Retained Control Under Hooker

This is an ultra high quality writing sample that is solely my work from a case in 2010 involving the doctrine of retained control under the case of Hooker v. Department of Transportation. I've changed the names for confidentiality. My then-supervisor at Robinson & Wood in San Jose asked me to be "extremely detailed" in the brief even though this case was not worth that much money. I took him at his word, but he chewed me out anyway for what he described as overkill. I had to remind him that he asked me, in writing, to be "extremely detailed" and he gave no direction or guidance on the amount of time that was required. Posting this is my revenge against that guy, who turned out to be a two-faced piece of shit. Just one example is that at the law firm holiday party in December 2010 in front of everyone (40 people), he said into the microphone during a party game that he thought I should have been "a porn star" instead of a lawyer. No idea where that came from, but it was a humiliating and embarrassing comment that (in combination with other issues) prompted me to look for a new job and resign two weeks later. F--- that guy. I later spoke with some of the staff and they said they were proud of me for doing that, though it was not directly in response to his shocking and inappropriate comment.

This letter brief is for the upcoming mediation of this matter on August 23, 2010 at your office.  We represent defendants Lam and Kay Nguyen. 

This is a personal injury case filed by a day laborer who, on December 20, 2005, fell through a fiberglass patio roof at the Nguyen home in San Jose. His medical specials are reportedly $79,531.91 for treatment at Valley Medical Center. 

The Parties 
Plaintiff Roberto Ramirez ("Mr. Ramirez") is an experienced laborer who is originally from the state of Puebla, Mexico. Mr. Ramirez came to the U.S. in 2000. Mr. Ramirez provides services in demolition, roofing, landscaping, cement work, and other construction trades. At the time of the accident, Mr. Ramirez was 47 years old.  Defendant Tan M. Nguyen ("Mr. Nguyen") is an unlicensed contractor. Mr. Nguyen is representing himself in this matter. 

Defendant Lam Nguyen ("Mr. Nguyen") held title to the subject property at the time of the accident. Defendant Kay Nguyen ("Ms. Nguyen") is Mr. Nguyen's sister, and she lived in the property at the time of the accident. Ms. Nguyen purchased the property from her brother Lam after the accident. 

The Property 
The property involved in this case is a single family residence located at 2485 [Redacted] Drive in  San Jose. When Mr. Nguyen purchased the property in 2004, it had a patio structure attached to the rear of the house. The patio was square in shape with a concrete floor. The roof was made up of fiberglass sheets nailed onto ceiling beams, with 2x4's securing the sheets of fiberglass. Attached hereto (A) are photos of the exterior of the structure. Unfortunately, photos of the roof and interior are not available. 

The Project 
In late 2005, Ms. Nguyen decided to have the patio converted into a bedroom addition. Ms. Nguyen's now-husband Kam Ly met with defendant Tan Nguyen at a coffee shop, and the men discussed whether Mr. Nguyen could construct the addition. Mr. Nguyen represented that he had the necessary skills to do the job, and the men agreed to meet later at the home to discuss the details. 

A few weeks before the accident, Mr. Nguyen came to the property and met with Mr. Ly and Ms. Nguyen. During the visit, Mr. Nguyen gave them a business card on which Mr. Nguyen stated the name of his business, ABC Construction. Mr. Nguyen also stated on his card that he held a valid contractor's license. The license number that Mr. Nguyen wrote on the card and claimed to hold actually belonged to Mr. Nguyen's father, Triet Minh Nguyen. Mr. Nguyen did not have a contractor's license of any classification, and so these were false representations. Mr. Ramirez dismissed Mr. Triet Minh Nguyen from this case in 2008, because the elder Mr. Nguyen was not aware of his son's false representations related to the contractor license. 

The scope of work of the project at issue was that Mr. Nguyen would tear down the patio and build Ms. Nguyen a room addition, for $10,000. Attached hereto (B) is the written contract between the pmiies. As shown on the contract and contrary to Mr. Ramirez's assertions in his brief, Mr. Nguyen was hired as a contractor, not a laborer, for a flat fee of $10,000. The phrase "labor only" does not appear in the contract. The contract has places to indicate materials to be used, but only labor is listed. This is because the Nguyens and Nguyen agreed that the Nguyens would purchase the materials themselves. "Laborers," as that term is used in Mr. Ramirez's brief, do not submit "Proposals" wherein they "propose to furnish the materials and perform the labor necessary for the completion of [project description]." Laborers also do not bid entire projects, which is what happened here. Suffice to say, Mr. Nguyen acted as a contractor, not a laborer. Calling Mr. Nguyen the Nguyens' "laborer" is a legal fiction. 

