Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 448846
Kline, P.J.
Leua Khamvan was injured while topping a tree in Humboldt County for Aadams Tree Service, Inc. (Aadams Tree), a subcontractor for work that Pacific Gas & Electric Company (PG&E) had initially engaged Davey Tree Surgery Company (Davey Tree) to perform. PG&E had previously contracted separately with Western Environmental Consultants, Inc. (WECI) to do work consisting of identifying needed tree work and notifying PG&E customers. Khamvan brought this negligence action against PG&E, Davey Tree, Terra Industries, Inc. (Terra Industries), and WECI.
He appeals a judgment entered on a grant of summary judgment in favor of WECI. WECI had not been present or responsible for safety at the work site, but Khamvan alleged that WECI, months earlier, negligently underestimated the height of the tree and had recommended topping it. The court found the action barred by Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette) and its progeny, and found no liability under Civil Code section 1714 or Labor Code section 6400. Khamvan challenges each of those conclusions, as well as rulings excluding some of his evidence in opposition. We affirm.
This judgment evidently renders the action final as to all parties, for Khamvan represents that he has settled with defendants PG&E, Davey Tree, and Terra Industries.
Background
We set forth the background consistent with review standards for summary judgment (Code Civ. Proc., § 437c). “A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We will summarize the evidence without matters the court excluded and later address Khamvan’s challenges to evidentiary rulings. We affirm summary judgment if correct on any ground presented and are not limited by reasons expressed by the superior court. (Perez v. 222 Sutter St. Partners (1990) 222 Cal.App.3d 938, 943, fn. 4.)
Complaint
WECI’s burden on summary judgment was to negate liability as alleged in the complaint (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342-1343), to which it was added as a Doe defendant. The pleading is factually vague but alleges generally that each defendant, named and Doe, was acting for all owing to agency and employment. Khamvan was injured while working for Aadams Tree on March 3, 2005, on Brannan Mountain Road in Humboldt County. The first cause of action alleges negligence based on a duty of reasonable care founded on Civil Code section 1714, Labor Code section 6400, contractual obligations, the exercise of or right to exercise control, and “the commission of affirmative acts . . . .” Breach of duty resulted, in part, from “false information concerning the work.” The second cause of action, for negligence per se, is based on violations of workplace safety standards in Labor Code sections 6400, 6401, and 6403, and unspecified regulations under the California Occupational Safety and Health Act (Cal-OSHA).
Evidence
WECI worked for PG&E under a contract for “pre-inspection work” consisting of identifying tree trimming and tree/brush removal (TT) needed along PG&E distribution and transmission lines for code and regulatory requirements. A specification states: “THE PRE-INSPECTION PROCESS: Contractor patrols PG&E distribution and transmission line circuits to identify required TT work along the existing PG&E rights-of-way in accordance with all regulatory requirements and/or PG&E Vegetation Management [(VM)] standards; prescribes Work to be performed; notifies customers that tree trimming, tree/brush removal Work will occur; obtains any necessary authorization from property owners to perform this Work; enters Work identified and prescription information into the PG&E Vegetation Management Data Base (VMDB) using a handheld computer; edits the data in VMDB and creates Work Request Form(s) as shown in Exhibit C that describes the prescribed tree trimming and tree/brush removal Work to be performed; and assigns the Work to other PG&E Contractors as directed by the PG&E Representative.” “TREE TRIMMING/REMOVAL: This Specification does not cover the actual trimming of trees and tree/brush removal work which will be assigned to a separate PG&E tree trimming contractor.”
Matt Kralicek from WECI determined, months before the accident at issue here, that the subject tree—a mountainside cedar that was dead at the top—would have to be trimmed to create clearance for power lines. A resulting work request by PG&E in January 2005 gave the height of the tree as 120 feet and recommended “ ‘top blw li’ ”—meaning to top it below the lines.
