Filed 2/13/20
                CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION THREE


 ISMAEL TORRES, JR., an              B294220
 Incompetent Person, etc.,
                                     (Los Angeles County
         Plaintiff and Appellant,    Super. Ct. No. BC608065)

         v.

 DESIGN GROUP FACILITY
 SOLUTIONS, INC.,

         Defendant and Respondent.


      APPEAL from a judgment of the Superior Court of Los
Angeles County, Maurice A. Leiter, Judge. Reversed.
      Law Offices of Berglund & Johnson and Daniel W. Johnson
for Plaintiff and Appellant.
      Lynberg & Watkins, Michael J. Larin, Jerome P. Doctors;
London Fischer, Richard S. Endres, Nicholas W. Davila and
Grant R. Mullen for Defendant and Respondent.
                       ——————————
       Ismael Torres, Jr. sued Design Group Facility Solutions,
Inc. (Design) for personal injuries after he fell through a skylight
at a construction site. Design moved for summary judgment.
The trial court initially denied the motion. Design moved for
reconsideration based on new evidence under Code of Civil
Procedure1 section 1008, subdivision (a). At the hearing on the
motion, the trial court granted reconsideration and, at the same
time, granted the motion for summary judgment without giving
Torres an opportunity to respond to the new evidence. We find
the trial court abused its discretion. We hold that a party
unsuccessfully moving for summary judgment cannot circumvent
the requirements of section 437c by subsequently moving for
reconsideration under section 1008, subdivision (a).
                         BACKGROUND
      Design was hired as the general contractor to renovate and
expand a seafood processing facility. As part of the project,
Design subcontracted with C&L Refrigeration (C&L) to install
new refrigeration units. C&L in turn hired H.J. Vast (Vast) as a
sub-subcontractor to do electrical work. Torres was an employee
of Vast.
      The renovation required workers to be on the roof, which
contained skylights. The roof was roughly divided into western
and eastern sections by a pipe rack with the skylights on the
western section closer together than the skylights on the eastern
section. Design and C&L discussed the safety hazard posed by
the skylights. To address the hazard, C&L created a pathway on
the roof, requiring its workers to walk due west and delineating


      1All further statutory references are to the Code of Civil
Procedure.




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certain paths of travel with caution tape. The eastern section of
the roof was unmarked. While working on the eastern section of
the roof, Torres tripped and crashed through a skylight, falling
33 feet.
       Torres sued Design for damages as a result of his injuries.
Design moved for summary judgment, arguing Torres’s claims
were barred by Privette v. Superior Court (1993) 5 Cal.4th 689,
which generally shields a hirer from liability for an independent
contractor’s workplace injuries. The summary judgment hearing
was continued for several months at Torres’s request so that he
could conduct additional inspections and depositions. Before
Torres filed his opposition, several witnesses were deposed,
including Design’s construction site manager, Vast’s project
foreman, C&L’s safety coordinator, the Vast employee who
witnessed Torres’s fall, and Torres himself. Torres included some
of this new discovery in his opposition.
       The trial court denied Design’s motion, finding that there
were triable issues of fact as to whether Design retained
sufficient control over the work site and whether Design’s
negligence contributed to Torres’s injuries. The trial court relied
on Design’s construction site manager’s statement that he would
check to see if the delineators marking the roof pathway were
connected with tape, rope, or some other kind of line. The trial
court found that this statement created an inference that Design
affirmatively exercised its control by establishing a pathway and
periodically checking the safety delineators on site and that its
negligence in doing so resulted in injury.
       Design then moved for reconsideration under section 1008,
subdivision (a) based on new facts, submitting that it was unable
to provide the trial court with the deposition testimony of




