Filed 9/29/14 Andrews v. Verizon CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



SONDRA ANDREWS,                                                     D065965

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. CIVVS906850)

VERIZON COMMUNICATIONS, INC., et
al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of San Bernardino County,

Joseph R. Brisco, Judge. Affirmed.

         Welebir Tierney & Weck and Cory R. Weck for Plaintiff and Appellant.

         AlvaradoSmith, Raul F. Salinas and Mikel A. Glavinovich, for Defendant and

Respondent.


         Plaintiff Sondra Andrews brought a negligence action against Verizon

Communications, Inc. and Verizon California, Inc. (Verizon) after she was injured when

she fell from a chair while working at a Verizon facility. Andrews was employed by
Verizon's independent contractor security service. Andrews alleged Verizon was

negligent by failing to exercise reasonable care to provide safe equipment for use by its

independent contractor's employees. The court granted Verizon's summary judgment

motion, finding there were no triable issues of material fact as to Verizon's negligence.

       On appeal, Andrews contends the court erred in granting summary judgment

because triable issues of material fact exist as to whether Verizon affirmatively

contributed to her injuries and whether the chair was safe for its intended use. We reject

these contentions and affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Andrews was employed by Securitas Security Services USA, Inc. (Securitas), an

independent contractor retained by Verizon to provide security services at its facilities.

Securitas employees are stationed at guard shacks, which are small, freestanding

structures from which guards monitor those who enter and exit the Verizon facility.

       Normally an office chair is available for use by Securitas employees during their

eight-hour shifts. However, a few days before the incident, the office chair broke.

Marvin Kephart, another Securitas employee, replaced the broken chair with a barstool-

type chair he obtained from one of Verizon's buildings with the permission of a Verizon

employee. The wrought iron, four-legged chair weighed approximately 23 pounds and its

seat height was 29 inches from the ground.

       On the day of the accident, Andrews was working a graveyard shift. At

approximately 4:00 a.m., Andrews attempted to get down from the replacement chair, but

the top of her right foot became caught in the chair's footrest. She stumbled trying to

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stand up from the chair causing both her and the chair to fall. Andrews sustained a

fracture to her upper spine, which required surgery and a spinal fusion. She has not

returned to work since the incident.

       Andrews filed a negligence suit against Verizon, alleging it failed to exercise

reasonable care, failed to provide a reasonably safe place for Andrews to work, and failed

to "furnish, maintain or repair" a chair that was reasonably safe for her use. Andrews

claimed Verizon "knew or should have known the chair was unsafe . . . ."

       Verizon moved for summary judgment, arguing (1) there was no evidence

establishing that any act or omission by Verizon was a substantial factor in causing

Andrews's injuries and (2) Verizon did not breach a duty of care to Andrews because the

chair was safe.

       In support of its argument on the causation element, Verizon argued Andrews's

assertion it "provided" an unsafe chair for her use was belied by her deposition testimony

in which she stated that two Securitas employees, Marvin Kephart and Gayle McNair,

brought the chair into the guard shack. Verizon also cited to a portion of Andrews's

deposition in which she testified she did not know who gave Kephart permission to use

the chair in the guard shack.

       In support of its claim the chair was safe, Verizon submitted the declaration of

Fred Johnson, Ph.D., a former physics professor at California State University, Fullerton.

Dr. Johnson performed a stability analysis of the chair and opined it was "safe, secure,

and easy to sit on." He concluded it "would be virtually impossible to tip the chair over



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from a proper seated position. Accordingly, the chair was appropriate for its use as it was

stable as positioned in the shack."

       In opposition to Verizon's summary judgment motion, Andrews contended a

triable issue of material fact existed as to whether Verizon provided the chair for use in

the security guard shack and thus that Verizon was a substantial cause of her injuries. In

support, Andrews submitted a portion of Kephart's deposition testimony to establish that

a Verizon supervisor provided the chair to him. In this deposition testimony, Kephart

testified as follows:

       "Q: And the chair that we've previously identified in Exhibit 1, it looks like
           a barstool of some type; is that correct?"

       "A: Yes, sir."

       "Q: Do you know whose chair that is? Is it Securitas' chair or Verizon's?"

       "A: It was Verizon's chair."

       "Q: And do you have any knowledge as to who put that chair in the security
           guard shack?"

       "A: I did, sir."

