Filed 8/22/22 Borja v. Victor Bringas Construction CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Alex Borja was severely injured when a vehicle driven by James Brown collided with Borja’s vehicle in an intersection in San Jose in July 2017.

Borja and his wife (Borja) sued numerous defendants, including respondent Victor Bringas Construction (VBC). According to Borja, VBC was vicariously liable for Brown’s negligence because Brown was VBC’s employee on a nearby construction project and was acting within the scope of his employment at the time of the accident.

VBC successfully moved for summary judgment on the ground that it owed no duty to Borja because it did not hire, employ or control Brown to work at the construction project.

On appeal, Borja argues there is a triable issue of material fact as to whether VBC and Brown were in a common‑law employee‑employer relationship; whether Brown was VBC’s employee pursuant to Labor Code sections 2750.5 and 2775,[1] which establish presumptions that certain workers are employees rather than independent contractors; and whether VBC was Brown’s employer pursuant to its construction contract with the homeowner.

We determine there is no triable issue of material fact and affirm the judgment.

1. Factual and procedural background[2]

1. Weaver Project

Lance Brown (Lance),[3] his wife Diane Stember Richards (Richards), and their company Enterprise Plan B, Inc. (EPB), doing business as Spruce and Pine, purchase, remodel and sell single‑family homes. One of those homes was located at 1437 Weaver Drive in San Jose (Weaver Project). Lance signed the building permit application for the Weaver Project on behalf of himself and EPB as “Owner‑Builder” on May 24, 2017.

In May 2017, Lance retained VBC as a contractor for the Weaver Project. VBC is a sole proprietorship owned by Victor Bringas, a licensed contractor. VBC and Lance entered into a contract for the Weaver Project, which provided that VBC would perform specified tasks including excavation, concrete, framing, retrofit, sheetrock, siding, windows and door installation work. The contract provided that VBC would be responsible for supervising the work performed by subcontractors which VBC retained for work within its scope of services under the contract.

For other services on the Weaver Project outside the scope of that contract, such as insulation, drywall, tile and stone, electrical, roofing, and plumbing, Lance hired various other contractors. VBC was not responsible for retaining or supervising those contractors or their work.

For the plumbing work, Lance hired James Brown (James), an unlicensed contractor who had worked for Bringas and Lance on other projects. Lance directed and supervised James’s work on the Weaver Project.

At the time James worked on the Weaver Project, he was employed as a plumber by Voeks, Inc., a separate entity with no involvement with the events at issue here. James worked for the Weaver Project as a “side job.”

While James worked on the Weaver Project, he and Bringas coordinated their work where it overlapped, such as Bringas cutting the concrete to allow James to install the plumbing.

2. The accident

At 8:00 a.m. on July 1, 2017, James was driving westbound on West Alma Avenue in San Jose when he ran a red light and struck the driver’s side door of Borja’s vehicle, spinning it clockwise over the curb and into a fence. Borja was ejected from his vehicle onto the pavement and suffered severe and permanent injuries.

Borja claims that, at the time of the accident, James was on his way to work at the Weaver Project, having just purchased plumbing supplies roughly 10 minutes earlier.

3. Procedural history

On November 9, 2017, Borja filed the initial complaint in this action against James, alleging causes of action for motor vehicle negligence, general negligence and loss of consortium. Specifically, the complaint alleged that James “so negligently owned, maintained, operated, serviced and repaired” the vehicle he was driving “to have caused said vehicle to collide with” Borja’s car.

Borja subsequently amended the complaint multiple times to add Voeks, EPB, Lance, Richards, and VBC as defendants.[4] The amendment adding VBC as a defendant substituted VBC for a Doe defendant without any further changes, thereby alleging the same causes of action on the same bases as initially alleged against James.

