CASE NAME: GRAY? vs.? WRIGHT CONTRACTING
HEARING ON MOTION FOR SUMMARY JUDGMENT
FILED BY WRIGHT CONTRACTING INC.
* TENTATIVE RULING: *
?????????? Defendant Wright Contracting, Inc.?s motion for summary judgment is denied.
?The motion for summary judgment shall be granted if all the papers submitted show 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.??? Cal. Code Civ. Proc. ? 437c(c).? The party moving for summary judgment carries both the burden of persuasion and the burden of production of evidence.? Evid. Code ?500; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850. The moving party?s evidence is strictly construed.? Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, 74.
The purpose of a motion for summary judgment is to discover proof, to expedite litigation, and to provide for prompt disposition of actions where there is, in fact, no triable issue. Versa Technologies, Inc. v. Superior Court of Los Angeles (1978) 78 Cal.App.3d 237, 240.? If there is a single triable issue of material fact, the motion must be denied.? Weil Brown, Cal. Practice Guide, Civ. Pro. Before Trial (The Rutter Group 2015) ?10:270.
Defendant moves for summary judgment on the ground Plaintiffs are barred from seeking recovery because Wright Contracting, Inc. retained no control over the work site safety and it did nothing to affirmatively contribute to Plaintiff?s injuries.
Defendant has not met its initial burden of establishing, as a matter of law, it did not retain control over the work site safety.? The provisions of the contract Defendant claims to expressly delegate all responsibility for work site safety to Progressive Roofing does not state so in clear and unambiguous terms and is subject to interpretation inconsistent with Defendant?s claim.
Paragraph 26 of the Subcontract between Wright Contracting and Progressive Roofing (Indemnity Clause Regarding Safety) provides in part:? ?Subcontractor shall, at its own expense, conform to the basic safety policy of contractor, and comply with all specific safety requirements promulgated by any governmental authority including, without limitation, the requirements of the Occupational Safety Health Act of 1970?.Subcontractor shall have and exercise full responsibility for compliance hereunder by itself, its agents, employees, materialmen, and subcontractors with respect to its portion of the work on this Project??
Section 6, Paragraph J of the Subcontract provides, ?Subcontractor is responsible for the protection of surfaces directly or indirectly adjacent to the area of work in which the subcontractor is working, including path of travel to that work area.?
These provisions do not conclusively establish it was the parties? intent that Wright Contracting delegated all responsibility to jobsite safety for Progressive Roofing? employees to Progressive Roofing.
?When any of the terms or provisions in a contract are ambiguous or uncertain, it is the duty of the trial court to construe it after the parties are given a full opportunity to produce evidence of the facts, circumstances and conditions surrounding its execution as well as the conduct of the parties to the contract. (Walsh?v.?Walsh?(1941) 18 Cal.2d 439, 443.? When two equally plausible interpretations of the language of a contract may be made, parol evidence is admissible to aid in interpreting the agreement, thereby presenting a question of fact which precludes summary judgment if the evidence is contradictory.? Walter E. Heller Western, Inc. v. Tecrim Corp.?(1987) 196 Cal.App.3d 149, 158.
Secondly, ?[I]f an employee of an independent contractor can show that the hirer of the contractor affirmatively contributed to the employee’s injuries, then permitting the employee to sue the hirer for negligent exercise of retained control cannot be said to give the employee an unwarranted windfall. The tort liability of the hirer is warranted by the hirer’s own affirmative conduct. The rule of workers’ compensation exclusivity ?does not preclude the employee from suing anyone else whose conduct was a proximate cause of the injury? (Privette, supra, 5 Cal. 4th at p. 697), and when affirmative conduct by the hirer of a contractor is a proximate cause contributing to the injuries of an employee of a contractor, the employee should not be precluded from suing the hirer. Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 213-214.
Affirmative contribution may sometimes be in the form of an omission. ?There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer’s negligent failure to do so should result in liability if such negligence leads to an employee injury.”? Park v. Burlington Northern Santa Fe Railway Co.?(2003) 108 Cal.App.4th 595, 605 (citing to Hooker v. Department of Transportation?(2002) 27 Cal.4th 198, 212, Footnote 3.)
Here, Plaintiffs submitted evidence that raises a question of fact as to whether Defendant Wright exercised retained control in a manner that?affirmatively contributed?to Plaintiff?s injury.? (Plaintiffs? Separate Statement of Undisputed Material Facts No. 10.)? Plaintiffs submitted evidence that Wright Contracting?s Project Foreman promised to mitigate the alleged dangerous condition and failed to do so.? (Plaintiff Andre Gray?s Deposition Testimony, 56:2-57:4; Deposition Testimony of Javier Garcia 38:19-39:7)
The motion for summary judgment is therefore denied.
Plaintiffs? Objections to Evidence
Objection Number 1.?? (Hannan Declaration, Page 2, ?7, Lines 15-16.)? Overruled. Hannan?s position required him to regularly review the contracts.? Also he was involved in the negotiation and finalization of the contract.
Objection Number 2.? (Hannan Declaration, Page 2, Lines 26-27) Overruled. This is not opinion testimony.
Objection Number 3.? (Hannan Declaration, Page 3, Line 1)? Sustained.? Conclusory statement, not factual.
??????????????????????????????????? Defendant?s Objections to Evidence
Objection Nos. 1-6.? Sustained.? Defendant?s Objection to Dennis Lafayette?s Declaration in its entirety is sustained, pursuant to Evidence Code ?720.? Proponents must prove that the witness has special knowledge, skill, experience, training, or education on the subject.?? Evidence Code ?720.? Paragraph 4 of Mr. Lafayette?s Declaration does not sufficiently establish his qualifications.
Objection No. 7. (Exhibit. 5 to Briggs? Declaration, Invoices/Receipts Titus Trucking.) (The court notes that Invoices/Receipts Defendant are actually in Exhibit 6, not 5).? ?Overruled.? Defendants produced the invoices in response to document requests.? The invoices are not being submitted for the truth of matters asserted therein.
Objection No. 8. ?(Exhibit 8 to Briggs? Declaration, Photographs)? Overruled.? Defendants produced the photographs as part of discovery.? Photographs are relevant as evidence of the condition of the work site terrain.