PG&E’s first contract for the actual work in this case was with Davey Tree, and the pertinent specification states near the beginning: “PRE-INSPECTIONS AND POST AUDITS: This Specification does not cover general pre-inspection work, which will be assigned to a separate PG&E contractor. However, . . . Contractor also is expected to perform its own pre-inspection upon receiving a PG&E Work Request to confirm the appropriateness of the Work Request to comply with all laws, regulations, and PG&E Vegetation Management standards . . . .” It is later explained that PG&E’s pre-inspection contractor “identifies and prescribes required tree trimming and tree/brush removal (Work) to be done by the Contractor” and that: “Work is assigned by PG&E to the tree trimming Contractor using a Work Request Form. The tree trimming Contractor shall visit the work site, inspect and evaluate the Work prescribed by the PG&E Pre-inspection contractor, and if in the judgment of the Contractor, the prescription conforms to all regulatory requirements and/or PG&E [VM] standards, Contractor shall complete the Work . . . noting any changes between the Work prescribed and the Work performed . . . .” It continues, “If, upon inspection of the work site, the tree trimming Contractor judges that the pre-inspector’s Work prescription on the PG&E Work Request Form does not conform with all regulatory requirements . . . . Contractor must notify the PG&E Representative.” “SCOPE OF WORK” provisions state: “Contractor shall at its own risk and expense perform the tree trimming and tree/brush removal Work by PG&E as Maintenance Work, whether Routine or Non-Routine. Contractor shall furnish all labor, supervision, material, equipment, and transportation required to perform the Work in compliance with this Specification.” Davey Tree was “responsible for providing the correct tools and equipment to perform Work safely . . . [and] the reliability and maintenance of its tools and equipment.” It had to “plan and conduct the Work to adequately safeguard all persons and property from injury” and “direct the performance of the Work in compliance with reasonable safety and work practices and with all applicable federal, state, and local laws, rules and regulations . . . .”
Davey Tree had to provide an experienced field supervisor “familiar with . . . all applicable legal and regulatory requirements relating to the Work,” who was “responsible for the safe, efficient, and economic utilization of manpower, equipment, tools, and material required to trim and remove any trees . . . .” A qualified and certified foreman was to be “responsible for the safe execution and quality of the assigned Work of his/her crews; the actions of Contractor’s crews . . .; caring for the equipment used . . .; [and] providing instruction and training to his/her assigned crews . . . .” Davey Tree would determine crew make-up, with “the flexibility of designing crew and equipment to maximize productivity and to address the Work at hand . . . .”
Scheduling considerations resulted in Davey Tree subcontracting the work to Terra Industries, and Terra Industries in turn subcontracting to Aadams Tree. Each subcontract, identical in terms, incorporates all provisions of the original (general) contract. Thus the subcontract to Aadams Tree, executed in early December 2004, reads in part, “Subcontractor assumes toward Contractor, [Davey Tree] and PG&E all liabilities, responsibilities, duties and obligations assumed by Contractor toward [Davey Tree] under the General Contract with respect to the Work,” and it restated, “Subcontractor agrees, at its own risk and expense, to perform the tree trimming and tree/brush removal Work . . . [and] shall furnish and be responsible for all labor, equipment, supervision of its labor force, materials and supplies and transportation required to perform the Work . . . .”
The accident occurred shortly after noon on March 3, 2005. Khamvan had felled 300 to 500 trees before this job, and had worked with Aadams Tree foreman Kim Burley on 10 to 15 trees earlier that day. Khamvan related that, when they got to the cedar, Burley told him: “ ‘That tree, it just need to be top, [sic] okay? Top if you can, just use the bucket, climb it[.]’ ” Topping is like felling a tree except that you cut farther up, not from the ground. Burley told Khamvan to cut a limb and top the cedar two feet below the power line. Khamvan went up in the bucket with his saws and did an undercut somewhere between 25 and 30 feet up and then a sloping wedge cut, repositioning the bucket as needed. The aim was that the tree fall toward the hill, away from the power lines. Burley said nothing. As Khamvan noticed the top of the tree starting to fall toward the hill, he began cutting the remaining “hinge,” and then saw that tree “buckled back,” in his direction. Khamvan grabbed his “control moves,” but was unable to go far in the slow-moving bucket before the tree fell toward him and the lines. He felt “a pinch,” looked up to see a transformer explode “like it’s 4th of July,” and “[t]hen next thing I know, my arm is gone.”
Burley, reading from the book of work requests for that day, had told Khamvan that the tree was 120 feet tall. Assertedly, neither Khamvan nor his foreman noticed that the tree was half again as tall, perhaps 185 feet tall, and evidentiary objections focused in part on some testimony and opinions about how negligent it was to recommend topping rather than felling a tree of that height, whether Kralicek from WECI should have used a handheld device to better assess the height, and what methods Burley might have used had he realized its true height. It is unnecessary to detail this evidence, however, for the court’s ruling (post) implicitly assumes the existence of triable issues of fact as to WECI’s (as well as Burley’s) negligence and the work being done more safely had the true height been ascertained.
