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Lara v. Workers' Compensation Appeals Board

February 25, 2010


PROCEEDINGS to review a decision of the Workers' Compensation Appeals Board. Affirmed. (W.C.A.B. No. ADJ3512142, MON0288509)

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



At issue in this proceeding is whether a gardener, hired twice in the space of 12 months to prune bushes for a diner, was an employee of the diner at the time he sustained injury or an independent contractor exempt from worker's compensation coverage. Jose Luis Lara (Lara) petitions for writ of review of the decision of the Workers' Compensation Appeals Board (the Board) against him and in favor of defendant Bratiff Home Corporation, doing business as Metro Diner (Metro Diner), and Scott Broffman as Chief Executive Officer. Viewing the undisputed evidence in light of the relevant factors of employment relationship set forth in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello), we conclude that the record supports the Board's finding as a matter of law that Lara was an independent contractor and not an employee. Accordingly, we affirm the decision of the Board.


Lara, a 62-year-old man, suffered injury to his head, lower back, neck, right shoulder, arm, hand, and thumb when he fell from a roof on March 11, 2000, while pruning bushes for the diner. Lara filed a workers' compensation claim against Metro Diner's then sole shareholder, Scott Broffman, personally and against Metro Diner. The diner leases space inside a hotel. Lara fell from the hotel's roof. The Uninsured Employers Benefits Trust Fund was joined as a party defendant as Metro Diner had no workers' compensation insurance.*fn1

At trial on the issue of injury and employment, Metro Diner called no witnesses. Lara testified that he has been gardening, painting, pipe fixing, and doing graffiti removal for 25 years. His clients are people who either know him or who find him on the street corner. He charges by the hour, but sometimes he contracts for the entire day. He usually does the same type of work but for different people each day. Lara does not have a roofer's license or a general contractor's license. He has no city license to perform this type of work. He has no employees and does not work out of an office or advertise.

Metro Diner's manager's wife Patricia arranged for Lara to do gardening work at Metro Diner on two occasions. The first time, Patricia, who was Lara's dentist's secretary, had asked Lara what kind of work he did. When he told her he gardened, she stated that her husband owned a diner. She gave him an address and told him to go early in the morning so his work would not make the restaurant's tables dusty. Upon his arrival, Lara was asked to trim the bushes along the roofline. The second time he went to Metro Diner, March 11, 2000, was about a year later. That was the day that he fell from the roof.

Lara was paid in cash by the hour for his services at Metro Diner the first time, but was not paid the second time because he did not complete the work after his fall and he never sent a bill. Metro Diner did not take taxes out of his pay; Lara pays his own taxes. Lara and Patricia did not discuss the number of hours he would work. Nor did they discuss the price until he was finished with the work. The first time, Patricia paid him $15. They did not discuss when he would provide services in the future, only that she would contact him when services were needed.

On the second occasion about a year later, Patricia asked Lara to do the same job, i.e., trim the bushes along Metro Diner's roofline. They did not discuss terms of employment, such as the number of hours, or the price he would be paid for the job. Lara had no plans to do any additional work after the second occasion, only that he would trim the bushes for Metro Diner when Patricia asked him to.

Lara brought all the equipment he needed to do the job, including a trimmer, rake, a broom, and a blower, which tools he owns. He also brought a ladder that he borrowed from a friend. He arrived in his own truck. On the second occasion, he did not bring a ladder and the concierge told him he could go through the hotel to get to the roof. No one told him how to do his job on March 11, 2000, "because he already knew how to do his job." Patricia did not tell him to bring an assistant or how long the job would take. She did not tell him to arrive on Saturday at 7:00 a.m., just to go early because the diner opened between 7:30 and 8:00 a.m.

On this evidence, the Workers' Compensation Judge (WCJ) found that Lara was employed by Metro Diner as a gardener and was injured in the course of employment. The WCJ also found that Metro Diner did not rebut the presumption that Lara was its employee on the date of the injury, and hence, Lara was entitled to workers' compensation benefits.

