15 Chap. L. Rev. 669 (No PDF)
Chapman Law Review
Winter 2012
Case Digests [tippy title=”*” header=”off”]Chapman Law Review selected these cases primarily for their legal significance. These cases are not exhaustive of the cases decided by the California Supreme Court during this period.[/tippy]
DIGEST: CORTEZ V. ABICH
Briana DeLong
Copyright (c) 2012 Chapman Law Review; Briana DeLong
Opinion by Baxter, J., with Kennard, Acting C.J., Werdegar, J., Chin, J., Moreno, J., Corrigan, J., and George, J., concurring.
Issue
Is work on a residential remodeling project, including the demolition and rebuilding of portions of the house and the addition of rooms, excluded as a “household domestic service” provision for employment under the California Occupational Safety and Health Act of 1973 (Cal-OSHA)?
Facts
Octoviano Cortez sustained personal injuries while working as a laborer on a residential remodeling project. [tippy title=”1″ header=”off”]Cortez v. Abich, 246 P.3d 603, 604 (Cal. 2011) .[/tippy] Lourdes Abich had purchased a residence for her son, Omar Abich (hereinafter, defendants). [tippy title=”2″ header=”off”]Id.[/tippy] Although Omar Abich was not a general contractor, nor did he have a contractor’s license, he listed himself as the “owner/builder” for the remodel. [tippy title=”3″ header=”off”]Id. at 605.[/tippy] Subsequently, defendants obtained construction permits and hired an architectural firm to create the necessary plans. [tippy title=”4″ header=”off”]Id.[/tippy] As part of the remodeling, defendants hired Miguel Quezada Ortiz as one of the multiple individuals and companies used to complete the project. [tippy title=”5″ header=”off”]Id.[/tippy] Defendants, who were unaware Ortiz was unlicensed, vacated the residence once the project began and did not further supervise the work. [tippy title=”6″ header=”off”]Id.[/tippy] Thereafter, Ortiz hired Cortez (plaintiff) to assist with the project. [tippy title=”7″ header=”off”]Id.[/tippy] As the scope of the work was disputed, the court accepted Cortez’ assertion that he was hired to assist in demolishing the roof. [tippy title=”8″ header=”off”]Id.[/tippy] When Cortez began work, the front of the house remained, but only the brick walls were left on the back of the house as the roof had been removed. [tippy title=”9″ header=”off”]Id.[/tippy] In order to help with the removal, Cortez climbed onto the remaining portion of the roof. [tippy title=”10″ header=”off”]Id.[/tippy] However, upon taking two steps, a portion of the roof collapsed, causing Cortez to fall and suffer a fractured spine. [tippy title=”11″ header=”off”]Id.[/tippy]
Subsequently, Cortez brought a cause of action against defendants and Ortiz. [tippy title=”12″ header=”off”]Id. at 604-05. Ortiz later entered a notice of default in April 2007 and was thus not a party to the above proceeding. Id. at 605 n.1.[/tippy] Cortez alleged “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).” [tippy title=”13″ header=”off”]Id. at 605.[/tippy] Cortez contended defendants’ project fell within the plain language of the work safety requirements of Cal-OSHA. [tippy title=”14″ header=”off”]Id. at 607.[/tippy]
Defendants filed a motion for summary judgment, arguing they had no duty to warn Cortez of the condition of the roof because it was Cortez’ decision to go onto the roof and any such hazard was open and obvious. [tippy title=”15″ header=”off”]Id. at 605.[/tippy] Secondly, defendants argued Cal-OSHA’s work safety requirements were not applicable, as the residential remodeling project fell under the “household domestic service” exception. [tippy title=”16″ header=”off”]Id. at 605, 607.[/tippy] Subsequently, the trial court granted the defendants’ motion for summary judgment finding defendants were not Cortez’ employers. [tippy title=”17″ header=”off”]Id. at 605.[/tippy] Moreover, the court found defendants were not required to follow Cal-OSHA because they were homeowners. [tippy title=”18″ header=”off”]Id.[/tippy]
Thereafter, the Court of Appeal affirmed the motion for summary judgment. [tippy title=”19″ header=”off”]Id.[/tippy] The court held that the defendants’ remodeling project fell within the “household domestic service” provision of Cal-OSHA for work excluded under the act as the home remodeling was done solely for the defendants’ personal enjoyment. [tippy title=”20″ header=”off”]Id.[/tippy] Cortez petitioned the Supreme Court of California for review. [tippy title=”21″ header=”off”]Id.[/tippy]
Analysis
