Filed 11/14/19 Contreras-Perales v. Bruno CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DAVID CONTRERAS-PERALES,

Plaintiff and Appellant,

v.

LOIS ANN BRUNO,

Defendant and Respondent.

D073742

(Super. Ct. No. 37-2016-00043310-

CU-PO-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Reversed.

Law Offices of Ameer A. Shah, Ameer A. Shah and Lisa Jackson for Plaintiff and Appellant.

Thompson Coe & O’Meara, Stephen M. Caine; Law Offices of John A. Hauser and Lynne Ann Pearson Houry for Defendant and Respondent.

I.

INTRODUCTION

Plaintiff David Contreras-Perales appeals from a judgment entered in favor of defendant Lois Ann Bruno after the trial court granted Bruno’s motion for summary judgment.

Contreras-Perales filed a civil tort action alleging negligence on Bruno’s part after he was injured while trimming trees that exceeded 15 feet in height at Bruno’s residence. Contreras-Perales operates a yard maintenance business and provides routine yard maintenance services to many customers, including Bruno. On the day of Contreras-Perales’s injury, Bruno had asked Contreras-Perales to trim five of the trees on her property. Contreras-Perales agreed to do so for an additional fee, above his normal fee for the routine yard maintenance. Although Contreras-Perales had his own tools that he used for regular yard maintenance, he did not have tree-trimming tools, so he borrowed a ladder and clippers from Bruno in order to complete the tree-trimming. Contreras-Perales alleged that Bruno provided him with a “defective” ladder, and that after Contreras-Perales had completed four hours of tree-trimming, the ladder “swayed/wobbled,” causing him to fall off of the ladder and sustain injuries.

In response to Contreras-Perales’s lawsuit, Bruno asserted the affirmative defense that workers’ compensation law was the exclusive remedy available to Contreras-Perales. Bruno moved for summary judgment on the basis of this affirmative defense, arguing that Contreras-Perales was presumptively considered to be Bruno’s employee because of a statute under the Workers’ Compensation Act that creates a presumption of employment status when an unlicensed worker provides services that require a license. The parties agree that a contractor’s license is required by anyone who trims trees that are 15 feet in height or higher.

Contreras-Perales conceded that he was presumptively considered to be an employee of Bruno’s for the four hours that he worked trimming the large trees on her property, but argued that another statute in the Workers’ Compensation Act excepts from the status of “employee” workers who provide services to homeowners and who have not been employed by the homeowner for 52 hours or more over the 90 days prior to the accident that caused the worker’s injury. Although Contreras-Perales provided yard maintenance services to Bruno for approximately 72 hours in the 90 days prior to his accident, he argued that he provided those services as an independent contractor, and not as Bruno’s employee, such that those hours should not be combined with the 4 hours of tree-trimming during which he must presumptively be considered to be Bruno’s employee.

The trial court agreed with Bruno’s contention that Contreras-Perales was Bruno’s employee for purposes of workers’ compensation law, concluding that the 72 hours that Contreras-Perales provided landscape maintenance services for Bruno should be added to the four hours of tree-trimming services. The court reasoned that all of the hours that Contreras-Perales spent performing landscape maintenance and tree-trimming for Bruno constituted a “single engagement,” and that Contreras-Perales had not provided any legal authority to support the idea that a “single engagement” may be split into two subparts. The trial court concluded that Bruno had sufficiently established that Contreras-Perales was her employee for purposes of workers’ compensation, and that the exclusivity provisions of workers’ compensation law required dismissal of Contreras-Perales’s civil action.

On appeal, Contreras-Perales contends that the trial court erred in concluding that he was Bruno’s employee as a matter of law for purposes of workers’ compensation law. He argues that he “did not work the requisite number of hours as an employee to be eligible for workers’ compensation coverage under Labor Code[ ] § 3352(a)(8)(A),” (italics omitted) and that he may therefore bring a civil tort action against Bruno. Contreras-Perales contends in the alternative that Bruno failed to establish that she maintained workers’ compensation insurance that would cover Contreras-Perales’s injuries. Contreras maintains that, as a result, pursuant to section 3706, which provides that an injured employee may bring “an action at law” against an employer who “fails to secure the payment of [workers’] compensation,” his claim is not subject to the exclusivity provisions of the workers compensation system and he may bring this civil tort action in court.

