Filed 4/28/20; opinion following rehearing
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                                 DIVISION SIX


JESUS ALANIZ et al.,                             2d Civil No. B290013
                                               (Super. Ct. Nos. 56-2012-
     Plaintiffs and Respondents,             00428643-CU-PO-VTA & 56-
                                             2013-00445026-CU-PO-VTA)
v.                                                 (Ventura County)

SUN PACIFIC SHIPPERS,                         OPINION FOLLOWING
L.P.,                                             REHEARING

     Defendant and Appellant.


             The Privette/Hooker doctrine sets forth the
circumstances in which the hirer of an independent contractor
can be liable for injuries to the contractor’s employees. (Privette
v. Superior Court (1993) 5 Cal.4th 689 (Privette); Hooker v.
Department of Transportation (2002) 27 Cal.4th 198 (Hooker).)
In a negligence action, the hirer of an independent contractor
may be liable to the contractor’s employee only if “the hirer
retained control over safety conditions at [the] worksite” and
“exercise of retained control affirmatively contributed to the
employee’s injuries.” (Hooker, at p. 202, original italics.) In a
premises liability action, the hirer may be liable for injuries to
the employee only if: “(1) it knows or reasonably should know of
a concealed, preexisting hazardous condition on its premises; (2)
the contractor does not know and could not reasonably ascertain
the condition; and (3) the [hirer] fails to warn the contractor.”
(Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675 (Kinsman),
italics added.) We conclude that the trial court here prejudicially
erred when it omitted these elements from its instructions on
negligence and premises liability.
             Sun Pacific Shippers, L.P. (Sun Pacific), appeals from
the judgment after a jury awarded damages against it for injuries
sustained by Jesus Alaniz, an employee of one of its independent
contractors. Sun Pacific contends: (1) the trial court erred when
it did not instruct the jury on the Privette/Hooker doctrine, (2) the
court erred when it did not instruct on mitigation of damages, (3)
the court improperly denied its motion for judgment
notwithstanding the verdict (JNOV), and (4) substantial evidence
does not support the award of future medical expenses. We
reverse the judgment, remand for a new trial on the negligence
cause of action, and direct judgment for Sun Pacific on the
premises liability cause of action.
           FACTUAL AND PROCEDURAL HISTORY
                            The accident
             Sun Pacific grows mandarins at its orchard outside
Fillmore. It hires independent contractors to deliver empty bins
to the orchard, pick the fruit, and deliver full bins to the packing
house. Each contractor provides its own pickers, truck drivers,
and forklift operators.
             In February 2012, Alaniz, a truck driver employed by
Navarro Trucking, delivered a truckload of empty bins to Sun
Pacific’s orchard. A forklift driven by Roberto Reynosa—who was
employed by another independent contractor, J. Antonio Rosa




                                  2
Lule—unloaded bins from the north side of the trailer. Alaniz
climbed onto the trailer and, as space became available on the
north, pulled bins over so Reynosa could unload them. No one
from Sun Pacific directed Alaniz to do this.
             While pulling a stack of bins, Alaniz fell off the truck
and onto the ground. Reynosa drove forward, crushing Alaniz’s
leg under the forklift. He offered to take Alaniz to the doctor.
Alaniz declined Reynosa’s offer and chose to finish working his
shift instead. He went to a clinic four hours later, and
subsequently underwent surgery on his leg and shoulder.
                                Trial
             Alaniz and his wife sued Sun Pacific, Lule, and
Reynosa for negligence, and Sun Pacific for premises liability. At
trial, Alaniz testified that a Sun Pacific supervisor, Filipe Merino,
told him to park at a specific location on the south side of the
road; cars parked on the road made it too narrow for a forklift to
access the trailer from the south. Alaniz also said that Reynosa
told him to climb onto the trailer and pull the bins to its north
side so Reynosa could unload them. Reynosa claimed that
“everybody [did] this so it was okay to go up there and do it.”
Alaniz asked if they could instead move the cars parked on the
north side of the road so he could park there, but Reynosa said
that would take too long. Alaniz got onto the truck and pulled
the bins to the north side of the trailer as directed by Reynosa.
             Reynosa testified that Merino called him when Alaniz
arrived at the orchard and told him to tell Alaniz where to park
so he could unload the bins. Reynosa conveyed this instruction,
and Alaniz complied by backing up a short distance. Reynosa
said that cars did not block Alaniz from moving the truck so the




