Bussard v. Ings
Filed 10/4/13 Bussard v. Ings CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
MATTIAS BUSSARD,
Plaintiff and Appellant,
v.
LLOYD INGS,
Defendant and Respondent.
B244911
(Los Angeles
County
Super. Ct.
No. SC112353)
APPEAL from
an order of the Superior Court
of
County, Allan J. Goodman, Judge. Reversed.
Law Offices
of Robert J. Scuderi and Robert J. Scuderi for Plaintiff and Appellant.
Demler,
Armstrong & Rowland, James P. Lemieux and Robert W. Armstrong for Defendant
and Respondent.
The California Occupational Safety and Health Act of 1973
(Cal-OSHA; Lab. Code, § 6300 et
seq.) imposes a myriad of safety standards on employers. There are, however, exceptions to its
applicability. The issue in this case is
whether an employer of a worker hired to paint the eves of the employer’s
triplex rental property has contracted for work that falls within the
“household domestic service†exception to Cal-OSHA regulations. We hold such labor does not constitute
“household domestic service†and is therefore subject to regulation under
Cal-OSHA. The trial court’s order
granting the employer’s motion for summary
judgment is reversed because the ruling was based on the erroneous
application of the exception.
FACTS
Defendant
and respondent Lloyd Ings is a retired telephone worker living in Simi
Valley. He owns
two triplexes in west Los Angeles
to supplement his retirement income.
Ings purchased one triplex in 1957 and the other in 1963. In 2009, the triplexes produced 75% of Ings’s
retirement income.
Plaintiff and appellant Matthias
Bussard was a former neighbor of Ings.
They became friends in 1999.
Bussard lost his job as a mortgage broker at Wells Fargo Bank in March 2009.
In August
2009, Ings agreed to pay Bussard $20 per hour to paint the eaves on one of the
triplexes. On the first day of painting,
Bussard walked backwards off the roof and sustained injuries. Bussard acknowledged there was nothing
defective about the roof; he simply misjudged the size of it.
Ings paid
Bussard’s medical bills for a period of time, but stopped when it became too
expensive. Bussard then filed this
lawsuit against Ings.
DISCUSSION
Bussard’s
complaint contained three causes of action:
(1) premises liability; (2) general negligence; and (3) “uninsured
employer liability (Labor Code[,] § 3706 et seq.).â€
Ings filed a motion for
liable under negligence theories because Bussard admitted his own negligence
was the only cause of the fall. In
opposition to the motion, Bussard argued that Ings’s failure to comply with
Cal-OSHA requirements caused or contributed to his injuries.
The court ruled Bussard was not an
employee of Ings for purposes of Workers’
Compensation, and so Ings had no duty to purchase such insurance and no
liability under Labor Code section 3706.
The court also ruled Bussard was not an employee for purposes of Cal-OSHA
and so Ings had no duty to comply with Cal-OSHA requirements. Because it was undisputed the fall was not
due to any defect in the roof, the court ruled Ings had no liability for
negligence. The court granted Ings’s
motion for summary judgment.
a. Trial court’s ruling
The court ruled as follows on the
Cal-OSHA issue: “[T]he work plaintiff
was performing for defendant Ings is properly deemed ‘maintenance’ or ‘repair’
of a residential building and not a major capital improvement, per
285. Accordingly, the court finds that
the ‘household domestic services’ exception found in Labor Code § 6303(b)
should properly be interpreted to encompass this situation and preclude
defendant Ings from having to comply with OSHA rules for such work because,
under the facts of this case, this is not a traditional place of industry and
business for which OSHA was meant to apply.
In reaching this conclusion, the court specifically recognizes that case
law provides this exception is to be interpreted broadly to a category of
workers who are performing duties personal to the hirer and not performing
duties which relate to a commercial purpose or business activity of the
hirer. The court further agrees that
public policy and statute’s purpose are best served by this interpretation of
the ‘household domestic service’ exception, consistent with case law in the
workers’ compensation arena which holds that the ‘ownership and rental of a
house by an individual for the purposes of supplemental income, when such owner
has no particular or principal business, is not a business within the
contemplation of the Act’ (Stewart v.