We agree with Contreras-Perales that there remains a material question of fact with respect to whether Contreras-Perales performed work for Bruno for a sufficient number of hours in the status of an “employee,” rather than as an “independent contractor,” to render him eligible for workers’ compensation. Specifically, there remain factual issues with respect to whether Contreras-Perales was performing as an employee when he completed the 72 hours of routine landscape maintenance work at Bruno’s residence, or instead, as an independent contractor. If Contreras-Perales was acting as an independent contractor for the 72 hours of landscape maintenance work he provided to Bruno, he would not meet the threshold 52 hours of work performed as an employee in the 90 days immediately preceding the accident to be eligible for workers’ compensation, and the exclusivity provisions of workers’ compensation law would not preclude his civil tort action.

For this reason, we conclude that the trial court erred in granting summary judgment for Bruno. We therefore reverse the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

According to the allegations of the complaint, Contreras-Perales was “hired by [Bruno] to do gardening work and was asked to trim some trees [on] her property.” According to the complaint, on December 14, 2014, “[w]hile [Contreras-Perales] was on top of the ladder, which was provided by [Bruno] and was defective, [he] was holding on to a branch with one hand for support and holding on to the ladder with the other hand, the ladder swayed/wobbled, the branch he was holding on[to] broke and caused [him] to fall all the way to [the] ground.” The complaint alleges that this fall cause Contreras-Perales to suffer physical injuries, “including fractures.”

The record contains evidence that Contreras-Perales provided gardening services to multiple customers, one of whom was Bruno, and that he provided his own tools, was paid per job, project, or engagement and not by the hour, and that he was permitted to take as long as necessary to complete the job, project or engagement. The landscape maintenance services that Contreras-Perales provided to customers included “[lawn] mowing . . . , edging sidewalks, trimming bushes, pulling . . . weeds.” Contreras-Perales had provided landscape maintenance services to Bruno “once a week or once every two weeks from 2013” until the date of his injury.

On December 14, 2014, Bruno asked Contreras-Perales to provide additional services, beyond his typical landscaping work, in the form of trimming five trees on her property. The trees measured more than 15 feet in height. Contreras-Perales agreed to do the tree trimming for an additional fee, separate from the fee that he regularly charged Bruno for yard maintenance. Contreras-Perales was not a licensed tree trimmer, and he did not have the tools or equipment necessary to carry out the tree trimming task. Therefore, Bruno provided Contreras-Perales with a ladder and clippers. Contreras-Perales had just completed trimming the fourth tree when he fell from the ladder that Bruno had provided. He had been trimming the trees for approximately four hours before the fall that caused his injuries.

Contreras-Perales had trimmed the trees on Bruno’s property twice previously, within the two years prior to Contreras-Perales’s accident. He had not trimmed them within the 90 days prior to the accident, however. In those 90 days prior to the accident, Contreras-Perales had provided landscape maintenance services for Bruno for a total of approximately 72 hours.

B. Procedural background

In December 2016, Contreras-Perales filed a form complaint against Bruno, asserting causes of action for “General Negligence” and “Premises Liability.”

Bruno filed an answer to the complaint in which she asserted a number of defenses, including the affirmative defense that Contreras-Perales’s action “is barred by the exclusive remedy of Workers’ Compensation.”

In August 2017, Bruno moved for summary judgment. Bruno contended that the undisputed facts established the affirmative defense that workers’ compensation law provided the exclusive remedy available to Contreras-Perales. Specifically, Bruno argued that at the time of Contreras-Perales’s injury, he was providing services in the capacity of Bruno’s “employee” for purposes of workers’ compensation law, and that the workers’ compensation system thus was the only remedy that Contreras-Perales could pursue. According to Bruno, Contreras-Perales was conclusively presumed to be an “employee” and not an “independent contractor” when he was trimming Bruno’s trees because section 2750.5 deems an individual who performs services for which a license is required, but does so without a license, to be an employee rather than an independent contractor, and Business and Professions Code section 7026.1, subdivision (a)(4) requires that those who contract to trim trees that are 15 feet in height or more be licensed to perform such services. Further, Bruno asserted, because Contreras-Perales had worked for Bruno for more than 52 hours during the 90 days immediately preceding the accident, he was not excluded from the definition of “employee” for purposes of the workers’ compensation system (see § 3352, subd. (a)(8)).

