                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                            April 26, 2016
     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 ANGEL GARCIA TITLA, individually, and                                No. 47462-0-II
 LETICIA        SARMIENTO       FLORES,
 individually, and the marital community
 composed thereof,

                                Appellants,

         v.

 SFC HOMES LLC, a Washington corporation,                      UNPUBLISHED OPINION

                                Respondent.

       MELNICK, J. — Angel Garcia Titla and his wife, Leticia Sarmiento Flores, appeal the trial

court’s orders granting summary judgment to SFC Homes, LLC and denying their motion to

reconsider. They argue genuine issues of material fact existed as to whether SFC Homes was the

general contractor of the site where Garcia Titla’s injury occurred and whether SFC Homes

committed safety violations. They also argue the trial court abused its discretion in denying their

motion to reconsider based on newly discovered evidence. We affirm.

                                              FACTS

I.     COMPLAINT

       On March 11, 2014, Garcia Titla and Sarmiento Flores (Plaintiffs) filed a complaint for

damages against SFC Homes alleging negligence for failing to provide a safe workplace that

caused Garcia Titla to suffer damages. The complaint alleged that on or about May 20, 2011, SFC

Homes was the “property owner and/or general contractor for construction of a residential

dwelling. . . . As the owner in control and/or general contractor, [it] was responsible for all safety
47462-0-II


and compliance with safety regulations on the job site.” Clerk’s Papers (CP) at 2. Garcia Titla

alleged that he was employed by FRDS Construction, Inc., a subcontractor on the project, and that

he was injured while working as a framer at the work site.

         In its answer, SFC Homes denied all facts alleged in the complaint, except that it was

licensed to do business in Pierce County and that it was the property owner of the work site. SFC

Homes asserted seven affirmative defenses.

II.      MOTION FOR SUMMARY JUDGMENT

         On January 8, 2015, SFC Homes filed a motion for summary judgment. In support of its

motion, SFC Homes provided evidence that it was not the general contractor of the project where

Garcia Titla’s injury occurred and that it had not violated any Washington Administrative Code

(WAC) provisions.1

         The evidence in the summary judgment motion included the following testimony from

Garcia Titla’s deposition. On May 20, 2011, Garcia Titla worked on a residence being constructed

on property owned by SFC Homes. FRDS employed him to frame houses. 2 Upon completion of

the first story, Garcia Titla began installing plywood as the floor for the second story. To install

the plywood, he stood between two joists, but one of the joists broke when he pushed himself off

of it. He fell and suffered injuries.

         Although FRDS supplied safety harnesses, Garcia Titla was not wearing one at the time of

the accident. Because the joist he fell from exceeded eight feet, a harness was required if there

was a place to tie it. Garcia Titla had no place to tie the rope for the harness, so he built secondary


1
 SFC also included a letter from the Department of Labor and Industries to FRDS that stated there
were no health or safety violations in the workplace. However, this letter referenced a different
work site.
2
    Garcia Titla worked with FRDS on two other houses prior to the accident.


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fall protection out of two-by-fours, but they were out of reach when he fell. Garcia Titla admitted

that he installed the joist that broke and caused his fall and injuries. Although FRDS held safety

meetings for other projects, Garcia Titla did not attend a safety meeting for this specific project.

He knew that safety harnesses were required when working above eight feet, and that if he could

not tie up the harness, he was supposed to place two-by-fours at a height of four feet as secondary

fall protection. Garcia Titla never spoke with anyone from SFC Homes.

       In support of its summary judgment motion, Atsushi Iwasaki, the President of Sumitomo

Forestry America, Inc., SFC Homes’s parent company, submitted a declaration. He admitted that

SFC Homes owned the property where the alleged accident occurred. Iwasaki stated that SFC

Homes hired FRDS to perform framing on the work site because SFC Homes had no knowledge

of framing, and it relied on FRDS’s expertise. He also stated that SFC Homes “did not participate

in construction work, control any of the work performed by any subcontractor on the subject

project, or maintain the right to control any of the work performed by any subcontractor.” CP at

106.

