Supreme Court of California Justia
Citation 44 Cal. 4th 908, 188 P.3d 659, 80 Cal. Rptr. 3d 728

Ramirez v. Nelson


Filed 8/4/08

IN THE SUPREME COURT OF CALIFORNIA

MARIA DOLORES RAMIREZ et al.,
Plaintiffs
and
Appellants,
S143819
v.
Ct.App. 2/6 B179275
THOMAS NELSON et al.,
) Ventura
County
Defendants and Respondents. )
Super. Ct. No. CIV217462

Introduction
A worker for an unlicensed contractor hired by homeowners to trim trees at
their residence was electrocuted when his polesaw came in contact with an
overhead high voltage line. The decedent’s heirs brought this wrongful death
action against the homeowners, alleging they negligently failed to keep their
property in a reasonably safe condition, and failed to warn the contractor or his
workers, including the decedent, about the hazardous condition presented by the
high voltage power lines adjacent to their trees.
Plaintiffs further identified a statute, Penal Code section 385,
subdivision (b) (section 385(b)), that makes it a misdemeanor for any person,
either personally “or through an employee” (ibid.), to move any tool or equipment
within six feet of a high voltage overhead line. Plaintiffs argued section 385(b)
sets forth a special duty of care with regard to the use of tools or equipment in
close proximity to high voltage lines; that such duty was violated here given that
1



the decedent’s polesaw came in contact with the power lines, causing his
electrocution; and that if the decedent is found to have been the homeowners’
“employee” (§ 385(b)) at the time of the fatal accident, the homeowners are
vicariously liable for breach of that duty under the express terms of the statute,
giving rise to a presumption of negligence under Evidence Code section 669.1
Plaintiffs then argued the decedent was the homeowners’ employee by operation
of law under the “penultimate paragraph” of Labor Code section 2750.5, as
construed in State Compensation Ins. Fund v. Workers’ Comp. Appeals Bd. (1985)
40 Cal.3d 5, 15 (State Compensation). In State Compensation, this court
interpreted section 2750.5 to mean that unlicensed contractors who become
injured on the job are not independent contractors in the eyes of the law, but are
instead, by operation of law, employees of the party who hired them for purposes
of establishing workers’ compensation benefit eligibility. (State Compensation, at
p. 15.)
The trial court disagreed with both prongs of plaintiffs’ negligence per se
theory of the case and submitted the matter to the jury on standard negligence
instructions. The jury returned a verdict for defendant homeowners. The Court of
Appeal reversed and remanded, concluding a violation of the duty of care
embodied in section 385(b) would support plaintiffs’ negligence per se theory of
liability if the decedent was shown to be the homeowners’ employee, and that
under the penultimate paragraph of Labor Code section 2750.5, the decedent was
the homeowners’ employee at law, requiring jury instructions on section 385(b)
and the resulting presumption of negligence.

1
Evidence Code section 669, discussed in greater detail below, provides that
a presumption of negligence (“negligence per se”) arises from a tortfeasor’s failure
to exercise due care in violation of a statute designed to protect a class of persons,
of which the injured party is a member, from the type of injury sustained.
2



We granted review to address both questions of statutory interpretation
implicated in the Court of Appeal’s holding. First, does section 385(b) set forth a
statutory duty of care owed by these homeowners to the decedent in the first
instance, such that plaintiffs’ case should have been submitted to the jury on a
negligence per se theory of liability pursuant to Evidence Code section 669?
Second, if section 385(b) does indeed establish such a duty of care as between
these parties, then was the decedent the homeowners’ employee by operation of
law under Labor Code section 2750.5, for purposes of establishing defendants’
vicarious liability under section 385(b) for breach of that duty?
We conclude the Court of Appeal erred in finding section 385(b) sets forth
a special duty of care owed by these homeowners to the decedent. The Court of
Appeal’s rationale effectively makes defendant homeowners vicariously liable in
tort for the worker’s own negligent acts or omissions which themselves violated
the statute and proximately caused his fatal injuries. As will be explained, the
fatally injured worker who, through his own conduct, breached the duty of care
embodied in section 385(b), was not “one of the class of persons for whose
protection the statute . . . was adopted.” (Evid. Code, § 669, subd. (a)(4).) We find
the jury was properly instructed under plaintiffs’ common law negligence theory,
and that the trial court properly refused to further instruct on section 385(b) and
plaintiffs’ negligence per se theory of the case. Accordingly, the judgment of the
Court of Appeal to the contrary will be reversed.
In light of our conclusion that section 385(b) cannot serve to support
negligence per se instructions within the meaning of Evidence Code section 669,
we have no occasion to reach or address plaintiffs’ further claim that the decedent
was the homeowners’ employee at law under Labor Code section 2750.5, as
interpreted in State Compensation.
3