Rulings
The court issued conflicting tentative decisions and then, just before hearing the motion, detailed rulings on evidentiary objections and a lengthy ruling to grant summary judgment. The crux of the ruling as to Privette liability was this: “[I]t is undisputed that Mr. Khamvan was working for an independent contractor, hired to top trees, a dangerous task; that WECI had only a contractual relationship with PG&E, had no legal or factual relationship with the firms assigned to cut the trees and had no responsibility to see that the cutting of the trees was carried out in any particular manner. Moreover, WECI was not on site when the work was done. Based on the reasoning of the Privette decisions, there is no basis to conclude that a party who is nowhere in sight, has no responsibility for the conduct of the work, and provides simply the height of a tree and a recommendation to top it (both ‘facts’ being readily subject to acceptance or rejection by those charged with doing the work) can have any responsibility for an injury to one working on the tree. Simply stated, WECI had no legal or factual relationship with Aadams [Tree] or its employees; it owed no duty of care to them.” The court rejected liability under Labor Code section 6400, given that WECI had no control or presence on the jobsite, plus case law (Ruiz v. Herman Weissker, Inc. (2005) 130 Cal.App.4th 52 (Ruiz)), that the code did not create a nondelegable duty for WECI to protect Khamvan from his own employer’s negligence. The court changed some evidentiary rulings to favor Khamvan, but with no change in the result.
Neither tentative decision was, of course, binding on the court (Cal. Rules of Court, rule 3.1590(b)), and Khamvan’s citations to those antecedent expressions of the court are futile (Taormino v. Denny (1970) 1 Cal.3d 679, 684).
Discussion
I. “Privette” Case Law
The Privette cases address when and whether an injured employee of an independent contractor may go beyond his or her worker’s compensation remedy by suing the hirer of the independent contractor. Our Supreme Court explained in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 200-201 (Hooker): “In [Privette] and Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 . . . (Toland), we held that an employee of a contractor may not sue the hirer of the contractor under either of the alternative versions of the peculiar risk doctrine set forth in sections 413 and 416. Under section 413, a person who hires an independent contractor to do inherently dangerous work, but who fails to provide in the contract or in some other manner that special precautions be taken to avert the peculiar risks of that work, can be liable if the contractor’s negligent performance of the work causes injury to others. Under section 416, even if the hirer has provided for special precautions in the contract or otherwise, the hirer can nevertheless be liable if the contractor fails to exercise reasonable care to take such precautions and the contractor’s performance of the work causes injury to others. [Then], in Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235 . . . (Camargo), we held that an employee of a contractor may not sue the hirer of the contractor under the negligent hiring theory set forth in section 411.”
These and other unspecified further section references in this opinion are to the Restatement Second of Torts (hereafter Restatement).
Hooker held, further, that a hirer “is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but that a hirer is liable to an employee of a contractor insofar as a hirer’s exercise of retained control affirmatively contributed to the employee’s injuries” (Hooker, supra, 27 Cal.4th at p. 202). This was an adaptation of “the tort of negligent exercise of retained control” in Restatement section 414, which provides: “ ‘One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.’ ” (Hooker, supra, 27 Cal.4th at p. 201.) Caltrans, the hirer in Hooker, could have been liable for having retained control over a jobsite provided it had also directed vehicular traffic to use a narrow overpass that caused a crane operator on the overpass to retract his crane’s outriggers to accommodate the traffic, resulting in the crane tipping and killing the operator. However, summary judgment for Caltrans was affirmed due to the absence of a triable issue of fact as to whether Caltrans had actually exercised that retained control. Merely permitting, as opposed to directing, the vehicular use of the overpass, was not enough to render Caltrans liable. (Id. at pp. 202-203, 214-215.)
A companion case to Hooker held the hirer liable to an independent contractor’s employee “insofar as the hirer’s provision of unsafe equipment affirmatively contributes to the employee’s injury.” (McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 222, fn. omitted (McKown). Wal-Mart, the hirer, was held liable (as found by a jury) for furnishing and requesting use of a forklift with a poorly attached platform that came loose, injuring the employee at a job in a Wal-Mart store. (Id. at pp. 223, 225-226.)
Court of Appeal authority has extended the Privette doctrine to the agent of a hirer—there, a contract administrator for a utility company—finding that the underlying policy implications compelled it. (Ruiz, supra, 130 Cal.App.4th at pp. 55-56, 59-64.) Khamvan does not dispute that authority and conceded below that WECI had acted as an agent for PG&E.
