MIGUEL FERNANDEZ, Plaintiff and Appellant, v. TRUMAN W. LAWSON, JR., et al., Defendants and Appellants, 31 Cal. 4th 31

Opinion BROWN, J. 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.) 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 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. 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, § 2750.5 makes an unlicensed contractor who is performing work for which a license is required an employee of the hirer of the unlicensed contractor, for purposes of workers’ compensation].) We therefore confront two issues in this case. First, must a homeowner who is an employer solely by virtue of

section 2750.5 comply with OSHA tree trimming regulations, or is such tree trimming a “household domestic service” excluded from OSHA? The Courts of Appeal are in conflict on this issue. Second, may an unlicensed contractor’s employee be estopped from claiming that he is the employee of the homeowner if he personally made no misrepresentations concerning the contractor’s license status? The Court of Appeal concluded tree trimming was not a household domestic service under the circumstances of this case, and that an unlicensed contractor’s employee may be estopped by the contractor’s licensing misrepresentations.

We disagree on the first issue, and hence need not address the second. I. FACTUAL AND PROCEDURAL BACKGROUND Fernandez, who had worked for ATS for two years and had at least four years’ experience trimming trees, was assigned to trim Lawson’s tree. Fernandez fell from the tree during the trimming, sustaining serious injury. He sought workers’ compensation benefits from Lawson.

Lawson’s homeowner’s insurer, not a party to this action, denied the claim on the ground Fernandez had not worked 52 hours and earned $100 in the 90 days preceding the injury, and thus did not fall within the statutory definition of an “employee” eligible for benefits. (§§ 3351, subd. (d), 3352, subd. (h).) Fernandez then sued Lawson for damages, ultimately asserting as relevant here violation of various safety regulations enacted pursuant to OSHA. Lawson moved for and was granted

summary judgment on the ground that OSHA did not apply to noncommercial tree trimming at a private residence. The Court of Appeal reversed, holding the “trimming of Lawson’s 50-foot palm tree” was not a household domestic service “as a matter of law.” It expressly disagreed with Rosas v. Dishong (1998) 67 Cal.App.4th 815, 826 [79 Cal.Rptr.2d 339] (Rosas) (“Legislature intended to exclude private residence yard maintenance work, including tree trimming, from OSHA coverage under the ‘household domestic service’ exclusion”). To determine whether tree trimming constituted “household domestic service” within the meaning of

section 6303, and was thereby excluded from OSHA, the Court of Appeal reasoned, “the focus should be on the degree of skill or expertise involved and the training and competence required to safely and successfully perform the task. [][]... [T]he test for whether a tree trimming qualifies as a household domestic service should be whether an average member of the household has the skill and competence to undertake the activity. Under this test, the task of tree trimming (depending on the size and type of the tree and number of trees involved) may sometimes, but not always, qualify as a household domestic service.

Ultimately, determining whether an average homeowner possesses the skill and competence to trim a particular tree or trees is a question of fact which should be decided on a case-by-case basis.” The court further held there were triable issues of fact as to whether Fernandez was bound by any alleged misrepresentation of Lascano concerning ATS’s license status. II.

DISCUSSION We first consider whether Lawson was required to comply with OSHA tree trimming regulations as Fernandez’s statutory employer. (See § 6304.5.) OSHA requires that “[ejvery employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.” (§ 6400, subd. (a).) “Employment” is defined as including “the carrying on of any trade, enterprise, project, industry, business, occupation, or work ... in which any person is engaged or permitted to work for hire, except household domestic service.” (§ 6303, subd. (b), italics added.) The issue here is whether, as a matter of law, a tree trimmer hired by a homeowner for a noncommercial purpose is engaged in “household domestic service.” OSHA does not define “household domestic service.” Nor does the relevant legislative history offer any guidance on the meaning of the phrase.

