Cammack v. GTE California Inc

• Citation: 48 Cal.App.4th 207,55 Cal.Rptr.2d 837
• Decision Date: 08 August 1996
• Docket Number: No. B092027,B092027
• Court: California Court of Appeals
• Parties: Previously published at 48 Cal.App.4th 207 48 Cal.App.4th 207, 61 Cal. Comp. Cases 760, 5 A.D. Cases 1387, 8 NDLR P 277, 96 Cal. Daily Op. Serv. 5972, 96 Daily Journal D.A.R. 9701 David CAMMACK, Plaintiff and Appellant, v. GTE CALIFORNIA INCORPORATED et al., Defendants and Respondents.

Page 837

55 Cal.Rptr.2d 837

Previously published at 48 Cal.App.4th 207

48 Cal.App.4th 207, 61 Cal. Comp. Cases 760, 5 A.D. Cases 1387,

8 NDLR P 277, 96 Cal. Daily Op. Serv. 5972,

96 Daily Journal D.A.R. 9701

David CAMMACK, Plaintiff and Appellant, v. GTE CALIFORNIA INCORPORATED et al., Defendants and Respondents.

No. B092027.

Court of Appeal, Second District, Division 5, California.

Aug. 8, 1996.

Review Granted Nov. 26, 1996.

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

Sparagna, Sparagna & Ferrone and John A. Ferrone, Encino, for Plaintiff and Appellant.

Mark F. Sullivan, Thousand Islands, for Defendants and Respondents.

TURNER, Presiding Justice.

I. INTRODUCTION

Plaintiff, David Cammack, appeals from the judgment entered in favor of defendants, GTE California Incorporated ("GTE"), sued as General Telephone Corporation, and its employee Pam Woody. Based on preemption by the California Workers' Compensation Act (Lab.Code, §§ 3600 et seq., hereafter "the act"), the trial court sustained without leave to amend the demurrer to plaintiff's first amended complaint in which he alleged a cause of action based on a work-related injury, for unlawful disability discrimination in violation of the Fair Employment and Housing Act ("FEHA"). (GOV.CODE , §§ 12940¹ et seq.) Plaintiff contends the 1992 and 1993 amendments to the FEHA and section 12993, subdivision (a) require employers to reasonably accommodate persons disabled by work-related injuries and a cause of action for refusal to do so is not preempted by the act. For the reasons set forth below, we conclude no implied repeal of the preemptive effect of the act occurred. As a result, we affirm the judgment of dismissal.

II. FACTUAL AND PROCEDURAL BACKGROUND ²

On November 15, 1994, plaintiff filed a first amended complaint for damages for unlawful disability discrimination under the FEHA. We assume the truth of all factual allegations in the first amended complaint. (Crowley v. Katleman (1994) 8 Cal.4th 666, 672, 34 Cal.Rptr.2d 386, 881 P.2d 1083; Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 36, 32 Cal.Rptr.2d 200, 876 P.2d 999.) In the first amended complaint, plaintiff alleged he was employed by GTE and suffered from bilateral carpal tunnel syndrome. On July 1, 1991, due to "persisting bilateral carpal tunnel complaints," plaintiff became disabled. Later, he attempted to return to work before his "benefits had expired...." He requested "reasonable accommodation" at his work station from Ms. Woody. According to the first amended complaint, Ms. Woody "refused to provide any reasonable accommodation to plaintiff...." When his benefits expired on July 16, 1993, plaintiff was terminated. On June 21, 1994, the United States Equal Employment Opportunity Commission issued a right to sue letter. ³ Also, the first amended complaint alleged: other employees of GTE received "reasonable accommodation"; the refusal of GTE and Ms. Woody to provide "reasonable accommodation and [to] force plaintiff to exhaust all benefits resulting in plaintiff's termination while granting accommodation to other ... employees was discriminatory"; the implementation of the written policy of GTE by Ms. Woody "had a discriminatory impact against plaintiff"; and the discriminatory application of the aforementioned written policies resulted in plaintiff's termination. Plaintiff's damages included loss of earnings as well as "humiliation, embarrassment, mental and emotional stress and discomfort...." Plaintiff also sought awards of punitive damages and attorney fees. At oral argument, plaintiff's counsel argued that all of his client's injuries were incurred in the workplace.