       The documents in support of the motion also included Garcia Titla’s answers to SFC

Homes’s first interrogatories and requests for production. In response to an interrogatory asking

Garcia Titla to state every fact on which he relied for his claim that SFC Homes was the general

contractor and that SFC Homes had responsibility for safety and safety regulations on the jobsite,

Garcia Titla said he “will be requesting Safety meeting minutes, walk around Safety inspection

notes, a Site specific safety plan, and a Safety manual from the General Contractor and will

Supplement this Answer upon receipt.” CP at 95. Another interrogatory asked Garcia Titla to

state the facts upon which he claimed he was owed a duty and how SFC Homes breached that

duty. He responded:



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          The General Contractor owes the duty to provide a safe place to work to every
          worker on his job site, Plaintiff was a worker at this jobsite. Therefore, plaintiff
          was owed this duty. The general contractor breached this duty. Plaintiff suffered
          an injury. He fell through a piece of wood that broke under his feet. He was
          provided no fall protection.

CP at 96. A request for production by SFC Homes asked for copies of all documents that supported

his answer. Garcia Titla responded that he attached a building permit that listed SFC Homes as

the general contractor.3 Garcia Titla did not conduct any discovery until after the discovery

deadline passed.

          Garcia Titla responded to the motion for summary judgment and claimed that the Pierce

County Assessor-Treasurer electronic property information listed SFC Homes as the general

contractor for the property.4 Garcia Titla included a number of documents that showed SFC

Homes’s Unified Business Identifier (UBI) number, contractor’s license and status, and the cover

page of Sumitomo Forestry’s website that listed SFC Homes as being in the construction business.

          On February 6, 2015, the trial court heard arguments on SFC Homes’s motion for summary

judgment. SFC Homes argued that it was not the general contractor and it “did not retain the right

to control any of the work for which [Garcia Titla] was hired.”5 CP at 240. SFC Homes told the

trial court that it had a contract that it received from FRDS’s owner that shows FRDS entered into




3
    This document is not included in the record.
4
 The document does not list SFC Homes as the general contractor. SFC Homes is listed as the
grantor of the parcel.
5
 SFC Homes explained to the trial court that any documents about the named general contractor
were not requested by the plaintiffs until after the discovery deadline, but no document linking
SFC Homes as a general contractor for this project existed because it did not serve in this capacity.


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47462-0-II


a contract with Henley USA, LLC, not SFC Homes.6 The trial court granted the motion for

summary judgment in a written order on February 6, 2015.

III.   MOTION FOR RECONSIDERATION

       On February 13, 2015, Garcia Titla and Sarmiento Flores filed a motion for reconsideration

of the trial court’s written order granting summary judgment. In addition to arguing that the trial

court made legal errors, they argued that they obtained newly discovered evidence which, with

reasonable diligence, could not have been discovered and produced when the court heard the

motion for summary judgment. They claimed the newly discovered evidence consisted of a

certified document from the City of Gig Harbor which showed SFC Homes was the contractor that

applied for and received the building and plumbing permits at the site where Garcia Titla’s injuries

occurred. They also claimed that the evidence showed SFC Homes did not own the property.

       Garcia Titla and Sarmiento Flores argued that under CR 59(a)(3), the trial court should

grant the motion to reconsider because they were surprised by the existence of a contract for the

site between Henley USA and FRDS and that surprise materially affected their rights. In support

of the motion, they included the deposition testimony of their expert, Mike Sotelo, about the level

of control SFC Homes had over the work site and the potential safety violations at the site. 7 Sotelo

opined that SFC Homes had a duty to Garcia Titla because even if it was the owner and not the

general contractor, it controlled the site. He further opined that it seemed as though SFC Homes




6
 SFC Homes did not submit the contract to the trial court before the motion. The trial court asked
for the contract after the plaintiffs filed the motion to reconsider. Henley USA, LLC is another
company owned by Sumitomo Forestry America, SFC Homes’s parent company.
7
  Sotelo’s deposition occurred after the motion for summary judgment was filed and after the
plaintiffs filed their response, but four days prior to the hearing on the motion for summary
judgment and prior to the motion for reconsideration. CP at 205.


