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Davila v. Nickell10/26/2005
ile a brief.
DISCUSSION
I. Section 3708 Presumption
As their primary appellate argument, the Louies contend the court erred in instructing the jury under section 3708 that they (as well as the other defendants) were presumed to be negligent and that a contributory negligence defense was inapplicable. To resolve this contention, we first discuss the legal basis for liability against the Louies and then discuss the applicability of section 3708 to plaintiffs' claims.
The Louies were held liable for plaintiffs' injuries based on the Louies' ownership of the Sun Villa property and their agents' actions in failing to use reasonable safety measures. Generally, a property owner is not liable for injuries sustained by a worker who is an employee of a general contractor. (See Johnson v. Tosco Corp. (1991) 1 Cal.App.4th 123, 131.) An exception to this rule applies if the general contractor is the property owner's "employee," rather than an independent contractor. (See Rosas v. Dishong (1998) 67 Cal.App.4th 815, 821-823.) The determination of a general contractor's status as an employee or an independent contractor is initially governed by section 2750.5. Under section 2750.5, a general contractor who is unlicensed is not an independent contractor and is an employee, unless excluded from employee status by another applicable statute. (Cedillo v. Workers' Comp. Appeals Bd. (2003) 106 Cal.App.4th 227, 234 (Cedillo); Rosas v. Dishong, supra, 67 Cal.App.4th at p. 822; see State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1985) 40 Cal.3d 5, 15.)
In this case, Barraza and Davila were hired by Joadd, a general contractor on the Sun Villa project. It was undisputed that Joadd did not have a general contractor's license and therefore, under section 2750.5, Joadd could not be considered an independent contractor. Thus, Joadd was the Louies' employee, unless excluded by another statute.
If a contractor is considered an employee of the property owner, the contractor's employees are also considered the property owner's employees. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 330; Nick Hagopian Drywall v. Workers' Comp. Appeals Bd. (1988) 204 Cal.App.3d 767, 771.) A worker accorded employee status under section 2750.5 has the same rights and protections as a worker employed directly by the property owner. (Nick Hagopian Drywall, supra, 204 Cal.App.3d at pp. 771-772.) Thus, as against the property owner, an injured employee of an unlicensed contractor is generally limited to workers' compensation benefits. (Blew v. Horner (1986) 187 Cal.App.3d 1380, 1387.) But if the property owner has no workers' compensation coverage, the injured worker may recover from the property owner in tort. (See § 3706; Torres v. Reardon (1992) 3 Cal.App.4th 831, 836-837.)
An employer/property owner sued in tort because of the lack of workers' compensation coverage is penalized in the tort action in the form of certain presumptions and defense limitations. (§ 3708; see Torres v. Reardon, supra, 3 Cal.App.4th at p. 837.) Section 3708 states that in any action in which an employer failed to secure the payment of compensation, "it is presumed that the injury to the employee was a direct result and grew out of the negligence of the employer, and the burden of proof is upon the employer, to rebut the presumption of negligence. It is not a defense to the employer that the employee was guilty of contributory negligence, or assumed the risk of the hazard complained of, or that the injury was caused by the negligence of a fellow servant."
The court instructed the jury on these principles. The Louies argue this instruction was erroneous because
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