Filed 6/10/20
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                SECOND APPELLATE DISTRICT

                       DIVISION EIGHT

SHERRY HORNE et al.,                  B299605

   Plaintiffs and Appellants,        (Los Angeles County
                                     Super. Ct. No. BC675950)
       v.

AHERN RENTALS, INC.,

   Defendant and Respondent.


     APPEAL from a judgment of the Superior Court of Los
Angeles County. Lori Ann Fournier, Judge. Affirmed.

     Ainbinder & Pratt, Colleen M. Pratt; Call & Jensen and
David Sudger for Plaintiffs and Appellants.

     Lynberg & Watkins, Michael J. Larin, Jerome P. Doctors;
Sutton & Murphy and Michael S. Sutton for Defendant and
Respondent.

                   __________________________
       The family of an employee of an independent contractor
sued the hirer of the independent contractor, alleging the hirer’s
negligence was a substantial factor in causing the employee’s
death. With some exceptions, such suits are barred by the
Privette rule. (Privette v. Superior Court (1993) 5 Cal.4th 689
(Privette).) One of those exceptions is that a hirer is liable for
injury to an employee of a contractor if the hirer exercised
control over safety conditions at the worksite in a way that
affirmatively contributed to the employee’s injuries. (Hooker v.
Department of Transportation (2002) 27 Cal.4th 198, 202
(Hooker).)
       Plaintiffs contend there are triable issues of fact whether
defendant affirmatively contributed to the collapse of a forklift on
the decedent while he was replacing its tires. We agree with the
trial court that plaintiffs failed to present evidence that
defendant affirmatively contributed to decedent’s injuries under
Hooker’s retained control exception to the Privette rule.
Accordingly, we affirm the court’s grant of summary judgment.
            FACTUAL AND LEGAL BACKGROUND
1.     The Parties and Background Facts
       Plaintiffs are Sherry Horne, Rashawna Dickerson, Rashad
Dickerson and Rashell Dickerson, the surviving heirs of Ruben
Dickerson. Defendant is Ahern Rentals, Inc., a company that
leases forklifts and other heavy-duty construction vehicles to its
customers.
       Mr. Dickerson’s employer, 24-Hour Tire Service, Inc.,
provided tire repair and replacement services for defendant’s
equipment for nearly 10 years. Defendant was one of 24-Hour
Tire’s major customers. 24-Hour Tire is owned by Ronald
Daetweiler, and his father, Steven Daetweiler, is the company’s




                                 2
manager. 24-Hour Tire employed Mr. Dickerson as a tire
changer and tire technician for more than 10 years.
       On November 24, 2015, Mr. Dickerson was killed in an
accident on defendant’s premises while he was replacing the tires
on one of defendant’s forklifts. Mr. Dickerson was in the course
and scope of his duties with 24-Hour Tire at the site of the
accident. His surviving heirs were paid workers’ compensation
benefits by 24-Hour Tire’s workers’ compensation insurer.
2.     The Complaint and Answer
       Plaintiffs sued defendant, alleging a single cause of action
for wrongful death. Plaintiffs’ case rested on allegations that
defendant negligently failed to provide a stable and level surface
for the tire change, allowed the tire change to proceed with the
forklift’s boom raised, which caused the forklift to sway and
collapse, and failed to properly train its employees and
independent contractors to whom defendant assigned the
maintenance and storage of the forklift.
       Defendant denied liability and asserted as an affirmative
defense that the complaint was barred by the rulings in Privette
and its progeny.
3.     The Legal Background
       Under Privette, when an employee of an independent
contractor is injured while performing inherently dangerous
work, and is subject to workers’ compensation coverage, the
employee cannot sue the person who hired the contractor to
recover damages for the same injuries that were compensable
under workers’ compensation. (Privette, supra, 5 Cal.4th at
p. 702.) The liability of the contractor, who is primarily
responsible for on-the-job injuries to its employees, is limited by
workers’ compensation. The party who hired the contractor and




