Case Number: BC589549 Hearing Date: May 22, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

I. INTRODUCTION

On July 29, 2015, Plaintiffs Alfred Villanueva (“Alfred”) and Debra Villanueva (“Debra”) (collectively, “Plaintiffs”) filed this action against Defendants Four Seasons Cleaners, Inc. (“Four Seasons”) and Nancy Carter (“Carter”) (collectively, “Defendants”) for premises liability and loss of consortium relating to an injury sustained by Alfred while working on Defendants’ premises. Defendants previously filed a Motion for summary judgment on grounds Plaintiffs’ claims were barred by the Privette doctrine because Alfred was acting as an employee of Defendant’s independent contractor at the time of injury. Defendants now move for summary judgment or summary adjudication on grounds Plaintiffs’ claims are barred by Workers’ Compensation exclusivity because Alfred was working as Defendants’ employee at the time of injury.

II. FACTUAL BACKGROUND

On July 31, 2013, Alfred fell off the roof of Defendants’ premises while he was helping Ruben Hernandez (“Hernandez”) install an air conditioning or swamp cooling unit. (Undisputed Material Fact “UMF” No. 1.) Defendants hired Hernandez to install the unit. (UMF No. 3.) At the time of the incident, Defendants had a Workers’ Compensation and Employer’s Liability Policy. At the time of the incident, Hernandez did not have any Worker’s Compensation insurance for his business. (UMF No. 2.)

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. EVIDENTIARY OBJECTIONS

Plaintiffs’ objections to the Declaration of Ruben Hernandez are OVERRULED. Also, the objections are improper as they are not tailored to the specific statements in the declaration but rather are cut-and-paste litanies of inapplicable objections. While the declaration is missing the specific day it was signed, it contains the date of September 2018, the same month Defendants filed the motion.

Plaintiffs’ objections to the Declaration of Gary Floyd Nos. 1, 2, 7, 8 are OVERRULED. Objection Nos. 3, 4, 5, 6 are OVERRULED because the Hernandez Declaration contains these statements, and so these statements are otherwise admissible. Plaintiffs’ objections to the Declaration of Gary Floyd Nos. 9 and 10 are SUSTAINED as to the case and regulations citations, as well as the conclusion that the parties were in violation of the regulations, as improper expert opinion and legal conclusion.

V. DISCUSSION

As framed by the complaint, Plaintiffs allege Defendants negligently maintained, leased, operated, controlled, repaired, or supervised the premises so as to create a dangerous and defective condition on the premises, including poor visibility caused by deficient lighting for workers performing repairs on equipment on the roof (a violation of OSHA Code section 1926, Subpart D), and a lack of fall protection for workers on the roof (a violation of OSHA Code section 1926, subpart M). (Complaint, ¶ 3.)

Four Seasons Cleaners, Inc. was started by Carter’s grandfather. The business has been in her family for years. (Plaintiff’s Additional Material Facts “PAF” No. 1.) Alfred met Carter in the 1980s when Carter’s father hired him to install a conveyor belt rack system. Thereafter, Alfred periodically serviced the conveyor system. (PAF No. 4.) On July 31, 2013, Hernandez called Alfred to help hoist an air conditioning or swamp cooler unit to the roof of the building used by Four Seasons Cleaners, Inc. Alfred brought his personal Genie Lift to help hoist the unit to the roof. He had helped to hoist air conditioning or swamp cooler units to the roof for Defendants, using his personal lift, before. (Exh. D, Pltff’s Depo., 40:20-41:19.) Hernandez asked Alfred to come out on that evening to help haul up the unit, and he agreed to “be right over.” (Exh. D, Pltff’s Depo., 48:1-6.) Alfred assisted with uncrating the unit and getting the Genie into position, which lifted the unit approximately nine feet. (Exh. D, Pltff’s Depo., 52:11-15.) At the Genie’s maximum height, only one-third of the unit cleared the roof, meaning two people had to get on the roof and drag the unit to the roof line. (Exh. D, Pltff’s Depo., 54:18-24.) Alfred helped to manually hoist the unit on to the roof. (Exh. D, Pltff’s Depo., 55:1-7.) Once the unit was on the roof, Alfred and Hernandez dragged the unit a foot or two more, but the light went out and Alfred lost his footing, causing him to fall. (Exh. D, Pltff’s Depo., 56:1-5.)