Before starting work, Mr. Nguyen indicated that he would hire helpers for the job. Both Ms. Nguyen and Mr. Ly understood this arrangement. Mr. Nguyen took full responsibility for paying the laborers that he needed. The Nguyens were not involved at all in Mr. Nguyen's selection of laborers. As for materials, Mr. Nguyen simply prepared a list of what he needed to complete the job, and Ms. Nguyen and Mr. Ly purchased the materials themselves. This allowed them to shop around and obtain the best prices. 

The Accident 
On the morning of December 20, 2005, the project began. Around 7:30 a.m. that day, Mr. Nguyen met Mr. Ramirez near Story Road in San Jose, which is the area in which Mr. Ramirez usually solicited day labor. Mr. Nguyen hired Mr. Ramirez and drove him to the job site to work on the project. Mr. Ramirez had worked for Mr. Nguyen on prior occasions and was usually paid in cash.   When Mr. Nguyen and Mr. Ramirez arrived at the home, Mr. Nguyen gave Mr. Ramirez details and instructions for the project, and Mr. Ramirez started working. No one except Mr. Nguyen gave Mr. Ramirez any work instructions on the project, or even spoke with him. This was Mr. Ramirez's first day on the project. 

By lunch, Mr. Ramirez had torn down an existing washroom inside the patio. After lunch, Mr. Ramirez moved a load of wood. After moving the wood, Mr. Ramirez climbed a ladder to the roof of the patio, where he intended to remove all of the fiberglass roofing and 2x4 studs that held down the fiberglass. Mr. Nguyen told Mr. Ramirez to do this--Mr. Nguyen and Ms. Nguyen knew nothing about this directive or the other instructions Mr. Nguyen was giving Mr. Ramirez, much less what safety measures Mr. Nguyen might be required to employ, choose to employ, or choose not to employ. No one but Mr. Nguyen was supervising Mr. Ramirez; Mr. Nguyen, like any contractor, was given the discretion to choose what to do and how to do it in order to accomplish the end result that the parties bargained for. 

Neither Ms. Nguyen nor Mr. Nguyen speak Spanish. Mr. Ramirez does not speak Vietnamese. Mr. Nguyen was never even on the job site. There is no evidence that the Nguyens and Mr. Ramirez communicated in any fashion, verbal or nonverbal. The Nguyens were not present when Mr. Ramirez fell, and contrary to Mr. Ramirez's assertions in his brief, the Nguyens were never supervising Mr. Ramirez. For that matter, the Nguyens were never supervising Mr. Nguyen. Merely viewing the progress on the project and making progress payments does not amount to supervision of those working on it. At most, like any reasonable homeowners, the Nguyens reviewed what was being accomplished in order to accept or reject the work that was being done, and in order to advise Mr. Nguyen whether his work conformed to what the parties agreed to in their contract. 

On the day of the accident, Mr. Ramirez worked on the roof for about an hour and a half before he fell. Mr. Ramirez admits that he could see the danger of falling, which was open and obvious to him due to the thin fiberglass. Mr. Ramirez admits that he knew the fiberglass sheets could not support his weight. Mr. Ramirez admits that he took care to position himself so as to avoid falling through the fiberglass, by supporting his weight on the wooden beams that were available. Although Mr. Ramirez recognized the dangers involved in working on the roof, he admits that he never told anyone about his concerns, and never requested protective equipment. Mr. Ramirez, as an at-will employee of Mr. Nguyen, was also free to leave the project at any time. Instead, Mr. Ramirez continued working on a job that admittedly involved some element of danger, of which Mr. Ramirez was completely aware. He assumed the risk. 

The risk that Mr. Ramirez assumed, appreciated, and understood did in fact occur. As Mr. Ramirez was changing positions on the roof, he reached out for a 2x4 to stabilize himself. Mr. Ramirez had earlier been working on the same 2x4, and he had removed most of the nails that kept it in place. When Mr. Ramirez grasped the partially removed 2x4, it slid under his weight. Mr. Ramirez lost his balance, broke through the roof, and fell headfirst onto the concrete floor. 

