Ian Czirban was charged with a number of regulatory crimes following a fatal July 2016 accident involving his bulldozer, which had been assisting the California Department of Forestry and Fire (Cal Fire) at a wildfire in Monterey County.

After a bench trial, the trial court convicted Czirban of procuring or offering a false or forged instrument, tax evasion, failure to collect, account for, or pay taxes, and misdemeanor failure to secure payment of workers’ compensation insurance.

For these convictions, the trial court suspended imposition of sentence and placed Czirban on felony probation for three years with various conditions, including the payment of a $10,000 fine under Labor Code section 3700.5.

On appeal, Czirban contends that his convictions for tax evasion, failure to pay taxes, and failure to secure payment of workers’ compensation insurance must be reversed because he did not have an employment relationship with his bulldozer drivers, an element of those offenses.

The parties agreed at trial that the trial court should resolve this factual question central to counts 5, 6, and 7 under the multifactor test articulated in Borello – not the three-part – “ABC test” – adopted by the California Supreme Court for wage order claims, a year before Czirban’s trial, in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, 916, 964.

Given the timing of the criminal acts alleged against Czirban, the court concluded that the parties’ agreement regarding the applicability of Borello was proper.

Czirban relies on Borello, 48 Cal.3d at p. 349 and Lara v. Workers’ Comp. Appeals Bd. (2010) 182 Cal.App.4th 393, 396, 398 (Lara) to argue that the question of worker status.

The conviction was affirmed in the published case of People v Czirban. The terms of probation were however reversed and the matter submitted back to the trial court with instructions.

Examining the trial evidence under the Borello test, the court concluded that there is sufficient evidence of an employment relationship between Czirban and his bulldozer drivers during the relevant period.

The evidence demonstrates that it was Czirban who decided whether to accept 24-hour resource assignments from Cal Fire (including the Soberanes fire assignment), knowing that he would need to enlist other bulldozer drivers to complete them. Czirban thus controlled the overall scope of the work, the number of operators needed for any assignment he accepted, who those other operators would be, and the overall period during which the operators would work.

During Czirban’s chosen wildfire assignments, his bulldozer drivers also were not “engaged in a distinct occupation or business.”

These circumstances demonstrate Czirban’s “right to control the manner and means of accomplishing the result desired,” (Borello, supra, 48 Cal.3d at p. 350) i.e., to have certain workers operate his bulldozer to fulfill his chosen wildfire assignments so he could obtain a higher rate of compensation from Cal Fire.