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Khosh v. Staples Construction Co., Inc.

California Court of Appeals, Second District, Sixth Division

October 26, 2016

AL KHOSH, Plaintiff and Appellant,
v.
STAPLES CONSTRUCTION COMPANY, INC., Defendant and Respondent

         Ventura County Superior Court No. 56-2014-00447304-CU-PO-VTA--Hon. Vincent J. O'Neill, Jr., Judge

          Appeal from a judgment of the Superior Court of Ventura County. Judgment affirmed and respondent to recover its costs on appeal.

Page 713

[Copyrighted Material Omitted]

Page 714

         COUNSEL

         Angarella Law and Steven V. Angarella for Plaintiff and Appellant.

         Yukevich | Cavanaugh, James J. Yukevich, Cristina M. Ciminelli and Patrick J. Cimmarusti for Defendant and Respondent.

         Gilbert, P. J., and Yegan, J., concurring.

          OPINION

          [208 Cal.Rptr.3d 701] TANGEMAN, J.

          An employee of an independent contractor generally may not recover tort damages for work-related injuries from the contractor's hirer. ( Privette v. Superior Court (1993) 5 Cal.4th 689, 702 [21 Cal.Rptr.2d 72');">21 Cal.Rptr.2d 72, 854 P.2d 721] ( Privette ).) There are exceptions to this rule but they do not

Page 715

apply here. We decide that the trial court correctly granted a motion for summary judgment against the injured employee when he failed to present evidence that respondent affirmatively contributed to his injuries. As a result, there were no triable issues of material fact on his theory that either the retained control exception or the nondelegable duty exception applied.

         Al Khosh was injured while performing electrical work at California State University Channel Islands (the University). He was employed by Myers Power Products, Inc. (Myers), a subcontractor on the project. Khosh sued the general contractor, Staples Construction Company, Inc. (Staples), for negligence.

         The trial court granted Staples's motion for summary judgment because Khosh failed to establish that Staples retained control over his work and affirmatively contributed to his injury. (Code Civ. Proc., § 437c; Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 [115 Cal.Rptr.2d 853');">115 Cal.Rptr.2d 853, 38 P.3d 1081] ( Hooker ).) Khosh contends that a reasonable jury could find Staples (1) retained control over the work and affirmatively contributed to Khosh's injury, and (2) breached a nondelegable duty to Khosh which caused his injury. He also contends the court erred in sustaining Staples's evidentiary objections. We affirm.

         FACTS AND PROCEDURAL HISTORY

         The University hired Staples to install a backup electrical system at the University. Staples hired DK Electrical Systems, Inc. [208 Cal.Rptr.3d 702] (DK), as the high-voltage subcontractor for the project. DK hired Myers to construct and install electrical switchgear for the system.

         The contract between Staples and the University required Staples to " exercise precaution at all times for the protection of persons and their property," and to " retain a competent, full-time, on-site superintendant to ... direct the project at all times," among other things. It made Staples " exclusively responsible" for the health and safety of its subcontractors, and required Staples to submit " comprehensive written work plans for all activities affecting University operations," including utility shutdowns.

         Myers informed Staples it needed three days to accomplish its last task on the project, including a shutdown of the electrical system. The University scheduled a campus-wide electrical shutdown. The shutdown was ...


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