Opinion
B308237
08-29-2023
JOSE M. GARCIA, JR., et al., Plaintiffs and Appellants, v. OWENS-BROCKWAY GLASS CONTAINER, INC., et al., Defendants and Respondents
Joseph Farzam Law Firm, Joseph F. Farzam; Law Office of Ted W. Pelletier and Ted W. Pelletier for Plaintiffs and Appellants. Riley Safer Holmes &Cancila, Kathleen A. Stimeling and Nick Sherman for Defendant and Respondent Owens-Brockway Glass Container, Inc. Bordin Semmer, Joshua D. Bordin-Wosk and Bryan S. Aghakhani for Defendant and Respondent USA Waste Management of California, Inc.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC610610, Barbara A. Meiers, Judge. Affirmed.
Joseph Farzam Law Firm, Joseph F. Farzam; Law Office of Ted W. Pelletier and Ted W. Pelletier for Plaintiffs and Appellants.
Riley Safer Holmes &Cancila, Kathleen A. Stimeling and Nick Sherman for Defendant and Respondent Owens-Brockway Glass Container, Inc.
Bordin Semmer, Joshua D. Bordin-Wosk and Bryan S. Aghakhani for Defendant and Respondent USA Waste Management of California, Inc.
CHAVEZ, J.
Jose Manuel Garcia, Jr., and Jose Perez (appellants) appeal from a judgment entered after the trial court granted summary judgment in favor of Owens-Brockway Glass Container, Inc. (Owens) and USA Waste Management of California, Inc. doing business as Enviroserv (Enviroserv) (collectively respondents) on appellants' claims of negligence against respondents. The trial court granted summary judgment in favor of respondents based on application of the Privette doctrine. We find the doctrine applicable in this case and therefore affirm the judgment.
The Privette doctrine states that when "injuries resulting from an independent contractor's performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers' compensation coverage, . . . [there is] no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries." (Privette v. Superior Court (1993) 5 Cal.4th 689, 702 (Privette).)
FACTUAL BACKGROUND
The parties
Owens is an international manufacturer of glass containers. It manufactures glass containers at its facility in Vernon, California. In January 2016, Owens hired Enviroserv, an independent contractor, to vacuum built-up dust material from a reaction chamber.
Enviroserv is a waste-removal company that focuses on environmental technology for disposing of hazardous and non-hazardous industrial waste. Owens had previously hired Enviroserv to clean the reaction chamber. Enviroserv then subcontracted with appellants' employer, SB Industrial Vacuum Services, Inc. (SB Vacuum). SB Vacuum is a subcontractor that provides cleanup services. SB Vacuum, through Enviroserv, had worked at Owens for many years, and cleaned the reaction chamber on numerous prior occasions.
Owens claims that it had a written agreement with Enviroserv that required Enviroserv to provide all labor, materials, tools, equipment, and supervision, and to subcontract tasks as appropriate for the performance of the work. However, Owens fails to provide a citation to evidence of this agreement. Instead, Owens cites its Memorandum of Points and Authorities in support of Motion for Summary Judgment and its Separate Statement of Undisputed Material Facts. Appellants do not contest the existence of the contract or its content.
Appellants were employed by SB Vacuum, and it was SB Vacuum who selected appellants to perform the cleaning of Owens' reaction chamber. Training of appellants was conducted by SB Vacuum. The vacuums used by appellants during the cleanup were owned and supplied by SB Vacuum, which also provided the tools and equipment for the cleanup work. Personal protective equipment was provided to appellants by SB Vacuum. However, during the cleaning appellants did not wear their heat protective equipment.
The clean-up work
Owens' glass-making process produces "flue gas" that contains dangerous "sulfur compounds." To remove the sulfur before it is emitted into the atmosphere, particles of a mineral "Trona" are injected into the flue gas in the reaction chamber. The Trona particles react with the unwanted sulfur compounds, which can then be removed. The material is hot and flows through the chamber at 500 to 1000 degrees Fahrenheit.
Over time, excess Trona particles build up in the reaction chamber and must be cleaned out. Owens does not perform the cleaning itself, but hires experts to do the work. The reaction chamber is a permit-required confined space and entering the space requires special training. Because of this, Owens contracted with Enviroserv, which in turn contracted with SB Vacuum, to perform this work for over a decade. The job involved removal of about 10 tons of hot Trona.
