Opinion
RUVOLO, J.
I.
Introduction
In deciding this appeal we deconstruct a civil discovery “urban legend”
— that a responding party has an affirmative duty to supplement responses to
interrogatories if and when new information comes into that party’s possession, particularly if the party reserved the right to amend or supplement the earlier responses. Here a defendant sued in an asbestos personal injury case on a premises liability theory moved for summary judgment, contending that the plaintiff could not show he had been exposed to asbestos on the defendant’s premises in a manner for which the defendant could be held liable. The plaintiff countered with a declaration from one of his former coworkers, stating that while they were both working for a contractor on the defendant’s premises, the defendant’s employees used air hoses to blow asbestos dust in their direction.
The defendant objected to the declaration on the ground that the coworker had not been identified in answer to an earlier interrogatory seeking the names of persons who had knowledge of plaintiff’s exposure to asbestos on the defendant’s premises, and that plaintiff had failed to supplement his answer to include the name. The trial judge excluded the declaration, and granted summary judgment for the defendant.
Plaintiff appeals, arguing that his failure to identify the witness in his interrogatory answer, and to supplement that answer before submitting the witness’s declaration, was not grounds for excluding the declaration from evidence in connection with the summary judgment motion. We agree, and, because the declaration raises a triable issue of material fact as to the defendant’s liability, we reverse the summary judgment.
II.
Facts and Procedural Background
Plaintiff Ronald Biles (Biles) was diagnosed with asbestosis and asbestos-related pleural disease in October 2001.
From October 1968 through March
1969, Biles worked as an insulator for a subcontractor engaged to assist in the construction of an oil refinery (the Humble refinery) for Humble Oil (Humble), the predecessor in interest of defendant Exxon Mobil Corporation (Exxon). Based on this experience,
when Biles filed a personal injury lawsuit in April 2002 seeking damages for his asbestos-related illness, he included Exxon as a defendant on a premises liability theory.
During discovery, Exxon served a set of special interrogatories on Biles, which he answered in May 2003. One of Exxon’s interrogatories asked Biles to identify “each person who has knowledge specifically of the work at [the Humble refinery] that you contend created your exposure to asbestos fibers.” Biles’s response was that “After a reasonable and good faith inquiry, plaintiff currently has no further information responsive to this Interrogatory. Plaintiff expressly reserves the right to amend or supplement this Response based on the outcome of such investigation. Plaintiff’s investigation and discovery are continuing.”
At his deposition in April 2003, Biles testified that during his work at the Humble refinery, he did not recall seeing or having direct personal contact with anyone employed by the refinery. On October 6, 2003, Exxon filed a summary judgment motion, relying in part on this deposition testimony to support the contention that “there was no dangerous condition [at the Humble Refinery] . . . that was controlled by Exxon[] . . . .” Exxon’s separate statement of undisputed facts did not refer to Biles’s interrogatory answers, nor were they included in the papers submitted in support of the summary judgment motion.
On October 29, 2003, about three weeks after Exxon filed its summary judgment motion in the present case, the deposition of a man named Roger Bellamy was taken in a different asbestos personal injury case (the
Kiss
action) in which the plaintiffs were John and Joan Kiss, and Exxon was one of the defendants. The plaintiffs in the
Kiss
action, and Bellamy himself as a deposition witness, were represented by the same law firm that represents Biles in this action. Exxon was also represented by the same law firm in both
actions. During the deposition, Bellamy testified that he had worked with John Kiss and Biles at the Humble Refinery between October 1968 and March 1969.
On December 8, 2003, Biles filed his opposition to Exxon’s summary judgment motion. Biles’s opposition papers included excerpts from Bellamy’s deposition in the
Kiss
action, as well as a declaration from Bellamy (the Bellamy declaration). The Bellamy declaration stated that during the time Bellamy and Biles worked together at the Humble Refinery, Bellamy saw personnel employed by Exxon, approximately 60 feet from himself and Biles, who were “utilizing compressed air hoses to blow the asbestos dust throughout the worksite, including throughout the area where [Biles] and I were then performing our work.” The Bellamy declaration also averred that Bellamy “was able to identify the [Exxon] personnel based on their hard hats which said ‘Exxon,’ and based on conversations with other members of my crew.”