As the defendants did not seek review of whether the Court of Appeal was correct in finding the requisite employment relationship between Cortez and the defendants under Cal-OSHA, the court accepted the finding as correct. [tippy title=”22″ header=”off”]Id. at 606.[/tippy]
Thus the court began by reviewing the purpose of Cal-OSHA before examining the language of the statute in regards to employment. [tippy title=”23″ header=”off”]Id. at 606-07; see Cal. Lab. Code §6300 (West 2010).[/tippy] “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.” [tippy title=”24″ header=”off”]Cortez, 246 P.3d at 606; see also Lab. §6300 .[/tippy] Cal-OSHA establishes standards to assist with the various employer requirements and responsibilities under the Act. [tippy title=”25″ header=”off”]Cortez, 246 P.3d at 606 .[/tippy] As such, violations of the Act are punishable by civil and/or criminal penalties. [tippy title=”26″ header=”off”]Id.[/tippy] Additionally, “Cal-OSHA provisions are to be treated like any other statute or regulation and may be admitted to establish a standard or duty of care in all negligence and wrongful death actions.” [tippy title=”27″ header=”off”]Id. (quoting Elsner v. Uveges, 102 P.3d 915, 921 (Cal. 2004) ).[/tippy]
In order to determine whether Cal-OSHA’s definition of employment exempted work on a home remodel, the court examined the plain language of the Act to ascertain the legislative intent. [tippy title=”28″ header=”off”]Id. at 607 (citing State Farm Mut. Auto. Ins. Co. v. Garamendi, 88 P.3d 71, 78 (Cal. 2004) ).[/tippy] Cal-OSHA requires employers to “provide a place of employment that is safe and healthful for the employees therein.” [tippy title=”29″ header=”off”]Lab. §6400(a).[/tippy] Moreover, section 6303(b) defines employment 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.” [tippy title=”30″ header=”off”]Lab. §6303(b) .[/tippy]
Cortez argued the defendants’ home remodeling fell within Cal-OSHA’s stated activities of “excavation, demolition, and construction work.” [tippy title=”31″ header=”off”]Cortez, 246 P.3d at 607; Lab. §6303(b) .[/tippy] In contrast, defendants argued the home remodeling was excluded from Cal-OSHA’s application as a “household domestic service.” [tippy title=”32″ header=”off”]Cortez, 246 P.3d at 607; Lab. §6303(b) .[/tippy] As Cortez was hired to work on the home remodeling project involving “demolition” and “construction,” the court explained the project fell under the definition of employment in section 6303 of the California Labor Code, unless the Legislature intended residential remodeling projects including demolition and construction to be classified as a “household remodeling service.” [tippy title=”33″ header=”off”]Cortez, 246 P.3d at 607 .[/tippy]
The court noted it had previously observed in Fernandez v. Lawson that no definition was provided in Cal-OSHA of “household domestic service,” nor did legislative history provide guidance to its meaning. [tippy title=”34″ header=”off”]Id. (citing Fernandez v. Lawson, 71 P.3d 779, 781 (Cal. 2003) ).[/tippy] Nonetheless, Fernandez concluded the term “household domestic service” refers to “a broad category of workers” and “implies duties that are personal to the homeowner, not those which relate to a commercial or business activity on the homeowner’s part.” [tippy title=”35″ header=”off”]Id. (quoting Fernandez, 71 P.3d at 782).[/tippy] Fernandez further noted the possibility that “household domestic services” could include all maintenance activities of a private household. [tippy title=”36″ header=”off”]Id. (citing Fernandez, 71 P.3d at 782).[/tippy] Thus, Fernandez determined noncommercial tree trimming fell under the “household domestic service” exception of the Act. [tippy title=”37″ header=”off”]Id. (citing Fernandez, 71 P.3d at 783).[/tippy] The Fernandez court explained that both practical concerns and public policy indicated that the Legislature did not intend the intricacies of Cal-OSHA to apply to a private homeowner employing a tree trimmer solely for a personal purpose. [tippy title=”38″ header=”off”]Id. at 608 (citing Fernandez, 71 P.3d at 782).[/tippy]
As such, the defendants argued that under Fernandez, Cal-OSHA exempts a homeowner whenever an employee executes services on a homeowner’s property for a noncommercial purpose. [tippy title=”39″ header=”off”]Id.[/tippy] However, the court disagreed for multiple reasons. [tippy title=”40″ header=”off”]Id.[/tippy]
First, the court stated that Fernandez expressly limited its holding to noncommercial tree trimming, failing to address whether a homeowner is required to comply with Cal-OSHA for other noncommercial projects. [tippy title=”41″ header=”off”]Id. (citing Fernandez, 71 P.3d at 782).[/tippy]
