IN THE SUPREME COURT OF CALIFORNIA
MIGUEL FERNANDEZ,
Plaintiff and Appellant,
S107521
v.
Ct.App. 2/7 B153949
TRUMAN W. LAWSON, JR., et al.,
Los Angeles County
Defendants and Appellants.
Super. Ct. No. KC034591
Is a homeowner who hires someone to trim a tree in his yard required to
comply with the California Occupational Safety and Health Act of 1973 (OSHA)
(Lab. Code, § 6300 et seq.1) tree trimming regulations? The question is presented
under the somewhat unusual circumstances of this case.
Eliseo Lascano, doing business as Anthony’s Tree Service (ATS), offered
and was hired to trim an approximately 50-foot palm tree in defendants Truman
and Gaile Lawsons’ (Lawson) yard for $450. Lawson was not aware a
contractor’s license was required to trim a tree measuring 15 feet or more (Bus. &
Prof. Code, § 7026.1, subd. (c)), and in fact, neither ATS nor plaintiff Miguel
Fernandez was licensed. Unless Fernandez is estopped from denying ATS’s
1
All statutory references are to the Labor Code unless otherwise indicated.
1
independent contractor status because of any licensing misrepresentations Lascano
may have made to Lawson, the parties assume Fernandez is deemed Lawson’s
employee by operation of Labor Code section 2750.5.2 That is because ATS was
an unlicensed contractor and the tree trimming at issue required a license. (State
Compensation Ins. Fund v. Workers’ Comp. Appeals Bd. (1985) 40 Cal.3d 5, 12-
16 [Lab. Code, § 2750.5 makes an unlicensed contractor who is performing work
for which a license is required an employee of the hirer of the unlicensed
contractor, for purposes of workers’ compensation].)
We therefore confront two issues in this case. First, must a homeowner, who
is an employer solely by virtue of section 2750.5, comply with OSHA tree
trimming regulations, or is such tree trimming a “household domestic service”
excluded from OSHA? The Courts of Appeal are in conflict on this issue.
Second, may an unlicensed contractor’s employee be estopped from claiming that
he is the employee of the homeowner if he personally made no misrepresentations
concerning the contractor’s license status?
The Court of Appeal concluded tree trimming was not a household domestic
service under the circumstances of this case, and that an unlicensed contractor’s
2
Section 2750.5 provides in part: “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 [certain] factors: [¶] [¶] [¶] 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.”
2
employee may be estopped by the contractor’s licensing misrepresentations. We
disagree on the first issue, and hence need not address the second.
I. FACTUAL AND PROCEDURAL BACKGROUND
Fernandez, who had worked for ATS for two years and had at least four
years’ experience trimming trees, was assigned to trim Lawson’s tree. Fernandez
fell from the tree during the trimming, sustaining serious injury. He sought
workers’ compensation benefits from Lawson. Lawson’s homeowner’s insurer,
not a party to this action, denied the claim on the ground Fernandez had not
worked 52 hours and earned $100 in the 90 days preceding the injury, and thus did
not fall within the statutory definition of an “employee” eligible for benefits.
(§§ 3351, subd. (d), 3352, subd. (h).)
Fernandez then sued Lawson for damages, ultimately asserting as relevant
here violation of various safety regulations enacted pursuant to OSHA.3 Lawson
3
The tree work, maintenance, or removal regulations provide in part that
“An accident prevention program shall be inaugurated and maintained”; “Each
work location where tree trimming . . . is to be done, shall be under the direction
of a qualified tree worker”; “Employees shall be trained and instructed in the
hazards involved in their job assignments . . . [and] [s]uch training shall be
documented by the employer”; “A job briefing shall be conducted by a qualified
tree worker before each work assignment is begun”; “Prior to use, all equipment
and safety devices shall be inspected”; “The employer shall establish rescue
procedures and provide training in first-aid, cardiopulmonary resuscitation (CPR)
and aerial rescue. First-aid and CPR training shall be performed by a certified
instructor”; “Prior to climbing the tree, the tree shall be visually inspected to
determine the safest method of entry into the tree”; “The climbing line must be
crotched as soon as practicable after the employee is aloft, and a taut line-hitch
tied and checked”; “The climbing rope shall be passed around the main leader or a
major upright branch of the tree as high as necessary using branches with a wide
crotch to prevent any binding of the safety rope. The crotch selected for tying-in
shall be over the work area as nearly as possible, but located in such a way that a
slip or fall would not permit the employee to come in contact with any electric
(footnote continued on next page)
3
moved for and was granted summary judgment on the ground that OSHA did not
apply to noncommercial tree trimming at a private residence.