WCAB (1985) 172 Cal.App.3d 351; [Aubry]
. .) and that such should not be treated as a traditional place of business or
industry within the contemplation of OSHA rules. Therefore, the court finds that defendant
Ings was not obligated to comply with the OSHA statutes found in Labor Code §
6300, et seq., and particularly §§ 6400-6406, for Mr. Bussard’s work on his
rental property.â€
b. Applicable law – summary judgment
A party is entitled to summary
judgment if under the undisputed facts or facts as to which there is no
reasonable dispute the party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);
25 Cal.4th 826, 850.) A defendant moving
for summary judgment must show that one or more elements of the plaintiff's
cause of action cannot be established or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2);
burden shifts to the plaintiff to set forth “specific facts†showing that a
triable issue of material fact exists.
(Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25
Cal.4th at p. 849.)
We review the trial court's ruling
de novo and apply the same legal standard that governs the trial court. (Johnson
v. City of Loma Linda (2000) 24 Cal.4th 61, 67-68.) We affirm the ruling if
it is correct on any ground, regardless of the trial court’s stated reasons. (
(2002) 95 Cal.App.4th 13, 20.)
c. Applicable law – Cal-OSHA
Cal-OSHA
was enacted “for the purpose of assuring safe and healthful working conditions
for all California working men and women.â€
(Lab. Code, § 6300.) A person is
an “employee†for purposes of Cal-OSHA if he is directed by an employer “to
engage in any employment.†(Lab. Code, §
6304.1, subd. (a).) “‘Employment’
includes the carrying on of any trade, enterprise, project, industry, business,
occupation, work . . . except household domestic service.†(Lab. Code, § 6303, subd. (b).) “OSHA does not define ‘household domestic
service.’ Nor does the relevant legislative history offer any guidance on the
meaning of the phrase.†(
31, 36.)
“In determining such intent, we
look first to the words of the statute, ‘“giving to the language its usual,
ordinary import and according significance, if possible, to every word, phrase,
and sentence in pursuance of the legislative purpose.â€â€™ [Citation.]
Although we give effect to a statute according to the usual, ordinary
import of its language [citation], language that permits more than one
reasonable interpretation allows us to consider ‘other aids, such as the
statute’s purpose, legislative history and public policy.’ [Citation.]â€
(Cortez v. Abich (2011) 51
Cal.4th 285, 292.)
d. Analysis
Ings
contends on appeal, as he did in the trial court, that the meaning of
“household domestic service†should be decided by reference to workers’
compensation law. The trial court agreed
with Ings. We do not.
Workers’ compensation law defines
an “employee†as including “any person employed by the owner or occupant of a
residential dwelling whose duties are incidental to the ownership, maintenance,
or use of the dwelling, including the care and supervision of children, or
whose duties are personal and not in the course of the trade, business,
profession or occupation of the owner or occupant,†provided the person has
worked 52 or more hours for the employer during the 90 days preceding the
person’s injury. (Lab. Code, §§ 3351,
subd. (d); 3352, subd. (h).)
“[O]wnership and rental of a house by an individual for the purpose of
supplemental income, when such owner has no particular or principal business,
is not a business within the contemplation of the [Workers’ Compensation]
Act.†(Stewart v. WCAB, supra, 172 Cal.App.3d at pp. 354, 355-356.)
The
Workers’ Compensation Act has different language and a different history than
Cal-OSHA. Both sets of laws trace their
roots to legislation passed in 1913 and originally used the term “household
domestic service†to refer to a class of excluded employees. There, the similarities end. Workers’ compensation contained an additional
excluded class of employees consisting of any person whose duties were “both
casual and not in the usual course of the trade, business, profession or
occupation of his employer.â€
Over time, the laws diverged
further. “Household domestic serviceâ€
workers were changed from an excluded class of employees under worker’s
compensation law to an included one in 1975.
(Stats. 1975, c.1263, p. 3314, § 4.)
