Filed 2/5/20
                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,
L.P.,

     Defendant and Appellant.


             The Privette/Hooker doctrine limits 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; 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 that “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
limitations 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
explains negligent exercise of retained control pursuant to
Privette and Hooker. Although Sun Pacific relied on the
Privette/Hooker doctrine throughout trial, the record does not
establish that it joined Lule and Reynosa’s request.




                                 4
             The trial court also instructed the jury on general
principles of premises liability. It did not instruct on a
landowner’s limited 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
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




                                5
doctrine as it applies to either negligence or premises liability.
The Alanizes assert Sun Pacific forfeited its contention because it
did not request the 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).)
             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
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 a properly instructed jury could have concluded that the
contractors knew about the hazard, the judgment was reversed.
(Id. at p. 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), but did not say that that principle only applied to the hirer




                                 6
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), but did not say
that these principles would only apply to Sun Pacific if the
hazard were concealed. (Kinsman, supra, 37 Cal.4th at p. 675.)
Because each instruction was “an incorrect statement of law,”
Sun Pacific has not forfeited its contention. (Suman, supra, 23
Cal.App.4th at p. 9.)
              And 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.)
              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,




                                 7
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
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




                                 8
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
limitations. 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
jury may evaluate whether Sun Pacific is liable pursuant to the
applicable legal standards.1

      1 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.



                                 9
                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.)
             And the trial court’s refusal 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,
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 take Alaniz there. 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 a mitigation of damages of
instruction. (Bernal v. Richard Wolf Medical Instruments Corp.




                               10
(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 exercised that control in a
way that affirmatively contributed to Alaniz’s injuries. Based on
this evidence, a properly instructed jury could have found Sun
Pacific liable for negligence. (Kinsman, supra, 37 Cal.4th at p.
683.) Accordingly, we must remand so a new jury may evaluate
the evidence in light of proper jury instructions. (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




                                 11
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.




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                     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.