The Court of Appeal reversed, holding the “trimming of Lawson’s 50-foot
palm tree” was not a household domestic service “as a matter of law.” It expressly
disagreed with Rosas v. Dishong (1998) 67 Cal.App.4th 815, 826 (Rosas)
(“Legislature intended to exclude private residence yard maintenance work,
including tree trimming, from OSHA coverage under the ‘household domestic
service’ exclusion”). To determine whether tree trimming constituted “household
domestic service” within the meaning of section 6303, and was thereby excluded
from OSHA, the Court of Appeal reasoned, “the focus should be on the degree of
skill or expertise involved and the training and competence required to safely and
successfully perform the task. [¶] . . . [T]he test for whether a tree trimming
qualifies as a household domestic service should be whether an average member
of the household has the skill and competence to undertake the activity. Under
this test, the task of tree trimming (depending on the size and type of the tree and
number of trees involved) may sometimes, but not always, qualify as a household
domestic service. Ultimately, determining whether an average homeowner
possesses the skill and competence to trim a particular tree or trees is a question of
fact which should be decided on a case-by-case basis.” The court further held
(footnote continued from previous page)
conductor, equipment or other hazard. The rope shall be passed around the main
leader or an upright branch, using a limb as a stop”; and “When working aloft,
employees shall be required to wear tree workers’ saddles and tie-in with an
approved safety strap or rope.” (Cal. Code Regs., tit. 8, §§ 3421, subds. (a)-(e),
(j), 3427, subd. (a)(1)-(4); see generally id., §§ 3420-3428.)
4
there were triable issues of fact as to whether Fernandez was bound by any alleged
misrepresentation of Lascano concerning ATS’s license status.
II. DISCUSSION
We first consider whether Lawson was required to comply with OSHA tree-
trimming regulations as Fernandez’s statutory employer. (See § 6304.5.)
OSHA requires that “[e]very employer shall furnish employment and a place
of employment that is safe and healthful for the employees therein.” (§ 6400,
subd. (a).) “Employment” is defined as including “the carrying on of any trade,
enterprise, project, industry, business, occupation, or work . . . in which any
person is engaged or permitted to work for hire, except household domestic
service.” (§ 6303, subd. (b), italics added.) The issue here is whether, as a matter
of law, a tree trimmer hired by a homeowner for a noncommercial purpose is
engaged in “household domestic service.”
OSHA does not define “household domestic service.” Nor does the relevant
legislative history offer any guidance on the meaning of the phrase. While the
current OSHA was enacted in 1973, it traces its roots to the 1913 “[W]orkmen’s
compensation, insurance and safety act.” (Stats. 1913, ch. 176, § 1, p. 279.) In
this act, “employment” excluded “persons [who] are employed solely in . . .
household domestic services.” (Stats. 1913, ch. 176, § 51, p. 305.) This same
phrase, “household domestic service,” consistently appears in all subsequent
versions of the “employment” definition. (Stats. 1917, ch. 586, § 33, p. 861;
Stats. 1919, ch. 471, § 10, p. 923; Stats. 1923, ch. 90, § 1, pp. 165-166;
Stats. 1929, ch. 249, § 1, p. 494; Stats. 1937, ch. 90, § 6303, p. 306; Stats. 1973,
ch. 993, § 46, p. 1927; Stats. 1978, ch. 1248, § 1, p. 4060; Stats. 2001, ch. 807,
§ 1; Stats. 2002, ch. 368, § 1.)
