Filed 12/2/15 Flores v. Keller CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



SERGIO PEDROZA FLORES,                                               D067215

         Plaintiff and Appellant,

         v.                                                          (Super. Ct. No. 37-2013-00075156-
                                                                     CU-PO-CTL)
DANIEL KELLER,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Ronald L.

Styn, Judge. Affirmed.



         Law Offices of Elic Anbar and Elic Anbar for Plaintiff and Appellant.

         Manning & Kass, Ellrod, Ramirez, Trester and Darin L. Wessel for Defendant and

Respondent.

         Plaintiff and appellant Sergio Pedroza Flores appeals from the grant of judgment

on the pleadings in favor of defendant and respondent Daniel Keller (Daniel). The court

granted Daniel's motion after it granted summary judgment in favor of Daniel's spouse,
Linda Lee Keller (Linda), which judgment Flores inexplicably did not appeal. Flores, a

landscape maintenance worker, initially sued only Linda for negligence after Flores fell

from a ladder while trimming a tree at defendants' residence, owned by Linda as her sole

and separate property. While Linda's summary judgment motion was pending, Flores

amended his complaint to add Daniel as "Doe 1."1 Flores contended Daniel was liable as

Linda's agent.

       As we explain, we independently conclude judgment on the pleadings was

properly granted based on principles of res judicata. Affirmed.

                                         OVERVIEW

       A. Summary Judgment in Favor of Linda

       In granting summary judgment for Linda,2 the court in its September 12, 2014

order ruled in part as follows:

       "It is undisputed and the parties agree that . . . at the time of the incident, Plaintiff

was an employee of [Linda] Keller (not an independent contractor); Plaintiff was not an

employee entitled to workers' compensation coverage (because he did not meet the

minimum requirements for time worked or wages earned); and that, because of the



1      Although not the subject of this appeal, it is not clear that Flores's Doe amendment
was even proper because it appears Flores was neither truly ignorant of Daniel's identity
nor Daniel's relation to the injuries when Flores initiated the action against Linda. (See
Miller v. Thomas (1981) 121 Cal.App.3d 440, 444–445; see also Munoz v. Purdy (1979)
91 Cal.App.3d 942, 947 [noting the ignorance for purposes of a proper Doe amendment
must be " 'real and not feigned' "].)

2      The court in its order granting summary judgment referred to Linda as "Keller"
and to Daniel as "Mr. Keller."
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household domestic employees exemption, Keller, as a homeowner, was not required to

comply with California OSHA tree-trimming regulations [citation]. [¶] . . . [W]hat

remains is a cause of action for negligence.

       "Keller submits evidence that Plaintiff trimmed the trees at Keller's house, as

needed, during each of the six to eight years he worked for Keller [citation]; on each of

these occasions Plaintiff used Keller's aluminum extension ladder because Plaintiff's

ladder was too small [citation]; on September 11, 2013 [i.e., the day of the accident],

Plaintiff let himself into the backyard and retrieved Keller's ladder from where it was

usually kept in the backyard [citation]; Plaintiff never experienced any problems with the

operation of the ladder on any prior occasion [citation]; Plaintiff took the ladder, in its

unextended position as he found it (with possibly one step extended) and placed the

ladder against the first tree he was going to trim [citation]; the top of the ladder was at a

height of between 13-15 feet [citation]; no one assisted Plaintiff in placing the ladder

against the tree [citation]; in placing the ladder against the tree, Plaintiff relied on his own

experience in using ladders with regard to how he set the ladder [citation]; Mr. Keller

never told Flores how to set up the ladder against the trees to be trimmed or how Plaintiff

should use the ladder [citation]; Plaintiff did not have any conversations with Keller or

Mr. Keller on the day of the slipping and does not have evidence to establish that a defect

contributed to Plaintiff's fall [citation]; Plaintiff climbed up the ladder while holding his

chainsaw in his right hand and when reaching the top, he was reaching for a palm tree

branch with his other hand bringing the chainsaw up to rest on the top rung when the

ladder slid out away from the tree and he fell [citation]. Keller also submits evidence that

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at some point prior to September 11, 2013, Plaintiff told the Kellers that the trees in the

front were too tall for him to trim and arranged for the tree trimmer he worked with to

trim the front trees [citation] and on September 11, 2013 the trees in the front yard had

already been trimmed by tree trimmer Raul Rodriquez with the indication that Plaintiff

would trim the trees in the back yard [citation]. [¶] . . . [¶]

       "The court finds the evidence similar to that presented on summary judgment in

Zaragoza v. Ibarra (2009) 174 Cal.App.4th 1012 [(Zaragoza)] . . . . [¶] . . . [¶]

       ". . . The undisputed evidence is that Plaintiff was the sole person who placed,

adjusted, and then climbed the ladder before he fell. There are no allegations that the

ladder was defective. Like Zaragoza, Plaintiff engaged in a maneuver from a height of

13-15 feet that any ordinary adult person would know posed a significant risk. Evidence

that Plaintiff required that taller trees be trimmed by a professional tree trimmer, that Mr.