                                 3
forklift could reach the bins on the south. He denied telling
Alaniz to get on the trailer to move the bins.
             Merino denied telling Alaniz where to park, denied
telling Reynosa to unload Alaniz’s truck, and denied talking to
either Alaniz or Reynosa before the accident. He testified that
cars were not blocking Alaniz’s truck.
             A defense expert, Dr. Richard Rosenberg, testified
that Alaniz’s injuries would have been less serious if he had gone
to the hospital sooner. It “would [have been] so advantageous” if
he could have seen a doctor within an hour. It is about a 25-
minute drive from Fillmore to Ventura County Medical Center.
Alaniz’s expert, Dr. Robert Klapper, testified that the seriousness
of Alaniz’s leg injuries did not depend on how quickly he got to
the hospital.
             Life-care planner Carol Hyland testified about future
medical care costs, including an orthopedist, a physical therapist,
gym membership, functional restoration program, and attendant
care or chore services. She said that she included those services
in her cost calculation on the recommendation of Dr. Klapper.
Dr. Klapper testified that he only had expertise in orthopedics,
however, and was responsible for only certain aspects of Hyland’s
report.
                         Jury instructions
             The trial court instructed the jury on general
principles of negligence, but refused Lule and Reynosa’s request
for a modified version of CACI No. 1009B, the instruction that
sets forth the required elements for liability pursuant to Privette
and Hooker. Although Sun Pacific relied on the Privette/Hooker




                                 4
doctrine throughout trial, the record does not establish that it
joined Lule and Reynosa’s request.1
             The trial court also instructed the jury on general
principles of premises liability. It did not instruct on a
landowner’s responsibility to employees of an independent
contractor pursuant to the Privette/Hooker doctrine. Sun Pacific
relied on the doctrine throughout trial, but did not request an
instruction on it.
             Lule and Reynosa requested a jury instruction on
mitigation of damages based on Alaniz’s delay in seeking medical
treatment. The trial court refused the instruction, reasoning that
it would be based on speculation because there was no evidence of
how long an ambulance would have taken to reach the work site.
                               Verdict
              The jury found for Alaniz and his wife, and assigned
40 percent responsibility to Sun Pacific, 35 percent to Lule and
Reynosa, 15 percent to Navarro Trucking, and 10 percent to
Alaniz. After reducing the award for workers’ compensation

      1 In its motion for new trial, Sun Pacific stated that it also
had requested a Privette/Hooker instruction, but the trial court
refused it. In that hearing, counsel for Lule and Reynosa
mentioned the instruction “requested by Sun Pacific,” but neither
the Alanizes nor the court stated whether Sun Pacific had
requested it. Because the record does not include either a written
or oral request by Sun Pacific for a Privette/Hooker instruction,
we conclude that no request was made. (Null v. City of Los
Angeles (1988) 206 Cal.App.3d 1528, 1535-1536.) The court’s
denial of Lule and Reynosa’s request for the instruction did not
make a request by Sun Pacific futile because as contractors, the
instruction would not have the same application to them. (See
People v. Wilson (2008) 44 Cal.4th 758, 793.)