5
Generally speaking, “household domestic service” is understood to include
work both within and outside a residence. (See Catto v. Plant (Conn. 1927) 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.” (Cal. Code Regs., tit. 8, § 11150, subd. 2(I).)
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 . . . .” (Stats. 1973, ch.
993, § 107, pp. 1954-1955.) 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
6
“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.
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, supra, 67 Cal.App.4th at p. 826.)
Imputing OSHA liability to a homeowner under the circumstances of this case
violates basic notions of fairness and notice.
Lawson asserts that of the 24 states that have federal Occupational Safety and
Health Administration approved state plans (including California), “no state has
published an opinion finding that a homeowner who is not conducting business out
of his home is nonetheless responsible for complying with OSHA in the process of
7
home construction, work, or maintenance.”4 Fernandez does not argue otherwise,
but simply states none of the cases cited by Lawson involve a homeowner being
deemed an employer as the statutory consequence of hiring an unlicensed
contractor. Here, of course, we are addressing the specific meaning of
“employment” under OSHA, not the more general definition of employer under
section 2750.5.
The Court of Appeal concluded that “the test for whether a tree trimming
qualifies as a household domestic service should be whether an average member
of the household has the skill and competence to undertake the activity.”
Fernandez argues this is a “rational and predictable test for determining whether
tree trimming is or is not subject to the ‘household domestic service’ exclusion
under OSHA.” Of course, nothing could be further from the truth. Rather, the
Court of Appeal’s approach creates massive uncertainty for a homeowner as to
when OSHA would apply. Homeowners are in no position to assess whether they
are an “average” homeowner in terms of their tree trimming competence.
Fernandez argues that tree trimming cannot be considered a household
domestic service because there are safety regulations concerning tree trimming.
Even the Court of Appeal below, which otherwise ruled in Fernandez’s favor,
rejected this argument. As it observed, “[t]ree trimming services are provided in a
wide variety of business, commercial and public contexts. OSHA regulations for
tree trimming are therefore necessary to govern instances where such services are
provided in contexts other than for a private homeowner. Consequently, the fact
4
“The Connecticut, New Jersey and New York plans cover public sector
(state & local government) employment only” and hence are unlikely to involve
homeowners. (U.S. Dept. Labor, Occupational Safety & Health Admin.
<http://www.osha.gov/fso/osp/index.html> [as of July 7, 2003].)
8
such regulations exist does not automatically mean tree trimming must always fall
outside OSHA’s ‘household domestic service’ exclusion.”
Similarly, Fernandez argues that because a contractor’s license is required to
trim a tree 15 feet or more in height, trimming a 50-foot tree cannot be a
household domestic service. A contractor’s license is generally required for a
variety of activities, including maintaining or servicing air conditioning, heating,
or refrigeration equipment, or installing carpet. (Bus. & Prof. Code, §§ 7026.1,
subd. (a), 7026.3, 7028, subd. (a).) It is not obvious we would conclude as a
matter of law that such activities could never be considered household domestic
services.
Having concluded Lawson is not subject to OSHA for noncommercial tree
trimming, we need not reach the issue of whether Fernandez may be estopped
from denying ATS’s independent contractor status because of any licensing
misrepresentations on the part of Lascano.
DISPOSITION
The judgment of the Court of Appeal is reversed and the case remanded to
that court for proceedings consistent with this opinion.
BROWN, J.
WE CONCUR:
GEORGE,
C.J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
MORENO,
J.
9
1
CONCURRING OPINION BY BROWN, J.
Based on our decision in State Compensation Ins. Fund v. Workers’ Comp.
Appeals Bd. (1985) 40 Cal.3d 5 (State Compensation), the parties in this case
assume plaintiff Miguel Fernandez is deemed the employee of homeowners
Thomas and Gaile Lawson (Lawson) by operation of Labor Code1 section 2750.52
1
All statutory references are to the Labor Code unless otherwise indicated.
