Doney v. Tambouratgis

• Decision Date: 04 January 1979
• Docket Number: S.F. 23729
• Citation: 151 Cal.Rptr. 347,23 Cal.3d 91,587 P.2d 1160
• Court: California Supreme Court
• Parties: , 587 P.2d 1160 Patricia DONEY, Plaintiff, Cross-Defendant and Respondent, v. Dino TAMBOURATGIS, Defendant, Cross-Complainant and Appellant.

Page 347

151 Cal.Rptr. 347

23 Cal.3d 91, 587 P.2d 1160

Patricia DONEY, Plaintiff, Cross-Defendant and Respondent, v. Dino TAMBOURATGIS, Defendant, Cross-Complainant and Appellant.

S.F. 23729.

Supreme Court of California.

Jan. 4, 1979.

Rehearing Denied Feb. 1, 1979.

Lewton, McGuinn & Moore, Michael Lewton and John R. Hillsman, San Francisco, for defendant and appellant.

Carpeneti, Carpeneti & Carpeneti and Richard Carpeneti, San Francisco, for plaintiff and respondent.

Yale I. Jones and Linda J. Brown, San Francisco, amici curiae for plaintiff and respondent.

MANUEL, Justice.

Defendant Dino Tambouratgis appeals from a judgment awarding plaintiff Patricia Doney $3,945 compensatory and $12,500 punitive damages for personal injuries suffered by her as a result of an alleged assault and battery. For reasons to appear below, we affirm the judgment.

By a complaint filed on May 15, 1972, plaintiff brought this action against Tambouratgis (defendant) and several unknown defendants. She therein alleged that on or about the 21st day of December, 1971, defendant had "wilfully, unlawfully and violently assaulted, beat and struck (plaintiff) in and about the face and body and attempted to rape her," thereby causing physical injuries and emotional distress. It was further alleged that these acts were done with malice, ill-will, and intent to injure and oppress. Damages in the amount of $100,000 compensatory and $200,000 punitive were prayed for.

The complaint nowhere mentioned or suggested that plaintiff and defendant had an employment relationship with one another or that the injuries which formed the basis of the action arose out of and in the course of employment.

By his answer defendant denied all allegations of the complaint, but he set forth no affirmative defenses. He also filed a cross-complaint alleging that plaintiff had wrongfully instigated a criminal prosecution ¹ against him following the subject incident.

Following a jury trial judgment on the complaint was entered in plaintiff's favor for $3,945 compensatory and $12,500 punitive damages; judgment on the cross-complaint was likewise entered in favor of plaintiff.

This appeal is presented to us on an abbreviated record, consisting of a partial reporter's transcript and a partial clerk's transcript. (See Cal.Rules of Court, rule 4(b).) The reporter's transcript designated and presented herein by defendant contains only the testimony of plaintiff (direct and cross-examination) given during the course of her case in chief and the clerk's transcript contains no minute entries which would enable us to determine whether other witnesses were called by either side. ² In these circumstances it must be deemed that the facts are as presented in that portion of plaintiff's testimony set forth in the partial reporter's transcript. (Cal.Rules of Court, rule 52; see Skoglie v. Crumley (1972) 26 Cal.App.3d 294, 297.)

The foregoing partial reporter's transcript indicates that on the afternoon of December 20, 1971, plaintiff went to an establishment known as Dino's Lounge, which was apparently owned and operated by defendant. She had previously worked there as a topless or nude dancer and cocktail waitress, and on the indicated afternoon she asked defendant whether she could come back to work in the same capacity. He said that he "needed a dancer and that it would be all right to come in at 7:00."

When plaintiff reported that evening at 7 p. m., she proceeded to change into her working costume which she apparently provided herself. ³ She performed her normal duties i. e., topless or nude dancing and serving drinks to customers until the establishment closed its doors to the public at 2 a. m. When the tables had been cleared plaintiff and the three other women working that night in the same capacity went upstairs to change into their street clothes and then, as was customary, went down again to the bar to wash the glasses. After this had been done about 2:15 a. m. defendant told the other women to go home and asked that plaintiff accompany him upstairs to his office to discuss a customer complaint he had received. Plaintiff did so. Defendant, after closing the door to the office, told plaintiff to take off her clothes. When she refused, he began to abuse her physically and pushed her to the floor, where he got on top of her. She continued to struggle and cry out, however, and finally defendant got up and, after kicking her, left the room. Thereupon plaintiff sought to call the police on the office telephone, but before she could do so defendant returned and, after hanging up the telephone, began to abuse her again. At this point the bartender, who had remained below, came up the stairs and asked what was happening. Plaintiff escaped and ran down the stairs, but defendant followed. The front door was locked and plaintiff was unable to get out. After about 10 more minutes had elapsed during which defendant, in the presence of the bartender, accused plaintiff of "hustling the customers and stealing money" the police arrived, putting an end to the melee. ⁴

The compensation customarily received by plaintiff in employment of this kind was, she testified, $25 per night worked, paid in cash, ⁵ along with whatever tips she might receive, which might amount to as much as $20 or more. ⁶

Plaintiff also testified as to the nature and extent of the injuries she received as a result of the incident. She did not indicate that any of these injuries which consisted in the main of bruises, muscle strains, and abrasions had had any lingering adverse effect on her ability to work.

