May 29, 2020
Wednesday, May 20, 2020, 3:00 p.m.
Courtroom 19 – Hon. Robert S. Boyd for Hon. Gary Nadler
3055 Cleveland Avenue, Santa Rosa
Pursuant to the “Department 19 Scheduling Order Pursuant to the First Amended Omnibus General Order of the Presiding Judge Re Court Operations” posted on the Court’s website on May 5, 2020, all matters set to be heard through May 29, 2020, shall be heard remotely via “Zoom” only. No party or representative of a party may appear personally in the courthouse. CourtCall is not permitted for this calendar.
If the tentative ruling is accepted, no appearance is necessary via Zoom unless otherwise indicated.
D19 – Law & Motion 3 pm Wednesday
Meeting ID:  879-7723-0441
Password: 185652
By Phone (same meeting ID and password as listed for each calendar):
+1 669 900 6833 US (San Jose)
The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify the Court by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, May 19, 2020. Parties in motions for claims of exemption are exempt from this requirement.
PLEASE NOTE: The Court WILL provide a Court Reporter for this calendar. If there are any concerns, please contact the Court at the number provided above.

1.        SCV-264384, Silberg v. Wright

This negligence action arises from an accident that occurred on or about October 31, 2018 when Plaintiff fell while he was pruning Defendant’s trees.  In his complaint, Plaintiff alleges that Defendant had a duty to provide him with a safe workplace, including but not limited to, providing fall protection and other safety equipment.  (Complaint at ¶6.)  Defendant had actual notice that Plaintiff was working without fall protection and other safety equipment at heights that required its use.  (Ibid.)   As a result of Defendant’s failure to provide such protection, Plaintiff fell and suffered serious injuries.  (Ibid.)  The Complaint contends that under the rebuttable presumption in Labor Code section 2750.5, Plaintiff must be considered an “employee” of Defendant and not an “independent contractor” because Plaintiff was performing services for which a license was required, regardless of whether Plaintiff was actually licensed or not.  That Code section states in part that “[t]here is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required…is an employee rather than an independent contractor.”  (Lab. Code § 2750.5.)  Based in part on these allegations, Plaintiff’s Complaint asserts causes of action against Defendant for Negligence and Premises Liability. 

In his motion for summary judgment or summary adjudication, Defendant first contends he is entitled to summary judgment of the entire action because Plaintiff cannot establish the necessary element of “causation.”  (Motion at 5:14-7:18.)  Defendant argues that there is no evidence that “links” any of his alleged acts or omissions to Plaintiff’s fall and resulting injuries and therefore, there is no “causation.”  (Id. at 5:16-18.)  Defendant contends that even if he had a duty to “make the tree trimming safer for plaintiff,” there is no evidence that safer working conditions would have prevented Plaintiff’s fall.  (Id. at 6:10-13.)  Alternatively, Defendant moves for summary adjudication of the following issues:

1.      Plaintiff cannot establish causation, a necessary element in his claims under both his First and Second Causes of Action;