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committed violations because it did not have a written safety plan, and he believed SFC Homes

breached its duty to Garcia Titla because it failed to provide oversight.

       SFC Homes opposed the motion to reconsider, arguing that the records, dating back to

2011, did not constitute “newly discovered evidence” because they were clearly obtainable at the

time of summary judgment. CP at 268. SFC Homes also argued that the plaintiffs could have

discovered the contract with reasonable diligence, but they did not engage in discovery other than

submitting untimely discovery less than one week before the discovery cutoff.

       The trial court heard arguments on the motion to reconsider. The trial court questioned

whether it could consider the new documents offered by the plaintiffs. The trial court noted that

it did not understand why they did not have access to their own expert’s testimony to refute the

evidence in the summary judgment motion. In addition, the trial court pointed out that the plaintiffs

failed to present any evidence showing a safety violation. The trial court denied the motion to

reconsider in a written order. Garcia Titla and Sarmiento Flores appeal.

                                            ANALYSIS

I.     MOTION FOR SUMMARY JUDGMENT

       Garcia Titla and Sarmiento Flores argue that the trial court erred in granting SFC Homes’s

motion for summary judgment because genuine issues of material fact existed as to whether or not

SFC Homes was the general contractor. We disagree.

       A.      Standard of Review

       We review summary judgment orders de novo, engaging in the same inquiry as the trial

court. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). Summary judgment

is proper if “the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and that the



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moving party is entitled to a judgment as a matter of law.” CR 56(c). We view the evidence and

draw reasonable inferences in a light most favorable to the nonmoving party. Schaaf v. Highfield,

127 Wn.2d 17, 21, 896 P.2d 665 (1995).

       A party moving for summary judgment bears the burden of demonstrating that there is no

genuine issue of material fact. Atherton Condo. Apartment–Owners Ass’n Bd. of Dirs. v. Blume

Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). “A material fact is one upon which the

outcome of the litigation depends in whole or in part.” Atherton, 115 Wn.2d at 516. If the moving

party satisfies its burden, the nonmoving party must present evidence demonstrating that a material

fact remains in dispute. Atherton, 115 Wn.2d at 516.

       The response, by affidavits or as otherwise provided under CR 56, must set forth specific

facts that reveal a genuine issue for trial. Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d

355, 359, 753 P.2d 517 (1988). “[C]onclusory statements of fact will not suffice.” Grimwood,

110 Wn.2d at 360. If the nonmoving party fails to do so, and reasonable persons could reach but

one conclusion from all the evidence, then summary judgment is proper. Vallandigham v. Clover

Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005). “[A] complete failure of proof

concerning an essential element of the nonmoving party’s case necessarily renders all other facts

immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

       B.      The Trial Court Properly Granted Summary Judgment

       To establish a claim of negligence, a plaintiff must prove four elements: duty, breach of

duty, causation, and injury. Kennedy v. Sea–Land Serv., Inc., 62 Wn. App. 839, 856, 816 P.2d 75

(1991). “Existence of a duty is a question of law.” Hertog v. City of Seattle, 138 Wn.2d 265, 275,

979 P.2d 400 (1999). Breach and proximate cause are generally fact questions, but “if reasonable




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minds could not differ, these factual questions may be determined as a matter of law.” Hertog,

138 Wn.2d at 275.

          A general contractor is someone “whose business operations require the use of more than

one building trade or craft upon a single job or project or under a single building permit.” RCW

18.27.010(5). Prior to the adoption of Washington Industrial Safety and Health Act of 1973

(WISHA), the Washington Supreme Court held that RCW 49.16.030 (WISHA’s predecessor)

“created a nondelegable duty on general contractors to provide a safe place to work for employees

of subcontractors.” Stute v. P.B.M.C., Inc., 114 Wn.2d 454, 463, 788 P.2d 545 (1990). A general

contractor has a duty to comply with WISHA regulations for the protection of all employees on

the jobsite. Stute, 114 Wn.2d at 463. The court reasoned that the “general contractor should bear

the primary responsibility for compliance with safety regulations because the general contractor’s

innate supervisory authority constitutes sufficient control over the workplace.” Stute, 114 Wn.2d

at 464.