                                 5
benefits, the trial court awarded Alaniz $2,563,190 for past and
future economic and noneconomic losses. It awarded his wife
$131,250 for loss of consortium.
                Motions for new trial and JNOV
             Sun Pacific moved for a new trial and for JNOV on
the basis that substantial evidence did not support either
negligence or premises liability. The new trial motion also
challenged the court’s failure to give a mitigation of damages
instruction and its admission of evidence regarding future
medical expenses. The trial court denied both motions.
                            DISCUSSION
               Privette/Hooker jury instructions
             Sun Pacific contends the trial court prejudicially
erred because it did not instruct the jury on the Privette/Hooker
doctrine as it applies to either negligence or premises liability.
We agree.
             Our Supreme Court’s decision in Kinsman is
controlling. There, an employee of an independent contractor
that built and dismantled scaffolding used by other trades was
exposed to airborne asbestos produced by those trades.
(Kinsman, supra, 37 Cal.4th at p. 665.) The trial court instructed
the jury on the hirer’s liability for failure to exercise ordinary
care in the maintenance of the property to avoid exposing persons
to an unreasonable risk of harm. (Id. at p. 681.) But “the usual
rules about [premises] liability must be modified, after Privette,
as they apply to a hirer’s duty to the employees of independent
contractors.” (Id. at p. 674.) The trial court’s instruction, “while
an accurate statement of premises liability generally, [was]
partly erroneous when applied” to the hirer’s liability to Kinsman
because it did “not make clear that the hazard must have been




                                 6
unknown and not reasonably ascertainable to the independent
contractor that employed Kinsman and to other contractors
working contemporaneously on the premises.” (Id. at p. 682.)
Because “the jury instruction was in error” and a properly
instructed jury could have concluded that the contractors knew
about the hazard, the error was prejudicial and the judgment was
reversed. (Id. at pp. 682-683.)
             Similarly here, the trial court instructed the jury that
Sun Pacific was liable if its failure to use reasonable care was a
substantial factor in harming Alaniz (see CACI Nos. 400, 401 &
4310). These instructions were erroneous because they did not
say that these principles only applied to the hirer of an
independent contractor if its negligent exercise of retained control
over safety conditions affirmatively contributed to the harm.
(Hooker, supra, 27 Cal.4th at p. 202.) The court also told the jury
that Sun Pacific was liable if its negligent use or maintenance of
the property was a substantial factor in harming Alaniz (see
CACI Nos. 1000, 1001, 1003 & 1011). These instructions were
erroneous because they did not say that these principles would
only apply to Sun Pacific if the hazard was concealed. (Kinsman,
supra, 37 Cal.4th at p. 675.)
                              Forfeiture
             The Alanizes assert Sun Pacific forfeited its challenge
to the negligence instructions because it did not request
Privette/Hooker instructions at trial. We disagree with the
Alanizes because without the instructions the court incorrectly
explained the applicable law. (Suman v. BMW of North America,
Inc. (1994) 23 Cal.App.4th 1, 9 (Suman).) While “there ordinarily
is no duty to instruct in the absence of a specific request by a
party[,] the exception is a complete failure to instruct on material




                                 7
issues and controlling legal principles which may amount to
reversible error.” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 951,
overruled on other grounds in White v. Ultramar, Inc. (1999) 21
Cal.4th 563, 574, fn. 4.)
              Reversal may be required where, as here, the jury
instructions omit a required element, even without an objection
or request for a correct instruction. (Brown v. Smith (1997) 55
Cal.App.4th 767, 783, fn. 11; Code Civ. Proc., § 647.) In Brown,
jury instructions defining sexual harassment were erroneous
because they did not include the requirement that the conduct be
severe or pervasive. (Brown, at p. 785.) Similarly, in Mock v.
Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 333-
334, the punitive damages award was reversed based on an
instruction defining “malice” that misstated the law by omitting
the statutory requirement of “despicable conduct.” (Accord,
Green v. State of California (2007) 42 Cal.4th 254, 267
[instructions on disability discrimination omitted the required
element of plaintiff’s ability to perform the job]; Bowman v.
Wyatt (2010) 186 Cal.App.4th 286, 298, fn. 7 [instruction
erroneous because it did not list all factors distinguishing
employee from independent contractor; no forfeiture because
“‘“the instruction [was] prejudicially erroneous as given, that is[]
. . . an incorrect statement of the law”’”].) Here, the instructions
on negligence were erroneous because they did not list the
required elements of retained control over safety conditions, or
that the defendant affirmatively contributed to the injury.
              In addition, the failure to request correct instructions
does not forfeit a challenge to jury instructions that erroneously
contain legal standards inapplicable to the facts. For example, in
Suman, the court instructed that penalties for a consumer fraud