Mr. Ramirez's mediation brief makes it sound like he slipped and fell off the side of the roof. This is not the case. What is especially important to note is that Mr. Ramirez caused or at least contributed to the dangerous condition by removing the support for the 2x4 he tried to use for support. When a person creates or contributes to a dangerous condition that causes him injury, there can be no doubt that he is aware of it. 

Injuries and this Action 
Mr. Ramirez sustained a Jefferson's fracture of his C1 vertebra, for which he received "halo" treatment over a six month period from the date of the accident through June 2006. Mr. Ramirez also sustained small compression fractures of T3, T4, two ribs, and a possible occult fracture of his left wrist from the fall, none of which required treatment beyond the halo vest. Mr. Ramirez also sustained a large laceration to his scalp/forehead. He treated at Santa Clara Valley Medical Center.  The County assesses a lien of $78,156.98 for its services. The billings show services reportedly valued at $77,641.98. Mr. Ramirez also received ambulance services, which were billed at $1,374.93. The total medical specials appear to be $79,531.91. 

In 2006, Mr. Ramirez made a claim for Workers Compensation benefits from the Nguyens' Homeowner's carrier, which was denied. Mr. Ramirez appealed to the Workers Compensation Appeals Board, and joined Mr. Nguyen, Ms. Nguyen, CSAA, Triet Minh Nguyen, ABC Construction (Triet Nguyen's company), and the State Compensation Insurance Fund (Triet Nguyen's Workers Compensation carrier). After a number of pleadings and petitions, Mr. Nguyen, Ms. Nguyen, CSAA, Triet Nguyen, and SCIF were dismissed from the action by stipulation and order.   As of November 2009, it appears that Tan Nguyen and the Uninsured Employers Benefits Trust Fund remained in the WCAB case. 

We have no information on the result of the WCAB proceedings, although documents produced by SCIF show, as of June and July 2009, that Mr. Ramirez had a whole-person impairment rating of 2-3% (further discussion below). In addition, documents produced by Valley Medical Center state that as of June 15, 2006, Mr. Ramirez's fracture appeared to have healed and he had full range of motion in his neck, without complaints of pain. The halo was removed, and Mr. Ramirez used a cervical collar after this. As of a follow up visit on July 20, 2006, Mr. Ramirez no longer wore his cervical collar and had no complaints of pain. 

As for Mr. Ramirez's injuries, neuropsychologist Dr. Claude Munday reported that this was a "mild" injury and that there were "probably some mild residuals from a concussion or mild traumatic brain injury." There are also major gaps in Mr. Ramirez's treatment history. He could have gone to Valley Medical Center if needed, yet he did not do so. In fact, despite the allegations in Mr. Ramirez's mediation brief regarding permanent impairment, pain, and future care, Mr. Ramirez admitted at his deposition that he lives on his own, without assistance, and that he continues to seek work. This is consistent with Dr. Arun Amar's report of June 2006, in which Dr. Amar states that Mr. Ramirez had full range of motion, his C1 fracture appeared to have healed, and Mr. Ramirez had no complaints of pain. Within a month, Mr. Ramirez was out of his cervical collar with full range of motion and no complaints of pain. 

There is a significant problem with Mr. Ramirez's case in that he was cognitively impaired before the subject accident even occurred. Mr. Ramirez presents his mediation brief in a fashion that suggests that this impairment was due to the accident, when even the physicians he quotes in his brief make such statements as: "There will ... be special issues ... given his limited level of academic achievement which would seem to preclude the use of more standard rehabilitative modalities ...."  --Dr. Larry J. Wornian, quoted by Mr. Ramirez at p. 24 of his brief. 

There are other problems. For example--and without judging Mr. Ramirez as to his immigration status--for obvious reasons Mr. Ramirez has waived any future wage loss claim. 
In addition, Mr. Ramirez can still work. The Workers Compensation records include an Agreed Medical Examination dated June 24, 2009, which Brian E. Schindler, MD prepared. Dr. Schindler assessed Mr. Ramirez as having the following issues: 

1. High frequency hearing loss caused at least in part by his fall. 
2. Ringing in the ears, which is entirely subjective but is common. 
3. Regarding Mr. Ramirez's complaint of disequilibrium, no problems with balance were observed. 
4. Whole person impairment of 1%. 

Interestingly, Dr. Schindler's report includes an admission from Mr. Ramirez that he was only out of work for 10 months. At $8 per hour, 40 hours per week, 52 weeks per year, this puts his past lost wages claim in the ballpark of $13,866. That Mr. Ramirez was only out of work for 10 months suggests that he perhaps started working again after that. Mr. Ramirez having no complaints of pain and being able to work seems perhaps at odds with his mediation brief. 