2.      Plaintiff cannot establish negligence against defendant, under either the First Cause of Action (Negligence) or the Second Cause of Action (Premises Liability) as there was nothing defective or dangerous in the workplace or in any tools provided by defendant;
3.      Plaintiff cannot establish negligence, under either the First Cause of Action (Negligence) or the Second Cause of Action (Premises Liability), as there was no duty to warn on the part of defendant;
4.      The Cal-OHSA regulations for tree-trimming businesses do not apply to this defendant under the facts of this case; and
5.      There is no liability as to defendant as plaintiff assumed the risk of his injuries as to both the First Cause of Action (Negligence) and the Second Cause of Action (Premises Liability).
            In his opposition, Plaintiff argues that the summary judgment should be denied because Defendant has failed to meet his burden and has failed to show that Plaintiff cannot prove the element of “causation” or that Defendant has a complete defense in this case.  Additionally, Plaintiff avers that Defendant’s failure to provide required safety equipment, training, and supervision was negligence per se and violated industry standards.  Further, Plaintiff argues that Defendant is “vicariously liable” for Plaintiff’s alleged negligence.  Finally, Plaintiff contends that Defendant’s assertion of the “assumption of the risk” is not a cognizable affirmative defense.
            Defendant filed a timely reply brief and objections to Plaintiff’s experts’ declarations.  However, it does not appear that Defendant filed a response to Plaintiff’s statement of additional material facts in opposition to the motion and therefore, the facts stated therein are accepted as true for the purposes of this motion.  
Defendant’s Objections to Evidence 1-5 are OVERRULED.  Defendant’s motion is DENIED, in its entirety.
1.      General Rules of Summary Judgment and Summary Adjudication 
A defendant moving for summary judgment or summary adjudication has the burden to make a prima facie 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.”  (Code Civ. Proc., § 437c(p)(2); see also, Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  Defendant can make this showing either by presenting evidence that conclusively negates an element of a cause of action or by presenting evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.  (Aguilar, supra, 25 Cal.4th at 854-855.)  Either showing must be supported by evidence, such as affidavits, declarations, admissions, interrogatory answers, depositions, and matters subject to judicial notice.  (Code Civ. Proc. §437c(p)(2).)
In ruling on a motion for summary judgment or summary adjudication, the moving party’s evidence is strictly construed and the opposing party’s evidence is liberally construed; and any doubts as to the propriety of granting the motion are to be resolved in favor of the party opposing the motion.  (D’Amico v Board of Medical Examiners (1974) 11 Cal.3d 1, 21; see also, Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832.)  The Court must consider not only the direct evidence but also any reasonable inferences that can be drawn therefrom.  (Code Civ. Proc. §437c(c); see also, Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1059-1060.)  The presence of reasonable inferences supporting a ruling in favor of the non-moving party is sufficient to defeat summary judgment.  (Hulett v Farmer’s Insurance Exchange (1992) 10 Cal.App.4th 1051, 1059.)  Where the inferences from the evidence raise a triable issue of fact, summary judgment cannot be granted.  (Hepp v Lockheed-Martin Co. (1978) 86 Cal.App.3d 714, 718.)
2.      Defendant is Not Entitled to Summary Judgment or Summary Adjudication on the Issue of “Causation.” 
In this motion, Defendant contends that Plaintiff cannot prove the element of “causation.”  Defendant argues that any potential causation between his failure to provide a safe workplace and Plaintiff’s injuries is too speculative.  Defendant avers that even assuming he owed a duty to provide a safe workplace, “it would only be speculation that such changes would have prevented plaintiff’s fall…”  (Motion at 6:10-13.)  Defendant continues that “Plaintiff may assert, perhaps through an expert Declaration, that there was additional safety devices defendant could have given plaintiff (no doubt there were, as one can always claim a defendant could have done more).  But such an assertion would not rescue the causation element of plaintiff’s case; it would be nothing more than bring (sic) a possibility that, had additional safety devices been offered, this injury would not have occurred.”  (Id. at 7:6-10.)  Defendant’s argument is insufficient for the Court to grant summary judgment in this case. 