Statement of Facts and Procedural Background
Maria Dolores Ramirez and Martin Flores (plaintiffs) are the parents of the
decedent, Luis Flores.
Thomas and Vivian Nelson are homeowners. Their backyard has a number
of trees, including a eucalyptus tree over 15 feet in height. Every two or three
years, Southern California Edison has the eucalyptus tree trimmed so that its
branches do not reach the high voltage electrical lines that run above the tree. The
electrical lines are openly visible to everyone.
On January 15, 2002, Southern California Edison’s tree trimmers gave the
Nelsons notice they would trim the eucalyptus tree the next day, but they did not
do so. Several weeks later, the Nelsons orally contracted with Julian Rodriguez,
the sole proprietor of Julian Rodriguez Landscape and Tree Service, to “top” and
trim several trees in their backyard. The Nelsons had used Rodriguez four or five
times in the past to top and trim the trees. Their neighbor had used him for many
years. The Nelsons believed Rodriguez did professional work trimming trees, and
left it to his good judgment as to how, or to what height, to top and trim their trees.
Rodriguez arrived at the Nelsons’ home on February 14, 2002. He had a
crew of four men, including the decedent Luis Flores. Flores worked on the
eucalyptus tree while other crew members worked on other trees in the Nelsons’
backyard. The Nelsons neither supervised the trimming, nor did they furnish the
tools for the job.
Vivian Nelson could see Flores working about halfway up in the eucalyptus
tree from her kitchen window. He was working above his shoulders with a
polesaw. She could not tell from her kitchen window of what material the
polesaw was made.
4

Around noon, Vivian Nelson heard men shouting in Spanish. She looked
out the kitchen window, and saw men running to the eucalyptus tree. She went
out onto her deck, and saw Flores hanging in the eucalyptus tree from his safety
harness. She called her husband, who called 911.
Flores had been killed by electrocution. No one saw the accident happen.
After the accident, Vivian Nelson noticed that the polesaw Flores had been using
was made of aluminum and wood.
Plaintiffs, the decedent’s family, filed a first amended complaint against the
Nelsons alleging negligence and wrongful death. The general negligence theory
alleged (and ultimately argued to the jury) was that the Nelsons knew the high
voltage lines constituted a dangerous condition on their property, knew the utility
company responsible for the power lines in the past had trimmed the tree on which
the decedent was working when electrocuted, knew or should have known
Rodriguez and his workers were unlicensed contractors, and nonetheless
negligently failed to warn or act as would reasonable homeowners under the
circumstances in contracting with Rodriguez to trim the tree in question.
Plaintiffs’ complaint further alleged there were in effect at the time of the
decedent’s death regulations enacted pursuant to the California Occupational
Safety and Health Act of 1973 (Cal-OSHA) (see Cal. Code Regs., tit. 8,
§§ 2940.2, 2941, 2946, 2950, 2951, 3247) governing operating procedures for
work on or in proximity to overhead high voltage lines; that the homeowners were
statutory employers of the decedent within the meaning of the workers’
compensation laws; and that in that legal capacity they became liable for
violations of the Cal-OSHA regulations, proximately causing the worker’s death,
as well as for failing to secure the payment of workers’ compensation benefits for
their “employee.” (Lab. Code, § 3706.)
5

During the hearing of pretrial motions it became apparent to the trial court
and parties that the workers’ compensation laws were inapplicable to this case for
two reasons. First, the Nelsons had hired contractor Rodriguez and his workers to
perform noncommercial tree trimming services, which category of work, as a
matter of law, constitutes “household domestic service” not subject to regulation
under Cal-OSHA. (Lab. Code, § 6303, subd. (b); Fernandez v. Lawson (2003) 31
Cal.4th 31, 36-38.) Second, the decedent had not worked the required 52 hours for
the Nelsons, nor earned $100 during the 90 calendar days immediately preceding
his death, so as to bring him within the special statutory definition of an
“employee” eligible for workers’ compensation benefits, regardless of whether
defendants maintained insurance that included workers’ compensation coverage
for their “employees.” (Lab. Code, §§ 3351, subd. (d), 3352, subd. (h).) Plaintiffs
accordingly abandoned all aspects of their claims related to workers’
compensation coverage at trial. At that point, the possible status of the decedent
as the homeowners’ employee at law was a legal nonissue.
Plaintiffs, however, then identified a statute, section 385(b), which makes it
a misdemeanor for any person, either personally “or through an employee” (ibid.),
to move any tool or equipment within six feet of a high voltage overhead line, and
the applicability of section 385(b) to the case became the subject of in limine
motions.
The plaintiffs acknowledged the Nelsons’ relationship with unlicensed
contractor Rodriguez and their decedent did not give rise to Cal-OSHA regulatory
prescriptions nor qualify them for workers’ compensation death benefits. They
nonetheless argued the decedent was the Nelsons’ employee by operation of law
under Labor Code section 2750.5, and that the Nelsons were therefore vicariously
liable for any breach of the duty of care embodied in Penal Code section 385(b) in
their capacity as the decedent’s employers, giving rise to a presumption of
6

