Yeh Juin Tung hired Michael Waller, who owned Waller Tree Care, to perform services that included removing one tree and trimming four others. The price for the work was $400. Tung was unaware that Waller was not licensed; he knew only that Waller had advertised on Yelp.com as being bonded and insured. Waller did not have workers’ compensation insurance at that time.
On October 6, 2008, Waller appeared at Tung’s property to do the work. He was accompanied by Jose Luis Escalera. Escalara leaned a ladder against a tree and climbed up about 10 feet. As he began to cut branches with a handsaw, he fell. He did not know why he fell; as he stated in his deposition, “All I know is that the ladder went to one side and I wasn’t able to hold on.”
Escalara filed a civil action in December 2009, alleging negligence against both Waller and Tung.
Tung moved for summary judgment, contending that plaintiff was not his employee but an employee of Waller, an independent contractor. He also disputed plaintiff’s negligence claim “because there is no evidence of any breach of any duty or any causation by Mr. Tung.” In his opposition, plaintiff agreed that Waller was an independent contractor, but he raised the “peculiar risk” doctrine to argue that Tung was liable whether or not he was personally negligent, because plaintiff was performing “inherently dangerous work,” and Tung must bear responsibility for all risks of injury to a worker, “regardless of fault.” The parties debated the applicability of the exception to the peculiar-risk doctrine expressed in Privette v. Superior Court (1993) 5 Cal.4th 689.
The superior court ruled in Tung’s favor. Addressing plaintiff’s assertion that Tung was vicariously liable because Waller had not procured workers’ compensation insurance, the court reasoned that “an employee of a negligent contractor can recover under the workers’ compensation system even if the contractor is uninsured.” As plaintiff had not established a triable issue under the peculiar risk doctrine or supported a theory of direct liability, Tung was entitled to summary judgment. From the ensuing judgment on July 13, 2012, plaintiff brought an appeal. The Court of Appeal affirmed the dismissal in favor of the homeowner in the unpublished case of Escalera v. Tung.
On appeal, plaintiff does not suggest that he was Tung’s employee under the workers’ compensation system; he acknowledges that the Workers’ Compensation Act (§ 3200 et seq.) is inapplicable because he worked less than 52 hours on Tung’s property. Plaintiff does, however, assert that Tung was his employer for purposes of civil tort liability under section 2750.5. Plaintiff cites the undisputed facts that “Waller was a contractor who did not have a contractor’s license,” that “Waller advertized [sic] his tree care business on Yelp, and that he did not state in his advertisement that he was not licensed under the contractors’ licensing law.” From those facts plaintiff asserts that Waller is “conclusively presumed to be Tung’s employee” under labor code section 2750.5.
Under this statute Waller would be presumed to be an employee of Tung by performing a service for which a license was required, and plaintiff, by working for Waller, would then also be deemed an employee of Tung. A license is not required, however, for small jobs costing the hirer less than $500. (Bus. & Prof. Code, § 7048.) It was undisputed that the contract price for the tree trimming was $400; accordingly, the presumption would not have applied.