Filed 7/20/17
                CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                        DIVISION EIGHT

BERNIE ALVAREZ,                         B275980

       Plaintiff and Appellant,         (Los Angeles County
                                        Super. Ct. No. BC538128)
       v.

SEASIDE TRANSPORTATION
SERVICES LLC et al.,

       Defendants and Respondents.


     APPEAL from a judgment of the Superior Court of Los
Angeles County. Holly Fujie, Judge. Affirmed.
     Law Offices of Richard Devirian and Richard C. Devirian;
Esner, Chang & Boyer and Stuart B. Esner for Plaintiff and
Appellant.
     Cox, Wootton, Lerner, Griffin & Hansen, Richard C.
Wootton, Mitchell S. Griffin and Marc A. Centor for Defendants
and Respondents.

                    _________________________
      Plaintiff and appellant Bernie Alvarez was injured at work
when he drove a maintenance van into a shipping container.
Plaintiff’s employer, Pacific Crane Maintenance Company
(PCMC), had been hired by Evergreen Container Terminal
(Evergreen) to perform maintenance work at a marine container
terminal. Plaintiff sued Evergreen and two of its contractors
alleging general negligence.
      The trial court granted summary judgment to defendants
based on the Privette doctrine. Under Privette v. Superior Court
(1993) 5 Cal.4th 689 (Privette), an independent contractor’s
employee generally may not recover tort damages for work-
related injuries from the contractor’s hirer. On appeal, plaintiff
argues that (1) defendants did not meet their burden as the
moving parties on summary judgment, and (2) he raised triable
issues of material fact as to whether the Privette doctrine did not
apply because defendants retained control over safety conditions
at the worksite and affirmatively contributed to his injuries. We
disagree and affirm.
       FACTUAL AND PROCEDURAL BACKGROUND
      Evergreen leases a marine container terminal in the Port of
Los Angeles (Evergreen Terminal). Evergreen contracted with
Marine Terminals Corporation dba Ports America (Ports
America), Seaside Transportation Services, LLC (Seaside), and
PCMC to provide services at the terminal.
      PCMC’s contract with Evergreen provides that “PCMC
shall exercise reasonable care and use its best efforts to prevent
accidents, injury, or damages to it[]s employees . . . . PCMC shall
have an active[,] ongoing safety program and shall comply with
all applicable safety rules, applicable laws, ordinances, and




                                1
regulations.” The contract does not address any obligation on
Evergreen’s part to ensure safe conditions at the worksite.
       Plaintiff worked for PCMC for 13 years as a marine
mechanic. He was required to watch a training video on general
safety once a year. The video warned workers that 45-foot
shipping containers may be located next to 40-foot containers at
the terminal. Plaintiff was also verbally informed of this
possibility.
      On March 11, 2012, at about 6:15 p.m., plaintiff was
inspecting chassis at the Evergreen Terminal while driving a
maintenance van past a row of 40-foot shipping containers. It
was light out. As he was driving, he was glancing to his right to
check dates written on chassis. He was driving nine to ten miles
per hour when he collided with a 45-foot container. The 45-foot
container was protruding into the driving lane by over seven feet.
      At the time of the accident, plaintiff did not know he had
been injured and continued to work for three weeks. He later
became aware of injuries to his right shoulder, lower back, and
knees. On March 3, 2014, he filed a complaint for general
negligence against Evergreen, Seaside, and Ports America.
      Defendants moved for summary judgment arguing they
were not liable for plaintiff’s workplace injuries under the
Privette doctrine. In opposition, plaintiff did not address the
Privette doctrine but argued that the 45-foot container’s partial
obstruction of the driving lane violated the Pacific Coast Marine
Safety Code (Marine Safety Code).1


1     We take judicial notice of the fact that the International
Longshoremen and Warehouse Union and Pacific Maritime
Association’s Pacific Coast Marine Safety Code is a self-described
“voluntary code for use in all ports of the Pacific Coast.”



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      The trial court granted summary judgment, holding that
“Defendants have satisfied their burden to show that there is no
triable issue of material fact and Defendants are entitled to
summary judgment as a matter of law, pursuant to the Privette
doctrine. . . . Privette and its progeny establish that the hirer of
an independent contractor presumptively delegates to that
contractor its duty to provide a safe workplace for the contractor’s
employees. . . . Plaintiff has provided no evidence showing that
Defendants retained control of the contracted work or rebutting
the presumptive delegation to the contractor employee, PCMC, of
responsibility for workplace safety.”
      Judgment was entered for defendants, and plaintiff timely
appealed.
                            DISCUSSION