negligence. Defendant homeowners in turn took the position that since they had
hired contractor Rodriguez to perform domestic tree trimming services they were
not subject to Cal-OSHA regulatory standards; that the decedent was contractor
Rodriguez’s worker-employee, not theirs; that they neither owed the decedent a
duty of care under section 385(b), nor breached any duty of care to him under that
section; and that the duty of care owed by them to the decedent was simply one of
general negligence — that of reasonable homeowners acting under circumstances
similar to those giving rise to this fatal accident. The decedent’s status as the
homeowners’ employee at law under Labor Code section 2750.5 therefore became
pivotal to the contested claim that the homeowners should be found liable for
violating section 385(b) in their capacity as the decedent’s employers.
Testimony before the jury established that the Nelsons did not know that
Rodriguez and his workers were not licensed and had no workers’ compensation
insurance; that they did not furnish any tools to Rodriguez’s work crew, nor the
polesaw the decedent was using when electrocuted; that they believed Rodriguez
ran a professional tree trimming service and left it to his good judgment as to how
to do the work in their yard; and that the overhead high voltage lines were openly
visible to all. The plaintiffs’ safety expert further acknowledged that the license
required for tree trimming did not require the applicant to take an examination,
and that in order to obtain the required license, neither Rodriguez nor his workers
would have been required to demonstrate knowledge of any particular subject
matter pertaining to tree trimming.
The trial court refused to allow plaintiffs to refer to the decedent as the
homeowners’ employee, and refused jury instructions on section 385(b) or
plaintiffs’ proposed negligence per se theory of the case. The jury found the
Nelsons negligent under standard negligence instructions, but found such
7

negligence was not a substantial factor in the cause of the decedent’s death.
Judgment was entered for the Nelsons.
The Court of Appeal reversed the judgment, concluding the decedent was
the Nelsons’ employee at law under the penultimate paragraph of Labor Code
section 2750.5, as construed in State Compensation, supra, 40 Cal.3d 5, and that
defendants were thereby vicariously liable for violating the statutory duty of care
embodied in section 385(b), requiring jury instructions on the effect of the statute
and the presumption of negligence arising under Evidence Code section 669. The
court further rejected the Nelsons’ argument that plaintiffs did not factually prove
a violation of section 385(b). Acknowledging there was no evidence that anyone
saw the decedent move his polesaw within six feet of the power line, the court
simply found that “the jury could reasonably conclude from the fact of Flores’s
electrocution, that he moved his saw within six feet of the high voltage line. This
circumstantial evidence supports the instruction.”
Finally, the Court of Appeal rejected the Nelsons’ argument that the failure
to instruct on Penal Code section 385(b) was harmless because the jury had
already found them negligent under standard negligence instructions, without
reference to potential vicarious liability for the section 385(b) misdemeanor. The
court concluded that “without an instruction on [Penal Code section 385(b)], the
jury would not know the Nelsons were negligent in employing [Rodriguez and his
workers, including the decedent, as their employees] to move a tool within six feet
of a high voltage line. There is a reasonable probability that had the jury been so
instructed, it could have found causation.”
Discussion
The question whether an unlicensed contractor’s worker must be deemed a
homeowner-hirer’s employee under Labor Code section 2750.5 for purposes of
tort liability is neither an easy nor settled one. This court in State Compensation
8

