Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. CGC-07-466898
Lambden, J.
Appellant Luis Gonzalez was employed by an unlicensed and uninsured painting contractor who contracted with respondents to paint a three-story building in San Francisco. Respondents are the homeowners association and the two individual owners of the three-unit building. Appellant fell two stories and was seriously injured when equipment provided by the unlicensed contractor failed. The trial court granted summary judgment in appellant’s negligence action on the grounds that his sole remedy was through a workers’ compensation claim and that there was no evidence of negligence on the part of the respondents. The trial court did not consider appellant’s principal argument that he was respondents’ employee as a matter of law within the meaning of Labor Code section 2750.5. Accordingly, the reasons given by the trial court for granting summary judgment are incomplete and fail to address the crucial underlying question of whether respondents may be held jointly and severally liable as employers for the injuries appellant suffered while working on their building.
All further statutory references are to the Labor Code unless otherwise indicated.
BACKGROUND
Respondents Andrea DeBerry and Alice Farrelly are the owners of a three-story condominium building located on Sacramento Street in San Francisco. They set up the “3515-17-19 Sacramento Street Homeowners Association” (HOA) and serve as its officers. The HOA manages the property and contracted with Bruce Parsley to paint the exterior of the building. The Covenants, Conditions, and Restrictions (CCRs) of the HOA mandated that the HOA “shall acquire and maintain... [w]orker’s compensation insurance to the extent necessary to comply with any applicable law.” However, when the HOA negotiated the painting contract with Parsley, he lied and said that he maintained both general liability insurance and workers’ compensation insurance. He also provided fake documentation of non-existent insurance. Respondents state that they relied on these false representations and “assumed” that since Parsley was insured he must also be licensed.
Appellant was a member of Parsley’s painting crew in September 2005 when he was injured. He was suspended in a bosun’s chair, and working near the top of the building’s interior light well, when the chair’s rigging snapped and dropped him approximately 20 feet to the bottom of the shaft. Appellant suffered serious injuries, including damage to both shoulders and numerous fractured bones. Parsley was cited under the California Occupational Safety and Health Act (Cal-OSHA) (§ 6300 et seq.) for three workplace safety violations, including a citation for the “worn” rigging line that broke and caused appellant’s fall.
Thus described in the record, a bosun or bo’sun’s chair is traditionally called a “boatswain’s” chair and is defined by the Oxford English Dictionary as follows: “boatswain’s chair n. a board on which a sailor (or other workman) sits when at work aloft. [1894 R. L. Stevenson & L. Osbourne Ebb-tide I. v. 77 “He had a bo’sun’s chair rigged over the rail... and went overboard with a pot of paint.”] (Oxford English Dict. Online (2011) [as of Jul. 25, 2011].)
The first violation involved boatswains’ chairs: “Employer failed to train its employee in the use of boatswains’ chair, such as use of roof tie-backs, fall protection, anchorages, lanyard and vertical safety lines, as well as ropes.” The second violation cited suspended scaffolds: “Employer failed to inspect the rope supporting a boatswain’s chair. The rope had visible wear and other defects.” The third violation, also for boatswain’s chairs, explained that “[a]t the time of [the] accident at 3519 Sacramento Street in San Francisco, employer failed to provide a safety belt with attached lanyard secured to a separate independent drop line for its employee using a boatswain’s chair. As a result, when the damaged chair line failed, the employee fell approximately 20-22 feet and suffered serious injuries.”
Appellant applied to the Workers’ Compensation Appeals Board (WCAB) and also filed this action. Since Parsley had no insurance, the Uninsured Employers Benefits Trust Fund (UEBTF) joined the other respondents as a party pursuant to the provisions of sections 3715 and 3716. In 2008, the UEBTF settled appellant’s claim against the Fund for $25,000. Respondent DeBerry’s Homeowners policy insurer and the HOA each contributed $4,444 under the terms of the settlement agreement executed by the parties, which also recited that it did not “resolve the appellant’s superior court case for negligence filed in connection with the subject accident” and that respondents were not “willfully uninsured.”
The Legislature created the UEBTF “to ensure that workers who happen to be employed by illegally uninsured employers are not deprived of workers’ compensation benefits....” (Lab. Code, § 3716, subd. (b).)
Respondents moved for summary judgment. They argued that the settlement payment from the UEBTF was appellant’s exclusive remedy and that there was no evidence they had been negligent. The essential facts were undisputed and appellant’s counterargument was made as a matter of law: that section 2750.5 creates a rebuttable presumption, affecting the burden of proof, that appellant was an employee of the respondents and, therefore, that respondents are deemed as a matter of law to be dual employers and subject to joint and several liability. Appellant argued that violations of Cal-OSHA regulations by the unlicensed contractor can be imputed to the other employer respondents to support his claim of negligence per se.
The trial court stated that it granted respondents’ motion for summary judgment for two reasons: “(1) plaintiff’s exclusive remedy against the defendants was the workers’ compensation remedy that the plaintiff pursued,” and “(2) if plaintiff were allowed to pursue this action in court... his prior settlement would limit him to his claim that the [defendant was] negligent by reason of their own action or inaction, and yet the undisputed evidence shows that no act or omission on the part of either defendant was a substantial factor in causing harm to the plaintiff.” The trial court sustained respondents’ objections to admission of the Cal-OSHA citations describing Parsley’s violations of safety regulations which led to the accident.
The trial court made no ruling regarding the application of Cal-OSHA safety regulations to the painting project, which was also one of the issues in Cortez v. Abich (2011) 51 Cal.4th 285 (Cortez), filed by the Supreme Court during the pendency of this appeal. We ordered supplemental briefing regarding the Supreme Court’s Cortez opinion, which itself provides an appropriate introduction to our discussion: “Whether unlicensed contractors or their workers may or must be deemed the homeowners’ employees under section 2750.5, either for purposes of tort liability generally or with regard to Cal-OSHA specifically, are difficult and unsettled questions in this court.” (Id. at p. 291.)
DISCUSSION
Standard of Review
A motion for summary judgment “shall be granted if all of the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment may not be granted... based on inferences... contradicted by other inferences or evidence, which raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).)
“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar).) Although the burden of production shifts, the moving party always bears the burden of persuasion. (Id. at p. 850.) “There is 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.” (Ibid., fn. omitted.)
“An order granting summary judgment, of course, is reviewed independently.” (Aguilar, supra, 25 Cal.4th at p. 860.) “In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing his evidentiary submission while strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.)
Appellant’s Employment Status
“Among the legal consequences of hiring an unlicensed contractor who is injured or whose employee is injured performing the work is that different employment relationships may arise with respect to ‘employer’ liability for workers’ compensation or tort damages.” (Heiman v. Workers’ Comp. Appeals Bd. (2007) 149 Cal.App.4th 724, 734 (Heiman).) In the seminal opinion State Compensation Ins. Fund v. Workers’Comp. Appeals Bd. (1985) 40 Cal.3d 5 (State Fund), the Supreme Court concluded that a homeowner who hired an unlicensed contractor, who was injured when he fell from a scaffold, was required to assume the status of “employer” for workers’ compensation liability because section 2750.5 requires an independent contractor to be licensed as a matter of law.
