NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

This case returns to the court following remand by the Supreme Court. In our original opinion, we affirmed the trial court's grant of summary judgment in favor of defendants Lourdes and Omar Abich (collectively defendants). (Cortez v. Abich (2009) 177 Cal.App.4th 261, rev. granted Dec. 2, 2009 (S177075).) In so doing, we agreed with the trial court's determination that defendants were not required to comply with the requirements of the California Occupational Safety and Health Act of 1973 (Cal-OSHA). (Lab. Code, § 6300 et seq.) The Supreme Court disagreed with our conclusion. (Cortez v. Abich (2011) 51 Cal.4th 285.) Thus, we remand the matter to the trial court with directions to vacate the judgment entered in defendants' favor.

FACTUAL AND PROCEDURAL BACKGROUND

We set forth the factual and procedural background as outlined by the Supreme Court.

"Octoviano Cortez (plaintiff) was seriously injured while working on a job at a house purchased and owned by Lourdes Abich, for her son, Omar Abich (collectively, defendants), to use as a residence. Plaintiff brought this action against defendants and the unlicensed contractor who hired him, Miguel Quezada Ortiz [fn. omitted], alleging causes of action for negligence (failure to warn and failure to make work area safe) and premises liability (negligence in ownership, maintenance, management, and operation of premises).

"Defendants moved for summary judgment after the following facts were developed through discovery. Omar Abich personally obtained construction permits from the City of Pasadena for a remodeling project that would add over 750 square feet to the house. Although Omar Abich was not a general contractor and did not have a contractor's license, he designated himself as the `owner/builder' for the project and hired an architectural firm to draw up the necessary plans for approval by the Pasadena building department. The project entailed demolition of existing walls and a deck, addition of a new master bedroom and a new master bathroom, construction of a garage to replace a carport, an upgrade of the kitchen, removal of the existing roof and construction of a new roof, installation of new flooring, new toilets and sinks, and new paint.

"Defendants contracted with a number of individuals and companies to work on the project, one of whom was Ortiz. [Fn. omitted.] Defendants were unaware that Ortiz did not have a contractor's license, which they concede was required for the work. Defendants moved out of the house once the project was under way, and they did not supervise the work.

"Ortiz hired plaintiff to work on the project, but the scope of that work is in dispute. For present purposes we accept plaintiff's contention he was hired to help demolish the roof. When plaintiff arrived at the property, only the front part of the house remained; as for the back part of the house, the roof had been removed and `[t]he only thing that was left were the walls that were made out of brick.' Plaintiff proceeded to collect debris from the demolition, then climbed onto the remaining part of the roof to help with its removal. Plaintiff took two steps and fell when a portion of it collapsed. He suffered a fractured spine.

"In their motion for summary judgment, defendants contended they had no duty to warn plaintiff of the roof's condition because he went onto the roof on his own accord and any danger was open and obvious. They also argued the work safety requirements of Cal-OSHA did not apply to the residential remodeling project.

"The trial court granted defendants' motion. As relevant here, the court determined as a matter of law that defendants were not plaintiff's employers, and that even if they were, defendants were homeowners, who were not required to comply with Cal-OSHA.

"The Court of Appeal affirmed summary judgment for defendants. The court first concluded that, pursuant to [Labor Code] section 2750.5, defendants must be regarded as plaintiff's employers with respect to potential tort liability. Nonetheless, it held as a matter of law that defendants' home improvement project fell within Cal-OSHA's `household domestic service' provision for employment excluded under the Act ([Lab. Code,] § 6303, subd. (b)), because the project was undertaken for the noncommercial purpose of enhancing defendants' personal enjoyment of their residence." (Cortez v. Abich, supra, 51 Cal.4th at pp. 289-290.)

DISCUSSION

The Supreme Court's determination that defendants were required to comply with Cal-OSHA requirements affects the outcome of their summary judgment motion in two major respects. First, the "Cal-OSHA provisions are to be treated like any other statute or regulation and may be admitted to establish a standard or duty of care in all negligence and wrongful death actions, including third party actions." (Elsner v. Uveges (2004) 34 Cal.4th 915, 928.) Second, defendants cannot rely on the defense of assumption of the risk. (Lab. Code, § 2801, subd. (a).)

In granting summary judgment, the trial court found that defendants were not plaintiff's employers. In our original opinion, relying on Rosas v. Dishong (1998) 67 Cal.App.4th 815, 822-823, we concluded that defendants were plaintiff's employer for purposes of potential tort liability. We agreed with the Rosas court that by enacting Labor Code section 2750.5, the Legislature intended to provide a potential tort remedy to unlicensed workers who were otherwise not covered by the workers' compensation laws. We adhere to that view. To the extent there are practical considerations that render making Cal-OSHA applicable to homeowners who hire individuals to perform work on their premises unwise or unfair, those concerns are best directed to the Legislature, not the courts.

Because the trial court did not consider whether there were triable issues of material fact regarding defendants' compliance with Cal-OSHA requirements and defendants are barred from claiming plaintiff assumed the risk of injury by willingly climbing on the roof, the grant of summary judgment must be reversed.

DISPOSITION

The judgment in favor of defendants is reversed. Plaintiff is awarded his costs on appeal.

We concur:

EPSTEIN, P.J.

MANELLA, J.