To start, the issue of “causation” is ordinarily a question of fact for the jury to decide.  (See, Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546; see also, State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 353 [proximate cause may be decided as a matter of law only when “the facts are such that the only reasonable conclusion is an absence of causation”]; Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 666 [“Causation is generally a question of fact for the jury, unless reasonable minds could not dispute the absence of causation.”].)  Here, Defendant has presented insufficient evidence for the Court to find, as a matter of law, that Plaintiff cannot prove the element of causation. (See, Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466 [“Proximate causation exits where the [hazardous] condition or the violation of statute is a substantial factor in causing the injury; that is, there is reason to believe the absence of the condition or compliance with the statute would have prevented or lessened the likelihood of injury.”], quoting, City of Los Angeles v. Shpegel–Dimsey, Inc. (1988) 198 Cal.App.3d 1009, 1021.)  Because a trier of fact could reasonably find that compliance with the applicable Cal-OSHA regulations would have lessened the likelihood of Plaintiff’s injuries, an event which was reasonably foreseeable in light of the dangerous work being performed, summary judgment is not warranted. 
At minimum, the evidence raises a triable issue of fact whether Defendant’s purported violations of Cal-OSHA regulations was a proximate cause of Plaintiff’s injuries.  Indeed, in the Declaration of Bahram Ravani, Mr. Ravani states that “[b]ased on my review of the above, I have formulated the following opinions: [i]f [Plaintiff] had been provided with safety equipment and supervision in compliance with the requirements, regulations, and industry standards…it is more likely than not that this incident would not have happened.”  (Ravani Dec. at ¶4(a).)  Thus, even assuming Defendant had met his initial burden of making a prima facie showing regarding “causation,” the evidence raises a triable issue of fact precluding summary judgment.
3.      Defendant is Not Entitled to Summary Adjudication of Plaintiff’s Cause of Action for Premises Liability.
“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.”  (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; see also Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; Civ. Code, § 1714(a).)  Specifically with respect to “premises liability,” it is well-established that a landowner is not an insurer of the safety of all persons on his property. (Blodgett v. B.H. Dyas Co. (1935) 4 Cal.2d 511, 512.)  Thus, “[a]n initial and essential element of recovery for premises liability ... is proof a dangerous condition existed.”  (Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566.)  In addition, a plaintiff suing for premises liability has the burden of proving that the owner had actual or constructive knowledge of a dangerous condition in time to correct it, or that the owner was “able by the exercise of ordinary care to discover the condition.”  (Ortega, supra, 26 Cal.4th at 1206.)  Liability is appropriate however, “where the landowner has actual knowledge of the danger, e.g., where he has created the condition.”  (Robison v. Six Flags Theme Park (1998) 64 Cal.App.4th 1294, 1304.)
Here, when Plaintiff’s evidence is liberally construed and doubts as to the propriety of the motion are resolved in Plaintiff’s favor, there is sufficient evidence to find a triable issue of fact as to whether Defendant created a “dangerous condition” on his property by providing Plaintiff with a 24-foot extension ladder to perform tree pruning work, in violation of applicable Cal-OSHA regulations.  (See, Declaration of Gerald R. Fulghum at ¶6(o) and 6-7(b) [“Employers of tree pruning workers must…prohibit workers from working from or leaving a ladder ‘to gain access to a tree unless the employee is tied in or otherwise secured to the tree’ unless they work ‘from a self-supporting ladder…’”] and [“Using a 24-foot extension latter presents a risk that the employee climbing the ladder will fall, and the greater the height, the greater the risk and severity of injury.”]; see also, Declaration of Roy C. Leggett at ¶5(b) [“Using a 24-foot extension ladder presents a risk that the employee climbing the ladder will fall…”].)  Thus, summary adjudication is not appropriate under the facts presented in this motion.   
4.      Defendant is Not Entitled to Summary Adjudication on “Duty to Warn” Issue.
In his motion, Defendant contends that he had no “duty to warn” because “there were no unsafe conditions.”  (Motion at 9:5-6.)  However, as the Court notes above, there is a triable issue of fact whether Defendant created an “unsafe condition” by failing to follow the applicable rules and regulations for tree pruning work.  Thus, this argument fails.