Section 2750.5 provides: “There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor. Proof of independent contractor status includes satisfactory proof of these factors:
The penultimate paragraph of section 2750.5 provides, “[A]ny person performing any function or activity for which a [contractor’s] license is required... shall hold a valid contractor’s license as a condition of having independent contractor status.” (Fernandez v. Lawson (2003) 31 Cal.4th 31, 40 (conc. opn. of Brown, J.).) It is well established that the language of the statute “creates a rebuttable presumption affecting the burden of proof that a worker performing services for which a contractor’s license is required, or who is performing such services for a person who is required to obtain such a license, is an employee rather than an independent contractor.” (Ibid.)
The question before us has two aspects: (1) did appellant’s employment status permit him to pursue negligence claims against respondents; and (2) was the employment excluded from Cal-OSHA coverage by section 6303, subdivision (b)? If the answer to the former question is positive and the answer to the latter is negative, appellant can argue that his dual employment as a matter of law left respondents jointly liable for the unlicensed contractor’s negligence. The analysis of appellant’s employment status within the policy framework of the workers’ compensation law is crucial to a correct decision.
The issue thus presented is not easily decided because the legal characterization of the employment required by a section 2750.5 injury will often result in negligence claims broadened by the doctrines of respondeat superior and negligence per se. Nevertheless the policy foundations supporting California’s workers’ compensation law remain robust. Our Supreme Court has repeatedly said that “whether an unlicensed contractor’s worker must be deemed a homeowner-hirer’s employee under section 2750.5 for purposes of tort liability is neither an easy nor a settled one.” (Ramirezv. Nelson (2008) 44 Cal.4th 908, 916 (Ramirez), citing State Fund, supra, 40 Cal.3d at p. 15; accord, Cortez, supra, 51 Cal.4th 285.) The opinions in Ramirez, and most recently in Cortez, are instructive precisely because they did not undermine the basis of appellant’s argument here: because Parsley was unlicensed, section 2750.5 operated to make both appellant and Parsley employees of the owners and HOA as a matter of law. Nothing in the Supreme Court opinions relied upon by respondents has eliminated the need to decide that threshold legal issue.
First, in Ramirez and most recently in Cortez, the Supreme Court expressly declined to address the question. As the court stated, “we have no occasion to reach or address the plaintiffs’ further claim that the decedent was the homeowners’ employee at law under... section 2750.5, as interpreted in [State Fund].” (Ramirez, supra, 44 Cal.4th at p. 913.) The determination of employment status remains an open question in such cases and could not be ignored by the trial court in this case.
Second, the Ramirez court did not need to decide the question because it ruled against the worker based on a theory not present in the case before us. Like a remarkable number of cases in this area, Ramirez involved tree trimming, during which an employee of the unlicensed contractor hired by the homeowners was electrocuted when his pole saw came in contact with an overhead high voltage line. (Ramirez, supra, 44 Cal.4th at p. 911.) Plaintiffs were the heirs of the deceased worker, and they alleged that the homeowners failed to keep their property in a safe condition and failed to warn of the hazardous condition created by the high voltage lines adjacent to their trees. (Ibid.) The Court of Appeal reversed the jury verdict in favor of the homeowners, concluding that because the worker was the homeowner’s employee under section 2750.5, the owners owed a duty of care to the worker under Penal Code section 385, subdivision (b), which made it a misdemeanor for any person to personally or through an employee move any tool within six feet of an overhead high voltage line. (Ramirez, at p. 912.) The Court of Appeal decided that the trial court’s refusal to give a jury instruction based on that statute was not harmless error. (Id. at p. 916.)
In reversing the Court of Appeal, the Supreme Court concluded that Penal Code section 385 could not support a negligence per se theory of liability. The homeowners “neither had nor breached any statutory duty of care owed to the deceased worker under section 385[, subdivision] (b) in the first instance. Since section 385[, subdivision] (b) will not support a negligence per se theory of liability on these facts within the meaning of Evidence Code section 669 [the failure of a person to exercise due care is presumed if he violated a statute, ordinance, or regulation of a public entity],” and, therefore, “the question whether the decedent was the homeowners’ employee at law under Labor Code section 2750.5, relevant only to bring section 385[, subdivision] (b) into play in the case, is moot.” (Ramirez, supra, 44 Cal.4th at p. 917.) The dispositive factor in Ramirez was that Penal Code section 385, subdivision (b) “[does] not give rise to any special standard of conduct or duty of care owed by [decedent’s employers] to landscaping contractor Rodriguez or his workers to ensure that their tree trimming work would not result in death or injury to either the contractor or his workers.” (Ramirez, at p. 919.)
Ramirez addressed provisions of law fundamentally different from those in our case. The negligence per se theory here is not based upon an inapplicable provision of the Penal Code, but is instead based on the Cal-OSHA definition of “employer” set forth in section 6304.5 and upon undisputed violation of Cal-OSHA regulations (set forth in 8 Cal. Code Regs. §§ 1662, subds. (a) & (c), 1658, subd. (e).) Unlike Penal Code section 385, subdivision (b), the Cal-OSHA regulations at issue in this case give rise to a special standard of conduct or duty of care owed by employers to painter employees to ensure that their work will not result in injury or death. As stated in Elsner v. Uveges (2004) 34 Cal.4th 915, “Cal-OSHA provisions are to be treated like any other statute or regulation and may be admitted to establish a standard or duty of care in all negligence and wrongful death actions, including third party actions.” (Id. at p. 928.) It is equally clear that appellant Gonzalez is a member of the class for whose protection the Cal-OSHA regulations at issue were adopted.
The first regulation provides that “[p]ersons shall be trained and/or experienced in the use of boatswains’ chairs before being permitted to use such equipment.” (Cal. Code. Regs., tit. 8, § 1662, subd. (a).) The second regulation states that “[a]n employee using a boatswains’ chair shall wear a safety belt with attached lanyard secured to a separate drop line or other means affording equivalent safety.” (Cal. Code. Regs., tit. 8, § 1662, subd. (c).) The third regulation covers supporting ropes and requires “[r]opes supporting scaffolds shall have a factor of safety of at least 6. They shall be inspected on each job before being used to determine if they are unsafe because of damage, wear, chemical action or similar defects. The use of repaired wire rope as suspension rope is prohibited.” (Cal. Code. Regs., tit. 8, § 1658, subd. (e).)
Respondents’ citation of Zellers v. Playa Pacifica, Ltd. (1998) 61 Cal.App.4th 129 (Zellers) also does not support the trial court’s disregard of the issue of appellant’s employment status. Zellers is factually distinguishable in large part, and to the extent Zellers is relevant here, it supports appellant’s argument. In Zellers, the property owner, Playa Pacific, hired a licensed contractor named Neuschwanger to repair a stairway. (Id. at p. 131.) Several months later the contractor hired Zellers to help with the work. A month later Neuschwanger’s license expired. Three weeks later Zellers was injured while working on the owner’s property. (Ibid.) When the owner’s workers’ compensation insurance carrier determined that the unlicensed contractor, Neuschwanger, was also unlawfully uninsured, the owner’s carrier paid Zellers’s workers’ compensation claim. (Ibid.) “Zellers then switched hats, decided he was an independent contractor and not the owner’s employee, and sued the owner for tort damages.” (Ibid.) The trial court granted the owner’s motion for summary judgment, finding that Zeller’s exclusive remedy was the Workers’ Compensation Act. (Zeller, at p. 131.)