Faced with a lack of coincident retained control and affirmative contribution in this case, Khamvan constructs an elaborate argument that Hooker and McKown can be read as requiring only affirmative contribution. Starting with a basic code responsibility for “injury occasioned to another by his or her want of ordinary care” (Civ. Code, § 1714, subd. (a)), he adds that negligence may be categorized as nonfeasance (failure to act) or misfeasance (affirmative negligence) (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 49), and that legal duty may arise from the ordinary-care standard, from affirmative duty arising from a particular relationship (6 Witkin (10th ed. 2005) Torts, § 835, p. 53), or from “vicarious duty” of the sort exemplified by the respondeat superior doctrine in the employment setting (Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 967). To better align his argument with the language of Hooker and McKown, he also recasts “misfeasance” as “affirmative negligence.”
Khamvan then argues, in essence, that while Privette and Toland abrogated the Restatement view of vicarious duty (§§ 413, 416) and Hooker limited the Restatement control doctrine (§ 414), Hooker defined “affirmative act” (his paraphrase of “affirmative contribution”) to include failure to act. McKown, he adds, neither exclusively defined the term nor relied on the control doctrine. He argues that Hooker does not require both retained control and affirmative contribution. Finally, adding that none of these cases mentions Civil Code section 1714, he posits: “With McKown and Hooker taken together, the standard requiring an affirmative act is essentially identical to the standard of care found in [Civil Code] section 1714 where every person is responsible for injuries to ‘another by his want of ordinary care or skill in the management of his property or person.’ [Citation.] While a defendant may not have a common law duty to prevent harm to a subcontractor employee under a special relationship concept, every defendant retains the obligation not to act in a manner that causes injury (i.e., affirmative negligence).”
These arguments are unavailing, for at least three reasons. First, we cannot read the Privette cases as somehow overlooking the substance of Civil Code section 1714. That code section, in effect since 1872, simply embodies the common law as modified by ongoing case law. (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 813-814, 821-823 [hence no statutory bar to judicial adoption of comparative negligence]; Ma v. City and County of San Francisco (2002) 95 Cal.App.4th 488, 503.) Since this principle was settled long before Privette, lack of mention of the code section in the Privette cases is no surprise. Privette began by tracing the common law origin and evolution of negligence and the peculiar risk doctrine. (Privette, supra, 5 Cal.4th at pp. 693-697.) To omit mention of the code section, in the midst of discussing and forging a new link in that evolution, was obviously not in ignorance of the provision’s import. Civil Code section 1714 was implicitly part of the discussion, and part of the evolution, begun by Privette.
Civil Code section 1714 provides in part: “(a) Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself. . . .”
Second, Khamvan’s view that Hooker can be read to require only affirmative contribution offends stare decisis (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), for Hooker plainly requires both elements. Its focus on affirmative contribution is manifest throughout, as are references to the “retained control” doctrine and the tort of “negligent exercise of retained control.” (Hooker, supra, 27 Cal.4th at pp. 201 & fn. 2, 206, 208-209, 213-214 & fn. 4.) The court initially phrases the issue as whether affirmative contribution is needed, not merely retained control (Hooker, supra, 27 Cal.4th at p. 202), phrasing at odds with either element sufficing.
The ultimate upholding of summary judgment in Hooker also dictates a need for both elements: “Plaintiff raised triable issues of material fact as to whether defendant retained control over safety conditions at the worksite. However, plaintiff failed to raise triable issues of material fact as to whether defendant actually exercised the retained control so as to affirmatively contribute to the death of plaintiff’s husband.” (Hooker, supra, at p. 215.) Khamvan cites Hooker’s endorsement of reasoning in a Second District, Division Four opinion (id. at pp. 209, 211-212), but that opinion, like Hooker, found retained control (Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28, 30, 33), but no affirmative contribution (id. at pp. 36-39). This summary in McKown also leaves no room to doubt Hooker’s meaning: “In Hooker, we held 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 but that a hirer is liable to an employee of a contractor insofar as a hirer’s exercise of retained control affirmatively contributed to the employee’s injuries.” (McKown, supra, 27 Cal.4th at p. 225, italics added.)
