MICHAEL v.

DENBESTE TRANSPORTATION

Filed 3/23/06

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEALS from a judgment of the Superior Court of Los Angeles County. Peter P. Espinoza, Judge. Affirmed in part and reversed in part with directions.

Klein, DeNatale, Goldner, Cooper, Rosenlieb & Kimball, David J. Cooper and Catherine E. Bennett for Plaintiff and Appellant.

Brown, Brown & Klass, Delos E. Brown and John J. Stumreiter for Defendant and Respondent Denbeste Transportation, Inc.

McNamara, Spira & Smith, J. Patrick Jacobs and Mary O. O'Neill for Defendants and Respondents Chemical Waste Management, Inc., and Aman Environmental Construction, Inc.

Wood, Smith, Henning & Berman, Kevin D. Smith, Nicholas M. Gedo and Tod R. Dubow for Defendant and Respondent Secor International, Inc.

In this work site accident case,

plaintiff David Michael, a truck driver hauling hazardous waste, appeals from a summary judgment in favor of defendants Denbeste Transportation, Inc. (a hazardous waste hauler subcontractor and Michael's hirer), Chemical Waste Management, Inc. (CWM) (a hazardous waste handler and Denbeste's hirer), Aman Environmental Construction, Inc. (Aman) (the general contractor for the demolition work on the site and CWM's hirer), and Secor International, Inc. (a consultant hired by the owner of the site, but not the hirer of Michael or the other defendants).

In a line of cases from Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) to Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659 (Kinsman), our Supreme Court, in a body of law known as the Privette doctrine, has defined the circumstances under which an injured worker who is an employee of an independent contractor may sue the hirer of that contractor. This case presents the first impression issue of whether the Privette doctrine applies where the injured plaintiff is not an employee, but an independent contractor, of that contractor. We conclude that the Privette doctrine governs because its policies and rationale are applicable here. Accordingly, we affirm the summary judgment in favor of Aman, CWM, and Secor on the ground that they owed no duty to plaintiff as a matter of law under the Privette doctrine. In the unpublished portion of our opinion, we conclude that Denbeste is not entitled to summary judgment because of triable issues of fact as to whether Michael was Denbeste's employee or an independent contractor.

I

BACKGROUND^[1]

Michael was seriously injured at a construction site on the morning of January 18, 2002, when he fell about 10 feet from a loaded trailer to the ground while attempting without any fall protection to install a manual roll tarp over the trailer. Michael sustained a broken spine, which rendered him permanently paralyzed from his chest to his feet.

Michael owned a road tractor and operated a sole proprietorship under the name David Michael Trucking. Michael had many years of experience as a truck driver of end dump trucks and held a hazardous materials certificate.

Filtrol Corporation (not a party herein) owned property improved with an old plant. On May 1, 2000, Filtrol entered into a written contract with Aman to act as the general contractor to provide â€