       "Q: And who provided that chair to you?"

       "A: The Verizon supervisor at the other complex. The other complex is
           16071 Mojave Drive. That's off La Paz Drive."

       "Q: So it's provided to you by Verizon?"

       "A: By a—her name was Susan. Was it Sue? I can't remember her last
           name though."

       "Q: Okay. But she was a supervisor at Verizon?"

       "A: Yes. Yes, sir."

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       Later in his testimony, Kephart explained: "I asked [Susan] about the chairs in

there, if they're being used. She said no, they don't use them no more. I explained to her

that the chair we have in the guard shack was getting worn and we had to replace it until

we can get another office chair. She said it would be fine. Take it. There were six chairs

there." When asked about Susan's job title, Kephart responded that he did not know "for

sure. She's a supervisor. Or she might be a clerk. But she sat right there as you go in the

building." He said: "Once you go inside the doors and stuff, she sat right there. She

could just be a clerk. But she does have responsibilities though."

       Andrews additionally relied on the deposition testimony of Randy Haggard, a

Verizon supervisor in charge of facilities management, who stated Securitas employees

needed permission from Verizon before bringing new chairs or office furniture into the

guard shack. He testified that there is a specific protocol by which equipment such as a

broken chair needed to be reported and replaced, and indicated that Kephart did not

follow this protocol.

       Andrews also argued triable issues of fact existed as to whether the chair was

unsafe. In support, she submitted Haggard's deposition testimony in which he stated the

chair was "not a working chair," and that he would not have selected this chair to use in

the guard shack. Haggard stated that the sole basis for this opinion was that the chair

"doesn't look comfortable to me." When he was asked whether there was any other

reason he would not have allowed the chair to be used by security employees, Haggard

answered "No."



                                             5
       Andrews additionally proffered the declaration of Michael Nicholas, a "private

safety consultant specializing in the workers' compensation field." Nicholas did not

examine the chair, but opined that: (1) Andrews's fall and injuries were foreseeable

because the chair was nonadjustable, had only four legs, and did not have casters; and (2)

the chair was not safe, stable, or suitable for the office environment in which it was used.

       Verizon objected to Nicholas's declaration on numerous grounds, including that

his opinions were not based on his own inspection of the chair or any analysis of the

chair's dimensions and amount of force required to tip it over.

       After considering the parties' submissions and conducting a hearing, the court

granted Verizon's summary judgment motion. The court reasoned that Andrews was an

employee of Verizon's independent contractor, and therefore she was required to prove

Verizon "affirmatively contributed to the injury." (Capitalization omitted.) The court

found no "such evidence has been presented." (Capitalization omitted.) The court also

sustained Verizon's objections to two paragraphs of Andrews's expert's declaration that

contained his opinions regarding the safety of the chair and the foreseeability of

Andrews's injuries.

                                      DISCUSSION

                              I. Applicable Legal Standards

       A moving party is entitled to summary judgment when the party establishes it is

entitled to judgment as a matter of law. (Code of Civ. Proc., § 437c, subd. (c).) A

defendant may make this showing by demonstrating that the plaintiff cannot establish one

or more elements of all of the causes of action, or that the defendant has a complete

                                             6
defense to each cause of action. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466;

see also Code Civ. Proc., § 437c, subd. (o).) Once the defendant meets this burden, the

burden shifts to the plaintiff to set forth "specific facts" demonstrating the existence of a

triable issue of material fact. (Code of Civ. Proc., § 437c, subd. (p).)

       We review a summary judgment de novo. (Buss v. Superior Court (1997) 16

Cal.4th 35, 60.) "In practical effect, we assume the role of a trial court and apply the

same rules and standards that govern a trial court's determination of a motion for

summary judgment. [Citation.] We liberally construe the evidence in support of the

party opposing summary judgment [citation], and assess whether the evidence would, if

credited, permit the trier of fact to find in favor of the party opposing summary judgment

under the applicable legal standards. [Citation.]" (Millard v. Biosources, Inc. (2007) 156

Cal.App.4th 1338, 1346.) "We are not bound by the trial court's reasons for granting

summary judgment because we review the trial court's ruling, and not its rationale."

(Avidity Partners, LLC v. State of California (2013) 221 Cal.App.4th 1180, 1192.)