Third, while Khamvan is correct that Hooker gave a “nonexclusive” definition for affirmative contribution, this does not help him. Hooker states: “Imposing tort liability on a hirer of an independent contractor when the hirer’s conduct has affirmatively contributed to the injuries of the contractor’s employee is consistent with the rationale of our decisions in Privette, Toland and Camargo because the liability of the hirer in such a case is not ‘ “in essence ‘vicarious’ or ‘derivative’ in the sense that it derives from the ‘act or omission’ of the hired contractor.” ’ [Citations.] To the contrary, the liability of the hirer in such a case is direct in a much stronger sense of that term.” (Hooker, supra, 27 Cal.4th at pp. 211-212, fn. omitted.) Khamvan cites this footnote: “Such affirmative contribution need not always be in the form of actively directing a contractor or contractor’s employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer’s negligent failure to do so should result in liability if such negligence leads to an employee injury.” (Id. at p. 212, fn. 3.)
WECI was not on the jobsite, and Khamvan was directed by his own supervisor from Aadams Tree, a firm contractually charged with directing the method of the actual trimming. WECI’s role was months earlier when, under its own contract with PG&E, it identified trees needing trimming and estimated the height of this particular tree at 120 feet, also recommending that it be topped. The subcontract envisioned Aadams Tree making its own final assessment in that regard. The Hooker footnote suggests liability by negligent omission where a hirer “promises to undertake a particular safety measure” and then negligently fails to do so (Hooker, supra, 27 Cal.4th at p. 212, fn. 3), but that is not what happened here. WECI’s alleged negligence long preceded the trimming work, and WECI did not undertake any safety measures for Aadams Tree.
The Ruiz case, relied upon in the ruling, is instructive and, as noted earlier, held that a hirer’s agent was entitled to the protections of the Privette cases. The hirer was San Diego Gas and Electric Company (SDG&E), and its agent was Herman Weissker, Inc. (HWI), a contract administrator charged with monitoring projects for safety and contract compliance. Ruiz, an employee of Henkels & McCoy, Inc. (Henkels), which assumed all responsibility for work safety under its own contract with SDG&E, was electrocuted as he replaced distribution-line insulators on the top tier of a steel tower. (Ruiz, supra, 130 Cal.App.4th at pp. 55-57.) An HWI representative had been on the job to approve the use of personal grounding devices and a 95-foot bucket truck and insulated ladder to reach the work, but was evidently not there when a hydraulic leak led a Henkels foreman and crew to use an 85-foot bucket truck instead and affix the ladder to the tower. Cal-OSHA later determined that the accident was due to improper tools and grounding. (Id. at pp. 56-57.) Summary judgment for HWI was upheld. “Henkels was responsible for the work and for ensuring that the work was properly and safely performed and . . . contractually assumed responsibility for the safety of its employees. Although SDG&E retained the ability to control safety conditions at the jobsite and hired HWI to monitor such conditions, HWI’s failure to exercise control in the face of unsafe work practices by the Henkels crew is not actionable. [Citation.] Similarly, HWI’s failure to institute particular safety measures at the jobsite is also not actionable absent some evidence that either HWI or SDG&E had agreed to implement such measures. [Citation.] . . . [I]t is HWI’s failure to exercise control, rather than a negligent exercise of control, that is at the heart of the Estate’s case.” (Id. at p. 66.) “That HWI was authorized to stop the work if Henkels failed to comply with its contractual obligations, but did not use that authority, is not sufficient to establish liability. [Citation.] The evidence before us does not create any triable issue of fact that HWI exercised its retained control in such a manner that affirmatively contributed to Ruiz’s electrocution.” (Id. at p. 67.)
The parties have also briefed a post-judgment decision, Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338 (Millard), that addresses the affirmative-contribution issue. The defendant (Biosources) was the general and electrical contractor for a commercial remodeling project where the plaintiff employee (Millard) slipped from a catwalk in an attic space and fell through a ceiling during an alleged light failure while he worked for a heating and air conditioning subcontractor. No one from Biosources had been at the jobsite during the incident, but Millard claimed that Biosources was negligent for not posting warning or taking other safety measures after an outage earlier that same day was caused by a Biosources electrician tripping an unmarked circuit breaker. (Id. at pp. 1342-1344.) The Court of Appeal upheld summary judgment for Biosources under Hooker: “ ‘Affirmative contribution’ occurs where a general contractor ‘ “is actively involved in, or asserts control over, the manner of performance of the contracted work. [Citation.] Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. [Citations.]” [Citation.]’ (Hooker, supra, 27 Cal.4th at p. 215.) [¶] In this case, Millard did not submit evidence sufficient to raise a triable issue of fact that Biosources affirmatively contributed to Millard’s injuries. Biosources did not control the means and methods of Millard’s work. No Biosources personnel were at the worksite at the time Millard fell.” (Id. at p. 1348.) “Although Millard speculates that the two events were connected, he has not submitted any evidence why the lights suddenly went out again in the afternoon, or why Biosources was responsible for that event. Thus, even if it could be shown that Biosources retained control over safety conditions at the project, there is no triable issue of fact that Biosources affirmatively contributed to Millard’s injuries.” (Id. at p. 1349.)