construed the penultimate paragraph of section 2750.52 to mean that contractors
injured on the job, who prove to be unlicensed, cannot be independent contractors
in the eyes of the law, and are instead deemed employees of the party who hired
them by operation of law. (State Compensation, supra, 40 Cal.3d at p. 15.) But
that holding was reached in the specific context of determining whether, for policy
reasons, an unlicensed contractor hired to remodel a homeowner’s house, who
became injured on the job, should be deemed the homeowner’s employee at law
for purposes of rendering him eligible for workers’ compensation benefits under
the homeowner’s insurance policy. (Ibid.) The homeowner’s potential exposure
to tort liability for the contractor’s injuries was neither in issue nor considered in
State Compensation. Nor was a homeowner’s liability for injury to a worker in an
unlicensed contractor’s work crew an issue considered in State Compensation.
The question whether an unlicensed contractor or his worker, when injured
on the job, becomes the employee of the homeowner who hired him, under Labor
Code section 2750.5, for purposes of tort liability, is nonetheless not ripe for
decision here, for we conclude defendant homeowners neither had nor breached
any statutory duty of care owed to the deceased worker under section 385(b) in the
first instance. Since section 385(b) will not support a negligence per se theory of
liability on these facts within the meaning of Evidence Code section 699, the
question whether the decedent was the homeowners’ employee at law under Labor
Code section 2750.5, relevant only to bring section 385(b) into play in the case, is
moot.

2
The relevant language of the penultimate paragraph of Labor Code section
2750.5 provides, “[A]ny person performing any function or activity for which a
[contractor’s] license is required . . . shall hold a valid contractors’ license as a
condition of having independent contractor status.”
9



Plaintiffs initially proceeded on a common law negligence theory, claiming
the Nelsons were negligent for failing to keep their property in a reasonably safe
condition, and for failing to warn Rodriguez and his workers, including the
decedent, about the hazardous condition presented by the high voltage power lines
adjacent to their trees.3 Section 385(b) was not initially pled as a statutory basis
supportive of a negligence per se theory of the case. The statute only became
relevant upon plaintiffs’ further claim that defendants, as the decedent’s
employers, were vicariously liable for breach of the duty of care embodied in the
section.
Section 385(b), enacted in 1947 (Stats. 1947, ch. 1229, § 1, p. 2734), reads
in its entirety, “Any person who either personally or through an employee or
agent, or as an employee or agent of another, operates, places, erects or moves any
tools, machinery, equipment, material, building or structure within six feet of a
high voltage overhead conductor is guilty of a misdemeanor.”
Evidence Code section 669 in turn provides, in relevant part, “(a) The
failure of a person to exercise due care is presumed if: [¶] (1) He violated a statute,
ordinance, or regulation of a public entity; [¶] (2) The violation proximately

3
In Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, decided after trial in
this case, this court observed that “when there is a known safety hazard on a
hirer’s premises that can be addressed through reasonable safety precautions on
the part of the independent contractor, . . . the hirer generally delegates the
responsibility to take such precautions to the contractor, and is not liable to the
contractor’s employee if the contractor fails to do so.” (Id. at pp. 673-674.)
Kinsman goes on to hold that “the hirer as landowner may be independently liable
to the contractor’s employee, even if it does not retain control over the work, if:
(1) it knows or reasonably should know of a concealed, preexisting hazardous
condition on its premises; (2) the contractor does not know and could not
reasonably ascertain the condition; and (3) the landowner fails to warn the
contractor.” (Id. at p. 675, italics added.)

Here, testimony established the high voltage power lines in question were
openly visible from the Nelson’s property.

10



caused death or injury to person or property; [¶] (3) The death or injury resulted
from an occurrence of the nature which the statute, ordinance, or regulation was
designed to prevent; and [¶] (4) The person suffering the death or the injury to his
person or property was one of the class of persons for whose protection the statute,
ordinance, or regulation was adopted.” “ ‘While the first two elements are
normally considered questions for the trier of fact, “[t]he last two elements are
determined by the trial court as a matter of law, since they involve statutory
interpretation . . . .” ’ (Id. at p. 350.)” (Sierra-Bay Fed. Land Bank Assn. v.
Superior Court (1991) 227 Cal.App.3d 318, 336.)
“Thus, under the negligence per se doctrine . . . codified in Evidence Code
section 669, ‘violation of a statute gives rise to a presumption of negligence in the
absence of justification or excuse, provided that the “person suffering . . . the
injury . . . was one of the class of persons for whose protection the statute . . . was
adopted.” ’ (Walters v. Sloan (1977) 20 Cal.3d 199, 206-207.) In short, ‘for a
statute . . . to be relevant to a determination of negligence, not only must the injury
be a proximate result of the violation, but the plaintiff must be a member of the
class of persons the statute . . . was designed to protect, and the harm must have
been one the statute . . . was designed to prevent.’ (Stafford v. United Farm
Workers (1983) 33 Cal.3d 319, 324.) Consequently, if one is not within the
protected class or the injury did not result from an occurrence of the nature which
the transgressed statute was designed to prevent, Evidence Code section 669 has
no application. (Mark v. Pacific Gas & Electric Co. (1972) 7 Cal.3d 170, 183;
Hosking v. San Pedro Marine, Inc. (1979) 98 Cal.App.3d 98, 102; Cade v. Mid-
City Hosp. Corp. (1975) 45 Cal.App.3d 589, 596-597.)” (Sierra-Bay Fed. Land
Bank Assn. v. Superior Court, supra, 227 Cal.App.3d at p. 336.)
Section 385(b) is found in title 10 of the Penal Code, entitled “Of Crimes
Against the Public Health and Safety.” The section augments the common law
11

