Fermino v. Fedco, Inc.

• Decision Date: 22 April 1993
• Docket Number: No. B066499,B066499
• Citation: 15 Cal.App.4th 29,18 Cal.Rptr.2d 719
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 15 Cal.App.4th 29, 20 Cal.App.4th 503 15 Cal.App.4th 29, 20 Cal.App.4th 503 Julie Loretta Glass FERMINO, Plaintiff and Appellant, v. FEDCO, INC., et al., Defendants and Respondents.

Page 719

18 Cal.Rptr.2d 719

Previously published at 15 Cal.App.4th 29, 20 Cal.App.4th 503

15 Cal.App.4th 29, 20 Cal.App.4th 503

Julie Loretta Glass FERMINO, Plaintiff and Appellant, v. FEDCO, INC., et al., Defendants and Respondents.

No. B066499.

Court of Appeal, Second District, Division 7, California.

April 22, 1993.

Review Granted July 15, 1993.

[20 Cal.App.4th 505] Robert M. Ball, Los Angeles, for plaintiff and appellant.

McClintock, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, Steven W. Weston and Andrew M. Gilford, Los Angeles, for defendants and respondents.

LILLIE, Presiding Justice.

Julie Loretta Glass Fermino appeals from the judgment entered dismissing her second amended complaint against Fedco, Inc., following the sustaining of a demurrer without leave to amend. She contends in essence that Fedco's conduct was not part of the normal course of an employment relationship and the court erred in determining at the demurrer stage that the exclusive remedy of worker's compensation applied to appellant's claims.

PROCEDURAL HISTORY AND STATEMENT OF FACTS ¹

Fermino filed a second amended complaint for damages against Fedco for false imprisonment, intentional infliction of emotional distress and negligent infliction of emotional distress. The complaint alleged in pertinent part that Fermino was employed by Fedco as a salesperson; while working in the jewelry department she was summoned by the store personnel manager and escorted to a windowless interrogation room where the personnel manager, the loss prevention manager and two security agents were present; the door was closed and defendants accused her of stealing the proceeds of a $4.95 sale to a customer and threatened to have her arrested and publicly charged with the crime unless she confessed her guilt; the security agent asserted that a customer and employee had witnessed the theft and were waiting in the next room; the security agent demanded Fermino confess and stated the interrogation could be handled the "Fedco way" or the "system way" by the police; the "Fedco way" was to award points for each denial of wrongdoing and once fourteen points were reached the employee would be handled the "system way" by the police; each time Fermino denied stealing money, the security agent said, "one point"; periodically, the loss prevention manager "hurled profanities" and demanded that Fermino tell the truth and confess; Fermino's requests to leave the room and call her mother were denied and Fermino was physically prevented from leaving the room; Fermino was compelled to remain in the windowless interrogation room, against her will for approximately one hour; when Fermino became hysterical, she was allowed to leave and was told there were no witnesses in the next room and that her interrogators believed her. Fermino alleged the defendants intentionally, maliciously and oppressively conspired to accomplish the acts alleged and deprive her of her liberty, and as a result she suffered injury; Fedco's officers, directors and managing agents authorized or ratified the intentional, malicious, oppressive and despicable conduct and at all times, the agents and employees were acting within the course of their employment; and that she suffered physical and mental injury as a result of Fedco's misconduct.

The trial court sustained the demurrer without leave to amend on the ground that Fermino's claims came within the exclusive jurisdiction of the Workers' Compensation Act.

DISCUSSION

In relevant part and at all relevant times, where certain conditions of compensation concur, Labor Code section 3600 provides that liability for compensation under the Workers' Compensation Act, exists against an employer, without regard to negligence, for injuries sustained by an employee during the course of employment.

Labor Code section 3602 provides that where conditions of compensation concur, the right to recover such compensation, with certain exceptions, is the sole and exclusive remedy of the employee against the employer.

"A determination whether a cause of action is barred by the exclusive remedy provisions of the workers' compensation law must take into account not only the facts alleged (i.e., of physical injury) but also their relation to the scope and purposes of the workers' compensation statutory scheme." (Shoemaker v. Myers (1990) 52 Cal.3d 1, 13, 276 Cal.Rptr. 303, 801 P.2d 1054.)