2
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:
“(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
(footnote continued on next page)
1
because Anthony’s Tree Service (ATS) was unlicensed, and Fernandez was
performing work for ATS which required a contractor’s license. Were the
question before us today, I would conclude State Compensation was wrongly
decided, and section 2750.5 has no such effect.
BACKGROUND
Section 2750.5 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. (§ 2750.5.) Proof
of independent contractor status includes satisfactory proof of the factors
delineated in subdivisions (a), (b), and (c). The penultimate paragraph in section
2750.5 provides, “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
(footnote continued from previous page)
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.”
2
Business and Professions Code shall hold a valid contractors’ license as a
condition of having independent contractor status.”
In State Compensation, supra, 40 Cal.3d 5, a ranch owner hired an
unlicensed contractor (id. at p. 8) to “construct a bedroom and a bath in the attic of
his ranch house with a stairway providing access” (id. at p. 7). The contractor fell
from a scaffold and was rendered a quadriplegic. (Id. at p. 8.) The ranch owner,
apparently not a party to the action, appeared by separate counsel in the review
proceeding and argued the contractor was an employee. Similarly, in a personal
injury action brought against him by the contractor, the ranch owner asserted that
workers’ compensation was the contractor’s exclusive remedy. (Id. at p. 7, fn. 1.)
State Compensation Insurance Fund, the ranch owner’s workers’ compensation
insurer, argued the penultimate paragraph of section 2750.5 was only applicable
when the worker was seeking independent contractor status and not when the
worker was seeking employee status. (State Compensation, at p. 8.)
This court disagreed, in particular concluding “the penultimate paragraph
establishes a fourth factor necessary to rebut the presumption” that a worker is an
employee, not an independent contractor. (State Compensation, supra, 40 Cal.3d
at p. 12.) “[B]y stating that a license is a condition of the status, the Legislature
has unequivocally stated that the person lacking the requisite license may not be
an independent contractor.” (Id. at p. 15.) Thus, while the contractor arguably
otherwise satisfied the test for being an independent contractor, because he was
unlicensed he was held to be an employee entitled to workers’ compensation
benefits.3 (State Compensation, at pp. 7-8, 12-16.)
3 (See,
e.g.,
Hunt Bldg. Corp. v. Bernick (2000) 79 Cal.App.4th 213, 216,
220 [general contractor liable for unlicensed subcontractors’ employees’ unpaid
(footnote continued on next page)
3
Justice Mosk filed a concurring opinion, expressing his “concern about the
unfair burden effectively imposed on a class of hirers” by Labor Code section
2750.5. (State Compensation, supra, 40 Cal.3d at p. 16 (conc. opn. of Mosk, J.).)
He noted that “Insurance Code section 11590 requires comprehensive personal
liability insurance policies to contain a provision for compensation insurance for
‘employees,’ as that term is defined in Labor Code section 3351, subdivision (d);
[section 3352, subdivision (h)] however, expressly excludes, among others, any
person employed for less than 52 hours during the 90 calendar days immediately
preceding the date of the injury [citation]. Thus, policies drawn to incorporate
[Insurance Code] section 11590 effectively fail to provide compensation insurance
in the apparently common situation in which workers are engaged in fairly routine
and minor repairs rather than major capital improvements.” (State Compensation,
at pp. 17-18.) Justice Lucas dissented, adopting the Court of Appeal opinion
below, and concluding the language in Labor Code section 2750.5’s penultimate
paragraph simply meant that the contractor (as opposed to the ranch owner) could
(footnote continued from previous page)
unemployment insurance and other contributions and withholding taxes by
operation of § 2750.5]; Rosas v. Dishong (1998) 67 Cal.App.4th 815, 817, 821-
823, 826 [tree trimmer who worked too few hours to qualify for workers’
compensation benefits still an employee by operation of § 2750.5 for purposes of
tort liability; homeowner not liable under California’s Occupational Safety and
Health Act (OSHA) (§ 6300 et seq.) due to “household domestic service”
exception]; Foss v. Anthony Industries (1983) 139 Cal.App.3d 794, 797-800
[§ 2750.5 applies in tort actions by third parties against hirer of unlicensed
contractor regarding torts by unlicensed contractor’s employee, but licensing
requirement not retroactive]; but see Fillmore v. Irvine (1983) 146 Cal.App.3d
649, 657 [Lab. Code, § 2750.5 does not apply to determinations of whether a
person is an employee or independent contractor under Bus. & Prof. Code, § 7031,
which in general bars actions to collect compensation by unlicensed contractors].)
