Opinion
2d Civil No. B222509 Super. Ct. No. 56-2007-00285342-CU- PO-VTA
08-03-2011
MICHAEL G. SEDLAK, JR., Plaintiff and Appellant, v. OJAI VALLEY SANITARY DISTRICT, Defendant and Respondent.
Richard R. Bredlau & Associates and Richard R. Bredlau for Appellant. Daley & Heft, LLP, Lee H. Roistacher, Robert H. Quayle IV and Shiva Elihu Stein for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Ventura County)
Lower Arbolada Sewer Association (Association) was formed by property owners in a portion of Ojai to convert from septic tanks to a sewer system owned and operated by respondent Ojai Valley Sanitary District (District). The Association and the District entered into a contract, which provided, among other things, that the project was subject to inspection by the District.
Appellant Michael G. Sedlak, a contractor's employee, was injured when a trench he was excavating collapsed and partially buried him. He received workers' compensation benefits through his employer. He filed a complaint against multiple parties including respondent District. The operative complaint alleges causes of action for negligence and dangerous condition of public property against the District.
District sought summary judgment on the grounds that it had no duty of care to Sedlak, it was immune from suit under immunities provided to public entities and its employees in the Government Code, and the Privette doctrine limited Sedlak's remedies to workers' compensation. The trial court agreed and granted the motion.
(Privette v. Superior Court (1993) 5 Cal.4th 689.)
On appeal, Sedlak asserts that the trial court erred in granting summary judgment because issues of material fact exist as to whether the District retained control over the worksite and affirmatively contributed to his injury by failing to ensure that the trench was shored to prevent its collapse. We affirm.
FACTUAL AND PROCEDURAL HISTORY
The facts recited in this opinion are substantially similar to those stated in respondent's brief. Although Sedlak disputes some of the facts stated by respondent, his citations to the record are inadequate. The citations Sedlak provides are references to the whole of a declaration or deposition, comprising as many as 88 pages. This practice violates the California Rules of Court, rule 8.883(1)(B). (See, e.g., Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 816, fn. 5 ["The claimed existence of facts that are not supported by citations to pages in the appellate record, or not appropriately supported by citations, cannot be considered by this court"].)
Sedlak was employed by Frank's Rooter (Frank's). Frank's was a contractor hired by the Association to correct work done by a prior contractor, Dial Construction, and to install sewer lines connecting private properties to the District's main sewer system. Dial had mistakenly trenched and installed 200 feet of sewer pipe outside an easement granted for that purpose. The work required excavation of a trench and installation of sewer pipes on private property.
The Association and the District entered into an agreement in which the Association agreed to (1) pay all project-related fees, including District inspection fees; (2) create plans; (3) acquire necessary easements; and (4) assume all risk of loss and liability prior to project completion. The agreement states in part: "[Association] will, at [Association's] own expense, cause the sewer system to be built and installed within the area in full compliance with the plans and specifications. [Association] shall perform all of its obligations hereunder and shall conduct all operations with respect to the construction of the System in a good, workmanlike and commercially reasonable manner, with the standard of diligence and care normally employed by duly qualified persons utilizing their best efforts in the performance of comparable work and . . . [Association] shall employ at all times consultants with the requisite experience necessary to administer and coordinate all work related to the design, engineering, acquisition, construction and installation of the System. All work done thereon will be subject to inspection by District . . . ." The agreement also provided that no person or entity the Association hired would be considered an agent, employee, or independent contractor of the District.
During construction, James Stallings, an inspector for the District, performed daily inspections to ensure that the sewer lines would be suitable for acceptance by the District upon completion of the project. Frank's began working on the project on June 12, 2009, pursuant to an oral contract with the Association's project manager. On Friday, June 16, Frank's employees were digging a trench on property owned by the Association. During an inspection that day, Stallings observed that the trench needed shoring. He advised Frank's on-site supervisor to stop all work until the shoring was installed. Frank's supervisor agreed and called Frank's owner to discuss the need for shoring. Frank's owner ordered the supervisor to stop work, tell Frank's employees to stay out of the trench until it was shored, and order shoring materials for delivery the following Monday, June 19. Frank's owner appeared at the construction site later that day and personally instructed his employees, including Sedlak, to stay out of the trench until shoring was in place. Before leaving the site on Friday, Frank's employees placed caution tape around the trench.
Stallings returned to the job site at 8:00 a.m. on Monday, June 19, expecting to see a shored trench. Instead, he saw Sedlak in the trench partially buried in dirt. Frank's employees had returned to the job site earlier that morning and were working outside the unshored trench. Upon seeing Sedlak, Stallings told Frank's supervisor, who was working on a backhoe outside the trench, that the employees were required to stay out of the trench until shoring was completed. Frank's owner arrived about five minutes later and told Stallings that the shoring had not yet arrived because of an ordering error.
