Painter v. Amin

JOHN PAINTER et al., Plaintiffs and Appellants, v. SEAN A. AMIN, Defendant and Respondent.

F079239

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

May 17, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 9000704)

OPINION

APPEAL from a judgment of the Superior Court of Stanislaus County. John D. Freeland, Judge.

Balamuth Law and Kelly Balamuth, for Plaintiffs and Appellants.

McCormick, Barstow, Sheppard, Wayte & Carruth, Todd Baxter and Dana B. Denno, for Defendant and Respondent.

-ooOoo- Plaintiff John J. Painter, an employee of a heating and air conditioning maintenance company, was injured when a roof access ladder pulled loose from the side of a commercial building and he fell to the ground. Painter sued the building owner for premises liability. The owner moved for summary judgment under Code of Civil Procedure section 437c,¹ contending he was protected by the general rule that the hirer of an independent contractor, such as the maintenance company in this case, is not liable to the contractor's employees who are injured on the worksite and covered by workers' compensation insurance. (Privette v. Superior Court (1993) 5 Cal.4th 689, 692 (Privette).) The owner also contended the premises liability exception to this general rule did not apply because he did not actually know, and reasonably could not have known, of the concealed hazardous condition on his premises. (See Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675 (Kinsman).) He asserted a reasonable investigation would not have revealed the ladder had been improperly fastened to the building or was otherwise hazardous and, therefore, he had no constructive knowledge the ladder posed a danger. The trial court agreed and granted the summary judgment motion. Painter appealed.

Painter contends a triable issue of fact exists about whether the owner had imputed knowledge of the concealed hazard—specifically, the knowledge of the person who improperly attached the ladder to the side of the building. Painter argues the owner's separate statement of undisputed material facts and his supporting evidence failed to address, much less negate, the possibility of imputed knowledge. We agree. The moving papers did not present sufficient facts about the general contractor who handled the building's construction to establish that entity was a genuine independent contractor rather than an employee. Thus, owner's papers did not carry his initial burden as the party moving for summary judgment, which required him to show Painter could notestablish the knowledge element of his premises liability cause of action by using imputed knowledge of the concealed hazard.

This appeal illustrates " 'the importance of ... accurately identifying the facts material to the moving party's legal theory' (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 632 (Haney)) and actually including those material facts in the separate statement." (AMCO Ins. Co. v. All Solutions Ins. Agency, LLC (2016) 244 Cal.App.4th 883, 904, fn. 8 [summary judgment reversed].)

We therefore reverse the judgment.

FACTS

In 2001, defendant Sean A. Amin and his brother acquired ownership of a lot located on North Carpenter Road in Modesto for the purpose of developing it.² They hired an engineering firm, Morad Engineering, and a general contractor, J.V. Construction, to complete two buildings—a warehouse-style building at the back of the lot and a one-story office building for commercial tenants at the front of the lot.

Morad Engineering prepared the plans for the buildings and did what was necessary to get the building permit approved by the city. No other architectural or engineering firm was involved in the preparation of the plans.

Amin described how J.V. Construction was chosen to be the general contractor by testifying: "I mean, like we do our due diligence to get bids from everybody so, you know, we just got bids and then he was the, I guess - my best recollection, he's the one who got the bid." Amin stated the man's name was "John, Johnny, something like that" and was not able to recall a last name.³ Amin testified he had lost much of thedocumentation relating to the construction of the building, but did have some construction loan and tax documents. When asked if he knew the location of J.V. Construction, Amin testified: "Not really. All I know, somewhere in Modesto I assume."

While the buildings were being built, Amin (not his brother) had the most contact with J.V. Construction. Amin explained this by stating: "Because I was the ... general contractor. Not a general contractor but engineer at that time." When asked if he used "any of your engineering skills or knowledge with regard to this building," Amin answered: "No, because I'm not a licensed engineer so I always, you know, I don't want to ... how do you say? What's the word for it? ... exaggerate I guess more than what I'm capable of."⁴

After the commercial building was erected, an exterior ladder was installed on one of its sides to provide roof access. Since installation, the ladder had not been removed or changed. The individual or individuals who installed the ladder and the firm for which they worked are not identified in the summary judgment papers. During oral argument, counsel for Painter appeared to concede that, at least for purposes of summary judgment and this appeal, the individual or individuals who installed the ladder worked for the general contractor. We accept this apparent, nonbinding concession for purposes of this appeal. One consequence of this approach is we do not analyze the possibility that a subcontractor installed the ladder.

In 2017, Painter was employed by Bailey's Heating and Air Conditioning, Inc. (Bailey's Heating & Air), as a heating, ventilation, and air conditioning (HVAC) service technician. In November 2017, Amin retained Bailey's Heating & Air to perform maintenance of an HVAC unit on the roof of the one-story commercial building.

On November 25, 2017, Painter went to Amin's building to perform work as an employee of Bailey's Heating & Air. At that time, Painter had over 25 years of training and experience in the HVAC trade, including the methods for inspecting and safely using ladders affixed to commercial buildings. Painter received all his instructions for the scope of his work at the commercial building from his employer. Bailey's Heating & Air required Painter to use any affixed ladders at the commercial building to gain access to the roof and perform his work on the HVAC unit.

Once Painter arrived at the commercial building, he inspected the building's ladder before using it. As part of that inspection, Painter (1) looked for signs of metal fatigue, (2) looked for signs of rungs that had come loose, (3) looked to see if all bolts and fasteners were in place, and (4) grabbed the ladder and tugged it firmly to determine if it was loose. When Painter ascended the ladder for the first time, he observed that it was not loose, saw no loose bolts, and saw no gaps between the ladder mounts and the building. Painter obtained access to the roof without issue. Painter also successfully used the ladder to descend to the ground. On his way down, he did not observe anything about the condition of the ladder that concerned him.

When Painter used the ladder to ascend to the roof a second time, he again observed nothing about the condition of the ladder that concerned him. To descend the ladder a second time, Painter grabbed both handrails and placed both feet on the top rung. At that point, the ladder came loose without any indication it was coming loose—that is, it detached from the building all at once, almost like an explosion.

Painter suffered serious injuries as a result of the fall. Those injuries are not material to Amin's summary judgment motion, which addresses only liability. Painterfiled a workers' compensation claim for the injuries he suffered from the fall and was receiving benefits. The detachment of the ladder affixed to Amin's commercial building was the only hazardous condition Painter encountered causing him injury.

After Painter's fall, Mitch Bailey, the president of Bailey's Heating & Air, went to the building and looked in the four bolt or screw holes left by the ladder in the side of the building. Bailey shown a flashlight into the holes and saw that the ladder had been attached to the three-eighths inch plywood that wrapped the building, not into any structural members.⁵

Amin did not have actual knowledge that the ladder affixed to his building was loose or in a condition that was unsafe for use. Amin was the only person responsible for the maintenance of the ladder and the building. Amin testified that every time he was at the building, which was approximately once a month, he would do a visual inspection and if he saw something was not right, he would correct it. He did not personally inspect the ladder in the five years before the incident because it never occurred to him as there had not been any problem with it. Amin testified he might have used the ladder once or twice in the five years before the incident and multiple contractors had used the ladder during that time. Amin testified he would ask the contractors who went to the roof a general question about whether they saw anything that needed attention and no contractor mentioned a problem with the ladder.

PROCEEDINGS

In January 2018, Painter and his wife filed a complaint against Amin, alleging general negligence, premises liability, and negligence per se. In December 2018, Aminfiled a motion for summary judgment. Amin argued the Privette doctrine barred Painter's claims and a reasonable inspection ...