Defendant's sole contention on appeal is that the record herein indicates the existence of the conditions for compensation under the Workers' Compensation Act, and that therefore the provisions of that act provide the exclusive remedy available to plaintiff. (See Lab.Code, §§ 3600, 3601.) It is clear, however, that defendant is precluded from raising this contention by his failure to plead and prove it as an affirmative defense in this action.

It has long been established in this jurisdiction that, generally speaking, 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 Workers' Compensation 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. ^{7 7} (Popejoy v. Hannon (1951) 37 Cal.2d 159, 173, 231 P.2d 484; see also Gillespie v. Rawlings (1957) 49 Cal.2d 359, 361, fn. 1, 317 P.2d 601; Coleman v. Silverberg Plumbing Co. (1968) 263 Cal.App.2d 74, 79, 69 Cal.Rptr. 158; Ramey v. General Petroleum Corp. (1959) 173 Cal.App.2d 386, 401, 343 P.2d 787; see generally 2 Witkin, Summary of Cal. Law (8th ed. 1973), p. 863; Cal. Workmen's Compensation Practice (Cont.Ed.Bar 1973) § 17.23, p. 630.) "The employee is pursuing a common law remedy which existed before the enactment of the statute and which continues to exist in cases not covered by the statute. It is incumbent upon the employer to prove that the Workmen's Compensation Act is a bar to the employee's ordinary remedy." (Popejoy v. Hannon, supra, 37 Cal.2d 159, 173, 231 P.2d 484, 493.)

An exception to this general rule of pleading and proof by the defendant appears in the situation where the complaint affirmatively alleges facts indicating coverage by the act. Then, unless the complaint goes on to state additional facts which would negative the application of the act, no civil action will lie and the complaint is subject to a general demurrer. (Singleton v. Bonneson (1955) 131 Cal.App.2d 327, 331, 280 P.2d 481; see also Coleman v. Silverberg Plumbing Co., supra, 263 Cal.App.2d 74, 79, 69 Cal.Rptr. 158; Deauville v. Hall (1961) 188 Cal.App.2d 535, 540, 544, 10 Cal.Rptr. 511; see generally 2 Witkin, Summary of Cal. Law, Supra, p. 863.)

The foregoing exception, however, is clearly inapplicable to the instant case. The complaint, as noted above, contained no allegation directly or indirectly indicating that an employment relationship existed between plaintiff and defendant or that the injuries which formed the basis of the action arose out of and in the course of employment. In these circumstances it became the responsibility of defendant to plead and prove that the conditions of compensation rendering him subject to the protections of the act existed. ⁸ This he did not do. ⁹ Accordingly he may not now raise the defense of coverage by the act.

We do not believe that the conclusion we here reach results in the improper "conferral" of subject matter jurisdiction by means of consent, waiver, or estoppel. (See Summers v. Superior Court (1959) 53 Cal.2d 295, 298, 1 Cal.Rptr. 324, 347 P.2d 668; see generally 1 Witkin, Cal. Procedure (2d ed. 1970) Jurisdiction, §§ 10-15, pp. 534-542, and many cases there collected and discussed.) Here, as in Popejoy v. Hannon, supra, 37 Cal.2d 159, 231 P.2d 484, plaintiff was "pursuing a common law remedy which existed before the enactment of the statute and which continues to exist in cases not covered by the statute." (Id. at p. 173, 231 P.2d at p. 493.) The trial court clearly had subject matter jurisdiction over such an action unless and until it was properly demonstrated that the case was one "covered by the statute" due to the presence therein of the conditions of compensation set forth in section 3600 of the Labor Code. As indicated above, such a demonstration may occur in one of two ways i. e., either by the plaintiff through alleging facts indicating coverage under the act in his pleadings, or by the defendant through setting up the affirmative defense of coverage in responsive pleadings and proceeding to prove the existence of the requisite conditions. When, as in this case, no such demonstration has been made in either fashion, the court properly proceeds to exercise its existing...