The operative third amended complaint filed by Sedlak contained two causes of action against the District. The first cause of action asserted that Stallings "inspected the jobsite on a daily basis," it was Stallings' "job . . . to shut down the job when OSHA [the Occupational Safety & Health Act; Lab. Code, § 6400 et seq.] violations [occurred], such as lack of shoring," and Stallings' negligence was a proximate cause of Sedlak's injuries. The second cause of action alleged direct liability against the District for a dangerous condition of public property.
District's answer denied the allegations and asserted various immunities in the Government Code, including inspection immunity (Gov. Code, §§ 818.6, 821.4) and immunity for taking reasonable steps to prevent injury upon notice of a dangerous condition. (Id. at § 835.4, subd. (b).) The District also asserted that Sedlak's sole remedy was workers' compensation.
All further statutory references are to the Government Code unless otherwise stated.
District filed a motion for summary judgment/summary adjudication on the basis that neither the inspector nor the District owed a duty to Sedlak and both were immune from liability under the governing statutes. Sedlak opposed the motion, arguing that summary judgment was inappropriate because triable issues of fact existed regarding (1) whether the District breached a nondelegable duty owed to Sedlak to shut down the project as provided in OSHA regulations, (2) whether the District negligently retained control over the project, (3) whether the District failed to provide notice of a concealed dangerous condition, and (4) whether District was in a joint enterprise with the other defendants, making District liable for the other defendants' negligence. The trial court granted the District's motion for summary judgment and this appeal followed.
DISCUSSION
Standard of Review
"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Summary judgment is appropriate "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." (Code Civ. Proc., § 437c, subd. (c).) A defendant who moves for summary judgment or summary adjudication bears the initial burden to show that the cause of action has no merit—that is, "that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Id. at subds. (a), (p)(2).)
On appeal, we conduct a de novo review of the record to "determine with respect to each cause of action whether the defendant seeking summary judgment has conclusively negated a necessary element of the plaintiff's case, or has demonstrated that under no hypothesis is there a material issue of fact that requires the process of trial, such that the defendant is entitled to judgment as a matter of law." (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334.) We apply the same procedure used by the trial court: We examine the pleadings to ascertain the elements of the plaintiff's claim; the moving papers to determine whether the defendant has established facts justifying judgment in its favor; and, if the defendant did meet this burden, plaintiff's opposition to decide whether he or she has demonstrated the existence of a triable issue of material fact. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 84-85.)
The District Had No Duty to Sedlak
The District is a public entity. Section 815 states that a "public entity is not liable for an injury" unless otherwise provided by statute. (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)
Section 815.6 states: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." "Whether an enactment creates a mandatory duty is a question of law . . . ." (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499.)
"[A]pplication of section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken. [Citation.] It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion." (Haggis v. City of Los Angeles, supra, 22 Cal.4th at p. 498.)
1. No Duty Arising From OSHA Regulations
Sedlak alleges that the District had a nondelegable duty to him to ensure compliance with OSHA and the regulations adopted by the Department of Labor. "Nondelegable duties may arise when a statute provides specific safeguards or precautions to insure the safety of others." (Padilla v. Pomona College (2008) 166 Cal.App.4th 661, 672.)
However, our Supreme Court has said, "'[t]he mere right to see that work is satisfactorily completed does not impose upon one hiring an independent contractor the duty to assure that the contractor's work is performed in conformity with all safety provisions.'" (Stanford v. City of Ontario (1972) 6 Cal.3d 870, 877.) The Labor Code "'should not be construed as meaning that, where a general contractor or owner of premises does nothing more with respect to the work done by an independent contractor than exercise general supervision and control to bring about its satisfactory completion, it is his responsibility to assure compliance with all applicable safety provisions of the code and regulations issued thereunder, including those relating to the manner in which the independent contractor performs operative details of the work not affecting its ultimate result.'" (Ibid.)
The facts are undisputed that Sedlak was not a District employee nor was he hired by the District to work on the project. Under the District's contract with the Association, the Association had sole responsibility for hiring contractors for the project. (See Stanford v. City of Ontario, supra, 6 Cal.3d at p. 878 ["the City at the most had a right of general supervision or a mere right to see that the work was satisfactorily completed and thus could not, as a matter of law, be found to be an employer"].)
2. The District Is Not Liable Under the Retained Control Doctrine
Sedlak argues that the District was responsible for trench safety under the "retained control doctrine" enunciated in Hooker v. Department of Transportation (2002) 27 Cal.4th 198. His reliance is misplaced. In that case, our Supreme Court held that the "hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite." (Id. at p. 202.) Here, the District did not hire Sedlak--the undisputed evidence is that the Association, pursuant to its contract with the District, hired the contractors for the project.