“reasonable person” standard of care owed to the general public with regard to the
activity of moving or operating equipment in close proximity to power lines, by
setting forth a standard of care making it a misdemeanor to move or operate tools
and equipment within six feet of a power line, and by assigning strict liability for
its violation. Plaintiffs themselves characterize section 385(b) as constituting a
“public welfare offense.”
The standard of care imposed by section 385(b), properly characterized,
amplifies the duty owed by persons using tools or operating equipment near power
lines to anyone in the world at large who might be injured by such conduct. Put
differently, had the decedent severed a power line and thereby caused injury, not
to himself, but to a bystander, he would have breached the duty of care owed to
the public, as well as the strict liability standard of care prescribed in section
385(b), and as a consequence, both he and his employer, the latter vicariously
under the express terms of the section, would become subject to misdemeanor
criminal liability for breach of the statutory duty and standard of care. What
section 385(b) does not do is create or modify a duty to oneself to exercise due
care, for “one does not have a legal duty to avoid harming himself.” (Sears v.
Morrison (1999) 76 Cal.App.4th 577, 581.)
Section 385(b) also does not create a separate duty or standard of care owed
by an employer to an employee engaged in the operation of tools or equipment in
close proximity to high voltage lines. The section does not prescribe any
particular course of conduct employers must take, or refrain from taking, in order
to ensure their employees’ safety, nor does it establish any standard of conduct
with regard to the supervision of employees engaged in such work. Indeed, an
employer could be guilty of a misdemeanor violation of section 385(b) regardless
of any steps it might have taken to ensure that its employees did not operate tools
or equipment in dangerously close proximity to power lines. In short, section
12

385(b) makes an employer vicariously criminally liable for the misdemeanor acts
of its employees in violation of the section, regardless of the employer’s conduct.
Here, even if the Nelsons were deemed to be the decedent’s employers at
law under Labor Code section 2750.5, section 385(b) did not give rise to any
special standard of conduct or duty of care owed by them 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.4 Instead, the
statute merely assigns strict criminal misdemeanor liability to employers whose
employees, while engaged in such activities, by their acts violate the statute’s strict
liability standard of care by moving a tool or piece of equipment within six feet of
a power line. Plaintiffs’ wrongful death suit against the Nelsons, in contrast, was
grounded in the common law tort of negligence, and was properly submitted to the
jury based on evidence of the Nelsons’ own allegedly negligent acts or omissions
that may have caused or contributed to the decedent’s fatal injuries. (Sierra-Bay
Fed. Land Bank Assn. v. Superior Court, supra, 227 Cal.App.3d at p. 333.)
The Court of Appeal’s contrary holding effectively made these
homeowners vicariously liable in tort to the deceased worker, whose own
misdemeanor conduct violated section 385(b) and proximately caused his fatal
injuries, without regard to the fact that the homeowners had no control over the

4
Plaintiffs point to Benard v. Vorlander (1948) 87 Cal.App.2d 436, 443, the
only reported case to have cited section 385 of the Penal Code, suggesting it
imposes “a standard of conduct on the part of an employee as well as of an
employer
.” (Id. at p. 443, italics added.) But the statement in Benard was dicta, as
it arose in a dispute between an injured construction worker and a third party
utility company that was not the injured worker’s employer. Moreover, the
accident in Benard occurred prior to the enactment of section 385, and the analysis
in that decision does not address whether section 385(b), by making employers
vicariously liable for their employees’ violations of the section, thereby sets forth
a special duty or standard of care owed by employers to their employee-workers
and intended to regulate the employer’s conduct.
13



manner in which either the hired contractor or his workers performed their job. As
tragic as this accident was, we find the homeowners breached no special duty of
care owed to unlicensed contractor Rodriguez or his workers under section 385(b),
and that the trial court therefore properly refused to instruct on plaintiffs’
negligence per se theory of liability under that section in conjunction with
Evidence Code section 669. In light of that conclusion, we have no occasion to
reach or address plaintiffs’ further claim that the decedent was the homeowners’
employee at law under Labor Code section 2750.5, which question, given our
holding, is moot.
Conclusion
The judgment of the Court of Appeal is reversed, and the matter remanded
for further proceedings consistent with the views expressed herein.
BAXTER, J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

14



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Ramirez v. Nelson
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 138 Cal.App.4th 890
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S143819
Date Filed: August 4, 2008
__________________________________________________________________________________

Court:

Superior
County: Ventura
Judge: Vincent J. O’Neill, Jr.

