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Octoviano Cortez v. Lourdes Abich et al

January 24, 2011


Super. Ct. No. GC038444 Ct.App. 2/4 B210628 Los Angeles County

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

Under the California Occupational Safety and Health Act of 1973 (Cal-OSHA or the Act) (Lab. Code, § 6300 et seq.; all further unlabeled statutory references are to this code), employers are required to "furnish employment and a place of employment that is safe and healthful" for their employees. (§ 6400, subd. (a).) For purposes of the Act, "employment" is defined as "the carrying on of any trade, enterprise, project, industry, business, occupation, or work, including all excavation, demolition, and construction work, or any process or operation in any way related thereto, in which any person is engaged or permitted to work for hire, except household domestic service." (§ 6303, subd. (b), italics added.)

The narrow question before us is this: Does work rendered on a residential remodeling project in which significant portions of a house are demolished and rebuilt, and new rooms are added, fall within the statutory "household domestic service" provision for employment excluded under the Act? Based on the plain meaning of the statutory language, we conclude the answer is no.


Octoviano Cortez (plaintiff) was seriously injured while working on a job at a house purchased and owned by Lourdes Abich, for her son, Omar Abich (collectively, defendants), to use as a residence. Plaintiff brought this action against defendants and the unlicensed contractor who hired him, Miguel Quezada Ortiz,*fn1 alleging causes of action for negligence (failure to warn and failure to make work area safe) and premises liability (negligence in ownership, maintenance, management, and operation of premises).

Defendants moved for summary judgment after the following facts were developed through discovery. Omar Abich personally obtained construction permits from the City of Pasadena for a remodeling project that would add over 750 square feet to the house. Although Omar Abich was not a general contractor and did not have a contractor's license, he designated himself as the "owner/builder" for the project and hired an architectural firm to draw up the necessary plans for approval by the Pasadena building department. The project entailed demolition of existing walls and a deck, addition of a new master bedroom and a new master bathroom, construction of a garage to replace a carport, an upgrade of the kitchen, removal of the existing roof and construction of a new roof, installation of new flooring, new toilets and sinks, and new paint.

Defendants contracted with a number of individuals and companies to work on the project, one of whom was Ortiz.*fn2 Defendants were unaware that Ortiz did not have a contractor's license, which they concede was required for the work. Defendants moved out of the house once the project was under way, and they did not supervise the work.

Ortiz hired plaintiff to work on the project, but the scope of that work is in dispute. For present purposes we accept plaintiff's contention he was hired to help demolish the roof. When plaintiff arrived at the property, only the front part of the house remained; as for the back part of the house, the roof had been removed and "[t]he only thing that was left were the walls that were made out of brick." Plaintiff proceeded to collect debris from the demolition, then climbed onto the remaining part of the roof to help with its removal. Plaintiff took two steps and fell when a portion of it collapsed. He suffered a fractured spine.

In their motion for summary judgment, defendants contended they had no duty to warn plaintiff of the roof's condition because he went onto the roof on his own accord and any danger was open and obvious. They also argued the work safety requirements of Cal-OSHA did not apply to the residential remodeling project.

The trial court granted defendants' motion. As relevant here, the court determined as a matter of law that defendants were not plaintiff's employers, and that even if they were, defendants were homeowners, who were not required to comply with Cal-OSHA.

The Court of Appeal affirmed summary judgment for defendants. The court first concluded that, pursuant to section 2750.5, defendants must be regarded as plaintiff's employers with respect to potential tort liability. Nonetheless, it held as a matter of law that defendants' home improvement project fell within Cal-OSHA's "household domestic service" provision for employment excluded under the Act (§ 6303, subd. (b)), because the project was undertaken for the noncommercial purpose of enhancing defendants' personal enjoyment of their residence.

We granted plaintiff's petition for review of the Cal-OSHA issue.


