Holmes v. Roth

Opinion

In this appeal, we conclude that the doorman at a condominium complex is the employee of the condominium homeowners association, but is not the employee of the individual homeowners merely by virtue of their membership in the homeowners’ association. For this reason, we affirm the trial court’s determination that the doorman’s civil action against a negligent homeowner is not barred by the exclusive remedy provisions of the Workers’ Compensation Act.

Facts

Appellant Marjorie Roth is a condominium owner in Los Angeles. Incident to her ownership, she is a member of the homeowners association (the association) which governs the complex in which her condominium is located. The association is a nonprofit corporation. As a member of the association, Roth pays a monthly assessment for the maintenance of the complex, as required by the association’s declaration of covenants, conditions and restrictions. A portion of the assessment paid by Roth is applied to the casualty, liability and workers’ compensation insurance which the association is required to carry.

Respondent Emmet H. Holmes is employed as a doorman at Roth’s condominium complex. His salary is paid by the association, and he is supervised by the project manager. On November 14, 1988, Holmes attempted to rescue Roth when her vehicle began to roll backwards in front of the condominium complex. In the process, Holmes was injured.

Holmes filed a workers’ compensation claim against the association with its insurance carrier, and received benefits from that policy. He also filed this lawsuit for personal injuries against Roth..

In March of 1991, Roth brought a motion for summary judgment, arguing that Holmes was her employee, that he was injured in the course and scope of his employment, and that workers’ compensation was his exclusive remedy. This motion was apparently denied, though the order does not appear in the record.

On August 9, 1991, the parties stipulated to the entry of judgment against Roth. Roth retained the right to appeal the judgment, and agreed to pay

The White case was cited with approval by the Supreme Court in Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490 [ 229 Cal.Rptr. 456 , 723 P.2d 573 , 59 A.L.R.4th 447 ]. That case concerned the liability of an incorporated condominium association. The court agreed with the White court’s conclusion that a member of a condominium association has “no ‘effective control over the operation of the common areas ... for in fact he had no more control over operations than he would have had as a stockholder in a corporation which owned and operated the project.’ ” (42 Cal.3d at p. 500.) The court observed that this conclusion had even more force in a case involving a nonprofit incorporated association, in which members are like shareholders in a business corporation. (Id., fn. 7.)

The same analysis applies here. Although Roth pays into the common pool out of which Holmes’s salary and the association’s workers’ compensation insurance premium is paid, this fact does not make her Holmes’s employer. The incorporated nonprofit association to which Roth belongs possesses a separate legal existence from her own, and it alone controls Holmes’ employment.

B. An Employer Is One Who Exercises Control Over an Employee

“The principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.” (Tieberg v. Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943 , 946 [ 88 Cal.Rptr. 175 , 471 P.2d 975 ].) In addition to the right to control an employee’s performance, another important factor in determining an employment relationship is the right to discharge. (S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 , 350 [ 256 Cal.Rptr. 543 , 769 P.2d 399 ].)

The importance of these factors is not diminished merely because the employing entity happens to be a membership organization. In Claremont C. Club v. Industrial Acc. Com. (1917) 174 Cal. 395 [ 163 P. 209 ], the employing entity was a country club which owned and maintained golf links for the use of its members. Control over the links was vested in committees selected from the club members. As a service to its members, the organization provided caddies. The caddies were hired and discharged by the greens

A caddy was injured while working for a member, and the question presented by the appeal was whether the injured caddy was an employee of the club for workers’ compensation purposes, or if, while the caddy rendered services, the individual member became “his master.” (174 Cal. at p. 397.) The Supreme Court rejected the concept that an employee who is employed and controlled by a membership organization becomes the employee of individual members merely by contributing to the convenience and pleasure of the members, regardless of whether the members paid the employee’s compensation directly out of their pockets. The court wrote, “The employment and discharge of the caddy during all of the time when he is not actually in the service of a member is wholly under the control of the country club, and this is the determinative fact in the matter.” (Id. at p. 398.)

In this case, Roth presented no evidence that she exercised any control over Holmes’s employment as a doorman. She did not hire him and is not entitled to fire him. She does not dictate his working hours or the manner in which he performs his duties. Her sole dominion over Holmes is exercised in the brief moments when he holds open a door for her and helps her carry her belongings, much like the golf caddy who assists the members of a golf club during the course of a game, for their convenience and pleasure. Under the circumstances, there is no triable issue of fact concerning Roth’s ability to control or discharge Holmes: there is no evidence that she exercises the control of an employer over an employee.

C. The Authority Cited by Appellant Is Inapposite

Roth relies upon Cowell v. Industrial Acc. Com. (1938) 11 Cal.2d 172 [ 78 P.2d 1016 ], for the proposition that the exclusive remedy provisions of the Workers’ Compensation Act apply here, and that she is therefore immune from suit.

The Cowell case is distinguishable. First, it does not involve the specialized law pertaining to condominiums. The case also contains critical factual distinctions. The court found that a lime manufacturing corporation was operating a ranch, which was outside the scope of its lime business, “as an accommodation” to the ranch’s actual owners, the Cowells. The Cowells,