" '[T]he basis of compensation and the exclusive remedy provisions is an injury sustained and arising out of the course of employment....' [Citation.] Second, if the injuries did arise out of and in the course of the employment, the exclusive remedy provisions apply notwithstanding that the injury resulted from the intentional conduct of the employer, and even though the employer's conduct might be characterized as egregious. '[A]n employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer's decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability.' [Citation.] Further, we noted that the legal theory supporting such exclusive remedy provisions is a presumed 'compensation bargain,' pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort. [Citations.]" (Shoemaker v. Myers, supra, 52 Cal.3d at pp. 15-16, 276 Cal.Rptr. 303, 801 P.2d 1054.)

As the Supreme Court noted in Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 233 Cal.Rptr. 308, 729 P.2d 743, "the actions of an employer which constitute a 'normal part of the employment relationship' [citation], i.e., risks encompassed within the compensation bargain, are subject to the exclusive remedy provisions of the Act. In Cole, the employer allegedly falsely accused the employee of misconduct, subjected him to a 'kangaroo' disciplinary proceeding, publicly demoted him, gave him burdensome and menial duties, and even filed an application to force him to retire involuntarily. [The court] held that such actions as demotion, transfer, discipline, and even the employer's attempt to force the employee into involuntary retirement, would be included within the ambit of workers' compensation." (Shoemaker v. Myers, supra, 52 Cal.3d 1, 18, 276 Cal.Rptr. 303, 801 P.2d 1054.)

Similarly, the conduct at issue which forms the basis for Fermino's claim, questioning an employee regarding a possible theft of sale proceeds, is a normal part of the employment relationship. This is true notwithstanding that injury resulted from the intentional conduct of the employer which might possibly be characterized as egregious, "manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability." (See Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d 148, 160, 233 Cal.Rptr. 308, 729 P.2d 743; Levitsanos v. Superior Court (1992) 2 Cal.4th 744, 752, 7 Cal.Rptr.2d 808, 828 P.2d 1195.) We conclude, therefore, there was no error in sustaining, without leave to amend, the demurrer to the second amended complaint. ²

DISPOSITION

The judgment is affirmed.

Fred WOODS, J., concurs.

JOHNSON, Justice, dissenting.

I respectfully dissent.

I might quarrel with the majority opinion over its conclusion false imprisonment of the nature and degree alleged in this case is a "risk reasonably encompassed within the compensation bargain" (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16, 276 Cal.Rptr. 303, 801 P.2d 1054; italics added). ¹ However, I have a more fundamental objection. The primary injury which false imprisonment inflicts is not a type of injury covered by workers'compensation. Consequently, the exclusive remedy provision of the workers' compensation law does not bar the false imprisonment cause of action in appellant's complaint.

To explain why, one does not have to go further than the Supreme Court opinion from which the majority quotes so extensively, Shoemaker v. Myers, supra, 52 Cal.3d 1, 276 Cal.Rptr. 303, 801 P.2d 1054. This opinion represents the high court's most recent and thorough explanation of the reach of the exclusive remedy clause of the Workers' Compensation Act. Notably omitted from the majority's summary of Shoemaker, however, is its discussion of what types of injuries fall within--and without--the scope of that clause. Here is what the high court said about that subject.

"[T]he fundamental basis of workers' compensation is an injury sustained in and arising out of the course of employment when the injury is 'personal physical injury or death.' (Citation omitted, italics added.) Conversely, the exclusive remedy provisions apply only in cases of such industrial injury or death. (See, e.g., Howland v. Balma (1983) 143 Cal.App.3d 899, 192 Cal.Rptr. 286 ... [workers' compensation not exclusive remedy for defamation]; ..." (Shoemaker v. Myers, supra, 52 Cal.3d at p. 16, 276 Cal.Rptr. 303, 801 P.2d 1054, italics in original.) It is only after an injury is deemed a "personal physical injury" and thus encompassed under workers' compensation that the inquiry properly moves on to the question whether that injury also was a "risk reasonably encompassed within the compensation bargain." (52 Cal.3d at p. 16, 276 Cal.Rptr. 303, 801 P.2d 1054), italics added.)

The Supreme Court happened to use the example of defamation to illustrate the general principle that the exclusivity provision does not apply to torts which inflict harm other than "personal physical" injuries. However, it could as well have used false imprisonment for that same purpose. Like defamation, but unlike ordinary...