Wednesday, February 23, 2005

Titus v. Thomas (Cal. Ct. App. - February 23, 2005)

A minor point about a minor case. The trial court in this case grants summary judgment to the defendant on worker's comp exclusivity grounds because he was a "fellow employee" of plaintiff as a matter of law since defendant didn't have the required contractor's license (and hence wasn't an independent contractor). Justice Scotland reverses because Business and Professions Code sect. 7049 creates an exemption from the licensing requirement for people who clear land for fire purposes in "rural districts". (You can read the rest of this short case for a fascinating discussion of what a "rural district" entails and the particular demographics of Siskiyou County. Unless you have something better to do. Which you do.)

Justice Scotland admits -- albeit in the unpublished part of the opinion (lame!) -- that the only reason defendant obtains a reversal is because he makes a completely new argument on appeal (e.g., the Section 7049 point) that he never raised in the trial court. Okay, fine; maybe this is indeed a purely legal issue that can be asserted for the first time on appeal. But don't then conclude the opinion by ordering the defendant to pay costs. The only reason an appeal was even necessary was likely because plaintiff failed to make the correct argument below. Defendant shouldn't be made to pay for that error.