Andreacchi v. Price Co.

• Decision Date: 18 March 1997
• Docket Number: No. A073353,A073353
• Citation: 61 Cal.Rptr.2d 854,53 Cal.App.4th 646
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 53 Cal.App.4th 646 53 Cal.App.4th 646, 62 Cal. Comp. Cases 310, 97 Cal. Daily Op. Serv. 2013, 97 Daily Journal D.A.R. 3687 Deborah ANDREACCHI, Plaintiff and Appellant, v. PRICE COMPANY, Defendant and Respondent.

Page 854

61 Cal.Rptr.2d 854

Previously published at 53 Cal.App.4th 646

53 Cal.App.4th 646, 62 Cal. Comp. Cases 310,

97 Cal. Daily Op. Serv. 2013,

97 Daily Journal D.A.R. 3687

Deborah ANDREACCHI, Plaintiff and Appellant, v. PRICE COMPANY, Defendant and Respondent.

No. A073353.

Court of Appeal, First District, Division 1, California.

March 18, 1997.

Review Granted July 9, 1997.

Review Transferred to the Court of Appeal Sept. 30, 1998.

Cory A. Birnberg, Thomas B. Gill, Birnberg & Associates, San Francisco, for Plaintiff and Appellant.

Kathryn K. Morrison, Claudia B. Butler, San Francisco, Kenwood C. Youmans, Los Angeles, Seyfarth, Shaw, Fairweather & Geraldson, for Defendant and Respondent.

STRANKMAN, Presiding Justice.

Plaintiff Deborah Andreacchi appeals from a judgment dismissing her wrongful termination action against her former employer, The Price Company, after the sustaining of a demurrer without leave to amend. We conclude that her complaint was barred by the exclusivity provisions of workers' compensation law and that those provisions have not been repealed or superseded by recent amendments to the Fair Employment and Housing Act.

FACTUAL AND PROCEDURAL BACKGROUND

Because this appeal arises after the sustaining of a demurrer, we must assume the truth of all properly pleaded material allegations of fact. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 635, 49 Cal.Rptr.2d 377, 909 P.2d 981.) However, we do not assume the truth of contentions, deductions, or conclusions of fact or law, such as allegations that a party's actions were unlawful. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479.)

Plaintiff was an employee of defendant, The Price Company, from mid-1989 until her discharge in February 1994. After being discharged, plaintiff sued defendant and Injury Control Systems, Inc. (ICS), doing business as Pacific Occupational Health Clinic Medical Associates (Clinic). Her third amended complaint included the following allegations. ICS, doing business as the Clinic, was the treating physician for all work-related injuries suffered by defendant's employees and was also "aligned" with Hertz Claims Management, defendant's workers' compensation carrier. Plaintiff was injured on the job as the result of a fall in January 1994. When she reported the injury, defendant referred her only to the Clinic and not to any alternative medical care provider. Plaintiff had never been permitted to select from two providers or select her own physician to treat her for a work-related injury.

At the Clinic, plaintiff was diagnosed as having a contusion and low back strain and was told not to return to work. Nevertheless, defendant's workers' compensation agent advised plaintiff by letter that she had been determined to be fit for work and that her compensation benefits were being terminated. Defendant denied her request to see her own physician. Plaintiff returned to the Clinic, was diagnosed as suffering from a cervical/lumbar strain, and was advised that she was being released to work on a modified program with limitations. However, the release was made without any analysis of her job requirements. Because plaintiff did not agree with the release, she sought an examination at a hospital emergency room. The diagnosis was recurrent lumbar strain; the recommendation, bed rest and further treatment at the Clinic.

Plaintiff returned to the Clinic and again was advised she was unable to return to work. However, the following day, the Clinic issued an amended report stating that she could return to regular work on the next day, February 9. When plaintiff learned of the amended report, she saw a chiropractor, who diagnosed her as suffering from radiculitis concurrent with lumbar injury and placed Based on this sequence of events, the third amended complaint alleged causes of action against defendant for intentional and negligent infliction of emotional distress. Plaintiff alleged that as a result of defendant's conduct, she sustained great mental suffering and emotional distress, "with the result that she was rendered generally ill and suffered emotional injury, greatly affecting her general mental and emotional health." ¹

her on one month additional disability. Despite receiving this disability information, defendant discharged plaintiff on February 25 for not returning to work. Defendant did not speak to plaintiff about her right to a medical leave, although it was aware she was entitled to such leave.

Defendant demurred on the grounds that the causes of action were barred by the exclusivity provisions of workers' compensation law, that the complaint failed to state a cause of action upon which relief could be granted, and that it failed to the extent it was based on a conspiracy claim. The trial court sustained the demurrer and dismissed the action against defendant with prejudice.