In support of this contention, Bruno noted that Contreras-Perales admitted that he had worked for Bruno for “[a]pproximately seventy-two (72) hours” in the 90 days prior to the date of Contreras-Perales’s fall, that the accident occurred at Bruno’s residence, that at the time of the fall, Contreras-Perales was attempting to trim a tree that was “about 15 to 20 feet in height,” and that Contreras-Perales did not possess a license to perform such tree trimming.

After receiving Contreras-Perales’s opposition to Bruno’s motion for summary judgment, the trial court issued a tentative order granting Bruno’s motion. The court subsequently heard oral argument from the parties and, on November 13, 2017, issued a minute order confirming and supplementing its tentative ruling granting Bruno’s motion for summary judgment.

In granting Bruno’s motion for summary judgment, the trial court stated, in relevant part, the following:

“In this action, it is undisputed that the subject tree exceeded 15 feet in height such that a license was required [citation]. It is undisputed that Plaintiff did not have a tree trimming license [citation]. As a result, Plaintiff cannot be considered an independent contractor. Instead he is Defendant’s employee as a matter of law. An employee’s rights against his or her employer for on-the-job injuries lies solely under the workers’ compensation law; i.e., the employer is immune from civil damages liability because workers’ compensation is the injured employee’s exclusive remedy. Labor Code 3600, 3601, 2602(a). As a result, this action is barred and the Motion is granted on this basis.

“Plaintiff contends that an exception to exclusivity exists via Labor Code section 3352(h)(1). This provision states that the definition of ’employee’ excludes ‘[a] person . . . whose employment by the employer to be held liable, during the 90 calendar days immediately preceding the date of injury, . . . was . . . for less than 52 hours.’ It is undisputed that Plaintiff worked for Defendant approximately 72 hours in the 90 days before the accident on December 14, 2014. However, Plaintiff argues that the hours he worked as a ‘gardener’ should be excluded because he was working in the capacity of an independent contractor. As a result, hours he worked as a ‘tree trimmer’ are less than 52 within the 90 days before his injury. Plaintiff argues, he was not an ’employee’ while trimming trees, and the rule of exclusivity does not apply.

“In support of this contention, Plaintiff presents evidence that he operates an independent landscape business in which he services multiple clients, utilizes his own tools, was not paid hourly, utilized specialized skills, etc. The evidence provided by Plaintiff is sufficient to create a dispute regarding whether his work for Defendant as a gardener (excluding tree trimming) was performed as an independent contractor. See S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350–351 (discussing factors supporting employment relationship). On the other hand, Plaintiff fails to cite any legal authority supporting the contention that a single engagement can be split into two subparts; consisting of both an employment relationship and an independent contractor relationship. Plaintiff’s own declaration presents unrefuted evidence that the engagement was intertwined. He was retained to trim the trees as an addendum to his normal duties. The tree trimming was completed in conjunction with the normal gardening service, on the same date and at the same location. Plaintiff did not operate a separate business as a tree trimmer. Both were components of the services provided to Defendant on the same day. Thus, the separation Plaintiff seeks is not permissible and Plaintiff’s argument lacks merit.” (Italics added.)

The court added to its final ruling, as a “supplement” to the above comments, the following statements:

“Defendant satisfied its burden of persuasion regarding a finding of an employment relationship that results from the unlicensed tree trimming. This employment relationship, in turn, prevents the institution of a civil action for damages as a matter of law. At the same time, Defendant satisfied its burden of producing evidence establishing the unlicensed tree trimming. The burden then shifts to Plaintiff to present evidence supporting his proffered theory of liability. As previously discussed, Plaintiff presents no legal authority supporting the contention that a single engagement can be split into two subparts; consisting of both an employment relationship and an independent contractor relationship. And even if authority did exist, Plaintiff has not met his burden of producing evidence of this separateness. Plaintiff’s declaration does not discuss whether he was performing gardening work on the date of the tree trimming incident, whether he was paid via a separate check for the tree trimming services, whether he performed tree trimming work for other gardening clients, etc. Thus, the ruling is confirmed on this basis.” (Underscore omitted.)

