Oba v. ERC Trade CA2/3

Filed 10/26/26 Oba v. ERC Trade CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE CHRIS M. OBA, B343494 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 23TRCV00502) v. ERC TRADE, LP, Defendant and Respondent. APPEAL from an order of the Superior Court of Los Angeles County, Douglas W. Stern and Patricia A. Young, Judges. Affirmed. Panish | Shea | Ravipudi, Thomas A. Schultz, Andrew L. Schrader, Tyler R. Paboojian, and Bernadette M. Bolan for Plaintiff and Appellant.  Horvitz & Levy, Eric S. Boorstin, Jason Y. Siu; Hawkins Parnell & Young, Elaine Fresch and Mikhail Mdinaradze for Defendant and Respondent. ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗ Plaintiff Chris Oba (Oba) was catastrophically injured when a forklift he was operating fell and crushed him. At the time of the accident, Oba was employed by Apollo Freight, Inc. (Apollo Freight) and was working in a warehouse owned by HPL- Apollo, LLC (HPL-Apollo). Oba was loading pallets of garlic consigned to defendant/respondent ERC Trade, LP (ERC) onto a tractor-trailer owned by Martinez Transport, LLC (Martinez). Leonel Zavala (Zavala), a Martinez employee, was driving the tractor-trailer. Oba sued HPL-Apollo, ERC, Martinez, and Zavala, alleging that Zavala was negligent, and HPL-Apollo, ERC, and Martinez were directly or vicariously liable for Zavala’s negligence. Oba recovered worker’s compensation benefits from Apollo Freight and settled with all defendants except ERC. ERC then moved for summary judgment, urging it was not liable for Oba’s injuries because it was not Zavala’s employer or principal, did not own the tractor-trailer that caused Oba’s injuries, and was not liable for the negligence of its independent contractor’s employee. The trial court granted summary judgment for ERC. We affirm. As a matter of law, Martinez was ERC’s independent contractor, not its agent. ERC therefore was not liable for Oba’s injuries unless it negligently hired Martinez, negligently exercised control over Zavala’s work, owed Oba a nondelegable duty, or was vicariously liable for Zavala’s negligence under a theory of peculiar risk. Because there are no 2 triable issues of fact as to any of these theories of liability, the trial court properly granted summary judgment for ERC. FACTUAL AND PROCEDURAL BACKGROUND The Accident and Present Action ERC is a limited partnership that sells produce on consignment. It contracts with Latin American growers who supply produce and with American companies who buy it. ERC also contracts with trucking companies to transport produce from farms to storage facilities in the United States, and then to buyers. Martinez is a licensed motor carrier. In April 2022, Martinez owned 19 trucks and drove for ERC on a regular basis. ERC jobs accounted for about 75 percent of Martinez’s total business. ERC would contact Martinez’s dispatcher, who would dispatch the trucks to where they were needed. In April 2022, ERC acquired garlic on consignment. The garlic was stored at a refrigerated warehouse in Los Angeles operated by HPL-Apollo. Apollo Freight provided cargo-handling services at the warehouse. On April 22, 2022, ERC asked Martinez to pick up 40 pallets of garlic from HPL-Apollo’s warehouse and truck it to a warehouse in Arizona. Martinez dispatched Zavala, one of its drivers, to the warehouse. When Zavala arrived, he said he was picking up for ERC and was directed into a loading dock. He remained in his truck for about 40 minutes while Oba, an Apollo Freight employee, loaded pallets of garlic into the trailer using a forklift. Before Oba had finished loading, Zavala began to pull his tractor-trailer away from the loading dock, causing Oba’s 3 forklift to fall into the gap between the trailer and the dock. Oba was severely injured. At the time of the accident, Zavala had a Mexican Class B driver’s license and had driven trucks for 20 years. A Martinez principal testified that Martinez did not have written docking procedures, but it instructed each of its drivers, including Zavala, about safe docking procedures when it hired them. It was undisputed that Zavala was not provided docking procedures specific to HPL-Apollo’s warehouse. Oba filed the present action for negligence against ERC, Martinez, Zavala, and HPL-Apollo. As against ERC, Oba alleged that ERC breached its duty to “use reasonable care to own, lease, manage, maintain, inspect, control, select, drive, operate, manage, repair, entrust[,] and maintain their vehicles and their component parts in a safe, reasonable, proper and lawful manner,” and that Zavala “was an agent, servant, and/or employee of [Martinez] and [ERC], and was acting within the course, scope, purpose, and authority of such agency and employment with the full knowledge, permission, and consent of [Martinez] and [ERC].” Oba settled with all defendants except ERC for a total of $12 million. Oba also received approximately $1.23 million in workers’ compensation benefits. ERC’s Motion for Summary Judgment ERC moved for summary judgment