The reaction chamber is approximately 50 feet long and 11 feet tall and is divided into an upper and lower section. Three access doors exist on each section. From above the reaction chamber, a horizontal portion of ductwork (called the horizontal) connects to a vertical outlet chute (called the vertical) that leads the flue gas out of the reaction chamber. The reaction chamber is purely ductwork. The reaction chamber is located in an isolated area of the plant that is removed from the day-to-day plant operations and is not normally accessed by Owens employees.
The system uses sonic horns, which are used solely while the reaction chamber is in use. The vibration from the sonic horns loosens any dust that gets stuck to the sides of the reaction chamber thereby allowing gas to continue flowing through the system. The sonic horns have no purpose or use when the system is on bypass, and they are not used to prepare the reaction chamber for cleaning. There are other horns and alarms that sound throughout the day at the Vernon facility that are unrelated to the system or cleaning process.
The day before the incident
On January 21, 2016, the day before the incident, Owens employee Deyon Marcello prepared the reaction chamber for the following day's cleaning as had been done for the past 10 years. Marcello set the system to bypass the reaction chamber so that no flue gas or Trona would flow through the reaction chamber, and he opened the access doors to the reaction chamber to allow the materials inside to cool.
In addition to setting the system to bypass, Marcello locked-out and tagged-out the control panel for the system to prevent the bypass from being moved. This also prevented the system's sonic horns from sounding during the cleaning. Marcello then locked-out and tagged-out the separate controls for the sonic horns as a secondary measure.
Appellants claim they heard sounds like sonic horns several times that day, including just before the Trona dislodged and fell on them. Owens argues there are other horns and alarms that sound throughout the day at the site, and even if the sonic horns erroneously activated, there would have been no effect on the cleaning process had it been done correctly. As discussed in more detail below, we find the factual dispute to be immaterial to our determination as to whether a jury could find an exception to the Privette doctrine in this matter.
Appellants were on site the day before the incident. From above the reaction chamber, appellants pushed Trona material from a duct above the reaction chamber down through an inlet chute into the vertical and the chamber below. Because of the high temperatures involved, appellants took turns pushing the hot material into the reaction chamber.
The parties disagree as to whether appellants were on site the day before the incident as part of the same project or on a different project. We find the disputed issue immaterial.
The incident
Enviroserv employee Brian Banuelos was present at the facility on the day of the cleaning, January 22, 2016. Banuelos's role on the site was primarily to act as an intermediary between Owens and SB Vacuum. He did not operate any of SB Vacuum's equipment or instruct SB Vacuum on safety procedures.
Marcello took Banuelos on a walk-through of the area prior to appellants' commencing work, in order to confirm that all the necessary preparations had been completed. Marcello and his supervisor, Ernie Navarro, discussed with Banuelos the scope of work to be performed. Through the access gate in the vertical, Marcello showed Banuelos the level of Trona material contained in the vertical and recommended this access gate be used to vacuum the material in the vertical from the top down.
The reaction chamber was a permit-required confined space as described by 29 C.F.R. 1910.146 and Cal-OSHA Section 5157. Banuelos signed the "Confined Space Entry Permit" on January 22, 2016, which by regulation was required to be filled out before appellants entered the reaction chamber. The form confirmed the space was safe for entry. The "Confined Space Entry Supervisor" was listed as Brian Banuelos, and the "Person(s) entering the Confined Space" were listed as appellants.
Appellants commenced setting up for the job and began vacuuming the Trona dust from the reaction chamber. Appellants first vacuumed the bottom section of the reaction chamber partway, then the top section, after which they returned to finish vacuuming the bottom section. Appellants did not vacuum any material from the vertical. This created a bridging of hot dust in the vertical.
Near the end of the day, appellants were vacuuming the section of the reaction chamber where the ductwork forms the bottom portion of the vertical. At this point, a portion of Trona dust that had collected in the vertical suddenly collapsed, resulting in serious burn injuries to appellants. Owens provided evidence that appellants failed to follow industry-accepted practices when they cleaned from the bottom knowing that there was accumulated Trona dust above them.
