Opinion
F079239
05-17-2021
JOHN PAINTER et al., Plaintiffs and Appellants, v. SEAN A. AMIN, Defendant and Respondent.
Balamuth Law and Kelly Balamuth, for Plaintiffs and Appellants. McCormick, Barstow, Sheppard, Wayte & Carruth, Todd Baxter and Dana B. Denno, for Defendant and 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 9000704)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. John D. Freeland, Judge. Balamuth Law and Kelly Balamuth, for Plaintiffs and Appellants. McCormick, Barstow, Sheppard, Wayte & Carruth, Todd Baxter and Dana B. Denno, for Defendant and Respondent.
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Plaintiff John J. Painter, an employee of a heating and air conditioning maintenance company, was injured when a roof access ladder pulled loose from the side of a commercial building and he fell to the ground. Painter sued the building owner for premises liability. The owner moved for summary judgment under Code of Civil Procedure section 437c, contending he was protected by the general rule that the hirer of an independent contractor, such as the maintenance company in this case, is not liable to the contractor's employees who are injured on the worksite and covered by workers' compensation insurance. (Privette v. Superior Court (1993) 5 Cal.4th 689, 692 (Privette).) The owner also contended the premises liability exception to this general rule did not apply because he did not actually know, and reasonably could not have known, of the concealed hazardous condition on his premises. (See Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675 (Kinsman).) He asserted a reasonable investigation would not have revealed the ladder had been improperly fastened to the building or was otherwise hazardous and, therefore, he had no constructive knowledge the ladder posed a danger. The trial court agreed and granted the summary judgment motion. Painter appealed.
All unlabeled statutory references are to the Code of Civil Procedure.
Painter contends a triable issue of fact exists about whether the owner had imputed knowledge of the concealed hazard—specifically, the knowledge of the person who improperly attached the ladder to the side of the building. Painter argues the owner's separate statement of undisputed material facts and his supporting evidence failed to address, much less negate, the possibility of imputed knowledge. We agree. The moving papers did not present sufficient facts about the general contractor who handled the building's construction to establish that entity was a genuine independent contractor rather than an employee. Thus, owner's papers did not carry his initial burden as the party moving for summary judgment, which required him to show Painter could not establish the knowledge element of his premises liability cause of action by using imputed knowledge of the concealed hazard.
This appeal illustrates " 'the importance of ... accurately identifying the facts material to the moving party's legal theory' (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 632 (Haney)) and actually including those material facts in the separate statement." (AMCO Ins. Co. v. All Solutions Ins. Agency, LLC (2016) 244 Cal.App.4th 883, 904, fn. 8 [summary judgment reversed].)
We therefore reverse the judgment.
FACTS
In 2001, defendant Sean A. Amin and his brother acquired ownership of a lot located on North Carpenter Road in Modesto for the purpose of developing it. They hired an engineering firm, Morad Engineering, and a general contractor, J.V. Construction, to complete two buildings—a warehouse-style building at the back of the lot and a one-story office building for commercial tenants at the front of the lot.
The brother's role is not described here because it is not material to the outcome of the summary judgment motion. Amin became sole owner of the building in 2007 or 2008.
Morad Engineering prepared the plans for the buildings and did what was necessary to get the building permit approved by the city. No other architectural or engineering firm was involved in the preparation of the plans.
Amin described how J.V. Construction was chosen to be the general contractor by testifying: "I mean, like we do our due diligence to get bids from everybody so, you know, we just got bids and then he was the, I guess - my best recollection, he's the one who got the bid." Amin stated the man's name was "John, Johnny, something like that" and was not able to recall a last name. Amin testified he had lost much of the documentation relating to the construction of the building, but did have some construction loan and tax documents. When asked if he knew the location of J.V. Construction, Amin testified: "Not really. All I know, somewhere in Modesto I assume."
Information available through the website maintained by the Contractors State License Board of California's Department of Consumer Affairs shows Johnny Varda obtained license No. 813890, B - General Building Contractor, in 2002 as a sole owner. Information available through a website maintained by the California Secretary of State shows Johnny Varda filed articles of incorporation for J.V. Construction, Commercial & Residential Builder, Inc.. in May 2014. The articles of incorporation list an address in Modesto. We have not, on our own motion, taken judicial notice of this information because it is provided only as background and is not used in resolving this appeal.
While the buildings were being built, Amin (not his brother) had the most contact with J.V. Construction. Amin explained this by stating: "Because I was the ... general contractor. Not a general contractor but engineer at that time." When asked if he used "any of your engineering skills or knowledge with regard to this building," Amin answered: "No, because I'm not a licensed engineer so I always, you know, I don't want to ... how do you say? What's the word for it? ... exaggerate I guess more than what I'm capable of."