On June 30, 2009, Dr. Schindler issued his AME/QME findings summary. Dr. Schindler found that there were no abnormal physical or psychological exam findings, and specifically no problems with Mr. Ramirez's equilibrium. This also would seem to be somewhat at odds with Mr. Ramirez's brief. In any event, Dr. Schindler concluded that Mr. Ramirez was fit for work with one restriction: no climbing on ladders. 

On July 5, 2009, Philip A. Edington, MD conducted a visual examination in response to a complaint from Mr. Ramirez about blurred vision and dry eyes. Dr. Edington found no visual acuity impairment beyond Mr. Ramirez's existing myopia, but Dr. Edington did find that the accident probably caused Mr. Ramirez to have a dry right eye, which is treatable with either prescription eye drops or possibly a minor surgical procedure. Dr. Edington concluded that Mr. Ramirez has a visual impairment of 2-3% and a whole-person impairment of 2-3% that was not disabling. In other words, Mr. Ramirez needs glasses and eye drops or a minor outpatient procedure. He can work. 

The Complaint 
Mr. Ramirez's complaint seeks damages against the Nguyens based on negligence and premises liability theories. Mr. Ramirez contends that, because Tan Nguyen was unlicensed, the Nguyens became Mr. Ramirez's statutory employers as well as Mr. Nguyen's statutory employers. 

As to the unlicensed contractor law, Mr. Ramirez is correct. The Nguyens were both Mr. Ramirez's and Mr. Nguyen's statutory employers under Labor Code sec. 2750.5, which contains a conclusive presumption that an unlicensed contractor and his employees are statutory employees of the homeowner. 

Where Mr. Ramirez is wrong, however, is in his view of the effects of this presumption, as well as Mr. Ramirez's status under the Workers Compensation law and OSHA. 

Mr. Ramirez contends that the Nguyens, as statutory employers, were required to provide Workers Compensation coverage for him and that they did not provide coverage. As a result, Mr. Ramirez contends, he may maintain a personal injury action against the Nguyens as if the Workers Compensation law did not apply. Labor Code sec. 3706. Based on the alleged failure to insure, Mr. Ramirez contends that the Nguyens were negligent per se and do not have any of the common law defenses of assumption of risk, comparative negligence, and the fellow servant rule. Labor Code sec. 3708. As with most other presumptions, negligence per se for a failure to insure under the Workers Compensation law is rebuttable. See, e.g., Evidence Code sec. 669. 

Mr. Ramirez also contends that the Nguyens, as statutory employers, were required to comply with OSHA by providing Mr. Ramirez a safe workplace, safety equipment, and other protections imposed on commercial employers under OSHA. Mr. Ramirez contends that the Nguyens' alleged failure to follow OSHA regulations renders them negligent per se, again eliminating common law defenses to negligence.  Mr. Ramirez further contends that the Nguyens committed ordinary negligence on the project, and negligently failed to supervise the project properly.  Mr. Ramirez also makes a premises liability claim against the Nguyens, alleging that they failed to warn him of a dangerous condition on the property. Although not pled in the complaint, Mr. Ramirez now contends that the Nguyens should be liable for negligent hiring, and that as statutory employers, the Nguyens should be vicariously liable for the negligence of Tan Nguyen in causing or contributing to Mr. Ramirez's injury. 

Liability 
Liability is contested. First, most of Mr. Ramirez's theories of liability spring from the premise that Mr. Ramirez was the Nguyens' "employee" when the loss occurred.  There are three different definitions of "employee" relevant to our case. Although the three definitions are intertwined, each definition has its own implications. The most straightforward answer is that the Nguyens are the statutory employer of Mr. Ramirez for the purposes of the unlicensed contractor law, but not for the purposes of Workers Compensation or OSHA. 

A statutory employer under the unlicensed contractor law has a standard of care of ordinary negligence, with all available defenses, unless the statutory employer is found to be the "employer" of the worker under the Workers Compensation law or OSHA, which are separate from the unlicensed contractor law. 

Of note, Labor Code sec. 2750.5 states in its own provisions that Workers Compensation is a separate regime, and that the definitions of "employer" and "employee" in section 2750.5 "supplement" existing law.  Labor Code sec. 3708 uses the term "contributory" negligence, so it is assumed that the statute was revised by operation of law with the passage of Proposition 51. 

