Filed 10/15/13 Bussard v. Ings CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

MATTIAS BUSSARD,

Plaintiff and Appellant,

v.

LLOYD INGS,

Defendant and Respondent. B244911

(Los Angeles County Super. Ct. No. SC112353)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

The opinion filed October 4, 2013 is modifi ed to correct a typographical error. On page 9, paragraph 2, line 1, the sentence “A building owner’s responsibility to proved a safe working environment . . .” is deleted. In its place the fo llowing is to be inserted: “A building owner’s responsibility to provide a safe working environment . . . .”

__________ ___________ KUMAR, J. * __________ ____________ MOSK, Acting P. J. __________ ____________ KRIEGLER, J.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.Filed 10/4/13 (unmodified version) NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

MATTIAS BUSSARD,

Plaintiff and Appellant,

v.

LLOYD INGS,

Defendant and Respondent. B244911

(Los Angeles County Super. Ct. No. SC112353)

APPEAL from an order of the Superior Court of Lo s Angeles County, Allan J. Goodman, Judge. Reversed.

Law Offices of Robert J. Scuderi and Robe rt J. Scuderi for Plaintiff and Appellant. Demler, Armstrong & Rowland, James P. Lemieux and Robert W. Armstrong for Defendant and Respondent.3 The California Occupational Safety and Health Act of 1973 (Cal-OSHA; Lab.

Code , § 6300 et seq.) imposes a myriad of safe ty standards on employers. There are, however, exceptions to its applicability. The issu e in this case is wh ether an employer of a worker hired to paint the ev es of the employer’s triplex rental property has contracted

for work that falls within the “household domestic servic e” exception to Cal-OSHA regulations. We hold such labor does not co nstitute “household domes tic service” and is therefore subject to regulation under Cal-OS HA. The trial court’s order granting the employer’s motion for summary judgment is reversed because the ruling was based on the erroneous application of the exception.

FACTS Defendant and respon dent Lloyd Ings is a retired te lephone worker living in Simi Valley. He owns two triplexes in west Los Angeles to supplement his retirement income. Ings purchased one triplex in 1957 and the othe r in 1963. In 2009, the triplexes produced 75% of Ings’s retirement income. Plaintiff and appellant Matthias Bussard wa s a former neighbor of Ings. They

became friends in 1999. Bussard lost his job as a mortgage broker at Wells Fargo Bank

in March 2009. In August, 2009, Ings agreed to pay Bussard $20 per hour to paint the eaves on one of the triplexes. On the first day of pa inting, Bussard walked backwards off the roof and sustained injuries. Bussard acknowledg ed there was nothing defective about the roof; he simply misjudged the size of it. Ings paid Bussard’s medical bills for a period of time, but stopped when it became too expensive. Bussard then f iled this lawsuit against Ings.4 DISCUSSION Bussard’s complaint contained three causes of action: (1) premises liability; (2) general negligence; and (3) “uninsured em ployer liability (Labor Code[,] § 3706 et seq.).” Ings filed a motion for summary judgment. Ings argued, in part, that he could not be liable under negligence theories because Bussard admitted his own negligence was the only cause of the fall. In opposition to the motion, Bussard argued that Ings’s failure to comply with Cal-OS HA requirements caused or contributed to his injuries. The court ruled Bussard was not an empl oyee of Ings for purposes of Workers’ Compensation, and so Ings ha d no duty to purchase such in surance and no liability under

Labor Code section 3706. The court also ruled Bussard was not an employee for purposes of Cal-OSHA and so Ings had no dut y to comply with Ca l-OSHA requirements. Because it was undisputed the fall was not due to any defect in the roof, the court ruled Ings had no liability for negligence. The court granted Ings’s motion for summary judgment.