Defendants argue that Alfred was Defendants’ employee at the time of the accident, making this action barred by workers’ compensation exclusivity. Labor Code section 3600 mandates compensation for injuries to employees against their employers that arise out of and in the course of the employment. (Lab. Code, § 3600.) Where the conditions of compensation in section 3600 occur, the right to recover compensation is, except as specifically provided, the sole and exclusive remedy of the employee against the employer. (Lab. Code, § 3602, subd. (a).)

Alfred’s Unlicensed Contractor Status

Defendants argue that because Alfred and Hernandez were engaged in work requiring a contractor license and because they did not have the requisite licenses, they are presumed to be employees and not independent contractors.

There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a contractor 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. (Lab. Code, § 2750.5.) The Contractors’ State License Law (Bus. & Prof. Code, § 700 et seq.) “requires contractors to be licensed unless they are exempt from licensure.” (Ball v. Steadfast-BLK (2011) 196 Cal.App.4th 694, 700.) “A ‘contractor’—‘a term synonymous with “builder”’ according to Section 7026—is required to hold one of three categories of contractor’s license: Class A (general engineering contractor), class B (general building contract), or class C (covering ‘specialty’ licenses).” (The Fifth Day, LLC v. Bolotin (2009) 172 Cal.App.4th 939, 947.)

No person engaged in the business or acting in the capacity of a contractor, may bring or maintain any action, or recover in law or equity in any action, for the collection of compensation for the performance of any act or contract where a license is required without alleging that he or she was a duly licensed contractor at all times during the performance of that act or contract regardless of the merits of the cause of action brought by the person. (Bus. & Prof. Code, § 7031, subd. (a).) “Regardless of the equities, section 7031 bars all actions, however characterized, which effectively seek ‘compensation’ for illegal unlicensed contract work.” (Hydrotech Systems, Ltd. V. Oasis Waterpark (1991) 52 Cal.3d 988, 997.)

A person who employs an unlicensed contractor is an employer to that contractor. (Mendoza v. Brodeur (2006) 142 Cal.App.4th 72, 77 [“the presumption that the person who employs the unlicensed contractor is the employer is conclusive”]; State Compensation Ins. Fund v. Workers’ Comp. Appeals Bd. (1985) 40 Cal.3d 5, 15 [“the Legislature has unequivocally stated that the person lacking the requisite license may not be an independent contractor”].)

Defendants contend Hernandez and Alfred were acting as refrigeration contractors pursuant to California Code of Regulations section 832.38, which states, “A refrigeration contractor constructs, fabricates, erects, installs, maintains, services and repairs refrigerators, refrigerated rooms, and insulated refrigerated spaces, temperature insulation, air-conditioning units, ducts, blowers, registers, humidity and thermostatic controls for the control of air, liquid, and/or gas temperatures below fifty degrees Fahrenheit (50 degrees), or ten degrees Celsius (10 degrees).” (Cal. Code. Regs., § 832.38. Class C-38.) Defendants submit the declaration of Gary Floyd (“Floyd”), an electrical and construction consultant. (Declaration of Gary Floyd, ¶ 1.) Floyd opines that a Class C-20 and Class C-38 contractor’s license is required for all work related to the installation of any air-conditioning systems with air-conditioning units, including those being installed in this action. (Floyd Decl., ¶ 11.) Therefore, Defendants say Hernandez and Alfred were required to have a Class C specialty license.