                                  8
violation regarding “consumer goods” required a willful violation;
the instruction was erroneous because the case involved a new
motor vehicle for which the violation need not be willful.
(Suman, supra, 23 Cal.App.4th at p. 11.) In Manguso v.
Oceanside Unified School Dist. (1984) 153 Cal.App.3d 574, 581,
the plaintiff in a defamation case against a school district did not
forfeit a challenge to an instruction that gave a statutory
definition of “actual malice” applicable only to news
organizations. Similarly, in National Medical Transportation
Network v. Deloitte & Touche (1998) 62 Cal.App.4th 412, 428-429,
the jury was instructed that auditors were required to continue
employment if withdrawal would jeopardize the interests of the
client; the instruction was erroneous because the law allowed
withdrawal if consistent with professional standards, even if it
prejudiced the client. Here, the negligence instructions were
incorrect because the correct legal standards were defined by
Privette/Hooker rather than by general principles of negligence.
              On rehearing, the Alanizes assert that Sun Pacific
forfeited its challenge because Privette/Hooker is an affirmative
defense it was required to assert. (Compare Doney v.
Tambouratgis (1979) 23 Cal.3d 91, 96-97 [coverage by Workers’
Compensation Act an affirmative defense to action for damages];
Ray v. Silverado Constructors (2002) 98 Cal.App.4th 1120, 1130
[Privette/Hooker principles not “a complete defense”] with Hooker,
supra, 27 Cal.4th at p. 214 [employee must show hirer
affirmatively contributed to injuries]; Regalado v. Callaghan
(2016) 3 Cal.App.5th 582, 595 [approving CACI No. 1009B, which
places burden of proving elements of retained control and
affirmative conduct on plaintiff] and Madden v. Summit View,
Inc. (2008) 165 Cal.App.4th 1267, 1276 [employee had burden on




                                 9
summary judgment to show hirer retained control over safety
conditions and affirmative conduct contributed to injury].) But
even without a request by the parties, the court must instruct on
“the applicable law regarding the major subjects raised by the
evidence, including affirmative defenses.” (Chakalis v. Elevator
Solutions, Inc. (2012) 205 Cal.App.4th 1557, 1573.) In Chakalis,
the jury found comparative fault by a nonparty treating
physician for injuries incurred in an elevator accident. The
judgment was reversed where no instructions were requested or
given on the principles of medical malpractice. Similarly, in
Paverud v. Niagara Machine & Tool Works (1987) 189 Cal.App.3d
858, 863, overruled on other grounds in Soule v. General Motors
Corp. (1994) 8 Cal.4th 548, 574, 580, failure to instruct on the
superseding cause defense to negligence was a “complete failure
to instruct on a material issue” and reversible error.
                               Prejudice
              The trial court’s error was prejudicial. Error in
instructing a jury is reversible only if “there is a reasonable
probability that in the absence of the error, a result more
favorable to the appealing party would have been reached.”
(Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, 580
(Soule).) “Thus, when the jury receives an improper instruction
in a civil case, prejudice will generally be found only ‘“[w]here it
seems probable that the jury’s verdict may have been based on
the erroneous instruction . . . .”’ [Citation.]” (Id. at p. 574.)
“‘[R]easonable probability’” means “merely a reasonable chance,
more than an abstract possibility,” a “‘probability sufficient to
undermine confidence in the outcome.’” (College Hospital Inc. v.
Superior Court (1994) 8 Cal.4th 704, 715, italics omitted.)