Prior to this incident, the work had always been performed and completed without any injury or issue. Following Cal-OSHA's investigation of the incident, the agency issued Owens a Notice of No Accident-Related Violation After Investigation.
SB Vacuum maintains workers' compensation insurance coverage, and appellants are receiving benefits through the workers' compensation system.
PROCEDURAL HISTORY
Appellants filed this action in February 2016 against Owens. On March 17, 2016, Owens filed its answer.
On March 18, 2016, Owens removed the action to federal court. In September 2017, appellants filed a motion for leave to amend their complaint to add Enviroserv. Owens opposed appellants' motion for leave to file an amended complaint, and filed a motion for summary judgment on March 8, 2017. The federal court denied in part Owens' motion for summary judgment and granted appellants' motion for leave to file an amended complaint.
Because the addition of Enviroserv destroyed diversity jurisdiction, the federal court remanded the matter back to state court.
On September 13, 2017, appellants filed their First Amended Complaint in Los Angeles County Superior Court alleging one cause of action for negligence against Owens and Enviroserv.
On May 10, 2019, Enviroserv filed a motion for summary judgment, arguing that appellants' claims were barred by the Privette doctrine.
On August 19, 2019, the trial court granted Enviroserv's motion. In doing so, the trial court relied on Hooker v. Department of Transportation (2002) 27 Cal.4th 198 (Hooker). The Hooker court considered whether the Privette doctrine barred an employee of a contractor from suing the hirer of the contractor for the tort of negligent exercise of retained control. (Id. at p. 201.) The Hooker court determined that although a party hiring an independent contractor may be liable in tort to employees of the contractor for negligent exercise of retained control, such liability can only arise when the hirer actually exercises such retained control so as to affirmatively contribute to the employee's harm. (Id. at p. 215.) The trial court found that even if Enviroserv retained limited control here, "there is no evidence in this case that any representative of Enviroserv took any affirmative action which contributed to the harm suffered by its subcontractor's employees' injuries." The trial court also cited Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28 (Kinney), which presented another variation on the scope of the Privette doctrine. The Kinney court confirmed "[t]he mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to the plaintiff." (Kinney, supra, at p. 39.) The trial court found Privette, Kinney and Hooker determinative of the outcome of the present matter.
On August 29, 2019, Owens filed its motion for summary judgment, arguing that summary judgment was proper under the Privette doctrine. On January 24, 2020, the trial court requested supplemental briefing on "(1) whether an 'affirmative act' is still required under the retained control exception to the Privette doctrine; and (2) the affirmative act(s) on which [Appellants] rely and how they tie into controlling case law." The parties provided the supplemental briefing.
On February 18, 2020, the trial court granted summary judgment for Owens for the reasons previously stated in the court's ruling on Enviroserv's motion for summary judgment, as well as the facts and arguments presented in Owens's own motion.
On August 19, 2020, judgment was entered in favor of Enviroserv and Owens. On October 19, 2020, appellants filed their notice of appeal.
DISCUSSION
Appellants argue the orders granting summary judgment in favor of Enviroserv and Owens should be reversed. As to both respondents, appellants argue that triable issues of fact exist as to the retained-control exception to the Privette doctrine.
I. Standard of review
"A trial court properly grants a motion for summary judgment only if no issues of triable fact appear and the moving party is entitled to judgment as a matter of law." (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) On appeal from a judgment entered after the trial court has granted a motion for summary judgment, we examine the record de novo. (Ibid.) We must liberally construe the evidence in support of the party opposing summary judgment and resolve any doubts concerning the evidence in favor of that party. (Ibid.)
The moving party "bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts, and the opposing party has the burden of showing a triable issue of material fact. (Ibid.) The opposing party must make a prima facie showing sufficient to support its position. (Ibid.)