The Court of Appeal affirmed based on these undisputed facts: the contractor was hired by the defendant owner, the plaintiff was hired by the contractor, the work in question was work for which a contractor’s license was required, and the contractor was unlicensed at the time the plaintiff was injured. (Zellers, supra, 61 Cal.App.4th at p. 132.) The court held that the law required the plaintiff to be treated as the employee of the defendant owner, the ultimate hirer, but nevertheless affirmed the summary judgment against the plaintiff because: (1) he was fully compensated by the owner’s workers’ compensation insurance carrier, and (2) he was suing the owner as an independent contractor, not as an employee. (Id. at pp. 132-134.) Neither factor is present in our case. Here, appellant has notbeen compensated by respondents’ workers’ compensation carrier, because they had no such carrier; and he is suing them as an employee, without claiming to be an independent contractor.
Also, the central question in Zellers was whether the plaintiff worker’s status should be determined as of the date the contractor, Neuschwanger, contracted with owner (at which time Neuschwanger was licensed) or the date of the worker’s injury. (Zellers, supra, 61 Cal.App.4th at pp. 134-135.) The only reason the court concluded Zellers was an employee of the owner, not the contractor, and “that Zellers’s action against [the owner was] barred by the exclusivity provisions of the Workers’ Compensation Act” (Zellers, at pp. 134-135), was simply because of its holding “that the date of injury is the dispositive date.” (Ibid.) That issue does not exist in our case because the contractor in this case was unlicensed at all material times.
In the instant case, as in Zellers, (1) the contractor (Parsley) was hired by respondent owners, (2) appellant was hired by Parsely, (3) the work in question was work for which a contractor’s license was required, and (4) Parsley was unlicensed at the time appellant was injured. The same four factors were the reason the Zellers court concluded that under section 2750.5, the injured worker had to be considered the employee of the property owner, the “ultimate hirer” (Zellers, supra, 61 Cal.App.4th at pp. 132-133). Zellers thus shows that, as stated in Hernandez v. Chavez Roofing, Inc. (1991) 235 Cal.App.3d 1092, “[s]ection 2750.5 can create a dual employment relationship whereby a worker may be an employee of both a general contractor and a subcontractor.” (Id. at p. 1095, citing Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 333; accord, Cedillo v. Workers’ Comp. Appeals Bd. (2003) 106 Cal.App.4th 227, 236-237.)
The analysis of the other issues discussed in Zellers also supports appellant, not respondents. The Zellers court quoted from policy statements set forth by the Supreme Court in State Fund, supra, 40 Cal.3d 5, which articulate the legislative purpose of section 2750.5 and which bear repeating:
“The fundamental policy underlying the workers’ compensation laws is that those hiring others to perform services should bear the risk of injuries incurred in the undertakings. When the person undertakes to hire the services through a licensed independent contractor, it is reasonable to anticipate that the independent contractor will insure against the risk and that the cost of the insurance will be passed on as the price of the contract. Thus it is reasonable to exonerate the hirer of the independent contractor. However, when the person performing services for which a license is required is unlicensed, the likelihood that he will insure against the risk of injury and has included the insurance cost in the price of his contract is greatly reduced.
“It is not unreasonable for the Legislature to conclude that effective implementation of a system of providing for workers’ injuries requires liability on the part of the ultimate hirer and that he should not be able to avoid liability on the ground that he dealt with a contractor when the contractor lacked a required license. Whether or not the hirer of the unlicensed contractor must be viewed as negligent in engaging in the hiring, it is apparent that the hirer has little expectation that the contractor will have compensation and liability insurance. While it may seem anomalous to hold that the hirer is liable for compensation only if the contractor lacks the required license, and that he would not be liable if the contractor were licensed, the justification is apparent in that the Legislature has sought to assure that both licensed and unlicensed contractors and their employees will have compensation should they be injured on the job.” (State Fund, at p. 13, italics added.)
Accordingly, the grant of summary judgment in this case cannot be squared with the policy considerations articulated in State Fund that Zellers relied upon.
Zaragoza v. Ibarra (2009) 174 Cal.App.4th 1012 (Zaragoza) is also readily distinguished. Zaragoza involved an extensive home remodeling project. (Id. at p. 1015.) The homeowner engaged an unlicensed contractor to construct four rooms and two bathrooms on her premises. The contractor hired Zaragoza to assist in the construction. Zaragoza was paid $100 for his first day of work on the job. When he arrived on the second day he was given no instructions. (Ibid.) “He simply arrived at work and he and another worker... set out to remove stucco from the upper portion of Ibarra’s garage walls. The accident happened in the course of removing the stucco. While standing “on a ladder he tried to pry a nail from the drywall with a hammer. He was unable to pull the nail out, but the momentum of his movement caused the ladder to slip and Zaragoza’s left knee struck the ladder upon his landing on top of it.” (Id. at pp. 1015-1016.) Zaragoza filed a civil suit for injury to his knee. (Id. at p. 1016.)
The trial court granted the homeowner’s motion for summary judgment on the ground that Zaragoza had assumed the risk based on the undisputed facts. (Zaragoza, supra, 174 Cal.App.4th at p. 1016.) The Court of Appeal found that there was no workers’ compensation exclusivity as to the homeowner, and that she could be sued in tort for ordinary negligence. (Id. at p. 1014.) However, the court pointed out, “there must be some triable issues of ordinary negligence on [the homeowner’s] part for Zaragoza to prevail,” and the undisputed evidence revealed none. (Id. at p. 1023.) “Zaragoza was the sole person who placed, adjusted, and then climbed the ladder before he fell. There are no allegations that the ladder was defective. Zaragoza simply engaged in a maneuver from a height of nine feet that any ordinary adult person would know posed significant risk.” (Ibid., fn. omitted.) Because Zaragoza’s injury was unrelated to any negligence on the part of the unlicensed contractor or anyone else, he could not hold the homeowner vicariously liable.
Zaragoza’s relevance here is severely limited by the fact that this appellant was not solely responsible for the injury he suffered, if he were negligent at all. In this case, Parsley—the unlicensed and uninsured contractor who received three citations for violations of Cal-OSHA regulations, including failure to inspect the defective rope from which the plaintiff was suspended—was at least contributorily negligent. The Zaragoza opinion suggests no reason that the respondents in the case before us cannot be held vicariously liable for Parsley’s negligence under the rationale of State Fund. Joint and several liability of homeowners and their unlicensed contractors is well established in situations like this. (See, e.g., Heiman, supra, 149 Cal.App.4th 724.) On these facts, it is incorrect to state there was no evidence of HOA and owners’ negligence because that argument instead raises the question of whether respondents can be vicariously liable under the doctrine of respondeat superior applicable to such employment relationships as a matter of law and policy.
Respondeat superior “ ‘is a departure from the general tort principle that liability is based on fault. [Citation.] It is a rule of policy, a deliberate allocation of a risk. [Citations.] Respondeat superior is based on a deeply rooted sentiment that it would be unjust for an enterprise to disclaim responsibility for injuries occurring in the course of its characteristic activities. [Citations.]’ ” (Miller v. Stouffer (1992) 9 Cal.App.4th 70, 77, quoting Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208-209.) Our Supreme Court identified three reasons for applying this doctrine: “(1) to prevent recurrence of the tortious conduct; (2) to give greater assurance of compensation for the victim; and (3) to ensure that the victim’s losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury.” (Mary M., at p. 209.) The trial court erred by failing to rule on whether respondents were employers by operation of law and thus subject to vicarious tort liability for appellant’s injuries.