                                10
              To determine whether that probability exists here,
we evaluate the entire record, including (1) the state of the
evidence, (2) the effect of other instructions, (3) the effect of
counsel’s arguments, and (4) any indications by the jury itself
that it was misled. (Soule, supra, 8 Cal.4th at pp. 580-581.) We
assume the jury might have accepted Sun Pacific’s evidence, and,
if properly instructed, might have decided in its favor. (Mayes v.
Bryan (2006) 139 Cal.App.4th 1075, 1087.)
              Here, a properly instructed jury might have decided
in Sun Pacific’s favor on the negligence cause of action based on
the first three Soule factors. First, the jury could have found that
Sun Pacific’s general control over aspects of the harvesting
operation, including designating the area to unload bins, did not
establish that it retained control over safety conditions for its
contractors. (See, e.g., McDonald v. Shell Oil Co. (1955) 44
Cal.2d 785, 788-790 [broad power of control over results of the
work did not constitute control over means of accomplishing the
job].) It is also reasonably probable that the jury would have
found that Sun Pacific merely permitted—rather than directed—
the manner of unloading the bins. (Hooker, supra, 27 Cal.4th at
pp. 214-215; see also McDonald, at p. 790 [owner’s “suggestions
or recommendations as to details of the work” to contractor’s
employees do not impose liability on owner].)
              Second, the jury instructions that were given support
a finding of prejudice. CACI No. 1000 told jurors that “Sun
Pacific owned or controlled the property,” but did not mention
that it had to retain control over safety conditions for liability to
attach. (Cf. Khosh v. Staples Construction Co., Inc. (2016) 4
Cal.App.5th 712, 718 [to be liable pursuant to retained control
theory, hirer must “direct[] the contractor about the manner or




                                 11
performance of the work, direct[] that the work be done by a
particular mode, or actively participat[e] in how the job is done”].)
CACI No. 1001 told the jury that it could consider “[t]he extent of
Sun Pacific’s control over the condition that created the risk of
harm,” but did not include the Privette/Hooker requirement that
Sun Pacific negligently exercise its retained control in a manner
that affirmatively contributed to the harm. (Cf. Hooker, supra, 27
Cal.4th at p. 202.) Moreover, these instructions were given as
limitations on premises liability, not as limitations on negligence.
They were thus an insufficient substitute for a Privette/Hooker
instruction. (E.g., Vine v. Bear Valley Ski Co. (2004) 118
Cal.App.4th 577, 594-595, 601 (Vine) [contributory negligence
instruction did not cure failure to instruct on assumption of
risk].)
              Finally, counsel for Alaniz argued general principles
of negligence, without mentioning the Privette/Hooker
requirements. He also argued that Sun Pacific was negligent for
failing to widen the area by removing trees. These arguments
aggravated the prejudicial effect of the erroneous jury
instructions. (Vine, supra, 118 Cal.App.4th at pp. 601-603
[failure to give assumption of risk instruction allowed counsel to
give legally erroneous argument]; Whiteley v. Philip Morris, Inc.
(2004) 117 Cal.App.4th 635, 660 [counsel’s arguments highlighted
prejudicial effect of instructional error].)
              Because there is a reasonable probability the jury
based its negligence verdict on the erroneous instructions, the
case must be remanded for a new trial on negligence so that a




                                 12
jury may evaluate whether Sun Pacific is liable pursuant to the
applicable legal standards.2
                Mitigation of damages instruction
             Sun Pacific contends the trial court improperly
refused a jury instruction on mitigation of damages based on
Alaniz’s delay in seeking medical care. The Alanizes claim Sun
Pacific forfeited its contention because it did not request the
instruction at trial. But the court refused Lule and Reynosa’s
request for the instruction (CACI No. 3930, as modified).
Because Sun Pacific was similarly situated, a request would have
been futile. (People v. Chism (2014) 58 Cal.4th 1266, 1291; M.T.
v. Superior Court (2009) 178 Cal.App.4th 1170, 1177.)
             The trial court’s refusal of the instruction was error.
A party is entitled to an instruction on every theory that could be
established by the evidence most favorable to that theory. (Scott
v. Rayhrer (2010) 185 Cal.App.4th 1535, 1540.) Relevant here is
the theory that plaintiffs cannot be compensated for damages
that they could have avoided by reasonable effort or expenditure.
(State Dept. of Health Services v. Superior Court (2003) 31
Cal.4th 1026, 1042-1043.) Injured persons must use reasonable
diligence in caring for their injuries. (Christiansen v. Hollings
(1941) 44 Cal.App.2d 332, 346.) Depending on the circumstances,



      2 We would reach the same conclusion regarding the trial
court’s failure to give a Privette/Hooker instruction on the
premises liability cause of action, but, as discussed below, the
absence of evidence of a concealed hazardous condition compels
us to conclude that JNOV should have been granted as to this
cause of action. We thus need not evaluate the prejudicial effect
of that instruction’s absence.



