Case Number: 23SMCV01583 Hearing Date: August 21, 2025 Dept: 207
TENTATIVE RULING
| DEPARTMENT | 207 |
| HEARING DATE | August 21, 2025 |
| CASE NUMBER | 23SMCV01583 |
| MOTION | Motion for Summary Judgment |
| MOVING PARTIES | Defendants Verizon Communications, Inc. and GTE Operations Support Incorporated (erroneously sued as GTE Communications System Corporation) |
| OPPOSING PARTY | none |
MOVING PAPERS:
- Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities
- Appendix of Evidence
- Separate Statement of Undisputed Material Facts
- Declaration of Jennifer Goldstein
- Request for Judicial Notice
BACKGROUND
This case arises from allegations that Plaintiff was injured when he fell into an open manhole cover in the street where he was walking.
On April 11, 2023, Plaintiff Charles Emmett Singleton III (“Plaintiff”) filed suit against Defendants City of Los Angeles (“City”); Verizon Communications, Inc. (“Verizon”); GTE Communications Systems Corporation (“GTE”); and CNM Communications, Inc. (“CNM”) alleging two causes of action for (1) general negligence and (2) premises liability.
Cross-Complaints for indemnity, contribution, etc. were filed by City, CNM, and Verizon and GTE. On June 30, 2025, Plaintiff voluntarily dismissed City.
Verizon and GTE (“Moving Defendants”) now move for summary judgment as to Plaintiff’s Complaint. The motion is unopposed.
REQUEST FOR JUDICIAL NOTICE
Moving Defendants request judicial notice of the following:
- The contents of the Court file inclusive of, but not limited to, all admissible pleadings and evidence submitted by any party related in this matter.
- The contents of Exhibit 1 to the Declaration of Jennifer Goldstein, Esq., which were records attained by way of public records act request received from the VERIZON COMMUNICATIONS, INC. and GTE OPERATIONS SUPPORT INCORPORATED. The same are attached hereto as Exhibit 1 to this request.
Judicial notice may be taken of records of any court in this state. (Evid. Code, § 452, subd. (d)(1).) Therefore, the Court may take judicial notice of the contents of the file for this case. (Ibid.) However, “while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files. Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].)
Accordingly, the Court takes judicial notice of the existence, filing, and legal consequences of the documents in the Court’s file for this case, but not the truth of any statements or allegations contained therein.
Similarly, the Court takes judicial notice of the existence and legal consequences of documents obtained by way of a public records act request as facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable authority, pursuant to Evidence Code section 452, subdivision (h), but not the truth of any hearsay statements contained therein.
LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT
“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party 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.)
“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court’s evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable
DISCUSSION
- NEGLIGENCE AND PREMISES LIABILITY – ELEMENTS
The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.)
Liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril (Cody F. v. Falleti (2001) 92 Cal.App.4th 1232, 1242.) Accordingly, premises liability alleges a defendant property owner either (1) allowed a dangerous condition on its property or (2) failed to take reasonable steps to secure its property against criminal acts by third parties. (See, e.g., Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406.)
Stated differently, because a property owner is not the insurer of the safety of its guests, the owner’s actual or constructive knowledge of the dangerous condition is key to establishing liability. (Hall v. Aurora Loan Servs., LLC (2013) 215 Cal.App.4th 1134, 1139-1140; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 [“to impose liability for injuries suffered by an invitee due to a defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises”] [cleaned up].)
Moving Defendants contend they did not owe Plaintiff a duty of care because (1) they did not control the premises at the time of the incident; (2) the incident was not foreseeable; (3) Moving Defendants did not have any actual knowledge of the dangerous condition; and (4) there is no allegation suggesting what Moving Defendants could or should have done to prevent the incident.
- Moving Defendants’ Evidence
In support, Moving Defendants have advanced the following undisputed material facts supported by competent evidence:
- Plaintiff fell into an open manhole on April 27, 2022 between 9:00 and 10:00 p.m. in the northbound lane of Lincoln Boulevard at or near 4848 S. Lincoln Blvd., in Marina Del Rey, California 90292. (UMF No. 1.)
- Moving Defendants owned the subject underground facility covered by the manhole. (UMF No. 2.)
- When Plaintiff walked past the premises earlier that evening (between 6:30-7:00 p.m.) no one was present at the premises. (UMF No. 7.)
- On Plaintiff’s return trip home, he observed a work truck stopped at the premises with cones behind the truck. (UMF No. 8-9.)
- The vehicle bore the name CNM on it. (UMF No. 10.)
- CNM was contracted by C-One Communication Inc. to audit the manholes to proof a path for a future fiber installation. (UMF No. 13.)
- There were no representatives from Moving Defendants present at the premises. (UMF No. 11.)
- CNM arrived at the premises approximately forty-five minutes before the incident. (UMF No. 12.)
- The work zone at the premises was demarcated by safety cones, flood lights, and a secured yellow cage. (UMF No. 14.)
In support of Moving Defendants’ argument that they did not control the premises at the time of the incident, Moving Defendants cite to Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1160, which recites the Privette doctrine.