in May 2024. ERC contended it was not liable for Oba’s injuries because it did not own or operate the tractor-trailer that injured Oba; it was not Zavala’s employer; neither Zavala nor Martinez were ERC’s agents or joint-venturers; the contracted work did not involve a peculiar risk; ERC was not a motor carrier and, thus, did not owe 4 Oba a nondelegable duty; and ERC was not negligent in hiring Martinez. In support of the motion, ERC introduced evidence that it is not in business as a motor carrier; does not have a motor carrier license from the Department of Transportation or any similar licensing authority; has never owned, leased, rented, or operated any tractors or trailers; and has never employed any drivers to operate tractor-trailers. ERC hired Martinez, a licensed motor carrier, to ship the garlic to a warehouse in Arizona in a tractor-trailer Martinez owned. ERC did not own or select the forklift that Oba was driving, did not tell Apollo- Freight or its employees how to load the garlic onto Zavala’s tractor-trailer, and did not direct Martinez or Zavala on how to transport the garlic. According to ERC, when it asked Martinez to pick up and deliver the garlic, it provided Martinez “with only two pieces of information: where to pick up the shipment and where to take it. ERC Trade did not direct how Martinez Transport transports the freight or have any control over the driver.” Further, ERC “never had any input in hiring, training, or supervising Zavala or other Martinez Transport employees.” Oba opposed the motion for summary judgment. He contended there were triable issues of material fact as to whether (1) ERC was a motor carrier, and thus had a nondelegable duty to operate its trucks safely; (2) Zavala was ERC’s agent; and (3) ERC breached its own duty to properly train and supervise Zavala. Oba urged that ERC was “acting as” a federally licensed motor carrier because it was identified as the shipper on the bill of lading, shipping documents, and import documents. Oba also asserted that Martinez drivers were directly under ERC’s control because ERC dispatched them to specific jobs, but failed to provide Zavala with the applicable docking procedures. 5  The trial court granted the motion, finding that Oba’s evidence, even if credited, did not establish a basis for liability. The court explained: “The evidence permits only the conclusion that ERC Trade, LP had no duty with regard to the events giving rise to Plaintiff’s claims. The vast material submitted by Plaintiff, even when properly credited under the standard this Court must apply, fails to establish a basis for imposing liability.” The trial court entered judgment on February 25, 2025. Oba timely appealed.1 DISCUSSION Oba contends the trial court abused its discretion by ruling on hundreds of evidentiary objections “en masse” and granting summary judgment even though ERC’s motion did not address all of Oba’s theories of liability. On the merits, Oba urges that there are triable issues of material fact as to whether (1) ERC failed to exercise due care in hiring Martinez, (2) ERC failed to adequately train and supervise Zavala, (3) Zavala was ERC’s agent, (4) ERC had a nondelegable duty as a motor carrier, and (5) the job for which Zavala was hired involved a peculiar risk. These claims lack merit. I. Standard of Review Summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subds. (c), (f)(1).) A defendant moving for summary judgment bears the 1 Oba filed his notice of appeal before the trial court entered judgment. We construe his premature notice of appeal as having been taken from the judgment. (See Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 288.) 6 initial burden of showing that one or more elements of the plaintiff’s cause of action cannot be established or there is a complete defense. (Id., subd. (p)(2).) If the defendant meets this burden, the plaintiff must demonstrate a triable issue of material fact. (Ibid.) We review the trial court’s summary judgment ruling de novo, independently examining the record to determine whether the moving and opposition papers show a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) In performing our review, we view the evidence in the light most favorable to the nonmoving party, Oba, liberally construing his evidence while strictly scrutinizing ERC’s. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768–769.) Nonetheless, Oba’s evidence “remains subject to careful scrutiny. [Citation.] We can find a triable issue of material fact ‘if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ (Aguilar[, at p. 850].)” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) II. Preliminary Issues A. The trial court did not abuse its discretion by sustaining ERC’s objections to Oba’s evidence ERC filed 85 objections to Oba’s evidence, which the trial court sustained. Oba asserts the trial court abused its discretion by sustaining the objections “en masse” and failing to give reasons for sustaining each objection. Oba is correct that a trial court abuses its discretion by issuing a blanket ruling on evidentiary objections. (Serri v. 7 Santa Clara University (2014) 226 Cal.App.4th 830, 857.) We find no such abuse of discretion here because although the trial court’s tentative ruling addressed Oba’s objections in a single sentence, the court subsequently issued a 134-page written order ruling separately on each objection. In any event, “ ‘an erroneous evidentiary ruling requires reversal only if “there is a reasonable probability that a result more favorable to the appealing party would have been reached in the absence of the error. [Citation.]” ’ [Citation.]” (Ibid.; see also Evid. Code, § 354 [“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice”].) Oba makes no showing that any of the trial court’s evidentiary rulings, even if erroneous, were material—i.e., that any of the excluded evidence created triable issues of material fact. Accordingly, any evidentiary error is not a basis for reversal. B. ERC’s motion for summary judgment did not fail to address all of Oba’s theories of liability Oba contends the trial court erred in shifting the burden of production to him to demonstrate triable issues of material fact because ERC’s summary judgment motion did not address all of his theories of liability. Specifically, Oba urges that the complaint asserted both direct and vicarious liability, but ERC’s motion “failed to fully address its liability under a direct theory of negligence, including failure to train or supervise.” The claim lacks merit. Pleadings “set the boundaries of the issues to be resolved at summary judgment.” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 648.) 8 Thus, a defendant moving for summary judgment need only “ ‘ “negate plaintiff’s theories of liability as alleged in the complaint; . . . [it] need not refute liability on some theoretical possibility not included in the pleadings.” ’ ” (De Meo v. Cooley LLP (2025) 115 Cal.App.5th 17, 43.) Here, the complaint did not allege that ERC failed to properly train or supervise Zavala. Instead, it asserted a single cause of action against ERC for negligence, alleging that ERC failed “to use reasonable care to own, lease, manage, maintain, inspect, control, select, drive, operate, manage, repair, entrust and maintain their vehicles and their component parts in a safe, reasonable, proper and lawful manner.” It further alleged that Zavala “was an agent, servant, and/or employee of . . . [ERC],” Zavala “was acting within the course, scope, purpose, and authority of such agency and employment with the full knowledge, permission, and consent of . . . [ERC],” and ERC was “directly and/or vicariously, and/or for other reasons set forth herein, liable for the actions, omissions and negligence of Zavala.” ERC’s motion for summary judgment addressed each theory of liability reasonably apparent from the complaint’s allegations, introducing evidence that ERC “did not own, lease, rent, operate, or maintain the truck”; Zavala was not ERC’s employee, servant, agent, or joint venturer; and ERC was not liable for the negligence of its independent contractor’s employee under theories of peculiar risk or nondelegable duty. No more was required to shift the burden of proof to plaintiff to demonstrate a triable issue of material fact. (De Meo v. Cooley LLP, supra, 115 Cal.App.5th at p. 43.) 9 III. There Are No Triable Issues of Material Fact as to ERC’s Liability for Oba’s Injuries “ ‘It is a fundamental principle of tort law that defendants are liable for injuries caused by their failure to exercise reasonable care.’ (Myers v. Quesenberry (1983) 144 Cal.App.3d 888, 891.) However, ‘ “[t]here must be a legal duty to exercise care under the circumstances, owed to the person injured, and a breach of that duty must be the proximate cause of the resulting injury. [Citations.] Thus, the determination that a duty of care exists is an essential precondition to liability founded on negligence.” ’ [Citations.]” (Ruckman v. Ag-Wise Enterprises, Inc. (2025) 117 Cal.App.5th 571, 586–587 (Ruckman).) As a general rule, a hirer is not liable for the negligent acts of its independent contractors. (Ruckman, supra, 117 Cal.App.5th at p. 587; Secci v. United Independent Taxi Drivers, Inc. (2017) 8 Cal.App.5th 846, 859–860; Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425, 430.) This is so because “ ‘independent contractors by definition ordinarily control the manner of their own work; and . . . hirers typically hire independent contractors precisely for their greater ability to perform the contracted work safely and successfully.’ [Citation.]” (Ruckman, at p. 587.) There are many exceptions to this general rule, however. (Ibid.; Secci, at pp. 859–860; Millsap, at p. 430.) Oba relies on many of these exceptions, suggesting there are triable issues of material fact regarding their application. None applies here. 10  A. Negligent hiring Oba asserts there are triable issues as to ERC’s direct liability for failing to exercise due care in hiring Martinez. We disagree. Section 411 of the Restatement Second of Torts provides that an employer “is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor.” This doctrine is not well-developed in California, but courts of other states have held that to prove liability, a plaintiff must demonstrate that the hirer had actual or constructive knowledge of the contractor’s alleged incompetence and the plaintiff’s injury resulted from this incompetence. (See, e.g., Puckrein v. ATI Transport, Inc. (N.J. 2006) 897 A.2d 1034, 1042 [“to prevail against the principal for hiring an incompetent contractor, a plaintiff must show that the contractor was, in fact, incompetent or unskilled to perform the job for which he/she was hired, [and] that the harm that resulted arose out of that incompetence”], italics added; Davies v. Commercial Metals Co. (Fla.Dist.Ct.App. 2010) 46 So.3d 71, 74 [summary judgment properly granted for defendant alleged to have negligently hired trucking company; complaint alleged trucking company violated federal “hours of service” regulations, but the uncontroverted evidence was that driver did not drive more hours than permitted by law the day before the accident]; Jones v. Beker (Ill.Dist.Ct.App. 1994) 632 N.E.2d 273, 278 [summary judgment properly granted for defendant on negligent hiring claim; although plaintiff demonstrated that the repossessor hired by defendant was unlicensed, plaintiff “failed to establish any facts to show that not being licensed to repossess was proximately related to [repossessor’s] negligent acts”].) 11  In the present case, Oba introduced evidence that Zavala’s commercial driver’s license was issued in Mexico, not California, and Martinez did not maintain a written Injury and Illness Prevention Program as OSHA required. Oba contends that these facts required the trial court to deny the motion for summary judgment because they would have permitted a jury to find that ERC acted below the standard of care in hiring Martinez. But the United States Department of Transportation has determined that “the testing and licensing standards in Mexico for the Licencia Federal de Conductor meet the standards contained in 49 CFR part 383,” so “all United States licensing jurisdictions are required by statute and regulation to grant reciprocity to the Mexican licenses.” (Commercial Driver’s License Reciprocity With Mexico (57 Fed. Reg. 31454 (Jul. 16, 1992)).) That Zavala was trained in Mexico and his driver’s license was issued there, not California, therefore is not evidence of negligent hiring. In any event, Oba cites no authority for the proposition that a hirer has a duty to vet its independent contractor’s employees, and we are not aware of any. (Contra, Estate of Fields v. Shaw (Iowa Ct.App. 2020) 954 N.W.2d 451, 458 [hirer of motor carrier not required to obtain driving record of each employee].) Separately, Oba presented no evidence that Martinez’s failure to maintain a written Injury and Illness Prevention Program contributed to Oba’s injuries. The trial court thus properly granted summary adjudication of Oba’s negligent hiring claim. B. Negligent exercise of retained control Oba next contends there were triable issues as to whether ERC negligently trained or supervised Zavala. Specifically, Oba urges there was evidence that ERC “undertook the role of dispatching trucks to pick up and drop off produce,” but 12 negligently failed to provide Zavala with the facility’s specific docking procedures. Oba suggests: “By not providing the necessary information to Zavala when it dispatched him to the facility, ERC Trade breached the standard duty of care.” Oba’s assertion implicates the “retained control” exception to the general principle of hirer nonliability for an independent contractor’s negligence. The Court of Appeal recently explained that a hirer may be liable to a bystander if it “retain[s] control over the independent contractor’s work” and fails to exercise that control with reasonable care. (Ruckman, supra, 117 Cal.App.5th at p. 593.) This is consistent with section 414 of the Restatement Second of Torts, which says: “One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” (Italics added.) Our Supreme Court has explained that a hirer “ ‘retains control’ ” when it “retains a sufficient degree of authority over the manner of performance of the work entrusted to the contractor”— that is, “if the hirer’s exercise of that authority would sufficiently limit the contractor’s freedom to perform the contracted work in the contractor’s own manner.” (Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 274, 275, italics added; see also Grahn v. Tosco Corp. (1997) 58 Cal.App.4th 1373, 1395 [“the ‘control’ necessary to give rise to a duty of care . . . [is] not simply general control over the premises,” but control “over the methods of the work or the manner in which the contractor’s employees perform the operative details of their tasks”], italics added, disapproved on other grounds in Hooker v. Department of 13 Transportation (2002) 27 Cal.4th 198, 214 and Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1245.) However, a hirer “ ‘may retain a broad general power of supervision and control as to the results of the work so as to insure satisfactory performance of the independent contract—including the right to inspect [citation], the right to stop the work [citation], the right to make suggestions or recommendations as to details of the work [citation], [and] the right to prescribe alterations or deviations in the work [citation]’ ” without incurring liability for retained control. (Sandoval, at p. 275, quoting McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, 790.) Stated otherwise, the retained control exception applies only if the employer “ ‘[has] retained at least some degree of control over the manner in which the work is done. It is not enough that [it] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.’ [Citation.]” (Ruckman, supra, 117 Cal.App.5th at p. 589, italics added.) Oba contends that ERC’s control over the manner in which Zavala carried out his work was sufficient to give rise to liability because ERC “undertook the role of dispatching trucks to pick up and drop off produce.” But the undisputed evidence was that it was ERC’s practice to communicate with Martinez’s dispatcher, who dispatched Martinez’s trucks and drivers to pickup/delivery 14 points. It also is undisputed that, in this case, ERC contacted Martinez’s dispatcher, Daniel Toro, and asked Martinez to have a truck pick up the garlic from HPL-Apollo’s warehouse in Los Angeles and truck it to Arizona. Toro, not ERC, then contacted Zavala, who was finishing a delivery in Salinas, California, and asked him to drive to Los Angeles. There is no evidence that ERC requested a particular driver, specified how the produce was to be loaded or transported, or requested that the driver take a particular route. In short, ERC directed what Martinez was to do, not how Martinez was to do it. As a matter of law, that is insufficient to support a claim for negligent exercise of retained control. C. Agency Next, Oba contends there are triable issues as to whether Zavala was ERC’s agent. We disagree. “ ‘ “Agency and independent contractorship are not necessarily mutually exclusive legal categories . . . . In other words, an agent may also be an independent contractor.” ’ (Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, 1184.) However, the party asserting that an independent contractor is also an agent bears the burden of proving the existence of an agency relationship.” (Olson v. La Jolla Neurological Associates (2022) 85 Cal.App.5th 723, 738, italics omitted; Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262 [same].) “ ‘Whether a person is an employee or an independent contractor is ordinarily a question of fact[,] but if from all the facts only one inference may be drawn it is a question of law.’ (Brose v. Union-Tribune Publishing Co. (1986) 183 Cal.App.3d 1079, 1081.)” (Millsap v. Federal Express Corp., supra, 227 Cal.App.3d at p. 431.) 15  “The most important factor in distinguishing an agent from an independent contractor is whether the principal has a right to control the manner and means by which the work is to be performed. (Wilson v. County of San Diego (2001) 91 Cal.App.4th 974, 983.) ‘The right to control the result is inherent in both independent contractor relationships and principal-agency relationships; it is the right to control the means and manner in which the result is achieved that is significant in determining whether a principal-agency relationship exists.’ (Wickham v. Southland Corp. (1985) 168 Cal.App.3d 49, 59[, second italics added].) If control may be exercised only as to the result of the work, and not the means by which it is accomplished, the relationship is an independent contractor relationship rather than an agency.” (Olson v. La Jolla Neurological Associates, supra, 85 Cal.App.5th at pp. 737–738; see also Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531 [“ ‘ “[t]he principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired” ’ ”].) Courts may also consider “a range of secondary indicia,” including “ ‘(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular 16 business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee.’ [Citations.]” (Ayala, at p. 532.) None of Oba’s evidence supports a finding that Zavala was acting as ERC’s agent. First, Oba contends that Martinez’s tractor-trailers were not complex machines and did not require “ ‘particular skill’ or artisanal mastery.” In fact, driving a tractor-trailer in California requires a commercial driver’s license, which in turn requires a 10-year history check, a medical examination, and passing a knowledge and behind-the-wheel test. (Dept. of Motor Vehicles, Commercial Driver’s Licenses <https://www.dmv.ca.gov/portal/driver-licenses-identification- cards/commercial-driver-licenses-cdl/> [as of Oct. 26, 2026], archived at <https://perma.cc/VU5H-NP2N>.) Further, to operate a commercial motor vehicle on a public highway, an operator