a. Trial court’s ruling

The court ruled as follows on the Cal-OS HA issue: “[T]he work plaintiff was performing for defendant Ings is properly deemed ‘maintenance’ or ‘repair’ of a residential building and not a major capital improvement, per Cortez v. Abich (2011) 51 Cal.4th 285. Accordingly, the court finds that the ‘household domestic services’ exception found in Labor Code § 6303(b) should properly be interpreted to encompass this situation and preclude de fendant Ings from having to comply with OSHA rules for such work because, under the facts of this case, this is not a traditional place of industry and business for which OSHA was meant to appl y. In reaching this conclusion, the court specifically recognizes that case law provides th is exception is to be interpreted broadly to a category of workers who are perform ing duties personal to the hirer and not performing duties which relate to a commercial purpose or bu siness activity of the hirer. The court further agrees that public policy an d statute’s purpose are best served by this5 interpretation of the ‘household domestic service’ exception, consistent with case law in the workers’ compensation aren a which holds that the ‘ownership and rental of a house by an individual for the purposes of supple mental income, when such owner has no particular or principal business, is not a bu siness within the contemplation of the Act’ ( Stewart v. WCAB (1985) 172 Cal.App.3d 351; [ Aubry ] v. WCAB (1995) 60 Cal.Comp.Cases 408; . . .) and that such shou ld not be treated as a traditional place of business or industry within th e contemplation of OSHA rules. Therefore, the court finds that defendant Ings was not obligated to co mply with the OSHA statutes found in Labor Code § 6300, et seq., and par ticularly §§ 6400-6406, for Mr. Bussard’s work on his rental property.”

b. Applicable law – summary judgment A party is entitled to summary judgment if un der the undisputed facts or facts as to which there is no reasonable dispute the party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co . (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show that one or more elements of the plaintiff's caus e of action cannot be established or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar

, supra , 25 Cal.4th at pp. 849, 854-855.) If the defendant meets this burden, th e burden shifts to the plaintiff to set forth “specific facts” showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar

, supra , 25 Cal.4th at p. 849.) We review the trial court's ruling de novo and apply the same legal standard that governs the trial court. ( Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 67-68.) We affirm the ruling if it is corr ect on any ground, regardless of the trial court’s stated reasons. ( Truck Ins. Exchange v. County of Los Angeles (2002) 95 Cal.App.4th 13, 20.)6 c. Applicable law – Cal-OSHA Cal-OSHA was enacted “for the purpose of assuring safe and healthful working conditions for all California working men an d women.” (Lab. Code, § 6300.) A person is an “employee” for purposes of Cal-OSHA if he is direct ed by an employer “to engage in any employment.” (Lab. Code, § 6304.1, subd. (a).) “‘Employment’ includes the carrying on of any trade, enterprise, project, industry, business, occupation, work . . . except household domestic serv ice.” (Lab. Code, § 6303, subd. (b).) “OSHA does not

define ‘household domestic service.’ Nor does the relevant legislative history offer any guidance on the meaning of the phrase.” ( Fernandez v. Lawson (2003) 31 Cal.4th 31, 36.) “In determining such intent, we look first to the words of the statute, ‘“giving to the language its usual, ordina ry import and according significance, if possible, to every word, phrase, and sentence in pursuance of the legislative purpose.”’ [Citation.] Although we give effect to a statute accor ding to the usual, or dinary import of its language [citation], language th at permits more than one re asonable interpretation allows us to consider ‘other aids, such as the statute’s purpose, legislative history and public policy.’ [Citation.]” ( Cortez v. Abich (2011) 51 Cal.4th 285, 292.)

d. Analysis Ings contends on appeal, as he did in the trial court, that the meaning of

“household domestic service” should be decided by referenc e to workers’ compensation law. The trial court agreed with Ings. We do not. Workers’ compensation law defines an “employee” as including “any person employed by the owner or occupant of a resi dential dwelling whose duties are incidental to the ownership, maintenance, or use of th e 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 th e owner or occupant,” provided the person has worked 52 or more hours for the employer during the 90 days preceding the person’s injury. (Lab. Code, §§ 3351, subd. (d); 33 52, subd. (h).) “[O]wnership and rental of a house by an7 individual for the purpose of supplemental in come, when such owner has no particular or principal business, is not a business with in the contemplation of the [Workers’ Compensation] Act.” ( Stewart v. WCAB, supra, 172 Cal.App.3d at pp. 354, 355-356.) The Workers’ Compensation Act has diffe rent language and a different history

than Cal-OSHA. Both sets of laws trace th eir roots to legislati on passed in 1913 and originally used the term “household domestic service” to refer to a class of excluded employees. There, the similar ities end. Workers’ compen sation contained an additional excluded class of employees consisting of a ny person whose duties we re “both casual and not in the usual course of the trade, business, profession or occupati on of his employer.” Over time, the laws diverged further. “H ousehold domestic service” workers were changed from an excluded class of employe es under worker’s compensation law to an included one in 1975. (Stats. 1975, c.1263, p. 3314, § 4.) They were included in a new class of employee defined as “[a]ny person employed by the owner of a private dwelling