II. Applicable law
A review of the Privette doctrine and related case law is appropriate. In 1993, Privette established where "injuries resulting from an independent contractor's performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers' compensation coverage," there is "no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries." (Privette, supra, 5 Cal.4th at p. 702.) The Privette doctrine is "grounded in two major principles: first, that independent contractors by definition ordinarily control the manner of their own work; and second, that hirers typically hire independent contractors precisely for their greater ability to perform the contracted work safely and successfully." (Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 269 (Sandoval).) Kinney, supra, 87 Cal.App.4th 28, explored whether the" 'hirer' . . . can be liable for injury to [an employee of the contractor] based solely upon its failure to exercise its power to compel the contractor . . . to adopt certain safety measures" that may have prevented the employee's injury. (Id. at p. 32.) The Kinney court concluded that "a general contractor owes no duty of care to an employee of a subcontractor to prevent or correct unsafe procedures or practices to which the contractor did not contribute by direction, induce reliance, or other affirmative conduct." (Id. at p. 38.) Specifically, the "mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to the plaintiff." (Ibid.)
Hooker, supra, 27 Cal.4th 198 explored the question of whether the hirer of an independent contractor may sue the hirer of the contractor for negligent exercise of retained control over safety conditions at a worksite. (Id. at p. 201.) The Hooker court concluded that "a 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.) However, the hirer may be liable "insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries." (Ibid.)
As the parties point out, our Supreme Court has issued two additional relevant opinions during the pendency of this litigation: Gonzalez v. Mathis (2021) 12 Cal.5th 29 (Gonzalez) and Sandoval, supra, 12 Cal.5th 256. In Gonzalez, the high court explored whether a property owner was liable to an employee of an independent contractor when the employee was injured as a result of a known hazard on the premises and "there were no reasonable safety precautions it could have adopted to avoid or minimize the hazard." (Gonzalez, supra, 12 Cal.5th at p. 38.)
The plaintiff was a professional window washer who advertised his business as specializing in hard to reach windows and skylights. The plaintiff was injured when he slipped and fell off the homeowner's roof, and he asserted that dangerous conditions existed on the roof. (Id. at pp. 39-40.) The Gonzalez court concluded, "pursuant to Privette's strong presumption that a hirer delegates to an independent contractor all responsibility for workplace safety, a landowner owes no duty to the contractor or its workers to remedy a known hazard on the premises or take other measure that might provide protection against the hazard." (Gonzalez, supra, at p. 45.) The Gonzalez court thus reaffirmed "decades of case law establishing that a hirer is not liable where it is merely aware of a hazardous condition or practice on the worksite." (Ibid.)
Sandoval, supra, 12 Cal.5th 256 was a case brought by an electrical parts specialist who suffered severe burns after he triggered an arc flash from a circuit he did not realize was live with flowing electricity. (Id. at p. 264.) The contractor for whom he had been working had removed a protective cover on the live circuit and was found liable for the plaintiff's injuries. The question before the Supreme Court was whether the company that hired the contractor, owned the premises, and operated the electrical equipment, could be liable for the plaintiff's injuries. The high court answered the question in the negative. In so doing, the Sandoval court reiterated the general rule under Privette that "A person or entity hiring an independent contractor . . . ordinarily delegates to that independent contractor all responsibility for the safety of the contractor's workers." (Sandoval, supra, at p. 264.) The court acknowledged two recognized exceptions to the doctrine: "where the hirer either withholds critical information regarding a concealed hazard . . . or retains control over the contractor's work and actually exercises that control in a way that affirmatively contributes to the worker's injury." (Ibid.) Because the plaintiff asserted the retained-control exception to the Privette doctrine, the court "dwell[ed] at some length" on the key concepts in the retained-control exception: "retained control, actual exercise, and affirmative contribution." (Id. at p. 274.)
The Sandoval court explained that a hirer retains control when it "retains a sufficient degree of authority over the manner of performance of the work entrusted to the contractor." (Sandoval, supra, 12 Cal.5th at p. 274.) Such authority over the work entrusted to the contractor "amounts to retained control only if the hirer's exercise of that authority would sufficiently limit the contractor's freedom to perform the contracted work in the contractor's own manner." (Id. at p. 275.) Thus, while the parties disputed whether the hirer retained control" 'over the safety conditions at the worksite,'" the Sandoval court clarified that that was not the question-the "pivotal question . . . [was] whether the hirer retained a sufficient degree of control over the manner of performing the contracted work." (Ibid.)