VBC filed a motion for summary judgment in June 2020. It argued that, because the undisputed facts showed VBC did not own, maintain, operate, service or repair James’s vehicle, it could not be liable as alleged. VBC also argued that it could not be liable for James’s negligence through vicarious liability. First, it argued that the amended complaint did not allege vicarious liability against VBC, which precluded Borja from making that argument in opposition to the summary judgment motion. Second, it argued that, even if Borja could make such an argument, the undisputed facts showed VBC did not owe Borja a duty of care because it did not employ James and did not direct or control his driving or other activities on the day of the accident. In support, VBC introduced evidence of its contract with Lance, Lance’s building permit application, and deposition testimony of James, Lance and Bringas.

In opposing the motion, Borja conceded that VBC did not own, maintain, operate, service or repair James’s vehicle, but argued the evidence showed VBC was James’s employer at the time of the accident, and was “statutorily, legally, and contractually liable for James’ negligent actions that occurred within the scope of James’ employment.” Specifically, Borja argued that VBC was James’s employer pursuant to section 2750.5, which provides that “a contractor who engages the services of an unlicensed subcontractor . . . to perform work that requires a license is, by statute, the employer of the unlicensed subcontractor.” Borja’s theory was that VBC was the general contractor for the Weaver Project and was therefore legally responsible for, and the employer of, all subcontractors and suppliers, including James.

Borja also argued that VBC was James’s employer for the Weaver Project by virtue of VBC’s contract with Lance. He contended the contract expressly provided that VBC, as the “project manager” for the Weaver Project, would “oversee the majority of the work” and was responsible for supervising the work of all subcontractors on the project. According to Borja, the contract was identical to the one used for a different remodel project for which VBC acknowledged it was the general contractor and for which it had hired James as a plumber subcontractor.

The trial court granted VBC’s motion for summary judgment. It first held that, although the operative complaint did not specifically allege vicarious liability against VBC, the “mere allegation that defendant VBC committed the wrongful act is sufficient to raise (or implicate) the issue of vicarious liability.” It then held that VBC had carried its initial burden of negating the duty element of Borja’s negligence cause of action by submitting evidence showing there was no employee‑employer relationship between VBC and James that would support vicarious liability under the doctrine of respondeat superior. Borja in turn had not submitted evidence to create a triable issue of material fact as to whether James was an employee of VBC. Accordingly, “in the absence of an employer‑employee relationship between [James and VBC], there is no basis for respondeat superior liability against defendant VBC.”

Judgment was entered on May 11, 2021. Borja timely appealed.

2. Discussion

Borja argues the evidence created triable issues of material fact as to whether James was VBC’s employee pursuant to (1) the common law, (2) sections 2750.5 and 2775, and (3) VBC’s contract with Lance.[5]

1. Standard of review

Where a defendant has prevailed on summary judgment, “ ‘ “we review the record de novo to determine whether [they have] conclusively negated a necessary element of the plaintiff’s case or demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial.” ’ ” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767; Genisman v. Carley (2018) 29 Cal.App.5th 45, 49 [defendant moving for summary judgment bears “ ‘the burden of showing that . . . one or more elements of the cause of action cannot be established’ ”].) The moving defendant “bears the burden of persuasion that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) But upon a defendant’s prima facie showing of the nonexistence of such an element, the plaintiff “is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.)

Like the trial court, in undertaking our independent review, “ ‘[w]e examine (1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving party’s favor, and (3) the opposition—assuming movant has met its initial burden—to “decide whether the opposing party has demonstrated the existence of a triable, material fact issue.” ’ ” (Kim v. County of Monterey (2019) 43 Cal.App.5th 312, 323 (Kim).) “ ‘ “We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ’ ” (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.)

2. We construe the complaint to allege negligence against VBC through vicarious liability

As summarized above, although the operative complaint did not specifically allege vicarious liability, the trial court held that the allegation that VBC committed the wrongful act was sufficient to raise or implicate vicarious liability. Exercising our independent review, we similarly conclude that the complaint sufficiently implicated vicarious liability.[6]

It is well‑settled that “ ‘opposition evidence must be directed to issues raised by the pleadings’ ” (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1264), and that a party moving for summary judgment “ ‘is not required to go beyond the allegations of the pleading, with respect to new theories that could have been pled . . . .’ ” (Johnson v. Raytheon Co. (2019) 33 Cal.App.5th 617, 636, quoting Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 421.)