                                13
it may be reasonable for the person to seek immediate medical
care. (Ibid.)
              Here, Dr. Rosenberg testified that it would have been
“so advantageous” if Alaniz could have seen a doctor within an
hour, and that it is about a 25-minute drive from Fillmore to the
hospital. Reynosa offered to drive Alaniz to the hospital. If the
jury credited this testimony, it could have determined that
Alaniz’s delay in seeking medical attention increased his injuries.
Sun Pacific was thus entitled to an instruction on mitigation of
damages. (Bernal v. Richard Wolf Medical Instruments Corp.
(1990) 221 Cal.App.3d 1326, 1337-1338, overruled on another
point by Soule v. General Motors Corp., supra, 8 Cal.4th at pp.
574, 580.)
                                JNOV
              Sun Pacific contends the trial court erred when it
denied its motion for JNOV. We agree in part.
              JNOV must be granted if the verdict is not supported
by substantial evidence. (Sweatman v. Department of Veterans
Affairs (2001) 25 Cal.4th 62, 68.) Unlike an analysis of
instructional error, when reviewing the grant or denial of a
motion for JNOV we view the evidence in the light most favorable
to the party securing the verdict. (Simmons v. Ware (2013) 213
Cal.App.4th 1035, 1048.) Here, then, we credit the testimony
that Merino directed Alaniz to park at a location too narrow for
the forklift to access the bins on the south side of the trailer.
              As to the negligence cause of action, there was
evidence that Sun Pacific exercised control over where vehicles
parked to load and unload bins, and that it exercised that control
in a way that affirmatively contributed to Alaniz’s injuries.
Based on this evidence, a properly instructed jury could have




                                14
found Sun Pacific liable for negligence. (Kinsman, supra, 37
Cal.4th at p. 683.) Accordingly, we must remand so a properly
instructed jury may evaluate the evidence. (McCoy v. Hearst
Corp. (1991) 227 Cal.App.3d 1657, 1659-1661.)
             As to the premises liability cause of action, there was
evidence that the road where the bins were unloaded was too
narrow and constituted an unsafe condition. But this condition
was openly visible and known to Alaniz. As such, JNOV should
have been granted on the premises liability cause of action.
(Kinsman, supra, 37 Cal.4th at p. 675.) We thus direct the trial
court to enter judgment in favor of Sun Pacific on this cause of
action. (Code Civ. Proc., § 629, subd. (c); Singh v. Southland
Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 367.)
                       Future medical costs
             Finally, Sun Pacific contends it is entitled to a new
trial regarding damages because Hyland’s and Dr. Klapper’s
testimony did not constitute substantial evidence to support the
award of future medical costs. Our reversal of the judgment as to
liability renders resolution of this issue unnecessary.
                           DISPOSITION
             The judgment is reversed and the case is remanded
for a new trial on the negligence cause of action. The trial court
is directed to enter judgment in favor of Sun Pacific on the
premises liability cause of action. Sun Pacific shall recover its
costs on appeal.
             CERTIFIED FOR PUBLICATION.

                                     TANGEMAN, J.
We concur:

             GILBERT, P. J.                      YEGAN, J.



                                15
                     Henry J. Walsh, Judge

               Superior Court County of Ventura

                ______________________________


           Horvitz & Levy, Christopher D. Hu, Curt Cutting and
Stanley H. Chen, for Defendant and Appellant.

             Greene, Broillet & Wheeler, Scott H. Carr, Tobin M.
Lanzetta; Silverberg Law Corporation, James W. Haines, Ivetta
Avanesov; Esner, Chang & Boyer and Andrew N. Chang, for
Plaintiffs and Respondents.




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