1.     The Privette Doctrine
       Workers’ compensation “ ‘is the exclusive remedy against
an employer for injury or death of an employee.’ [Citation.]”
(Privette, supra, 5 Cal.4th at p. 697.) In Privette, the Supreme
Court held that “an independent contractor’s employee should not
be allowed to recover damages from the contractor’s hirer, who ‘is
indirectly paying for the cost of [workers’ compensation] coverage,
which the [hired] contractor presumably has calculated into the
contract price.’ [Citation.]” (Tverberg v. Fillner Construction,
Inc. (2010) 49 Cal.4th 518, 525.)
       The Privette holding was based on the principle that the
hirer of an independent contractor generally has “ ‘ “ ‘no right of
control as to the mode of doing the work contracted for.’ ” ’ ”
(Hooker v. Department of Transportation (2002) 27 Cal.4th 198,
213 (Hooker).) Precisely because the hirer “has no obligation to
specify the precautions an independent hired contractor should



                                 3
take for the safety of the contractor’s employees, . . . [a]bsent an
obligation, there can be no liability in tort.” (Toland v. Sunland
Housing Group, Inc. (1998) 18 Cal.4th 253, 267.)
      There is an exception to the general rule of nonliability
when the hirer retains control over safety conditions at the
worksite.2 The “hirer of an independent contractor can be liable
for a workplace injury of the contractor’s employee if the hirer
retained control over the contractor’s work and exercised that
control in a way that ‘affirmatively contribute[d]’ to the
employee’s workplace injury. [Citation.]” (SeaBright Ins. Co. v.
US Airways, Inc. (2011) 52 Cal.4th 590, 604 (SeaBright).)
      “In order for a worker to recover on a retained control
theory, the hirer must engage in some active participation.
[Citation.]” (Tverberg v. Fillner Construction, Inc. (2012) 202
Cal.App.4th 1439, 1446.) “An affirmative contribution may take
the form of actively directing a contractor or an employee about
the manner of performance of the contracted work. [Citations.]
When the employer directs that work be done by use of a
particular mode or otherwise interferes with the means and
methods of accomplishing the work, an affirmative contribution
occurs. [Citations.] When the hirer does not fully delegate the
task of providing a safe working environment but in some
manner actively participates in how the job is done, the hirer
may be held liable to the employee if its participation

2      Another exception to the general rule of nonliability exists
when a landowner fails to warn an independent contractor about
a “latent or concealed preexisting hazardous condition on its
property.” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664.)
Appellant does not argue this exception applies, nor do we believe
it is at issue given the 45-foot container was not latent or
concealed.



                                  4
affirmatively contributed to the employee’s injury. [Citation.]”
(Ibid.)
2.     Defendants Met Their Burden as the Moving Parties on
       Summary Judgment
       “[S]ummary judgment or summary adjudication is to be
granted when there is no triable issue of material fact and the
moving party is entitled to judgment as a matter of law.” (Mills
v. U.S. Bank (2008) 166 Cal.App.4th 871, 894–895.) The “party
moving for summary judgment bears an initial burden of
production to make a prima facie showing of the nonexistence of
any triable issue of material fact; if he carries his burden of
production, he causes a shift, and the opposing party is then
subjected to a burden of production of his own to make a prima
facie showing of the existence of a triable issue of material fact.”
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 861–862.)
       “A defendant seeking summary judgment bears the initial
burden of proving the cause of action has no merit by showing
that one or more of its elements cannot be established or there is
a complete defense to it . . . . [Citations.]” (Cucuzza v. City of
Santa Clara (2002) 104 Cal.App.4th 1031, 1037.) However, a
defendant moving for summary judgment is “ ‘entitled to the
benefit of any relevant presumptions . . . .’ [Citation.]” (Security
Pac. Nat. Bank v. Associated Motor Sales (1980) 106 Cal.App.3d
171, 179–180; Engalia v. Permanente Medical Group, Inc. (1997)
15 Cal.4th 951, 977.)
       Depending on the type of presumption at issue—one
affecting the burden of proof or one affecting the burden of
producing evidence—a moving party’s burden on summary
judgment may shift once it shows the presumption applies. A
presumption affecting the burden of proof “does not affect the