4
not assert independent contractor status unless he had a contractor’s license.
(State Compensation, at pp. 18-23 (dis. opn. of Lucas, J.).)
DISCUSSION
In State Compensation, supra, 40 Cal.3d 5, we did not consider the broader
implications of concluding the homeowner was an employer under section 2750.5,
perhaps because we were only focusing on workers’ compensation coverage, and
the homeowner had that coverage available. Here, while Lawson paid premiums
for workers’ compensation coverage, Fernandez fell outside the coverage
provisions of workers’ compensation by virtue of the number of hours worked.
Therefore, unlike the homeowner in State Compensation, whose “employee” came
within the coverage provisions of workers’ compensation, and workers’
compensation was his exclusive remedy, Lawson is subject to civil liability as an
employer.
Of course, the ramifications of placing employer status on unsuspecting
homeowners hiring workers to do a discrete task the homeowner might never
suspect would require a contractor’s license are dramatic. Presumably, in the
absence of any exclusion under the applicable law, homeowners become
potentially liable not only for OSHA compliance, but COBRA health coverage
benefits, sexual harassment claims, collective bargaining agreement enforcement,
and a myriad of other obligations they are ill equipped to anticipate or comply
with. It seems unlikely the Legislature intended this result when it enacted section
2750.5.
Rather, it appears Justice Lucas and the Court of Appeal in State
Compensation were correct that the language in section 2750.5’s penultimate
5
paragraph simply means that the contractor, as opposed to the homeowner, is
precluded from asserting independent contractor status if he is not licensed.4
As can be seen, section 2750.5, subdivision (c) already includes “holding a
license pursuant to the Business and Professions Code” as one of the many
cumulative factors to consider in determining whether the worker’s independent
contractor status is bona fide. It seems unlikely the Legislature nevertheless
singled out this factor as a kind of “trump card,” the absence of which renders a
worker an employee despite any other evidence of independent contractor status.
Moreover, if the Legislature had intended the penultimate paragraph to be part of
4
Under this approach, Eliseo Lascano, doing business as ATS, is initially
presumed to be Lawson’s employee. (§ 2750.5 [“There is a rebuttable
presumption affecting the burden of proof that a worker performing services for
which a license is required . . . is an employee rather than an independent
contractor”].) However, that presumption is rebutted by overwhelming evidence
that Lascano satisfied the criteria for being an independent contractor delineated in
subdivisions (a), (b), and (c). For example, Lascano had “the right to control and
discretion as to the manner of performance of the contract for services,” was
“customarily engaged in an independently established business,” had a
“substantial investment other than personal services in the business,” held himself
“out to be in business for [him]self,” “bargain[ed] for a contract to complete a
specific project for compensation by project rather than by time,” exercised
“control over the time and place the work [was] performed,” “suppl[ied] the tools
or instrumentalities used in the work,” “hir[ed] employees,” “perform[ed] work
that [was] not ordinarily in the course of the principal’s work,” and “perform[ed]
work that require[d] a particular skill.” (§ 2750.5, subds. (a), (b), (c).)
Furthermore, under this approach, Fernandez is presumed an employee of
Lascano, and that presumption is not rebutted by the criteria in paragraphs (a), (b),
or (c). (§ 2750.5 [“There is a rebuttable presumption affecting the burden of proof
that a worker . . . who is performing such services for a person who is required to
obtain such a license is an employee rather than an independent contractor”].)