The court subsequently entered judgment in favor of Bruno. Contreras-Perales filed a timely notice of appeal.

III.

DISCUSSION

A. Summary judgment standards on appeal

A motion for summary judgment “shall be granted if all of the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted . . . based on inferences . . . contradicted by other inferences or evidence, which raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).)

“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850–851 (Aguilar).) Although the burden of production shifts, the moving party always bears the burden of persuasion. (Id. at p. 850.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Ibid., fn. omitted.)

A defendant moving for summary judgment based on an affirmative defense ” ‘bears an overall burden of persuasion that there is a complete defense to the plaintiff’s action’ . . . [and] must persuade the court there is no triable issue of fact as to that defense.” (Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1057.)

On appeal, this court “determine[s] de novo whether an issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law. [Citation.] In other words, we must assume the role of the trial court and reassess the merits of the motion. [Citation.] In doing so, we will consider only the facts properly before the trial court at the time it ruled on the motion. [Citation.]” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) “We apply the same three-step analysis required of the trial court. First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond. Second, we determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in the moving party’s favor. When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable issue of material fact.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493–494.)

“In performing . . . de novo review [of an order granting summary judgment], we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing his evidentiary submission while strictly scrutinizing defendants’ own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768–769.)

B. Background regarding the workers’ compensation system

“The California Workers’ Compensation Act (Act) provides an elaborate and complete scheme for the adjudication of claims by employees against employers for injuries arising out of the course and scope of employment.” (Rymer v. Hagler (1989) 211 Cal.App.3d 1171, 1177.)

“Where an employee is injured in the course and scope of his or her employment, workers’ compensation is generally the exclusive remedy of the employee and his or her dependents against the employer.” (LeFiell Manufacturing Co. v. Superior Court (2012) 55 Cal.4th 275, 279 (LeFiell), citing §§ 3600, subd. (a), 3602.) The Workers’ Compensation Act provides that “[w]here the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is . . . the sole and exclusive remedy of the employee or his or her dependents against the employer” (§ 3602, subd. (a), italics added), and that “[i]n all cases where the conditions of compensation set forth in Section 3600 do not concur, the liability of the employer shall be the same as if this division had not been enacted.” (§ 3602, subd. (c)). “The ‘exclusivity rule’ is based upon a presumed compensation bargain: ‘[T]he employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.’ [Citation.]” (LeFiell, supra, at p. 279.)

As the Supreme Court has explained, “a defendant in a civil action who claims to be one of that class of persons protected from an action at law by the provisions of the Workers’ Compensation Act bears the burden of pleading and proving, as an affirmative defense to the action, the existence of the conditions of compensation set forth in the statute which are necessary to its application. [Citations.] ‘The employee is pursuing a common law remedy which existed before the enactment of the statute and which continues to exist in cases not covered by the statute. It is incumbent upon the employer to prove that the Workmen’s Compensation Act is a bar to the employee’s ordinary remedy.’ [Citation.]” (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96–97, fn. omitted.)

C. Legal framework for determining whether a worker is an employee or an independent contractor

“The Worker’s Compensation Act (Act) extends only to injuries suffered by an ’employee,’ which arise out of and in the course of his ’employment.’ (§§ 3600, 3700; see Cal. Const., art. XIV, § 4 (former art. XX, § 21).) ‘[Employees]’ include most persons ‘in the service of an employer under any . . . contract of hire’ (§ 3351), but do not include independent contractors. The Act defines an independent contractor as ‘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.)” (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349 (Borello).)