                                 5
showing required for a summary judgment . . . .” (Security Pac.
Nat. Bank v. Associated Motor Sales, supra, 106 Cal.App.3d at p.
179.) By contrast, a presumption affecting the burden of
producing evidence operates to shift the burden on summary
judgment to the opposing party to show there are triable issues of
fact. (Id. at pp. 179–180.)
        The Privette line of decisions establishes a presumption
that an independent contractor’s hirer “delegates to that
contractor its tort law duty to provide a safe workplace for the
contractor’s employees.” (SeaBright, supra, 52 Cal.4th at p. 600.)
Plaintiff acknowledges this presumption but argues that it only
affects the burden of proof at trial. According to plaintiff,
defendants, as the moving parties on summary judgment, bore
the burden of presenting evidence that they did not retain control
over safety conditions at the worksite in a manner that
affirmatively contributed to his injuries. We disagree because we
conclude the Privette presumption affects the burden of producing
evidence.
       “A presumption is either conclusive or rebuttable. Every
rebuttable presumption is either (a) a presumption affecting the
burden of producing evidence or (b) a presumption affecting the
burden of proof.” (Evid. Code, § 601.) All presumptions not
declared by law to be conclusive are rebuttable. (Evid. Code,
§ 620.) “We are required initially by the Evidence Code to
characterize a rebuttable presumption as one affecting either the
burden of proof or the burden of producing evidence (Evid. Code,
§ 601), where the statutory or decisional law creating the
presumption has failed to so specify.” (In re Marriage of
Ashodian (1979) 96 Cal.App.3d 43, 46.)
       Here, the presumption created by the Supreme Court based
on the Privette doctrine was not declared to be conclusive.



                                6
Therefore, the presumption is rebuttable. The Supreme Court in
creating this presumption did not specify whether it affected the
burden of proof or the burden of producing evidence. We are
therefore required to characterize the presumption as one
affecting either the burden of proof or the burden of producing
evidence.
        “A presumption affecting the burden of proof is a
presumption established to implement some public policy other
than to facilitate the determination of the particular action in
which the presumption is applied, such as the policy in favor of
establishment of a parent and child relationship, the validity of
marriage, the stability of titles to property, or the security of
those who entrust themselves or their property to the
administration of others.” (Evid. Code, § 605; see, e.g., Pellerin v.
Kern County Employees’ Retirement Assn. (2006) 145 Cal.App.4th
1099, 1106 [presumptions affecting the burden of proof are those
intended “to advance some substantive policy goal”].)
        “A presumption affecting the burden of producing evidence
is a presumption established to implement no public policy other
than to facilitate the determination of the particular action in
which the presumption is applied.” (Evid. Code, § 603.) “The
code makes clear that the purpose of such a rebuttable
presumption relates solely to judicial efficiency, and does not rest
on any public policy extrinsic to the action in which it is invoked.”
(TG Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th
1355, 1375.) Such a presumption “dispense[s] with unnecessary
proof of facts that are likely to be true if not disputed.” (Cal.
Law. Revision Com. com., 29B West’s Ann. Evid. Code (1995 ed.)
foll. § 603, p. 57.)




                                  7
       Here, we conclude the Privette presumption affects the
burden of producing evidence.3 The Privette doctrine is derived
from the principle that an independent contractor’s hirer
generally has no right of control over the mode of doing the work
contracted for and, therefore, should not be vicariously liable for
the independent contractor’s negligence in ensuring the safety of
its workers. The presumption is a logical extension of this
doctrine because it dispenses with “unnecessary proof of facts
that are likely to be true if not disputed”—that a hirer generally
has “ ‘ “ ‘no right of control as to the mode of doing the work
contracted for.’ ” ’ ” (Hooker, supra, 27 Cal.4th at p. 213.) The
presumption thus operates solely to facilitate the resolution of
particular disputes, not to further any other public policy.
Accordingly, it affects the burden of producing evidence.
       “The effect of a presumption affecting the burden of
producing evidence is to require the trier of fact to assume the
existence of the presumed fact unless and until evidence is
introduced which would support a finding of its nonexistence, in
which case the trier of fact shall determine the existence or

3      At oral argument, appellant’s counsel argued this would be
a “ground-breaking” rule. Although other cases have not
expressly described this rule before, it has been clearly implied,
as respondents argued. Courts applying the Privette doctrine
have routinely placed the burden on the plaintiff to raise a triable
issue of fact. (See, e.g., Gravelin v. Satterfield (2011)
200 Cal.App.4th 1209, 1214 [“Privette bars plaintiff’s action
absent a triable issue of fact as to whether an exception applies
that would permit plaintiff to recover against defendants.
[Citation.]”]; Khosh v. Staples (2016) 4 Cal.App.5th 712, 714 [“the
trial court correctly granted a motion for summary judgment
against the injured employee when he failed to present evidence
that respondent affirmatively contributed to his injuries”].)