In Biles’s response to Exxon’s separate statement of undisputed facts, he relied on the Bellamy declaration as evidence that Exxon “actively and negligently exposed him to asbestos while [Exxon’s] operators and laborers were cleaning up equipment to be operated by [Exxon] personnel, utilizing brooms and air hoses which dispersed asbestos-containing dust into [Biles’s] work environment.” Biles submitted no evidence supporting this factual contention other than the Bellamy declaration.
In its reply papers in support of the summary judgment motion, filed on December 16, 2003, Exxon objected to the admission of the Bellamy declaration on the ground that Bellamy had not been identified in Biles’s response to Exxon’s interrogatories. Exxon also noted that the same law firm that represents Biles in the present case had also represented Bellamy in his own asbestos suit, and had defended him during a deposition taken in that case in May 1996, at which Bellamy testified about his work at the Humble Refinery during 1968 and 1969. The excerpts from Bellamy’s 1996 deposition submitted by Exxon did not, however, include any mention of Biles, or any questioning regarding whether Exxon’s employees took any action that resulted in Bellamy’s being exposed to asbestos dust.
The hearing on the summary judgment motion took place on December 22, 2003. Addressing Biles’s counsel, the trial judge opined that “When you found out [o]n October 19th that Bellamy had information about Biles, it was incumbent upon you to pass that information on because nobody knew about it, you were the only ones who did. I don’t know whether these people, Exxonfs counsel], were involved in the Kiss case or not,[
] but it is still
incumbent upon you to supplement that interrogatory because you said you would everytime [íz'c] you got information. You didn’t do it and now in a summary judgment motion suddenly on December 7th, 2003, we have Roger Bellamy blossoming in this case and nobody ever heard of him before.” He reiterated that “you said you were going to supplement, you didn’t do it, you sprung Bellamy on in connection with a summary judgment motion. You can’t do that.”
After hearing argument from counsel, the judge once again stated that, “Look, when you answer an interrogatory and you don’t give any names at all but say you are going to supplement it, the obligation is on you to supplement it as soon as you find out. [¶] Regardless of the 1996 case, it’s real clear that at least as of October 29th, 2003 in Mr. Kiss’s case, you found out that Mr. Bellamy knew something relevant to Mr. Biles’ case. It was incumbent upon you to let Exxon know . . . that you found something there that mattered. That didn’t happen. Mr. Bellamy didn’t show up until the summary judgment motion was filed and in the opposition [you] submitted a declaration on December 7th saying for the first time . . . [that Bellamy] worked with Mr. Biles at the Exxon refinery. That is too late, can’t do it.”
The trial judge thereupon signed Exxon’s proposed order granting the motion for summary judgment. Judgment was entered accordingly on February 5, 2004, and this timely appeal ensued.
HI.
Discussion
On appeal, Biles argues that the trial court erred in excluding the Bellamy declaration from evidence, and that if the Bellamy declaration is considered, his opposition to the summary judgment motion raised a triable issue of fact. We review the trial court’s ruling excluding the Bellamy declaration for abuse of discretion
(Juarez v. Boy Scouts of America, Inc.
(2000) 81 Cal.App.4th
377,
388-389 [97 Cal.Rptr.2d 12]), and the trial court’s grant of summary judgment de novo.
(Saelzler v. Advanced Group 400, supra,
25 Cal.4th at p. 767.)
A. The Exclusion of the Bellamy Declaration Was Not Based on a Finding That Appellant’s Earlier Interrogatory Answers Were Willfully False
The trial judge cited no authority for his ruling that the Bellamy declaration was inadmissible due to Biles’s failure to identify Bellamy in his
interrogatory responses. However, it appears he was relying on
Thoren v. Johnston & Washer
(1972) 29 Cal.App.3d 270 [105 Cal.Rptr. 276]
(Thoren),
which Exxon cited as the primary support for its argument in the trial court, and on which Exxon continues to rely on appeal. Accordingly, we take
Thoren
as the starting point for our review of the judge’s evidentiary ruling.