When the buildings were being designed and built, Amin was an engineer, but not licensed. In 2004, after the buildings were completed, Amin passed two examinations and became licensed as a general contractor.
After the commercial building was erected, an exterior ladder was installed on one of its sides to provide roof access. Since installation, the ladder had not been removed or changed. The individual or individuals who installed the ladder and the firm for which they worked are not identified in the summary judgment papers. During oral argument, counsel for Painter appeared to concede that, at least for purposes of summary judgment and this appeal, the individual or individuals who installed the ladder worked for the general contractor. We accept this apparent, nonbinding concession for purposes of this appeal. One consequence of this approach is we do not analyze the possibility that a subcontractor installed the ladder.
In 2017, Painter was employed by Bailey's Heating and Air Conditioning, Inc. (Bailey's Heating & Air), as a heating, ventilation, and air conditioning (HVAC) service technician. In November 2017, Amin retained Bailey's Heating & Air to perform maintenance of an HVAC unit on the roof of the one-story commercial building.
On November 25, 2017, Painter went to Amin's building to perform work as an employee of Bailey's Heating & Air. At that time, Painter had over 25 years of training and experience in the HVAC trade, including the methods for inspecting and safely using ladders affixed to commercial buildings. Painter received all his instructions for the scope of his work at the commercial building from his employer. Bailey's Heating & Air required Painter to use any affixed ladders at the commercial building to gain access to the roof and perform his work on the HVAC unit.
Once Painter arrived at the commercial building, he inspected the building's ladder before using it. As part of that inspection, Painter (1) looked for signs of metal fatigue, (2) looked for signs of rungs that had come loose, (3) looked to see if all bolts and fasteners were in place, and (4) grabbed the ladder and tugged it firmly to determine if it was loose. When Painter ascended the ladder for the first time, he observed that it was not loose, saw no loose bolts, and saw no gaps between the ladder mounts and the building. Painter obtained access to the roof without issue. Painter also successfully used the ladder to descend to the ground. On his way down, he did not observe anything about the condition of the ladder that concerned him.
When Painter used the ladder to ascend to the roof a second time, he again observed nothing about the condition of the ladder that concerned him. To descend the ladder a second time, Painter grabbed both handrails and placed both feet on the top rung. At that point, the ladder came loose without any indication it was coming loose—that is, it detached from the building all at once, almost like an explosion.
Painter suffered serious injuries as a result of the fall. Those injuries are not material to Amin's summary judgment motion, which addresses only liability. Painter filed a workers' compensation claim for the injuries he suffered from the fall and was receiving benefits. The detachment of the ladder affixed to Amin's commercial building was the only hazardous condition Painter encountered causing him injury.
After Painter's fall, Mitch Bailey, the president of Bailey's Heating & Air, went to the building and looked in the four bolt or screw holes left by the ladder in the side of the building. Bailey shown a flashlight into the holes and saw that the ladder had been attached to the three-eighths inch plywood that wrapped the building, not into any structural members.
Painter's contracting and construction expert stated the ladder had four attachment brackets, each accommodating one 3-inch lag screw. Based on the expert's review of Bailey's deposition, he asserted "it is quite likely that the four lag screws that held the ladder to the side of the building were screwed through the Portland cement stucco and into a single sheet of either plywood or OSB sheathing, but not into any structural members or supports."
Amin did not have actual knowledge that the ladder affixed to his building was loose or in a condition that was unsafe for use. Amin was the only person responsible for the maintenance of the ladder and the building. Amin testified that every time he was at the building, which was approximately once a month, he would do a visual inspection and if he saw something was not right, he would correct it. He did not personally inspect the ladder in the five years before the incident because it never occurred to him as there had not been any problem with it. Amin testified he might have used the ladder once or twice in the five years before the incident and multiple contractors had used the ladder during that time. Amin testified he would ask the contractors who went to the roof a general question about whether they saw anything that needed attention and no contractor mentioned a problem with the ladder.
PROCEEDINGS
In January 2018, Painter and his wife filed a complaint against Amin, alleging general negligence, premises liability, and negligence per se. In December 2018, Amin filed a motion for summary judgment. Amin argued the Privette doctrine barred Painter's claims and a reasonable inspection (such as the one performed by Painter before using the ladder) would not have put Amin on notice of a latent dangerous condition. The papers supporting the motion included (1) a memorandum of points and authorities; (2) an attorney's declaration with exhibits, which consisted solely of deposition transcripts; and (3) a separate statement of undisputed material facts enumerating 23 facts. The moving papers did not include a declaration by Amin, which could have filled gaps in his deposition testimony or clarified ambiguities.
Painter filed papers opposing the summary judgment motion. He argued the Privette doctrine did not apply because Amin "caused the injury by concealing a danger that he reasonably should have known about since he caused the danger to exist." Painter also argued Amin negligently furnished unsafe equipment—namely, an improperly installed ladder—that affirmatively contributed to Painter's injuries.
