Cortez v. Abich 9/2/09 CA2/4

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B210628

Case Date: 12/03/2009

Preview:Filed 9/2/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

OCTOVIANO CORTEZ, Plaintiff and Appellant, v. LOURDES ABICH et al., Defendants and Respondents.

B210628 (Los Angeles County Super. Ct. No. GC038444)

APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph F. De Vanon, Jr., Judge. Affirmed. Homampour Law Firm, Arash Homampour; and Stuart Sherman for Plaintiff and Appellant. Early, Maslach & Van Dueck, John C. Notti, Paul A. Carron, and James Grafton Randall; Greines, Martin, Stein & Richland, Robert A. Olson, and Alana H. Rotter for Defendants and Respondents.

Appellant Octoviano Cortez appeals from the judgment entered in favor of respondents Lourdes and Omar Abich (collectively the Abiches) following the trial court`s order granting their motion for summary judgment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2006, the Abiches embarked on a remodeling project of their home in Pasadena. They wanted to add a new roof, master bedroom, master bath, and a garage to their home, adding over 750 square feet. The Abiches hired Miguel Quezada Ortiz, among others, to perform the remodel. Although what Ortiz was hired to do is in dispute, appellant claims Ortiz was hired to demolish the roof. Ortiz did not have a contractor`s license, which the Abiches concede was required. The Abiches did not ask Ortiz if he had a license and were unaware that he did not have one. Omar Abich obtained the necessary permits from the City of Pasadena, but did not supervise the work. The Abiches moved out of the house, and the project started in October or November 2006. Ortiz hired appellant.1 On the first day of the job, believing he was supposed to help Ortiz demolish the roof, appellant went up on the roof without being given any specific instructions to do so. Appellant conceded he saw that half of the roof was gone. As he climbed on the roof, he observed Ortiz and another worker removing nails from the remaining portion. After taking two steps, he fell through the roof and suffered a fractured spine. In January 2007, appellant sued Ortiz, alleging general negligence (failure to warn and failure to make work area safe) and premises liability (negligence in maintenance,
1

Omar Abich and Ortiz testified at their respective depositions that appellant was only supposed to remove a deck in the backyard, but appellant claimed he was hired to assist Ortiz in removing the roof. 2

management, and operation of premises).2 In March 2007, he amended his complaint to add the Abiches as Doe defendants. In April 2008, the Abiches filed a motion for summary judgment, contending they had no duty to warn appellant of the condition of the roof because he went up there on his own accord and any danger was open and obvious. They also argued that the work safety requirements of California Occupational Safety and Health Act (OSHA) contained in Labor Code section 6300 et seq. did not apply to the residential remodeling project. Appellant responded that because they failed to hire a licensed contractor, the Abiches were his employer. As such, he alleged they had a duty to maintain a safe working environment as required by OSHA and failed to do so. Recognizing that OSHA does not apply to workers who provide household domestic service (Lab. Code,

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