In responses to Requests for Admissions, Alfred admitted that he and Hernandez were not licensed contractors. (Exh. F, RFAs Nos. 12, 13.) Plaintiffs present the declaration of Robert Hubbard (“Hubbard”), a licensed general contractor and a principle of HGM Construction, Inc., a heating and air conditioning company. (Declaration of Robert Hubbard, ¶ 1.) Hubbard states that no state license is required for the delivery and lifting of a swamp cooler. (Hubbard Decl., ¶ 3.) He states no state license is required to “switch out” a swamp cooler to pre-existing water lines since no welding would be done. (Hubbard Decl., ¶ 5.)

There appears to be a dispute whether the unit being installed was a swamp cooler or an air-conditioning unit, and whether a license was required to install it. Defendants state it was an air-conditioning unit; Plaintiffs say it was swamp cooler. Also, the declarations of the experts show a triable issue of fact exists as to whether a license was required for the work Hernandez and Alfred performed. The Court cannot determine as a matter of law that Alfred was performing unlicensed contracting work and therefore is presumed to be an employee.

Plaintiff’s Employee Status

Even if Alfred is presumed to be an employee, Plaintiffs have submitted facts rebutting that presumption because they contends Alfred was not paid and instead volunteered to do the work.

“Employee” means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed. (Lab. Code, § 3551.) “The term ‘employee’ is defined broadly, and, ordinarily, “a person who renders service to another is presumed to be an ‘employee.’” [Citation.]” (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 214; Lab. Code, § 3357 [“Any person rendering service for another, other than as an independent contractor, or unless expressly excluded, is presumed to be an employee”].) As relevant here, some categories of “volunteers” are expressly excluded from the definition of “employee.” (Lab. Code, § 3352.)

“Although a person who renders service to another is presumed to be an ‘employee’ [citation], that presumption will be overcome if the essential contract of hire, express or implied, is not present.” (Spradlin v. Cox (1988) 201 Cal.App.3d 799, 807.) The traditional features of an employment contract are: (1) consent of the parties, (2) consideration for the services rendered, and (3) control by the employer over the employee. (Parsons v. Workers’ Comp. Appeals Bd. (1981) 126 Cal.App.3d 629, 638.) “Although these common law contract requirements are not to be rigidly applied, a consensual relationship between the worker and his alleged employer nevertheless is an indispensable prerequisite to the existence of an employment contract under Labor Code section 3351. [Citation.]” (Ibid.)

“Although it has been held that a volunteer who renders wholly gratuitous services is not an employee unless special statutory provision is made for this undertaking [citations], it has also been held that compensation need not be in the strict form of wages [citations]. Therefore, it is not necessary that the worker be on the payroll.” (Jones v. Workers’ Comp. Appeals Bd. (1971) 20 Cal.App.3d 124, 129.) “The test of whether a person was providing ‘voluntary service’ depends on whether the services were rendered for charitable or gratuitous reasons or for remuneration. [Citation.]” (Brassinga, supra, 66 Cal.App.4th at p. 214.) “[T]he reality of the situation, not the parties’ characterization of the relationship, controls the outcome.” (Hoppmann v. Workers’ Comp. Appeals Bd. (1991) 226 Cal.App.3d 1119, 1126-1127.)

Plaintiffs contend Alfred was not compensated for hoisting the cooling units to the roof. Alfred testified that Carter relied on their friendship to call in favors and for him to help her with business free of charge. (PAF No. 5.) Alfred was happy to help Carter and to volunteer his time and use of his personal hoist for Carter’s benefit. Carter did not pay Alfred, nor did he expect to receive any compensation. (PAF No. 7.) On July 31, 2013, Carter hired Hernandez to install the cooler and paid him $500.00, but none of the monies paid to Hernandez went to Alfred, directly or indirectly. (PAF No. 17.)

Plaintiffs’ evidence rebuts any presumption of employee status. It appears undisputed that Alfred received no compensation for his assistance in hoisting the unit to the roof and was a volunteer. It is unclear to what extent he received other consideration and whether Defendants exercised control over him in completing the work. Therefore, there are disputed fact as to whether an employment relationship existed.

VI. CONCLUSION

In light of the foregoing, the Motion for summary judgment is DENIED.

Moving party to give notice.