In reply, Amin argued Painter presented no evidence supporting his contention that Amin reasonably could have known of any potentially dangerous condition on the property. Amin also argued California law did not charge him with imputed knowledge of the concealed dangerous condition created by the interior construction of the building.
During the February 2019 hearing on the motion, Painter's attorney asserted the following. Amin had the building built and the ladder installed on the building's side. Although Amin did not personally install the ladder with his own hands, he hired and paid the people who did. The installing contractor used the wrong kind of screws to attach the ladder to the building and placed the screws through very thin pressboard. From the day the ladder was installed, there was a risk of it falling. The contractor "hung the ladder in a dangerous way that affirmatively created a danger."
Painter's attorney also stated: "This is a case where the owner's people, as instruments of his will, created a dangerous condition on the property." The attorney argued these circumstances were distinguishable from cases where construction professionals are hired to work on an existing building with a concealed problem and either fail to notice the problem or fail to tell the owner about it. This argument may imply that when a construction professional hired by the owner creates a hazard to which third persons necessarily will be exposed, the knowledge of the professional should be imputed to the owner.
Painter's attorney also noted, for purposes of the summary judgment motion, Amin did not claim (1) the condition of the ladder was not dangerous or (2) the contractors he hired did not create the danger. The attorney defined the scope of inquiry further by stating the only element of Painter's premises liability claim at issue was whether Amin knew, or should have known, of the preexisting, concealed dangerous condition. He referred to Hatfield v. Levy Bros. (1941) 18 Cal.2d 798 (Hatfield) and CACI No. 1012, stating "that where a dangerous condition is created by a defendant or his employee, ... the jury must conclude that he knew of the condition."
Defense counsel's argument presented a different view of CACI No. 1012 and the cases addressing imputed knowledge. He stated the law of agency holds an employee authorized to act for an employer is the employer's agent. In contrast, independent contractors, such as construction professionals, are situated differently and are not agents of the hirer. Based on this distinction, defense counsel argued the knowledge of an employee is imputed to the employer and the knowledge of independent contractors about every nut, bolt or screw used inside a building's interior, and the knowledge of the risk associated with each fastener used, should not be imputed to the property owner. He asserted that imputing such knowledge would create a much higher standard of responsibility than the law currently imposes on property owners.
At the end of the hearing, the trial court confirmed its tentative ruling to grant the summary judgment motion. The court rejected Painter's imputed knowledge theory. The court also stated it was unable to locate any evidence that would have put Amin on notice of the concealed danger.
In March 2019, the trial court filed an order granting the motion for summary judgment. The order stated Painter had failed to demonstrate facts establishing Amin had actual or constructive knowledge of the alleged latent defect on the premises and the law did not support Painter's theory that notice is imputed to Amin where the alleged defect is part of the original design or construction contracted for by Amin. To support its conclusion about imputed knowledge, the court cited RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089 (RSB). Based on these determinations, the court concluded the Privette doctrine barred Painter's claim against Amin. Though labeled an order in its caption, the document stated judgment was entered for Amin and Painter would take nothing by way of this complaint. Consequently, we treat it as an appealable final judgment. Painter filed a timely appeal.
DISCUSSION
I. Standard of Review
A 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." (§ 437c, subd. (c).) When reviewing an order granting summary judgment, appellate courts "independently review the record and apply the same rules and standards as the trial court." (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 121.) The rules and standards to be applied are incorporated in the three-step analysis this court described in Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1602 (Brantley).
II. Step One: Framing the Issues
The first step in analyzing a motion for summary judgment is to "identify the issues framed by the pleadings," because the motion must show "there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading." (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064; see Brantley, supra, 42 Cal.App.4th at p. 1602.) This step of the analysis is not contested in this appeal.
Painter's complaint labeled his causes of action as general negligence, premises liability and negligence per se. Amin's motion for summary judgment asserts each cause of action is "barred under the exclusive remedy doctrine as a matter of law" and cites Privette and its progeny as the legal authority establishing this doctrine. Accordingly, this is not a case where the plaintiff contends the moving papers failed to address a legal theory set forth in the complaint and, thus, failed to accurately complete the first step. (See generally, Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 421 [liberal approach for determining the theories on which relief is sought].)
III. Step Two: The Moving Party's Showing
A. Moving Party's Burden
Step two of the summary judgment analysis requires the reviewing court to determine whether the moving party's papers satisfied its initial burden and justified a judgment in its favor. (Brantley, supra, 42 Cal.App.4th at p. 1602.) Stated in terms of the summary judgment statute, Amin has the "burden of showing [each] cause of action has no merit." (§ 437c, subd. (p)(2).) There are two ways a moving party defendant can establish the lack of merit—showing "that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action." (Ibid.) To satisfy this burden, the defendant must "make a prima facie showing of the nonexistence of any triable issue of material fact" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar)) as to an essential element of the cause of action or a complete defense.