“At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor’s negligence in performing the work.” (Privette v. Superior Court (1993) 5 Cal.4th 689, 693 (hereafter Privette). “Central to this rule of nonliability was the recognition that a person who hired an independent contractor had no right of control as to the mode of doing the work contracted for.” (Ibid.) The California Supreme Court recognized that there are exceptions to the general rule including the doctrine of peculiar risk. (Ibid.)
“Under the peculiar risk doctrine, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor’s negligent performance of the work causes injuries to others.” (Privette, supra, 5 Cal.4th at p. 691.) “The courts adopted the peculiar risk exception to the general rule of nonliability to ensure that innocent third parties injured by the negligence of an independent contractor hired by a landowner to do inherently dangerous work on the land would not have to depend on the contractor’s solvency in order to receive compensation for the injuries.” (Id. at p. 694.) Moreover, the supreme court noted that under the doctrine of peculiar risk, “a landowner who chose to undertake inherently dangerous activity on his land should not escape liability for injuries to others simply by hiring an independent contractor to do the work.” (Ibid.)
Subsequently, in Gonzalez v. Mathis, the California Supreme Court revisited the Privette doctrine and the exceptions to the doctrine.
There is a strong presumption under California law that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety. This means that a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job. Commonly referred to as the Privette doctrine, the presumption originally stemmed from the following rationales: First, hirers usually have no right to control an independent contractor’s work. Second, contractors can factor in the cost of safety precautions and insurance coverage in the contract price. Third, contractors are able to obtain workers’ compensation to cover any on-the-job injuries. Finally, contractors are typically hired for their expertise, which enables them to perform the contracted-for work safely and successfully.
We have nevertheless identified two limited circumstances in which the presumption is overcome. First, in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 115 Cal.Rptr.2d 853, 38 P.3d 1081 (Hooker), we held that a hirer may be liable when it retains control over any part of the independent contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the worker’s injury. Second, in Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 36 Cal.Rptr.3d 495, 123 P.3d 931 (Kinsman), we held that a landowner who hires an independent contractor may be liable if the landowner knew, or should have known, of a concealed hazard on the property that the contractor did not know of and could not have reasonably discovered, and the landowner failed to warn the contractor of the hazard.
(Gonzalez v. Mathis (2021) 12 Cal.5th 29, 37–38 [cleaned up].) Further, the California Supreme Court held in Sandoval v. Qualcomm Incorporated:
What we decided in Hooker was that, even if hirers may owe unrelated third parties a retained control duty based on retained control alone, hirers owe the contract workers a retained control duty only with something more. Contract workers must prove that the hirer both retained control and actually exercised that retained control in such a way as to affirmatively contribute to the injury.
A hirer actually exercises its retained control over the contracted work when it involves itself in the contracted work such that the contractor is not entirely free to do the work in the contractor’s own manner. In other words, the hirer must exert some influence over the manner in which the contracted work is performed. Unlike retained control, which is satisfied where the hirer retains merely the right to become so involved, actual exercise requires that the hirer in fact involve itself, such as through direction, participation, or induced reliance.
Affirmative contribution means that the hirer’s exercise of retained control contributes to the injury in a way that isn’t merely derivative of the contractor’s contribution to the injury. Where the contractor’s conduct is the immediate cause of injury, the affirmative contribution requirement can be satisfied only if the hirer in some respect induced — not just failed to prevent — the contractor’s injury-causing conduct. It is not enough for the hirer’s exercise of control to incidentally give the hirer the opportunity to prevent the contractor’s injury-causing conduct.
A hirer’s conduct also satisfies the affirmative contribution requirement where the hirer’s exercise of retained control contributes to the injury independently of the contractor’s contribution (if any) to the injury. The critical factor here is the relationship between the hirer’s conduct and the contractor’s conduct, not whether the hirer’s conduct, assessed in isolation, can be described as affirmative conduct. Importantly, neither actual exercise nor affirmative contribution requires that the hirer’s negligence (if any) consist of an affirmative act. The hirer’s negligence may take the form of any act, course of conduct, or failure to take a reasonable precaution that is within the scope of its duty under Hooker.
(Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 276–277 [cleaned up].)
Here, although Moving Defendants owned the underground facility protected by the manhole cover, the evidence demonstrates that CNM was the contractor hired to perform the work. Because there is no evidence that Moving Defendants were at the premises or otherwise retained and exercised control over CNM’s work on the premises, and because there is no evidence of a latent defect that Moving Defendants were under an obligation to warn about, Moving Defendants have met their burdens of production and persuasion to demonstrate that summary judgment is appropriate.
- Plaintiff’s Evidence
Having met their initial prima facie burdens of production and persuasion, the burden shifts to Plaintiff to create a triable issue of material fact. However, Plaintiff has not opposed the motion, and therefore has not met his burden of production to advance evidence to raise a triable issue of material fact.
CONCLUSION AND ORDER
Having found Moving Defendants met their burdens of production and persuasion, and Plaintiff has not met his burden of production of evidence to establish a triable issue of material fact, the Court grants Moving Defendants’ unopposed motion for summary judgment.
Accordingly, the Court will enter the proposed Order lodged by Moving Defendants on March 3, 2025.
Further, Moving Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.
DATED: August 21, 2025 ___________________________
Michael E. Whitaker
Judge of the Superior Court