Second, the court reasoned that the statutory language failed to support defendants’ argument. [tippy title=”42″ header=”off”]Id.[/tippy] The court found Cal-OSHA’s definition of employment should be interpreted broadly, as the only exemption stated is for “household domestic services.” [tippy title=”43″ header=”off”]Id.; See Cal. Lab. Code §6303(b) (West 2010) (defining employment as including “the carrying on of any… project… 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”).[/tippy] The court explained the term “household domestic services” is commonly interpreted as referring to the maintenance of a private household, not contracted work requiring specialized skill and knowledge, as would be required in an extensive home remodeling. [tippy title=”44″ header=”off”]Cortez, 246 P.3d at 608; see also Fernandez, 71 P.3d at 782 .[/tippy] Additionally, unlike the tree trimming involved in Fernandez, the court found the work involved in an extensive remodeling project did not fall within “state regulatory categories for household occupations or services of a household nature.” [tippy title=”45″ header=”off”]Cortez, 246 P.3d at 608; see, e.g., Cal. Code Regs. tit. 8, §11150 (2005) ; Cal. Code Regs. tit. 22, §629-1 (2005) .[/tippy] Furthermore, the court reasoned that unlike regular household maintenance, the worksite conditions of residential remodeling projects were more hazardous and lasted for multiple months. [tippy title=”46″ header=”off”]Cortez, 246 P.3d at 608-09 .[/tippy]
The court then found its above conclusion was consistent with the prior holding of the California Supreme Court case Crockett v. Industrial Accident Commission of the State of California. [tippy title=”47″ header=”off”]Id. at 609; Crockett v. Indus. Accident Comm’n of Cal., 213 P. 969 (Cal. 1923) .[/tippy] In Crockett, an employer wished to rescind a worker’s compensation award for a worker injured when sweeping cobwebs out of an employer’s residence. [tippy title=”48″ header=”off”]Crockett, 213 P. at 970 .[/tippy] The employer had previously hired a carpenter to help convert a barn into a residence. [tippy title=”49″ header=”off”]Id.[/tippy] Although mainly working as a carpenter, the worker also assisted with other incidental tasks. [tippy title=”50″ header=”off”]Id.[/tippy] One task included cleaning cobwebs and dirt from the kitchen area. [tippy title=”51″ header=”off”]Id.[/tippy] While cleaning the cobwebs, the worker was severely injured when dirt fell into his eye. [tippy title=”52″ header=”off”]Id.[/tippy]
The employer argued that when the worker ceased his carpentry work to clean the cobwebs, the worker began performing a “household domestic service” and was thus excluded as employment under former workers’ compensation regulations. [tippy title=”53″ header=”off”]Id.[/tippy] However, Crockett concluded that the worker was injured while doing work that grew out of, and was incidental, to his regular carpentry duties on the remodeling project, and thus he had not changed status to performing “household domestic services.” [tippy title=”54″ header=”off”]Id. at 970-71.[/tippy]
As such, the present court found the prior holding of Crockett was consistent with its conclusion that “household domestic services” are normally understood as not including extensive home remodeling. [tippy title=”55″ header=”off”]Cortez v. Abich, 246 P.3d 603, 609 (Cal. 2011) .[/tippy]
Defendants then requested the court follow the holding in Rogers v. Irving, a case from the Court of Appeals of Washington. [tippy title=”56″ header=”off”]Id. (citing Rogers v. Irving, 933 P.2d 1060 (Wash. 1997) ).[/tippy] In Rogers, the court concluded a homeowner who employed a roofing contractor did not have a duty to conform to certain safety regulations of the Washington Industrial Safety and Health Act. [tippy title=”57″ header=”off”]Rogers, 933 P.2d at 1060 .[/tippy]
However, the court dismissed the defendants’ contention, finding Rogers did not concern the question of whether the roofing work completed in conjunction with the remodeling project was a “household domestic service.” [tippy title=”58″ header=”off”]Cortez, 246 P.3d. at 609-10 .[/tippy]