The evidence here was far weaker. Aadams Tree had contractual responsibility for safety and the method and manner of performing the work. WECI had no retained control, had not been on the jobsite at all that day or, as far as the record shows, anytime during Aadams Tree’s operations. Its only role, months earlier, was to identify the tree, estimate its height, and propose topping as a solution.
By citing general negligence law and substituting the term “affirmative acts” for “affirmative contribution,” Khamvan misleadingly conflates the terms, as if to suggest that WECI’s negligence, as in an ordinary tort action, need only comprise a “substantial factor” causing the injury (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572). As the Privette cases illustrate, however, “affirmative contribution” obviously requires more than such minimal tort causation. The exercise of retained control must affirmatively contribute to the employee’s injuries.
For the same reason, viewing McKown as not requiring retained control does not help Khamvan. McKown involved work inside the hirer’s store where the hirer did retain enough authority to request the use of its own forklift. (McKown, supra, 27 Cal.4th at pp. 223, 225-226.) Nevertheless, the opinion did not mention Restatement section 414 or the retained-control doctrine, and the court had earlier announced the case as involving “ ‘the tort of negligent provision of unsafe equipment.’ ” (Id. at p. 222, fn. 2.) The focus was affirmative contribution since, “[i]n this case, as well as in Hooker, the hirer’s affirmative contribution to the employee’s injuries eliminates the unfairness in imposing liability where the contractor is primarily at fault.” (Id. at p. 226.) Pre-Privette law was deemed key: “ ‘[A]n owner is not liable for injuries resulting from defective appliances unless he has supplied them or has the privilege of selecting them or the materials out of which they are made [citation], or unless he exercises active control over the men employed or the operations of the equipment used by the independent contractor.” (Id. at p. 225.) “ ‘[W]here the hiring party actively contributes to the injury by supplying defective equipment, it is the hiring party’s own negligence that renders it liable, not that of the contractor.” (Id. at p. 225.)
But if the McKown theory does not require retained control, this only returns us to the problem that there still must be affirmative contribution. WECI did not provide any unsafe equipment, and no other affirmative contribution appears.
Khamvan contends that Labor Code section 6400, and implementing Cal-OSHA regulations, imposed legal duties on WECI apart from those under the Privette cases and that breaches by WECI constituted negligence per se. He relies on the Supreme Court holding in Elsner v. Uveges (2004) 34 Cal.4th 915 (Elsner), that the 1999 amendments to Labor Code sections 6304.5 and 6400 effectively changed prior law so that plaintiffs now “may use Cal-OSHA provisions to show a duty or standard of care to the same extent as any other regulation or statute, whether the defendant is their employer or a third party.” (Id. at pp. 935-936.) “[H]enceforth, Cal-OSHA provisions are to be treated like any other statute or regulation and may be admitted to establish a standard or duty of care in all negligence and wrongful death actions, including third party actions.” (Id. at p. 928.) Elsner was not a Privette case, but Khamvan contends that it alters Privette authority in cases of multiemployer worksites, allowing negligence actions to proceed where they would otherwise be barred by Privette.
Similar contentions were rejected in Ruiz and Millard. Ruiz, without mentioning the six-month-old decision in Elsner, rejected theories that SDG&E had a “nondelegable duty” to maintain safe work premises for independent contractors’ employees or, if it did, that an effort to delegate that duty to an agent (HWI) could render the agent liable. (Ruiz, supra, 130 Cal.App.4th at pp. 62-65.) Khamvan disclaims any effort to show that WECI has a nondelegable duty but faults Ruiz for relying in part on cases construing an early version of Labor Code section 6400 that was not as expansive as the current version. (Id. at p. 64, citing in part to Kuntz v. Del E. Webb Const. Co. (1961) 57 Cal.2d 100, 106.)