          Garcia Titla and Sarmiento Flores failed to present evidence that SFC Homes was the

general contractor of the site where the injury occurred. SFC Homes did have a contractor’s

license, but Garcia Titla and Sarmiento Flores did not present evidence that SFC Homes acted as

the general contractor at this specific site. Therefore, the plaintiffs failed to present any evidence

to create a genuine dispute of material fact that SFC Homes was the general contractor.

          We also disagree with the plaintiffs that SFC Homes had liability as the owner of the

property. Jobsite owners have a duty to provide a safe workplace only if the owner/developer has

the same innate overall supervisory authority as the general contractor and is in the best position

to enforce compliance with safety regulations. Doss v. ITT Rayonier, Inc., 60 Wn. App. 125, 127

n.2, 803 P.2d 4 (1991). Jobsite owners are not per se liable for negligence at a work site. Kamla



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v. Space Needle Corp., 147 Wn.2d 114, 123, 52 P.3d 472 (2002). So unless there is some control

over the work exercised by the jobsite owner/developer, no duty to provide a safe workplace exists.

       “The test of control is not the actual interference with the work of the subcontractor, but

the right to exercise such control.” Kelley v. Howard S. Wright Const. Co., 90 Wn.2d 323, 330-

331, 582 P.2d 500 (1978). In Kelley, general supervisory functions over the work were sufficient

to establish control over the work conditions of the subcontractor’s employee. 90 Wn.2d at 331.

“‘It is not enough that [the jobsite owner] has merely a general right to order the work stopped or

resumed, to inspect its progress or to receive reports, to make suggestions or recommendations

which need not necessarily be followed, or to prescribe alterations and deviations.’” Kamla, 147

Wn.2d at 121 (quoting RESTATEMENT (SECOND) OF TORTS § 414 cmt. c (1965)). “‘There must be

such a retention of a right of supervision that the contractor is not entirely free to do the work in

his own way.’” Kamla, 147 Wn.2d at 121 (quoting RESTATEMENT (SECOND) OF TORTS § 414 cmt.

c. If a jobsite owner does not retain control over the manner in which an independent contractor

completes its work, the jobsite owner does not have a duty under WISHA to “comply with the

rules, regulations, and orders promulgated under [chapter 49.17 RCW].” RCW 49.17.060(2). The

Kamla court also reasoned:

       Because jobsite owners may not have knowledge about the manner in which a job
       should be performed or about WISHA compliant work conditions, it is unrealistic
       to conclude all jobsite owners necessarily control work conditions. Instead, some
       jobsite owners may reasonably rely on the contractors they hire to ensure WISHA
       compliance because those jobsite owners cannot practically instruct contractors on
       how to complete the work safely and properly.

147 Wn.2d at 124-25.

       SFC Homes did not retain control over the work so that a duty of care would arise. Per

Iwasaki’s declaration, FRDS provided control over the framing because SFC Homes had no

experience in this area. SFC Homes relied on FRDS’s expertise. Garcia Titla did not raise any


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material issue of fact as to this matter. In addition, Garcia Titla never interacted with anyone from

SFC Homes.

          Garcia Titla and Sarmiento Flores also fail to create a genuine issue of material fact

regarding breach of any duty SFC Homes may have had. If a jobsite owner does not retain control

over the manner in which an independent contractor completes its work, the jobsite owner does

not have a duty under WISHA to “comply with the rules, regulations, and orders promulgated

under [chapter 49.17 RCW].” RCW 49.17.060(2). Yet, if the owner does retain that control,

he/she must comply with WISHA. See Kamla, 147 Wn.2d at 122.

          Garcia Titla and Sarmiento Flores presented no evidence that would have created a duty

on SFC Homes as the jobsite owner to comply with WISHA, nor did they present evidence of any

WISHA or DOSH violations to the trial court. They argued that they only needed to allege there

were WISHA violations, and that they would later prove them to the jury. 8 This argument is

inaccurate. Legal conclusions that the defendant was negligent are inadmissible, but expert

opinions that help establish the elements of negligence are admissible. Davis v. Baugh Indus.