Respondents argue that “imposing vicarious tort liability on an unwitting hirer of an unlicensed contractor where the hirer lacks workers’ compensation coverage, would place an unexpected and potentially catastrophic burden on many ordinary citizens.” There are two problems with this argument. The first is that State Fund rejected that argument,which makes it irrelevant whether the homeowner hired an unlicensed contractor unwittingly. The second is that the facts of this case suggest that the risks respondents ran by not having workers’ compensation coverage was not “unexpected” but fully anticipated. As noted above, the respondent HOA’s CC&R’s not only required all the respondents to have such coverage, but also required them to annually review the adequacy of their coverage. There is at least a factual question about whether respondents understood the related risk, if only because the CC&R’s of the association established by the owner-respondents suggest that they did appreciate the risks involved.
Article 9 of the CC&R’s, which covers insurance, provides that “[t]he Association shall acquire and maintain” many types of insurance, including “[w]orker’s compensation insurance to the extent necessary to comply with any applicable law.” Article 9 further requires that “[a]ll policies of insurance shall be reviewed at least annually and adjusted, if necessary, to provide such coverage and protection as the Association may deem prudent or as reasonably required by any first Mortgagee.”
Respondents also argue that that the principal justification for application of the doctrine of respondeat superior in a case such as this one “is the fact that the employer may spread the risk through insurance and carry the cost thereof as part of his costs of doing business” (quoting Johnston v. Long (1947) 30 Cal.2d 54, 64), and that “[a] homeowner who hires an independent contractor will see no need to ‘spread the risk’ because ‘[o]rdinarily, where an owner employs an independent contractor... he is not liable for the negligence of the contractor.’ ” Respondents point out that they had no reason to believe Parsley was their employee and accordingly had no reason to purchase insurance. This argument ignores the purpose, policy, and effect of section 2750.5. Under the policy established by State Fund it cannot matter whether respondents had reason to believe Parsley was their employee or whether they saw any need to “spread the risk.” Nor does it matter whether respondents mistakenly believed they had good reason to believe that Parsley was licensed and insured. Parsley and Gonzalez are respondents’ employees simply because, for the reasons described in State Fund, that is the legal consequence of hiring an unlicensed contractor in the absence of any exception to the application of section 2750.5.
Respondents cite no authority for the proposition that Parley’s misrepresentation that he was properly licensed and insured had any legal effect beyond giving them potential grounds to pursue him individually for damages based on fraud. We also note that the California Department of Consumer Affairs and the Contractors State License Board maintain a website (www.checkthelicensefirst.com) which is one of several sources providing ready access to such information.
The policy goals of the workers’ compensation law stated by the Supreme Court in State Fund and the reasons the Supreme Court has identified for applying the doctrine of respondeat superior are in substantial accord: (1) to prevent tortious conduct and inhibit the hiring of unlicensed and uninsured contractors, (2) to better assure recovery by victims who might otherwise go uncompensated, and (3) to ensure that a victim’s losses will be more equitably borne by those who benefit from the enterprise that gave rise to the injury. Section 2750.5 is designed to implement those goals by operation of law. Moreover, the reasons given by the trial court for its ruling were not based on any exception to section 2750.5, and the court did not determine the application of the “household domestic service” exception described in section 6303, subdivision (b). The record is devoid of facts salient to that determination: most notably how the third unit in the building was used, and the inferences arising from the respondent HOA’s self-imposed requirements for maintenance of adequate workers’ compensation insurance coverage.
The Partial Settlement and The Application of Respondeat Superior
The trial court stated that it granted respondents’ motion for summary judgment for two reasons: “(1) plaintiff’s exclusive remedy against the defendants was the workers’ compensation remedy the plaintiff pursued,” and “(2) if plaintiff were allowed to pursue this action in court... his prior settlement would limit him to his claim that defendants were negligent by reason of their own action or inaction, and yet the undisputed evidence shows that no act or omission on the part of either defendant was a substantial factor in causing harm to the plaintiff.”
The first conclusion that appellant’s filing of a claim with the UEBTF was his “exclusive remedy” is clearly wrong. The fact that an injured employee received workers’ compensation benefits from some source does not bar the employee’s civil action against an uninsured employer; and it does not make workers’ compensation the employee’s exclusive remedy. (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 987.) “Under section 3602, subdivision (a), the exclusive remedy of an injured employee against his employer for a work-related injury is, subject to specified exceptions, the right to workers’ compensation benefits. An exception to exclusivity is set forth in section 3706, which provides that if the employer ‘fails to secure the payment of compensation’ the employee may pursue a claim for damages against the employer.” (Id. at p. 984, citing Hernandez v. Chavez Roofing, Inc., supra, 235 Cal.App.3d at p. 1094.)
Respondents, who are appellant’s employers by operation of section 2750.5, failed “to secure [to him] the payment of compensation” within the meaning of section 3706, which is why he was obliged to file his claim with the UEBTF. Appellant’s settlement of that claim therefore cannot deprive him of the right under section 3706 to file a claim for damages against respondents. Further, the burden the employer bears is to show that workers’ compensation coverage provides the exclusive remedy available to the plaintiff; and that includes the responsibility of the employer to show that he “secured the payment of compensation” in accordance with section 3706. (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 97-98 & fn. 8.) Respondents have not and cannot make this showing.
The trial court’s inexplicable conclusion that settlement of his UEBTF claim “would limit [appellant] to his claim that the defendants were negligent by reason of their own action or inaction” is indifferent not only to the law but to the statement set forth in Addendum C to the parties’ settlement agreement that: “The settlement does not resolve the applicant’s superior court case for negligence filed in connection with the subject accident.” The most reasonable interpretation of this sentence is that the settlement, which did not fully compensate appellant, would not bear upon the merits of or interfere in any way with the adjudication of appellant’s tort claim. Even if the sentence in the addendum to the compromise and release could be deemed ambiguous, the statement cannot erase the statutory right of an injured worker to pursue a tort remedy where the defendant employers have not secured workers’ compensation. Using the statement in the compromise and release to prevent appellant from pursuing a tort remedy against the uninsured hirer of an unlicensed contractor would undermine the purpose of section 2750.5 and subvert the policy considerations described by the Supreme Court’s State Fund opinion.
In this connection it is notable that only Allstate (which provided “homeowner,” and not workers’ compensation insurance to respondent DeBerry) voluntarily contributed an undisclosed amount to the settlement of the UEBTF claim. State Farm, which provided homeowner insurance to the two other respondents, refused to contribute, which is why the settlement was based on appellant’s UEBTF claim with the remaining parties. Respondents do not claim appellant was fully compensated for his injuries by the settlement of the UEBTF claim. The UEBTF has a lien on any damages appellant may be awarded in this case; so appellant will not receive a double recovery.