Millard confronted the issue at length, in light of Elsner, yet rejected liability for the contract administrator, Biosources, for several reasons. First, Elsner did not limit or impliedly overrule Privette authority, the issue in Elsner being liability for the general contractor’s own negligence in furnishing unsafe scaffolding that collapsed. Second, Elsner’s resolution of whether the 1999 amendments could be applied to pre-amendment conduct was resolved consistently with that result. (Millard, supra, 156 Cal.App.4th at pp. 1350-1351.) “Thus, as the court in Elsner emphasized, amended [Labor Code] section 6304.5 was not intended to expand a general contractor’s duty of care to an injured employee of a subcontractor. This includes the limitations on such a duty imposed by Privette and its progeny. Under amended [Labor Code] section 6304.5, safety regulations may be admissible in actions by employees of subcontractors brought against general contractors that retain control of safety conditions, but only where the general contractor affirmatively contributed to the employee’s injuries. As we have explained, ante, in this case there is no triable issue of fact that Biosources affirmatively contributed to Millard’s injuries.” (Id. at p. 1352; Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1278-1280.) As for negligence per se, Millard found a lack of appropriate pleading in that case to raise the issue but, in any event, held that negligence per se (Evid. Code, § 669) would only establish the standard of care, not the duty of care, which Biosources lacked. (Millard, supra, at pp. 1352-1353.)
Khamvan disputes virtually all of Millard’s reasoning, but those arguments are moot in that WECI does not appear to be an “employer” as contemplated in Labor Code section 6400. This issue was raised below and troubled the court, yet Khamvan does not directly address it. He may assume that WECI’s status as an agent of PG&E solves the problem, but we will find that it does not.
Labor Code section 6400 mandates in subdivision (a) that every “employer . . . furnish employment and a place of employment that is safe and healthful,” and specifies in subdivision (b) four categories of employers that may be cited on a multiemployer worksite for exposing an employee to a “hazard”: (1) an “exposing employer” is the one whose employee was exposed; (2) a “creating employer” is one that actually created the hazard; (3) a “controlling employer” is the one with authority for “ensuring that the hazardous condition is corrected”; and (4) a “correcting employer” is one responsible for “actually correcting the hazard.”
Labor Code section 6400: “(a) Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.
Accepting for sake of argument that Cal-OSHA regulatory breaches give rise to duties outside the Privette doctrine (Barclay v. Jesse M. Lange Distributors, Inc. (2005) 129 Cal.App.4th 281, 285, 290, 300-301 [failure to provide fire extinguishers at jobsite]), we do not see how WECI was an “employer” in any of the four specified categories. The exposing employer, whose employee was injured, was clearly Aadams Tree. The other three categories create liability for employees who are not the employer’s own (Lab. Code, § 6400, subd. (b)(4)), but WECI was clearly not a controlling employer, responsible by contract or actual practice, for safety on the worksite (id., subd. (b)(1)).
If Khamvan means to imply that WECI was a creating employer for having “actually created the hazard” (id., subd. (b)(2)), then we do not see how negligently estimating the height or method of trimming the tree created a “hazard” in contemplation of the statute. Again, Khamvan’s adoption of the broad term “affirmative act” seems to exceed what is contemplated as a hazard or subject to remediating workplace regulation under Cal-OSHA (Lab. Code, div. 5, pt. 1, §§ 6300-6719). The legislation addresses standards, safety devices, and practices, and prevention programs to promote “safe and healthful working conditions” (id., §§ 6300, 6401.7, 6402-6403, 6406), defines “place of employment” as the worksite or appurtenant premises where work is done (id., § 6303, subd. (a)), and provides for such varied health and safety concerns as flammable or combustible materials and emission standards (id., §§ 6700-6703, 6718), cranes and trenching (id., §§ 6704-6707), first aid (id., § 6708), explosives (id., §§ 6710-6711), field sanitation (id., § 6712), and exposure to lead (id., § 6716-6717). All of these things concern physical safety on the job, and Cal-OSHA contemplates enforcement through fines and other penalties arising from breaches of the code sections or regulatory standards and orders (id., §§ 6423-6436).
Khamvan cites a covered employer’s broadly stated duty to maintain a safe and healthful workplace (§ 6400) but, tellingly, cites no specific provision or regulation that would cover the negligence he alleges in the pre-inspection work done by WECI. Indeed, it is hard to imagine how Cal-OSHA provisions or standards could effectively regulate, or prevent, such negligence. WECI did nothing to alter the worksite. It reported its results back to PG&E, for use in preparing work requests, had no actual or contractual authority to supervise or control the ultimate work, had no authorization to participate in it, and was not present when it was done.
It follows that, if WECI was not a creating employer that created a “hazard” as contemplated by the code provision (Lab. Code, § 6400, subd. (b)(2)), then WECI cannot be a correcting employer responsible for actually correcting it (id., § 6400, subd. (b)(4)), even if there were evidence (which there is not) that anyone from WECI ever revisited the site or realized there had been any error in the pre-inspection estimates.