Existing law provides that a homeowner who is the statutory employer of a laborer under the unlicensed contractor law is not necessarily the "employer" of the laborer for the purposes of the Workers Compensation law. Cedillo v. Workers Compensation Appeals Board (2003) 106 Cal. App. 4th 227 (laborer was statutory employee but was expressly excluded from Workers Compensation regime because he had not worked 52 hours or more on the project, and his services were incidental to ownership or maintenance of dwelling, as prescribed in Workers Compensation law at Labor Code sec. 3351(d) and sec. 3352(h)). 

Labor Code sec. 3351(d) and 3351(h) limit application of the Workers Compensation law by their express terms; while all unlicensed contractors and laborers working for them are statutory employees of the owner, not every statutory employee is entitled to Workers Compensation. 

Here, Mr. Ramirez admits he was injured on his first day on the job, and therefore less than 52 hours into his work. It is undisputed that he was removing fiberglass material from the roof at the time of his injury. The only remaining question is one of law: were his services "incidental" to the ownership or maintenance of the dwelling under Labor Code sec. 3351(d)?  The Supreme Court has stated that Labor Code sec. 3351(d) "is sufficiently broad as to encompass most situations where a homeowner or renter hires a plumber or carpenter to make repairs." State Compensation Insurance Fund v. Worker's Compensation Appeals Board (1985) 40 Cal. 3d 5, 14. The SCIF case contains an extensive treatment of the purposes and scope of the Workers Compensation law in the context of unlicensed contractors. Cedillo v. Workers Comp. Appeals Bd., supra, relied on SCIF v. Workers Comp. Appeals Board. 

In Cedillo, the Court of Appeal held that Mr. Cedillo, a roofer, was within the incidental services exception of Labor Code sec. 3351(d). Mr. Ramirez's situation is no different; he is a statutory employee, but he is expressly excluded from the Workers Compensation law because he worked less than 52 hours and was performing services incidental to the ownership of the residence. As Mr. Ramirez is excluded from the Workers Compensation law, there was no failure to insure, there is no statutory violation, and therefore there is no negligence per se. All of the common law defenses to negligence will be available to the Nguyens. 

OSHA is a much easier regime to discuss. Mr. Ramirez alleges negligence per se based on a violation of OSHA for an alleged failure to provide fall protection equipment or comply with other fall-related regulations.   In Fernandez v. Lawson (2003) 31 Cal. 4th 31, however, the Supreme Court held that OSHA did not apply to homeowners in this type of situation. In Fernandez, the homeowner hired a tree trimmer who turned out to be unlicensed. The unlicensed tree trimmer's laborer fell while working on a 50-foot palm tree. The laborer alleged negligence per se based on the Workers Compensation law and failure to comply with OSHA fall-protection regulations. 

The homeowner was the statutory employer of the laborer, because the tree trimmer who hired the laborer did not have the required contractor's license (Class D49-Tree Service Contractor). The laborer was a statutory employee, but he was not the homeowners' employee under the Workers Compensation law, because he had worked less than 52 hours and was performing incidental services when injured. As for OSHA, the type of tree trimming involved was a service to the homeowner, was personal in nature, and the homeowner was not a commercial enterprise. "It is sufficient to note here that there is no indication [defendant] Lawson wanted the palm tree trimmed for any commercial purpose." Id. at 37. The Supreme Court held that the tree trimming at issue in Fernandez was a "household domestic service," which is exempt from OSHA, for reasons of public policy. Fernandez at 38 et seq. To wit, that a complex regulatory scheme such as OSHA was intended to apply to commercial enterprises rather than private homes. 

Unfortunately, the Court did not find occasion to address whether an unlicensed contractor's laborer is equitably estopped from arguing statutory employment based on misrepresentations by the unlicensed contractor. Fernandez at 38-39. 

In any event, here Mr. Ramirez was in the same position as was Mr. Fernandez in Fernandez v. Lawson--performing services for an unlicensed contractor, whom the homeowners hired to perform personal services on their personal and non-commercial residence. Here, perhaps unlike Mr. Lawson in Fernandez v. Lawson, the homeowners themselves could have performed the task that Mr. Ramirez was doing when he fell. The task also did not require any special tools or training. OSHA does not apply. 