They were included in a new class of employee defined as “[a]ny person
employed by the owner of a private dwelling whose duties are incidental to the
ownership, maintenance, or use of the dwelling, including the performance of
household domestic service. . . .
[H]ousehold domestic service shall include, but not be limited to, the
care and supervision of children in a private residence.†(Ibid.) Two years later, the term “household domestic
service†was removed from the above definition of an employee, which was
rewritten to read, “any person employed by the owner or occupant of a
residential dwelling whose duties are incidental to the ownership, maintenance,
or use of the dwelling, including the care and supervision of children, or
whose duties are personal and not in the course of the trade, business,
profession, or occupation of such owner or occupant.â€
In contrast, the term “household
domestic service†has continuously been used to describe an excluded class of
employees in all “versions of the ‘employment’ definition†in worker safety
law, including the most recent version of OSHA.†(Fernandez
v. Lawson, supra, 31 Cal.4th at p. 36.)
In other words, unlike Workers’ Compensation rules, the Cal-OSHA
regulations did not go through the vacillations on this issue.
The California Supreme Court has
not looked to workers’ compensation law for guidance in interpreting the phrase
“household domestic service†in Cal-OSHA, and neither do we. (See Cortez
v. Abich, supra, 51 Cal.4th 285; Fernandez
v. Lawson, supra, 31 Cal.4th 31.)
and the different language contained therein, we find no basis to conclude the
interpretation of the “principal business†exception to workers’ compensation
recognized in Stewart
service†exception in Cal-OSHA applies
to the Ings-Bussard employment relationship.
On two
occasions, our Supreme Court has considered wage and hour regulations and
unemployment insurance regulations in determining the scope of Cal-OSHA
coverage for work done on a home. (
31.) Both cases involved an
owner-occupied single family home, and did not address the issue of Cal-OSHA’s
coverage of work done on rental units.
Nevertheless, the regulations cited by the Court do offer some guidance
in this case.
Wage and hour regulations define
“‘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.’†(Fernandez v. Lawson, supra, 31 Cal.4th at p. 36 [italics added], quoting
Cal. Code Regs., tit. 8, § 11150, subd. 2(i) .)
Similarly,
regulations implementing unemployment insurance rules state “‘[d]omestic
service in a private home’ includes service of a household nature performed by
an employee in or about a private
home in connection with the maintenance of the private home.†(
hour and unemployment insurance regulations “both view the concept of household
occupations or service as specifically pertaining to the ‘maintenance’ of the
the care of the householder’s family.†(
added].)
Bussard’s
work may have qualified as maintenance work.
However, Ings’s income-producing triplexes are not the equivalent of a
private home. He does not live in either
triplex and they are not located on the premises or grounds of his home. The above regulations suggest that Bussard’s
maintenance work on Ings’s rental property is not “domestic household service.â€
Ings argues
“the law is clear that courts realize (1) homeowners are not sophisticated
people capable of navigating the complex world of OSHA and (2) that public
policy (thus, far, more developed in workers’ compensation cases) encourages
individuals involved in other lines of work (accountants, secretaries, or here,
a telephone worker) to buy rental property as supplemental retirement income
and does not consider this ‘commercial’ in nature but rather deems it
‘personal’ in nature.â€
Even
private homeowners must, under some circumstances, comply with Cal-OSHA. “Section 6303’s definition of employment does
not purport to categorically exempt all work performed for homeowners . . .
.†(Cortez
v. Abich, supra, 51 Cal.4th at p.
294 [extensive remodeling project by homeowner].)
More importantly, the non-resident
owner of multiple rental units is not in the same position as a homeowner who
occupies his own residence. The rental
unit owner is a landlord and as Bussard points out, landlords enter “a whole
new world of laws, including but not limited to, rent control, discrimination
law, business taxes, zoning control and safety laws.†A certain level of sophistication is
required. Further, a landlord need not
understand the detailed requirements of Cal-OSHA; he may delegate his duty to
comply with Cal-OSHA by hiring an independent contractor to work on his rental
properties. (SeaBright Ins. Co. v. US
Airways, Inc. (2011) 52 Cal.4th 590, 601 [when hirer hires an independent
contractor, delegation of Cal-OSHA duties to the independent contractor is
implied].)