While the current OSHA was enacted in 1973, it traces its roots to the 1913 “[W]orkmen’s compensation, insurance and safety act.” (Stats. 1913, ch. 176, § 1, p. 279.) In this act, “employment” excluded “persons [who] are employed solely in . . . household domestic services.” (Stats. 1913, ch. 176, § 51, p. 305.) This same phrase, “household domestic service,” consistently appears in all subsequent versions of the “employment” definition. (Stats. 1917, ch. 586, § 33, p. 861; Stats. 1919, ch. 471, § 10, p. 923; Stats. 1923, ch. 90, § 1, pp. 165-166; Stats. 1929, ch. 249, § 1, p. 494; Stats. 1937, ch. 90, § 6303, p. 306; Stats. 1973, ch. 993, § 46, p. 1927; Stats. 1978, ch. 1248, § 1, p. 4060; Stats. 2001, ch. 807, § 1; Stats. 2002, ch. 368, § 1.) Generally speaking, “household domestic service” is understood to include work both within and outside a residence. (See Catto v.

Plant (1927) 106 Conn. 236 [137 A. 764, 765-767] [gardener a “domestic servant”]; id. at p. 766 [“ordinarily a domestic servant is one whose service is connected with the maintenance of the house and land connected with it”].) Indeed, for purposes of regulating wages, hours, and working conditions for household occupations, the Industrial Welfare Commission defines “household occupations” in part as “all services related to the . . . maintenance of a private household or its premises by an employee of a private householder,” including “gardeners.” (Cal.

Code Regs., tit. 8, § 11150, subd. 2(i).) Tree trimming is a service commonly performed by persons hired by homeowners to maintain residential premises. Moreover, the purpose of the 1973 overhaul of OSHA was “to allow the State of California to assume responsibility for development and enforcement of occupational safety and health standards under a state plan pursuant to

Section 18 of the Federal Occupational Safety and Health Act of 1970 . . . (Stats. 1973, ch. 993, § 107, pp. 1954-1955.) The 1972 proposed California plan stated that the former Division of Industrial Safety’s “authority extends to virtually every place of employment in California .... [T]he principal exceptions are Federal government agencies, maritime workers, household domestic service workers, and railroad workers except those employed in railroad shops.” (Agriculture & Services Agency, Cal. Occupational Safety & Health Plan (Sept. 25, 1972) § 3(B), p.

III-1.) The exceptions noted for federal agencies, maritime workers, and railroad workers are for broad categories of employees. Viewed in this context, it is likely the term “household domestic service workers” similarly encompassed a broad category of workers performing tasks in- and outside of a private residence. In subsequently enacting the 1973 enabling legislation, and using the term “household domestic service” in

section 6303, subdivision (

b) as an exception to covered “employment,” the Legislature no doubt also intended to refer to a broad category of workers. In addition, the term “household domestic service” implies duties that are personal to the homeowner, not those which relate to a commercial or business activity on the homeowner’s part. While OSHA and its predecessors have operated for 90 years primarily in the commercial setting, we need not decide in this case whether a homeowner is subject to OSHA for noncommercial projects other than tree trimming.

It is sufficient to note here that there is no indication Lawson wanted the palm tree trimmed for any commercial purpose. Finally, overwhelming public policy and practical considerations make it unlikely the Legislature intended the complex regulatory scheme that is OSHA to apply to a homeowner hiring a worker to perform tree trimming. It is doubtful the average homeowner realizes tree trimming can require a contractor’s license, let alone “expect[s] that OSHA requirements would apply when they hire someone to trim a tree for their own personal benefit and not for a commercial purpose ....

Moreover, homeowners are ill-equipped to understand or to comply with the specialized requirements of OSHA.” (Rosas, supra, 67 Cal.App.4th at p. 826.) Imputing OSHA liability to a homeowner under the circumstances of this case violates basic notions of fairness and notice.

Lawson asserts that of the 24 states that have federal Occupational Safety and Health Administration approved state plans (including California), “no state has published an opinion finding that a homeowner who is not conducting business out of his home is nonetheless responsible for complying with OSHA in the process of home construction, work, or maintenance.” Fernandez does not argue otherwise, but simply states that none of the cases cited by Lawson involve a homeowner being deemed an employer as the statutory consequence of hiring an unlicensed contractor.