However, a court may construe a complaint as sufficiently alleging vicarious liability even where it does not specifically identify the theory: “ ‘In order to state a cause of action against defendant for a wrong committed by his servant, the ultimate fact necessary to be alleged is that the wrongful act was in legal effect committed by defendant. This may be alleged either by alleging that defendant by his servant committed the act, or, without noticing the servant, by alleging that defendant committed the act.’ ” (Golceff v. Sugarman (1950) 36 Cal.2d 152, 154 (Golceff).)

To establish a cause of action for negligence, a plaintiff must allege facts showing a legal duty to use due care, breach of the duty, causation, and damages. (Colonial Van & Storage, Inc. v. Superior Court (2022) 76 Cal.App.5th 487, 496, citing Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)

“A defendant may have an affirmative duty to protect the plaintiff from harm by a third party ‘even though the risk of harm is not of the defendant’s own making,’ if a special relationship exists.” (Colonial Van & Storage, Inc. v. Superior Court, supra, 76 Cal.App.5th at p. 500, quoting Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 215 [examples of special relationships creating an affirmative duty to protect include relationship between employers and employees].)

Under the doctrine of vicarious liability, or respondeat superior, “ ‘an employer may be held vicariously liable for torts committed by an employee within the scope of employment. [Citation.] . . . The doctrine is a departure from the general tort principle that liability is based on fault. [Citation.] It is a rule of policy, a deliberate allocation of a risk. [Citations.] Respondeat superior is based on a deeply rooted sentiment that it would be unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities.’ ” (Miller v. Stouffer (1992) 9 Cal.App.4th 70, 77, quoting Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208‑209.)

Borja’s complaint alleged that VBC negligently owned, maintained, operated, serviced and repaired the vehicle James was driving, thereby causing it to collide with Borja. That was sufficient to allege that VBC was vicariously liable for James’s negligence as alleged. (Golceff, supra, 36 Cal.2d at p. 154.)

3. Borja failed to demonstrate the existence of a triable issue of material fact as to whether VBC owed him a duty through an employer‑employee relationship

Borja contends VBC owed him a duty because it was James’s employer and James was acting within the scope of his employment at the time of the accident. Borja argues three separate bases for an employer‑employee relationship between James and VBC: (1) common‑law, (2) sections 2750.5 and 2775, and (3) the contract between VBC and Lance. We address those in turn.

1. Common‑law employer‑employee relationship

The concept of common‑law employment has traditionally “fixed the boundaries of vicarious liability in tort actions.” (Holmgren v. County of Los Angeles (2008) 159 Cal.App.4th 593, 604.) The general rule is: “the fact that one is performing work and labor for another is prima facie evidence of employment and such person is presumed to be a servant in the absence of evidence to the contrary.” (Robinson v. George (1940) 16 Cal.2d 238, 242 (Robinson).)

“The essential characteristic of employment relationship is the right to control and direct the activities of the person rendering service, or the manner and method in which the work is performed.” (Villanazul v. City of Los Angeles (1951) 37 Cal.2d 718, 721 (Villanazul); Industrial Indem. Exchange v. Industrial Acci. Com. (1945) 26 Cal.2d 130, 135.) “Existence of the right is often tested by determining whether, if instructions were given, they would have to be obeyed. [Citation.] The right to terminate the service at any time is a strong circumstance tending to show the right to control.” (Villanazul, supra, at p. 721.)

“Under the common law, ‘ “[t]he principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.” ’ ” (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531, quoting S.G. Borello & Sons, Inc. v. Dept. of Indus. Relations (1989) 48 Cal.3d 341, 350.)