Also, the UEBTF is expressly designed to protect workers by “provid[ing] workers’ compensation in place of illegally uninsured employers, who may be subject to penalties, civil liability and reimbursement of the Fund.” (Heiman, supra, 149 Cal.App.4th at p. 729, fn. 2, citing DuBois v. Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th 382, 388-389.) It would be anomalous indeed if UEBTF payments to an injured worker employed by an illegally uninsured contractor hired by an uninsured property owner would operate to insulate the uninsured parties from tort liability.
The trial court’s conclusion that “the undisputed evidence shows that no act or omission on the part of either defendant was a substantial factor in causing harm to the plaintiff” simply ignores appellant’s theory of vicarious liability, which is based on the legal consequences of the undisputed fact that respondents hired an unlicensed contractor. Under section 2750.5, the fact that the contractor was unlicensed and respondents were uninsured (i.e., that respondents did not “secure” workers’ compensation for appellant within the meaning of section 3706) means that the contractor and respondents must be deemed dual employers, which implicates the doctrine of respondeat superior and the concept of joint andseveral liability, which may be vicarious. Thus, in Heiman, supra, 149 Cal.App.4th at pages 728, 734-735, 741, 745, the unlicensed contractor and the property manager agent of the homeowners association were held jointly and severally liable for the workers’ injury, and the homeowners association was also held liable as the agent’s principal despite the absence of evidence that the homeowners association instructed its agent who to hire or had any direct involvement with the unlicensed contractor.
The trial court’s conclusion that respondents cannot be jointly and severally liable, or vicariously liable, for the negligence of an unlicensed contractor is also untenable because it would always bar an injured worker from asserting the joint and several liability of a homeowner where the negligence shown was that of an unlicensed contractor who was a dual employer. We have found no case justifying that result. For policy reasons the law provides that an injured worker may be an employee of both a property owner and an unlicensed independent contractor (Hernandez v. Chavez Roofing, Inc., supra, 235 Cal.App.3d at p. 1095; Cedillo v. Workers’ Comp. Appeals Bd., supra, 106 Cal.App.4th at pp. 236-237). Therefore it follows that dual employers can be jointly and severally liable for injuries sustained by a worker as a result of the negligence per se of either employer.
Respondents do not have an adequate answer to appellant’s respondeat superior theory. They acknowledge in their brief that “plaintiff’s theory is that while section 2750.5 made defendants his employer for purposes of section 3706, it also made them Parsley’s employer—in particular, it made them his employer for purposes of the rule of respondeat superior.... From this, plaintiff argues that defendants, as employers, are vicariously liable to plaintiff for Parsley’s alleged OSHA violations.” Respondents answer this argument first by reminding us that “[t]he Supreme Court has left it an open question whether section 2750.5 applies in the context of tort liability,” which is no answer at all. Second, respondents argue that the justification for vicarious liability under the rule of respondeat superior relies on a public policy that is relevant only to common law employment and agency relationships, and “[t]here is nothing in the language of section 2750.5 to suggest the Legislature intended that a statutory employer have the same exposure to tort liability that a common law employer might have.” This argument ignores the statement of policy set forth in State Fund, which is the foundation for the interpretation of section 2750.5 set forth in all the applicable case law.
Liability under the doctrine of respondeat superior is the consequence of being deemed an employer. The only citation respondents provide in support of their different view is a footnote in In-Home Supportive Services v. Workers’ Comp. Appeals Bd. (1984) 152 Cal.App.3d 720 (In-Home Supportive Services). This is far too slender a reed to rely on. In In-Home Supportive Services, the plaintiff worked for a social service program, In-Home Supportive Services (IHSS). (Id. at p. 725.) The plaintiff injured herself while assisting an IHSS recipient out of a car and applied for workers’ compensation benefits, listing IHSS as her employer. (Id. at p. 726.) It was argued that the plaintiff had not met the minimum wage and hour requirements of section 3352, based on the assumption that her only employer was IHSS. However, the appellate court observed that “the workers’ compensation law provides for coverage based on dual employment relationships” and addressed whether the plaintiff was a covered “employee” of the state because of the employment relationship established by the state’s control of her IHSS work. (In-Home Supportive Services, at pp. 725, 727.) The appellate court held that the plaintiff was entitled to workers’ compensation protection because she was both the employee of the IHSS recipient, under section 3352, and the state’s employee. (In-Home Supportive Services, at pp. 725-727.) Because the plaintiff was employed by IHSS, which was administered by the State Department of Social Services, the Court of Appeal was mindful that its conclusion might suggest unintended consequences regarding vicarious liability on the part of the state.
The footnote quoted by respondents simply explains that the dual employment relationship the court found “is grounded on the definition of employee for workers’ compensation coverage and has no necessary application to dissimilar contexts, e.g., respondeat superior.” (In-Home Supportive Services, supra, 152 Cal.App.3d at p. 732, fn. 12.) If the reasoning of In-Home Supportive Services has any application here, it is to underscore that the dual employment relationship resulting from the definition of employee set forth in section 2750.5 extends even to the state itself. The footnote merely clarifies that section 2750.5 creates the relationship as a matter of law to implement the statutory workers’ compensation scheme; and it points out that no other policy grounds for liability, such as respondeat superior, were involved in reaching that conclusion.
Finally, respondents argue that application of respondeat superior in this case “would conflict with the Privette line of cases.” In Privette v. Superior Court (1993) 5 Cal.4th 689, 731, the Supreme Court held that the doctrine of “peculiar risk” precludes a hired contractor’s employee from seeking tort recovery from the person who hired the contractor but did not cause the injuries. The Privette doctrine, developed by later cases, thus limits circumstances under which the injured worker who is the employee of the contractor may sue the contractor’s hirer. However, the Privette line of cases does not apply here because appellant is respondents’ employee as a matter of law, and not solely the employee of the uninsured and unlicensed contractor Parsley. The rationale of State Fund that describes the effect of section 2750.5 is unrelated and has never been applied to the “Privette line of cases,” which is why the rationale of those cases has also never been applied to workers’ compensation cases.
Respondents provide no reasoned basis for their novel theory that they cannot be held vicariously liable under the Supreme Court’s holding in State Fund that requires us to regard appellant as respondents’ employee as a matter of law under section 2750.5.
The owner or occupant of a residential dwelling who hires an unlicensed contractor whose employee is injured may not be the “employer” liable for workers’ compensation under section 2750.5 or section 3351, subdivision (d) unless the employee worked at least 52 hours during the 90 days preceding his injury, as specified in section 3352, subdivision (h). (See Heiman, supra, 149 Cal.App.4th at p. 735.) Respondents concede that “[f]or purposes of this appeal, there is no dispute that plaintiff satisfied this hourly requirement.”
The Application of Cal-OSHA Regulations
The trial court never reached the question of the application of the Cal-OSHA regulations to this project, even though the violations of those regulations by the contractor form the basis of appellant’s negligence per se claim. The trial court sustained relevance objections to the admission of the three citations Parsley received based on safety violations directly related to appellant’s fall. The citations documented Parsley’s failure to inspect a rope with “visible wear and other defects,” to train appellant in the use of boatswain’s chairs, and to provide a safety belt to secure an independent drop line while appellant used the boatswain’s chair. For reasons explained below, the trial court should not have sustained objections to the relevance of the Cal-OSHA regulations.