The examination of the moving party's showing involves two separate inquiries. First, the court considers whether the facts listed in the moving party's separate statement, "standing alone and if true, legally require a favorable ruling on the legal issue presented." (Zebrowski, The Summary Adjudication Pyramid (Nov. 1989) 12 L.A. Law. 28, 29.) Second, the court examines the evidence referenced in the moving party's separate statement to determine whether that evidence legally requires a finding of the fact asserted. (Id. at p. 30.) These two examinations relating to the moving party's initial burden are reflected in this court's statement that "[a] motion for summary judgment ... will be defective if the moving party fails to (1) accurately identify the facts that are material to the legal theory upon which the motion is based; (2) actually include those material facts in the separate statement; and (3) reference evidence establishing, either directly or by inference, each material fact the moving party claims is undisputed." (Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 617.)
Former Justice John Zebrowski wrote this article while serving as a judge for the Los Angeles County Superior Court.
B. Privette Doctrine
Here, the parties dispute whether the Privette doctrine is a complete defense to Painter's causes of action. Accordingly, to identify the facts that are material to the application of the doctrine to Painter's claims, we review the case law establishing the Privette doctrine and its exceptions.
1. Rule of Hirer Nonliability
In Privette, supra, 5 Cal.4th 689, our Supreme Court concluded a person who hires an independent contractor to do dangerous work is not liable when an employee of the independent contractor suffers a work-related injury. (Id. at p. 692.) "Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work." (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594.)
The legal concept used to explain the Privette doctrine is delegation of duty. In the eyes of the law, the hirer of the independent contractor is viewed as having delegated to the contractor "the duty to provide contractor's employees with a safe working environment." (Kinsman, supra, 37 Cal.4th at p. 671.) The rationale for treating the duty as delegated is the availability of workers' compensation for the employee's injury and the fact such coverage usually provides the exclusive remedy for employees who are injured on the job. (Ibid.; see Lab. Code, §§ 3600-3602.) Under California statute, an employer that provides workers' compensation coverage has no further liability for workplace injuries to an employee. (Privette, supra, 5 Cal.4th at p. 698; see Lab. Code, § 3706 [employer that fails to secure payment of workers' compensation, loses immunity of exclusive remedy rule].) If an independent contractor's employee was allowed to recover from the contractor's hirer, who did not cause the injury, the hirer unfairly would be subject to greater liability than faced by the contractor whose negligence caused the injury. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 204 (Hooker).) Extending the exclusive remedy rule of workers' compensation to the hirer is justified by some courts on the ground the hirer of the independent contractor indirectly pays the cost of the workers' compensation coverage. (Privette, supra, at p. 699.)
2. Exceptions
The rule of hirer nonliability set forth in Privette and its progeny is subject to exceptions. For instance, a hirer of an independent contractor is liable for an injury "to an employee of [the] contractor insofar as [the] hirer's exercise of retained control [over safety conditions at the worksite] affirmatively contributed to the employee's injuries." (Hooker, supra, 27 Cal.4th at p. 202.) The required affirmative contribution exists when the hirer (1) actively directs a contractor or contractor's employee or (2) promises to undertake a particular safety measure and fails to do so. (Id. at p. 212, fn. 3.) Under this exception, a hirer of an independent contractor may be liable for providing unsafe equipment (an affirmative act) that contributes to the injury of an employee of the contractor. (McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 225.)
This appeal concerns the premises liability exception to Privette's rule of nonliability. (See Johnson v. The Raytheon Co., Inc. (2019) 33 Cal.App.5th 617, 629 (Johnson); Gravelin v. Satterfield (2011) 200 Cal.App.4th 1209, 1216.) Under the exception, a landowner who hires an independent contractor is liable for an injury to the contractor's employee, even when the landowner does not retain control over the work, "if: (1) [the landowner] knows or reasonably should know of a concealed, preexisting hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fail[ed] to warn the contractor" about the condition. (Kinsman, supra, 37 Cal.4th at p. 675.)
The critical element for purposes of Amin's summary judgment motion was identified by Painter's counsel during the hearing before the trial court, when he stated: "The only element at issue here is did the defendant know or should he have known of the pre-existing, unsafe, concealed condition and the settled law on that is found in CACI 1012, that where a dangerous condition is created by a defendant or his employee, that the jury must conclude that he knew of the condition." CACI No. 1012 is titled "Knowledge of Employee Imputed to Owner." Consequently, we consider the legal principles that define when the knowledge of one person is imputed to another.