On February 2, 1995, defendants filed a demurrer to plaintiff's first amended complaint arguing: workers' compensation provided the exclusive remedy for plaintiff's physical disability based on his work-related injury; plaintiff had an ongoing workers' compensation claim pending before the Workers' Compensation Appeals Board relating to the same injury; and plaintiff filed a claim under Labor Code section 132a which was subsequently dismissed by him with prejudice. On February 17, 1995, plaintiff filed opposition arguing: his first amended complaint for unlawful disability discrimination by failing to reasonably accommodate him in violation of section 12940, subdivision (a), was not preempted by the workers' compensation remedy; his dismissed complaint under Labor Code section 132a was irrelevant because that section does not provide for reasonable accommodation for a work-related injury; and the FEHA provided for a specific remedy in this case. On February 23, 1995, GTE filed a reply brief arguing: plaintiff's cause of action was covered under Labor Code section 132a which forbids discrimination for a work-related injury; plaintiff dismissed that claim with prejudice; and plaintiff's cause of action in his first amended complaint was subject to workers' compensation. The court sustained the demurrer without leave to amend because plaintiff's cause of action arose out of defendants' response to his work place injury and such was preempted by the act.

On April 10, 1995, plaintiff timely appealed. Although the appeal was taken from the order sustaining the demurrer, a nonappealable order, we treat the notice of appeal as a premature but valid notice of appeal from the subsequently entered May 7, 1996, order of dismissal filed by defendants at the request of this court. (Cal. Rules of Court, rule 2(c); Jennings v. Marralle (1994) 8 Cal.4th 121, 126, 32 Cal.Rptr.2d 275, 876 P.2d 1074; Turpin v. Sortini (1982) 31 Cal.3d 220, 224, fn. 2, 182 Cal.Rptr. 337, 643 P.2d 954; Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695, 40 Cal.Rptr.2d 125; Flowers & Sons Development Corp. v. Municipal Court (1978) 86 Cal.App.3d 818, 822, fn. 1, 150 Cal.Rptr. 555; Marcotte v. Municipal Court (1976) 64 Cal.App.3d 235, 239, 134 Cal.Rptr. 314.)

DISCUSSION ⁴

A. Standard of Review

The sole issue on appeal is whether plaintiff's FEHA discrimination claim based on a work-related injury is preempted by the act. The California Supreme Court has described our responsibilities in reviewing the first amended complaint to determine whether plaintiff's FEHA discrimination claim is preempted as follows: "This appeal turns on whether the [[courts below were]] correct in determining that workers' compensation is [the plaintiff's] exclusive remedy. Ordinarily, '... a defendant in a civil action who claims to be one of that class of persons protected from an action at law by the provisions of the ... Act bears the burden of pleading and proving, as an affirmative defense to the action, the existence of the conditions of compensation set forth in the statute which are necessary to its application. [Citations.]' [Citation.] However, when a complaint affirmatively alleges facts indicating that the Act applies, no civil action will lie, and the complaint is subject to a general demurrer unless it states additional facts that negate application of the exclusive remedy rule." (Arriaga v. County of Alameda (1995) 9 Cal.4th 1055, 1060, 40 Cal.Rptr.2d 116, 892 P.2d 150; accord, Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96-97, 151 Cal.Rptr. 347, 587 P.2d 1160.) We apply the following standard of review: On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation and treats the demurrer as admitting all material facts properly pleaded. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58; Buckaloo v. Johnson (1975) 14 Cal.3d 815, 828, 122 Cal.Rptr. 745, 537 P.2d 865, disapproved on other grounds Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393, fn. 5, 45 Cal.Rptr.2d 436, 902 P.2d 740.) The court does not, however, assume the truth of contentions, deductions or conclusions of law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479.) The judgment must be affirmed "if any one of the several grounds of demurrer is well taken. [Citations.]" (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 21, 157 Cal.Rptr. 706, 598 P.2d 866.) However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103, 101 Cal.Rptr. 745, 496 P.2d 817.) It is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows "there is a reasonable possibility [any] defect [identified by the defendant] can be cured by amendment." ( Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

Specifically, since the parties present only legal issues involving the act's statutory preemption, independent review of such questions construing the statutes is exercised by this court. (Cf. Burden v. Snowden (1992) 2 Cal.4th 556, 562, 7 Cal.Rptr.2d 531, 828 P.2d 672; California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856.) Our Supreme Court has held the following in connection with our duties in construing statutes: "The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] 'In determining intent, we look first to the language of the statute, giving effect to its "plain meaning." ' [Citations.] Although we may properly rely on extrinsic aids, we should first turn to the words of the statute to determine the intent of the Legislature. [Citation.] Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. [Citation.]" (...