Filed 11/13/15 Anderson v. Glaus Pyle Schomer Burns & Dehaven CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




CHRIS ANDERSON,                                                                              C077244

                   Plaintiff and Appellant,                                          (Super. Ct. No.
                                                                               34201100104475CUPOGDS)
         v.

GLAUS PYLE SCHOMER BURNS & DEHAVEN,
INC.,

                   Defendant and Respondent.




         The question in this case is whether defendant Glaus Pyle Schomer Burns &
Dehaven, Inc. (Glaus Pyle) owed a duty of care to plaintiff Chris Anderson, who was
injured when conducting a field inspection (site audit) of cell phone transmission
equipment. Glaus Pyle is in the telecommunications business and subcontracted with
ITC Service Group, Inc., which provided workers to conduct the site audits. Anderson
was one of those workers, employed by ITC Service Group. Anderson sued Glaus Pyle,
claiming it acted with negligence and gross negligence in connection with his injuries.


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The trial court granted summary judgment in favor of Glaus Pyle, reasoning Glaus Pyle
owed no duty of care to Anderson because by hiring an independent contractor (ITC
Service Group), the hirer (Glaus Pyle) implicitly delegated to the independent contractor
any tort law duty it owed to the independent contractor’s employees to ensure workplace
safety. We agree and affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Glaus Pyle is an Ohio-based corporation specializing in, among other things,
telecommunication services. Part of Glaus Pyle’s operations includes doing work for
AT&T by providing site audits on cell phone transmission equipment owned by AT&T.
Because Glaus Pyle did not have enough staff to conduct the site audits, it subcontracted
with ITC Service Group, which provided workers to conduct the site audits. Under this
contract, employees of ITC Service Group travelled to the locations of the cell phone
transmission sites being audited to conduct the site inspections, which included gathering
information about the condition of the equipment on site. Data gathered by employees of
ITC Service Group was passed on to Glaus Pyle, which in turn processed the data for
eventual presentation to AT&T.
       In May 2009, ITC Service Group hired Anderson as one of its field technicians to
conduct these site audits. ITC Service Group assigned Anderson to the sites, and he
made his own schedule for the site inspections. When Anderson completed the site
inspections, he turned in the data he collected to his supervisor at ITC Service Group.
Glaus Pyle was not involved in hiring Anderson and did not receive copies of his
timesheets or logs of the tasks he performed. Anderson’s site visits were supervised by
ITC Service Group employees.
       In June 2009, Anderson was injured when conducting a field inspection of cell
phone transmission equipment. Anderson’s injury stemmed from exposure to radio
frequency radiation emitted from the cell tower. Anderson filed a workers’ compensation



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claim against ITC Service Group, and he settled that claim with the insurer of ITC
Service Group.
       Around the time Anderson was injured, an employee of Glaus Pyle named Kevin
Clements attended three meetings with employees of ITC Service Group. At one of the
three meetings, Clements made a presentation “concerning details of where to place
entries on the site audit form for the information sought by AT&T.” At that meeting
Clements “never discussed anything concerning the planning, process, or techniques for
how the site audits were to be conducted.” At the other two meetings, Clements did not
make a presentation, but he “identified the nature of the site being shown to ITC [Service
Group] employees.”1
       In June 2011, Anderson sued Glaus Pyle, alleging negligence and gross negligence
in connection with his injuries. The theory of his case was Glaus Pyle negligently
maintained the site and was grossly negligent in failing to protect him from excess
radiation.
       Glaus Pyle filed a motion for summary judgment, contending it did not owe
Anderson a duty of care because employees of an independent contractor cannot sue the
third party that hired the contractor to do the work. The trial court agreed with Glaus
Pyle, granting summary judgment.
       Anderson now appeals from the resulting judgment.



1       These facts come from depositions of Clements in this case and of Anderson from
this case and from his worker’s compensation case. In Anderson’s briefs in this court, he
cites to a lengthy and much later created declaration that contradicts and/or expands on
his deposition testimony. For example, he claims Clements undertook to purportedly
train him on how to perform cell tower site survey work. These citations to Anderson’s
declaration violate the principle set forth in D’Amico v. Board of Medical Examiners
(1974) 11 Cal.3d 1, 22, that a trial court should disregard a summary judgment
opponent’s self-serving declarations when they contradict credible discovery admissions
and purport to impeach that party’s own prior sworn testimony. The trial court did just
that and relied upon Anderson’s deposition admissions in its ruling.

