Mendoza v. Brodeur

Filed 8/18/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

This personal injury case involves the overlay of workers' compensation law.

Defendant Glenn Brodeur hired plaintiff Ernesto Mendoza, an unlicensed roofer, to replace his roof. After a few hours on the job, plaintiff fell from the roof and was injured. Plaintiff contended that defendant did not provide workers' compensation insurance. In plaintiff's personal injury action, the trial court granted defendant's motion for summary judgment on the ground that plaintiff was not an employee under workers' compensation law and plaintiff had not come forward with evidence supporting a triable issue of fact for tort liability.

Plaintiff contends that summary judgment is unwarranted. We agree. Under Labor Code section 2750.5 and applicable case law, plaintiff is defendant's employee for purposes of tort liability. In the summary judgment proceedings below, which involved only an issue of law, it was premature to require plaintiff to come forward with evidence of defendant's negligence. Accordingly, we reverse.

I. BACKGROUND

A. Factual Background

The facts, as set forth in defendant's separate statement of material facts and plaintiff's response thereto, are undisputed except where noted.

Defendant, a school teacher, lives on 90th Avenue in Oakland. He and plaintiff are neighbors. Defendant needed roofing work done on his home. He either learned that plaintiff was a roofer by trade or, according to plaintiff, saw plaintiff working on another roof. Plaintiff claims that defendant and his handyman, Robert Harris, approached plaintiff and asked him to work on defendant's roof. In any case, the parties agree that defendant hired plaintiff to replace the roof on his house.[1] Plaintiff agreed to do at least the bulk of the work for a set price. Defendant did not agree to pay plaintiff for his time.

Plaintiff and â€