3. Imputed Knowledge: Basic Definitions
Knowledge means an awareness or understanding of a fact or circumstance. (Black's Law Dict. (8th ed. 2004) p. 888.) Imputed knowledge is defined as "[k]knowledge attributed [by law] to a given person, esp. because of the person's legal responsibility for another's conduct <the principal's imputed knowledge of its agent's dealings>." (Ibid.) Constructive knowledge is defined as "[k]knowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person <the court held that the partners had constructive knowledge of the partnership agreement even though none of them had read it>." (Ibid.; see Civ. Code, § 18 [constructive notice "is imputed by law"].) Under these definitions, imputed knowledge—that is, knowledge attributed by law—is the broader term and constructive knowledge is a specific type of imputed knowledge limited to that which a person would have discovered through the exercise of reasonable care or diligence.
For purposes of this opinion, we divide knowledge into three categories—actual knowledge, constructive knowledge and imputed knowledge. While constructive knowledge ordinarily is a type of imputed knowledge, we adopt mutually exclusive definitions of imputed and constructive knowledge. Thus, we use the term "imputed knowledge" to mean knowledge attributed by law, except for the knowledge a person would have obtained through the exercise of reasonable care or diligence.
The legal dictionary's general definition of constructive knowledge is consistent with the definition of constructive notice or knowledge used to describe premises liability. "Typically, to charge an individual with constructive notice, he must have, 'actual notice of facts or circumstances which are sufficient to put a prudent person on inquiry as to the existence of the fact with respect to which he is charged with constructive notice.' [Citation.] Therefore, a landowner cannot be charged with constructive notice without a showing of some overt feature surrounding the dangerous condition, which would notify the landowner of its existence." (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1209; see Civ. Code, § 19 [constructive notice defined].)
4. Imputed Knowledge: Form Jury Instructions
With the foregoing definitions in mind, we consider CACI No. 1012, which both parties have cited to support their arguments about the knowledge imputed to Amin. As context, we first quote the jury instruction intended for use if there is an issue concerning the owner's constructive knowledge of a dangerous condition:
"In determining whether [defendant] should have known of the condition that created the risk of harm, you must decide whether, under all the circumstances, the condition was of such a nature and existed long
enough that [defendant] had sufficient time to discover it and, using reasonable care: [¶] 1. Repair the condition; or [¶] 2. Protect against harm from the condition; or [¶] 3. Adequately warn of the condition.
"[Defendant] must make reasonable inspections of the property to discover unsafe conditions. If an inspection was not made within a reasonable time before the accident, this may show that the condition existed long enough so that [a property] owner using reasonable care would have discovered it." (CACI No. 1011.)
In comparison, CACI No. 1012 states:
"If you find that the condition causing the risk of harm was created by [defendant] or [his] employee acting within the scope of [his or her] employment, then you must conclude that [defendant] knew of this condition."
The Sources and Authority for CACI No. 1012 quote Hatfield as follows: "Where the dangerous or defective condition of the property which causes the injury has been created by reason of the negligence of the owner of the property or his employee acting within the scope of the employment, the owner of the property cannot be permitted to assert that he had no notice or knowledge of the defective or dangerous condition in an action by an invitee for injuries suffered by reason of the dangerous condition. Under such circumstances knowledge thereof is imputed to him." (Hatfield, supra, 18 Cal.2d at p. 806.) The Supreme Court's next sentence is useful for determining the breadth of the foregoing principle: "Where the dangerous condition is brought about by ... third persons, ... then to impose liability the owner 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. (Ibid., italics added.)
In this appeal, the issue of imputed knowledge could be restated in the language of Hatfield as whether the person who improperly attached the ladder to Amin's building should be treated as an "employee acting within the scope of the employment" or, alternatively, as a "third person." (Hatfield, supra, 18 Cal.2d at p. 806.) The knowledge of the employee is imputed to the owner and the knowledge of such a "third person" is not. Our description of the rules for imputing knowledge does not end here, however, because there are other situations in which the knowledge of one person is imputed to another. To provide a fuller description, we turn to the law of agency.
5. Imputed Knowledge: Agent to Principal
"An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency." (Civ. Code, § 2295, italics added.) "An agent for a particular act or transaction is called a special agent. All others are general agents." (Civ. Code, § 2297.) "An agency relationship 'may be implied based on conduct and circumstances.' " (Borders Online v. State Bd. of Equalization (2005) 129 Cal.App.4th 1179, 1189.)