__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of William L. Veen, The Veen Firm, Kevin Lancaster and Mary Anne Bendotoff for Plaintiffs
and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Grant, Genovese & Baratta, Lance D. Orloff; Henderson & Borgeson, Daniel E. Henderson III and Jill L.
Friedman for Defendants and Respondents.

Crandall, Wade & Lowe and William R. Lowe for State Farm General Insurance Company as Amicus
Curiae on behalf of Defendants and Respondents.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Kevin Lancaster
The Veen Firm
711 Van Ness Avenue, Suite 220
San Francisco, CA 94102
(415) 673-4800

Lance D. Orloff
Grant, Genovese & Baratta
2030 Main Street, Suite 1600
Irvine, CA 92614
(949) 660-1600


Petition for review after the Court of Appeal reversed the judgment in a civil action. This case includes the following issue: For purposes of liability under Penal Code section 385, which makes it a misdemeanor for anyone "either personally or through an employee or agent," to move a tool or equipment within six feet of a high voltage overhead line, was an unlicensed tree trimmer hired by homeowners to trim trees, including a tree with branches within six feet of a high voltage line, considered to be an employee of the homeowners? (See Lab. Code, ?? 2750.5, 6303, subd. (b).)

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 08/04/200844 Cal. 4th 908, 188 P.3d 659, 80 Cal. Rptr. 3d 728S143819Review - Civil Appealclosed; remittitur issued

Parties
1Nelson, Thomas (Defendant and Respondent)
Represented by Lance D. Orloff
Grant Genovese et al., LLP
2030 Main Street, Suite 1600
Irvine, CA

2Nelson, Vivian (Defendant and Respondent)
Represented by Lance D. Orloff
Grant Genovese et al., LLP
2030 Main Street, Suite 1600
Irvine, CA

3Ramirez, Maria Dolores (Plaintiff and Appellant)
Represented by Kevin Lancaster
The Veen Firm, P.C.
P.O. Box 7296
San Francisco, CA

4State Farm General Insurance Company (Amicus curiae)
Represented by William R. Lowe
Crandall Wade & Lowe
9483 Haven Avenue, Suite 102
Rancho Cucamonga, CA


Disposition
Aug 4 2008Opinion: Reversed

Dockets
May 31 2006Petition for review filed
  Thomas and Vivian Nelson, respondents (40.1) Lance D. Orloff, counsel
May 31 2006Record requested
 