Neither Lascano nor Fernandez is rendered an employee of Lawson by virtue of
the penultimate paragraph of section 2750.5. Rather, this paragraph simply means
that the contractor is precluded from asserting independent contractor status if he
is not licensed.
6
the criteria for rebutting the presumption a worker was an employee, it presumably
would have made having a license factor (d), along with the other three factors,
not listed it in a different paragraph. Further, it would have deleted the reference
in subdivision (c) to licensing.
Along these lines, the legislative history of section 2750.5 states, “Three
basic factors would have to be proved to show independent contractor status under
this bill . . . .” (Sen. Industrial Relations Com., Analysis of Assem. Bill No. 3429
(1977-1978 Reg. Sess.) Aug. 14, 1978, p. 2, italics added.) The analysis then
summarizes the factors currently in section 2750.5, subdivisions (a) through (c).
(Analysis of Assem. Bill No. 3429, p. 2.) “Finally, this bill would require any
contractor performing any function or activity for which a license is required from
the Contractors’ State Licensing Board to hold the required license as a condition
of having independent contractor status.” (Ibid.) In addition, the legislative
history shows the bill was originally amended to read, “In addition to subdivisions
(a), (b) and (c), any person claiming an independent contractor status shall have, in
his possession, a valid contractor’s license issued pursuant to the provisions
contained in Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code.” (Assem. Bill No. 3429 (1977-1978 Reg. Sess.)
as amended Aug. 7, 1978.)
Indeed, the legislative history of section 2750.5 indicates the Legislature was
concerned contractors were improperly characterizing those they hired as
independent contractors instead of employees and thereby denying them union
scale pay, and workers’ compensation and unemployment insurance benefits.
(Enrolled Bill Rep. on Assem. Bill No. 3429 (1977-1978 Reg. Sess.) Sept. 12,
1978, p. 1 [“The need for this legislation stems from work agreements in the
construction industry that tend to undermine collective bargaining agreements by
7
using the guise of independent contractor to cover work that is normally done by
employees, thus avoiding payment of union scale, workers compensation
insurance and fringe benefits”]; Sen. Floor Statement, Assem. Bill No. 3429
(1977-1978 Reg. Sess.) p. 1 [“This legislation is needed because of the huge
increase in the number of contractors who are treating their employees as
independent subcontractors in order to illegally escape payment of employee
U[nemployment] I[nsurance] taxes, benefits, workers’ compensation premiums,
and other costs associated with employees. This situation is totally unfair and is
competitively killing the honest contractor who plays by the rules”].) There is no
indication in the legislative history the Legislature intended section 2750.5 to
apply to a homeowner who hires an unlicensed contractor. (Sen. Floor Statement,
Assem. Bill No. 3429 (1977-1978 Reg. Sess.) p. 2 [“This bill only covers
construction workers and doesn’t cover other employers or employees”].) Indeed,
a contractor or construction worker would reasonably be expected to be familiar
with licensing and safety law requirements, whereas the average homeowner
would not.
Moreover, the State Compensation analysis leads to several anomalous
results. As alluded to by Justice Lucas in his State Compensation dissent, in
concluding the homeowner is an employer, we are providing either workers’
compensation or tort recovery to a worker who committed a misdemeanor in
performing unlicensed contracting work, but not providing such coverage or
recovery to a contractor who actually complied with the law. (State
Compensation, supra, 40 Cal.3d at p. 21.) This is “inconsistent with the purpose
of the licensing laws.” (Ibid.) Similarly, we create the ironic situation that while
the homeowner, Lawson, did not have to pay Lascano, doing business as
Anthony’s Tree Service, because he was unlicensed (Bus. & Prof. Code, § 7031),
8
Lawson is deemed his employer under section 2750.5, with concomitant workers’
compensation or tort liability, because Lascano was unlicensed. And, most
important, despite the fact that the legislative history of section 2750.5 never hints
the statute would apply to a homeowner, we expose unsuspecting homeowners to
a panoply of obligations the homeowner is likely unaware of and with which they
have little ability to comply. This cannot be a proper interpretation of section
2750.5, and the Legislature should act promptly, by deleting or amending the
penultimate paragraph of section 2750.5, to restore an apparently straightforward
intent which has been undermined by the section’s garbled syntax.