Borja contends he submitted evidence to create a triable issue of material fact as to whether James was VBC’s employee under the common law. Specifically, he identifies the following evidence: VBC and James were both working on the Weaver Project at the time of the accident; James stated that he started working on the Weaver Project after being contacted by VBC to put in a plumbing bid; on the day of the accident, James was also involved with VBC on a different project; James testified that, at the time of the accident, he was on his way from a plumbing supply store to the Weaver Project to work on waterlines and plumbing; James was required to bring the tools, supplies, and materials to the jobs where James worked for VBC; Bringas testified that James’s ability to show up “with his truck and tools ready to go” was beneficial to VBC; VBC and James “worked together on the same projects at the Weaver house,” such as cutting concrete where some of the plumbing would go; Lance admitted that VBC conducted the majority of the plumbing foundation work and James was hired to work on the plumbing; James’s deposition testimony contradicts VBC’s position that it had no control over James at the Weaver Project; VBC supervised James’s saw‑cutting work; VBC admitted it employed James on contracting jobs because it found it convenient that he brought tools to the worksites.

In our view, this evidence does not create a triable issue of material fact as to whether James was VBC’s employee. In short, Borja’s evidence is immaterial because it does not demonstrate any right by VBC to control or direct James’s work at the Weaver Project.

As noted above, “[t]he essential characteristic of employment relationship is the right to control and direct the activities of the person rendering service, or the manner and method in which the work is performed.” (Villanazul, supra, 37 Cal.2d at p. 721.)

None of Borja’s evidence, though, even when liberally construed, demonstrates that VBC had the right to control or direct James’s activities, or the manner and method in which the work was performed. Nor does it even show that James was performing work and labor for VBC at all. (Robinson, supra, 16 Cal.2d at p. 242.)

Instead, it shows only that (1) James and VBC worked on the Weaver Project at the same time and at least one task overlapped and required coordination; (2) VBC suggested to James that he bid for the plumbing work at the Weaver Project; (3) VBC employed James on a different project; and (4) James was on his way to work at the Weaver Project at the time of the accident.

Borja fails to articulate any way in which this evidence demonstrates that VBC had the right to control or direct James’s activities at the Weaver Project and we can discern none.

Nor does the evidence dispute or contradict VBC’s evidence showing that Lance/EPB was James’s employer and had the sole right to control and direct his work at the Weaver Project. For instance, Lance testified that he contracted with, paid, controlled, and supervised James’s work at the Weaver Project, that VBC’s scope of work did not include plumbing and that VBC had no supervisory duty or authority over James. Bringas testified: “I already got a set of plans and that was my scope of order, you know, to do the whole project, but Lance Brown decided it was too expensive. I brought two plumbers, licensed plumbers, and he thought it was too expensive. So he said, ‘Let me do the plumbing on my own. I will get the plumbing. I will get the electrical. I will get the mechanical.’. . . So he took all those trades out of my original estimate from the very beginning.” And James himself testified that Lance hired and supervised him at the Weaver Project and that VBC had no such role.

Borja claims that “VBC’s position that it had no control over [James] at the Weaver worksite is contradicted by deposition testimony.” As support, Borja cites the following excerpt of James’s deposition: “Q. What would you have talked to Victor [Bringas] about Weaver? [¶] A. Well, when I laid out the . . . concrete floor where I would need the saw cutting. So we had a discussion about it. Basically walked through it. [¶] Q. And why was that? [¶] A. Because he was doing some of the saw cutting. [¶] Q. Because your scope of work overlapped with his; right? [¶] A. Yeah.”

Liberally construing that deposition testimony, though, it does not constitute evidence VBC retained the right to control or direct James’s work, or even give rise to that inference. (Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161 [“[w]hen opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence”].) At most, it shows that James and VBC discussed their respective responsibilities for the project. Such casual discussions about coordinating overlapping work does not include the indicia of control or direction that constitutes evidence of a common‑law employer‑employee relationship.