Here, of course, we are addressing the specific meaning of “employment” under OSHA, not the more general definition of “employer” under

section 2750.5. The Court of Appeal concluded that “the test for whether a tree trimming qualifies as a household domestic service should be whether an average member of the household has the skill and competence to undertake the activity.” Fernandez argues this is a “rational and predictable test for determining whether tree trimming is or is not subject to the ‘household domestic service’ exclusion under OSHA.” Of course, nothing could be further from the truth. Rather, the Court of Appeal’s approach creates massive uncertainty for a homeowner as to when OSHA would apply.

Homeowners are in no position to assess whether they are an “average” homeowner in terms of their tree trimming competence. Fernandez argues that tree trimming cannot be considered a household domestic service because there are safety regulations concerning tree trimming. Even the Court of Appeal below, which otherwise ruled in Fernandez’s favor, rejected this argument. As it observed, “[t]ree trimming services are provided in a wide variety of business, commercial and public contexts.

OSHA regulations for tree trimming are therefore necessary to govern instances where such services are provided in contexts other than for a private homeowner. Consequently, the fact such regulations exist does not automatically mean tree trimming must always fall outside OSHA’s ‘household domestic service’ exclusion.” Similarly, Fernandez argues that because a contractor’s license is required to trim a tree 15 feet or more in height, trimming a 50-foot tree cannot be a household domestic service.

A contractor’s license is generally required for a variety of activities, including maintaining or servicing air conditioning, heating, or refrigeration equipment, or installing carpet. (Bus. & Prof. Code, §§ 7026.1, subd. (a), 7026.3, 7028, subd. (a).) It is not obvious we would conclude as a matter of law that such activities could never be considered household domestic services.

Having concluded Lawson is not subject to OSHA for noncommercial tree trimming, we need not reach the issue of whether Fernandez may be estopped from denying ATS’s independent contractor status because of any licensing misrepresentations on the part of Lascano. DISPOSITION The judgment of the Court of Appeal is reversed and the case remanded to that court for proceedings consistent with this opinion. George, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurred. All statutory references are to the Labor Code unless otherwise indicated.

Section 2750.5 provides in part: “There is a rebuttable presumption affecting the burden of proof that a worker performing services for which a license is required pursuant to

Chapter 9 (commencing with

Section 7000) of Division 3 of the Business and Professions Code, 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. Proof of independent contractor status includes satisfactory proof of [certain] factors: [][]... [][] In addition to the factors contained in subdivisions (a), (b), and (c), any person performing any function or activity for which a license is required pursuant to

Chapter 9 (commencing with

Section 7000) of Division 3 of the Business and Professions Code shall hold a valid contractors’ license as a condition of having independent contractor status.” The tree work, maintenance, or removal regulations provide in part that “An accident prevention program shall be inaugurated and maintained”; “Each work location where tree trimming ... is to be done, shall be under the direction of a qualified tree worker”; “Employees shall be trained and instructed in the hazards involved in their job assignments . . . [and] [s]uch training shall be documented by the employer"; “A job briefing shall be conducted by a qualified tree worker before each work assignment is begun”; “Prior to use, all equipment and safety devices shall be inspected”; “The employer shall establish rescue procedures and provide training in first-aid, cardiopulmonary resuscitation (CPR) and aerial rescue.

First-aid and CPR training shall be performed by a certified instructor”; “Prior to climbing the tree, the tree shall be visually inspected to determine the safest method of entry into the tree”; “The climbing line must be crotched as soon as practicable after the employee is aloft, and a taut line-hitch tied and checked”; “The climbing rope shall be passed around the main leader or a major upright branch of the tree as high as necessary using branches with a wide crotch to prevent any binding of the safety rope.

The crotch selected for tying-in shall be over the work area as nearly as possible, but located in such a way that a slip or fall would not permit the employee to come in contact with any electric conductor, equipment or other hazard. The rope shall be passed around the main leader or an upright branch, using a limb as a stop”; and “When working aloft, employees shall be required to wear tree workers’ saddles and tie-in with an approved safety strap or rope.” (Cal.

Code Regs., tit. 8, §§ 3421, subds. (a)-(e), (j), 3427, subd. (a)(1)-(4); see generally id., §§ 3420-3428.) “The Connecticut, New Jersey and New York plans cover public sector (state & local government) employment only” and hence are unlikely to involve homeowners. (U.S. Dept. Labor, Occupational Safety & Health Admin. [as of July 7, 2003].)