BROWN, J.
I CONCUR:
BAXTER,
J.
9
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion Fernandez v. Lawson
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S107521Date Filed: July 7, 2003
__________________________________________________________________________________
Court:
SuperiorCounty: Los Angeles
Judge: Peter Joseph Meeka
__________________________________________________________________________________
Attorneys for Appellant:
Homampour & Associates and Arash Homampour for Plaintiff and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Ropers, Majeski, Kohn & Bentley, Michael J. Brady, Elisa Nadeau; Wait & Childs and James W. Colfer
for Defendants and Respondents.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Arash HomampourHomampour & Associates
8383 Wilshire Boulevard, Suite 830
Beverly Hills, CA 90211
(323) 658-8077
Michael J. Brady
Ropers, Majeski, Kohn & Bentley
1001 Marshall Street
Redwood City, CA 94063
(650) 364-8200
2
| Date: | Docket Number: |
| Mon, 07/07/2003 | S107521 |
| 1 | Lawson, Truman (Defendant and Respondent) Represented by Michael J. Brady Ropers, Majeski, Kohn & Bentley 1001 Marshall St. Redwood City, CA |
| 2 | Lawson, Gaile (Defendant and Respondent) |
| 3 | Fernandez, Miguel (Plaintiff and Appellant) Represented by Arash Homampour Attorney at Law 8383 Wilshire Blvd., Suite 830 Beverly Hills, CA |
| Disposition | |
| Jul 7 2003 | Opinion: Reversed |
| Dockets | |
| Jun 14 2002 | Petition for review filed by counsel for resps |
| Jun 19 2002 | Received Court of Appeal record one doghouse |
| Jun 28 2002 | Answer to petition for review filed by counsel for appellant (M. Fernandez) |
| Jul 24 2002 | Time extended to grant or deny review to and including September 12, 2002. |
| Aug 14 2002 | Petition for review granted; issues limited (civil case) The issues to be briefed and argued shall include those raised in the petition and in appellant's answer. (Cal Rules of Court, rule 29.2(a).) Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ. |
| Aug 28 2002 | Certification of interested entities or persons filed by counsel for respondent |
| Aug 30 2002 | Certification of interested entities or persons filed by counsel for appellant |
| Sep 13 2002 | Application to file over-length brief filed by counsel for respondent (T. Lawson, Jr. et al.) Request to File Exhibits in excess of page limit. |
| Sep 13 2002 | Received: Over-length Opening Brief on the Merits from counsel for respondent. |
| Sep 17 2002 | Opening brief on the merits filed with permission by counsel for (respondent Truman Lawson, Jr.) including exhibits. |
| Oct 22 2002 | Answer brief on the merits filed by counsel for plaintiff (Miguel Fernandez) (40k) |
| Nov 5 2002 | Reply brief filed (case fully briefed) by counsel for respondents T. Lawson, et al. |
| Apr 9 2003 | Case ordered on calendar 5-8-03, 9am, S.F. |
| May 8 2003 | Cause argued and submitted |
| May 12 2003 | Received letter from: counsel for aplt |
| Jul 7 2003 | Opinion filed: Judgment reversed and remanded OPINION BY: Brown, J. --- joined by George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, JJ. CONCURRING OPINION BY: Brown, J. --- joined by Baxter, J. |
| Aug 7 2003 | Remittitur issued (civil case) |
| Aug 12 2003 | Note: Records returned to CA 2/7 |
| Aug 20 2003 | Received: Receipt for remittitur from CA 2/7 |
| Briefs | |
| Sep 17 2002 | Opening brief on the merits filed |
| Oct 22 2002 | Answer brief on the merits filed |
| Nov 5 2002 | Reply brief filed (case fully briefed) |