As for theories of ordinary negligence and premises liability, the defenses are substantially the same. When Mr. Ramirez undertook to climb the roof and dismantle it, he assumed the risk of the open and obvious danger that he admits he was aware of--falling through a thin fiberglass roof that he was dismantling. No one has a duty to warn of open and obvious dangers, particularly where the injured party is actually aware of them. See, e.g., Ramirez v. Nelson (2008) 44 Cal. 4th 908 (homeowner had no duty to warn laborer hired by unlicensed contractor of the risk of working near high voltage lines that were openly visible. In any case, the laborer caused his own death by electrocution when he violated Penal Code sec. 385(b), which prohibits the placement or use of any equipment within six feet of high voltage lines). The rule is that when "the danger is so obvious that a person could reasonably expect to see it, the condition itself serves as a warning, and the landlord is under no further duty to remedy or warn of the condition." Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal. App. 4th 387, 393 (emphasis added).  Ramirez v. Nelson is relevant to another of Mr. Ramirez's claims--vicarious liability. 

It is conceded that the Nguyens were Mr. Ramirez's and Mr. Nguyen's statutory employers. It is conceded that Mr. Ramirez may claim that the Nguyens were personally negligent in some respects. Mr. Ramirez takes this a few steps further, however, and contends that because the Nguyens were Mr. Nguyen's statutory employers, the Nguyens should be vicariously liable for Mr. Nguyen's negligence in causing or contributing to Mr. Ramirez's injury, as a matter of law. Mr. Ramirez cites Foss v. Anthony Industries (1983) 139 Cal. App. 3d 794 for the proposition that "[v]icarious liability for unlicensed contractors applies for all civil, as well as worker's compensation actions." (P. 11:27-12:1). 

The Supreme Court, however, reached a different conclusion in Ramirez v. Nelson: "[t]he question whether an unlicensed contractor or his worker, when injured on the job, becomes the employee of the homeowner who hired him, under Labor Code sec. 2750.5, for purposes of tort liability is nonetheless not ripe for decision here .... " Ramirez at 917 (emphasis added). It's clear that the question Mr. Ramirez claims is settled is actually one of first impression. 

The high Court in Ramirez went on to discuss vicarious liability in the context of Penal Code section 385(b), which imposes strict and vicarious criminal liability on any "employer" whose "employee" places or uses equipment within six feet of high voltage lines. The employer is liable for any violation, even if the employer acted entirely reasonably, took all possible precautions, or even specifically instrncted the employee not to use the equipment near the lines. The Court in Ramirez held that the homeowners had no such liability in that case. On the subject of vicarious civil liability, the Ramirez Court had the following to say, which is instructive in our case: 

"The Court of Appeal's contrary holding [imposing duties of care on the homeowner to the laborer] effectively made these homeowners vicariously liable in tort to the deceased worker, whose own misdemeanor conduct violated section 385(b) and proximately caused his fatal injuries, without regard to the fact that the homeowners had no control over the manner in which either the hired contractor or his workers performed their job." Ramirez at 912 (emphasis added). 

The vicarious liability section of CACI includes numerous cases that discuss the nature and extent of control for the purposes of determining vicarious liability of an employer. There are also numerous cases regarding vicarious liability of independent contractors. Setting aside Mr. Ramirez's nominal legal status at the time of his injury, neither he nor Mr. Nguyen meet the "control" test required for the imposition of vicarious liability. See., e.g., CACI 3704. Existence of "Employee" Status Disputed. 

To the extent Mr. Ramirez makes a claim that the Nguyens "controlled" safety conditions at the worksite, even if the Nguyens did not "control" Mr. Ramirez or Mr. Nguyen, the Supreme Court had the opportunity to address a similar issue in Hooker v. Dept. of Transportation (2002) 27 Cal. 411 198. The Court discussed the doctrine of "retained control" of independent contractors, and held that: 

"[The] hirer of an independent contractor is not liable to an employee of the contractor merely because the hirer retained control over safety conditions at a worksite, but ... a hirer is liable to an employee of a contractor insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries."

Hooker at 202 (emphasis in original). In Hooker, the employee of a general contractor hired by Caltrans fell to his death. The record showed that the decedent was operating a crane in a roadway that was too narrow for other construction vehicles to pass while the crane's stabilizing outriggers were extended. The decedent retracted the outriggers in order to allow vehicles to pass and left the area for a while, then returned. The decedent forgot to extend the outriggers again, and when he started to operate the crane it fell over, killing him. Plaintiff claimed that Caltrans negligently failed to stop the project when it should have, because the on-site Caltrans supervisor knew or should have known that the crane was being operated in this fashion. 

