(Super. Ct. No. 39-2008-00182847-CU-PO-STK)
The opinion of the court was delivered by: Nicholson , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Juan Sanchez fell off of defendant Alejandro Perez's roof while making repairs to the roof as a favor to defendant. Sanchez died as a result of his injuries. The decedent's survivors sued defendant alleging negligence, but the trial court entered summary judgment. On appeal, plaintiffs contend that (1) the trial court incorrectly found that the decedent was not defendant's employee, (2) the undisputed facts established that defendant is liable for ordinary negligence, and (3) their cause of action for negligent infliction of emotional distress is still viable. As none of the contentions has merit, we affirm.
The trial court recounted the undisputed facts in its order granting defendant's motion for summary judgment as follows:
"On April 22, 2006, decedent, Juan Sanchez, fell from the roof of the residence of Defendant Perez . . . . Prior to the incident, Defendant Perez was informed and believed that there were some areas of dry rot under the eaves on various portions of the roof. The sole cost of the roof repairs was $186.68, which was the cost of supplies purchased by Perez. The decedent had several years of construction experience, including roofing repairs and according to his wife knew how to perform all aspects of construction. On April 22, 2006, the decedent began making roof repairs to Defendant's eaves. The decedent used his own tools and ladder to make the repairs, with the exception of one saw which was provided by Defendant Perez. Defendant Perez's only assistance in the repairs was handing materials up the ladder. As decedent was familiar with roof repairs, Defendant Perez did not direct the details of the decedent's work. Prior to the decedent's fall, his wife warned him to be careful because he was near the edge of the roof. Defendant Perez subsequently found the decedent [lying] injured on the driveway. Decedent was transported to San Joaquin County General Hospital where he died the following day from his injuries. Prior to the fall, the decedent had been drinking beer. None of the Plaintiffs witnessed the fall, but were notified afterwards. There were no witnesses who saw how decedent fell from the roof. The decedent was not a minor at the time of the fall." (Citations to record and unnecessary capitalization omitted.)
Plaintiffs filed a first amended complaint, alleging wrongful death, negligence, premises liability, and survival action for expenses.
Defendant filed a motion for summary judgment. He asserted that plaintiffs could not establish that he had a duty of care and, even if he had a duty of care, he did not breach the duty of care, as a matter of law. Defendant also asserted that plaintiffs could not establish causation and did not have a claim for emotional distress for witnessing the accident.
Plaintiffs responded that defendant was liable for failing to provide a safe work place and that the decedent did not assume the risk.
The trial court granted defendant's motion for summary judgment. It concluded that: (1) all of plaintiffs' causes of action were for negligence; (2) defendant did not owe the decedent a duty of care; (3) California Occupational Safety and Health Act (Cal-OSHA) regulations were inapplicable; (4) the decedent was not defendant's employee; (5) defendant did not exercise control over the work; (6) defendant had no duty to warn the decedent of an obviously dangerous condition; (7) plaintiffs cannot establish causation; (8) the decedent assumed the risk; and (9) plaintiffs cannot establish a claim for emotional distress.
Having granted defendant's motion for summary judgment, the trial court entered judgment in defendant's favor.
A "motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code of Civ. Proc., § 437c, subd. (c).) "A cause of action has no merit if . . . [o]ne or more of the elements of the cause of action cannot be separately established . . . ." (Code of Civ. Proc., § 437c, subd. (o)(1).) "A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established . . . . Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action . . . . The plaintiff . . . may not rely upon the mere allegations . . . of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . ." (Code of Civ. Proc., § 437c, subd. (p)(2).)
"In ruling on [a] motion [for summary judgment], the court must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A trial court may not grant a motion for summary judgment that is based on an inference from the evidence that is contradicted by other inferences or evidence. (Id. at p. 856.)
On appeal, this court "independently review[s] a motion for summary judgment using the same legal standards that governed the trial court's determination of the motion." (Catholic Healthcare West v. California Ins. Guarantee Assn. (2009) 178 Cal.App.4th 15, 23.) More specifically, "[w]e examine the pleadings to ascertain the elements of the plaintiff's claim; the moving papers to determine whether the defendant has established facts justifying judgment in its favor; and, if the defendant did meet this burden, plaintiff's opposition to decide whether he or she has demonstrated the existence of a triable issue of material fact. [Citations.]" (Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 805-806.)