Even where there is retained control of the manner of performing the work, "hirers owe the contract workers a retained control duty only with something more." (Sandoval, supra, 12 Cal.5th at p. 276.) Specifically, a contract worker must prove "that the hirer both retained control and actually exercised that retained control in such a way as to affirmatively contribute to the injury." (Ibid.)" 'Affirmative contribution' means that the hirer's exercise of retained control contributes to the injury in a way that isn't merely derivative of the contractor's contribution to the injury." (Id. at p. 277.) Instead, the "affirmative contribution requirement can be satisfied only if the hirer in some respect induced-not just failed to prevent-the contractor's injurycausing conduct." (Ibid.) The Sandoval court clarified that "[i]t is not enough for the hirer's exercise of control to incidentally give the hirer the opportunity to prevent the contractor's injurycausing conduct." (Ibid.) In sum, "[a] hirer's mere authority to prevent or correct a contractor's unsafe practices (retained control) does not, without more, limit the contractor's delegated control over the work." (Id. at p. 278.)
The high court ultimately determined that the hirer in Sandoval was not liable as a matter of law for the employee's injuries. The court rejected the employee's primary argument that the hirer was in charge of "the power-down process." (Sandoval, supra, 12 Cal.5th at p. 279.) The court stated that the hirer's "control over the power-down process was not 'retained control' over contracted work, because the power-down process was not within the scope of work that [the hirer] had entrusted to [the contractor]." (Ibid.) Nor was the hirer responsible for enforcing safety precautions. Although the hirer "may have had authority-by virtue of performing the power-down process or otherwise-to require specific precautions during the inspection . . . [it] did not 'actually exercise' that authority." (Id. at p. 280.) The court concluded that the hirer owed the contractor's employee no injury-prevention tort duty. "By turning over control of the worksite, [the hirer] presumptively delegated to [the contractor] any preexisting duties [the hirer] otherwise owed [the contractor's employee]." (Id. at p. 281.)
III. Application of law to the present case
The Privette doctrine provides "[a]n independent contractor's hirer presumptively delegates to that contractor its tort law duty to provide a safe workplace for the contractor's employees." (SeaBright Ins. Co. v. U.S. Airways, Inc. (2011) 52 Cal.4th 590, 600 (SeaBright).) In Gonzalez, supra, 12 Cal.5th at p. 41, the high court noted "[o]ver the nearly three decades since we decided Privette, we have repeatedly reaffirmed the basic rule that a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job." Because SB Vacuum was an independent contractor, the Privette doctrine applies to bar appellants' causes of action against Enviroserv and Owens unless an exception applies.
The Privette presumption may be overcome by either of two exceptions. One exception is the retained control exception, in which the hirer exercises retained control over any part of the contractor's work in a manner that affirmatively contributes to the worker's injuries. (Hooker, supra, 27 Cal.4th at pp. 200-202.) The second exception is the concealed hazard exception, which occurs when the hirer knows of a concealed hazard the contractor could not reasonably discover but fails to disclose it to the contractor. (Sandoval, supra, 12 Cal.5th at pp. 271-272.)
This appeal involves only the retained-control exception. As set forth above, this exception has three elements, "retained control, actual exercise, and affirmative contribution." (Sandoval, supra, 12 Cal.5th at p. 274.)
A. Enviroserv
We first analyze the application of the elements of the retained-control exception to Enviroserv. We conclude that appellants have failed to raise a triable issue of material fact as to the application of this exception as to Enviroserv.
1. Retained control
Appellants first argue Enviroserv did not delegate its tort duties to SB Vacuum. Appellants point to the Confined Space Entry Permit, which designated Brian Banuelos as the Confined Space Entry Supervisor. Appellants argue that based on this permit, Enviroserv never turned over control to SB Vacuum and therefore Privette never applies.
Appellants do not dispute the Confined Space Entry Permit was required by CalOSHA. Appellants' expert testified that Banuelos' signature on the permit made him "responsible for determining if acceptable entry conditions are present at a permit space where entry is planned, for authorizing entry and overseeing entry operations, and for terminating entry as required by the pertinent OSHA and CalOSHA regulations."