whose duties are incidental to the ownershi p, maintenance, or use of the dwelling, including the performance of ho usehold domestic service. . . . [H]ousehold domestic service shall include, but not be limited to, the care and s upervision of children in a private residence.” ( Ibid .) Two years later, the term “ household domestic service” was

removed from the above definition of an employee, which was rewritten to read, “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 pe rsonal and not in the course of the trade, business, profession, or occupatio n of such owner or occupant.” 1 (Stats. 1977, c.17, p. 30, § 17.) In contrast, the term “house hold domestic service” has continuously been used to describe an excluded class of employees in a ll “versions of the ‘employment’ definition” in worker safety law, including the most recent version of OSHA.” ( Fernandez v.

1 The term remains in Labor Code sec tion 3715, which details the rights of employees whose employer has failed to secure the payment of workers compensation as required.8 Lawson, supra, 31 Cal.4th at p. 36.) In other words, unlike Workers’ Compensation rules, the Cal-OSHA regulations did not go through the vacillations on this issue. The California Supreme Court has not looked to workers’ compensation law for guidance in interpreting the phrase “househo ld domestic service” in Cal-OSHA, and neither do we. (See Cortez v. Abich, supra, 51 Cal.4th 285; Fernandez v. Lawson, supra, 31 Cal.4th 31.) 2 Given the different history of the two laws, and the different language contained therein, we find no basis to conclude the interpretation of the “principal business” exception to workers’ compensation recognized in Stewart dictates that the “household domestic service” exception in Cal-OSHA applies to the Ings-Bussard employment relationship. On two occasions, our Supr eme Court has considered wage and hour regulations and unemployment insurance regulations in determining the scope of Cal-OSHA coverage for work done on a home. ( Cortez v. Abich, supra, 51 Cal.4th 285; Fernandez v. Lawson, supra, 31 Cal.4th 31.) Both cases involv ed an owner-occupied single family home, and did not address the issue of Cal- OSHA’s coverage of work done on rental units. Nevertheless, the regulations cited by the Court do offer some guidance in this

case. Wage and hour regulations define “‘household occupatio ns’” in part as “‘all

services related to the . . . maintenance of a private household or its premises by an employee of a private householder.’” ( Fernandez v. Lawson, supra, 31 Cal.4th at p. 36 [italics added], quoting Cal. Code Re gs., tit. 8, § 11150, subd. 2(i) .) Similarly, regulations implementi ng unemployment insurance rules state “‘[d]omestic service in a private home’ incl udes service of a household nature performed by an employee in or about a private home in connection with the maintenance of the private home.” ( Cortez v. Abich

, supra , 51 Cal.4th at p. 293 [ italics added].) Thus, the

2 In Cortez , the Court did note that one workers’ compensation case, Crockett v. Industrial Acc. Com. (1923) 190 Cal. 583, was consiste nt with the Court’s holding in Cortez that household domestic service did not in clude work in an ex tensive construction and remodeling project. ( Id . at p. 296.)9 wage and hour and unemployment insurance regulations “both vi ew the concept of household occupations or servic e as specifically pertaining to the ‘maintenance’ of the private household or its premises, or the care of the householder’s family.” ( Id . at pp. 294-295, fn. 3 [italics added].) Bussard’s work may have qualified as maintenance work. However, Ings’s income-producing triplexes are not the equivale nt of a private home. He does not live in either triplex and they are not located on the premises or grounds of his home. The above regulations suggest that Bussard’s maintenan ce work on Ings’s rental property is not

“domestic household service.” Ings argues “the law is clear that courts realize (1) homeowners are not sophisticated people capable of navigating the complex world of OSHA and (2) that public policy (thus, far, more developed in workers’ compensation cases) encourages

individuals involved in other lin es of work (accountants, secr etaries, or here, a telephone worker) to buy rental property as supplement al retirement income and does not consider

this ‘commercial’ in nature but rath er deems it ‘personal’ in nature.” Even private homeowners must, under so me circumstances, comply with CalOSHA. “Section 6303’s definition of employ ment does not purport to categorically exempt all work performed fo r homeowners . . . .” ( Cortez v. Abich, supra, 51 Cal.4th at p. 294 [extensive remodelin g project by homeowner].) More importantly, the non-resident owner of multiple rental units is not in the same position as a homeowner who occupies his own residence. The rental unit owner is a landlord and as Bussard points out, landl ords enter “a whole new world of laws, including but not limit ed to, rent control, discrimina tion law, business taxes, zoning control and safety laws.” A certain level of sophistication is required. Further, a landlord