Respondents view this as a purely legal question of the application of the “household domestic service” exception described in section 6303, subdivision (b). They argue that it applies here based on Fernandez v. Lawson, supra, 31 Cal.4th 31, and to a lesser degree Rosas v. Dishong (1998) 67 Cal.App.4th 815, and Ramirez, supra, 44 Cal.4th 908. All these cases were tree trimming cases involving the question of whether a homeowner can be subjected to vicarious liability for violation of Cal-OSHA regulations. Respondents say that “[i]n light of Fernandez, plaintiff was not engaged in an employment subject to OSHA when he was injured. Repainting the outside of the Sacramento Street building was an activity personal to the property owners. It was the kind of service commonly performed by persons hired by homeowners to maintain their residences. [¶] Moreover, defendants were ill-equipped to understand or to comply with the specialized requirements of OSHA. In particular, it was unrealistic to assume defendants understood the safety issues involved, and they would not expect to be held responsible for ensuring that safety regulations were enforced. Imputing OSHA liability to defendants under the circumstances of this case would ‘violate[] basic notions of fairness and notice.’ ”
In Rosas the plaintiff argued that any activity requiring a contractor’s license could not possibly be considered “domestic” or “household” in nature. Without citation to authority, he contended that licensing statutes were enacted to ensure the safety of individuals who perform the “serious” work for which a license is required. The Rosas court rejected that argument as follows: “The Contractors’ State License Law was enacted to protect the public against dishonesty and incompetence in the business of contracting. (Elliott v. Contractors’ State License Bd. (1990) 224 Cal.App.3d 1048, 1055.) Work for which a license is required is not necessarily more dangerous than other tasks for which no license is required. The work performed by plumbers, painters and carpet installers, all work requiring a license (Bus. & Prof. Code, §§ 7026, 7026.3; Howard v. State of California (1948) 85 Cal.App.2d 361, 364; Kirman v. Borzage (1944) 65 Cal.App.2d 156, 158), cannot be said to be more dangerous and in need of safety protection than wood chopping, a task requiring no license. (Rosas v. Dishong, supra, 67 Cal.App.4th at p. 826.)
Respondents’ argument assumes that painting of a three-story, multi-unit building in an urban setting is equivalent to residential tree trimming. Their argument lacks support in case law, including the very cases relied upon by respondents. The Fernandez court observed that by “using the term ‘household domestic service’ in section 6303, subdivision (b) as an exception to covered ‘employment,’ the Legislature no doubt also intended to refer to a broad category of workers.” However, in deciding that “tree trimming activities” are a “household domestic service” not subject to OSHA tree trimming regulations, the Fernandez court explicitly declined to determine “whether a homeowner is subject to OSHA for noncommercial projects other than tree trimming.” (Fernandez v. Lawson, supra, 31 Cal.4th at p. 37, italics added.) Tree trimming is a “ ‘household domestic service,’ ” the court reasoned, because that phrase “implies duties that are personal to the homeowner, not those which relate to a commercial or business activity on the homeowner’s part” and also because “overwhelming public policy and practical considerations make it unlikely the Legislature intended the complex regulatory scheme that is OSHA to apply to a homeowner hiring a worker to perform tree trimming. It is doubtful the average homeowner realizes tree trimming can require a contractor’s license, let alone expect[s] that OSHA requirements would apply when they hire someone to trim a tree for their own personal benefit and not for a commercial purpose....” (Ibid.)
A homeowners expectations regarding tree trimming in the back yard of a private residence are not so clearly attributable to our respondents. Respondent Farrelly not only resides in the three-story building but is also the president of the HOA, and all of her decisions relied upon in the motion for summary judgment “were made in her capacity as the president of the HOA” and were allegedly “in accordance with the CC&R’s” of the HOA, which required the HOA to secure workers’ compensation insurance and annually assess the adequacy of its coverage. Moreover, Farrelly owns not only the condominium in which she resides, but also another in the building, and it is not evident from the record whether she leases the other unit for some usufructuary or other commercial purpose.
It must also be remembered that the HOA was properly sued as an independent party. A homeowners association is a separate legal entity apart from the owners, whether incorporated or not, with standing to sue or be sued. (White v. Cox (1971) 17 Cal.App.3d 824, 828-831; Heiman, supra, 149 Cal.App.4th at p. 739.) In Francis T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499-500, the court held that an unincorporated condominium association has a separate legal existence and could be held to a landlord’s duty of care. The CC&R’s of respondent homeowners association are relevant to its expectations, and the expectations of its individual owner-members, concerning liability for injury to workers employed on the premises.
The trial court never inquired whether the painting of respondents’ three-story building can be characterized as “household domestic service,” and the parties never offered any evidence relating to that issue comparable to the evidence discussed by the opinions in Cortez and Fernandez. It would be possible to assume that the periodic painting of a single family dwelling is almost certainly a “household domestic service” within the meaning of Cal-OSHA, but one could just as certainly maintain that the painting of a multi-story building containing numerous condominiums whose management is committed to a homeowners association and whose maintenance may be governmentally regulated, is not. The question is where to draw the line.
On the one hand, the painting of even a large, multi-story building can be seen as related to the maintenance of a “residential” facility, and therefore “personal to the homeowner,” but it is certainly not as personal as the painting of a single family house. On the other hand, if the building contains rental units, the painting will have a commercial aspect. It may also be true that, as the Cortez opinion said of the remodeling project at issue in that case, “the labor and skills characteristically necessary for [painting a multi-unit building in a busy city] are not functionally equivalent to those generally regarded as sufficient for the ordinary operation or maintenance of a private household or its premises. [Citation.] Moreover, the worksite conditions associated with [the painting of an apartment house] can be ongoing for months, and are often vastly more hazardous than the conditions typically associated with regular household maintenance.” (Cortez, supra, 51 Cal.4th atp. 295.)
The “narrow question” presented in Cortez was: “Does work rendered on a residential remodeling project in which significant portions of a house are demolished and rebuilt, and new rooms are added, fall within the statutory ‘household domestic service’ provision for employment excluded under [Cal-OSHA].” (Cortez, supra, 51 Cal.4th atpp. 288-289.) The court felt that it did not. The court’s conclusion was based on a plethora of relevant facts developed through discovery, including the facts that: the project would add 750 square feet to the house, the plans were drawn up by an architectural firm, demolition of existing walls and a deck was required, the project added a new bedroom and bathroom, required removal of an existing roof, and the installation of new flooring. (Id. at p. 289.) Due to these and other factors, the court determined that unlike tree trimming, the types of labor typically entailed in such an “extensive” project fell “outside state regulatory categories for household occupations or services of a household nature.” (Id. at p. 294.)
Cortez says that “whether a home remodeling project extends beyond mere household maintenance will generally depend on the totality of circumstances, including but not limited to, the scope of the project and the extent to which it involves significant demolition and construction work, the labor and skills required for the project, the need for building and/or other construction permits, and the extent to which those hired for the project are subject to state licensing requirements.” (Cortez, supra, 51 Cal.4th atp. 295, fn. 4.) While the “totality of the circumstances” will undoubtedly apply as much to painting as to remodeling projects, the circumstances to be evaluated may be different. For example, the height of the structure to be painted, whether it involves the use of any toxic substance, whether the structure needs to be “wrapped,” and whether scaffolding or suspension of workers with harnesses is necessary, are all factors likely to bear upon the application of Cal-OSHA.