The Supreme Court has made it clear that the Privette doctrine applies even where a hirer is subject to CalOSHA safety requirements. (SeaBright, supra, 52 Cal.4th at pp. 600-603.) The high court explained the Privette doctrine sets forth an implicit delegation to the contractor of any tort law duty the hirer may owe to the contractor's employees. "That implicit delegation includes any tort law duty the hirer owes to the contractor's employees to comply with applicable statutory or regulatory safety requirements." (SeaBright, supra, at p. 594.) The high court saw "no reason to limit our holding in Privette simply because the tort law duty, if any, that the hirer owes happens to be one based on a statute or regulation." (Id. at p. 603.) Thus, even if CalOSHA imposed on Enviroserv a duty to supervise the workplace, and to acknowledge that duty through its signature on the Confined Space Entry Permit, the duty was implicitly delegated to SB Vacuum under Privette.
In SeaBright, defendant U.S. Airways was the permitted user of a conveyor to move luggage. U.S. Airways had responsibility for the maintenance of the conveyor, but had contracted responsibility for the maintenance and repair of the conveyor. The conveyor lacked certain safety guards required by applicable regulations. An employee of the contractor was injured while inspecting the conveyor. (SeaBright, supra, 52 Cal.4th at p. 594.) The Court of Appeal wrongly held that under CalOSHA, an employer had a non-delegable duty to ensure that the conveyor had the safety guards. (Id. at p. 596.) The Supreme Court clarified that when U.S. Airways hired the independent contractor, it "presumptively delegated to [the contractor] any tort law duty of care the airline had under CalOSHA and its regulations to ensure workplace safety for the benefit of [the contractor's] employees." (Id. at p. 601.) This delegation was "implied as an incident of an independent contractor's hiring [and] included a duty to identify the absence of the safety guards required by CalOSHA regulations." (Ibid.) Similarly, here, any tort law duty of care Enviroserv was required to undertake under CalOSHA regulations was implicitly delegated to SB Vacuum incident to Enviroserv's hiring of SB Vacuum. The Confined Space Entry Permit does not limit the application of Privette, nor create a triable issue of fact as to Enviroserv's liability. Regardless of the permit, Enviroserv is not liable as a matter of law under Privette.
2. Actual exercise
Because we have determined that Enviroserv did not retain control of the job that it contracted to SB Vacuum, we need not discuss the remaining elements of the retained control exception. However, to be thorough, we briefly address appellants' remaining arguments.
Appellants argue a jury can reasonably find that Banuelos exerted control over how appellants vacuumed out the reaction chamber. Appellants argue that everyone considered Banuelos to be in charge of the work, due to his designation as entry supervisor on the CalOSHA form. As set forth above, Enviroserv's compliance with this CalOSHA requirement does not limit the application of Privette.
Appellants argue the day before the vacuuming, Banuelos helped to scrape the piles of hot Trona into the vertical. This action took place before the hirers turned over the worksite to SB Vacuum. Because this event occurred outside of the time frame during which SB Vacuum was in control of the reaction chamber, it cannot, as a matter of law, constitute actual exercise of retained control. As stated in Sandoval, "timing matters, and [appellants'] injur[ies] occurred later." (Sandoval, supra, 12 Cal.5th at p. 273.) Further, even if Enviroserv had somehow contributed to the hazard by scraping the hot Trona, appellants were aware of the presence of hot Trona. Enviroserv effectively delegated its duties respecting that hazard "either because it was not concealed or because [Enviroserv's] disclosure was sufficient." (Id. at p. 273.) Once Enviroserv turned over control of the worksite, any tort duties Enviroserv had with respect to the safety of the site effectively became SB Vacuum's duties. (Ibid.)
Appellants raise other actions they attribute to Banuelos, such as showing them what area needed to be vacuumed, telling them when they could enter the confined space, and telling appellants not to worry about leaving Trona behind. Such actions did not, as a matter of law, show that Enviroserv "retain[ed] a sufficient degree of authority over the manner of performance of the work entrusted to the contractor." (Sandoval, supra, 12 Cal.5th at p. 274.)
Finally, appellants argue that Banuelos restricted how appellants did their work by controlling communications between Owens and appellants. Appellants make the conclusory statement that by controlling communication, Banuelos exerted influence over how appellants did their job. This conclusory statement does not create a triable issue of fact as to whether Enviroserv actually exercised any control over the work site.