Borja argues that common‑law employment relationships “can be established in a variety of ways” and he cites various cases in support of that general proposition. For instance, he argues that an employment relationship exists “whenever the employer retains the right to direct how the work shall be done as well as the result to be accomplished.” (S.A. Gerrard Co. v. Industrial Acc. Commission (1941) 17 Cal.2d 411, 413.) In addition, he argues that, in third‑party injury suits, “the fact that one is performing work and labor for another is prima facie evidence of employment and such person is presumed to be a servant in the absence of evidence to the contrary.” (Robinson, supra, 16 Cal.2d at p. 242.)

We agree that employment relationships can be established in a variety of ways. However, that general proposition does not alter the result here—that Borja’s evidence was insufficient to create a triable issue that such relationships existed—and Borja’s opening brief fails to analogize any of the cited cases to the facts at issue here. (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived.”].)

In his reply brief, Borja analogizes to Mattei v. Corporate Management Solutions, Inc. (2020) 52 Cal.App.5th 116. We find the case inapposite. In Mattei, a group of lighting technicians sued a production company for Labor Code wage and hour violations in connection with work on a television commercial. (Id. at pp. 119‑120.) The Court of Appeal reversed the granting of the production company’s motion for summary judgment on the ground that it had failed to demonstrate it was not an “employer” within the meaning of the specific Industrial Welfare Commission wage order at issue. (Id. at pp. 122‑129.) We are not confronted with that particular wage order here. Nor are the facts regarding the alleged employee‑employer relationships similar in any way.[7]

In summary, Borja failed to submit evidence to create a triable issue of material fact as to whether James and VBC were in an employee‑employer relationship.[8]

2. Sections 2750.5 and 2775

Borja argues he raised triable issues of material fact as to whether James was VBC’s employee under sections 2750.5 and 2775. But those statutes merely provide standards in particular contexts for determining whether an individual is an employee or an independent contractor. It is immaterial here whether James was an employee or an independent contractor because, with respect to VBC, there is no evidence that he was either.

1. 1. Section 2750.5

Section 2750.5 creates a presumption that an unlicensed contractor is an employee, rather than an independent contractor. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 328.) However, that merely begs the question: who was James’s employer? The problem for Borja remains the same—the evidence he submitted does not create a triable issue of material fact as to whether VBC was James’s employer, regardless of whether James is properly classified as an employee or independent contractor.

Section 2750.5 begins as follows: “There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to [the Contractors’ State License Law (Bus. & Prof. Code, § 7000 et seq.)], or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor.” (§ 2750.5; Blackwell v. Vasilas (2016) 244 Cal.App.4th 160, 169.) The statute “then lists certain factors that are required for proof of independent contractor status” (Blackwell, supra, at pp. 169), and “continues with this paragraph: ‘In addition to the factors contained in subdivisions (a), (b), and (c), any person performing any function or activity for which a license is required pursuant to [the Contractors’ State License Law (Bus. & Prof. Code, § 7000 et seq.)] shall hold a valid contractors’ license as a condition of having independent contractor status.’ ” (Id. at pp. 169‑170.) In other words, the statute “ ‘absolutely denies independent contractor status to a person required to have such a license who is not licensed.’ ” (Id. at p. 170, quoting Foss v. Anthony Industries (1983) 139 Cal.App.3d 794, 797.)

Borja argues that because James “did not have the required contractor’s license, he cannot legally be an independent contractor,” so that he “must be classified as an employee.” VBC agrees with that threshold point.

The parties disagree, though, on whether VBC is James’s employer. Borja contends there is conflicting evidence as to whether James was an employee of VBC. For the same reasons set forth above, we disagree. Nothing in section 2750.5 changes our analysis that VBC was not James’s employer and Borja has not articulated any way in which the statute or interpreting case law demonstrates to the contrary.

1. 2. Section 2775

Borja also relies on section 2775 and claims it establishes “a presumption that ‘a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor.’ ” (§ 2775, subd. (b)(1).)

