Labor Code § 2708 Presumption of Employer Negligence is Not Applicable Against Homeowners Who Hired Unlicensed Painting Company

In Vebr v. Culp (Filed 10/28/2015, No. G050730), the Fourth District Court of Appeal affirmed a trial court’s grant of summary judgment in favor of homeowners, where an employee of an unlicensed painting company was injured on the premises. Despite the fact that the painting company was deemed unlicensed for failure to acquire workers’ compensation insurance, the negligence presumption of Labor Code § 2708 was inapplicable to the homeowners as de facto “employers” of the plaintiff.

Plaintiff, Tomas Vebr, was employed by OC Wide Painting, a licensed painting contractor. OC Wide Painting had a license issued by the California Contractors State License Board, but had filed for an exemption from the requirement that it maintain workers’ compensation insurance. The exemption was granted on the basis OC Wide Painting “did not have any employees.” However, OC Wide Painting actually had multiple employees, including Vebr. Therefore, by operation of law, the license was deemed void.

Homeowner defendants, Gary and Georgia Culp, hired OC Wide Painting to paint the interior of their home. While painting, Vebr fell from a ladder and suffered injuries. Vebr sued the Culps on a theory of premises liability and respondeat superior.

California Labor Code § 2750.5 provides that a worker who performs services for which a license is required, but lacks such license, is presumed to be an employee, not an independent contractor. Vebr contended that since he performed services for the Culps, and a painter’s license was required, he was an “employee” of the Culps, as were his fellow colleagues of OC Wide Painting. Vebr further claimed that since he sustained injuries as a result of the negligence of the OC Wide Painting’s employees, and OC Wide Painting was not licensed, the Culps should be liable for the negligence of the OC Wide Painting workers.

The trial court granted the Culps’ motion for summary judgment, which the Court of Appeal affirmed. The Court of Appeal reasoned that the respondeat superior cause of action failed because, even assuming all the painters were “employees” of the Culps, there was no evidence to suggest any a breach of duty, or proximate causation. Specifically, the Court noted that Vebr had testified that he did not know what caused him to fall off the ladder, and that it was “basically physics.” The cause of the fall was a “mystery” in this case. Vebr did not cite to any facts which suggested the Culps allowed a hazardous condition to exist, or that any of the other painters had acted in ways which caused Vebr to fall from the ladder.

Moreover, the Court determined that the rebuttable presumption of “employer” negligence, codified at Labor Code § 2708, did not apply in these circumstances because Vebr fell within the class of employees exempt from the presumption, per Labor Code § 3351. Accordingly, the presumption did not apply and it was the plaintiff’s burden to proffer evidence of negligence.

The decisional significance derives from the Court’s application of the Labor Code to the homeowner defendants, where the true employer of the plaintiff was technically “unlicensed” as a result of hiring employees without acquiring workers’ compensation insurance. The case is important with regard to the Court’s refusal to apply the negligence presumption to the homeowners. If the Court had applied the presumption, homeowners would be left in the precarious situation of facing near strict liability for injuries suffered by persons on their premises, who are employed by unlicensed entities which have not obtained workers’ compensation insurance.

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November 2, 2015