Decedent, Juan Sanchez, fell from the roof of the residence of Defendant Alejandro Perez. Prior to the incident, Defendant Alejandro Perez believed that there were some areas of dry rot under the eaves on various portions of the roof. The sole cost of the roof repairs was $186.68, which was the cost of supplies purchased by Perez. The decedent had several years of construction experience, including roofing repairs and according to his wife knew how to perform all aspects of construction.
On April 22, 2006, the decedent began making roof repairs to Defendant’s eaves. The decedent used his own tools and ladder to make the repairs, with the exception of one saw which was provided by Defendant Perez. Defendant Perez’s only assistance in the repairs was handing materials up the ladder. As decedent was familiar with roof repairs, Defendant Perez did not direct the details of the decedent’s work. Prior to the decedent’s fall, his wife warned him to be careful because he was near the edge of the roof. Defendant Perez subsequently found the decedent lying injured on the driveway. Decedent was transported to San Joaquin County General Hospital where he died the following day from his injuries. Prior to the fall, the decedent had been drinking beer. The decedent’s survivors sued defendant Alejandro Perez alleging negligence.
The trial court granted defendant’s motion for summary judgment. It concluded that: (1) all of plaintiffs’ causes of action were for negligence; (2) defendant did not owe the decedent a duty of care; (3) California Occupational Safety and Health Act (Cal-OSHA) regulations were inapplicable; (4) the decedent was not defendant’s employee; (5) defendant did not exercise control over the work; (6) defendant had no duty to warn the decedent of an obviously dangerous condition; (7) plaintiffs cannot establish causation; (8) the decedent assumed the risk; and (9) plaintiffs cannot establish a claim for emotional distress.
The plaintiff appealed the summary judgment. The Court of Appeal affirmed the dismissal in the unpublished decision of Dolores Rivera-Sanchez v Alejandro Perez.
Plaintiffs claim that the decedent was defendant’s employee under the presumption created in Labor Code section 2750.5. But the Court of Appeal found that the presumption does not apply because the job fell within an exception under Business and Professions Code section 7048.
Labor Code section 2750.5 states: “There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to [the Contractors’ State License Law], 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. . . .”
Plaintiffs tried to apply Labor Code section 2750.5 to establish that the decedent was defendant’s employee because the work the decedent was doing required a contractor’s license (and the decedent did not have a contractor’s license). However, Business and Professions Code section 7048 states that the Contractors’ State License Law “does not apply to any work or operation on one undertaking or project by one or more contracts, the aggregate contract price which for labor, materials, and all other items, is less than five hundred dollars ($500), that work or operations being considered of casual, minor, or inconsequential nature.” The only evidence of the cost of the project in this case was $186.68 that defendant spent on materials. Because the project cost less than $500, no contractor’s license was required. The Court ruled that because no contractor’s license was required, the Labor Code section 2750.5 presumption that the decedent was defendant’s employee does not apply.
Plaintiffs also attempt to invoke Labor Code section 3357, which states: “Any person rendering service for another, other than as an independent contractor, or unless expressly excluded herein, is presumed to be an employee.” However, this workers compensation statute does not apply “if the essential contract of hire, express or implied, is not present.” (Spradlin v. Cox (1988) 201 Cal.App.3d 799, 807.) A contract for hire requires “‘(1) consent of the parties, (2) consideration for the services rendered, and (3) control by the employer over the employee.’” (Ibid.) Here, there was no consideration for services rendered, and defendant did not exercise control over the decedent. Therefore, the Court ruled that decedent was not an employee under Labor Code section 3357.