In
Thoren,
an injured construction worker sued a subcontractor of his employer, alleging that the subcontractor’s negligence had created a dangerous condition on the job site. In answer to an interrogatory asking for the identities of witnesses who had arrived at the accident scene shortly after the plaintiff was injured, the plaintiff named one, and only one, person. The interrogatory answer did not by its terms anticipate continuing discovery or further responses, and it apparently was not supplemented at any time before the case was called for a jury trial some two and a half years later.
(Thoren, supra,
29 Cal.App.3d at pp. 272-273.)
When the trial began, the plaintiff’s counsel indicated in his opening statement that he expected to call a witness named Robert Clubb to testify about the condition of the job site shortly after the accident. The defendant moved to exclude Clubb’s testimony on the ground that he had not been named in the interrogatory answer. At a hearing outside the jury’s presence, the trial judge learned that Clubb was a representative of the plaintiff’s union; that he had gone to the job site and taken photographs as soon as he heard about the accident; that he had sent the photographs to the plaintiff’s attorney; and that he had been responsible for referring the plaintiff to that attorney. Based on these facts, the trial judge excluded Clubb’s testimony. Without that evidence, the plaintiff had no proof of the defendant’s responsibility for his injuries, so the court granted the defendant’s motion for a nonsuit.
(Thoren, supra,
29 Cal.App.3d at p. 273.)
On appeal, the court affirmed, reasoning that “[t]he power of the trial court to bar the testimony of a witness willfully excluded from an answer to an interrogatory seeking the names of witnesses to an occurrence is found in the express language of the discovery act and is an inherently necessary one if the purposes of the act are to be achieved.”
(Thoren, supra,
29 Cal.App.3d at p. 273.) The court went on to opine that “[a] willfully false answer to an interrogatory must be treated as the equivalent of no answer at all . . . ,” and that “[w]here . . . that falsity lies in the deliberate omission of the name of a witness to the occurrence, an order barring the testimony of the witness must be sustained as a sanction . . . which the trial court properly ‘deemed just.’ ”
(Id.
at p. 274; see also
id.
at p. 275 [because plaintiff “gave the name of only one person” in interrogatory answer, “the trial court could properly hold that he should be limited to calling that person to testify . . . .”].)
We have no quarrel with the
Thoren
court’s general statements of the law, but find
Thoren
distinguishable both procedurally and on its facts from the circumstances of the present case. In
Thoren,
it was not until the start of trial, over two years after plaintiff served his interrogatory answer, that the defendant learned a witness had been omitted. The court noted that because “the falsity of the answer was not discovered until a jury had been impaneled, [the] situation militated] against solution of the problem by a continuance.”
(Thoren, supra,
29 Cal.App.3d at p. 275.) Here, in contrast, the record indicates that no trial date had been set when the summary judgment motion was filed. Moreover, the summary judgment motion was filed only five months after Biles’s interrogatory response was served, and the Bellamy declaration was submitted in opposition two months after the motion was filed.
Most importantly, before ruling on the motion to exclude the challenged testimony, the trial court in
Thoren
held a hearing, and concluded, based on substantial evidence, that at the time the interrogatory was answered, the plaintiff’s counsel either had actual knowledge of the witness’s role in the case, or deliberately refrained from finding it out before answering. Thus, the court determined that the interrogatory answer omitting the witness’s name was not merely incomplete, but “willfully false.”
(Thoren, supra,
29 Cal.App.3d at pp. 273, 275-276.)
The court in this case conducted no evidentiary hearing as to when Biles or his counsel first learned that Bellamy was in possession of facts relevant to Exxon’s potential liability for Biles’s asbestos exposure. Instead, the court appears to have assumed that the information had been discovered only at, or shortly after, Bellamy’s deposition on October 29, 2003. Even if this assumption was correct, the court did not find that Biles or his counsel were aware that Bellamy was a potential witness any earlier than October 29, 2003—well
after
the interrogatory answer was served (and, indeed, after Exxon had already filed its summary judgment motion). Therefore, Biles’s initial responses could not have been willfully false when made, and
Thoren
is distinguishable.