DISCUSSION

Although plaintiff alleged only intentional and negligent infliction of emotional distress against defendant, she now contends that her complaint was sufficient to state a statutory cause of action for employment discrimination under the California Fair Employment and Housing Act (FEHA) ( Gov.Code, § 12900 et seq.) or a tort cause of action for wrongful discharge in violation of public policy.

When ruling on a demurrer, the trial court must look past the form of a pleading to its substance. It must ignore confusing or erroneous labels attached to causes of action by an inept pleader and instead determine whether the complaint, liberally construed, alleges facts sufficient to constitute a cause of action under any legal theory. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908, 274 Cal.Rptr. 186.) But a court does not abuse its discretion in sustaining a demurrer without leave to amend if the complaint, liberally construed, does not state a cause of action and there is no reasonable possibility under applicable law that an amendment could cure its defects. (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486, 229 Cal.Rptr. 324, 723 P.2d 64.)

Labor Code section 3600, subdivision (a) provides in pertinent part that subject to certain exceptions and conditions, workers' compensation liability, "in lieu of any other liability whatsoever" will exist "against an employer for any injury sustained by his or her employees arising out of and in the course of the employment...." ² The basis of this exclusivity rule is the presumed compensation bargain, in which the employer assumes liability without regard to fault in exchange for limitations on the amount of liability. The employee is provided relatively swift and certain payment of benefits for an injury without having to prove fault but, in return, gives up potential tort damages. (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 708, 30 Cal.Rptr.2d 18, 872 P.2d 559.) It is well-settled that an employee who suffers disabling emotional distress from employer conduct that is a normal part of the employment relationship, such as a discharge, may not avoid the exclusivity rule simply by characterizing the conduct as unfair, outrageous or intended to cause that distress. ³ (Id. at p. 712, 30 Cal.Rptr.2d 18, 872 P.2d 559; Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1099, 4 Cal.Rptr.2d 874, 824 P.2d 680; Shoemaker v. Myers (1990) 52 Cal.3d 1, 7, 18-20, 276 Cal.Rptr. 303, 801 P.2d 1054.)

One aspect of the exclusivity rule is based on section 132a, which prohibits discrimination against workers injured in the course and scope of their employment and provides compensation and other remedies to an aggrieved worker for such discrimination. Jurisdiction to award increased compensation under this section is with the workers' compensation appeals board. (See generally, Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 664-669, 150 Cal.Rptr. 250, 586 P.2d 564.) Based on section 132a, appellate courts have held consistently that workers' compensation law provides the exclusive remedy for work-related disability discrimination. (See, e.g., Denney v. Universal City Studios, Inc. (1992) 10 Cal.App.4th 1226, 1235, 13 Cal.Rptr.2d 170; Pickrel v. General Telephone Co. (1988) 205 Cal.App.3d 1058, 1063-1064, 252 Cal.Rptr. 878.)

However, the exclusivity rule does not preclude a tort action for wrongful discharge in contravention of a fundamental public policy grounded in either a constitutional or statutory provision, because that employer misconduct cannot be considered a normal part of employment relationship or a normal risk encompassed within the compensation bargain. (Gantt v. Sentry Insurance, supra, 1 Cal.4th at pp. 1095, 1100-1101, 4 Cal.Rptr.2d 874, 824 P.2d 680; Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172-178, 164 Cal.Rptr. 839, 610 P.2d 1330.) The Supreme Court also has recognized that there may be statutory exceptions, express or implied, to the exclusivity rule. Illustrative is former Government Code section 19683, a "whistleblower" protection statute, which authorized a civil action for damages incurred from official retaliatory acts. In Shoemaker v. Myers, supra, 52 Cal.3d 1, 276 Cal.Rptr. 303, 801 P.2d 1054, after contrasting the purposes served by the workers' compensation scheme and the whistleblower statute, the court concluded that the Legislature intended the latter to afford an additional remedy to an aggrieved employee, thereby creating a specific exception to workers' compensation law. (Id. at pp. 7, 20-23, 276 Cal.Rptr. 303, 801 P.2d 1054; see 2 Hanna, Cal. Law of Employee Injuries and Workers' Compensation (2d ed. rev.1996) § 21.03[d], p. 21-26.)

This court and other Courts of Appeal have rejected recent attempts to extend the high court's rationale in Shoemaker to permit a civil action under the FEHA by an employee allegedly subjected to employment discrimination as a result of a work-related injury. (Usher v. American Airlines, Inc. (1993) 20 Cal.App.4th 1520, 1524-1527, 25...