Perry v. Heavenly Valley

• Decision Date: 10 January 1985
• Citation: 163 Cal.App.3d 495,209 Cal.Rptr. 771
• Parties: Susan PERRY, Plaintiff and Appellant, v. HEAVENLY VALLEY, a Limited Partnership, Defendant and Respondent. Civ. 23704.
• Court: California Court of Appeals Court of Appeals

Page 771

209 Cal.Rptr. 771

163 Cal.App.3d 495

Susan PERRY, Plaintiff and Appellant, v. HEAVENLY VALLEY, a Limited Partnership, Defendant and Respondent.

Civ. 23704.

Court of Appeal, Third District, California.

Jan. 10, 1985.

Law Office of Melvin E. Beverly, Law Office of Kenneth C. Rollston, Robert M. Henderson, South Lake Tahoe, for plaintiff and appellant.

Hancock, Rothert & Bunshoft, Andrew K. Gordon, Paul S. Rosenlund, San Francisco, for defendant and respondent.

ROBIE, Associate Justice. ^*

Plaintiff Susan Perry appeals from a judgment in favor of defendant Heavenly Valley (Heavenly) in an action for negligence, entered after the trial court granted Heavenly's motion for summary judgment. Plaintiff contends the court erred in determining an amendment to the Worker's Compensation Act which severely limited the "dual capacity doctrine" applies retroactively to the present case. (Lab.Code, § 3602, subd. (a); stats. 1982, ch. 922, § 6.) We agree and shall reverse the judgment.

FACTS

On October 10, 1979, plaintiff filed a complaint alleging she was employed by Heavenly as a ski racing coach at its ski resort. At her request, an employee of Heavenly's ski rental and repair shop mounted bindings on her skis. The shop Heavenly demurred and filed a motion to dismiss, asserting the court did not have subject matter jurisdiction because plaintiff's exclusive remedy was under the Workers' Compensation Act. Plaintiff contended she was entitled to bring a common law action for negligence against Heavenly under the "dual capacity doctrine" established in Duprey v. Shane (1952) 39 Cal.2d 781, 249 P.2d 8. The trial court overruled the demurrer and denied the motion to dismiss.

provides ski rentals and repairs to the general public. As [163 Cal.App.3d 499] a proximate cause of the employee's negligence in mounting plaintiff's bindings, they separated from the skis while plaintiff was engaged in the performance of her duties as a racing coach, causing her to fall and sustain injuries. Plaintiff applied for and received workers' compensation benefits.

Heavenly petitioned this court for a writ of mandate to compel the trial court to sustain the demurrer and grant its motion to dismiss. We issued a writ of mandate directing the trial court to sustain the demurrer with leave to amend and denied the motion to dismiss. ¹ We held plaintiff's action did not come under the dual capacity doctrine, but rather her exclusive remedy against Heavenly was under the workers' compensation laws. (Lab.Code, §§ 3200 et seq., 3600, 3601.) ²

Thereafter, on November 21, 1980, plaintiff filed a second amended complaint in which she additionally alleged the services she received from Heavenly's ski shop were not available to her as an incident to her employment, but rather she obtained the services as a member of the general public and not as an employee, and in mounting plaintiff's bindings Heavenly acted in a capacity toward her unrelated to the employer-employee relationship. Heavenly again demurred and moved for summary judgment on the ground plaintiff's exclusive remedy was workers' compensation. Plaintiff again contended the amended complaint stated a cause of action under the dual capacity doctrine. The trial court overruled the demurrer and denied Heavenly's motion for summary judgment. We denied Heavenly's petition for writ of mandate.

In 1982, the Legislature passed an amendment to section 3602 of the Labor Code (effective January 1, 1983) which abolished the dual capacity doctrine except in limited circumstances not applicable here. (Stats.1982, ch. 922, § 6.) ³

On October 17, 1983, Heavenly made a motion to determine the applicability of amended section 3602 to the present action. Thereafter, it filed a new motion for summary judgment on the ground plaintiff's dual capacity action was precluded by amended section 3602. Heavenly also reiterated arguments from its previous motion for summary judgment and incorporated the papers therefrom. The trial court granted the motion and entered judgment for Heavenly, concluding the amendment to section 3602 applied retroactively to the present action. Plaintiff appeals.

DISCUSSION

I

Plaintiff contends the trial court erred in determining the amendment to section 3602 is retroactive and applicable to cases pending at the time of its enactment. We agree. ⁴

It is a well established canon of statutory construction "that statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent." (Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 393, 182 P.2d 159.) "The rule to be applied is the same with respect to all statutes, and none of them is retroactive unless the Legislature has expressly so declared." (DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 173, 18 Cal.Rptr. 369, 367 P.2d 865, emphasis added.)