       To prevail on a negligence claim, a plaintiff must show duty, breach of duty,

causation, and damages. (Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th

1096, 1106.) Verizon moved for summary judgment asserting that the undisputed facts

showed Andrews could not establish the breach of duty or causation elements. Although

the court granted the motion solely on the causation ground, we can affirm on either

ground because Andrews briefed both issues on appeal. Code of Civil Procedure section

437c, subdivision (m)(2) prohibits an appellate court from affirming a summary judgment

on a ground not relied on by the trial court unless the appellate court permits

                                              7
supplemental briefing. However, supplemental briefing is not required here because the

issue was raised below and has been briefed on appeal. (See Bains v. Moores (2009) 172

Cal.App.4th 445, 471, fn. 39; Byars v. SCME Mortgage Bankers, Inc. (2003) 109

Cal.App.4th 1134, 1147, fn. 7.)

                            II. No Evidence Chair Was Unsafe

       Andrews alleged Verizon breached its duty by providing her with an unsafe chair.

In support of its summary judgment motion, Verizon produced evidence that the chair

was not defective or unsafe for use in the guard shack. Specifically, Verizon's expert

witness, Dr. Johnson, a physicist, opined that an individual like Andrews, if properly

seated in the chair, would be in a highly stable configuration with respect to her center of

gravity. Therefore, it would be "virtually impossible to tip the chair over from a proper

seated position." Based on his physical evaluation of the chair that included a stability

analysis, Dr. Johnson opined the chair was "safe, secure, and easy to sit on" and "was

appropriate for use in the guard shack." Verizon also produced evidence that Andrews's

fall occurred as a result of her foot getting caught in the footrest as she attempted to get

up from the chair, and not from any instability in the chair.

       This evidence satisfied Verizon's summary judgment burden to show it did not

breach a duty because the chair was safe and not defective. The burden thus shifted to

Andrews to show the chair was unsafe. In attempting to meet this burden, Andrews

relied primarily on her expert, safety consultant Nicholas. However, the court sustained

Verizon's evidentiary objections to Nicholas's opinions concerning the safety of the chair,

and Andrews has not challenged the court's ruling on appeal. We are therefore bound by

                                              8
the court's ruling and must disregard the expert's opinions. (Food Safety Net Services v.

Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1124.)

       On appeal, Andrews contends the deposition testimony of Verizon's facilities

manager Haggard created a triable issue of material fact on the chair-safety issue. In this

testimony, Haggard said the chair from which Andrews fell was "not a working chair"

and should not be utilized by people who are working. However, in response to counsel's

question, Haggard made clear that his objection to the chair was related to work-comfort

issues, and that he had no other concerns with the chair. Haggard said he would not have

chosen the chair for use in the guard shack because it did not "look comfortable" to him.

       Although Haggard's opinion the chair was "not a working chair" may support a

conclusion the chair was not an ergonomically sound or a comfortable chair for Securitas

employees to use for extended time periods, this alone does not support a reasonable

inference the chair was defective or unsafe. Under well-settled summary judgment law,

"[a]n issue of fact . . . is not created by 'speculation, conjecture, imagination or guess

work.' " (Sinai Memorial Chapel v. Dudler (1991) 231 Cal.App.3d 190, 196.) The fact

that a chair is not an ideal choice for an office environment does not lead to a reasonable

inference that it is unsafe for this use.

       Summary judgment was proper because the undisputed facts showed Andrews had

no admissible evidence to show the chair was unsafe.




                                               9
                      III. No Evidence Verizon Contributed to Injury

       We alternatively conclude summary judgment was proper because the undisputed

facts showed Verizon did not affirmatively contribute to Andrews's injuries and/or did

not exercise control over the chair-replacement decision.

       "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, 256.)

       Two exceptions are potentially relevant here. First, an exception applies when the

hirer's act of providing unsafe equipment affirmatively contributed to the party's injuries.

(McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 225 (McKown).) Second, 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 (Hooker).)

       Neither exception applied here.

       First, with respect to the unsafe equipment exception, the summary judgment

record shows Securitas employee Kephart was aware there was a Verizon building with

several unused chairs that previously were used for employees who were breastfeeding.

                                             10
He selected the chair and then brought it into the guard shack. In so doing, Kephart

asked a Verizon employee whether the chairs were being used. After explaining he

needed a temporary replacement for a "worn" office chair in the guard shack, the Verizon

employee said he could take it. Several days later, Andrews was injured when she fell

from the replacement chair.