                                 3
who indirectly paid for the contractor’s workers’ compensation
coverage through his payments to the contractor should likewise
get the benefit of that coverage.
        There are several exceptions to the Privette rule. Plaintiffs
invoke the Hooker exception in this case, arguing there are
material disputes whether defendant exercised control over
safety conditions at the worksite in a way that affirmatively
contributed to Mr. Dickerson’s injuries and death. (Hooker,
supra, 27 Cal.4th at p. 202.)
        The Supreme Court in Hooker found the trial court
correctly granted summary judgment in favor of a hirer of a
contractor whose employee was injured at the jobsite. Hooker
held the hirer of an independent contractor is not liable to the
contractor’s employee “merely because the hirer retained control
over safety conditions at a worksite,” but only if “[the] hirer’s
exercise of retained control affirmatively contributed to the
employee’s injuries.” (Hooker, supra, 27 Cal.4th at p. 202.)
“Affirmative contribution” means either actively directing a
contractor or contractor’s employee, or failing to undertake a
particular safety measure the hirer promised to do. (Id. at p. 212,
fn. 3.)
        In Hooker, Caltrans hired a general contractor to build a
highway overpass. The contractor employed a crane operator.
The crane with the outriggers extended was 18 feet wide and
blocked other construction vehicles on the overpass, so the crane
operator retracted the outriggers to let other vehicles pass. When
the crane operator tried to swing the boom without first
reextending the outriggers, the weight of the boom caused the
crane to tip over, killing him. (Hooker, supra, 27 Cal.4th at
p. 202.) The Supreme Court found Caltrans did not affirmatively
contribute to the operator’s death because it permitted vehicles to



                                 4
use the overpass while the crane was being operated but did
not direct the crane operator to retract the crane in order to allow
the movement of traffic. (Id. at pp. 202, 214–215.)
       There are other exceptions to Privette that do not apply to
the facts in this case. We briefly mention two such exceptions,
only because the parties cite the two cases in their briefs. A hirer
of an independent contractor may be liable for providing unsafe
equipment that affirmatively contributes to the injury of an
employee of the contractor. (McKown v. Wal-Mart Stores, Inc.
(2002) 27 Cal.4th 219, 225.) Plaintiffs cite McKown but do not
contend defendant provided unsafe equipment to 24-Hour Tire.
A hirer also may be liable to a contractor’s employee when the
hirer knew or should have known of a concealed hazardous
condition on the property, the contractor did not know about it,
and the hirer did not warn the contractor about the condition.
(Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659.) Plaintiffs also
cite Kinsman but do not allege any concealed hazardous
condition. Since plaintiffs do not claim defendant provided
unsafe equipment or that there was a concealed hazardous
condition on the property, these cases are not applicable.
4.      Defendant’s Evidence in Support of Summary
        Judgment
       In addition to the background facts described above,
defendant produced the following evidence.
       A few days before the accident, 24-Hour Tire arranged for
another tire company to remove all four of the wheels and old
tires on the forklift. Two employees of 24-Hour Tire used
four jack stands to raise and support the weight of the forklift
without any tires. These two employees of 24-Hour Tire had
selected which jack stands to use from among those in
defendant’s forklift storage warehouse. The other tire company



                                 5
cut off the old tires, put new tires on the wheels, and delivered
them to the jobsite on the afternoon before Mr. Dickerson was
called to replace them on the forklift.
       On the day of the accident, Steven Daetweiler was
primarily in charge of directing the work. He did not examine
the condition of the forklift as it sat on the jack stands before 24-
Hour Tire began the work. He made no effort to determine if his
employees had selected appropriate-capacity jack stands for the
weight of the forklift.
       Mr. Dickerson got under the forklift of his own volition.
Ronald Daetweiler saw all of Mr. Dickerson’s body go completely
under the forklift. When asked if he did anything to figure out if
the forklift was okay sitting on the jack stands before
Mr. Dickerson went under it, Mr. Daetweiler said “Yeah,
everything was fine.” Mr. Daetweiler thought it was a safe
practice for Mr. Dickerson to get completely under the forklift,
“[b]ecause . . . that’s how [Mr. Dickerson] always does it,” and
Mr. Daetweiler thought that is how it was supposed to be done.
       Steven Daetweiler, who was in charge, did not see
Mr. Dickerson get under the forklift and did not know he was
going to get under the forklift. He knew it was not appropriate
for Mr. Dickerson to put his entire body under the forklift, and
only the arm and forearm should reach under the forklift.
       It is necessary to lift the forklift up off each jack stand in
order to slide the wheel with the new tire onto the axle hub, and
this is done with a hydraulic air jack. Once the new tire is on the
hub, and the lug nuts are tightened, the jack stand is removed,
and the jack is slowly lowered down until the unit is sitting on
the tire instead of the jack stand. Ronald Daetweiler saw
Mr. Dickerson take the jack out of his truck, go under the forklift