3. Affirmative contribution
As to affirmative contribution, appellants argue Banuelos failed to enforce Owens' safety recommendation that appellants clean from the top down. Further, they argue Banuelos, by making himself Entry Supervisor, specifically promised to undertake numerous safety measures but then failed to do them. However, as the Sandoval court made clear, "[a] hirer's mere authority to prevent or correct a contractor's unsafe practices . . . does not, without more, limit the contractor's delegated control over the work." (Sandoval, supra, 12 Cal.5th at p. 278.) Appellants have failed to show Banuelos had anything other than the incidental "opportunity to prevent" appellants' injuries. (Id. at p. 277.) Thus, Banuelos' actions do not, as a matter of law, satisfy the affirmative contribution requirement. (Ibid.)
Appellants have failed to create a triable issue of fact as to whether the retained control exception to the Privette doctrine applies to Enviroserv.
B. Owens
We next analyze the application of the elements of the retained-control exception to Owens. We conclude that appellants have failed to raise a triable issue of material fact as to the application of this exception as to Owens.
1. Retained control
Appellants argue that a jury could reasonably find Owens exercised retained control by actively participating in the work, including placing the system on bypass, locking out the sonic horns, and shoveling Trona into the vertical the night before the work was done. Sandoval clarifies that such actions taken in preparation for a contractor's work cannot form the basis for hirer liability unless such actions occurred after the delegation of control. The Sandoval court explained:
"What Sandoval posits is that because the power-down process was entirely Qualcomm's doing, Qualcomm bore responsibility for all power-related hazards. In other words, since Qualcomm didn't delegate to TransPower the performance of the power-down process, it couldn't have delegated its tort duties respecting the power-down process. If Sandoval had been injured during Qualcomm's performance of the power-down process, we might agree that no transfer of control or tort duties from Qualcomm to the contractor had yet occurred. [Citation]. But timing matters, and Sandoval's injury occurred later. Once Qualcomm turned over control of the worksite, any tort duties Qualcomm had with respect to the safety of that site presumptively became TransPower's duties." (Sandoval, supra, 12 Cal.5th at p. 273.)
The actions listed by appellants took place prior to the time Owens turned over control of the worksite to its contractor.
Thus, such actions could not, as a matter of law, be found to be the exercise of retained control by Owens.
Further, for the same reasons as set forth above as to Enviroserv, Owens cannot be liable for failing to enforce its recommendation that appellants clean from the top down. "A hirer's mere authority to prevent or correct a contractor's unsafe practices . . . does not, without more, limit the contractor's delegated control over the work." (Sandoval, supra, 12 Cal.5th at p. 278.)
Appellants have failed to show a triable issue of material fact as to any retained control on the part of Owens.
2. Actual exercise
Because we have determined that Owens did not retain control of the job that it contracted to Enviroserv, we need not discuss the remaining elements of the retained control exception. However, as we did with Enviroserv, we briefly address appellants' remaining arguments.
In support of their argument that Owens actually exercised control over the cleaning, appellants note that Owens, through Marcello, undertook pre-vacuuming safety precautions such as putting the system on bypass and locking out the sonic horns. In addition, Owens assisted with the pre-vacuuming Trona shoveling, engaged in a walk-through of the project with Banuelos and specifically recommended that the vacuuming be done from the top down.
All of the purported exercises of control concern acts that Owens engaged in prior to the time that Owens turned over control of the worksite to its contractor. Under Sandoval, such actions cannot, as a matter of law, constitute actual exercise of control. (Sandoval, supra, 12 Cal.5th at p. 273.) Once Owens turned over control of the worksite, any tort duties Owens had with respect to the safety of that site presumptively became the contractor's duties. (Ibid.)
3. Affirmative contribution
In support of their argument that Owens' actions affirmatively contributed to their injuries, appellants name the same activities discussed above. As a matter of law, none of the actions can constitute affirmative contributions to appellants' injuries. The Sandoval court made it clear that affirmative contribution only exists "if the hirer in some respect induced-not just failed to prevent-the contractor's injury-causing conduct." (Sandoval, supra, 12 Cal.5th at p. 277.) Owens' mere opportunity to prevent the injuries, through engaging in different prevacuuming procedures, or enforcing the top-down method of cleaning, cannot constitute affirmative contribution.
Appellants have failed to create a triable issue of fact as to whether the retained control exception to the Privette doctrine applies to Owens.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs of appeal.
We concur: LUI, P. J., ASHMANN-GERST, J.