need not understand the detaile d requirements of Cal-OSHA; he may delegate his duty to comply with Cal-OSHA by hiring an independent contra ctor to work on his rental properties. ( SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 601 [when hirer hires an independent contractor, dele gation of Cal-OSHA dutie s to the independent contractor is implied].)10 Ings offers no authority to support his claim that public po licy encourages the purchase of rental property for suppleme ntal retirement income. The workers’ compensation exclusion for supplemental inco me was adopted without elaboration from English law over 90 years ago. ( Lauzier v. Industrial Acc. Commission of Cal. (1919) 43 Cal.App. 725, 727 [followin g English case law interpre ting the English workers’ compensation act “which has furnished the model and substance for many of the state enactments covering this subject, includi ng our own” and holdin g that “a landlord owning several houses and having an interest in others, all of which were let to tenants, was not engaged in ‘a trade or business’ w ithin the meaning of the law” ].) We see nothing in subsequent California cases discu ssing a policy of encouraging rental property purchases for retirement income. A building owner’s respon sibility to proved a safe working environment for employees who work on the building should not turn on the “reason” he bought the building. There is no rational basis to treat a person who purchases a building to generate supplemental income any diffe rently than one who purchase s an identical building to generate his primary income.

e. Labor Code Section 2750.5

Section 2750.5 establishes a “rebuttable presumption” that a worker performing services for which a license is required is an “employee rather than an independent contractor.” The party attempting to rebut th at presumption and establish the worker as an independent contractor must satisfactorily prove the worker: (1 ) “has the right to control and discretion as to the manner of perform ance of the contract for services in that

the result of the work and not the means by which it is accomp lished is the primary factor bargained for;” (2) “is customarily engaged in an independently established business;” and (3) has a “bona fide” independent contract or status as opposed to a “subterfuge to avoid employee status.” In addition to these fa ctors, the second to last clause in section 2750.5 requires “any person pe rforming any function or activity for which a license . . .11 pursuant to Chapter 9 (commencing with Sec tion 7000) of Division 3 of the Business and Professions Code [to] hold a valid contractors’ license as a condition of having independent contractor status.” Ings contends the trial court improper ly relied on the penultimate clause and “accepted” the “premise” that se ction 2750.5 made him an em ployee as a matter of law simply because Bussard was an unlicensed contractor doin g work that required a license. Ings seems to take the position that, if th e trial court had not applied the licensing requirement clause to Bussard, it would ha ve necessarily concluded Bussard was an independent contractor who is not protected by Cal-OSHA. Thus, he argues summary judgment could be affirmed on the basis that Bussard was not an employee as a matter of law and, therefore, was not entitled to the pr otections of Cal-OSHA. His position is not persuasive for two reasons. First, the trial court did not rule on th e applicability of the penultimate clause in section 2750.5. Indeed, Ings did not (a) provide any facts suggesting Bussard was an independent contractor, (b) argue the licensi ng requirement was inapplicable to Bussard, or (c) argue Cal-OSHA was not applicable to i ndependent contractors. It is improper for him to litigate this issue for the first time on appeal. The argument is forfeited. ( People

v. Edwards (2013) 57 Cal. 4th 658, 709; Browne v. County of Tehama (2013) 213 Cal. App. 4th 704, 725 Oiye v. Fox (2012) 211 Cal. App. 4th 1 036, 1065 [arguments available to an appellant “are limited by what he argued in the trial court”].) Second, notwithstanding forfeiture, Ings do es not address the remaining factors in section 2750.5—all of which, based on the current state of the record, weigh against a determination that Bussard was an independent contractor. Indeed, there are no undisputed facts in the separate statement of material facts that rebut the presumption Bussard was an employee. Ings’s argum ent regarding the in applicability of the penultimate clause of section 2750.5 is no basis to affirm the order granting summary judgment.12 DISPOSITION The order granting summary judgment is re versed. Bussard is entitled to costs on appeal.

NOT TO BE PUBLISHE D IN THE OFFICIAL REPORTS

KUMAR, J. *

We concur:

MOSK, Acting P. J.

KRIEGLER, J.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.