In its present state, this case does not provide a factual basis upon which to decide whether the exterior painting of this three-story building containing multiple dwellings is within the Cal-OSHA exclusion under the imprecise guidelines provided by the case law. Many factors would have to be developed in the trial court, including the possible commercial use of a portion of the premises, whether the maintenance work is a type commonly performed by unlicensed homeowners, and whether the safety precautions required by OSHA with respect to large buildings can ordinarily be provided by particular homeowners. Also, while the average homeowner is probably unaware tree trimming requires a license, such a person may well be aware that the painting of a three-story structure in a major city is subject to government regulation and requires a license. Whether imputing Cal-OSHA responsibilities to a homeowner under the circumstances of this case would truly violate “basic notions of fairness and notice,” as was the case in Fernandez and Rosas, remains an open question. As we have noted, the express provisions of the CC&R’s of respondents’ homeowners association suggest that imputing Cal-OSHA liability would not necessarily violate those notions.
Although it was obvious from the beginning that appellant’s argument was that Cal-OSHA requirements should be applied to respondents as de jure employers, the trial court did not address the issue. The court also did not rely on the legal exception argued by respondents as follows: “[S]ection 6303[, subdivision] (b), provides that ‘[e]mployment’ subject to OSHA regulation does not include ‘household domestic service.’ Though the OSHA statutes do not define that term, it is broad enough to include the painting of a residential property that occurred here.” Respondents supported this claim by asserting that the tree trimming in Fernandez and the painting of the condominium building in this case were both “personal” to the homeowner and not those which relate to commercial or business activity on the homeowner’s part. (Fernandez v. Lawson, supra, 31 Cal.4th at p. 37.) The trial court’s stated reasons for its decision do not include any findings or analysis regarding the application of the section 6303, subdivision (b) exclusion and the court did not consider the proffered evidence of Cal-OSHA violations.
Respondents’ Reply Brief quotes from the Supreme Court’s opinion without acknowledging that the opinion explicitly declined to determine “whether a homeowner is subject to OSHA for noncommercial projects other than tree trimming.” (Fernandez v. Lawson, supra, 31 Cal.4th at p. 37, italics added.)
The safety precautions mandated by Cal-OSHA seem to us more reasonably applicable to the painting of a three-story condominium building than to the tree trimming involved in Fernandez, even though the painting project in this case appears to be less extensive than the remodeling described in Cortez. However, we cannot make such distinctions without knowing far more about the project than this record reveals. On the current record, appellant must be deemed respondents’ employee under section 2750.5. Therefore, the only way summary judgment can be granted for respondents is if, after an appropriate inquiry by the trial court, it can be said that appellant has no predicate for his negligence per se claim because the three Cal-OSHA regulations the independent contractor was found to have violated cannot be applied to respondents, including the homeowners association, which is sued separately.
DISPOSITION
The summary judgment is reversed and the matter remanded with directions to the trial court to undertake that inquiry.
I concur: Kline, P.J.
Concurring opinion of Haerle, J.
I agree with my colleagues that we should reverse the decision of the trial court and remand this case to it with specific directions for it to consider and rule upon the issues unaddressed by it in its decision below, i.e., does Cal-OSHA apply here to the work of appellant or does the “household domestic service” exemption specified in Labor Code section 6303, subdivision (b) (section 6303(b)), preclude any such application?
However, although I agree with the ultimate result reached by my colleagues, I disagree with the route by which they arrive there, specifically a route which seems to suggest that, contrary to our Supreme Court’s unanimous ruling in Fernandez v. Lawson (2003) 31 Cal.4th 31 (Fernandez), the “household domestic service” exemption specified in section 6303(b) should not be given a broad interpretation. My colleagues do this by, among other things, noting that Fernandez and other authority relied on by respondents all involved “tree trimming.” (Maj. opn. at p. 21.) Via this and other characterizations, they seemingly attempt to downplay the holdings of both Fernandez and the other authority regarding the broad scope which should be accorded the “household domestic service” exemption of section 6303(b).
With regard, first, to Fernandez, let me quote even more of that holding than my colleagues do, because its overall theme is important. After quoting the key terms of section 6303(b) and some of its legislative history, the court went on as follows:
“Generally speaking, ‘household domestic service’ is understood to include work both within and outside a residence. (See Catto v. Plant (1927) 106 Conn. 236 [137 A. 764, 765-767] [gardener a ‘domestic servant’]; id. at p. 766 [‘ordinarily a domestic servant is one whose service is connected with the maintenance of the house and land connected with it’].) Indeed, for purposes of regulating wages, hours, and working conditions for household occupations, the Industrial Welfare Commission defines ‘household occupations’ in part as ‘all services related to the... maintenance of a private household or its premises by an employee of a private householder,’ including ‘gardeners.’ [Citation.] Tree trimming is a service commonly performed by persons hired by homeowners to maintain residential premises.
“Moreover, the purpose of the 1973 overhaul of OSHA was ‘to allow the State of California to assume responsibility for development and enforcement of occupational safety and health standards under a state plan pursuant to Section 18 of the Federal Occupational Safety and Health Act of 1970....’ [Citation.] The 1972 proposed California plan stated that the former Division of Industrial Safety's ‘authority extends to virtually every place of employment in California.... [T]he principal exceptions are Federal government agencies, maritime workers, household domestic service workers, and railroad workers except those employed in railroad shops.’ (Agriculture & Services Agency, Cal. Occupational Safety & Health Plan (Sept. 25, 1972) § 3(B), p. III-1.) The exceptions noted for federal agencies, maritime workers, and railroad workers are for broad categories of employees. Viewed in this context, it is likely the term ‘household domestic service workers’ similarly encompassed a broad category of workers performing tasks in- and outside of a private residence. In subsequently enacting the 1973 enabling legislation, and using the term ‘household domestic service’ in section [6303(b)] as an exception to covered ‘employment,’ the Legislature no doubt also intended to refer to a broad category of workers.
“In addition, the term ‘household domestic service’ implies duties that are personal to the homeowner, not those which relate to a commercial or business activity on the homeowner’s part. While OSHA and its predecessors have operated for 90 years primarily in the commercial setting, we need not decide in this case whether a homeowner is subject to OSHA for noncommercial projects other than tree trimming. It is sufficient to note here that there is no indication Lawson wanted the palm tree trimmed for any commercial purpose.
“Finally, overwhelming public policy and practical considerations make it unlikely the Legislature intended the complex regulatory scheme that is OSHA to apply to a homeowner hiring a worker to perform tree trimming. It is doubtful the average homeowner realizes tree trimming can require a contractor’s license, let alone ‘expect[s] that OSHA requirements would apply when they hire someone to trim a tree for their own personal benefit and not for a commercial purpose.... Moreover, homeowners are ill-equipped to understand or to comply with the specialized requirements of OSHA.’ ([Rosas v. Dishong (1998)] 67 Cal.App.4th [815,] 826 [(Rosas)].) Imputing OSHA liability to a homeowner under the circumstances of this case violates basic notions of fairness and notice.” (Fernandez, supra, 31 Cal.4th at pp. 36-37, italics added.)