The categories of “employee” and “independent contractor” are mutually exclusive. (City of Los Angeles v. Meyers Bros. Parking Systems, Inc. (1975) 54 Cal.App.3d 135, 138; see §§ 3351, 3352, 3353, 3357.) Whether a worker is an employee or independent contractor “is one of fact if dependent upon the resolution of disputed evidence or inferences.” (Borello, supra, 48 Cal.3d at p. 349.)

In Borello, the Supreme Court noted that the Act includes the “common law ‘control-of-work’ test” in the statutory definition of an independent contractor. (Borello, supra, 48 Cal.3d at p. 350.) However, the Supreme Court also acknowledged that “courts have long recognized that the ‘control’ test, applied rigidly and in isolation, is often of little use in evaluating the infinite variety of service arrangements. While conceding that the right to control work details is the ‘most important’ or ‘most significant’ consideration, the authorities also endorse several ‘secondary’ indicia of the nature of a service relationship.” (Ibid.) The court went on to describe other factors that may be considered in determining whether a worker is an employee or instead, an independent contractor:

“[W]e have noted that ‘[s]trong evidence in support of an employment relationship is the right to discharge at will, without cause. [Citations.]’ [Citations.] Additional factors have been derived principally from the Restatement Second of Agency. These include (a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee. [Citations.] ‘Generally, . . . the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.’ [Citation.]” (Borello, supra, at pp. 350–351.)

The Borello court also agreed that “under the Act, the ‘control-of-work-details’ test for determining whether a person rendering service to another is an ’employee’ or an excluded ‘independent contractor’ must be applied with deference to the purposes of the protective legislation. The nature of the work, and the overall arrangement between the parties, must be examined to determine whether they come within the ‘history and fundamental purposes’ of the statute.” (Borello, supra, 48 Cal.3d at pp. 353-354.) Importantly, “[e]ach service arrangement must be evaluated on its facts, and the dispositive circumstances may vary from case to case.” (Id. at p. 354, italics added.)

Beyond these factors, the Labor Code includes specific statutory provisions that are applicable to the facts presented in this case. For example, section 3351 defines an ” ‘[e]mployee’ ” to mean “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,” and specifically includes within this definition “any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant,” with the exception of individuals identified “in paragraph (8) of subdivision (a) of Section 3352.” (§ 3351, subd. (d), italics added.)

Section 3352, subdivision (a), in turn, specifically excludes from the status of ” ’employee’ ” a number of different types of workers, including the following:

“(8) A person described in subdivision (d) of Section 3351 whose employment by the employer to be held liable, during the 90 calendar days immediately preceding the date of injury, for injuries as described in Section 5411, or during the 90 calendar days immediately preceding the date of the last employment in an occupation exposing the employee to the hazards of the disease or injury, for diseases or injuries as described in Section 5412, comes within either of the following descriptions:

“(A) The employment was, or was contracted to be, for less than 52 hours.

“(B) The employment was, or was contracted to be, for wages of not more than one hundred dollars ($100).[ ]” (§ 3352, subd. (a)(8).)

Section 3357 provides a presumption of “employee” status as follows: “Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.” (Italics added.)

Finally, pursuant to section 2750.5, “[t]here is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, 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.” Section 2750.5 is not a part of the workers’ compensation law, but is contained in Division 3 of the Labor Code, which deals with the employer-employee relationship; by its terms, however, section 2750.5 supplements, and applies to, workers’ compensation law. (See State Compensation Ins. Fund v. Workers’ Comp. Appeals Bd. (1985) 40 Cal.3d 5, 9–15.) The parties to this case agree that under Business and Professions Code section 7026.1, subdivision (a)(4), one who provides tree trimming services on trees 15 feet in height or more is required to have a contractor’s license.