Defendant also argues that there could be no “duty to warn” because the danger was “obvious.”  (Id. at 9:11-14.)  Defendant is correct that “[g]enerally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.”  (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446-447, quoting Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.)  “In that situation, owners and possessors of land are entitled to assume others will ‘perceive the obvious” and take action to avoid the dangerous condition.’”  (Ibid, quoting Haberlin v. Peninsula Celebration Assn. (1957) 156 Cal.App.2d 404, 408.)  However, “[a]n exception to this general rule exists when ‘it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it).’”  (Ibid, quoting Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122.)  “In other words, while the obviousness of the condition and its dangerousness may obviate the landowner’s duty to remedy or warn of the condition in some situations, such obviousness will not negate a duty of care when it is foreseeable that, because of necessity or other circumstances, a person may choose to encounter the condition.”  (Id. at 447.)
In Osborn, a trucker was injured when he fell walking over a demolished concrete ramp, which was the only means of reaching a silo for delivery of materials.  (Osborn, supra, 224 Cal.App.3d at 109-110.)  In finding a disputed factual issue as to premises liability, the court noted that the worker’s “employment required him to pass across this area in order to complete his work.”  (Id. at 123; see also, Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1185 [the court determined there was a practical necessity for the plaintiff to walk across wet pavement because the pavement was the “principal if not sole access way from the street to defendant’s building…”]; Florez v. Groom Development Co. (1959) 53 Cal.2d 347, 358-359 [foreseeable that plaintiff would attempt to walk across a narrow plank because his job duties required him to access a faucet and “[t]he dangerous plank was the only means furnished to reach that faucet.”].)
Here, although the danger of pruning a tree is “obvious,” it should have been “foreseeable” to Defendant that in employing Plaintiff to perform that work and providing all of the pruning tools, including a 24-foot extension ladder, Plaintiff was necessarily required to encounter that danger to perform the job he was hired to do.  Therefore, the fact that the danger was “obvious” does not obviate Defendant’s “duty to warn.”  Accordingly, summary adjudication on this issue is not warranted. 
5.      There is a Question of Fact as to Whether Cal-OSHA Regulations Applied to Defendant’s Employment of Plaintiff in this Case.
In his motion, Defendant argues that the present case falls under the “domestic household services” exception to the Cal-OSHA requirements.  Defendant’s argument is unpersuasive under the facts presented here.  To start, “[t]here is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required…or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor.”  (Lab. Code § 2750.5.)  Here, it is undisputed that the work Plaintiff was performing required a license and it is also undisputed that Plaintiff was unlicensed.  (Bus. & Prof. Code, § 7026.1(a)(4) [license required for tree removal, tree pruning, stump removal, or tree or limb cabling or guying, unless the worker is a gardener who performs incidental pruning of trees less than 15 feet in height.].)  (See, Jones v. Sorenson (2018) 25 Cal.App.5th 933, 942, discussing Rosas v. Dishong (1998) 67 Cal.App.4th 815, 818-823 [the burden was on the homeowner to ensure workers were properly licensed, and because plaintiff had not met the requirements to qualify for workers’ compensation, he was deemed to be an employee for tort purposes.  The policy to compensate injured workers outweighs burden on homeowners to ensure they are licensed, in part because comprehensive personal liability policies contain workers’ compensation coverage.].)  Thus, it is presumed Defendant was an “employer” and as an “employer,” Defendant was required to provide “a place of employment that is safe and healthful” for their employees,” including following all applicable Cal-OSHA regulations.  (Lab. Code §6400, et seq.; see also, Cortez v. Abich (2011) 51 Cal. 4th 285, 288.)  
In their motion, Defendant argues that he should be exempt from these regulations under the “domestic household services” exception.  However, while Defendant is correct that Cal-OSHA regulations are not applicable to “noncommercial domestic household services” performed for a homeowner, Defendant himself concedes that the work at issue here benefitted both his personal residence and his adjacent commercial rental property.  (Motion at 13:7-10, citing, UMF 54.)  Thus, the facts of the present case are distinguishable from those cases that have applied this exception.  For example, in Fernandez v. Lawson (2003) 31 Cal.4th 31, the Supreme Court clarified that the “household domestic service” exception “implies duties that are personal to the homeowner, not those which relate to a commercial or business activity on the homeowner’s part” and in that case, that was is no indication Defendant wanted the tree trimmed for any commercial purpose.  (Fernandez, supra, 31 Cal.4th at 37.) 