In certain circumstances, a worker who sustains an on-the-job injury is not subject to the exclusive remedy provisions of the workers' compensation law (§ 3200 et seq.), but may bring an action against his or her employer for damages. (E.g., §§ 3602, subd. (c), 3706; see Zaragoza v. Ibarra (2009) 174 Cal.App.4th 1012, 1022.) Here, plaintiff does not seek recovery of workers' compensation benefits but has sued defendants in tort for alleged violations of the safety standards that Cal-OSHA imposes on employers.

Notably, defendants were not plaintiff's employers in the usual sense because they did not directly hire plaintiff to work on their home. Rather, defendants hired Ortiz, who in turn hired plaintiff. Notwithstanding this circumstance, the Court of Appeal determined that section 2750.5 rendered defendants the employers of plaintiff with respect to potential tort liability, because Ortiz was not licensed as a contractor. (See Rosas v. Dishong (1998) 67 Cal.App.4th 815, 822.) Whether unlicensed contractors or their workers may or must be deemed the homeowners' employees under section 2750.5, either for purposes of tort liability generally or with regard to Cal-OHSA specifically, are difficult and unsettled questions in this court. (See Ramirez v. Nelson (2008) 44 Cal.4th 908, 916-917; Fernandez v. Lawson (2003) 31 Cal.4th 31, 39-44 (Fernandez) (conc. opn. of Brown, J.); cf. In re Jesse Ramirez Drywall (Cal. OSHA, Mar. 23, 1993, No. 93-R4D3-489) 1999 CA OSHA App.Bd. Lexis 55; In re Commercial Diving (Cal. OSHA, Apr. 14, 1994, 91-R3D5-921) 1994 CA OSHA App.Bd. Lexis 28.) Defendants, however, neglected to seek review of these issues, so we do not resolve them here.

Assuming the Court of Appeal was correct in finding the requisite employment relationship under Cal-OSHA, we proceed to the question at hand, i.e., whether work on an extensive home remodeling project falls within the Act's "household domestic service" exclusion. (§ 6303, subd. (b).) We start with a brief overview of the statutory scheme.

A. Overview of Cal-OSHA

Cal-OSHA, codified in division 5 of the Labor Code, was enacted to assure safe and healthful working conditions for all California workers within its purview. (§ 6300.) To further this purpose, Cal-OSHA authorizes "the enforcement of effective standards, assisting and encouraging employers to maintain safe and healthful working conditions." (§ 6300.)

Under Cal-OSHA, the employment and place of employment provided to employees must be safe and healthful. (§ 6400, subd. (a).) Among other things, the employer must "furnish and use safety devices and safeguards," adopt methods and practices that are "reasonably adequate to render such employment and place of employment safe and healthful," and "do every other thing reasonably necessary to protect the life, safety, and health of employees." (§ 6401.) The employer must also "establish, implement, and maintain an effective injury prevention program" pursuant to the Act's terms. (§ 6401.7, subd. (a).) Moreover, "[e]very employer and every employee shall comply with occupational safety and health standards," including "all rules, regulations, and orders" pursuant to the Act "which are applicable to his [or her] own actions and conduct." (§ 6407.)

Additionally, Cal-OSHA imposes specific responsibilities upon employers to provide information to employees and comply with recordkeeping requirements. For instance, employers must post information in their workplaces regarding employee protections and obligations under the Act. (§ 6408, subd. (a).) They must also file with the Department of Industrial Relations, Division of Labor Statistics and Research, the report of every statutorily designated physician regarding every occupational injury or occupational illness, and immediately report cases of serious injury, illness, or death. (§§ 6409, 6409.1.)

Not only are Cal-OSHA violations punishable by civil and/or criminal penalties (§ 6423 et seq.), but the Act specifies that "[s]sections 452 and 669 of the Evidence Code shall apply to this division and to occupational safety and health standards adopted under this division in the same manner as any other statute, ordinance, or regulation." (§ 6304.5.) This means that "Cal-OSHA provisions are to be treated like any other statute or regulation and may be admitted to establish a standard or duty of ...

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