Judge Robert C. Longstreth, Case Number: 37-2022-00039617-CU-PO-CTL, Date: 2024-06-07 Tentative Ruling

Judge: Robert C. Longstreth, Case: 37-2022-00039617-CU-PO-CTL, Date: 2024-06-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 06, 2024

06/07/2024 08:30:00 AM C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00039617-CU-PO-CTL GONZALEZ VS WASHINGTON [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Jessie Washington's Motion for Summary Judgment (ROA 48) is GRANTED.

Plaintiff alleges that Defendant Washington hired an unlicensed contractor, Defendant Sedano, to perform roof work at Defendant's home and that Plaintiff was working for Sedano at Defendant's home when the incident occurred. (Compl. �� 1, 13-14.) Plaintiff alleges that he fell and was severely injured while performing the work on the roof. (Id. at � 14.) Plaintiff also alleges that Defendant negligently failed to take proper precautions or use safety equipment in having Plaintiff perform the work, and that Defendant negligently hired and supervised Sedano. (Id. at �� 16-17.) Unlicensed contractors, and workers hired by them, who are performing services for which a license is required are presumed to be employees. 'There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required... or who is performing such services for a person who is required to obtain such a license is an employee rather than an independent contractor.' (Lab. Code � 2750.5.) Here, it is undisputed that Plaintiff was unlicensed, and Plaintiff has provided evidence that Sedano is unlicensed as well. (Pltf. Resp. Sep. Stmt. � 8; Pltf. Addl.

Facts at � 7.) Defendant has not offered evidence to rebut the presumption, so the court has presumed for purposes of the motion that Defendant is Plaintiff's employer.

Defendant asserts that even assuming she is Plaintiff's employer she can only be liable for Plaintiff's injuries if she is at fault for them, and she did not do anything to cause Plaintiff's injuries. According to evidence submitted by Plaintiff, he stepped onto a loose rain gutter which caused him to fall off the roof.

(Pltf. Addl. Facts � 14.) Plaintiff does not dispute that he knew there was a loose rain gutter but did not think he would trip on it, and before he climbed up onto the roof, he confirmed the same rain gutter was not loose. (Pltf. Resp. Sep. Stmt. at � 10-11.) In opposition, Plaintiff asserts Defendant is presumed to be at fault because Defendant failed to provide workers' compensation insurance for Plaintiff's work. (Lab. Code � 3708.) As a preliminary matter, the court notes that Plaintiff fails to allege that Defendant failed to provide workers compensation in his Complaint. 'It is well established that the pleadings determine the scope of relevant issues on a summary judgment motion.' (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) Even assuming that Plaintiff is entitled to this statutory presumption, however, the court finds that Defendant has presented sufficient evidence to rebut the presumption, since the undisputed evidence shows that prior to the accident Plaintiff knew of the allegedly dangerous condition, and had confirmed to his satisfaction that the alleged condition did not exist. Plaintiff has failed to raise a triable issue of material fact, in its proffered expert declaration or otherwise, that any act or omission by Calendar No.: Event ID: TENTATIVE RULINGS

3058660 9 CASE NUMBER: CASE TITLE: GONZALEZ VS WASHINGTON [IMAGED] 37-2022-00039617-CU-PO-CTL Defendant caused the incident.

Plaintiff asserts that Defendant was directly negligent because Defendant allowed Plaintiff to walk on the roof without safety equipment in violation of Cal/OSHA regulations. The court finds that this argument does not have merit. 'California courts have consistently held that OSHA [citation] (really, Cal-OSHA, our regulations are stricter than the federal ones) were not meant to apply to homeowners, but to traditional places of industry and business.' (Zaragoza v. Ibarra (2009) 174 Cal.App.4th 1012, 1022-1023.) Thus, for a homeowner to be liable to an unlicensed contractor or worker, 'there must be some triable issues of ordinary negligence.' (Id. at p. 1023.) Plaintiff asserts Defendant is vicariously liable for Sedano's negligence, and that Sedano failed to provide any safety equipment to Plaintiff or to supervise him. However, Plaintiff offers no evidence in his separate statement to support this assertion, nor does he explain, despite offering the declaration of an expert witness, what equipment should have been provided or how provision of that equipment would have prevented the accident. Accordingly, this argument does not have merit.

The court finds that Defendant has met its initial burden to demonstrate there is no triable issue of material fact that she did not cause the subject incident, and that Plaintiff failed to rise any triable issue of material fact. Accordingly, summary judgment is appropriate.

Once confirmed, this ruling shall be the final ruling of the court and no further written order is required.

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