Jun 12 20062nd record request
 
Jun 14 2006Received Court of Appeal record
 
Jun 20 2006Answer to petition for review filed
  Maria D. Ramirez et al., appellants Mary Anne Bendotoff, Counsel
Jul 19 2006Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Corrigan, JJ.
Jul 27 2006Certification of interested entities or persons filed
  Thomas and Vivian Nelson, respondent by Lance D. Orloff, counsel
Aug 2 2006Certification of interested entities or persons filed
  Attorney Mary Anne Bendotoff, for Appellant
Aug 4 2006Request for extension of time filed
  to October 3, 2006 to file respondent's opening brief on the merits by Lance D. Orloff
Aug 9 2006Extension of time granted
  to September 18, 2006 to file respondent's opening brief on the merits.
Sep 12 2006Request for extension of time filed
  to and including October 18, 2006 to file Respondents' Opening Brief on the Merits.
Sep 13 2006Extension of time granted
  On application of respondents and good cause appeairng, it is ordered that the time to serve and file the Respondents' Opening Brief on the Merits is extended to and including October 18, 2006. No further extensions of time are contemplated.
Oct 19 2006Opening brief on the merits filed
  Respondents Thomas and Vivian Nelson [rule 40.1] Attorney Lance D. Orloff
Nov 13 2006Request for extension of time filed
  appellants, Maria D. Ramirez, et. al., to file the answer brief on the merits to December 18, 2006.
Dec 11 2006Request for extension of time filed
  Appellants, Ramirez, et.al., asking to Jan. 18, 2007 to file the answer brief on the merits.
Dec 18 2006Extension of time granted
  On application of appellants and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extened to and including January 18, 2007. No further extensions of time are contemplated.
Jan 17 2007Answer brief on the merits filed
  Appellants, Maria Dolores Ramirez, et.al. by counsel, Kevin Lancaster.
Jan 22 2007Received:
  notice of errata (california rule of court 8.50)
Jan 29 2007Request for extension of time filed
  reply brief/merits to 3-8-07 Respondents Thomas and Vivian Nelson
Feb 5 2007Extension of time granted
  On application of respondents and good cause appearing, it is ordered that the time to serve and file respondents' reply brief on the merits is hereby extended to and including March 8, 2007. No further extensions of time are contemplated.
Mar 9 2007Reply brief filed (case fully briefed)
  Thomas and Vivian Nelson, et al., (8.25) Lance D. Orloff, counsel
Mar 29 2007Received application to file Amicus Curiae Brief
  from State Farm General Insurance Company in support of respondents. (appln. & brief under separate cover) William R. Lowe, counsel
Apr 5 2007Permission to file amicus curiae brief granted
  The application of State Farm General Insurance Company for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Apr 5 2007Amicus curiae brief filed
  State Farm General Insurance Company in support of respondents. by counsel, William R. Lowe.
Apr 24 2007Response to amicus curiae brief filed
  Maria Dolores Ramirez to AC Brief filed by State Farm General Insurance Company. By Kevin Lancaster, counsel
Dec 31 2007Change of contact information filed for:
  Tthe Veen Firm, P.C. , to P.O. Box 7296, San Francisco, CA. 94120-7296.
Apr 30 2008Case ordered on calendar
  to be argued on Tuesday, June 3, 2008, at 2:00 p.m., in Los Angeles
Jun 3 2008Cause argued and submitted
 
Aug 1 2008Notice of forthcoming opinion posted
 
Aug 4 2008Opinion filed: Judgment reversed
  The judgment of the Court of Appeal is reversed, and the matter remanded for further proceedings consistent with the view expressed herein. Opinion by Baxter, J. -----joined by George, C.J., Kennard, Werdegar, Chin, Moreno & Corrigan, JJ.
Sep 4 2008Remittitur issued (civil case)
 

Briefs
Oct 19 2006Opening brief on the merits filed
 
Jan 17 2007Answer brief on the merits filed
 
Mar 9 2007Reply brief filed (case fully briefed)
 
Apr 5 2007Amicus curiae brief filed
 
Apr 24 2007Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Jan 9, 2009
Annotated by diana teasland

Written by Mark Melahn

B. Procedural history and court decisions
1. Ventura Country Superior Court
Flores’s parents, Maria Dolores Ramirez and Martin Flores, sued the Nelsons in Ventura County Superior Court, advancing—among other claims—two theories of negligence: (1) common law negligence, based on the Nelsons’ failure to warn Flores or his employer about the dangerous condition created by the exposed power lines on their property; and (2) a presumption of negligence per se, created by the Nelsons’ violation of alleged statutory duties. The trial court refused to instruct the jury on the latter theory of negligence per se, but gave the jury standard common law negligence instructions. The jury found the Nelsons negligent under the common law, but decided that the Nelsons’ negligence did not substantially cause Flores’s death. The trial court thus entered judgment for the Nelsons.

2. Court of Appeal
The Court of Appeal reversed the Nelsons’ judgment, finding that the trial court erred in failing to instruct the jury on negligence per se. The appeals court decided that the Nelsons’ had vicariously violated California Penal Code § 385(b), which makes it a misdemeanor for any person— personally “or through an employee”—to move any tool or equipment within six feet of a high voltage overhead line. Because the appeals court found, further, that Flores was the Nelsons’ employee under California Labor Code § 2750.5, it held the Nelsons liable for Flores’s violation of § 385(b). The Nelsons’ vicarious statutory violation, the court held, entitled the plaintiffs to instruct the jury on a presumption of negligence per se under California Evidence Code § 669.

3. Supreme Court
The Supreme Court reviewed the two issues of statutory interpretation decided by the Court of Appeal: (1) whether § 385(b) establishes a statutory duty of care owed by the Nelsons to Flores, and (2) whether Flores was the Nelsons’ employee under California Labor Code § 2750.5, such that Flores’s violation of § 385(b) could be imputed to the Nelsons to support instructing the jury on a presumption of negligence per se. The Supreme Court held, on the first question, that the Nelsons owed no duty of care to Flores under § 385(b). As such, the Court did not reach the second question, whether Flores was legally the Nelsons’ employee. The Court reversed the contrary holding of the Court of Appeal, and remanded for further proceedings consistent with its opinion.

