Consumer Advocate Legal Update : Class Action Lawyers & Attorneys : Khorrami Pollard & Abir Law Firm : Mass Torts, Products Liability

In a previous article for the KPA newsletter, I wrote about the Third District’s decision in Kirby v. Immoos Fire Protection, Inc., 186 Cal. App. 4th 1361 (2010) and its implications on plaintiffs including meal and rest break claims in misclassification cases.  Today, the California Supreme Court granted review of the Kirby decision.

In Kirby, the court upheld a fee award in favor of an employer who successfully defended a rest period claim, concluding that meal and rest period claims were governed by Labor Code section 218.5’s two-way fee shifting provisions, rather than the one-way fee shifting of Section 1194.

As Matt Bailey discussed in a post today on the Bailey Dailey, this holding poses a significant issue, as two-way fee shifting would severely chill private enforcement of an employee’s statutory right to recover meal and rest period premium wages. The thrust of the argument in opposition to the court’s ruling in Kirby is that Section 226.7 premium wages should be governed by Section 1194, not only because Section 226.7 proscribes a statutorily mandated wage, but also because the California Supreme Court concluded in Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094 (2007) that meal and rest break premium pay is itself a form of overtime compensation.

According to the California Supreme Court’s website, the issues on review are as follows:

(1) Does Labor Code section 1194 apply to a cause of action alleging meal and rest period violations (Lab. Code, 226.7) or may attorney's fees be awarded under Labor Code section 218.5, (2) Is our analysis affected by whether the claims for meal and rest periods are brought alone or are accompanied by claims for minimum wage and overtime?
 

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In Zaragoza v. Ibarra (2009) 174 Cal.App.4^th  1012, the Court clarified the issues of homeowner liability to workers hired by non-licensed contractors, and addressed the limitations on worker’s compensation as an exclusive remedy in cases dealing with employees in a residential setting.

Homeowner Maria Ibarra engaged Claudio Quiroz, an unlicensed contractor, to construct four room and two bathrooms on her premises. Quiroz hired Eliazar Zaragoza to assist him. Zaragosa was an employee of Taco Bell. Zaragoza was injured on his second day on the job. Zaragoza slipped off a ladder while trying to pull a nail out of the wall. He fell approximately nine feet and injured his knee. He sued Ibarra. The trial court granted Ibarra’s motion for summary judgment and the appellate court affirmed.

The Court held that Zaragoza’s claim qualified as “incidental to the ownership, maintenance or use” of a residential dwelling, despite the fact that the scope of the work comprised an extensive remodel. Zaragoza was classified as a residential employee under Labor Code Section 3351(d). When the worker has worked less than 52 hours in the 90 days prior to the accident, the law is clear that any claim the worker has against the homeowner for the injury is outside the ambit of the worker’s compensation system. Labor Code Section 3351(d). The worker may bring a claim against the homeowner for negligence.

The Court held that the provisions defining who qualified as a residential employee under Labor Code Section 3351(d) must be reconciled with the provisions of Insurance Code Section 11590, which requires that all personal liability policies provide worker’s compensation coverage. The Court further held that Cal-OSHA regulations did not apply to homeowners. Zaragoza could not rely on the doctrine of negligence per se (a violation of a statute) based on alleged Cal-OSHA violations.

Moreover, the Court concluded that as a matter of law there was no triable issue of fact concerning Ibarra’s negligence, since he positioned, adjusted, and climbed the ladder before he fell. There was nothing Ibarra could have done to prevent the accident. Zaragoza’s injury was entirely his own fault, and Ibarra exercised ordinary care under the circumstances.

Homeowners should be weary of non-licensed and day laborers who carry no worker’s compensation insurance. Whether it is a painter, gardener, landscaper, or handyman, ask yourself the question: Does the gardener carry his own liability and Workers' Compensation insurance? Otherwise anything that happens on your property is your responsibility. An insured gardener may charge a bit more, but is worth the peace of mind. Next time you hire anyone to perform services on your property, make sure that person is insured, something not many homeowners think or contemplate but merely roll the dice. Make the individual working on your home produce a copy of his liability insurance certificate, and make sure it is current.

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On September 30, 2009, the Fourth District Court of Appeal affirmed the trial court's denial of class certification in Kaldenbach v. Mut. of Omaha Life Ins. Co., 2009 Cal. App. Unpub. LEXIS 7907 (Cal. App. 4th Dist. Sept. 30, 2009). The Court’s opinion, which is unpublished, recognized that In re Tobacco II precluded focus on issues relating to class member reliance and injury. The Court's analysis is seem ingly contrary to the Second District's unpublished opinion in Cohen v. Direct TV (discussed previously here). Notwithstanding this finding, however, the Court ultimately concluded that the trial court did not abuse its discretion insofar as the court's findings regarding predominance were supported on other grounds.

A more detailed discussion of the Kaldenbach opinion is addressed at the Bailey Class Action Daily.

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