                                  6
with it, connect the air hose to the jack, and jack it up.
Mr. Daetweiler “waited for him to jack it up, and that’s when it
fell.”
       Steven Daetweiler testified there was “some unlevelness” in
the asphalt surface under the forklift, but it did not cause him
any concern about working on the forklift. He responded “yes”
when asked, “Did you think that although there were some trivial
disparities in the levelness of the asphalt surface, that overall it
was essentially level?” He testified that he “analyzed the
workspace before [he] started any work on that tire installation
procedure”; he “knew and understood that if [he] thought there
was anything unsafe about that location, that [he] could refuse to
install tires on that lift at that place”; and he “made the
determination that morning that the location of the lift was
appropriate for [him] to do [his] work.”
       Steven Daetweiler was asked if he knew, in November
2015, “whether a forklift that had a boom elevated was more or
less stable than a forklift that had the boom lowered,” and he
responded that “[i]t’s probably a little bit more unstable.” He
believed that was the case “[b]ecause . . . there’s a little bit of
weight up in the air,” and “anything that sits low to the ground is
more stable.”
       Defendant also submitted 24-Hour Tire’s admission in
response to defendant’s request to admit that “prior to
commencing its work on November 24, 2015, 24-Hour Tire
Service, Inc. determined that it was appropriate to work on the
[forklift], as it was parked, without any modifications being
made.”
       Steven Daetweiler testified that defendant did not handle
any of the tire changing and did not assist in performing any of




                                 7
the work. No one with 24-Hour Tire told defendant in advance
what 24-Hour Tire planned to do. Mr. Daetweiler agreed the
tire-changing procedure, including removing the old tires and
wheels from the forklift, was “100 percent 24 Hour Tire work.”
5.     Plaintiffs’ Evidence in Opposition
       Plaintiffs’ opposition evidence including the following.
       The boom (or mast) on the forklift was in the raised
position, as were the booms on all the other forklifts “per
[defendant’s] regular practices,” on the day of the accident.
       The manufacturer’s operation and safety manual for the
forklift instructs that the boom should be lowered when the
forklift is in the parked position. Forklift safety videos provided
to defendant’s employees state the boom should be lowered when
the forklift is parked. But defendant’s employees were trained
always to leave the boom raised when the forklifts were parked.
       The service manual for the forklift states the first step of
changing the tires on the forklift is to park it on a level surface,
with the parking brake on, the ignition switch off, and the boom
retracted and carriage lowered.
       24-Hour Tire employees were not trained in the use of the
forklift, and defendant did not train them on how to lower the
boom or operate the forklift. Steven Daetweiler testified that
defendant did not provide any training or safety documents or
videos to anyone at 24-Hour Tire. He also testified he had no
license to drive a forklift or any training on how to do so. He did
not recall “anyone at [defendant] communicating the potential
dangers of changing tires with the boom raised.”
       Juan Palacios, defendant’s service manager, testified that
defendant’s practice is to leave the boom up prior to having a
vendor replace the tires on the forklift; defendant does not