In applying these statutes together, courts have determined that a worker hired by a homeowner or by an unlicensed contractor who, in turn, has been hired by a homeowner, does not come within the workers’ compensation system’s exclusivity provisions, despite the contractor’s and worker’s unlicensed status, when that worker has not worked 52 hours or more for the homeowner, or earned $100 in wages for work performed for that homeowner, within 90 days prior to the date of injury. (See Zaragoza v. Ibarra (2009) 174 Cal.App.4th 1012, 1016; see also Mendoza v. Brodeur (2006) 142 Cal.App.4th 72, 79 (Mendoza) [roofer injured after only four hours of beginning to work on the job came within exclusion to workers’ compensation law coverage now contained in section 3352, subdivision (a)(8)]; Cedillo v. Workers’ Comp. Appeals Bd. (2003) 106 Cal.App.4th 227, 234 [affirming Board’s determination that because injured worker “worked less than 52 hours on the roof” worker was “excluded from being” homeowner’s employee for purposes of worker’s compensation]; Heiman v. Workers’ Comp. Appeals Bd. (2007) 149 Cal.App.4th 724, 744–745 [individual owners of the units in condominium building were not liable for workers’ compensation for injury to worker hired by unlicensed contractor to work on rain gutters because worker did not work sufficient hours under former version of section 3352, subdivision (a)(8) to be an “employee” under workers’ compensation law]; see also Ramirez v. Nelson (2008) 44 Cal.4th 908, 914 [noting with approval that “[d]uring the hearing of pretrial motions it became apparent to the trial court and parties that the workers’ compensation laws were inapplicable to this case for two reasons. . . . [One of the reasons was that] the decedent had not worked the required 52 hours for the Nelsons, nor earned $100 during the 90 calendar days immediately preceding his death, so as to bring him within the special statutory definition of an ’employee’ eligible for workers’ compensation benefits, regardless of whether defendants maintained insurance that included workers’ compensation coverage for their ’employees’ “].)

D. Analysis

As the party moving for summary judgment, Bruno bore the initial burden of production of evidence to make a prima facie showing of the nonexistence of any triable issue of material fact in the trial court, and continues to bear that burden on appeal. (See Aguilar, supra, 25 Cal.4th at pp. 850–851.) Further, if Bruno meets her burden of production, and Contreras-Perales meets his own burden of production to make a prima facie showing of the existence of a triable issue of material fact, Bruno then bears the burden of persuasion to demonstrate that the evidence would not allow a reasonable trier of fact to find the underlying fact in favor of Contreras-Perales, in accordance with the applicable standard of proof. (See id. at p. 850.)

Because Bruno is relying on the affirmative defense that the workers’ compensation system provides the exclusive remedy for Contreras-Perales’s injuries, she has the burden of demonstrating that facts exist establishing this affirmative defense as a matter of law. Thus, it is Bruno’s burden to prove that Contreras-Perales was acting as an “employee” subject to workers’ compensation coverage at the time of his injury.

Bruno presented evidence to support a prima facie showing that Contreras-Perales was her “employee” for purposes of workers’ compensation law at the time of his injury. Specifically, she presented evidence that on December 14, 2014, the date on which Contreras-Perales’s injury occurred, Contreras-Perales was trimming trees on her property that exceeded 15 feet in height and that he did not have a license to perform such work. Therefore, under section 2750.5, there is a rebuttable presumption that Contreras-Perales was acting as an “employee” of Bruno’s while he was trimming trees on her property.

Given the further requirement in section 3352, subdivision (a)(8)(A) that a person who is “employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling” (§ 3351, subd. (d)) also have been employed or contracted to be employed for at least 52 hours prior to the occurrence of the injury in order to be considered an employee, at the time of the injury, for purposes of workers’ compensation law, Bruno presented evidence that Contreras-Perales conceded that he had “worked for” Bruno for more than 52 hours during the 90 days before the date of his injury.

In response to Bruno’s production, Contreras-Perales produced additional evidence regarding what had occurred between the parties—evidence that raised a material question of fact regarding whether section 3352, subdivision (a)(8)(A) operated to exclude Contreras-Perales from the status of “employee” for purposes of workers’ compensation law. Specifically, Contreras-Perales presented evidence from which a factfinder could find the following: Bruno hired Contreras-Perales to provide routine landscape maintenance at her residence, and he performed landscape maintenance services on a regular basis for Bruno and for other customers, as well. The landscape maintenance that Contreras-Perales provided consisted of a number of duties, including pulling weeds and trimming bushes, but did not include trimming trees 15 feet or more in height. Contreras-Perales was paid “by the job” and “not by the hour” for his routine landscaping services, and he could take as long as necessary to complete a task. In addition, gardeners such as Contreras-Perales typically perform their landscape maintenance services without supervision from homeowners. Contreras-Perales had provided landscape maintenance services for Bruno “once a week or once every two weeks from 2013” until the date of his injury. In the 90 days prior to the day that Contreras-Perales was injured, he had provided a total of approximately 72 hours of landscape maintenance services to Bruno at her residence.