We begin our analysis by examining the text of the statute. The Legislature did not include in the amendment to section 3602 any provision making the statute retroactive. The Legislature is well acquainted with the rule requiring a clear expression of retroactive intent (DiGenova v. State Board of Education, supra, 57 Cal.2d at p. 176, 18 Cal.Rptr. 369, 367 P.2d 865), and the fact that it did not so express itself or did not make the amendment effective immediately is a significant indication it did not intend to apply the amendment retroactively. (Fosgate v. Gonzales (1980) 107 Cal.App.3d 951, 960, 166 Cal.Rptr. 233.)

Heavenly nevertheless contends the amendment should apply retroactively and relies on a letter written by Senator Daniel Boatwright and printed in the Senate Journal in which Senator Boatwright expresses his intentions in voting for the amendment. ⁵ (8 Sen.J. (1981-82 Reg. Sess.) dated Aug. 31, 1982, at pp. 14417-14418.) To the extent the letter merely reflects the personal views of Senator Boatwright, it is irrevelant. As this court said recently, "... the Legislature is not a person. What goes on in the minds of individual legislators when enacting a statute cannot fix its meaning." (in-homE supportive services v. workers' comp. appeals bd. (1984) 152 Cal.App.3d 720, 739, 199 Cal.Rptr. 697.) "In construing a statute we do not consider the motives or understandings of individual legislators who cast their votes in favor of it. [Citations.]"(In re Marriage of Bouquet (1976) 16 Cal.3d 583, 589-590, 128 Cal.Rptr. 427, 546 P.2d 1371.) ⁶

However, Heavenly's reliance on the letter by Senator Boatwright is misplaced for a more fundamental reason: it does not support a retroactive application of the amendment. While the letter points to the expressed need to "set forth clear tests for the court to follow when hearing 'dual capacity' cases" and the concern that "citizens of California simply cannot afford a dual system of both workers' compensation and tort liability for many job related injuries," these statements and others in the letter merely state policy reasons that may have been advanced in support of the amendment. They cannot reasonably be construed to support a retroactive intent.

Heavenly next contends the presumption against retroactivity does not apply to the amendment because it merely clarifies existing law. (See Balen v. Peralta Junior College Dist. (1974) 11 Cal.3d 821, 828, fn. 8, 114 Cal.Rptr. 589, 523 P.2d 629; Del Costello v. State of California (1982) 135 Cal.App.3d 887, 893, fn. 8, 185 Cal.Rptr. 582; County of Sacramento v. State of California (1982) 134 Cal.App.3d 428, 434-435, fn. 5, 184 Cal.Rptr. 648.) The dual capacity doctrine has been the law as established by judicial decisions in California since 1952. (Duprey v. Shane, supra, 39 Cal.2d 781, 249 P.2d 8.) Since the amendment to section 3602 virtually eliminated most existing civil remedies provided by case law, in no respect can it be considered "clarification" of the workers' compensation law and nothing in the record reflects any such contention. The amendment is not retroactive under this rationale.

Heavenly also contends the amendment is retroactive because it is merely a procedural or remedial change, not subject to the presumption against retroactivity unless vested rights are affected. Heavenly confuses the issue, which is not whether the Legislature had the power to make the amendment retroactive, but rather whether it did make it retroactive, since the rule that a statute will not be construed to be retroactive unless the Legislature clearly so intends applies to "procedural" as well as "substantive" changes in the law. (5 Witkin Summary of Cal.Law (8th ed. 1974) p. 3578.)

Heavenly evinces its confusion of the issue in two of the cases it cites in support of its position, San Bernardino County v. Indus. Acc. Com., (1933) 217 Cal. 618, 20 P.2d 673, and City of Los Angeles v. Oliver (1929) 102 Cal.App. 299, 283 P. 298. In Aetna Cas. & Surety Co. v. Indus. Acc. Com., supra, 30 Cal.2d 388, 182 P.2d 159, the respondent, like Heavenly, relied upon these two cases, among others, in contending the presumption against retroactivity is not applicable to procedural and remedial statutes. The Supreme Court pointed out the error in doing so, stating: "In those cases, ... it was held that the language of the statutes showed that the Legislature intended them to be applied retroactively, and the court was concerned mainly with the question of whether the Legislature has power to give those laws such retroactive effect. Since the question of the constitutionality of retroactive legislation and the question of the applicability of a rule of statutory construction are distinct [citation], these cases are not in point." (At pp. 393-394, 182 P.2d 159; emphasis added.)

The Aetna court rejected a simple procedural-substantive approach to the question of retroactivity. This approach, stated the court, "assumes a clear-cut distinction between purely 'procedural' and purely 'substantive' legislation. In truth, the...