Hooker discussed, at extreme length and in the context of decisions by the Supreme Courts of various other states, the rationale for our Supreme Court's Privette line of cases barring recovery by employees of independent contractors against the hirers of independent contractors. Hooker at 206 et seq. One key observation was this: 

"[B]ecause the liability of the contractor, the person primarily responsible for the worker's on-the-job injuries, is limited to providing workers' compensation coverage, it would be unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over safety at the worksite."

Hooker at 210. Hooker adopted the reasoning of the Supreme Court of Utah as the new law in California: the employee of a general contractor may maintain an action against the hirer of the general contractor only where the hirer's exercise of its retained control affirmatively contributes to the injury, and not where the hirer merely had retained control. Hooker at 211-212. Even where "the hirer in theory retained a high degree of control over safety conditions at the job site," if there is "no indication the hirer contributed to the accident by an affirmative exercise of that control," then the employee of the contractor may not recover. Hooker at 211 (emphasis added). 

Here, the Nguyens did not affirmatively contribute to Mr. Ramirez's injuries in any fashion. Mr. Nguyen is the one who hired Mr. Ramirez; Mr. Nguyen told Mr. Ramirez to go up on the roof; Mr. Nguyen directed all work done by Mr. Ramirez; the Nguyens directed nothing; the Nguyens had nothing to do with how Mr. Ramirez was hired; the Nguyens never spoke to Mr. Ramirez and therefore could not have given him any directions; and finally, the Nguyens did not supply Mr. Ramirez with the tools, including the ladder, that were needed to do the job.  

Here, the Nguyens retained far less "control" than did Caltrans in Hooker. The Nguyens testified that they were unaware of what precautions might be required on their project, which is why they knew they needed to hire a contractor. This is why they hired Mr. Nguyen, who represented that he was a licensed General Contractor. The Nguyens retained absolutely no control over Nguyen or how he performed the construction. 

It is undisputed that after the accident, the workers on the Nguyens' residence wore hard hats. Although Mr. Ramirez's inclusion of this fact in his brief could be perceived as a "cheap shot," because subsequent remedial measures are not admissible to prove negligence, it does demonstrate what limited control the Nguyens retained. After the accident occurred, the Nguyens no doubt asked Mr. Nguyen to prevent such an accident from happening again, and Mr. Nguyen took the precaution of having everyone wear hard hats. This is the extent of the Nguyens' control over Mr. Nguyen. In any event, Mr. Nguyen and Mr. Ramirez both fail the "control" test of agency and employment relationships set forth in the CACI instructions, and clearly Mr. Ramirez and Mr. Nguyen are included in the holding of our Supreme Court in Hooker, Privette, and related cases. 

A final word on liability. Mr. Ramirez makes numerous allegations throughout his brief that the accident "would not have happened" had the Nguyens obtained a building permit, had Mr. Nguyen been licensed, and so on. The simple fact is this: regardless of whether a contractor is licensed or not licensed, accidents happen. There are plenty of cases in which a contractor, despite being licensed, negligently fails to comply with safety rules or some other law or regulations. This may explain the wealth of Supreme Court jurisprudence in the areas of independent contractor/ultimate hirer liability (e.g., Privette and Hooker), Workers Compensation (e.g., SCIF v. WCAB), and unlicensed contractor liability (e.g., Fernandez and Ramirez).
 
Saying that the Nguyens "would have prevented" this accident by obtaining a building permit or by some other remote act is like saying the accident "would not have occurred" if Mr. Ramirez had not gotten out of bed that day. Or saying that the accident "would have been prevented" if Mr. Nguyen happened to pick up a different laborer that day. Or saying that the accident "would never have happened" if only the previous owner of the residence had decided to use aluminum instead of fiberglass as a roofing material. These assertions are defenses to causation, and they are no more unreasonable than Mr. Ramirez's similar assertions in favor of causation. Mr. Ramirez's reliance on such speculation is just not appropriate, because the causal connection between each such act and the injury that occurred here is too remote to meet the test of legal causation. What is appropriate is to observe that the accident could have occurred even if the Nguyens had taken all of the steps allegedly required of them under either Workers Compensation or OSHA. 

Conclusion 
Despite differences in the parties' views on liability, legal theories, injuries, and damages, the Nguyens are interested in an amicable resolution in good faith, and they look forward to the mediation of this case.