Under agency law, an "agent acting within the scope of his authority, is, as to the matters existing therein during the course of the agency, the principal himself." (Columbia Pictures Corp. v. DeToth (1948) 87 Cal.App.2d 620, 630.) A principal's imputed knowledge is logically deduced from this general principle. Also, the rule of imputing an agency's knowledge is set forth in statute. "As against a principal, both principal and agent are deemed to have notice of whatever either has notice of, and ought, in good faith and the exercise of ordinary care and diligence, to communicate to the other." (Civ. Code, § 2332.) The fact the knowledge acquired by the agent was not actually communicated to the principal does not prevent operation of this rule of law. (DeToth, supra, at p. 630.) "[I]t is a well established rule in California that the principal is chargeable with, and is bound by the knowledge of, or notice to, his agent, received while the agent is acting within the scope of his authority, and which is in reference to a matter over which his authority extends." (Trane Co. v. Gilbert (1968) 267 Cal.App.2d 720, 727, italics added (Trane).) Restating this rule in the negative, knowledge of the agent is not knowledge of the principal as to matters not within the scope of the authority conferred on the agent by the principal. (Redman v. Walters (1979) 88 Cal.App.3d 448, 454.)
" 'The existence of an agency relationship is usually a question of fact, unless the evidence is susceptible of but a single inference.' " (Zimmerman v. Superior Court (2013) 220 Cal.App.4th 389, 401.) "[W]hether an agency relationship has been created or exists is determined by the relation of the parties as they in fact exist by agreement or acts [citation] and the primary right of control is particularly persuasive. [Citations.] Other factors may be considered to determine if an independent contractor is acting as an agent, including: whether the 'principal' and 'agent' are engaged in distinct occupations; the skill required to perform the 'agent's' work; whether the 'principal' or 'agent' supplies the workplace and tools; the length of time for completion; whether the work is part of the 'principal's' regular business; and whether the parties intended to create an agent/principal relationship." (APSB Bancorp v. Thornton Grant (1994) 26 Cal.App.4th 926, 932-933.)
The foregoing rules addressing the existence of an agency relationship demonstrate it is possible for a person or entity labeled an independent contractor to also act as an agent. The rules also identify an important limitation on imputing knowledge of an agent to a principal—that is, the agent must have gained the knowledge while acting within the scope of his or her authority in dealings with third persons.
Judicial decisions address how this limitation applies to construction professionals and the persons who employ them in situations where the professional has dual roles—one that involves an agency relationship and one that does not. For instance, "[a]s a general rule, an architect, as far as the preparation of plans and specifications is concerned, acts as an independent contractor; but so far as the performance of his supervisory functions with respect to a building under construction is concerned, he ordinarily acts as an agent and representative of the person for whom the work is being done." (Trane, supra, 267 Cal.App.2d at p. 726.) Knowledge obtained by the architect while acting in the role of agent, which by definition involves "dealings with third persons" (Civ. Code, § 2295), is imputed to the principal, while knowledge obtained in preparing the plans and specifications is not imputed. (Trane, supra, 267 Cal.App.2d at pp. 726-727.)
In RSB, supra, 15 Cal.App.5th 1089, the court applied the foregoing principle governing architects and also stated: "The same is true for the other construction professionals employed by defendants, a general contractor and a structural engineer. Because the professionals' knowledge of the building's structure would have been acquired while acting in this role, rather than while acting as defendants' agents, it is not imputed to defendants." (Id. at p. 1101.) In RSB, the purchaser of a vineyard and building sued the seller because of structural and other defects in the building and alleged causes of action for breach of contract, intentional and negligent misrepresentation, fraud, and negligence. (Id. at p. 1093.) The sellers moved for summary judgment, contending they had no knowledge of the defects. (Ibid.) The trial court granted the motion and rejected the purchaser's contention that knowledge of the defects should be imputed to the sellers from the presumed knowledge of their construction professionals. (Id. at p. 1095.) The appellate court upheld the summary judgment, stating: "[O]n the record before us, any information gained by [the sellers'] construction professionals about the structure of the residence would have been gained while they were acting in the role of designers and builders, not as agents. Accordingly, any knowledge of the construction professionals regarding the defects in the structure was not imputed to defendants." (Id. at p. 1102.)
In concluding our overview of the Privette doctrine and imputed knowledge, the last rule of agency law we consider is the adverse interest exception. (See Uecker v. Zentil (2016) 244 Cal.App.4th 789, 798 [adverse interest exception to normal rules imputing an agent's knowledge to the principal].) "[T]he rule imputing to a principal knowledge acquired by the agent ... is inapplicable where the facts are such that the presumption of communication does not exist as where the agent, in the particular transaction, is acting in an interest adverse to that of the principal. In such transactions, the attitude of the agent is one of hostility to the principal, and it would thus be absurd to suppose that the agent would communicate any facts within his or her private knowledge affecting the subject of his or her dealing unless it would be the agent's duty to do so if he or she were wholly unconnected from the principal." (2B Cal.Jur.3d (2015) Agency, § 182, pp. 385-386, fns. omitted; see Center v. Hampton Affiliates, Inc. (1985) 66 N.Y.2d 782, 784 [under New York law, the adverse interest exception applies when the agent has totally abandoned his principal's interests and is acting entirely for his own or another's purposes; it cannot be invoked merely because the agent has a conflict of interest or is not acting primarily for the principal].)