                                  8
“retract the boom and lower the carriage” as instructed in the
service manual before a tire change; defendant does park on a
level surface, set the travel lever to neutral, set the parking
brake and turn off the ignition as stated in the manual.
       Plaintiffs presented a declaration from Brad Avrit, a
licensed civil engineer with expertise in accident reconstruction
and safety engineering. He reviewed photographs of the
premises and the forklift taken on the day of the accident;
visually inspected (in 2019) the premises and the forklift that
collapsed; and reviewed the operation and safety manual and the
service manual for the forklift.
       Mr. Avrit opined that defendant’s act of parking the forklift
“with the boom raised and on an uneven surface” was in conflict
with the manuals; the forklift was parked on an uneven surface
with its boom raised when it collapsed; and “[t]he raised boom on
the Forklift, in combination with it being parked on an uneven
surface, were substantial factors causing the Forklift to collapse
onto Decedent.”
       Mr. Avrit opined that with a lowered boom, the forklift’s
center of gravity “changes radically” from that of a raised boom,
and that the uneven surface of the ground where the forklift was
staged “significantly increases and/or amplifies the effect of
movement and/or displacement of the forklift due to the extended
boom. Due to the uneven and/or sloped surface of the ground,
any movement or displacement of the forklift with the extended
boom, would drastically cause the forklift to become unbalanced
and/or shift in movement. A lowered boom will result in the
Forklift being much more stable and unlikely to tip because the
center of gravity is shifted towards the center of the forklift
rather than forward where the weight of the raised boom sits.”




                                 9
6.    The Trial Court’s Decision
      The court granted defendant’s motion for summary
judgment. The court found there was sufficient evidence to show
that defendant retained control over the worksite, but no
evidence to show the existence of a triable issue of fact pertaining
to defendant’s affirmative contribution to Mr. Dickerson’s
injuries. The court found it was undisputed that defendant did
not interfere with or direct Mr. Dickerson on how the work
should be done or how safety procedures should be implemented.
      The trial court issued its ruling on July 15, 2019, and
plaintiffs filed a notice of appeal on July 31, 2019.
                             DISCUSSION
      We agree with the trial court that the evidence shows no
triable issue of material fact, and defendant was entitled to
summary judgment.
1.    The Standard of Review
      A defendant moving for summary judgment must show
“that one or more elements of the cause of action . . . cannot be
established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Summary
judgment is appropriate where “all the papers submitted show
that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” (Id.,
subd. (c).)
      Our Supreme Court has made clear that the purpose of the
1992 and 1993 amendments to the summary judgment statute
was “ ‘to liberalize the granting of [summary judgment]
motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 542.) It is no longer called a “disfavored” remedy. (Ibid.)
“Summary judgment is now seen as ‘a particularly suitable




                                 10
means to test the sufficiency’ of the plaintiff’s or defendant’s
case.” (Ibid.) On appeal, “we take the facts from the record that
was before the trial court . . . . ‘ “We review the trial court’s
decision de novo, considering all the evidence set forth in the
moving and opposing papers except that to which objections were
made and sustained.” ’ ” (Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1037, citation omitted.)
2.    The Governing Principles
      We have already described the general contours of the
Privette principles (see pt. 3 of the factual and legal background,
ante). The issue here is the applicability of the Hooker principle
that a hirer may be liable for injury to an employee of a
contractor if the hirer’s exercise of retained control over safety
conditions at the worksite affirmatively contributed to the
employee’s injuries.
      We begin our discussion with one other explanatory
principle. “The Privette line of decisions . . . establishes that an
independent contractor’s hirer presumptively delegates to that
contractor its tort law duty to provide a safe workplace for the
contractor’s employees.” (SeaBright Ins. Co. v. US Airways, Inc.
(2011) 52 Cal.4th 590, 600.) This Privette presumption affects the
burden of producing evidence. (Alvarez v. Seaside Transportation
Services LLC (2017) 13 Cal.App.5th 635, 642 (Alvarez).)
      Here, as in Alvarez, “defendants provided the requisite
factual foundation for the Privette presumption to apply.”
(Alvarez, supra, 13 Cal.App.5th at p. 644.) Defendant presented
evidence that it “hired plaintiff’s employer to perform work” at
defendant’s premises, and that “plaintiff was injured while
working at the site.” (Ibid.) “This evidence was sufficient to
establish that the Privette presumption applied and, therefore,




