Fernandez

Is a homeowner who hires someone to trim a tree in his yard required to comply with the California Occupational Safety and Health Act of 1973 (OSHA) (Lab. Code, § 6300 et seq.) 1 tree trimming regulations? The question is presented under the somewhat unusual circumstances of this case.

Eliseo Lascano, doing business as Anthony’s Tree Service (ATS), offered and was hired to trim an approximately 50-foot palm tree in defendants *34 Traman and Galle Lawsons’ (Lawson) yard for $450. Lawson was not aware a contractor’s license was required to trim a tree measuring 15 feet or more (Bus. & Prof. Code, § 7026.1, subd. (c)), and in fact, neither ATS nor plaintiff Miguel Fernandez was licensed. Unless Fernandez is estopped from denying ATS’s independent contractor status because of any licensing misrepresentations Lascano may have made to Lawson, the parties assume Fernandez is deemed Lawson’s employee by operation of Labor Code section 2750.5. 2 That is because ATS was an unlicensed contractor and the tree trimming at issue required a license. (State Compensation Ins. Fund v. Workers’ Comp. Appeals Bd. (1985) 40 Cal.3d 5, 12-16 [ 219 Cal.Rptr. 13 , 706 P.2d 1146 ] [Lab. Code, §…

Based on our decision in State Compensation Ins. Fund v. Workers’ Comp. Appeals Bd. (1985) 40 Cal.3d 5 [ 219 Cal.Rptr. 13 , 706 P.2d 1146 ] (State Compensation), the parties in this case assume plaintiff Miguel Fernandez is deemed the employee of homeowners Thomas and Gaile Lawson (Lawson) by operation of Labor Code 1 section 2750.5 2 *40 because Anthony’s Tree Service (ATS) was unlicensed, and Fernandez was performing work for ATS which required a contractor’s license. Were the question before us today, I would conclude State Compensation was wrongly decided and section 2750.5 has no such effect.

BACKGROUND

Section 2750.5 creates a rebuttable presumption affecting the burden of proof that a worker performing services for which a contractor’s 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. (§ 2750.5.) Proof of independent contractor status includes satisfactory proof of the factors delineated in subdivisions (a), (b), and (c). The penultimate paragraph in section 2750.5 provides, “In addition to the factors contained in subdivisions (a), (b), and (c), any person…

Is a homeowner who hires someone to trim a tree in his yard required to comply with the California Occupational Safety and Health Act of 1973 (OSHA) (Lab. Code, § 6300 et seq. [1] ) tree trimming regulations? The question is presented under the somewhat unusual circumstances of this case.

Eliseo Lascano, doing business as Anthony's Tree Service (ATS), offered and was hired to trim an approximately 50-foot palm tree in defendants Truman and Gaile Lawsons' (Lawson) yard for $450. Lawson was not aware a contractor's license was required to trim a tree measuring 15 feet or more (Bus. & Prof.Code, § 7026.1, subd. (c)), and in fact, neither ATS nor plaintiff Miguel Fernandez was licensed. Unless Fernandez is estopped from denying ATS's independent contractor status because of any licensing misrepresentations Lascano may have made to Lawson, the parties assume Fernandez is deemed Lawson's employee by operation of Labor Code section 2750.5. [2] That is because ATS was an unlicensed contractor and the tree trimming at issue required a license. ( State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1985) 40 Cal.3d 5, 12-16 , 219 Cal.Rptr. 13 , 706 P.2d 1146 [Lab.Code, §…