Additionally, we are no more persuaded than the trial judge by Exxon’s argument that Biles’s counsel knew or should have known about Bellamy’s potential to be a witness in Biles’s case based on the mere fact that the same law firm had represented Bellamy in his own case in 1996. Exxon has not provided any evidence that Bellamy ever mentioned Biles to his counsel at that time. Even if he had, there is no evidence that the attorney representing Bellamy six years earlier was in any way involved in Biles’s case, or that he or she was even still with the firm. Indeed, the record reflects there was no overlap of counsel, and that, in each instance, different plaintiffs’ counsel
from the same law firm drafted the complaint and interrogatory responses in Biles’s case, appeared at the Bellamy deposition in the
Kiss
action, filed the opposition to Exxon’s motion for summary judgment, and attended the hearing on the motion. Surely, under these circumstances counsel cannot be charged with knowledge of facts that have not been brought to their attention, nor does the obligation to investigate before serving discovery responses require counsel to search their files in every case in their office, closed or pending, to determine whether any of the law firm’s prior clients were ever coworkers of another client.
Thoren
provides authority for excluding evidence based on a willfully false discovery response. It does not stand for the proposition that evidence may be excluded based on the mere failure to supplement or amend an interrogatory answer that was truthful when originally served. On the contrary, in
Rangel v. Graybar Electric Co.
(1977) 70 Cal.App.3d 943 [139 Cal.Rptr. 191]
(Rangel),
the very same panel that wrote
Thoren
distinguished its earlier holding on precisely the basis that there was no showing that the responding party had willfully concealed a witness’s name.
The court cautioned in
Rangel
that “[i]n the absence of stronger evidence of wilful omission, to uphold the trial court’s action barring plaintiff’s rebuttal witness would permit the use of interrogatories as a trap, pinning a party for all time to an answer intended to reflect only that party’s knowledge as of the date of answer. [Citation.]”
(Rangel,
at p. 949.) In the present case, Exxon used its interrogatories in precisely that fashion, by persuading the trial court to exclude the Bellamy declaration based solely on Biles’s failure to amend his interrogatory answer promptly after his counsel discovered that Bellamy should have been identified as a witness.
Thoren
simply does not authorize that result.
B. The Exclusion of the Bellamy Declaration Could Not Be Justified as a Discovery Sanction
The authority that empowers trial courts to impose evidentiary discovery sanctions on recalcitrant parties is embedded in subdivisions (k) and
(l)
of Code of Civil Procedure section 2030.
The relevant portions of these subdivisions are as follows:
“(k) . . . The party propounding the interrogatories may move for an order compelling response to the interrogatories. The court shall impose a monetary sanction under Section 2023 against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
If a party then fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Section 2023.
In lieu of or in addition to that sanction, the court may impose a monetary sanction under Section 2023.
“(0 If the propounding party, on receipt of a response to interrogatories, deems that ... an answer to a particular interrogatory is evasive or incomplete, . . . that party may move for an order compelling a further response. This motion shall be accompanied by a declaration stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion, [f] . . . [f]
“The court shall impose a monetary sanction under Section 2023 against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.
“If a party then fails to obey an order compelling further response to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Section 2023.
In lieu of or in addition to that sanction, the court may impose a monetary sanction under Section 2023.” (§ 2030, subds. (k), (0, italics added.)
A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions such as the evidence sanction imposed here: (1) absent unusual circumstances, there must be a failure to comply with a court order,
and (2) the failure must be willful. (See, e.g.,
R.S. Creative, Inc. v. Creative Cotton, Ltd.
(1999) 75 Cal.App.4th 486, 496 [89 Cal.Rptr.2d 353] [terminating sanctions properly imposed for repeated efforts to thwart discovery, including violation of two discovery orders].) Even where nonmonetary sanctions are called for, they “ . . “should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” [Citations.] “ ‘. . . [f] The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment. [Citations.]’ ” [Citations.]’ [Citation.]”