                                11
shifted the burden to plaintiff to raise a triable issue of fact.”
(Alvarez, at p. 644.)
3.      There Is No Evidence Defendant Affirmatively
        Contributed To Mr. Dickerson’s Injury and Death
       Plaintiffs say defendant retained control over the safety
conditions of the forklift by performing the initial set-up for tire
service and because only defendant was lawfully permitted to
operate the forklift. They say 24-Hour Tire was not qualified to
re-park the forklift or lower the boom, and their employees were
not trained to know whether the forklift had been shut down
properly.
       As a matter of law, these facts do not show defendant
“exercised the control that was retained in a manner that
affirmatively contributed to the injury of the contractor’s
employee.” (Hooker, supra, 27 Cal.4th at p. 210.) A hirer like
defendant may be liable for injury to an employee of a contractor
only if the hirer actively directs the contractor or contractor’s
employee to do the work in a particular way or fails to undertake
a particular safety measure the hirer promised to do. There is no
such evidence in this case.
       Passively permitting an unsafe condition does not amount
to actively contributing to how the job is done. (Tverberg v.
Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439, 1446
(Tverberg) [“passively permitting an unsafe condition to occur
rather than directing it to occur does not constitute affirmative
contribution,” italics added, citing Hooker, supra, 27 Cal.4th at
pp. 214-215].) “The failure to institute specific safety measures is
not actionable unless there is some evidence that the hirer . . .
had agreed to implement these measures.” (Tverberg, at p. 1446;
see also Khosh v. Staples Construction Co, Inc. (2016)




                                 12
4 Cal.App.5th 712, 718 [“A hirer’s failure to correct an unsafe
condition, by itself, does not establish an affirmative
contribution.”].)
       In Tverberg, the hirer actively contributed to unsafe
conditions at the jobsite that caused the plaintiff’s injury. The
plaintiff was an independent contractor who was injured when he
fell into one of eight holes that had been dug by another
independent contractor under the defendant’s directions. Each
hole was four feet wide and four feet deep. The holes had no
connection with the plaintiff’s work but the plaintiff was hired to
work right next to them. The plaintiff asked the defendant’s lead
man to cover the holes with large metal plates that were onsite,
but the lead man said the necessary equipment was not available
that day. When the plaintiff returned to work the next day, the
holes were still uncovered. He again asked the lead man to cover
the holes, but nothing was done. (Tverberg, supra,
202 Cal.App.4th at pp. 1442-1443.) The facts that the defendant
in Tverberg did not cover deep holes that it directed another
contractor to dig right next to where the plaintiff was performing
his work created a material factual dispute as to whether the
defendant affirmatively contributed to the plaintiff’s injury. (Id.
at pp. 1447-1448.)
       Other courts have affirmed summary judgment for the
defense when the undisputed evidence showed the defendant-
hirer did not direct, participate in, or interfere with the way the
work was done or agree to implement any safety measure. In
Brannan v. Lathrop Construction Associates, Inc. (2012)
206 Cal.App.4th 1170 (Brannan) the court affirmed summary
judgment for the hirer of a subcontractor whose employee was
injured at a construction site. In Brannan, the general contractor




                                13
hired a masonry subcontractor that employed the plaintiff
bricklayer. The general contractor’s project manager told the
masonry subcontractor he would do the plastering first
and remove the plaster scaffold before starting the masonry
work. But the scaffold was still there when the masonry work
began. The masonry foreman believed his crews could work
around the plaster scaffold, and he had no safety concerns about
them stepping onto the scaffold rungs to get to the other side.
The plaintiff was injured when he slipped and fell on wet
scaffolding. (Id. at pp. 1173-1174.) He alleged his injuries were
caused by the general contractor’s negligence in sequencing and
coordinating construction work at the site, and failing to call a
“ ‘rain day’ ” to protect workers from dangerous conditions caused
by slippery surfaces. (Id. at pp. 1172-1173.)
       In affirming summary judgment for the defendant, the
Brannan court reasoned it was undisputed the general contractor
did not direct the plaintiff’s work and did not tell him to gain
access under the plaster scaffold the way he did. There was no
evidence the general contractor knew that the plaintiff or other
masonry employees were climbing over the scaffolding in the
manner they did, or that this practice posed a safety hazard. The
masonry subcontractor’s own foreman, who did know about the
practice and was responsible for the safety of his employees,
stated he had no safety concerns about it. (Brannan, supra,
206 Cal.App.4th at pp. 1178-1179.) “[The general contractor’s]
act of allowing the scaffolding to remain in place while the
masonry work proceeded was no more an exercise of retained
control over safety than was Caltrans’s decision
in Hooker to allow construction traffic to access the overpass
while the crane was being used.” (Brannan, at p. 1180.) The
court explained, “This would be a different case if [the masonry



