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Davila v. Nickell10/26/2005
section 3708 provides for an exception to the presumption/defense limitation rules for certain residential employees. This portion of section 3708 states: "This section shall not apply to any employer of an employee, as defined in subdivision (d) of Section 3351, with respect to such employee, but shall apply to employers of employees described in subdivision (b) of Section 3715, with respect to such employees." (ยง 3708, italics added.) An employee under section 3351, subdivision (d) is defined as:
" . . . any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children, or whose duties are personal and not in the course of the trade, business, profession, or occupation of the owner or occupant."
This statutory category was created as part of a legislative effort to expand workers' compensation coverage for workers hired by homeowners (e.g., gardeners, repair persons, babysitters) to ensure broader financial protection for injured residential workers. (See Legis. Counsel's Dig., Sen. Conc. Amends. to Assem. Bill No. 469 (1975-1976 Reg. Sess.); Assem. Com. on Finance, Insurance & Commerce, Analysis of Assem. Bill No. 469 (1975-1976 Reg. Sess.) as amended Mar. 11, 1975.) However, by additionally enacting the section 3708 exception, the Legislature intended that this limited category of employers should not be subject to the most serious penalties (presumptions and defense limitations) if coverage for the identified employees was not obtained.
The Louies argue that Barraza and Davila fell within the section 3351(d) definition because the Sun Villa apartment complex was a residential dwelling and their duties involved repair work to these apartments. Plaintiffs counter that: (1) the Sun Villa apartments were not residential dwellings within the meaning of the statute; and (2) the work performed by Barraza and Davila was not "incidental" to Sun Villa Inc.'s ownership and was in the course of its trade, business, and occupation. Because we agree with the second argument, we do not reach the first argument. Even assuming the Sun Villa apartments were "residential dwelling " within the meaning of the statute, Davila and Barraza did not fall within the section 3351(d) category because their work was neither "incidental" to the ownership, nor personal and outside "the course of" the Louies' "business and occupation."
The undisputed evidence showed the Sun Villa project involved a comprehensive rehabilitation of a 40-unit apartment complex with five separate apartment buildings. The project involved installing new windows, new roofs, new flooring, new kitchen cabinets, and substantial work on framing, drywall, plumbing, and air conditioning/heating systems. Sun Villa Inc. was formed for the purpose of implementing this construction work to rehabilitate the dilapidated buildings. On this record, the construction was not "incidental" to the ownership of the property. The word "incidental" means "subordinate, nonessential, or attendant in position or significance . . . occurring as a minor concomitant." (Webster's 3d New Internat. Dict. (1993) p. 1142.) The Sun Villa construction project was not a minor, nonessential part of the ownership, use or maintenance of the property. To the contrary, the work was one of the main purposes of the ownership.
In this regard, this case is similar to Scott v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 979. In Scott, a homeowner hired the plaintiff to assist in building portions of his home, including installing wall panels and placing roof trusses. (Id. at p. 982.) When the plaintiff was inj
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