(Do it Urself, supra,
7 Cal.App.4th at p. 35.)
Thus, when a party repeatedly and willfully fails to provide certain evidence to the opposing party as required by the discovery rules, preclusion of that evidence may be appropriate, even if such a sanction proves determinative in terminating the plaintiff’s case.
(Juarez
v.
Boy Scouts of America, Inc., supra,
81 Cal.App.4th at p. 390.) But “ ‘[t]he
ratio decidendi
behind such cases[]’ ... is ‘that a persistent refusal to comply with an order for the production of evidence is tantamount to an admission that the disobedient party really has no meritorious claim . . . .’ [Citation.]”
(Ibid.,
quoting
Kahn
v.
Kahn
(1977) 68 Cal.App.3d 372, 382 [137 Cal.Rptr. 332], italics in original quoted source.) This rationale does not justify imposition of an evidence sanction based on the mere failure to supplement a response promptly when no order compelling further answers has been sought or entered.
Alternatively, section 2030, subdivision (m), provides that if a party amends an interrogatory answer in a manner that “substantially prejudice[s]” the propounding party, the latter may move for an order deeming the original
answer binding, but only after making “a reasonable and good faith attempt” to resolve the issue informally. No such attempt was made here. Even when the motion is properly made, the order deeming the original answer binding is appropriate only if the responding party “fail[s] to show substantial justification for the initial answer.”
(Ibid.)
The trial judge made no finding on that issue, and, as already discussed, the record indicates that Biles and his counsel did not learn about Bellamy’s potential testimony until after the original answer was served. Finally, the statute also requires a showing that “the prejudice to the propounding party cannot be cured ... by a continuance to permit further discovery.”
(Ibid.)
Again, no such showing was made here.
C. Biles Had No Statutory Duty to Amend or Supplement His Interrogatory Responses
The trial judge’s comments at the hearing make clear that he viewed Biles as having a
duty
to supplement his interrogatory responses promptly upon the receipt of new information, even in the absence of any request or order, and that his exclusion of the Bellamy declaration stemmed at least in part from Biles’s failure to do so. This conclusion was erroneous, because, as Exxon’s counsel acknowledged at oral argument in this court, Biles had no such duty under California’s discovery statutes.
(See generally Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2004) ¶ 8:1119, p. 8F (rev. # 1, 2000) [“The responding party need only provide such information as is available at the time the answers are prepared. There is
no
duty to update or amend the answers, either to correct errors or to include new information discovered later. [Citation.]” (Italics in original.)].)
Moreover, a rule precluding the use of evidence not previously disclosed in supplemental discovery responses to oppose a summary judgment motion would be inconsistent with case law holding that “factually void” discovery responses can be relied upon to shift the burden of proof to the opposing party.
(Union Bank
v.
Superior Court
(1995) 31 Cal.App.4th 573, 590, 592-593 [37 Cal.Rptr.2d 653]; see also
Scheiding v. Dinwiddie Construction
Co.
(1999) 69 Cal.App.4th 64, 76-78 & fn. 2 [81 Cal.Rptr.2d 360].) If a party who fails to amend or supplement interrogatory responses can be categorically precluded from offering undisclosed information in opposition to a later filed summary judgment motion, the need for a burden-shifting rule would be eliminated. In its place would be a rule that compels the granting of a motion for summary judgment based on factually void discovery responses, because any attempt to fill the void with new evidence would be precluded. Exxon cites no authority for such a rule. Indeed, the reasoning underlying our opinion in
Scheiding v. Dinwiddie Construction Co., supra,
69 Cal.App.4th at pages 78-81, implies that the law is to the contrary.
We also note that the trial judge was incorrect in characterizing Biles as having promised, in his original response, to serve supplementary answers when appropriate. The response reserved the right to serve amended or supplemental answers—a right that is, in any event, expressly granted by statute (§ 2030, subd. (m))—but made no commitment to do so. Even if he had made such a promise, in the absence of an evidentiary sanction for discovery abuse imposed under subdivision (k) or (Z) of section 2030, there is no general bar on introducing previously undisclosed evidence in opposition to a summary judgment motion.
