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Davila v. Nickell10/26/2005
ured in performing this work and sought workers' compensation benefits, the Workers' Compensation Appeals Board found the plaintiff came within the section 3351(d) category. (Id. at pp. 983-984.) The appellate court reversed, concluding " he persuasive fact is that Scott, who was employed by [the homeowner] as a carpenter to help in the construction of [the home], did not qualify as a person whose duties were 'incidental to' the ownership, maintenance or use of the dwelling." (Id. at p. 985, italics added.) The building of a house cannot be deemed a casual or minor activity incidental to the ownership or use of the house; it is the essential prerequisite to the ownership and use of the house. " he qualifying language of section 3351, subdivision (d) contemplates a completed dwelling or at least a building sufficiently completed to be occupied as a residence." (Ibid.)
Similarly in this case, the construction work was an essential prerequisite to the continued ownership and use of the dwellings. Although the evidence showed that a few tenants remained in parts of the dilapidated apartment buildings, these tenants were not living in the portions of the buildings where the construction activity was taking place. Instead, defendants testified that these tenants were moved between the units to permit Joadd to complete the extensive construction work. There is nothing in the statutory language or legislative history showing the Legislature intended a worker on this type of a comprehensive construction project to be included in the category of section 3351(d)'s statutory residential employee.
In asserting that the construction work fell within section 3351(d), the Louies rely on several decisions to support their argument that "repair" work-i.e., plumbing, roofing, tree trimming-can be considered "incidental" to the ownership, maintenance or use of the dwelling. (See State Compensation Ins. Fund v. Workers' Comp. Appeals Bd., supra, 40 Cal.3d at p.14; Cedillo, supra, 106 Cal.App.4th 227; Furtado v. Schriefer (1991) 228 Cal.App.3d 1608 (Furtado); Stewart v. Workers' Comp. Appeals Bd. (1985) 172 Cal.App.3d 351, 353.) These decisions are unhelpful to the Louies' arguments.
In State Compensation Ins. Fund v. Workers' Comp. Appeals Bd., supra, 40 Cal.3d 5, the California Supreme Court noted in dicta that section 3351(d) "is sufficiently broad as to encompass most situations where a homeowner or renter hires a plumber or carpenter to make repairs." (Id. at p. 14.) The Cedillo court cited this dicta to support its conclusion that a roofer came within the definition of a section 3351(d) worker, a conclusion that was not disputed by either party. (Cedillo, supra, 106 Cal.App.4th at p. 235.) However, the injured roofer in that case had been working on a specific limited project for an individual homeowner, a type of maintenance work that is not analogous to the work performed in this case on a major reconstruction project. (Ibid.) Relying on the same Supreme Court dicta, the Furtado court similarly assumed that a house painter came within the definition of a section 3351(d) worker (Furtado, supra, 228 Cal.App.3d at pp. 1616-1617), but ultimately remanded the case for factual findings on several issues, including whether the injured worker was "employed in the course of" the homeowner's "trade, business, or profession" within the meaning of section 3351(d). (Furtado, supra, at p. 1617, fn. 4.)
The Louies' reliance on Stewart is similarly misplaced. (Stewart v. Workers' Comp. Appeals Bd., supra, 172 Cal.App.3d 351.) In Stewart, the court found section 3351(d) applied to a 72-year-old worker who rented a room from an 85-year-old homeowner and who was injured while performing a handyman job fo
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