Blackwell v. Vasilas (244 Cal. App. 4th 160, 2016)

Opinion

IRION, J.

According to plaintiff and appellant Randall Blackwell (Blackwell), on June 26, 2013, as he was at the top of a ladder installing rain gutters at an investment property owned by defendant and respondent Ray Vasilas (Vasilas), Blackwell stepped on scaffolding that another contractor had erected at the jobsite, and the scaffolding collapsed. The collapse caused Blackwell to fall, and he suffered injuries when he landed on a pile of bricks approximately 10 feet below. Blackwell sued Vasilas for negligence. The trial court granted summary judgment in favor of Vasilas.

However, as the moving party, Vasilas did not meet his initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact. Accordingly, the trial court erred in granting Vasilas’s motion, and we reverse the resulting judgment.

I.

STATEMENT OF FACTS

“ ‘Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion.’ ” (Wilson v. 21 Century Ins. Co. (2007) 42 Cal.4th 713, 716-717 [68 Cal.Rptr.3d 746, 171 P.3d 1082].) We consider all the evidence in the moving and opposing papers, except evidence to which objections were made and sustained, liberally construing and reasonably deducing inferences from Blackwell’s evidence, resolving any doubts in the evidence in his favor. {Id. at p. 717; Code Civ. Proc., § 437c, subd. (c).)

As a commercial enterprise, Vasilas buys residential real estate, fixes up and improves the properties and then resells them. Although he performs some of the minor fix-ups and improvements himself, Vasilas is not a licensed contractor and relies on the knowledge and expertise of contractors in their respective fields to perform “significant, extensive, or potentially hazardous work.” Vasilas’s usual practice when engaging a potential contractor is to provide a general description of the work and request a quote; if the quote is acceptable, then Vasilas agrees and schedules the work with the contractor. With regard to the work that results from this procedure, Vasilas testified: “I do not tell contractors how to do their jobs, participate in, assist with, or oversee the contractor’s work, or otherwise actively direct the manner or mode of a contractor’s performance. I stay out of the way. I assume, and expect, the contractors that I hire know how to perform their trade in a safe manner, and I expect them to take whatever measures they deem necessary to perform their jobs safely. I do not inquire into, discuss, or involve myself with on-the-job safety issues.”

Blackwell’s allegations and claims are all based on construction-related work performed at 4401 Topa Topa Drive in La Mesa (the Property), a two-story residential real estate investment property Vasilas purchased in early 2013. The contractors at issue in this action are Enrique Gomez Jimenez (Gomez), hired by Vasilas to perform stucco work, and Blackwell, hired by Vasilas to perform rain gutter work. Gomez has not participated in the litigation; all of the evidence in the record is from Blackwell and Vasilas.

Vasilas hired Gomez according to the procedure described above: Vasilas explained the work he wanted done, Gomez provided a quote, Vasilas orally agreed, Gomez did the work, and Vasilas paid Gomez $7,900 for his work. Gomez owned, assembled and erected the scaffolding; Vasilas did not participate in any manner, let alone supervise, its assembly or erection. Vasilas had seen Gomez using the scaffolding without incident, and Vasilas was unaware of anything that suggested there was a risk the scaffolding might fall if used in the manner Blackwell claims to have used it. To Vasilas the scaffolding appeared stable and safe.

Vasilas also hired Blackwell according to the procedure described above— which was consistent with the procedure Vasilas had used in hiring Blackwell on other projects. In response to Vasilas’s request for a bid on the rain gutter work, Blackwell inspected the Property on his own; at Vasilas’s request, Blackwell provided Vasilas with two bids, one for gutters around the entire structure, and one for gutters around only a portion of the structure; Vasilas orally agreed to the quote for the full building; and Blackwell agreed to return the following week to install the gutters. Other than telling Blackwell exactly where the downspouts and gutters were to be placed, Vasilas did not have any discussions or communications with Blackwell regarding the manner or method of installation, including the equipment and safety precautions Blackwell would use in the installation.

On the day of the accident, Blackwell arrived at the Property with all of his own equipment, tools and supplies necessary to install the rain gutters. Blackwell saw the scaffolding around a portion of the structure and continued working. The scaffolding did not look dangerous and Blackwell assumed it was safe, although he does not know much about scaffolding. Before beginning his work, Blackwell did not talk to Vasilas (who was at the Property); i.e., there was no mention of the job or jobsite safety generally or of the scaffolding specifically.

Blackwell used an extension ladder to access the roof. As he progressed around the building, Blackwell eventually reached that portion covered by the scaffolding. He leaned his ladder on the top rail of the scaffolding in order to access the roof where the gutter was to be installed. He then climbed up the ladder while carrying a two-foot section of aluminum gutter across his arms. As Blackwell reached the top of the ladder, he stepped off a rung onto the scaffolding — whereupon the scaffolding collapsed and fell away from the exterior of the residence. Blackwell fell 10 feet to the ground, landing on a pile of bricks and injuring himself.

II.

STATEMENT OF THE CASE

As a result of the collapse of the scaffolding, Blackwell sued Vasilas, alleging one cause of action for general negligence. Vasilas generally denied the allegations of the complaint, asserted various affirmative defenses, and cross-complained against Gomez for equitable indemnity, contribution and declaratory relief. Gomez did not appear in the action.

Following discovery, Vasilas filed a motion for summary judgment. Vasilas presented two arguments in support of his position that he had no duty to Blackwell. First, Vasilas argued that Privette v. Superior Court (1993) 5 Cal.4th 689 [21 Cal.Rptr.2d 72, 854 P.2d 721] (Privette) and its progeny precluded application of the peculiar (or special) risk doctrine. Second, Vasilas argued that, under general principles of premises liability law, because he had no actual or constructive knowledge that the scaffolding was dangerous, he had no duty to warn Blackwell of the allegedly dangerous condition.