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witnesses taken by Torres and C&L after Design moved for
summary judgment. This included statements from Vast’s
project manager that his communications were strictly with C&L,
that Vast had its own safety practices, and that he orally
instructed Vast employees where to walk. Design submitted the
new evidence via attorney declaration with attached deposition
excerpts, but did not provide a supplemental separate statement.
      Torres opposed reconsideration on the basis that the
motion did not meet section 1008, subdivision (a)’s requirement
that the moving party show new or different facts. Torres
contested whether the deposition testimony was in fact new
because it was available one to five months before the summary
judgment hearing, albeit not before Design filed its motion.
Torres also asserted that Design failed to provide a supplemental
or amended motion that complied with the rules governing
summary judgment, including the requisite 75 days’ notice. (See
§ 437c, subd. (a)(2).) Alternatively, Torres submitted that Design
should have applied ex parte for permission to introduce the
additional evidence. “[W]e should be able to have the opportunity
to respond with like evidence and know exactly what facts we’re
talking about . . . with respect to the summary judgment rules.”
      The trial court addressed both the motion for
reconsideration and the motion for summary judgment in one
ruling. The trial court first granted the motion for
reconsideration, finding that the deposition testimony taken after
Design moved for summary judgment but before the summary
judgment hearing, constituted new evidence that was previously
unavailable. It also noted, ironically, that it would have violated
Torres’s right to due process if it allowed Design to introduce this
evidence in its reply to Torres’s opposition to summary judgment.




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The trial court found the new evidence dispositive of Torres’s
claims and granted the motion for summary judgment.
                          DISCUSSION
       Torres raises two issues on appeal. First, he argues the
trial court erred when it granted Design’s motion to reconsider
the motion for summary judgment because Design did not show
new or different facts since they were available to Design before
the summary judgment hearing. Second, Torres claims by
granting the motion to reconsider in the manner it did, the trial
court deprived him of his due process right to respond to the new
evidence. We offer no opinion on the merits of the first argument
but find that the trial court abused its discretion by granting
Design’s motion for reconsideration under section 1008,
subdivision (a) when it was essentially a renewed summary
judgment motion subject to the requirements of section 437c.
       Section 1008, subdivision (a) allows a party to move for
reconsideration of a prior order based on new or different facts or
a change in law. If the motion to reconsider is based on new
facts, the moving party must provide a satisfactory explanation
for its failure to produce the evidence at an earlier time. (Shiffer
v. CBS Corp. (2015) 240 Cal.App.4th 246, 255.) We review the
trial court’s ruling on a motion for reconsideration for abuse of
discretion. (New York Times Co. v. Superior Court (2005) 135
Cal.App.4th 206, 212.)
       As an initial matter, we offer no opinion on whether Design
provided a satisfactory explanation for its failure to produce the
evidence at an earlier time. For our purposes here, we presume
the trial court was satisfied with Design’s explanation.
       Our concern, however, is that if we affirm the trial court’s
ruling, we would endorse a procedural bypass to the due process




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protections afforded a party opposing summary judgment under
section 437c. While Design technically moved for reconsideration
within the 10-day period under section 1008, subdivision (a), it
was, in effect, a renewed motion for summary judgment under
section 1008, subdivision (b) or section 437c, subdivision (f)(2).
(See Graham v. Hansen (1982) 128 Cal.App.3d 965, 970.)
Therefore, Torres was entitled to the procedural protections
afforded to parties opposing summary judgment, including
75 days’ notice and a separate statement of material facts.
(§ 437c, subds. (a)(2) & (b)(1); see UAS Management, Inc. v. Mater
Misericordiae Hospital (2008) 169 Cal.App.4th 357, 367;
Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 737–
738.) By granting the motion for reconsideration and then
summary judgment at the same time, the trial court failed to
enforce these protections and abused its discretion.
                         DISPOSITION
      The judgment is reversed. Ismael Torres, Jr., is awarded
his costs on appeal.
      CERTIFIED FOR PUBLICATION.



                                          DHANIDINA, J.

We concur:



             EDMON, P. J.



             LAVIN, J.




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