The trial court based its decision in part on Privette v. Superior Court, supra, 5 Cal.4th 689. In Privette, our Supreme Court held that a contractor's employee injured at the work site could not sue the party hiring the contractor. The employee was limited to his remedies under the Workers' Compensation Law. We do not discuss Privette here because the District did not hire the contractor.
Even if the District could be considered a "hirer," there are no facts showing that the District's "exercise of retained control affirmatively contributed to the employee's injuries." (Hooker v. Department of Transportation, supra, 27 Cal.4th at p. 202.) An "affirmative contribution" occurs when the hirer is "actively involved in, or asserts control over, the manner of performance of the contracted work." (Id. at p. 215.) "'. . . Such an assertion of control occurs, for example, when the [hirer] directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. . . .'" (Ibid.)An "affirmative contribution need not always be in the form of actively directing a contractor or contractor's employee." (Id. at p. 212, fn. 3.) "There will be times when a hirer will be liable for its omissions" such as when "the hirer promises to undertake a particular safety measure, then . . . fail[s] to do so." (Ibid.)However, the "'. . . ". . . general supervisory right to control the work so as to insure its satisfactory completion in accordance with the terms of the contract does not make the hirer of the independent contractor liable for the latter's negligent acts in performing the details of the work. . . "'"(Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430, 442; McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, 788.)
The undisputed evidence establishes that the District's role in the project was to make inspections to ensure that the project was suitable for acceptance into the District's sewer system. To that end, Stallings made inspections twice daily. There is no evidence that he controlled the details of the work. (See, e.g., Zamudio v. City and County of San Francisco (1999) 70 Cal.App.4th 445, 453 [there must be "direct management over the means and methods of the independent contractor's work" and control over the operative details of the work].) "It is not enough that [the employer] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way." (Rest.2d Torts, § 414, com. c, p. 388; see also Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1348 [general contractor not liable where it did not control means or methods of subcontractor's work and general contractor's employee was not at worksite when accident occurred]; and see Michael v. Denbeste Transportation, Inc. (2006) 137 Cal.App.4th 1082, 1097 [where evidence showed general contractor failed to intervene in subcontractor's working methods, such failure was not affirmative contribution]; see also Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267 [summary judgment for general contractor affirmed even though general contractor failed to place protective guardrail which would have prevented subcontractor's employee's injury].)
Sedlak focuses on the District's inspection role and Stallings' alleged authority to stop work for safety violations. The right to inspect work to prevent unsafe conditions does not constitute control over the details or the performance of the work. (Kinney v. CSB Const., Inc. (2001) 87 Cal.App.4th 28, 32; Zamudio v. City and County of San Francisco, supra, 70 Cal.App.4th at p. 453; Lopez v. University Partners (1997) 54 Cal.App.4th 1117, 1126.)
Sedlak relies on Evard v. Southern California Edison (2007) 153 Cal.App.4th 137, where a billboard owner was found to have a nondelegable duty to its contractor's employee who was injured while working on the billboard. That duty was contained in a regulation that made the owner responsible for maintaining the billboard in a safe condition. (Id. at p. 147.) In those circumstances the owner's failure to act could create liability for affirmatively contributing to the plaintiff's injuries. (Ibid.)Whether the owner breached its regulatory duty was a factual issue that withstood the owner's summary judgment motion.
Evard is inapposite. "[I]t is the nature of the regulation itself that determines whether the duties it creates are non-delegable." (Padilla v. Pomona College, supra, 166 Cal.App.4th at pp. 672-673.) In Padilla, the language of the applicable regulation required specific precautions regarding utilities in preparation for demolition work. The regulation did not, however, indicate who must perform these duties. Unlike the regulation in Evard, which required the owner to maintain specific protective conditions on the property at all times, the regulation at issue in Padilla "pertained solely to the preparation of the worksite when specific work was being done; that is, at a time when contractors were necessarily present. Therefore, there is no basis in Regulation 1735(a) [Cal. Code Regs., tit. 8, § 1735, subd. (a)] to conclude the duties could not be delegated." (Id. at p. 673.) The Padilla court further held that even if there had been a nondelegable regulatory duty on the owner or contractor, the breach of that duty would have led to liability of the hirer only if its breach had affirmatively contributed to the injury of a contractor's employee. (Ibid.)
Sedlak's reliance on Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, is similarly misplaced. In that case, an employee of a subcontractor was killed when construction materials that had blown off a bridge struck the employee in the head. The appellate court concluded that the general contractor owed a potential duty of care to the employee of the subcontractor because there was a triable issue of fact concerning whether the general contractor retained authority, to the exclusion of the subcontractor, to close a road within the job site if conditions became too windy and dangerous. (Id. at pp. 1134-1136.)
There is no evidence that the District retained authority to direct work through means and methods different than those selected by Sedlak's employer or that exercise of any retained authority affirmatively contributed to Sedlak's injuries. Moreover, there was nothing in the District's inspection role that prevented Frank's from fully implementing safety precautions.
