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Davila v. Nickell10/26/2005
r the homeowner. (Stewart, supra, 172 Cal.App.3d at pp. 352-353.) As in Furtado and Cedillo, this work was not the primary purpose for the home ownership. Moreover, the Stewart court based its conclusion primarily on its finding that the homeowner did not retain the handyman in the course of her business activity because renting a room for supplemental income could not be considered "a trade, business, occupation or profession" for purposes of section 3351(d). (Stewart, supra, at pp. 354-355.)
The facts here are distinguishable. The undisputed evidence established the Louies purchased the property and formed Sun Villa Inc. for the primary purpose of rehabilitating the Sun Villa apartments for commercial gain. The work involved the complete restoration of an apartment building, not its routine maintenance and upkeep. Likewise, because Sun Villa Inc.'s sole business was to own and rehabilitate the apartments, it cannot be fairly said that Barraza's and Davila's work was personal and not in the course of Sun Villa Inc.'s business. Although Sun Villa Inc. (the Louies) hired a general contractor to perform the work, this does not negate the fact that the remodel/reconstruction of the apartment buildings was part of Sun Villa Inc.'s business purpose. Under these circumstances, the work performed by Barraza and Davila was "in the course of the trade, business, profession, or occupation" of Sun Villa Inc., and was not "personal" within the meaning of section 3351(d).
The Louies additionally seek to establish the applicability of the section 3708 exception by relying on section 3352(h), which exempts certain persons defined in section 3351(d), who work for less than a specified time period and/or are paid less than an identified amount, from employee status for purposes of the workers' compensation insurance requirement. (See Cedillo, supra, 106 Cal.App.4th at p. 234.) Although it is true that Barraza and Davila worked for fewer than the minimum number of hours identified in section 3352(h), this fact does not support the Louies' argument because section 3352(h) is merely an exception to the definition of a statutory residential employee. If a worker falls within section 3352(h) and section 3351(d), the worker is not considered an "employee" for workers' compensation purposes. (ยง 3351; Cedillo, supra, 106 Cal.App.4th at pp. 234-235.) In other words, a hirer of a section 3351(d) residential worker who works for less than the specified amount of hours/pay identified in section 3352(h), need not obtain workers' compensation coverage, and the injured worker may sue in tort but no statutory presumptions or penalties apply. However, in this case, we have found that Davila and Barraza were not performing duties that fell within the definition of section 3351(d). Thus, the fact that they worked less than the minimum number of hours set forth in section 3352(h) has no relevance here.
Accordingly, we conclude defendants were not entitled to rely on section 3708's exception to the statutory presumption and the court correctly instructed on the negligence presumption and defense limitations.
II. Contentions Related to the Timeliness of Barraza's Complaint
The Louies next raise several issues challenging the judgment as to Barraza because the operative complaint in this case was not filed until approximately four years after the accident, and he had dismissed an earlier complaint. The Louies argue that: (1) the court erred in failing to rule that the complaint was barred by the res judicata doctrine; (2) the court erred in permitting Barraza to amend his complaint to add the Louies to the breach of contract claim; and (3) the jury did not make the necessary findings for Barraza
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