A factfinder could also find that Contreras-Perales brought and utilized his own tools to perform landscape maintenance services for his customers, and that he did not possess tree-trimming tools. In addition, a fact-finder could find that on December 14, 2017, Bruno asked Contreras-Perales to provide additional services for her, beyond the normal landscape maintenance that he provided, by trimming five trees that exceeded 15 feet in height, and that Contreras-Perales agreed to provide the tree-trimming services for “a price in addition to, and separate from [his] regular gardening/yard maintenance fee.” In order to complete the tree-trimming assignment, Contreras-Perales had to borrow tools from Bruno, including a “tall ladder” and “hand clippers.”

Given this evidence, the trial court determined that the record on summary judgment was sufficient to create a dispute about whether the services that Contreras-Perales normally performed, i.e., gardening and landscape maintenance, was done as an independent contractor. We agree with this assessment. Indeed, there are a number of indicators from which one could find that Contreras-Perales was acting not as an employee, but as an independent contractor, during the 72 hours in which he provided routine landscape maintenance services for Bruno, under the factors identified as relevant for determining employment status in Borello, supra, 48 Cal.3d at pages 350–351. There is evidence from which one can infer that Contreras-Perales had control over his work, thereby meeting the ” ‘control-of-work’ ” test outlined in the statutory definition of independent contractor provided in section 3353. For example, Contreras-Perales stated that he could take as long as necessary to complete a task, and that gardeners like him would typically perform their tasks without supervision from homeowners. One could thus infer that Contreras-Perales controlled the means by which the result of his work was accomplished. Other factors also weigh in favor of a finding that he was acting as an independent contractor when he provided landscape maintenance services, such as the fact that he owned his own landscape maintenance business and provided his services to multiple customers, not just Bruno, that he provided his own tools and special expertise in performing landscape services, and that he was paid per project or job, and not by the hour. (See Borello, supra, at p. 351 [factors related to determination of employment relationship include “whether the one performing services is engaged in a distinct occupation or business,” “whether the principal or the worker supplies the instrumentalities, tools, . . . for the person doing the work,” and “the method of payment, whether by the time or by the job”].)

Despite the existence of all of this evidence from which one could conclude that for the 72 hours that Contreras-Perales performed landscape maintenance services for Bruno in the 90 days prior to the day of his injury he was providing his services as an independent contractor, the trial court concluded that this evidence was not sufficient to create a triable issue of fact as to whether all of the services for which Bruno contracted with Contreras-Perales constituted a “single engagement” consisting of “two subparts,” or instead, whether the services that Contreras-Perales provided could have constituted two separate engagements for services, one of which involved Contreras-Perales acting as an independent contractor (i.e., for the normal landscape maintenance work that he did on a regular basis for Bruno), and one of which involved Contreras-Perales acting as an employee (i.e., for tree trimming).

Essentially, the trial court concluded that, as a matter of law, there was a “single engagement” for all of the services, jointly—i.e., the landscape maintenance services and the tree trimming services, and further concluded that this “single engagement” could not be broken down into services performed as an independent contractor and services performed as an employee. The court erred in this regard, because there remains a material question of fact as to whether Contreras-Perales was working for Bruno in two separate capacities, such that he was an independent contractor when he provided the routine landscape maintenance services, but was acting as an employee for the hours during which he provided the tree trimming services. Of particular import for our determination is the evidence that Contreras-Perales operated his own landscape maintenance business, through which he provided landscape maintenance services that did not include trimming trees, that a license is required for the specific duties of trimming trees that are 15 feet or more in height, such that those services may generally be considered to be separate from other landscape maintenance services, that Contreras-Perales was not equipped with the tools necessary to provide tree trimming services and had to use tools that belonged to Bruno, and that Contreras-Perales agreed to perform the tree trimming for a separate amount of money “in addition to” the fee that he charged her for his regular landscape maintenance services. This evidence demonstrates that the skills and equipment necessary to perform the two tasks at issue here—routine landscape maintenance versus tree trimming—are different. Indeed, given all of the facts, it is clear that a reasonable factfinder could conclude that in the 90 days prior to Contreras-Perales’s injury, he had provided 72 hours of routine landscape maintenance services, excluding tree trimming, as an independent contractor who owned his own landscape/gardening maintenance business, and that he provided only 4 hours of tree trimming services as an employee of Bruno’s.