In short, to the extent that the trial judge’s ruling excluding the Bellamy declaration was premised on the belief that Exxon was entitled either to an order deeming Biles bound by his original interrogatory answer, or to an evidentiary discovery sanction, those premises were in error. As of the date of the summary judgment hearing, the statutory prerequisites for the issuance of such an order or sanction had not been satisfied.
D. The Bellamy Declaration Raised a Triable Issue of Fact as to the Negligence of Exxon, and the Motion for Summary Judgment Should Have Been Denied
On appeal, Exxon argues that even if the Bellamy declaration is considered, the judgment should still be affirmed, because the Bellamy declaration does not create a triable issue of fact with respect to Exxon’s liability in this
case. We begin our analysis of this question with a brief description of the legal context of plaintiff’s premises liability theory.
In a series of cases beginning with
Privette v. Superior Court
(1993) 5 Cal.4th 689 [21 Cal.Rptr.2d 72, 854 P.2d 721]
(Privette),
the California Supreme Court increasingly restricted the circumstances under which premises owners and general contractors (hirers) can be held liable for injuries incurred by employees of independent contractors or subcontractors (contractors) while working on the hirer’s premises. (See also
Toland v. Sunland Housing Group, Inc.
(1998) 18 Cal.4th 253 [74 Cal.Rptr.2d 878, 955 P.2d 504]
(Toland)
[hirers are not liable to contractors’ employees for failing to require contractor to take precautions to avert risk from inherently dangerous work];
Camargo
v.
Tjaarda Dairy
(2001) 25 Cal.4th 1235 [108 Cal.Rptr.2d 617, 25 P.3d 1096]
(Camargo)
[hirers’ liability to contractors’ employees cannot be premised on hirer’s negligence in retaining incompetent contractor].)
Privette
rejected the application to contractors’ employees of the doctrine of “peculiar risk” set forth in section 416 of the Restatement Second of Torts
(Restatement), and held that when “the injuries resulting from an independent contractor’s performance of inherently dangerous work are to an employee of the contractor, and thus subject to workers’ compensation coverage, the doctrine of peculiar risk affords no basis for the employee to seek recovery of tort damages from the person who hired the contractor but did not cause the injuries. ”
(Privette, supra,
5 Cal.4th at p. 702.) The court reasoned principally that allowing such liability would undercut the policies underlying the workers’ compensation system.
In
Hooker v. Department of Transportation
(2002) 27 Cal.4th 198 [115 Cal.Rptr.2d 853, 38 P.3d 1081]
(Hooker),
the court further extended the
Privette
line of authority, holding that “a hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite . . . .”
(Id.
at p. 202.) The court in
Hooker
went on to note, however, that “a hirer is liable to an employee of a contractor insofar as a hirer’s exercise of retained control
affirmatively contributed
to the employee’s injuries.” (Ibid., original italics.) Moreover, in a companion case to
Hooker,
the court confirmed that there is a basis for liability under section 414 of the Restatement in California, holding that “a hirer is liable to an employee of an independent contractor insofar as the hirer’s provision of unsafe equipment affirmatively contributes to the employ
ee’s injury.”
(McKown v. Wal-Mart Stores, Inc.
(2002) 27 Cal.4th 219, 222 [115 Cal.Rptr.2d 868, 38 P.3d 1094], fn. omitted.)
Thus, the court has made clear that the policies underlying the limitations on the peculiar risk doctrine are not violated when a hirer is held liable to a contractor’s employee based on the hirer’s own affirmative negligence. “Imposing tort liability on a hirer of an independent contractor when the hirer’s conduct has affirmatively contributed[
] to the injuries of the contractor’s employee is consistent with the rationale of our decisions in
Privette, Toland
and
Camargo
because the liability of the hirer in such a case is
not
‘ “in essence ‘vicarious’ or ‘derivative’ in the sense that it derives from the ‘act or omission’ of the hired contractor.” ’ [Citation.] To the contrary, the liability of the hirer in such a case is
direct
in a much stronger sense of that term.”