Sedlak contends he is basing the District's liability on an ordinary premises liability theory. This argument conflicts with the principle that a public entity's liability is purely statutory.
3. No Dangerous Condition of Public Property
Sedlak asserts a duty is imposed on the District by sections 830 and 835. Section 835 provides that a public agency is liable for foreseeable injury caused by a dangerous condition of its property if the condition was caused by a negligent act or omission of an employee or if the public agency had actual or constructive notice of the condition in sufficient time to have taken appropriate precautions. (Mamola v. State of California ex rel. Dept. of Transportation (1979) 94 Cal.App.3d 781, 788.) "Property of a public entity" or "public property" means property "owned or controlled by the public entity." (§ 830, subd. (c); Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 900.) "A public entity is liable for dangerous conditions on property it owns [citation] but not for dangerous conditions on private property." (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 988, fn. omitted.) The scope of government liability under section 835 and the extent of the duties imposed are questions of law. (Mamola, at p. 790.)
The evidence is undisputed the accident occurred on property owned by members of the Association. Nonetheless, Sedlak argues that the trench should be considered the District's property for purposes of imposing liability because the District would eventually accept a dedication of the sewer line into its system of public works. That is not the law. Until an offer of dedication is unconditionally accepted by an agency, no title to the property is passed to the agency. (§ 66477.1; Mikels v. Rager (1991) 232 Cal.App.3d 334, 351.)
The District Has Immunity as a Matter of Law
Even if a statutory duty existed, the District has immunity from liability as provided in the Government Tort Claims Act. Section 818.6 states: "A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property (as defined in subdivision (c) of Section 830), for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety." Section 818.6 grants absolute immunity from liability regardless of whether the duties to abate or initiate abatement proceedings are construed as mandatory or discretionary. (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 411; see also Haggis v. City of Los Angeles, supra, 22 Cal.4th at p. 508 [section 818.6 inspection immunity extended to city's authority to stop work for safety violation].)
"As the legislative comment to section 818.6 explains: 'Because of the extensive nature of the inspection activities of public entities, a public entity would be exposed to the risk of liability for virtually all property defects within its jurisdiction if this immunity were not granted.' In light of such purpose, we believe that section 818.6 must reasonably be construed to insulate a public entity from any liability which might arise as a result of an entity's failure to detect noncompliance with one of the myriad safety regulations contained in local or statewide building codes." (Morris v. County of Marin (1977) 18 Cal.3d 901, 916.)
In Powell v. State of California (1991) 234 Cal.App.3d 910, the court concluded: "The government undertakes licensing and inspection activities to insure public health and safety. The Legislature has apparently concluded that it is better public policy to leave an injured person to his remedy against the person actually causing the injury than it is to impose an additional liability on the government for negligently failing to prevent the injury, presumably because imposition of such liability would expose public entities to virtually unlimited risks and certain bankruptcy. . . . '"[F]ar more persons would suffer if government did not perform [its inspection] functions at all than would be benefited by permitting recovery in those cases where the government is shown to have performed inadequately.(Id. at p. 917, quoting from Morris v. County of Marin, supra, 18 Cal.3d at p. 922 [conc. opn. of Clark, J.].)
This immunity applies to the District and defeats the theories of liability asserted in this case.
The District Cannot be Held Liable Under a Joint Enterprise Theory
Sedlak argues that the project was a joint enterprise between the District and the Association. Sedlak cites no relevant authority for this proposition. As with other facets of public entity law, a public entity may only enter into a joint venture with another public entity and must follow the procedures prescribed by law. (§ 6500 et seq.) Moreover, as stated above, any basis for tort liability against the District must be based on the Tort Claims Act. (See Williams v. Horvath (1976) 16 Cal.3d 834, 838 ["the intent of the [Tort Claims] act is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances"].) There is no statute or other law authorizing a public entity to enter a joint venture with a private party such as the Association. Even were there such a statute, there is no evidence that the District's contract with the Association gave the District joint control over the project. (Kaljian v. Menezes (1995) 36 Cal.App.4th 573, 586 ["'. . . An essential element of a . . . joint venture is the right ofjoint participation in the management and control of the business . . .'"].) To the contrary, the contract between the District and the Association expressly provides that the Association would have control of hiring contractors and ensuring worker safety.
We disagree with Sedlak that the trial court erred in finding portions of his and his expert's declaration inadmissible and denying his request for judicial notice.
The judgment is affirmed. Respondent shall recover costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P.J.
COFFEE, J.
Frederick H. Bysshe, Judge
Superior Court County of Ventura
Richard R. Bredlau & Associates and Richard R. Bredlau for Appellant.
Daley & Heft, LLP, Lee H. Roistacher, Robert H. Quayle IV and Shiva Elihu Stein for Respondent.