Jimenez v. Mrs. Gooch's Nat. Food Mkts.

• Docket Number: B322732
• Decision Date: 28 August 2023
• Parties: MARTHA EVE JIMENEZ et al., Plaintiffs and Appellants, v. MRS. GOOCH'S NATURAL FOOD MARKETS, INC. Defendant and Respondent.
• Court: California Court of Appeals

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MARTHA EVE JIMENEZ et al., Plaintiffs and Appellants,
v.
MRS. GOOCH'S NATURAL FOOD MARKETS, INC. Defendant and Respondent.

B322732

California Court of Appeals, Second District, Third Division

August 28, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County, No. 20STCV45863, Mark A. Young, Judge. Affirmed.

Law Office of David M. Feldman and David M. Feldman for Plaintiffs and Appellants.

Brockman Quayle Bennett, Matthew E. Bennett, and Rachel B. Kushner for Defendant and Respondent.

LAVIN, ACTING P. J.

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INTRODUCTION

This case arises out of a tragic accident in which Timoteo Alejandro Martinez Ildefonso (the decedent) was hit by a pickup truck in a crosswalk at a major intersection. After the accident, the decedent, who was on a 15-minute work break, walked back to the Whole Foods market (the store) where he worked. There, store employees gave him an ice pack, a form to fill out relating to his injury, and a ride home. He died several hours later.

The decedent is survived by his wife and three children (plaintiffs) who filed this wrongful death action against several parties including Mrs. Gooch's Natural Food Markets, Inc. (Mrs. Gooch's), the parent company of the store and the decedent's employer. Mrs. Gooch's demurred to the operative first amended complaint because an administrative law judge and the Workers' Compensation Appeals Board had found the decedent's injury and death to be employment related and therefore within the scope of workers' compensation. And because workers' compensation is generally the exclusive remedy for such injuries, Mrs. Gooch's argued that the wrongful death suit is barred. Plaintiffs argued that two exceptions to the exclusive remedy rule apply: dual capacity and fraudulent concealment. The court found neither exception applied and sustained the demurrer without leave to amend. Finding no error, we affirm.

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FACTS^[1] AND PROCEDURAL BACKGROUND

1. The Accident

The decedent worked at a Whole Foods store in Venice, California. While on a 15-minute break, the decedent left the store and was hit by a pickup truck while using a crosswalk at a nearby intersection. The driver stopped, spoke with the decedent, then returned to the car and drove away. The decedent walked back to the store where he told his supervisors that he was injured and wanted to go home. A store employee later drove him home. The decedent died a few hours later.

An administrative law judge and the California Workers' Compensation Appeals Board determined that the decedent's injuries arose out of his employment and occurred in the course of that employment.

2. Complaint

Plaintiffs filed this wrongful death action against several parties including the decedent's employer, Mrs. Gooch's. Plaintiffs rely on two narrow exceptions to the general principle that workers' compensation is the exclusive remedy for workplace injury: dual capacity and fraudulent concealment (Lab. Code, § 3602, subd. (b)(2)).^[2]

As to the dual capacity exception, plaintiffs allege that in addition to its role as the decedent's employer, Mrs. Gooch's acted as an emergency first aid responder after the decedent was

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injured in the crosswalk. In that capacity, Mrs. Gooch's caused a second injury for which it is liable.^[3] Plaintiffs allege that when the decedent told store employees that he was injured and wanted to go home, they gave him an icepack and requested that he wait while they prepared forms for him to sign. After the decedent signed one form, another store employee drove him home. The store employees did not call 9-1-1, did not call the decedent's wife, did not allow the decedent to leave and obtain medical care, and did not drive him to a nearby emergency room. As a result, plaintiffs allege, the store employees failed to exercise reasonable care in rendering services to the decedent, and that failure was a substantial factor in causing harm to the decedent.