Thereafter, defendants proceeded to assert multiple public policy arguments for why Cal-OSHA should not apply to homeowners. [tippy title=”59″ header=”off”]Id. at 610. Defendants’ policy arguments included: (1) it would be unprecedented to inflict unexpected duties on homeowners who are ill-equipped to handle such responsibilities, id.; (2) such standards would require homeowners to report duties, further opening them to possible criminal prosecution and liability should violations occur, id. (citing Cal. Lab. Code §§6409.2 , 6423 (West 2010)); (3) a considerable inequity would result because under Cal-OSHA, an unlicensed worker could decline to work upon encountering a sufficient hazard and would still be able to recover payment from the homeowner, while an unlicensed contractor would not be legally entitled to receive payment, id. (citing Lab. §6311, Cal. Bus. & Prof. Code §7031 (West 2010)); and (4) Cal-OSHA would impinge on homeowners’ constitutional right of privacy, as their residences would be subject to examination without prior notice, or the constitutional requisite of probable cause, id.[/tippy] Cortez objected, arguing public policy should not allow a homeowner listing himself or herself as owner/builder for construction permits to be exempted from complying with obligations crafted to protect employed workers. [tippy title=”60″ header=”off”]Id. Cortez reasoned that requiring homeowners to comply with Cal-OSHA is consistent with the legislative intent to deter unsafe practices and reduce the amount and severity of potential accidents when homeowners participate in remodeling projects with unlicensed contractors and employees at a lower cost. Id.; see also Lab. §6300 . Conversely, Cortez reasoned that without Cal-OSHA’s regulations, homeowners would be able to take dangerous risks and expose workers to serious harm, but largely avoid any serious accountability. Cortez, 246 P.3d at 610 .[/tippy] The court concluded it did not need to consider if public policy supported a provision restricting Cal-OSHA to homeowners as potential statutory employers. [tippy title=”61″ header=”off”]Cortez, 246 P.3d at 610-11 .[/tippy] The court stated it solely needed to assess the meaning of “household domestic service,” and further concluded that such an extensive remodeling project is generally excluded from the term’s ordinary meaning. [tippy title=”62″ header=”off”]Id. at 611.[/tippy]
Lastly, defendants argued that when determining whether a worker’s activities qualify as a “household domestic service” exemption, such duties should be assessed in isolation regardless of whether such activities were part of a greater remodeling project. [tippy title=”63″ header=”off”]Id.[/tippy] However, the court disagreed with such argument. [tippy title=”64″ header=”off”]Id.[/tippy]
The court found defendants failed to cite any authority that a home remodeling worksite could be an employment location for some workers employed, but not for others employed on the same project. [tippy title=”65″ header=”off”]Id.[/tippy] While the court reasoned it was possible that an activity within a remodeling job could be sufficiently independent from the overall project to be evaluated individually, the court found there was no evidence Cortez was employed independently from the overall remodeling project. [tippy title=”66″ header=”off”]Id.[/tippy] Thus the court explained Cortez’s duties were part of the greater remodeling project at the location where the vast majority of all demolition occurred. [tippy title=”67″ header=”off”]Id.[/tippy]
Holding
The court reversed the decision of the Court of Appeal and remanded for further proceedings. [tippy title=”68″ header=”off”]Id.[/tippy] The court held that a laborer’s work on a residential remodeling project did not qualify as a “household domestic service” under Cal-OSHA. [tippy title=”69″ header=”off”]Id. at 603.[/tippy] Thus, the project fell under the definition of employment in section 6303 of the California Labor Code, and would therefore be subject to the regulations of Cal-OSHA. [tippy title=”70″ header=”off”]Id. at 607; Cal. Lab. Code §6303(a) (West 2010).[/tippy]
Legal Significance
The court’s decision precludes a homeowner from asserting that a laborer hired to participate in a residential remodeling project is exempt from the requirements and duties of Cal-OSHA as performing a “household domestic service.” Thus, a homeowner participating in a residential remodeling project is required to comply with the regulations and duties set forth in Cal-OSHA. As the provisions “may be admitted to establish a standard or duty of care in all negligence and wrongful death actions,” [tippy title=”71″ header=”off”]Elsner v. Uveges, 102 P.3d 915, 921 (Cal. 2004) .[/tippy] a homeowner may also be held accountable for any violations of Cal-OSHA.