In opposition to the motion, Blackwell first relied on the peculiar risk doctrine as it applied to Gomez. Blackwell argued that Gomez’s work involved a “special risk of physical harm” that Vasilas failed to recognize, which resulted in the assembly or maintenance of an unsafe condition on the Property which Vasilas knew or should have known existed. Because Vasilas was responsible for providing Blackwell with a workplace safe from such danger, Blackwell’s argument continued, Vasilas breached a duty of due care he owed Blackwell. As an independent theory, Blackwell focused on whether Gomez was a licensed contractor, arguing in the alternative (1) Vasilas breached “an enhanced duty” to investigate whether Gomez was licensed, and (2) because Gomez was an unlicensed contractor, Gomez was Vasilas’s employee for purposes of respondeat superior, and thus Vasilas was liable to Blackwell for breach of the duty of due care in Gomez’s assembly and maintenance the scaffolding.

In reply, Vasilas attacked both the lack of evidence and the legal positions offered by Blackwell. Vasilas first argued that Blackwell did not present any evidence of the following; that the scaffolding collapsed as a result of anyone’s negligence; that Vasilas retained and exercised control over the way Blackwell was to do his work; or that Vasilas directed (or otherwise was involved in the decision for) Gomez to use scaffolding. Vasilas then argued that Blackwell’s opposition misapplied the law regarding (1) Privette and the peculiar risk exception (see fn. 5, ante), and (2) when an unlicensed contractor may be treated as the hirer’s employee.

By minute order, the trial court granted Vasilas’s motion for summary judgment. The court first cited the lack of evidence in support of Blackwell’s claims: no evidence of negligence (by anyone) in the assembly or maintenance of the scaffolding; no evidence as to how or why the scaffolding collapsed; no evidence that Vasilas had or retained any control over the installation of the rain gutters (other than directing the locations for the downpipes or gutters as part of the job for which Blackwell submitted a bid); no evidence that Vasilas directed Blackwell to use (or how to use) the scaffolding; no evidence that Blackwell was compelled to use the scaffolding; no evidence that Vasilas had or retained the means by which Gomez performed his work; no evidence that Vasilas had or retained any control over safety conditions associated with the scaffolding; no evidence that Vasilas had either actual or constructive notice of a dangerous condition associated with the scaffolding; no evidence that Vasilas failed to exercise ordinary care or skill in managing the Property; and, as particularly relevant to the issue on appeal, no evidence that Gomez was Vasilas’s employee for purposes of respondeat superior. The court then ruled as follows on the legal issues presented: Privette precluded Blackwell’s claims, and no exception (allowing for application of the peculiar risk doctrine) applied; Vasilas did not owe Blackwell a common law duty of due care with regard to the scaffolding on the Property; and, once again relevant to the issue on appeal, Gomez was not Vasilas’s employee for purposes of applying the doctrine of respondeat superior to find Vasilas liable for Gomez’s alleged torts.

The court entered judgment against Blackwell in September 2014, Vasilas gave notice in October 2014, and Blackwell timely appealed in December 2014.

III.

DISCUSSION

On appeal, Blackwell refocuses his presentation, arguing only that, because Gomez was an unlicensed contractor, Gomez was Vasilas’s employee for purposes of respondeat superior and thus liable to Blackwell for Gomez’s negligence in assembling or maintaining the scaffolding at the jobsite. Blackwell relies on Labor Code section 2750.5 for the proposition that an unlicensed contractor is the hirer’s employee as a matter of law. From the premise that Gomez was Vasilas’s employee, Blackwell presents a number of theories by which he contends Vasilas owed him a duty of care related to the scaffolding and safety at the Property on the day of the accident: Vasilas was directly liable for negligently hiring and supervising Gomez; under the doctrine of respondeat superior, Vasilas was liable for all torts committed by Gomez; Privette did not shield Vasilas from liability, since Vasilas necessarily retained control over Gomez’s work; and Vasilas could not escape liability by delegating to Gomez the responsibility for safety.

As we explain, the trial court erred by not applying section 2750.5 properly. To establish that Gomez was an independent contractor — a necessary finding based on the issues related to the duty that Vasilas raised in his motion for summary judgment — section 2750.5 required Vasilas to present evidence either that Gomez had a license or that Gomez was not required to be licensed. Because Vasilas did not meet this initial evidentiary burden, the responsive burden did not shift to Blackwell to establish a triable issue of material fact.

A. Summary Judgment Law

We review de novo the issues raised by Blackwell in this appeal. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 [107 Cal.Rptr.2d 841, 24 P.3d 493] (Aguilar).) We must affirm the trial court’s ruling on any correct legal theory, so long as the parties had an opportunity to address it in either the trial or appellate court. (Schmidt v. Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 1498 [168 Cal.Rptr.3d 240]; see Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-330 [48 P. 117] [appealed judgment correct on any theory will be affirmed, regardless of trial court’s stated reasons].) The judgment of the trial court is presumed correct, and Blackwell (as the appellant) has the burden of establishing reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [86 Cal.Rptr. 65, 468 P.2d 193].)

A defendant is entitled to a summary judgment on the basis that the “action has no merit” (Code Civ. Proc., § 437c, subd. (a)) only where the court is able to determine from the evidence presented that “there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law” (id., subd. (c)). A cause of action “has no merit” if one or more of the elements of the cause of action cannot be established, or an affirmative defense to the cause of action can be established. (Id., subd. (