As to the fraudulent concealment exception, plaintiffs allege that store employees knew the decedent was injured but failed to disclose to him that his injury was connected to his employment. Plaintiffs allege that if the other employees had both disclosed that the injury was work related and treated it as such, they would have called an ambulance and instructed the decedent to wait to receive an examination by a paramedic. Further, under those circumstances, the decedent would likely have followed those instructions, as he had a few weeks prior to the accident when he cut his finger at work and was instructed to (and did) go to urgent care to have it treated. Plaintiffs also allege that the store employees' fraudulent concealment of the decedent's injury and its connection to his employment aggravated his injury by delaying critical emergency medical care. Specifically, the accident occurred at 9:33 p.m., the decedent

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arrived at home at 10:01 p.m., and the decedent's wife arrived home at 11:13 p.m. and called 9-1-1. Approximately two hours passed between the accident and the decedent's first medical examination.

3. Demurrer

3.1. Demurrer

Mrs. Gooch's demurred to the operative first amended complaint, asserting the pleading failed to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Mrs. Gooch's conceded that the decedent's injury was employment related and suggested that workers' compensation benefits had already been paid. But plaintiffs sought to avoid the workers' compensation exclusive remedy rule by citing two exceptions: employer's dual capacity and employer's fraudulent concealment.

Mrs. Gooch's noted that the dual capacity exception generally allows employees to obtain relief in tort when work related injuries are aggravated by an employer that steps into a non-employer role, as when a physician or hospital employer treats the employee's injury. But Mrs. Gooch's argued that where, as here, an employer simply provides medical treatment incidental to the employment relationship, such as basic first aid administered by coworkers, the exception does not apply.

Additionally, and as to the fraudulent concealment exception, Mrs. Gooch's observed that the exception only applies where the employer conceals from the employee both the injury and the connection between the injury and employment. In the present case, the decedent was fully aware of his injury from the

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time of the accident, thereby rendering the exception inapplicable.

3.2. Opposition

In opposition, plaintiffs submitted a declaration by their attorney attaching a number of documents and purporting to attest to certain relevant facts. Specifically, the attorney described the content of video footage from the store taken on the night of the accident which had been produced during discovery and relayed several statements purportedly made by percipient witnesses during the discovery process.

Regarding the dual capacity exception, plaintiffs argued that the allegations of the complaint, if true, establish that the exception applies. Specifically, after the decedent sustained his first injury (being hit by the pickup truck), Mrs. Gooch's acted as both his employer and as an emergency first aid responder. And in providing first aid, Mrs. Gooch's caused a second injury to the decedent. Accordingly, plaintiffs asserted they were entitled to recover for injuries sustained as a result of Mrs. Gooch's negligent undertaking of the decedent's emergency care.

As to the fraudulent concealment exception, plaintiffs conceded that the decedent was aware of his injury after the accident. But, the complaint alleges, the decedent was not aware that the injury was caused by a work-related event. As a result, plaintiffs claimed, the decedent was prevented from obtaining immediate emergency medical care and the consequent two-hour delay in treatment aggravated his injuries and resulted in his death.

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3.3. Reply

In reply, Mrs. Gooch's objected to plaintiffs' attorney's declaration and the attached documents. Further, Mrs. Gooch's asserted that the provision of ice to an injured employee by his coworkers was not sufficient to render an employer an emergency first aid responder, as plaintiffs claimed. And as to the fraudulent concealment issue, Mrs. Gooch's noted that the decedent was fully aware of his injury and must have been aware that the injury was related to employment because the store employees requested that he sign employment related forms immediately after his injury.

4. Ruling

The court sustained the demurrer without leave to amend based on the principle that the workers' compensation system provides the exclusive remedy for employment-related injury. With respect to the attorney declaration and attachments submitted by plaintiffs, the court noted those items were improper and did not consider them.^[4]

Regarding the dual capacity exception, the court noted that the exception is extremely narrow. The court described the leading case, Duprey v. Shane (1952) 39 Cal.2d 781 (Duprey), a case in which an employee nurse was injured on the job. The employer doctors treated the nurse and aggravated her initial injury. (Id. at pp. 785-790.) The court held, under the dual capacity doctrine, that workers' compensation barred an action against the employer relating to the initial injury, but the nurse

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retained the ability to sue her employer for negligence with respect to the treatment of the injury, i.e., the injury sustained when her employer acted in a second or dual capacity as her treating doctor. By contrast, the court noted, other courts have held that the dual capacity exception does not apply when an employee receives medical services incidental to employment, i.e., because of the injured person's status as an employee. The court found that in the present case, the dual capacity exception does not apply because the operative...