In so holding, our Supreme Court cited approvingly Rosas, supra, 67 Cal.App.4th at page 826. In that case, the Fourth District Court of Appeal reversed a trial court decision which had held the defendant-appellant homeowners liable for the injuries suffered by an unlicensed tree-trimmer. In the course of its reversal, the Rosas court stated: “Rosas contends that an activity requiring a contractor’s license could not possibly be considered ‘domestic’ or ‘household’ in nature. Without citation to authority, he implies that licensing statutes were enacted to ensure the safety of individuals either licensed or unlicensed who perform the ‘serious’ work for which a licensed is required. The Contractors’ State License Law was enacted to protect the public from dishonesty and incompetence in the business of contracting. [Citations.] Work for which a license is required is not necessarily more dangerous than other tasks for which no license is required. The work performed by plumbers, painters and carpet installers, all work requiring a license [citations], cannot be said to be more dangerous and in need of safety protection than wood chopping, a task requiring no license.” (Id. at p. 826, italics added.)
Yes, as my colleagues point out, the reference to domestic house painting—exactly what was involved here—was dicta in Rosas. But it was dicta in a case (and on a page) cited approvingly by a unanimous California Supreme Court.
Finally, my colleagues also seem to downplay the significance of the recent decision in Zaragoza v. Ibarra (2009) 174 Cal.App.4th 1012 (Zaragoza). Although the facts of that case are admittedly different (the employee had not been working as long as this appellant had, and thus was exempted from workers compensation coverage per Labor Code section 3352, subdivision (h)), another Division of the Fourth District held as follows regarding why OSHA did not apply there:
“California courts have consistently held that OSHA (Occupational Safety and Health Act of 1970; 29 U.S.C. § 651 et seq.) (really Cal-OSHA (California Occupational Safety and Health Act of 1973; § 6300 et seq.), our regulations are stricter than the federal ones) was not meant to apply to homeowners, but to traditional places of industryand business. (Fernandez v. Lawson (2003) 31 Cal.4th 31, 38 [holding the hirers of a noncommercial tree trimmer were not subject to OSHA]; Rosas[, supra,] 67 Cal.App.4th [at p.] 826 [“It is unlikely average homeowners expect that OSHA requirements would apply when they hire someone to trim a tree for their own personal benefit and not for a commercial purpose.... Moreover, homeowners are ill-equipped to understand or to comply with the specialized requirements of OSHA.”].)” (Zaragoza, supra, 174 Cal.App.4th at pp. 1022-1023, italics added.)
Finally, I submit that nothing in the most recent case on this subject, Cortez v. Abich (2011) 51 Cal.4th 285 (Cortez), changes anything at all that court held a few years earlier in Fernandez or affects the language and holdings in Rosas or Zaragoza. Cortez focused on whether “the requisite employment relationship” (id. at p. 291) existed, i.e., whether working on a home remodeling project came within the “household domestic service” exclusion of section 6303(b). In holding that it did not, the Cortez court relied strongly on that section’s specific mention of “excavation, demolition, and construction work” in concluding that employment in extensive residential construction and remodeling such as that involved in the case before it did not qualify for the “household domestic service” exemption of that subdivision. In so doing, the court did not, even in the slightest, limit its holding in Fernandez, but just distinguished that case as involving “services relating to the maintenance of a household or its premises” and that the statutory term at issue “logically refers to all services related to the ‘ “maintenance” ’ of a private household or its premises, including gardening and tree-trimming.” (Cortez, supra, at pp. 293-295.)
Cortez in no way changes the principle set forth in Fernandez regarding the broad interpretation to be given to section 6303(b)’s exclusion of “household domestic service.” It simply held that that exclusion was inapplicable because of the extensive reconstruction, demolition, etc., involved in the “residential remodeling project” involved there. (Cortez, supra, 51 Cal.4th at p. 288.)
Indeed, the Cortez court specifically agreed with its prior opinion in Fernandez, stating: “As an activity, household domestic service is commonly associated with services relating to the maintenance of a household or its premises (see Fernandez, supra, 31 Cal.4th at p. 36) and does not connote work contracted for in connection with an extensive home remodeling project for which a building permit must be issued, significant portions of the house are demolished and rebuilt, and entirely new rooms are framed and constructed. Indeed, unlike tree trimming, the types of labor typically entailed in an extensive remodeling project appear to fall outside state regulatory categories for household occupations or services of a household nature. [Citations.] That is hardly surprising, inasmuch as the labor and skills characteristically necessary for such a project are not functionally equivalent to those generally regarded as sufficient for the ordinary operation or maintenance of a private household or its premises. (See Fernandez, supra, 31 Cal.4th at p. 36.) Moreover, the worksite conditions associated with residential demolition, construction, and large-scale improvements can be ongoing for months, and are often vastly more hazardous than the conditions typically associated with regular household maintenance.” (Cortez, supra, 51 Cal.4that pp. 294-295; italics added & fns. omitted.)
I submit that this language, especially the italicized phrases, undermine my colleagues efforts to both interpret the holding of Fernandez very narrowly and do exactly the reverse regarding the holding of Cortez.
Nevertheless, despite all these problems, I agree with the result arrived at by the majority (albeit not the process it used), i.e., that the case should be remanded to the trial court for a determination of three specific issues, namely: (1) In view the fact that the painting job undertaken apparently covered three condominium units but only involved two homeowners, was the third unit rental property or not? (2) If it was, does section 6303(b) apply to the outside painting of all three units? (3) Does that section exempt not just the two homeowners but the respondent HOA from Cal-OSHA liability regarding “household domestic service”?
“(a) That the individual has the right to control and discretion as to the manner of performance of the contract for services in that the result of the work and not the means by which it is accomplished is the primary factor bargained for.
“(b) That the individual is customarily engaged in an independently established business.
“(c) That the individual’s independent contractor status is bona fide and not a subterfuge to avoid employee status. A bona fide independent contractor status is further evidenced by the presence of cumulative factors such as substantial investment other than personal services in the business, holding out to be in business for oneself, bargaining for a contract to complete a specific project for compensation by project rather than by time, control over the time and place the work is performed, supplying the tools or instrumentalities used in the work other than tools and instrumentalities normally and customarily provided by employees, hiring employees, performing work that is not ordinarily in the course of the principal’s work, performing work that requires a particular skill, holding a license pursuant to the Business and Professions Code, the intent by the parties that the work relationship is of an independent contractor status, or that the relationship is not severable or terminable at will by the principal but gives rise to an action for breach of contract.
“In addition to the factors contained in subdivisions (a), (b), and (c), any person performing any function or activity for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code shall hold a valid contractors’ license as a condition of having independent contractor status.
“For purposes of workers’ compensation law, this presumption is a supplement to the existing statutory definitions of employee and independent contractor, and is not intended to lessen the coverage of employees under Division 4 and Division 5.”
As is often the case with dicta, this statement refers to the apparent breadth of the exclusion based on a truncated analysis of the policies pursued by the Legislature. Zaragoza also contained dicta to the effect that OSHA was not meant to apply to homeowners. However, the Supreme Court’s opinion in State Fund, supra, 40 Cal.3d 5, articulated the legislative purposes of the workers compensation law generally; and Zellers, supra, 61 Cal.App.4th at pages 132-133, considered section 2750.5 in the context of that policy scheme. Both cases are quoted at length herein.