Section 2775, subdivision (b)(1) provides in part: “For purposes of this code and the Unemployment Insurance Code, and for the purposes of wage orders of the Industrial Welfare Commission, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied: [¶] (A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact. [¶] (B) The person performs work that is outside the usual course of the hiring entity’s business. [¶] (C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.” “This standard for distinguishing employees from independent contractors is known as the ‘ABC’ test.” (People v. Uber Technologies, Inc. (2020) 56 Cal.App.5th 266, 275 (Uber), citing Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, 916.)

Section 2775 thus applies a specific test for determining whether a person who provides services for remuneration is properly classified as an employee or an independent contractor. (Uber, supra, 56 Cal.App.5th 266.) But the statute is still predicated on “ask[ing] at the outset whether a person rendered services to another, either as an employee or as an independent contractor.” (Id. at p. 288.)

Borja argues at length that the trial court improperly focused on the phrase “hiring entity” in determining that “the ‘hirer’ must be identified and established before recognizing the presumption of employment status.” But we review the trial court’s ruling, not its rationale. (Kids’ Universe, supra, 95 Cal.App.4th at p. 878.)

Borja relies heavily on Uber for the same argument—that the “ABC” test in section 2775 must be applied without any threshold determination about whether the defendant was the “hiring entity.” It is true that Uber rejected the argument that “the threshold question in an ABC analysis is whether they are ‘hiring entities’ ” subject to the analysis at all. (Uber, supra, 56 Cal.App.5th at p. 287.) However, as noted above, the court also explained that the statutory term “hiring entity” asks “at the outset whether a person rendered services to another, either as an employee or as an independent contractor.” (Id. at p. 288.) Consistent with that, the court found that the facts at issue there “amply support the conclusion that, whether or not drivers purchase a service from defendants, they perform services for them in the usual course of defendants’ businesses.” (Id. at p. 295, italics added.) Here, by contrast, Borja failed to provide any evidence that James performed any services for VBC. In other words, even without applying the threshold “hiring entity” determination that Uber rejected, there is no basis for concluding that VBC was James’s employer by virtue of section 2775.

3. VBC and Lance’s contract

Borja argues he raised triable issues of material fact as to whether VBC was “the general contractor” for the Weaver Project through its contract with Lance, thereby making him James’s employer for that project. We disagree. The evidence shows the contract provided that VBC would perform specified tasks and be responsible for supervising the work performed by subcontractors retained by VBC for work within the scope of services under the contract.

Borja claims that the contract included VBC’s “general contracting license number,” that it refers to VBC as “Contractor,” and that it “delegates the work, responsibilities, and duties associated with a general contractor to VBC.” However, Borja does not explain what it means for a license number to be a “general contracting license number,” and he cites no authority for the proposition that use of generic language such as “contractor” establishes one as an employer of a person hired and supervised by someone else, independent of the legal standards for employment relationships discussed above. Nor does Borja explain what work, responsibilities or duties were allegedly delegated under the contract. We reject these contentions. (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 [issues must be supported with reasoned argument and citations to authority].)

Second, Borja cites isolated language in the contract providing that VBC would “ ‘oversee[] entire scope of the project,’ ” “ ‘coordinate[] schedules of vendors and subcontractors to the project,’ ” and “be responsible for ‘subcontractor presence.’ ” But Borja offers no argument or explanation for why that language should not be viewed in the context of VBC’s scope of services for the contract, which included only the specified tasks and expressly excluded everything else, including the plumbing. Nor does Borja explain how that isolated language rebuts the testimony of Lance and James that VBC had no supervisory duty or authority over James at the Weaver Project. Even liberally construing the evidence Borja cites, it does not give rise to a reasonable inference that VBC had the right to direct or control James’s work at the Weaver Project when viewed with the other evidence in the record. (Code Civ. Proc., § 437c, subd. (c); Schacter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618 [trial court must grant motion for summary judgment if all the papers submitted show that there is “no triable issues of material fact”].)