Keller observed a professional tree trimmer trimming the trees in the front yard using

safety equipment, and that Plaintiff was directed to trim all trees which could be trimmed

using Keller's ladder is insufficient to create triable issues of material fact as to whether

Keller breached a duty of care to Plaintiff or whether such breach was the cause of

Plaintiff's alleged injuries. Similarly, Plaintiff's declaration that he was not provided with

safety equipment . . . does not create a triable issue because, under the authorities cited

above, Keller did not have a duty to provide such safety equipment."

       B. Judgment on the Pleadings

       As noted, Daniel moved for judgment on the pleadings after the court granted

Linda summary judgment. In connection with that motion, Daniel requested the court

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take judicial notice of portions of Linda's summary judgment motion and opposition

thereto; the court's September 12, 2014 order granting summary judgment; and a grant

deed dated May 8, 2013—before plaintiff's accident—transferring ownership of the

Kellers' residence to Linda as her sole and separate property.

       In granting the motion, the court ruled in part as follows:

       "The complaint alleges one cause of action for negligence against the owner of the

property, Linda Lee Keller. Plaintiff named Daniel Keller as Doe 1 on August 12, 2014.

As pled, the complaint alleges liability against Daniel Keller only in his capacity as agent

for the owner of the property, Linda Lee Keller. Daniel Keller submits judicially

noticeable evidence establishing that he is not an owner of the property. Thus, the

liability of Daniel Keller is predicated on his alleged capacity as agent for the owner of

the property.

       "As set forth in this court's [September 12, 2014 order] granting Linda Lee Keller's

motion for summary judgment, Zaragoza . . . addresses the issue of negligence, under

facts virtually identical to those presented on this motion. [¶] . . . [¶]

       ". . . The judicially noticeable and undisputed evidence is that Plaintiff was the

sole person who placed, adjusted, and then climbed the ladder before he fell [citation];

[and] that Plaintiff is unaware of any defects in the ladder that contributed to the ladder

slipping and that Plaintiff does not have evidence to establish a defect contributed to

Plaintiff's fall. [Citation.] As the court reasoned in its prior ruling, . . . Plaintiff engaged

in a maneuver from a height of 13-15 feet that any ordinary adult person would know

posed a significant risk. Thus, allegations and evidence that Daniel Keller observed a

                                                5
professional tree trimmer trimming the trees in the front yard using safety equipment are

insufficient to establish that Daniel Keller breached a duty of care to Plaintiff or that any

such breach was the cause of Plaintiff's alleged injuries. Therefore, the court finds the

complaint fails to allege facts sufficient to state a cause of action for negligence."

                                        DISCUSSION

       "Res judicata, or claim preclusion, prevents relitigation of the same cause of action

in a second suit between the same parties or parties in privity with them." (Mycogen

Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) "To operate as a bar a judgment

must be final, on the same claim or cause of action, between the same parties, and must

be an adjudication on the merits." (McKinney v. County of Santa Clara (1980) 110

Cal.App.3d 787, 794.)

       "The term 'privity' refers to some relationship or connection with the party which

makes it proper to hold 'privies' bound with the actual parties. ' "Who are privies requires

careful examination into the circumstances of each case as it arises." ' [Citations.] The

courts have abandoned application of rigid categories in favor of a practical approach

which addresses the question of 'whether the non-party is sufficiently close to the original

case to afford application of the principle of preclusion.' " (Martin v. County of Los

Angeles (1996) 51 Cal.App.4th 688, 700.)

       As relevant here, res judicata arises when one party is in privity with another

because the parties' relationship is "that of principal and agent." (Triano v. F.E. Booth &

Co. (1932) 120 Cal.App. 345, 347 (Triano).) "If the party who actually causes the injury

is free from liability by reason of his acts, it must follow that his principal is entitled to a

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like immunity. In other words, a judgment in favor of the immediate actor is a bar to an

action against one whose liability is derivative from or dependent upon the culpability of

the immediate actor." (Id. at pp. 347–348, italics added.)

       We independently conclude (see Kapsimallis v. Allstate Ins. Co. (2002) 104

Cal.App.4th 667, 672) the court properly granted Daniel's motion for judgment on the

pleadings as a result of its September 12, 2014 order granting Linda's motion for

summary judgment, which judgment Flores did not appeal. (See Howard v. Thrifty Drug

& Discount Stores (1995) 10 Cal.4th 424, 443 [noting as a court of review, " '[w]e uphold

judgments if they are correct for any reason' "].)

       As noted, the court in its September 12, 2014 order found there were no triable

issues of material fact to show breach of duty or causation because the undisputed

evidence showed: that Flores was the sole person who placed, adjusted, and then climbed

the ladder before he fell; that there was no evidence or allegations that the ladder was

defective; and that Flores engaged in a maneuver from a height of 13-15 feet that any

ordinary adult would know posed a significant risk of potential harm. As a party in

privity with Linda whose potential liability was, in any event, derivative, Daniel was

entitled to assert the bar of res judicata based on Linda's judgment. (See Triano, supra,

120 Cal.App. at p. 347.)3




3      In light of our decision, we decline to address Daniel's alternative contentions.
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                                     DISPOSITION

      The order granting Daniel's motion for judgment on the pleadings and the

judgment entered thereon are affirmed. Daniel to recover his costs of appeal.




                                                                    BENKE, Acting P. J.

WE CONCUR:


McINTYRE, J.


IRION, J.




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