       This evidence does not show Verizon affirmatively contributed to Andrews's

injuries. Andrews did not present any evidence that "Susan," the Verizon employee who

permitted Kephart to take the chair, affirmatively participated in selecting or supplying

the chair for use in the guard shack. Moreover, there was no evidence that this Verizon

employee had the authority to make office equipment decisions. Her job title was never

identified. Kephart thought she was a "clerk" or a "supervisor" or a receptionist who sat

at the front desk of a Verizon building. There is no evidence that her job responsibilities

included the authority to make equipment decisions. Additionally, the fact there was a

policy that Securitas employees must obtain approval from a Verizon manager to obtain

new or replacement chairs does not show this policy was followed in this case. The

undisputed evidence showed that the Securitas employee obtained the chair through his

own initiative and not through the standard equipment replacement policy. Verizon did

not participate in selecting or providing the chair for Andrews's use.

       In this regard, this case is unlike McKown, in which the independent contractor

was injured by a defective forklift supplied by the defendant. (McKown, supra, 27

Cal.4th 219.) In McKown, the evidence showed the defendant supplied its own forklift

and requested that it be used by the plaintiff in the installation. (Id. at p. 223.) The

                                              11
plaintiff later sustained injuries resulting from a defect in the forklift. (Ibid.) Under these

circumstances the California Supreme Court held the defendant hirer could be held liable

for the plaintiff's injuries because it provided the unsafe equipment. (Id. at pp. 223-226.)

In so holding, the high court rejected the defendant's contention that it could not be liable

for providing the unsafe equipment "because it merely requested, and did not insist, the

contractor use the forklift." (Id. at p. 225) The court explained that for practical business

reasons, the plaintiff was essentially compelled to use the defendant's equipment, and that

the defendant had implicitly represented that the equipment was safe. (Id. at pp. 225-

226.)

        This case is different because Verizon did not in any way furnish the chair that

was allegedly defective. A Verizon employee allowed Kephart to remove the chair from

a Verizon facility at his request to replace a "worn" chair in the guard shack. This

passive act is not enough to hold a hirer liable for injuries suffered by the employee of an

independent contractor.

        Andrews alternatively argues Verizon affirmatively contributed to her injuries by

negligently exercising its retained control over the guard shack. (See Hooker, supra, 27

Cal.4th at pp. 201-202.) Andrews relies on facilities supervisor Haggard's testimony that

Securitas employees were required to obtain permission from Verizon before bringing

new office chairs or supplies into the guard shack. However, mere retention of control

over the office equipment in the guard shack is not enough. (See id. at p. 209.) Andrews

must also raise a triable issue of material fact as to whether Verizon exercised the



                                              12
retained control so as to affirmatively contribute to her injuries. (See id. at p. 215.) She

has proffered no evidence to support this theory.

       Andrews argues this case is factually similar to Ray v. Silverado Constructors

(2002) 98 Cal.App.4th 1120 (Ray). In Ray, a subcontractor's employee was killed when

construction materials fell off a highway overpass and struck him as he cleared debris on

the roadway below. (Id. at p. 1124.) The Court of Appeal reversed a summary judgment

in the general contractor's favor, concluding triable issues of material fact existed as to

whether the general contractor retained control over traffic conditions at the jobsite. (Id.

at p. 1123.) The court reasoned that on the day of the accident, the general contractor

was the only party empowered to protect the subcontractor's employees. (Id. at pp. 1133-

1134.) Specifically, the independent contractor was "barred from undertaking

enumerated safety measures without the prior written consent of the general contractor,"

and therefore the hirer retained and exercised control over safety measures at the job site.

(Id. at p. 1134.)

       Ray is distinguishable from the present case because Securitas was not

contractually precluded from acting to ensure its employees had safe equipment.

Andrews presented no evidence that Securitas personnel were prohibited from acquiring

a safe replacement office chair. In contrast to Ray, where the independent contractor was

prohibited without the hirer's advance written consent from erecting a traffic barricade

and thus protecting its workers, Securitas personnel had the ability to obtain a

replacement chair that was safe for its intended use.



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                                   DISPOSITION

      Judgment affirmed. Appellant to bear respondents' costs on appeal.



                                                                           HALLER, J.

WE CONCUR:



BENKE, Acting P. J.



O'ROURKE, J.




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