                                14
subcontractor’s] foreman or one of its employees had asked [the
general contractor] to remove the scaffolding for safety reasons,
[the general contractor] had promised to do so, and then it
negligently failed to follow through.” (Ibid.)
       This, too, would be a different case if 24-Hour Tire or one of
its employees had asked defendant to take safety measures to be
sure the forklift was stable, and defendant promised to do so, but
did not follow through. There is no evidence that defendant ever
agreed with 24-Hour Tire to implement any safety measure
related to the position of the forklift (or any other safety
measure). There is no evidence anyone with 24-Hour Tire asked
defendant to move the forklift or lower the boom, but defendant
did not do so; or that it was impossible or impractical to ask
defendant to be sure the forklift was safely positioned to change
the tires.
       The undisputed facts are quite the opposite. Plaintiffs
produced evidence that defendant did not train 24-Hour Tire
employees on how to service the forklift. Plaintiffs also produced
evidence that it was the normal practice of 24-Hour Tire to use
defendant’s jack stands when working on defendant’s forklifts
without signing them out for use, and defendant did not direct
24-Hour Tire which jacks to use. Steven Daetweiler knew the
forklift was parked on uneven ground, and that it was less stable
with the boom raised than it would have been with the boom
lowered. He analyzed the workspace before the work began on
the tire installation. He knew he could refuse to install the tires
on the spot where the forklift was parked if he thought there was
anything unsafe about that location. He was the one who made
the decision that the location of the forklift was appropriate for
him to do the work.




                                 15
       The facts that only defendant had keys to the forklift and
the authority to move it do not show defendant affirmatively
contributed to how the job was done. At most, plaintiffs’ evidence
shows defendant passively permitted an unsafe condition. Other
courts have affirmed summary judgment for the defendant-hirer
of a contractor where the evidence showed the defendant
passively permitted an unsafe condition. (See, e.g., Madden v.
Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1276–1277
[hirer not liable for injury to subcontractor’s employee who fell
from a raised patio at a construction site, where there was no
evidence hirer directed there be no guardrail, did anything to
prevent installation of guardrail, discussed placing safety railing
along the patio, or became aware of any safety concern due to
lack of such railing]; Michael v. Denbeste Transportation, Inc.
(2006) 137 Cal.App.4th 1082, 1096-1097 [hirers not liable for
failure to provide fall protection to trucker who fell while working
for hazardous waste disposal subcontractor, where there was no
evidence hirers promised to undertake any particular safety
measures or intervened in the subcontractor’s working methods];
Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430,
446 [hirer not liable to employee of roofing subcontractor who fell
from the roof when not wearing a harness or any safety
equipment, where hirer told subcontractor to provide its
employees safety equipment, subcontractor provided harnesses
and instructed his employees to wear them, and hirer did not
know of any safety hazard]; cf. Browne v. Turner Construction Co.
(2005) 127 Cal.App.4th 1334, 1345-1346 [hirer may be liable to
contractor’s employee by furnishing and abruptly withdrawing
safety equipment, leaving the plaintiff with no safe means of
completing the work].)




                                16
      There is no evidence of any basis for liability in this case,
and the trial court properly entered summary judgment.
                         DISPOSITION
      The judgment is affirmed. Defendant shall recover its costs
on appeal.

                              GRIMES, J.

      WE CONCUR:

                        BIGELOW, P. J.



                        WILEY, J.




                                17