                                 8
nonexistence of the presumed fact from the evidence and without
regard to the presumption.” (Evid. Code, § 604.) As stated above,
on summary judgment, a moving party need only show it is
entitled to the benefit of a presumption affecting the burden of
producing evidence in order to shift the burden of proof to the
opposing party to show there are triable issues of fact. (Security
Pac. Nat. Bank v. Associated Motor Sales, supra, 106 Cal.App.3d
at pp. 178–179.)
       However, a presumption affecting the burden of producing
evidence does not arise until the foundational facts are
established. (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th
416, 421.) Here, defendants provided the requisite factual
foundation for the Privette presumption to apply. Their separate
statement presented evidence that Evergreen hired plaintiff’s
employer to perform work at the Evergreen Terminal, that the
other defendants—Seaside and Ports America—were also hired
by Evergreen to perform work there,4 and that plaintiff was
injured while working at the site. This evidence was sufficient to
establish that the Privette presumption applied and, therefore,
shifted the burden to plaintiff to raise a triable issue of fact.
3.     Plaintiff Failed to Raise a Triable Issue of Material Fact
       Plaintiff argues that even if defendants met their burden as
the moving parties on summary judgment, he succeeded in
raising triable issues of fact as to whether defendants’ placement
of a 45-foot container in a row of 40-foot containers affirmatively
contributed to his injuries. We conclude that plaintiff did not
raise a triable issue of material fact.

4      The Privette doctrine is “equally applicable in determining
the liability of the hirer’s agent.” (Ruiz v. Herman Weissker, Inc.
(2005) 130 Cal.App.4th 52, 62.)




                                 9
        Under the retained-control exception to the Privette
doctrine, an affirmative contribution occurs when a general
contractor “ ‘is actively involved in, or asserts control over, the
manner of performance of the contracted work. [Citation.] Such
an assertion of control occurs, for example, 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. [Citations.]’ [Citation.]”
(Hooker, supra, 27 Cal.4th at p. 215.)
        Here, plaintiff presented no evidence that defendants were
“actively involved in” or “assert[ed] control over” “the manner of
performance of the contracted work.” (Hooker, supra, 27 Cal.4th
at p. 215.) He did not, for example, present evidence that
defendants directed him to perform his work in any particular
manner. In fact, plaintiff, in a declaration stated it was his own
“habit and custom in performing [] inspections and maintenance
for . . . PCMC” to drive the maintenance van with only “6–7 feet
of clearance and parallel to the line of 40 foot parked container on
chassis.” Plaintiff did not state that defendants directed him to
perform his job in this manner.
        In the alternative to showing that a hirer directed an
independent contractor’s employee to perform his work in a
particular manner, an employee may also seek to hold a hirer
liable for any failure to undertake a promised safety measure.
“[A]ffirmative contribution need not always be in the form of
actively directing a contractor or contractor’s employee. There
will be times when a hirer will be liable for its omissions. For
example, if the hirer promises to undertake a particular safety
measure, then the hirer’s negligent failure to do so should result




                                10
in liability if such negligence leads to an employee injury.”
(Hooker, supra, 27 Cal.4th at p. 212, fn. 3.)
       Here, however, plaintiff did not present evidence that
defendants promised to undertake any particular safety measure.
At most, plaintiff’s separate statement presented evidence that
defendants were “obligated to comply” with the Marine Safety
Code and then violated that code by obstructing the driving lane
with a 45-foot container. There was no evidence that any of the
defendants promised PCMC that they would comply with the
Marine Safety Code. The agreement between PCMC and
Evergreen, for example, only tasked PCMC with undertaking
certain safety measures; it did not provide that Evergreen would
retain control of any safety conditions at the worksite.
       Rather, the undisputed facts show that PCMC was
responsible for its employees’ safety on the job. Plaintiff did not
raise a triable issue of fact suggesting either that defendants
exercised the power to control the manner of performance of
plaintiff’s work or that they promised (and failed) to undertake
any safety measures at the worksite. Accordingly, plaintiff did
not meet his burden on summary judgment of showing that
defendants retained control over safety conditions at the worksite
in a manner that affirmatively contributed to his injuries.
       A presumption affecting the burden of producing evidence
“operates to eliminate the existence of a triable issue of fact
where no contrary evidence is offered.” (Security Pac. Nat. Bank
v. Associated Motor Sales, supra, 106 Cal.App.3d at p. 180.) “If a
party moving for summary judgment in any action, . . . would
prevail at trial without submission of any issue of material fact
for determination, then he should prevail on summary
judgment.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th




                                11
at p. 851.) Here, defendants provided sufficient evidence to
trigger the Privette presumption and plaintiff did not raise a
triable issue of fact. Therefore, summary judgment was properly
granted.
                          DISPOSITION
       The judgment is affirmed. Respondents are entitled to
recover their costs on appeal.




                                     SORTINO, J.*
WE CONCUR:




                  FLIER, J.



                  GRIMES, J.




*     Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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