Metro Diner filed a Petition for Reconsideration of the Findings and Order with the Board contending the evidence did not support a finding that Lara was its employee on the date of injury. The Board granted reconsideration and, relying on the test in Borello, the majority found, although he was injured while attempting to prune bushes for the benefit of and at the behest of the diner, that Lara was an independent contractor and thus not entitled to workers' compensation benefits. The Board noted that Lara did not testify during trial that he was an employee of Metro Diner. Rather, he testified he handled his own taxes and contracted with numerous individuals to perform specific jobs. Also, the Board noted Lara's statement under penalty of perjury in his interrogatory response in his civil action against the hotel, filed after his injury, that " `I am self-employed as a gardener.' " However, the Board recognized that the distinguishing characteristic of an employer is the power to control the details of the work and methods of performance. On that point, the Board found "no evidence that Metro had the power to control the details of [Lara's] work in pruning the bushes or the method by which he performed that task." Lara appealed.


Lara contends that the Board misapplied the factors in Borello, supra, 48 Cal.3d 341.


1. Based on the Factors of Employment Set Forth in Borello, Lara was an Independent Contractor at the Time of his Injury

"The Workers' Compensation Act (Act) extends only to injuries suffered by an `employee,' which arise out of and in the course of his `employment.' [Citations.]" (Borello, supra, 48 Cal.3d at p. 349.) " `Employee[s]' include most persons `in the service of an employer under any . . . contract of hire' (§ 3351), but do not include independent contractors." (Borello, supra, at p. 349.) It has long been the law in California that an " `independent contractor' . . . means any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished." (§ 3353; see Borello, supra, at p. 366 (dis. opn. of Kaufman, J.).)

The question before us is whether Lara was an employee or an independent contractor when he was injured. "The determination of employee or independent-contractor status is one of fact if dependent upon the resolution of disputed evidence or inferences, and the [Board's] decision must be upheld if substantially supported. [Citation.] If the evidence is undisputed, the question becomes one of law [citation], but deference to the agency's view is appropriate." (Borello, supra, 48 Cal.3d at p. 349.) We liberally construe the workers' compensation act to extend benefits to persons injured in their employment. (§ 3202.)

" `The principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired. . . .' [Citations.]" (Borello, supra, 48 Cal.3d at p. 350; see also § 3353.) "The existence of such right of control, and not the extent of its exercise, gives rise to the employer-employee relationship. [Citations.]" (Borello, supra, at pp. 366-367 (dis. opn. of Kaufman, J.), citing S. A. Gerrard Co. v. Industrial Acc. Com. (1941) 17 Cal.2d 411, 413-414.) Numerous secondary factors, derived largely from the Restatement Second of Agency (Borello, supra, at p. 351), include, inter alia, "(1) whether or not the worker is engaged in a distinct occupation or an independently established business; (2) whether the worker or the principal supplies the tools or instrumentalities used in the work, other than tools and instrumentalities customarily supplied by employees; (3) the method of payment, whether by time or by the job; (4) whether the work is part of the regular business of the principal; (5) whether the worker has a substantial investment in the business other than personal services; (6) whether the worker hires employees to assist him. [Citations.]" (Torres v. Reardon (1992) 3 Cal.App.4th 831, 837 (Torres), citing §§ 2750.5, subd. (a), & 3353; Borello, supra, at pp. 350-351, 355.) Borello listed some additional factors, culled partly from other jurisdictions, among which are: (a) whether the parties believe they are creating the relationship of employer-employee; and (b) the degree of permanence of the working relationship. (Borello, supra, at p. 355.)

Applying these Borello factors to the uncontradicted evidence, we conclude the Board accurately found that Lara was an independent contractor as a matter of law, not an employee, when he performed pruning services. Metro Diner did not possess the right of control and the factors do not otherwise weigh in favor of employee status.

