Cortez v. Abich
246 P.3d 603
| Cal. | 2011Background
- Cortez seeks tort relief for alleged Cal-OSHA violations by Abich and others on a residential remodeling project.
- Project involved demolition and expansion of a home owned by Abich for personal residence use; Omar Abich acted as owner/builder with permits.
- Ortiz, an unlicensed contractor, hired Cortez; defendants were unaware Ortiz lacked license and did not supervise him.
- Plaintiff was injured while assisting with roof demolition; there was a dispute whether he was an employee under Cal-OSHA.
- Trial court granted summary judgment; Court of Appeal held the project fell within the household domestic service exemption, excluding Cal-OSHA applicability.
- Supreme Court granted review to resolve whether extensive residential remodeling can be exempt under Cal-OSHA as household domestic service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether extensive home remodeling constitutes household domestic service exempt from Cal-OSHA. | Cortez argues remodeling is within employment, not exempt as household domestic service. | Abich contends remodeling is household domestic service and exempt from Cal-OSHA. | Remodeling is not exempt; constitutes employment under 6303(b). |
| Whether Fernandez v. Lawson controls the interpretation of household domestic service exemption. | Fernandez supports a homeowner exemption for noncommercial work. | Fernandez is distinguishable and does not mandate homeowner exemption for remodeling. | Fernandez does not compel exemption; statute language controls. |
| Whether public policy considerations justify exempting homeowners from Cal-OSHA for remodeling projects. | Public policy favors holding homeowners accountable to safety laws. | Policy concerns counsel against applying Cal-OSHA to homeowners. | Policy concerns do not override ordinary statutory meaning; not outcome-determinative. |
Key Cases Cited
- Fernandez v. Lawson, 31 Cal.4th 31 (Cal. 2003) (defines household domestic service and its scope)
- Elsner v. Uveges, 34 Cal.4th 915 (Cal. 2004) (treats Cal-OSHA provisions as standard-duties evidence in negligence)
- Crockett v. Industrial Acc. Comm., 190 Cal. 583 (Cal. 1923) (historical support for excluding extensive residential remodeling from household domestic service)
- Ramirez v. Nelson, 44 Cal.4th 908 (Cal. 2008) (discusses the unsettled questions of employer status under Cal-OSHA)
- Rosas v. Dishong, 67 Cal.App.4th 815 (Cal. App. 1998) (unlicensed contractor context in employer analysis under Cal-OSHA)