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Davila v. Nickell10/26/2005
ction against an employer. (Elsner v. Uveges (2004) 34 Cal.4th 915, 935-936.) Consistent with this authority, plaintiffs presented evidence showing that Cal-OSHA investigators cited Joadd for numerous safety violations, and the trial court instructed the jury that if an employer violated identified Cal-OSHA standards, the violation is presumed to be negligence unless the employer establishes it was acting in a reasonable manner.
The Louies argue these instructions were erroneous because Davila and Barraza were working in "'household domestic service,'" which is a type of employment not governed by Cal-OSHA safety standards. (ยง 6303, subd. (b); see Rosas v. Dishong, supra, 67 Cal.App.4th at pp. 823-827.)
In Fernandez v. Lawson (2003) 31 Cal.4th 31, the California Supreme Court defined the "'household domestic service'" exception to include a tree trimmer hired by a private homeowner. (Id. at p. 36.) The court explained that the "'household domestic service'" exception applies to work connected with maintaining "'a private household or its premises by an employee of a private householder'" and "implies duties that are personal to the homeowner, not those which relate to a commercial or business activity . . . ." (Id. at pp. 36-37.) The court also stated that "overwhelming public policy and practical considerations make it unlikely the Legislature intended the complex regulatory scheme that is OSHA to apply to a homeowner hiring a worker to perform tree trimming. It is doubtful the average homeowner realizes tree trimming can require a contractor's license, let alone 'expect that OSHA requirements would apply when they hire someone to trim a tree for their own personal benefit and not for a commercial purpose . . . . Moreover, homeowners are ill-equipped to understand or to comply with the specialized requirements of OSHA.'" (Id. at p. 37, quoting Rosas, supra, 67 Cal.App.4th at p. 826.)
This holding is inapplicable to the facts of this case. The undisputed evidence establishes Barraza and Davila were engaged in commercial work rather than services for a private homeowner's benefit. The Louies (through Sun Villa Inc.) held title to the property for the purpose of remodeling and refurbishing the dilapidated apartment buildings. This venture was for a commercial purpose. The Louies were not "private householders," nor were they engaged in a purely "personal venture." The Louies were operating a business enterprise that was directly connected with the roofing repairs being performed. The Louies hired a general contractor, and the evidence supports that both the Louies and the Joadd defendants should have reasonably understood that licensing and OSHA requirements apply to the construction job. There is no statutory basis or public policy reason for concluding that OSHA safety requirements did not apply to the Sun Villa construction work.
D. Joint Venture Finding
Question No. 7 on the special verdict form asked the jury to determine whether any defendant, either directly or through their agent, was in control of the job site. The form stated that if "your answer was 'no,' answer Question No. 9," which concerned whether defendants were involved in a "joint venture for the remodel of the [Sun Villa] apartments . . . ." The jury answered Question No. 7 "yes," and also answered "yes" to Question No. 9 regarding a joint venture.
The Louies argue that the jury's conduct in answering Question No. 9 constitutes reversible error. We disagree. Because the agency and joint venture findings were alternate grounds for liability, the fact that the jury answered both of these questions in the affirmative had no improper effect on the judgment.
V. Go
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