Commencing with the right-of-control criterion, Lara was engaged to produce the result of trimming the bushes. Neither party here presented evidence that Metro Diner had the power to control the manner or means of accomplishing the pruning. Just as in Torres, where we held that the plaintiff, hired by homeowners to prune a tree, was an independent contractor, the means and manner to accomplish the result of pruning here were neither discussed nor were part of the agreement. (Torres, supra, 3 Cal.App.4th at pp. 837-838, 841.)

Indeed, it is this lack of power by Metro Diner to control the means and manner by which Lara provided the pruning service that puts the facts of this case in stark contrast to the facts in Borello. There, the Supreme Court held that unskilled migrant cucumber harvesters were employees largely because the owner "exercise[d] `pervasive control over the operation as a whole[]' [citation]," as " `[a]ll meaningful aspects of this business relationship: price, crop cultivation, fertilization and insect prevention, payment, [and] right to deal with buyers . . . are controlled by [Borello].' [Citation.]" (Borello, supra, 48 Cal.3d at p. 356, fn. omitted.) The migrant harvesters controlled only the decision when to irrigate and harvest, the manner of training the vines, and weeding. The migrants' work was an integral component of the grower's operations, over which the grower exercised pervasive control, and the supposed "independence" of the harvesters from the grower's supervision was not a result of superior skills but was a function of the unskilled nature of the labor, which required little supervision. Here, however, Lara testified that no one told him how to do the pruning and that no one tells him how to do his work. Once he accepts a job, he testified, he did it without direction from the person for whom the service was rendered. Thus, the lack of supervision here was not a function of the unskilled nature of the job. Nor does the fact that Patricia asked Lara to arrive early suggest that Metro Diner controlled any aspect of the pruning. It was Lara who chose both the date and time to perform the service. In short, the principal test of the employment relationship and the very definition of an independent contractor, namely, whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired (§ 3353), supports the Board's finding that Lara was an independent contractor.

Our conclusion that Lara was an independent contractor at the time of his injury is further supported by the following Borello criteria. First, Lara performed this work as part of his own occupation as a gardener, which he had been doing independently for approximately 25 years. Not only did Lara have many clients, but Patricia did not ask him to perform any service other than pruning the bushes. Second, Lara supplied the equipment he used for the job. Such tools were not ones that a restaurant would have. Third, Lara had a substantial investment in his business such as his equipment. Although Lara does not advertise, he has several different clients who either pick him up from the street corner or who telephone him to perform specific jobs. Fourth, he was not hired by the day or hour, or even on a regular basis. Payment was only discussed after the work was complete. Sometimes Lara charged by the hour and sometimes by the job and so Lara was paid on a job-by-job basis, with no obligation on the part of either Metro Diner or Lara for work in the future. Taxes were not taken out of the money he was paid. Lara estimates and pays his own taxes. Fifth, no date for Lara's return was specified after the first time he pruned bushes for Metro Diner. Lara understood only that he would be contacted when his services were needed, with the result that he worked for a circumscribed period of time with no permanence whatsoever in his working relationship with Metro Diner. Thus, Lara's profit or loss depended on his scheduling, the time taken to perform the services, and his investment in tools and equipment.

The sixth Borello factor also distinguishes this case from the facts of Borello. In Borello, harvesting formed "a regular and integrated portion of Borello's business operation" (Borello, supra, 48 Cal.3d at p. 357) where Borello's entire "business is the production and sale of agricultural crops . . . ." (Id. at p. 356.) Thus, the Supreme Court concluded, the harvesters were employees. But here, bush pruning is not related in any way to the regular business of Metro Diner, but was occasional, discrete maintenance done for the restaurant. Hence, Lara was asked to provide his service when the restaurant was not open so that his work would not interfere with Metro Diner's regular business. Seventh, neither Lara nor anyone from Metro Diner testified that the parties believed they were creating an employer-employee relationship. Rather, the Board cited Lara's interrogatory response that " `I am self-employed as a gardener.' " The foregoing factors all support the Board's conclusion that Lara was an independent contractor because he "render[ed] service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished." (§§ 3353 & 2750.5.)