6. Identification of the Material Facts
Based on the foregoing rules governing imputed knowledge, we conclude California law will not attribute the knowledge of the person who improperly attached the ladder to the building to Amin if that person was a construction professional acting as a genuine independent contractor. Alternatively, California law will attribute the knowledge of the person who attached the ladder to Amin if that person was an employee rather than an independent contractor. (Hatfield, supra, 18 Cal.2d at p. 806.)
In the context of this tort action asserting a premises liability claim, we use the term "genuine independent contractor" to mean someone who qualifies as an independent contractor (as opposed to an employee) under the common law test described below.
Consequently, the facts material to determining Amin's imputed knowledge are described in the legal test used to distinguish employees from independent contractors. One standard for distinguishing between employees and genuine independent contractors under California law is set forth in our Supreme Court's seminal decision in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello). (See Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, 915, 929 (Dynamex).) The present case is a personal injury tort action and, therefore, we turn to the common law test that is used in for tort cases involving vicarious liability. (See id. at p. 927.)
Under the common law, the primary 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.) "While the extent of the hirer's right to control the work is the foremost consideration in assessing whether a common law employer-employee relationship exists, our precedents also recognize a range of secondary indicia drawn from the Second and Third Restatements of Agency that may in a given case evince an employment relationship." (Id. at p. 532.) Those indicia include "(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee." (Borello, supra, 48 Cal.3d at p. 351; see CACI No. 3704 [existence of employee status]; Rest.2d Agency, § 220 [definition of servant].) These factors are intertwined, and their weight often depends on particular combinations. (Borello, supra, at p. 351.)
Painter's appellate briefs argue Amin is liable for the injuries caused by the dangerous ladder because it was hung as part of Amin's commercial enterprise. This theory of liability is based on the doctrine of respondeat superior, which holds an employer vicariously liable for an employee's torts committed within the scope of employment. (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967; Moreno v. Visser Ranch, Inc. (2018) 30 Cal.App.5th 568, 575-576 (Moreno).) As explained in Moreno, the risks-of-the-enterprise theory is the foundation for California's test for whether an employee's conduct was within the scope of employment—an issue different from whether an employment relationship exists in the first place. Application of the scope of employment test occurs after the person committing the tort has been identified as an employee. Consequently, we conclude California's scope of employment test does not replace the common law test for the existence of an employment relationship discussed in the preceding paragraph.
C. Analysis of Amin's Showing
1. Amin's Separate Statement of Material Facts
Whether Amin carried his burden as moving party is determined by (1) reviewing the facts set forth in his separate statement of undisputed material facts and (2) the evidence presented to support those facts. (See pt. III.A., ante.) Painter contends Amin failed to meet his initial burden and specifically asserts Amin's separate statement "includes zero facts about the contractor who hung the exterior access ladder."
Painter's assertion about the contents of Amin's separate statement is accurate. The separate statement does not identify who designed the building, who performed the construction, who chose the location for the access ladder, or who attached the ladder to the building. As a result, the separate statement does not address Amin's relationship with any of the foregoing persons or entities. Consequently, it provides no facts relating to (1) Amin's right to control the person who chose where the ladder would be located or the person who attached the ladder or (2) the secondary factors in the common law test for determining whether that person (or persons) was an employee or genuine independent contractor.
Stated in broader terms, Amin did not "(1) accurately identify the facts that are material to the legal theory upon which the motion is based [and] (2) actually include those material facts in the separate statement." (Pierson v. Helmerich & Payne Internat. Drilling Co., supra, 4 Cal.App.5th at p. 617.) The legal theory pursued in Amin's motion was that Painter could not establish the knowledge element essential to his premises liability cause of action. (See § 437c, subd. (p)(2) [defendant carries burden by showing "that one or more elements of the cause of action ... cannot be established"].) The three ways Painter could establish the knowledge element are (1) actual knowledge, (2) constructive knowledge, or (3) imputed knowledge from the person who attached the ladder. The 23 facts enumerated in Amin's separate statement directly address actual knowledge, indirectly address constructive knowledge, and make no attempt to eliminate the possibility of imputed knowledge. Consequently, the facts set forth in the separate statement, standing alone and accepted as true, do not demonstrate Amin lacked imputed knowledge of the hazardous condition.
