Jessie Washington owns a two-story home in San Diego. In 2022 she hired Roman Sedano, an unlicensed contractor, to paint the home’s exterior. Sedano in turn hired Luis Gonzalez — also unlicensed — to perform some of the work.
On the second day of the three-day job, Gonzalez was on the roof painting with a spray gun. Walking backwards, he tripped on a rain gutter and fell off the roof, sustaining injuries. Gonzalez had inspected the area beforehand and found it clear; he had also checked the rain gutter and judged it sound, but surmised a coworker later dislodged it with a ladder. He knew the gutter had come loose but did not think it would trip him.
Gonzalez sued both Washington and Sedano. Against Washington he asserted negligence and premises liability, alleging Sedano was Washington’s employee under Labor Code section 2750.5 (which presumes a worker performing services requiring a license is an employee, and makes a valid license a condition of independent-contractor status). Gonzalez alleged Washington caused his injuries by failing to provide safety equipment, hire a licensed contractor, supervise the work, and warn of dangerous conditions.
Washington moved for summary judgment, arguing no act or omission of hers caused the fall. She relied on Gonzalez’s deposition, in which he described inspecting and clearing the area. Gonzalez opposed, invoking Labor Code section 3708 (which presumes employer negligence when an uninsured employer is sued by an employee), arguing Washington violated the standard of care for residential roof work by failing to provide fall protection, and asserting vicarious liability for Sedano. He submitted an expert declaration from Robert Clayton, a construction professional with 35-plus years of experience, opining that the industry standard of care requires a fall-restraint system for roof painting and that Washington breached it. Notably, Washington filed no reply and never objected to or disputed Clayton’s declaration.
The trial court granted summary judgment. It presumed Gonzalez was Washington’s employee under section 2750.5, assumed the section 3708 negligence presumption applied but found it rebutted because Gonzalez knew of the allegedly dangerous condition and had satisfied himself it was safe, and found the safety-equipment and vicarious-liability theories unsupported because Clayton’s declaration did not specify what equipment was required or how it would have prevented the accident. Judgment was entered for Washington, and Gonzalez appealed.
The Court of Appeal reversed in the unpublished case of Gonzalez v. Washington, Case No. D085345 (June, 2026) , holding triable issues of fact precluded summary judgment. On remand, the trial court was directed to vacate its order and deny the motion, with costs to Gonzalez. Because the opinion is unpublished, it carries no precedential weight and may not be cited.
The court first sorted out Gonzalez’s status, because it dictates the burdens and available defenses. Washington conceded that, because both Sedano and Gonzalez were unlicensed, Gonzalez was her presumptive employee under section 2750.5 (see Mendoza v. Brodeur (2006) 142 Cal.App.4th 72). But the court held Gonzalez fell outside the workers’ compensation system. Under section 3352, subdivision (a)(8), a residential worker is excluded from the definition of “employee” if, in the 90 days before injury, the employment was contracted for either less than 52 hours or wages of $100 or less. Because the provision is written in the disjunctive, failing to meet the hours minimum is enough (see Zaragoza v. Ibarra (2009) 174 Cal.App.4th 1012). Although Gonzalez earned over $100, the three-day job totaled only about 24 hours, well below 52. He was therefore excluded from workers’ compensation.
That exclusion had two consequences. First, Gonzalez could not invoke the section 3708 presumption of employer negligence, which applies only to workers covered by the compensation act. Instead, his remedy lay in Labor Code sections 2800 and 2801 — under which an employer must indemnify an employee for losses caused by the employer’s want of ordinary care, but the employee bears the burden of proving negligence (see Devens v. Goldberg (1948) 33 Cal.2d 173). Second, and importantly, section 2801 bars Washington from asserting either assumption of the risk or the negligence of a fellow servant (the coworker who allegedly loosened the gutter) as defenses. The trial court’s reliance on Gonzalez’s own awareness of the loose gutter to defeat the claim was therefore misplaced in this framework.
Applying de novo review and liberally construing the opposition evidence, the court found Gonzalez raised triable issues. A landowner must keep property reasonably safe, and while the danger of falling from a roof is obvious, an obvious danger does not negate the duty of care where it is foreseeable a person will encounter it out of necessity — here, painting the exterior (see Jones v. Awad (2019) 39 Cal.App.5th 1200; Montes v. Young Men’s Christian Assn. of Glendale (2022) 81 Cal.App.5th 1134). On causation, the plaintiff need only show the defendant’s negligence was a substantial factor, which may rest on reasonable inferences from circumstantial evidence; direct proof of each link is not required (Raven H. v. Gamette (2007) 157 Cal.App.4th 1017; City of Modesto v. Dow Chemical Co. (2018) 19 Cal.App.5th 130).