Rodoni v. Harbor Engineers

DUNIWAY, J.

In an action to establish and foreclose a mechanic’s lien plaintiff had judgment and the owner, CustomBilt Homes, Incorporated, appeals.

The court found, by reference to the complaint, that Harbor Engineers (Harbor) made a contract with plaintiff-respondent whereby the latter 1 ‘ agreed to furnish all the labor necessary relative to tractor and bulldozer work necessary to develop” appellant’s subdivision. It also found that “plaintiff was not a contractor or sub-contractor but rather only an employee” of Harbor.

On this appeal, three contentions are made: (1) that plaintiff was a subcontractor, not an employee; (2) that the services involved were furnished under a contract of Harbor with the city of San Mateo to do street work on the subdivision, not under Harbor’s contract with appellant; and (3) that the court erred in awarding interest. We sustain only the last point.

(1)

The finding that plaintiff was an employee is supported by the evidence.

The question is material under the Contractors’ Licensing Law (Bus. & Prof. Code, §§ 7000-7145). If plaintiff was acting as a contractor, as there defined, he cannot maintain this action, as it is stipulated that he had no license (Bus. & Prof. Code, § 7031). The work done was bulldozing and earth moving

(cf.

Bus. & Prof. Code, § 7026), including excavating and grading and surfacing

(cf.

Bus. & Prof. Code, § 7058, and 16 Cal. Admin. Code, §§ 732, 735). It is admitted that, if plaintiff did act as a contractor, the foregoing sections would apply, but plaintiff asserts that Business and Professions Code, sec

[562]

tion 7053, exempts Mm' as a “person who engages in the activities herein regulated, as an employee with wages as his sole compensation. ’ ’

The distinction between an employee and a contractor is an old one, and has been productive of much litigation in many fields of the law, particularly torts and workmen’s compensation, as well as under the Contractors’ Licensing Law. It is well settled that ordinarily the question in each case is one of fact, and that therefore, as in other cases involving fact questions, the decision of the trial court will be affirmed if supported by any substantial evidence. “ [I]n the last analysis each case must turn upon its own peculiar facts and circumstances.”