Magliulo v. Superior Court

• Decision Date: 30 April 1975
• Citation: 121 Cal.Rptr. 621,47 Cal.App.3d 760
• Court: California Court of Appeals Court of Appeals
• Parties: Dominic MAGLIULO, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent; Judith Lee GALLAGHER, Real Party in Interest. Civ. 36122.

Page 621

121 Cal.Rptr. 621

47 Cal.App.3d 760

Dominic MAGLIULO, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent;

Judith Lee GALLAGHER, Real Party in Interest.

Civ. 36122.

Court of Appeal, First District, Division 1, California.

April 30, 1975.

Norman H. Abreu, Hanna, Brophy, MacLean, McAleer & Jensen, San Francisco, for petitioner.

Werchick & Werchick, San Francisco, for real party in interest.

SIMS, Associate Justice.

An alternative writ of prohibition was granted on the application of petitioner, the defendant below, to review the denial of his motion to stay proceedings in respondent court until such time as the Workmen's Compensation Appeals Board determines the issue of whether the alleged injuries of real party in interest, the plaintiff below, arose out of her employment. and occurred in the course of her employment. (See Scott v. Industrial Acc. Com. (1956) 46 Cal.2d 76, 293 P.2d 18.)

On review it is determined that the action of the trial court in denying the petitioner's motion for a stay of proceedings was not an abuse of discretion because the remedy before the appeals board and the remedy before the superior court were not mutually exclusive, but complimentary, because even if the prosecution of one remedy to judgment or an award might, under existing precedents, preclude resort to the other, the real party in interest was entitled to elect which remedy to pursue, and, finally, because, even if the remedies be considered as mutually exclusive, the petitioner, by his delay in proceeding before the administrative body and by his participation in the proceedings before the superior court waived his right to insist on the precedential right of the administrative body to determine the question of jurisdiction. The alternative writ must be discharged and the petition will be denied.

On February 27, 1970, real party in interest filed her application for adjudication of claim with the Workmen's Compensation Appeals Board. In her application she alleged that on February 20, 1970, while employed as a waitress by 'Crow's Nest' at 'Pier 37, Embarcadero,' San Francisco, she sustained an injury to her back arising out of and in the course of her employment, and that the injury occurred, while she was in the kitchen, because of an argument, when her boss, who was mad, came back and tried to pull her out of the kitchen, and hit her and threw her down after she admonished him not to touch her. She alleged that she had received no compensation and that medical treatment had been received from 'Kaiser.' She sought temporary disability indemnity and medical treatment. According to the verified response served and filed on behalf of real party in interest (see Cal. Rules of Court, rule 56(b)), the employer filed an answer in those proceedings contesting the concurrence of the conditions of compensation (see Lab.Code, § 3600). At the time the response was filed, she allegedly had received no payments or medical expenses on account of her alleged disability.

On February 19, 1971, real party in interest filed her complaint containing three causes of action against petitioner and five fictitious defendants. She seeks to recover $25,000 general damages, and $25,000 exemplary damages for injuries to her back, bruises to various parts of her body, severe shock to her nervous system and other injuries, the exact extent of which were unknown at the time of filing the complaint. The injuries allegedly were incurred at approximately 12:30 a.m. on February 21, 1970, in or about the premises known as Lou and Dom's Crow's Nest Restaurant, located at the address set forth in the application for workmen's compensation benefits. In the first cause of action she alleged that petitioner and the unknown defendants without the fault of or provocation by the real party in interest, 'violently, wantonly, knowingly, wilfully and maliciously did assault and batter plaintiff with intent to injure and do bodily harm to plaintiff by striking and pushing plaintiff on and about her back and various other portions of her body.' In the second cause of action it is alleged that petitioner and others 'did so wantonly and wilfully comport themselves in reckless disregard for the safety of others so as to cause (real party in interest) to be violently struck and pushed on or about her back and various other portions of her body.' In her third cause of action she alleged that the petitioner and others 'did so negligently and carelessly comport themselves so as to cause' the same results as related in the second cause of action.

On March 15, 1972, petitioner filed an answer generally denying the allegations of the complaint, and affirmatively alleging (1) that the complaint failed to state a cause of action, (2) that real party in interest was contributorily negligent, and (3) assumed the risk (4) that her sole remedy was for workmen's compensation benefits, ¹ and (5) that the court has no jurisdiction of the subject matter of the complaint or of any cause of action in it.

