. Some of the deposition testimony Mendoza submitted was from Werner, and Mendoza relies in particular on Werner's deposition testimony about the skylight, which was that he had the heavy glass removed, which could have helped the skylight's structural integrity, and that he covered the skylight with a protective tarp as a safety measure. He also testified that he had a general discussion with Mellinkoff about the need to remove the skylight so that engineering repairs could be made to the supporting framework.

Discussion

Privette: who employed Mendoza?

Mendoza argues that he was employed by Mellinkoff, who was acting as general contractor, and that Privette does not apply. He cites, inter alia, the evidence that Mellinkoff spoke to subcontractors, hired and fired a general contractor, hired subcontractors, pulled permits, and approved change orders, and the documents relating to Jim Martin Construction.

We find that Privette applies. There are disputed facts, and there are facts which suggest that Werner was not the general contractor on the entire job. However, the disputed facts are not the critical facts. The critical facts are that Mendoza was hired by, directed by, and paid by Werner (even if other trades on the job site were not) and that after his injury, he was compensated by Werner's workers' compensation carrier.

Privette turns on just those facts, especially the last one. In that case, our Supreme Court reviewed the peculiar risk doctrine, under which a person who hires an independent contractor to perform inherently dangerous work can be held liable if the contractor's negligent performance causes injuries to the contractor's own employees. Privette found the rule inconsistent with the workers' compensation system, holding that "When an employee of the independent contractor hired to do dangerous work suffers a work-related injury, the employee is entitled to recovery under the state's workers' compensation system. That statutory scheme, which affords compensation regardless of fault, advances the same policies that underlie the doctrine of peculiar risk. Thus, when the contractor's failure to provide safe working conditions results in injury to the contractor's employee, additional recovery from the person who hired the contractor

-- a nonnegligent party -- advances no societal interest that is not already served by the workers' compensation system. Accordingly, we join the majority of jurisdictions in precluding such recovery under the doctrine of peculiar risk." (Privette v. Superior Court, supra, 5 Cal.4th at p. 692.)

Regardless of Mellinkoff's activity on the job site, Mendoza was chosen by Werner, supervised and directed by Werner, and compensated for his injury by Werner's workers' compensation carrier. Privette thus applies.

Hazardous condition/affirmative act: Hooker and Kinsman

Mendoza also makes arguments under Hooker v. Department of Transportation, supra, 27 Cal.4th 198, and Kinsman v. Unocal Corp., supra, 37 Cal.4th 659. Hooker held that a hirer who retains control over safety conditions at a worksite and negligently exercises that control in a manner that affirmatively contributes to an employee's injuries can be liable to that employee. (Id. at p. 670.) Mendoza contends that there are triable issues of fact on whether Mellinkoff retained control over safety conditions at the work site, again citing the evidence that Mellinkoff hired subcontractors, approved change orders, and so on. From his own injury, he also concludes that Mellinkoff negligently exercised that control.

Kinsman held that a hirer can be liable if he or she "knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition."

(Kinsman v. Unocal Corp., supra, 37 Cal.4th at p. 664.) Mendoza finds a triable issue on this theory in Werner's testimony concerning the skylight, and in change order No. 5, which concerns the skylight.

Even when the evidence is liberally construed in support of Mendoza and all doubts are resolved in his favor (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460), we can see no triable issue of fact under either Hooker or Kinsman.

First, the evidence that Mellinkoff hired subcontractors, approved change orders, and on some occasions spoke to subcontractors at the job site shows only that he had that degree of involvement in the renovation. It is not proof that he retained control over safety conditions at the work site.

Nor do we see facts from which a jury could conclude that (under Kinsman) Mellinkoff knew or should have known that the skylight framing was weak, that Werner did not know, and that Mellinkoff failed to warn him. At most, the change order establishes that Mellinkoff knew that more work was needed on the skylight than was anticipated when the framing was bid. That is not proof that Mellinkoff knew or should have known that the framing was dangerously weak, and is certainly not proof of Werner's ignorance, or Mellinkoff's failure to warn Werner. Indeed, Werner's deposition testimony is that he (not Mellinkoff) took safety precautions on skylight projects, and that he and Mellinkoff did discuss the skylight project.

The request for a continuance

The complaint in this case was filed on October 27, 2003. Mellinkoff's summary judgment motion was filed on September 28, 2005, and was scheduled for hearing on December 15, 2005. On November 28, on Mellinkoff's motion, the motion was continued until January 31, 2006. By then, a trial date of April 17, 2006, had been set. For reasons which do not appear in our record, the motion was again continued until February 16, 2006.

On February 2, 2006, Mendoza moved for a continuance, contending that despite efforts beginning in November, 2005, he did not take the second session of Mellinkoff's deposition until January 18, 2006 (with corrections due by January 27), and that he needed more time to analyze the deposition and compare it to the ten other depositions in the case. The trial court denied the request. Mendoza contends that the trial court ruling was an abuse of discretion. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72.)

Under Code of Civil Procedure section 437c, subdivision (h), "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just."

In order to justify a continuance, the affidavit must show that "(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts." (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623.) Here, Mendoza made no showing that time was needed in order to obtain essential facts, and there was thus no abuse of discretion.

Disposition

The judgment is affirmed. Respondent to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

MOSK, J.

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[1] Appellant's notice of appeal states that it is also an appeal from judgment in favor of another defendant in the case, Reid Warner. He has raised no issue on appeal concerning that judgment, which is consequently affirmed.

[2] On Werner's summary judgment motion, the trial court found that there was undisputed evidence that Mendoza was Werner's employee and was receiving workers' compensation benefits from Werner's carrier, and that the claims were barred by workers' compensation exclusivity.