By contrast here, it is disputed whether Plaintiff was hired for a “commercial” project or for “noncommercial domestic household services.”  Specifically, at Defendant’s deposition, Defendant was asked “[t]his [] work that you wanted [Plaintiff] to perform, [was] not just for you personally, but [was] for the benefit of your rental property, is that fair to say?”  In response, Defendant answered “Yes.”  (See, Plaintiff’s AUMD No. 2; see also, Declaration of Steven A. Kronenberg at Ex. 1, 50:17-21.)  Thus, the present case is distinguishable from the facts in Fernandez and this is not a case where the services were clearly “noncommercial domestic services.”  Therefore, Defendant is not entitled to summary adjudication on this issue. 
6.      Defendant’s “Assumption of Risk” Defense is Not Applicable.
In his motion, Defendant contends that he has no liability in this case because “falling from a height is an inherent danger in tree pruning” and Plaintiff “assumed the risk of his injuries.”  (Motion at 14:1-18.)  Defendant likens this case to the “firefighter’s rule” which is premised on the unfairness in charging the defendant with a duty of care to prevent injury to the plaintiff arising from the very condition or hazard the defendant has contracted with the plaintiff to confront.  (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 536.)  In addition to firefighters, the doctrine has been extended to police officers, veterinarians and kennel workers, who assume the risk of being bitten by a dog; and to an in-home care giver who is injured while caring for a patient with Alzheimer’s disease.  (Gregory v. Cott (2014) 59 Cal.4th 996, 1002, 1006; see also, Priebe v. Nelson (2006) 39 Cal.4th 1112, 1132.)  However, the facts of the present case are distinguishable and the “assumption of risk” defense is not applicable.
To start and as Plaintiff points out in his opposition, primary assumption of risk has been barred as a defense in suits for negligence by workers against their employers arising from violations of safety statutes and other safety orders.  (Lab. Code §2801; see also, Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 368; Finnegan v. Royal Realty Co. (1950) 35 Cal.2d 409, 430-431; Widman v. Rossmoor Sanitation, Inc. (1971) 19 Cal.App.3d 734, 743.)  The reason for the rule that assumption of risk is not available as a defense in such situations is because where an employee sues for injury caused by violation of a safety statute or safety order, public policy insists that the plaintiff’s acquiescence or knowledge should not insulate the defendant from liability for his violation.  (Ibid.)  “The same policy forbids that the duty which the defendant owes to the plaintiff should be waived by plaintiff’s mere passive acquiescence, even though with knowledge of the infraction of the safety order.”  (Ibid, citing, Finnegan v. Royal Realty Co. (1950) 35 Cal.2d 409, 430.)  Here, because Plaintiff alleges his injuries were caused, at least in part, by Defendant violation of Cal-OSHA safety regulations, Defendant is not entitled to a primary assumption of risk defense based on the facts presented in this motion.
Additionally, although the assumption of risk doctrine can be a defense under certain facts, a defendant nonetheless has a duty not to increase the risk over and above that inherent in an activity.  (Harry v. Ring the Alarm, LLC (2019) 34 Cal.App.5th 749, 758.)  Thus, notwithstanding the assumption of risk, a plaintiff may recover if the defendant unreasonably increased the risks to the plaintiff over and above those inherent in the activity. (See, CACI No. 473.)  Whether a defendant’s conduct increased the risks otherwise inherent in an activity is a question for the jury. (Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1061–1063.)  In Fazio, the plaintiff musician fell off a stage.  Although falling off a stage is an inherent risk of performing on a stage, the defendant failed to present evidence to refute plaintiff’s claim that construction of the stage increased the risk of falling beyond that otherwise inherent in the activity.  In Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 366, a plaintiff who was injured while skiing on a racecourse that was allegedly not properly marked survived summary judgment because it was for the trier of fact to decide whether the defendant increased the risk inherent in skiing.  Here, Plaintiff contends that Defendant increased the risk inherent in tree pruning by failing to comply with the applicable Cal-OSHA regulation.
Accordingly, as explained above, Defendant’s motion for summary judgment or summary adjudication is denied, in its entirety. 

          Plaintiff’s counsel shall submit a written order to the Court that is consistent with this tentative ruling and in compliance with Rule of Court 3.1312.


D19 – Law & Motion 3 pm Wednesday

Meeting ID:  879-7723-0441
Password: 185652

By Phone (same meeting ID and password as listed for each calendar):
+1 669 900 6833 US (San Jose)


*This is the end of the Tentative Rulings* 

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