According to the response, a memorandum that the case was at issue was filed by real party in interest January 4, 1973. On October 9, 1974, at a trial setting conference the matter was set for December 16, 1974.

According to the declaration of the attorney for real party in interest, filed in opposition to petitioner's motion, petitioner's deposition was taken on October 31, 1974. The attorney alleges, 'In that deposition he stated that he was co-owner and partner in the Crow's Nest Tavern; that he worked in the operation of the business as a bartender; and that he received a monthly salary in a fixed amount irrespective of the profits earned by the business.' Petitioner's attorney filed a declaration in these proceedings which reflects that the deposition of petitioner's brother, his partner, was taken on November 14, 1974. The brother testified that each took a regular draw of $1,000 per month from the business, and then at the end of the year if there were any profits remaining in the business they would be divided equally. He stated that in 1974 they had to borrow $30,000 to make renovations required by law in order to stay in business, so he could not tell whether there would be a profit remaining at the end of the year.

On November 19, 1974, the petitioner secured an order shortening time and served and filed his notice of motion and motion to stay proceedings which he set for hearing on November 22, 1974. Real party in interest filed points and authorities and a declaration in opposition to the motion on November 21, 1974. Thereafter, on December 10, 1974, the court denied the motion and these proceedings ensued.

I

In Scott v. Industrial Acc. Com., supra, the respective rights of the injured party in each proceeding were mutually exclusive. ² The plaintiff in the earlier civil action disputed the defendant's contention that he was an employee, and contested the right of the defendant and its compensation insurance carrier to secure an adjustment of the alleged claim of plaintiff to compensation as an employee in the subsequent proceedings before the Industrial Accident Commission. In granting a writ of prohibition staying proceedings before the commission the court applied the following rule: 'General principles applicable to controversies in which the same parties and the same subject matter are involved are these: When two or more tribunals in this state have concurrent jurisdiction, the tribunal first assuming jurisdiction retains it to the exclusion of all other tribunals in which the action might have been initiated. Thereafter another tribunal, although it might originally have taken jurisdiction, may be restrained by prohibition if it attempts to proceed. (Citations.) One reason for the rule is to avoid unseemly conflict between courts that might arise if they were free to make contradictory decisions or awards at the same time or relating to the same controversy; another reason is to protect litigants from the expense and harassment of multiple litigation. (Citations.)' (46 Cal.2d at pp. 81--82, 293 P.2d at p. 21.)

The foregoing rule has been applied to halt proceedings in a civil suit in the superior court in which the injured party alleged that while employed by a third party he was injured by the alleged negligence of petitioner, when in fact he had alleged and stipulated the petitioner was his employer, in a prior application to the Industrial Accident Commission. (Taylor v. Superior Court (1956) 47 Cal.2d 148, 151, 301 P.2d 866. Cf. Sea World Corp. v. Superior Court (1973) 34 Cal.App.3d 494, 503, 110 Cal.Rptr. 232.)

In Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967, 104 Cal.Rptr. 42, 500 P.2d 1386, the court affirmed a decision of the Workmen's Compensation Appeals Board which had denied recovery to a former employee injured by the intentional assault of her employer after it found that the injury did not arise out of and occur in the course of her employment. The injured party had pursued to final judgment a subsequent action for assault and battery against the former employer's estate. The Supreme Court refused to review the evidence and stated: 'We have concluded that, . . . the superior court judgment should be given res judicata effect precluding recovery before the Board and that, therefore, the decision of the Board should be affirmed.' (7 Cal.3d at p. 972, 104 Cal.Rptr. at p. 46, 500 P.2d at p. 1390.) Conversely in Jones v. Brown (1970) 13 Cal.App.3d 513, 89 Cal.Rptr. 651, this court held that it was proper to grant a summary judgment against the plaintiff in a personal injury suit against her employer, predicated on the theory that as a domestic servant she had not elected prior to the injury to accept the workmen's compensation proceedings (see Lab.Code, § 4154; 13 Cal.App.3d at pp. 518--519, 89 Cal.Rptr. 651), because by prosecuting her application...