2. Amin's Other Papers
We also consider whether Amin's subsequently filed papers address his separate statement's omissions. In particular, Amin's response to Painter's undisputed material fact No. 26 asserts Amin "did not personally build the buildings" and he "hired independent contractors Morad Engineering and J.V. Construction to design and construct the premises." While his attorney's use of the label "independent contractor" in the response was useful in communicating Amin's legal theory, the label itself does not present facts which, standing alone and accepted as true, demonstrate those businesses qualified as genuine independent contractors. (See Dynamex, supra, 4 Cal.5th at p. 962 [legal status is not determined by labeling the worker an independent contractor or executing a contract designating the worker an independent contractor].) In short, the label is not a substitute for setting forth the facts relevant to the application of the common law test.
3. Amin's Evidence
The defects in Amin's separate statement are not necessarily dispositive. We recognize the principle that a court is not required to deny a motion for summary judgment simply because the moving party fails to include a material fact in its separate statement, so long as the opposing party was fully advised of the issues to be addressed and was given adequate notice of what facts it had to rebut in order to defeat the summary judgment motion. (Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1481, citing San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) Accordingly, we look beyond the separate statement and consider whether Amin's evidence establishes the material facts omitted from the separate statement.
The only evidence presented by Amin about his relationship with the persons who designed and constructed the building was his deposition testimony. Unlike the moving party defendants in RSB, he did not submit a declaration. (See RSB, supra, 15 Cal.App.5th at p. 1094.)
On the subject of design, Amin answered "yes" when asked during his deposition: "[D]id you hire architects or any other professionals to help design the building?" (Italics added.) What "help design" meant was not explained in the deposition. Amin also testified Morad Engineering did the plans for the building, got the permit approved by the city, and no other architectural or engineering firm worked on the plans. Amin's testimony did not address (1) the level of control he had over the design of the building in general; (2) his control over the design and location of the access ladder in particular; or (3) the other factors in the common law test for distinguishing between an employee and independent contractor. As a practical matter, Amin is impliedly contending we should infer Morad Engineering was a genuine independent contractor based on his deposition testimony and his attorney's use of the label independent contractor. We reject this implied contention because it contradicts the requirement that Amin, as the moving party defendant, "make a prima facie showing of the nonexistence of any triable issue of material fact" relating to imputed knowledge. (Aguilar, supra, 25 Cal.4th 826 at p. 850; see generally, Talley v. County of Fresno (2020) 51 Cal.App.5th 1060, 1070 [evidence presented by the party moving for summary judgment is strictly construed].)
Amin also was asked during his deposition if he "retain[ed] a general contractor to help with the building?" (Italics added.) He answered "Yeah" and identified the contractor as J.V. Construction. What "help with the building" meant was not explained. Amin was not able to provide the last name of the man who operated J.V. Construction or its address, though he assumed it was located somewhere in Modesto. Amin's testimony did not address (1) his right to control J.V. Construction, (2) the amount of control actually exercised, (3) whether he made any decision regarding the location of the access ladder or the manner of its attachment, or (4) the other factors in the common law test for determining whether J.V. Construction was an employee or a genuine independent contractor. Furthermore, Amin's testimony did not identify the individual who attached the access ladder to the building and, thus, provided no details about his relationship with that unidentified person.
Based on our review of the evidence presented by Amin in support of his motion for summary judgment, we conclude that evidence does not cure the omission of material facts from his separate statement. As a result, Amin failed to carry his initial burden as the moving party, and we do not reach the third step of the summary judgment analysis.
In reaching this conclusion, we have considered whether Amin could carry his initial burden simply by addressing his actual knowledge and, thus, shift the burden to Painter to show a triable issue of material fact relating to constructive knowledge or imputed knowledge. Under this shifting-burden approach, defendant would need to show that only one aspect of the knowledge element of the premises liability claim "cannot be established" (§ 437c, subd. (p)(2)) to demonstrate the claim has no merit for purposes of the summary judgment statute. We reject this approach for a tort action asserting a premises liability claim. Instead, we interpret the statute to mean a defendant carries his or her burden by showing "that [the knowledge] element[] of a cause of action ... cannot be established" by presenting facts addressing the three types of knowledge.
In comparison, a burden-shifting approach is used in employment discrimination cases. The shifting burdens affect proof at trial as well as an employer's initial burden when pursuing a summary judgment motion. (See Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1003; see also, McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802-804 [burden shifting framework for proof at trial].)
The analysis and holding in RSB does not compel a different result. The plaintiff in RSB did not assert a premises liability claim. (See RSB, supra, 15 Cal.App.5th at p. 1093 [plaintiff-purchaser alleged causes of action for breach of contract, intentional misrepresentation, negligent misrepresentation, fraud and negligence].) Therefore, that case does not define how the summary judgment statute applies to the knowledge element of a premises liability cause of action. (See Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1134 [cases are not authority for propositions not considered or decided]; Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)
DISPOSITION
The judgment is reversed and the matter remanded for further proceedings. Plaintiff shall recover his costs on appeal.
SMITH, Acting P.J. WE CONCUR: SNAUFFER, J. DE SANTOS, J.