These criteria are not to be applied mechanically as separate tests, but " `are intertwined and their weight depends often on particular combinations.' [Citation.]" (Borello, supra, 48 Cal.3d at p. 351.) "[T]he process of distinguishing employees from independent contractors is fact specific and qualitative rather than quantitative." (State Compensation Ins. Fund v. Brown (1995) 32 Cal.App.4th 188, 202.) Certainly, Lara did not unreasonably rely on Patricia's ostensible authority to retain him. Lara is unlicensed, did not advertise, often charged by the hour, and never billed Metro Diner for his work because of his injury. But these factors do not shift the balance in favor of employee status in light of the overwhelming evidence demonstrating Lara was an independent contractor.

In his dissent, Commissioner Brass argued that the Board's majority improperly applied the presumption of employment under section 3357 that "[a]ny person rendering service for another, other than as an independent contractor . . . is presumed to be an employee." (Ibid.) Commissioner Brass observed, and the dissent agrees, that Metro Diner failed to carry its burden to rebut the presumption that Lara was an employee when injured because the diner presented no evidence. However, the necessary evidence was adduced in the form of Lara's own testimony. Lara's testimony carried this burden. Stated otherwise, the facts are undisputed. "[I]f only one inference may be drawn from all the facts, the question is one of law. [Citation.]" (Borello, supra, 48 Cal.3d at p. 349; Torres, supra, 3 Cal.App.4th at p. 838.) From the foregoing facts, the undisputed evidence establishes, as a matter of law, that Lara was not an employee of Metro Diner, but was as an independent contractor when he was injured.

Nor did the Board misapply Borello, supra, 48 Cal.3d 341, as Commissioner Brass claimed. The Board properly weighed the Borello criteria. Yet, the grower's relationship with its employee harvesters in Borello was markedly different than the relationship at issue here. As analyzed above, not only did the grower there retain "all necessary control over the harvest portion of its operations," the most important of the factors, but the harvesters formed a regular and integrated part of Borello's business operation. (Id. at pp. 355, 357.) By contrast, Lara is a gardener whose work is wholly unrelated to the business of food service. Although seasonal, the work in Borello was permanent in the agricultural process, and many families returned to Borello every harvest. (Id. at p. 357.) Hence, the Borello court found that this "permanent integration of the workers into the heart of Borello's business is a strong indicator that Borello functions as an employer . . . ." (Ibid.) Lara, however, had no permanent association with Metro Diner, having done pruning for them only twice in the space of more than a year, and no date for him to return to Metro Diner was specified. Indeed, the evidence indicates that no one at Metro Diner arranged for Lara to prune the bushes. It was the wife of the diner's manager who spoke to Lara. While the migrant harvesters engaged in no trade or calling distinct from harvesting and did not hold themselves out in business (ibid.), Lara has been holding himself out for 25 years to his many clients, who are unrelated to Metro Diner, as well as to others who telephoned him or picked him up on the corner. Borello is distinguishable in many of the more salient criteria of an employment relationship. The Board correctly weighed and applied the Borello criteria to this case and concluded that Lara was not an employee, but an independent contractor.

Rather, the facts here are more similar to Torres, supra, 3 Cal.App.4th 831, where we held as a matter of law that a gardener, hired to trim a tree in the front yard of the Reardons' house, was an independent contractor, not an employee of the homeowners. (Id. at p. 838.) In particular, the undisputed evidence, largely derived from the gardener's own deposition testimony, established that the Reardons engaged Torres to produce the result of trimming a tree, and that the means by which the result was produced were neither discussed nor part of the agreement. (Id. at pp. 837-838.) While the gardener in Torres had employees and was doing business under the name of Jose Torres Gardening Service, facts not present here, the gardener in Torres had a substantial investment in tools and equipment which he supplied for the job, and the work Torres did was not work ordinarily done in the course of the ...

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