Borja also claims Bringas testified that, as project manager for the Weaver Project, he supervised “all subcontractors on the job.” Borja mischaracterizes the record. In the cited testimony, Bringas answered “Yes” to the question: “The project manager is . . . also supervising the employees that work for you; right?” He did not state that he supervised subcontractors who did not work for him, like James. In fact, he expressly declared to the contrary: “I did not hire James Brown or supervise, direct or control his activities on the project.”

Borja claims VBC agreed to be responsible for negligence of “all the subcontractors working under VBC on Weaver.” That is correct; however, the evidence shows that James was not “working under VBC” on the Weaver Project.

Lastly, Borja claims that the contract “contains the same provisions, responsibilities, duties, and liabilities as the contract between Lance and VBC for work at the Laurie project,” and that Bringas testified VBC was “the general contractor” for that separate project. According to Borja, because the two contracts are “substantially identical,” a jury could reasonably conclude that VBC was the general contractor for the Weaver Project as well.

But Bringas’s testimony about the Laurie project is immaterial; it does not relate to his relationship with James on the Weaver Project, where the evidence shows VBC did not have the right to direct or control James’s work. A generic statement that VBC was “the general contractor” at a different project does not alter that. To the extent Borja contends that one’s status as “a general contractor” creates an employee‑employer relationship with a subcontractor retained by someone else, he has not cited any authority in support.

In sum, Borja has failed to create a triable issue of material fact as to whether the contract between VBC and Lance created an employee‑employer relationship between VBC and James.[9]

3. Disposition

We affirm the judgment. VBC is awarded its costs on appeal.

___________________________________

Wilson, J.

WE CONCUR:

__________________________________________

Danner, Acting P.J.

______________________________________

Lie, J.

Borja et al. v. Victor Bringas Construction

H049278

[1] Undesignated statutory references are to the Labor Code.

[2] We take our facts from the record that was before the trial court when it ruled on VBC’s summary judgment motion. (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 39.) We consider “ ‘ “all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.” ’ ” (Ibid., quoting Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)

[3] Lance Brown and James Brown are unrelated. For clarity, we refer to them by their first names.

[4] Borja also filed a separate complaint against the City of San Jose in June 2018, alleging a dangerous condition of public property and negligence. That case is currently pending on appeal. Borja’s claims against Voeks, EPB, Lance and Richards are not at issue in this appeal.

[5] Borja does not argue on appeal that VBC failed to carry its initial burden of negating an essential element of Borja’s negligence claim. Accordingly, we treat the point as conceded. (Fisher v. Gibson (2001) 90 Cal.App.4th 275, 283.)

[6] VBC does not argue on appeal that Borja is precluded from arguing vicarious liability because the complaint did not specifically allege that theory.

[7] Borja also argues Mattei held that the “suffer or permit to work” standard that forms part of the IWC wage order at issue in that case “is an alternative basis to find an employment relationship that goes beyond right to control and reaches irregular working arrangements.” But even if that standard were applicable here, the “suffer or permit to work” language—borrowed from early 20th‑century statutes prohibiting child labor—means that “[a] proprietor who knows that persons are working in his or her business without having been formally hired, or while being paid less than the minimum wage, clearly suffers or permits that work by failing to prevent it, while having the power to do so.” (Martinez v. Combs (2010) 49 Cal.4th 35, 69; Mattei, supra, 52 Cal.App.5th at p. 124.) There is no such evidence here.

[8] Borja also argues that the trial court improperly weighed evidence in finding his evidence to be insufficient. However, we independently review the evidence to “ ‘ “decide whether the opposing party has demonstrated the existence of a triable, material fact issue.” ’ ” (Kim, supra, 43 Cal.App.5th at p. 323.) Accordingly, we are not bound by the trial court’s stated reasons because we review its ruling, not its rationale. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878 (Kids’ Universe).)

[9] Because we conclude there is no triable issue of material fact as to whether James and VBC were in an employer‑employee relationship, so that VBC did not owe Borja a duty of care, we need not address Borja’s argument that James was acting within the scope of his employment at the time of the accident.