Dorado v. Knudsen Corp.

• Decision Date: 21 March 1980
• Citation: 103 Cal.App.3d 605,163 Cal.Rptr. 477
• Court: California Court of Appeals Court of Appeals
• Parties: David William DORADO, Plaintiff and Appellant, v. KNUDSEN CORPORATION, Defendant and Respondent. Civ. 54826.

Page 477

163 Cal.Rptr. 477

103 Cal.App.3d 605

David William DORADO, Plaintiff and Appellant, v. KNUDSEN CORPORATION, Defendant and Respondent.

Civ. 54826.

Court of Appeal, Second District, Division 3, California.

March 21, 1980.

Keith P. Brown, Los Angeles, for plaintiff and appellant.

Haight, Dickson, Brown & Bonesteel, William K. Koska, and Roy G. Weatherup, Los Angeles, for defendant and respondent.

POTTER, Acting Presiding Justice.

Plaintiff appeals from a summary judgment in favor of defendant Knudsen Corporation in his action for damages for personal injuries. The complaint contained four causes of action. All of them grew out of an accident suffered by plaintiff in the course of his employment delivering dairy products for Todds Food Company. The complaint alleged that "plaintiff was employed by Todd's Food Company, a corporation," and in the course of such employment was handling plastic crates (containing dairy products) which the defendants, including defendant Knudsen, were engaged in "manufacturing, designing, assembling, constructing, building, installing, creating, furnishing, selling, distributing, maintaining, operating, inspecting, supervising and otherwise controlling . . . ." The first cause of action charged that the crates were "in a dangerous, defective and unsafe condition" which caused plaintiff injury. The second, third and fourth causes of action alleged that defendants expressly or impliedly warranted that the crates were "sound, sturdy, and reasonably safe and suitable for the purpose intended," and that plaintiff's injuries resulted from the breach of that warranty.

Knudsen's answer generally denied the allegations of the unverified complaint pursuant to Code of Civil Procedure section 431.30, subdivision (d), and also set up six affirmative defenses, including: (1) failure to state facts sufficient to constitute a cause of action, (2) plaintiff's negligence, (3) negligence of plaintiff's employer in allowing a dangerous condition to exist, (4) negligence of plaintiff's employer in the "control, direction and supervision of its work and its employees," (5) use of the product after its defect was known, and (6) misuse of the product. Eleven months after filing its answer, without obtaining any leave to amend so as to plead as an affirmative defense the existence of the conditions for compensation under the Workers' Compensation Act, Knudsen filed its motion for summary judgment. The sole ground upon which Knudsen sought a summary judgment was that Labor Code section 3601, subdivision (a), limits plaintiff's remedy to a workers' compensation claim.

Knudsen's moving papers included declarations and documentary evidence competent to show that as of the date of plaintiff's injury, plaintiff's employer Todds Food Company was a limited partnership of which Knudsen was the general and managing partner and several food retailing chains were limited partners. The documentary evidence, in the form of a limited partnership agreement with amendments, showed that as of January 1, 1974, the owners of the stock of Todds Food Company, a corporation, had contributed their shares as capital contributions to the limited partnership which continued the corporation's "business of processing and distributing milk and other food products." Under the agreement and amendments, Knudsen, as general partner, was given "full, exclusive and complete discretion in the management and control of the business of the Limited Partnership." Its compensation for this function was stipulated in a separate Management and Services Agreement under which it received a fee based on percentage of net sales on a sliding scale and reimbursement of its expenses, including the salaries of certain Knudsen employees engaged in Todds' upper level management functions. Reimbursable items also included cost of purchases, use of vehicles, and quality control services incidental to a trademark license for the use of the trademark "Knudsen" by Todds Food Company.

Other documentary evidence showed that Knudsen's workers' compensation insurance policy covered Todds Food Company along with numerous other named insureds and that a separate premium was payable on account thereof. The "STATEMENT OF FACTS" in support of the motion stated that the accident giving rise to the lawsuit occurred on or about December 13, 1975, "while plaintiff was loading dairy products of defendant, KNUDSEN CORPORATION, into a truck which he drove for his employer, TODD FOODS." No declaration or other evidentiary support for this statement, however, is contained in the moving papers, and an accident report attached as an exhibit indicated that in fact plaintiff was injured in the course of making deliveries. He "had finished serving Gelsons Market # 1 and was moving stacks of merchandise inside of trailer to arrange his load. As he pushed a stack to the rear of the truck (the stack was 7 high), the top two (2) cases came off" and hit him.

This version of the accident was confirmed by plaintiff's statement of facts which said that "plaintiff was unloading and delivering dairy products to a store in Burbank." Plaintiff also asserted that "(p)laintiff's employer at that time was Todds Food, a California corporation." The only declaration supporting this statement, however, was plaintiff's declaration stating "(t) hat sometime in 1973, and prior thereto, declarant was an employee of Knudsen Corporation. Thereafter, declarant became an employee of Todds Food Company, a California corporation." Plaintiff's declaration does not show that he had personal knowledge of facts contrary to those asserted by Knudsen, which were that as of January 1, 1974, Todds Food Company became a limited partnership. Plaintiff's declaration attached payroll stubs of Todds Food Company for the period before and after the accident which showed him to be its employee but contained no information as to its status as a corporation or limited partnership.

Though plaintiff's "STATEMENT OF FACTS" included the assertion that "the cases . . . had been loaded by Knudsen's Corporation and . . . were owned by Knudsen Corporation," plaintiff submitted no competent evidence of those facts. Consequently, it is not possible to tell from the record what the facts are in this regard.

Knudsen argued that plaintiff's employer, Todds Food Company, was a limited partnership of which Knudsen was the general and managing partner, that the partnership had no entity separate and apart from that of its partners and, consequently, that Knudsen was plaintiff's employer and the exclusive remedy against it was for workers' compensation. In opposition, plaintiff claimed that Todds Food Company was a corporation and thus was necessarily a legal entity separate from Knudsen.

The court granted the motion for summary judgment on the ground that Todds Food Company was a partnership, and plaintiff's sole remedy against any partner for his compensable injury was an award of workers' compensation.

Contentions

Plaintiff contends that: (1) "at the time of the accident, (he) was an employee of Todd's Food Company, a California corporation"; (2) "(a)t the very least a question of fact arose as to the employment of plaintiff" and (3) in any event, under "the purported 'Limited Partnership Agreement' " plaintiff was not necessarily "an employee of Knudsen Corporation as a matter of law." (Emphasis in original.)

Defendant contends that: (1) the clear and uncontradicted documentary evidence establishes that Todds Food Company was a limited partnership of which defendant was the general partner; and (2) plaintiff, as an employee of the partnership, must be deemed an employee of its general partner, Knudsen.

Discussion

Summary

In order to rely upon the exclusive remedy defense, defendant must appropriately plead it by affirmative defense, which it has not done. Further, should such defense be asserted by appropriate pleading, facts in addition to those contained in defendant's showing will be necessary to uphold it in view of defendant's apparent dual capacity vis-a-vis Todds Food Company.

Exclusive Remedy Must Be

Pleaded as an Affirmative Defense

The complaint does not disclose facts invoking the exclusive remedy provisions of Labor Code section 3601. Plaintiff is alleged to have been employed by Todds Food Company, not by Knudsen. Consequently, in order to rely upon this defense, Knudsen had the burden of pleading and proving it. In Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96-97, 151 Cal.Rptr. 347, 350, 587 P.2d 1160, 1163, our Supreme Court stated:

"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. (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 (-174, 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...