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                                        DISCUSSION
        “Generally, when employees of independent contractors are injured in the
workplace, they cannot sue the party that hired the contractor to do the work. . . . [¶] By
hiring an independent contractor, the hirer implicitly delegates to the contractor any tort
law duty it owes to the contractor’s employees to ensure the safety of the specific
workplace that is the subject of the contract.” (SeaBright Ins. Co. v. US Airways, Inc.
(2011) 52 Cal.4th 590, 594; see Privette v. Superior Court (1993) 5 Cal.4th 689, 696;
Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 257 [the hiring person
“has no obligation to specify the precautions an independent hired contractor should take
for the safety of the contractor’s employees” and “[a]bsent an obligation, there can be no
liability in tort”].)
        Anderson claims one exception to the general rule that he argues is relevant here:
namely, the hirer of an independent contractor may be held liable for injuries to the
contractor’s employee if the hirer’s negligent exercise of retained control over safety
conditions at a worksite “affirmatively contributed to the employee’s injuries.” (Hooker
v. Department of Transportation (2002) 27 Cal.4th 198, 202.) Specifically, Anderson
contends Glaus Pyle “affirmatively contributed to [his] injury by dispatching Mr.
Clements . . . to conduct mandatory training for . . . ITC [Service Group] employees on
how to carry out cell tower site surveys and failing to include within the mandatory
training any warning of the danger posed to human health by radio frequency radiation at
cell tower sites and measures to be taken . . . to avoid such danger . . . .”
        In his depositions, however, both in the workers’ compensation case and in this
case, Anderson admitted he was trained by Glaus Pyle only in how to fill out the
paperwork that Glaus Pyle wanted completed. Specifically, in his deposition in the
workers’ compensation case, Anderson testified only that “we did one day of what they
call training” that consisted of “[h]ow to fill out the paperwork that they wanted us to fill
out.” And in his deposition in this case, Anderson testified that Clements gave a

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presentation that “explained what data he wanted recorded and where we could find this
information at each of these sites.” The document on which Anderson had to fill out the
data was called an AT&T site survey form based in Excel, and in the “field,” Anderson
took a hard copy of the Excel file and “filled in boxes.” At night, Anderson was
“supposed to type . . . in . . . that information [he] recorded in the field, and then email [it]
back to ITC [Service Group] every night.”
       As did the plaintiff in Mission Ins. Co. v. Workers’ Comp. Appeals Bd. (1981) 123
Cal.App.3d 211, 221, Anderson “ha[s] a mistaken concept of the type of control that has
significance in a situation such as this.” While “[o]f course” the defendant “had the
power to affect [the plaintiff’s] conduct,” “the fact that [the defendant] prescribed
standards of performance and that the [plaintiff] on occasion attended lectures or classes
concerning proper methods of installation and service was not evidence that [the
defendant] controlled the manner in which the desired result was to be achieved. ‘The
test of “control,” however, means “complete control.” ’ ” (Ibid.) While in Hooker our
Supreme Court clarified that “imposition of tort liability on a hirer should depend on
whether the hirer exercised the control that was retained in a manner that affirmatively
contributed to the injury of the contractor's employee” (Hooker v. Department of
Transportation, supra, 27 Cal.4th at p. 210), the court specified that this may occur
“ ‘when the principal employer directs that the contracted work be done by use of a
certain mode or otherwise interferes with the means and methods by which the work is to
be accomplished’ ” (id. at p. 215).
       As we have just mentioned, however, Anderson admitted he was trained by Glaus
Pyle only in how to fill out the paperwork that Glaus Pyle wanted completed. As the trial
court correctly noted, a court cannot find under the law that this action constituted
complete control over Anderson or control that affirmatively contributed to his injury.




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                                     DISPOSITION
       The judgment is affirmed. Glaus Pyle shall recover its costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1).)



                                                /s/
                                                Robie, J.


We concur:



/s/
Blease, Acting P. J.



/s/
Nicholson, J.




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