must obtain both a United States Department of Transportation number and a state carrier identification number, and hold a valid motor carrier permit. (Veh. Code, §§ 34601, 34620, 34507.5.) In short, commercial trucking is a highly regulated industry that requires both special training and licensing. Second, Oba contends that Martinez drivers performed work for ERC every day, and ERC’s business accounted for 75 to 80 percent of Martinez’s business and revenue. But Martinez also worked for other clients—it was not ERC’s captive agent. Martinez also specified the terms under which it would do business with ERC—and, significantly, it ended its relationship with ERC when ERC overextended its line of credit with Martinez. In short, the evidence is undisputed that Martinez 17 controlled the terms of its relationship with ERC in significant ways. Third, Oba contends that ERC “had direct control over individual drivers” by “dispatch[ing] drivers directly to specific jobs.” The record does not bear out Oba’s suggestion that ERC chose the drivers who would pick up particular loads and contacted those drivers directly. Instead, the evidence was that ERC contacted Martinez’s dispatcher, who in turn selected the drivers and dispatched them to ERC’s job sites. Finally, Oba contends that the shipping paperwork listed ERC, not Martinez, and the Martinez drivers identified themselves as working with ERC when they picked up or dropped off a load. As ERC notes, this fact is irrelevant. Plainly, the drivers had to identify the shipper for whom they were working when they arrived to pick up a load; otherwise, the warehouse would not know what product to load. But the fact that they did so says nothing about the degree of control ERC exercised over the transaction. In short, the undisputed evidence established that Martinez’s drivers were independent contractors, not ERC employees. The trial court did not err in so concluding. D. Nondelegable duties The Federal Motor Carrier Act (49 U.S.C. § 13101 et seq.) provides that an entity may provide transportation as a “ ‘motor carrier’ ”—i.e., “a person providing motor vehicle transportation for compensation” (49 U.S.C. § 13102(14))—only if the entity is “registered under this chapter . . . to provide such transportation or service.” (49 U.S.C. § 13901(a); see also Veh. Code, § 34620, subd. (a) [motor carrier shall not operate a commercial vehicle on any public highway unless it has registered its carrier 18 identification number with the department and holds a valid motor carrier permit].) To register as a motor carrier, the entity must comply with a variety of requirements, including conducting road tests of drivers, inspecting and repairing motor vehicles subject to its control, permitting drivers to drive no more than 14 consecutive hours, and obtaining insurance in an amount prescribed by the Secretary of Transportation, which “ ‘must be sufficient to pay . . . for each final judgment against the registrant for bodily injury to, or death of, an individual resulting from the negligent operation, maintenance, or use of motor vehicles, or for loss or damage to property.’ ” (Vargas v. FMI, Inc. (2015) 233 Cal.App.4th 638, 657; see id. at pp. 655–658.) Under what is referred to as the “nondelegable duties doctrine,” an individual or business carrying out an activity “ ‘which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others’ ” may be held liable for harms to third parties caused by the individual’s or business’s contractors. (Vargas v. FMI, Inc., supra, 233 Cal.App.4th at p. 649, italics added; Eli v. Murphy (1952) 39 Cal.2d 598, 599–601.) Our Supreme Court has held that the nondelegable duties doctrine applies to federally licensed motor carriers because otherwise, “members of the public who are injured would be deprived of the financial responsibility of those who had been granted the privilege of conducting their business over the public highways. Accordingly, both to protect the public from financially irresponsible contractors, and to strengthen safety regulations, it is necessary to treat the carrier’s duties as nondelegable.” (Eli, at p. 600; see also Vargas, at pp. 649–650.) 19  In Hu v. XPO Logistics, LLC (2026) 117 Cal.App.5th 1197, the Court of Appeal held that as a matter of law, a broker was not liable under the nondelegable duty doctrine for the negligence of a carrier the broker hired to transport cargo across state lines. The court explained that the nondelegable duty doctrine applies only to “licensed carriers”—that is, to hirers “actually licensed by [a] public authority to engage in that activity.” (Id. at p. 1209, italics added.) Thus, because the broker was not a licensed motor carrier, the nondelegable duty did not apply. (Id. at pp. 1209– 1211.) Alternatively, the court found that even if a nondelegable duty could arise without a motor carrier license if the hirer was “acting like a carrier,” a duty to ensure workplace safety “would apply to such a de facto unlicensed carrier only if it meets the definition