TVERBERG v. FILLNER CONSTRUCTION, INC







Filed 2/24/11; pub order 3/25/11 (see end of opn.)
Opinion following remand from Supreme Court





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

JEFFREY TVERBERG et al., Plaintiffs and Appellants, v. FILLNER CONSTRUCTION, INC., Defendant and Respondent.

A120050 (Solano County Super. Ct. No. FCS028210)

The trial court granted summary judgment to respondent Fillner Construction, Inc. (Fillner) and dismissed the personal injury action of appellants Jeffrey and Catherine Tverberg.[1] The Tverbergs appeal the judgment against them, contending that Fillner is liable for their injuries because of its (1) negligent exercise of retained control and (2) breach of a nondelegable regulatory duty. We reverse the judgment.
I. FACTS[2]
This case came to us after the trial court granted Fillner's motion for summary judgment. Thus, we take the facts from the trial court record at the time that it ruled on that motion, and we review the decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. We liberally construe the evidence in support of the Tverbergs--the parties opposing summary judgment--and resolve doubts concerning the evidence in their favor. (See Tverberg, supra, 49 Cal.4th at p. 522.)
In 2006, Fillner was the general contractor on a project to expand a commercial fuel facility in Dixon. The project required construction of a metal canopy over some fuel-pumping units. Fillner contracted with subcontractor Lane Supply, which delegated the work to subcontractor Perry Construction, Inc. (Perry). Perry hired Tverberg--an independent contractor--as foreperson of Perry's two-person crew to construct the canopy. Tverberg had more than 20 years' experience in structural steel construction and held a state contractor's license under the name of J.T. Construction--a sole proprietorship consisting exclusively of Tverberg.
Fillner also hired subcontractor Alexander Concrete to erect eight â€