The trial court faulted Contreras-Perales for failing to present any “legal authority supporting the contention that a single engagement can be split into two subparts.” Based on the facts presented on summary judgment, a factfinder could conclude that Bruno contracted with Contreras-Perales for two separate services, and that he was acting as an independent contractor while performing landscape maintenance services, but was acting as Bruno’s employee while trimming trees that exceeded 15 feet in height. If Contreras-Perales was acting in the status of an independent contractor when he provided landscape maintenance services to Bruno at her residence in the 90 days prior to the accident, then the 72 hours that he worked providing routine landscape maintenance services during those 90 days cannot not be combined with the 4 hours he spent trimming trees on the property. Contreras-Perales would thus not meet the 52-hour requirement necessary to establish that he was an “employee” under sections 3351, subdivision (d) and 3352, subdivision (a)(8)(A) for purposes of workers’ compensation law at the time of his injury.

In reaching our conclusion that the trial court erred in granting summary judgment for Bruno, we reject the trial court’s faulting Contreras-Perales for failing to present evidence as to “whether he was performing gardening work on the date of the tree trimming incident, whether he was paid via a separate check for the tree trimming services, whether he performed tree trimming work for other gardening clients, etc.” and relying on this as part of the basis for granting summary judgment. The answers to these questions might provide further elucidation to assist a factfinder in determining whether the hours that Contreras-Perales provided landscape maintenance services as part of his own landscape maintenance business were performed as an independent contractor, while the hours that he spent trimming Bruno’s tall trees, for a separate fee while using Bruno’s supplies, were performed as an employee. However, Contreras-Perales had already presented sufficient evidence to demonstrate the existence of a material issue of fact as to whether he provided the 72 hours of landscape maintenance services as an independent contractor and the 4 hours of tree-trimming services as an employee, even without evidence as to the matters raised by the trial court. Further, the court appears to have placed on Contreras-Perales the burden of persuasion to establish the inapplicability of the exclusivity provisions of the workers’ compensation law, but Contreras-Perales should not have been held to such a burden. Rather, once Contreras-Perales presented evidence sufficient to rebut the presumption that he was acting as Bruno’s employee for the 52 hours required under the Act, the burden of persuasion for establishing the applicability of the exclusivity provisions of the workers’ compensation system was Bruno’s, as the defendant moving for summary judgment on the basis of an affirmative defense. It was thus error for the court to conclude that Contreras-Perales had to demonstrate that the landscape maintenance services that he provided to Bruno were performed as an independent contractor but that the tree trimming services on the date of his injury were performed as an employee, as a matter of law, in order to survive summary judgment. Rather, the court should have required Bruno to demonstrate as a matter of law that Contreras-Perales was acting in the status of Bruno’s employee for more than 52 hours in the 90 days prior to his injury. As we have already concluded, there remain issues of material fact as to whether, when Contreras-Perales provided landscape maintenance services to Bruno as part of his independent landscaping/gardening business, he was acting in the status of an independent contractor, even if he was acting in the status of an employee during the hours he provided tree trimming services for Bruno. As a result, Bruno was not entitled to summary judgment on the ground of her affirmative defense that the workers’ compensation system provided the exclusive remedy for Contreras-Perales’ injuries.

IV.

DISPOSITION

The judgment is reversed. The matter is remanded for further proceedings. Contreras-Perales is entitled to costs on appeal.

AARON, J.

WE CONCUR:

McCONNELL, P. J.

O’ROURKE, J.