of a ‘carrier’—that is, if it is ‘providing motor vehicle transportation for compensation’ in a way that makes it responsible for the ‘considerable risk’ attendant to that undertaking.” (Id. at p. 1210.) The court concluded that as a matter of undisputed fact, the broker was not acting as a carrier because it did not supply the trucks, perform the transport, train or monitor the drivers, or maintain the requisite insurance. (Id. at pp. 1210–1211.) The present case is analogous to Hu. As in Hu, ERC is not a federally licensed motor carrier, thus it was not transporting goods pursuant to a franchise granted by public authority. There also is no evidence that ERC assumed any of the duties the law requires of a licensed motor carrier, such as inspecting the trucks, monitoring the drivers, or maintaining the requisite insurance. There also is no evidence that ERC “provid[ed] motor vehicle transportation for compensation.” (49 U.S.C. § 13102(14), italics added.) To the contrary, the undisputed evidence is that if 20 ERC arranged transportation, it passed the shipping costs on to the grower without marking them up. Oba contends that a jury could “consider” ERC a motor carrier because its website says it is “ ‘ready to deliver directly to our customers’ receiving locations.’ ” We are not aware of any authority—and Oba cites none—for the proposition that a seller’s offer to ship goods to a buyer transforms the seller into a motor carrier.2 Oba also contends that a jury could conclude ERC is a motor carrier because the bill of lading identified it as the “shipper.” But a “shipper” is “a person who tenders property to a motor carrier or driver of a commercial motor vehicle for transportation in interstate commerce.” (49 C.F.R. § 390.5T (2026), italics added.) In contrast, a “[f]or-hire motor carrier” is “a person engaged in the transportation of goods or passengers for compensation.” (Ibid.) The identification on the bill of lading of ERC as the “shipper,” therefore, is not evidence that it is a motor carrier. 2 Serna v. Pettey Leach Trucking, Inc. (2003) 110 Cal.App.4th 1475, on which Oba relies, does not support this proposition. In Serna, the defendant, Pettey Leach Trucking, Inc., was a licensed motor carrier; the question before the court was whether the nondelegable duty doctrine applied even though the agricultural cargo being transported was exempt from certain economic regulations. (Id. at pp. 1477, 1488, fn. 11.) Serna held that a “carrier, having undertaken an activity which can be lawfully carried on only under a public franchise or authority and which involves possible danger to the public, is liable to the plaintiffs for harm caused by the negligence of the carrier’s independent contractor—notwithstanding that the carrier’s cargo was exempt from certain economic regulations.” (Id. at p. 1477.) Serna does not suggest that a shipper which is not itself a motor carrier is subject to the nondelegable duty doctrine. 21  E. Peculiar risk Oba contends that the work for which Martinez was hired involved a “special” or “peculiar” risk of harm, thus ERC was vicariously liable for his injuries. We disagree. “At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor’s negligence in performing the work for which he or she was hired. Over time, the courts created exceptions to this general rule of nonliability. One such exception pertains to contracted work that poses an inherent risk of injury to others, which is commonly referred to as the doctrine of ‘peculiar’ or ‘special’ risk. (Privette v. Superior Court (1993) 5 Cal.4th 689, 693.)” (Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 305 (Bowman).) The peculiar risk doctrine is discussed in sections 413 and 416 of the Restatement Second of Torts. As relevant here, section 413 provides: “One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer [¶] (a) fails to provide in the contract that the contractor shall take such precautions, or [¶] (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.”3 3 Section 416 of the Restatement Second of Torts is a companion to section 413. It addresses peculiar risks where the employer has provided for special precautions “in the contract or otherwise.” 22  A comment to section 413 of the Restatement Second of Torts explains: “It is obvious that an employer of an independent contractor may always anticipate that if the contractor is in any way negligent toward third persons, some harm to such persons may result. Thus one who hires a trucker to transport his goods must, as a reasonable man, always realize that if the truck is driven at an excessive speed, or with defective brakes, some collision or other harm to persons on the highway is likely to occur. This Section has no reference to such a general anticipation of the possibility that the contractor may in some way be negligent. It is not concerned with the taking of routine precautions, of a kind which any careful contractor could reasonably be expected to take, against all of the ordinary and customary dangers which may ari