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Cortez v. Abich

September 2, 2009


APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph F. De Vanon, Jr., Judge. Affirmed. (Los Angeles County Super. Ct. No. GC038444).

The opinion of the court was delivered by: Suzukawa, J.


Appellant Octoviano Cortez appeals from the judgment entered in favor of respondents Lourdes and Omar Abich (collectively the Abiches) following the trial court's order granting their motion for summary judgment. We affirm.


In 2006, the Abiches embarked on a remodeling project of their home in Pasadena. They wanted to add a new roof, master bedroom, master bath, and a garage to their home, adding over 750 square feet. The Abiches hired Miguel Quezada Ortiz, among others, to perform the remodel. Although what Ortiz was hired to do is in dispute, appellant claims Ortiz was hired to demolish the roof. Ortiz did not have a contractor's license, which the Abiches concede was required. The Abiches did not ask Ortiz if he had a license and were unaware that he did not have one. Omar Abich obtained the necessary permits from the City of Pasadena, but did not supervise the work. The Abiches moved out of the house, and the project started in October or November 2006.

Ortiz hired appellant.*fn1 On the first day of the job, believing he was supposed to help Ortiz demolish the roof, appellant went up on the roof without being given any specific instructions to do so. Appellant conceded he saw that half of the roof was gone. As he climbed on the roof, he observed Ortiz and another worker removing nails from the remaining portion. After taking two steps, he fell through the roof and suffered a fractured spine.

In January 2007, appellant sued Ortiz, alleging general negligence (failure to warn and failure to make work area safe) and premises liability (negligence in maintenance, management, and operation of premises).*fn2 In March 2007, he amended his complaint to add the Abiches as Doe defendants.

In April 2008, the Abiches filed a motion for summary judgment, contending they had no duty to warn appellant of the condition of the roof because he went up there on his own accord and any danger was open and obvious. They also argued that the work safety requirements of California Occupational Safety and Health Act (OSHA) contained in Labor Code section 6300 et seq. did not apply to the residential remodeling project.

Appellant responded that because they failed to hire a licensed contractor, the Abiches were his employer. As such, he alleged they had a duty to maintain a safe working environment as required by OSHA and failed to do so. Recognizing that OSHA does not apply to workers who provide ―household domestic service‖ (Lab. Code, § 6303, subd. (d)), appellant asserted that the remodeling job did not fall within the definition of such services. He argued that even if OSHA did not apply to the Abiches, there was a triable issue of fact concerning whether his duties required him to get on the roof and whether the dangerous condition of the roof was open and obvious.

The trial court's ruling granting summary judgment stated, inter alia, ―The only disputed facts are immaterial to the legal issue to be decided. The court finds as a matter of law that plaintiff was not an employee of the Abich defendants. Pursuant to Labor Code [section] 3352[, subdivision] (h), plaintiff is excluded from being an employee of the Abich defendants, and pursuant to Labor Code 2750.5, plaintiff is the employee of defendant Ortiz. See CEDILLO V. WORKER'S COMPENSATION APPEAL BOARD (2003) 106 Cal.App.4th 227. [¶] It is undisputed that plaintiff was on the premises to perform work, that he was hired by defendant Ortiz, and that he was injured on the first day of work. [¶] There is a dispute concerning whether a license was required to perform the work plaintiff was hired to do. There is a dispute about whether plaintiff voluntarily went up on the roof or whether he believed it was his job to help Ortiz. Neither of these disputes of fact is material to the issue of whether plaintiff was employed by the Abich defendants. [¶] Plaintiff's contention that the Abich defendants were required to comply with OSHA requirements fails as a matter of law because they were not plaintiff's employer. Even if they were found to be his employer, this contention fails as it is unsupported by any citation to a California cas[e] in which OSHA compliance was imposed on a homeowner. [¶] To the extent plaintiff seeks to hold the Abich defendants liable as homeowners on a concealed danger theory, the court finds as a matter of law that the Abich defendants had no duty to inspect the roof for ‗soft spots' in order to ensure the safety of the workers. The roof of a house undergoing a remodeling project does not present a concealed danger but an open and obvious one.‖


1. Standard of Review

―A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.]‖ (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

If a defendant establishes that one or more elements of a cause of action cannot be established or that there is a complete defense to that cause of action, the burden shifts to the plaintiff to show that a triable issue exists as to one or more material facts. (Doe v. California Lutheran High School Assn. (2009) 170 Cal.App.4th 828, 834, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) If the trial court finds that no triable issue of fact exists, it ...

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