(Hooker, supra,
27 Cal.4th at pp. 211-212, original italics; see also
Ray
v.
Silverado Constructors
(2002) 98 Cal.App.4th 1120, 1128-1129 [120 Cal.Rptr.2d 251].)
Indeed, nothing in section 409 of the Restatement
purports to absolve a hirer from liability
for the hirer’s own negligent acts,
merely because a contractor happens to be on the scene at the time, or because the injured party happens to be employed by that contractor. Thus, whether or not there is liability under Restatement section 416, or any other exception to Restatement section 409, is not relevant when the direct negligence at issue is that of the hirer, not the contractor. (See
Slater
v.
Skyhawk Transp., Inc.
(D.N.J. 1999) 187 F.R.D. 185, 210 [distinguishing issue of hirer’s liability for negligence of contractor, based on premises liability theory, from premises owner’s direct liability for its own negligent conduct];
Chugach Electric Association v. Lewis
(Alaska 1969) 453 P.2d 345, 348-349 [same].) Instead, the hirer’s liability for its own negligence is covered by the principles enunciated in
Hooker
and
McKown,
as well as by general principles of
California tort law regarding the duty of premises owners to persons coming upon their land.
In short, if a hirer’s own employees, working side-by-side with the employees of a contractor, negligently injure one of the contractor’s employees, the hirer may be held liable under the normal principles of respondeat superior for its own employees’ negligence. Nothing in the
Privette
line of cases is to the contrary, nor do we understand Exxon to be arguing otherwise on this appeal. Applying these principles, the Bellamy declaration clearly raises a triable issue of fact regarding whether Exxon may be liable in this case based on the affirmative acts of Exxon’s own employees (or rather, those of its predecessor in interest, Humble) that contributed to Biles’s asbestos exposure.
Nevertheless, Exxon argues to the contrary that under
Hooker, supra,
27 Cal.4th 198, Exxon cannot be held liable based on the actions of its employees in blowing asbestos dust towards Biles, because according to the Bellamy declaration, the dust itself was created by the actions of the subcontractor by whom Biles was employed. Exxon argues that this means the hazard that exposed Biles to harm was not created by its own exercise of control over the workplace. This argument construes the nature of the hazard too narrowly, as being the mere existence of the asbestos dust, rather than its presence in the air. The Bellamy declaration creates a triable issue of fact as to whether the presence of asbestos dust in the air in Biles’s vicinity was at least to some extent the result of the acts of Exxon’s own employees.
Exxon’s argument also construes
Hooker
to impose liability only for a hazard created in its entirety by the premises owner. Exxon cites no authority for the proposition that the potential for liability under
Hooker
is thus limited. On the contrary, as already noted,
Hooker
itself states that “a hirer is liable to an employee of a contractor insofar as a hirer’s exercise of retained control
affirmatively contributed
to the employee’s injuries.”
(Hooker, supra.
27 Cal.4th at p. 202, original italics.) Under comparative negligence principles, we see no impediment to imposing premises liability on a hirer whose employees’ own actions contribute to or exacerbate a hazard, even if the hazard was created at least in part by the plaintiff’s employer.
Finally, Exxon argues that Bellamy cannot establish he had personal knowledge as to who employed the people he saw blowing the asbestos
dust towards himself and Biles. Exxon seeks to cast doubt on the credibility of the Bellamy declaration by noting that whereas Bellamy contends he saw the name Exxon on the employees’ hard hats, in fact the company that owned the premises was called Humble Oil at the time, and the name Exxon was not yet in use. The trial judge declined to consider this argument, because the date of the name change from Humble to Exxon was not in evidence. In any event, these arguments go to the credibility and weight of the Bellamy declaration, and thus cannot prevent it from creating a triable issue of fact.
(Estate of Housley
(1997) 56 Cal.App.4th 342, 359-360 [65 Cal.Rptr.2d 628].)
IV.
Disposition
The judgment is reversed. Costs on appeal are awarded to appellant. Kline, R J., and Haerle, J., concurred.