To the extent that Khamvan relies on agency, we accept the parties’ view that WECI acted as PG&E’s agent in doing the pre-inspection work so as to bring it within Privette case law as an agent of the “hirer” (Ruiz, supra, 130 Cal.App.4th at pp. 55-56, 59-64), but nothing shows agency between WECI and PG&E regarding the actual tree trimming work, so as to render WECI an “employer” under Labor Code section 6400. Khamvan relies on WECI’s contractual duty with PG&E to “prescribe” what trimming was needed, but given the contractually specified duties for the trimming contractors to independently determine the mode and method of the actual work, there is no substance to Khamvan’s reliance. What the contract between PG&E and WECI termed “prescribe” was, in context, estimated work that PG&E would contract out under provisions making the actual trimmer responsible for safety and the mode and method of trimming.
No triable issue appears that WECI was an “employer” subject to workplace health and safety duties under Labor Code section 6400, or related sections 6401 or 6403.
Labor Code section 6401 provides: “Every employer shall furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.” Labor Code section 6403 similarly provides that “[n]o employer shall fail or neglect” to provide, use and adopt such devices, safeguards, and so on.
III. Evidentiary Rulings
Khamvan raises two perfunctory challenges to rulings excluding opposition evidence. First, he disputes the exclusion of deposition testimony he offered as exhibits, in excerpted form with the use of “TrialDirector software.” He gives no record citations to that evidence or the pertinent ruling, but WECI explains that the exhibits were found to violate rule mandates that the first page of each deposition exhibit be attached (Cal. Rules of Court, rule 3.1116(a)), that the original pagination be visible (id., rule 3.1116(b)), and that the relevant portion of the testimony be marked so as to call attention to it (id., rule 3.1116(c)). Khamvan claims he was in substantial compliance with the first mandate but does not brief the second or third, or offer any analysis of how the excluded testimony might have changed the summary judgment result.
Second, Khamvan vaguely asserts that the court “improperly excluded numerous expert opinions.” He gives a few record citations but again without analysis of who the experts were, their opinions, or how receiving them might have changed the result. He urges that an expert’s “ultimate opinion” on a conclusion of law should be admitted, at least “ ‘on the customary practices in an arena of esoteric activity’ ”—eliding over the rest of the quoted sentence, “ ‘for purposes of weighing whether the inherent risks of the activity were increased by the defendant’s conduct.’ [Citations.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1017.) This murkiness is clarified a bit by WECI, but only to the extent of asserting that the testimony had to do with the issue of “whether WECI has a duty” to Khamvan, and thus was properly excluded.
Khamvan presents these arguments so poorly that they merit no further comment. (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 710-711.) He fails to affirmatively show error or a miscarriage of justice. (Vaughn v. Jonas (1948) 31 Cal.2d 586, 601; Walling v. Kimball (1941) 17 Cal.2d 364, 373; Cal. Const., art VI, § 13; Evid. Code, § 354.)
Disposition
The judgment is affirmed.
We concur: Haerle, J. Richman, J.
“(b) On multiemployer worksites, both construction and nonconstruction, citations may be issued only to the following categories of employers when the division has evidence that an employee was exposed to a hazard in violation of any requirement enforceable by the division:
“(1) The employer whose employees were exposed to the hazard (the exposing employer).
“(2) The employer who actually created the hazard (the creating employer).
“(3) The employer who was responsible, by contract or through actual practice, for safety and health conditions on the worksite, which is the employer who had the authority for ensuring that the hazardous condition is corrected (the controlling employer).
“(4) The employer who had the responsibility for actually correcting the hazard (the correcting employer).
“The employers listed in paragraphs (2) to (4), inclusive, of this subdivision may be cited regardless of whether their own employees were exposed to the hazard.
“(c) It is the intent of the Legislature, in adding subdivision (b) to this section, to codify existing regulations with respect to the responsibility of employers at multiemployer worksites. Subdivision (b) of this section is declaratory of existing law and shall not be construed or interpreted as creating a new law or as modifying or changing an existing law.”
Khamvan cites these provisions, asserting that, by negligently estimating the tree height and work, “WECI ‘adopted’ the practice of topping and directed Aadams [Tree] to perform the work in this manner.” In truth, of course, Aadams Tree was not “directed” by WECI’s recommendations; rather, the subcontractor was obligated to make its own decisions in that regard. But in any event, the threshold problem remains that WECI does not appear to be a covered “employer.”