VIII. Headnotes: Holdings and other points of law, with associated facts and citations
Holding 1: [A] Defendant homeowners neither had nor breached any statutory duty of care owed to the deceased worker under Penal Code section 385(b) [9], and [B] the trial court therefore properly refused to instruct on plaintiffs’ negligence per se theory of liability under that section in conjunction with Evidence Code section 669 [14]
[Subholding B, re: Evidence Code section 669] Evidence Code section 669 provides, in relevant part, “(a) The failure of a person to exercise due care is presumed if: [¶] (1) He violated a statute, ordinance, or regulation of a public entity; [¶] (2) The violation proximately caused death or injury to person or property; [¶] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [¶] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” [10-11] [Statute quoted: CAL. EVID. CODE § 669]
the first two elements are normally considered questions for the trier of fact [11] [Case quoted: Sierra-Bay Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 336].
 the last two elements are determined by the trial court as a matter of law, since they involve statutory interpretation [11] [Case quoted: Sierra-Bay Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 336].
[Re: Evidence Code section 669, subsections (3) and (4) (questions of law)]: if one is not within the protected class or the injury did not result from an occurrence of the nature which the transgressed statute was designed to prevent, Evidence Code section 669 has no application [11] [Case quoted: Sierra-Bay Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 336 (citing Mark v. Pacific Gas & Electric Co. (1972) 7 Cal.3d 170, 183; Hosking v. San Pedro Marine, Inc. (1979) 98 Cal.App.3d 98, 102; Cade v. Mid-City Hosp. Corp. (1975) 45 Cal.App.3d 589, 596-597.)]
[Re: Subsection (3)] the harm must have been one the statute . . . was designed to prevent [11] [Case quoted: Stafford v. United Farm Workers (1983) 33 Cal.3d 319, 324]
[Re: Subsection (4)] violation of a statute gives rise to a presumption of negligence in the absence of justification or excuse, provided that the “person suffering . . . the injury . . . was one of the class of persons for whose protection the statute . . . was adopted.” [11] [Case quoted: Walters v. Sloan (1977) 20 Cal.3d 199, 206-207].
[Subholding A, re: Penal Code section 385(b) creates no duty of care running from the Nelsons to Flores] Penal Code section 385(b) reads in its entirety, “Any person who either personally or through an employee or agent, or as an employee or agent of another, operates, places, erects or moves any tools, machinery, equipment, material, building or structure within six feet of a high voltage overhead conductor is guilty of a misdemeanor.” [10] [Statute quoted: CAL. PENAL CODE § 385(b)]
 Section 385(b) augments the common law “reasonable person” standard of care owed to the general public with regard to the activity of moving or operating equipment in close proximity to power lines [11-12]
385(b) articulates a standard of care, and assigns strict liability for its violation [12]
Plaintiffs themselves characterize section 385(b) as constituting a “public welfare offense.” [12]
 The standard of care imposed by section 385(b) amplifies the duty owed by persons using tools or operating equipment near power lines to anyone in the world at large who might be injured by such conduct. [12]
Section 385(b) does not create or modify a duty to oneself to exercise due care; one does not have a legal duty to avoid harming himself [12] [Case quoted: Sears v. Morrison (1999) 76 Cal.App.4th 577, 581]
Section 385(b) also does not create a separate duty or standard of care owed by an employer to an employee engaged in the operation of tools or equipment in close proximity to high voltage lines [12]
 385(b) makes an employer vicariously criminally liable for the misdemeanor acts of its employees in violation of the section, regardless of the employer’s conduct [13]
385(b) does not prescribe any particular course of conduct employers must take, or refrain from taking, in order to ensure their employees’ safety [12]
nor does it establish any standard of conduct with regard to the supervision of employees engaged in such work [12]
 [Application to this case]
decedent’s own misdemeanor conduct violated section 385(b) and proximately caused his fatal injuries [13]
the homeowners had no control over the manner in which either the hired contractor or his workers performed their job
[Supporting facts]
 The Nelsons had used Rodriguez four or five times in the past to top and trim the trees. Their neighbor had used him for many years. The Nelsons believed Rodriguez did professional work trimming trees, and window of what material Flores’s polesaw was made [4]
[*Second question presented not reached*] In light of [Holding 1], we have no occasion to reach or address plaintiffs’ further claim that the decedent was the homeowners’ employee at law under Labor Code section 2750.5, which question, given our holding, is moot. [14]