Contractors, Inc., 159 Wn.2d 413, 420-21, 150 P.3d 545 (2007). The plaintiffs only offered an

expert opinion in their motion to reconsider. As we explain later in this opinion, the trial court

properly refused to consider this testimony. The plaintiffs failed to present competent evidence

that SFC breached a duty or that there were safety violations. They identified specific regulations

that they alleged were violated, but did not provide any support for their allegations.9 Without




8
    The trial court noted that this was actually to be a bench trial.
9
 Plaintiffs’ counsel told the trial court they would allege six violations and included WAC 296-
155-100 and WAC 296-155-110, but did not specify the other four.


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such evidence at summary judgment, they failed to show that a material fact on this issue was in

dispute.

       Because Garcia Titla and Sarmiento Flores failed to establish that a genuine issue of

material fact existed and they could not prove a prima facie case of negligence, the trial court

properly granted summary judgment.

II.    MOTION TO RECONSIDER

       Garcia Titla and Sarmiento Flores argue that the trial court should have granted their

motion to reconsider pursuant to CR 59(a)(4) because they presented new evidence that they could

not, with reasonable diligence have discovered prior to the summary judgment motion showing

that SFC Homes was the general contractor.10 We disagree.

       A.      Standard of Review

       “‘We review a trial court’s denial of a motion for reconsideration for abuse of discretion.’”

Davies v. Holy Family Hosp., 144 Wn. App. 483, 497, 183 P.3d 283 (2008) (quoting Kleyer v.

Harborview Med. Ctr., 76 Wn. App. 542, 545, 887 P.2d 468 (1995)). “A trial court abuses its

discretion only if its decision is manifestly unreasonable or rests upon untenable grounds or

reasons.” Davies, 144 Wn. App. at 497. “An abuse of discretion exists only if no reasonable

person would have taken the view adopted by the trial court.” Holaday v. Merceri, 49 Wn. App.

321, 324, 742 P.2d 127 (1987).




10
  They list CR 59(a)(3), (7), and (9) in their brief but do not argue them. Their brief argues only
that the motion should have been granted under CR 59(a)(4) based on the new evidence they
produced for the motion. Therefore, we only address this argument.


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       B.        The Trial Court Did Not Abuse Its Discretion

       A party is entitled to reconsideration of rulings where there is “[n]ewly discovered

evidence, material for the party making the application, which the party could not with reasonable

diligence have discovered and produced at the trial.” CR 59(a)(4). Courts have recognized that

“a summary judgment hearing afford[s] the parties ample opportunity to present evidence. If the

evidence was available but not offered until after that opportunity passes, the parties are not entitled

to another opportunity to submit that evidence.” Wagner Dev. v. Fid. & Deposit Co. of Maryland,

95 Wn. App. 896, 907, 977 P.2d 639 (1999). This evidence cannot be considered to be newly

discovered evidence which a party could not with reasonable diligence have discovered and

produced at the trial. CR 59(a)(4).

       The documents the plaintiffs relied on were public records from 2011. They were available

at the time of the summary judgment motion. The plaintiffs did not exercise due diligence in

obtaining this evidence and the trial court did not abuse its discretion in denying the motion to

reconsider.

       We agree with the trial court’s determination that even if the court considered the new

evidence, it still would not have created a genuine dispute as to a material fact. The newly found

evidence did not counter the evidence provided by SFC Homes that it did not control the jobsite

in a way that gave rise to a duty. If anything, the contract that “surprised” the plaintiffs supported

SFC Homes’s contention that it was not the general contractor at this site. In addition, Sotelo’s

deposition testimony was general because he did not review all of the evidence before testifying

about his expert opinion. The plaintiffs would still have failed to create a genuine dispute of

material fact.




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       We hold that the trial court did not abuse its discretion because it had reasonable grounds

to uphold the original summary judgment order and deny the motion to reconsider. We affirm the

trial court’s final judgment denying the motion for reconsideration.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.




                                                            Melnick, J.

We concur:




       Worswick, P.J.




       Lee, J.




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