Tverberg

*1442 Opinion

The trial court granted summary judgment to respondent Fillner Construction, Inc. (Fillner), and dismissed the personal injury action of appellants Jeffrey and Catherine Tverberg. 1 The Tverbergs appeal the judgment against them, contending that Fillner is liable for their injuries because of its (1) breach of a nondelegable regulatory duty and (2) negligent exercise of retained control. We conclude that a recent California Supreme Court opinion precludes liability on the first theory, but reverse the judgment on the Tverbergs’ negligent exercise of retained control cause of action.

I. FACTS

This case came to us after the trial court granted Fillner’s motion for summary judgment. Thus, we take the facts from the trial court record at the time that it ruled on that motion, and we review the decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained. We liberally construe the evidence in support of the Tverbergs—the parties opposing summary judgment—and resolve doubts concerning the evidence in their favor. (See Tverberg, supra, 49 Cal.4th at p. 522.)

In 2006, Fillner was the…