Ings offers
no authority to support his claim that public policy encourages the purchase of
rental property for supplemental retirement income. The workers’ compensation exclusion for
supplemental income was adopted without elaboration from English law over 90
years ago. (Lauzier v. Industrial Acc. Commission of Cal. (1919) 43 Cal.App.
725, 727 [following English case law interpreting the English workers’
compensation act “which has furnished the model and substance for many of the
state enactments covering this subject, including our own†and holding that “a
landlord owning several houses and having an interest in others, all of which
were let to tenants, was not engaged in ‘a trade or business’ within the
meaning of the law†].) We see nothing
in subsequent California cases discussing a policy of encouraging rental
property purchases for retirement income.
A building
owner’s responsibility to proved a safe working environment for employees who
work on the building should not turn on the “reason†he bought the
building. There is no rational basis to
treat a person who purchases a building to generate supplemental income any
differently than one who purchases an identical building to generate his
primary income.
e. Labor Code Section 2750.5
Section
2750.5 establishes a “rebuttable
presumption†that a worker performing services for which a license is
required is an “employee rather than an independent contractor.†The party attempting to rebut that
presumption and establish the worker as an independent contractor must
satisfactorily prove the worker: (1)
“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;†(2) “is customarily
engaged in an independently established business;†and (3) has a “bona fideâ€
independent contractor status as opposed to a “subterfuge to avoid employee
status.†In addition to these factors,
the second to last clause in section 2750.5 requires “any person performing any
function or activity for which a license . . .
pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of
the Business and Professions Code [to] hold a valid contractors’ license as a
condition of having independent contractor status.â€
Ings
contends the trial court improperly relied on the penultimate clause and “accepted†the “premise†that section 2750.5
made him an employee as a matter of law simply because Bussard was an
unlicensed contractor doing work that required a license. Ings seems to take the position that, if the
trial court had not applied the licensing requirement clause to Bussard, it
would have necessarily concluded Bussard was an independent contractor who is
not protected by Cal-OSHA. Thus, he
argues summary judgment could be affirmed on the basis that Bussard was not an
employee as a matter of law and, therefore, was not entitled to the protections
of Cal-OSHA. His position is not
persuasive for two reasons.
First, the
trial court did not rule on the applicability of the penultimate clause in
section 2750.5. Indeed, Ings did not (a)
provide any facts suggesting Bussard
was an independent contractor, (b) argue the licensing requirement was
inapplicable to Bussard, or (c) argue Cal-OSHA was not applicable to
independent contractors. It is improper
for him to litigate this issue for the first time on appeal. The argument is forfeited. (People v. Edwards (2013) 57 Cal. 4th 658, 709;
Cal. App. 4th 704, 725
v. Fox (2012) 211 Cal. App.
4th 1036, 1065 [arguments available to an appellant “are limited by what he argued in the trial
courtâ€].)
Second,
notwithstanding forfeiture, Ings does not address the remaining factors in
section 2750.5—all of which, based on the current state of the record, weigh
an independent contractor. Indeed, there
are no undisputed facts in the separate statement of material facts that rebut
the presumption Bussard was an employee.
Ings’s argument regarding the inapplicability of the penultimate clause
of section 2750.5 is no basis to affirm the order granting summary judgment.
DISPOSITION
The order
granting summary judgment is reversed.
Bussard is entitled to costs on appeal.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KUMAR,
J.
We concur:
MOSK,
Acting P. J.
KRIEGLER,
J.
Code section 3715, which details the rights of employees whose employer has
failed to secure the payment of workers compensation as required.
the Court did note that one workers’ compensation case, Crockett v. Industrial Acc. Com. (1923) 190 Cal. 583, was
consistent with the Court’s holding in Cortez
that household domestic service did not include work in an extensive
construction and remodeling project. (
