Renteria v. County of Orange

• Decision Date: 17 July 1978
• Court: California Court of Appeals Court of Appeals
• Parties: , 21 Fair Empl.Prac.Cas. (BNA) 179, 18 Empl. Prac. Dec. P 8869 Edward F. RENTERIA, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Respondents. Civ. 19355.

Page 447

147 Cal.Rptr. 447

82 Cal.App.3d 833, 21 Fair Empl.Prac.Cas. (BNA) 179,

18 Empl. Prac. Dec. P 8869

Edward F. RENTERIA, Plaintiff and Appellant, v. COUNTY OF ORANGE et al., Defendants and Respondents.

Civ. 19355.

Court of Appeal, Fourth District, Division 2, California.

July 17, 1978.

[82 Cal.App.3d 834] Herbert Licker, Anaheim, for plaintiff and appellant.

Kinkle, Rodiger & Spriggs and Michael J. Logan, Santa Ana, for defendants and respondents.

OPINION

GARDNER, Presiding Justice.

The question presented by this appeal is whether an employee's civil action against his employer and fellow employees for intentional infliction of emotional distress is barred by the exclusive remedy provisions of the Workers' Compensation Act (Lab.Code § 3200 et seq.). We hold that it is not.

Plaintiff filed a complaint in the court below alleging that he is an investigator for the Orange County Department of Social Services and that defendants, his employer and fellow employees, treated plaintiff in a rude and degrading manner, placed him under surveillance, subjected him to lengthy interrogations, and discriminated against plaintiff because of his Mexican-American descent, "with the object and intent to force or cause plaintiff to suffer humiliation, mental anguish and emotional and physical distress, and to cause plaintiff to resign his position of employment or to be fired or dismissed therefrom." Plaintiff requested compensatory and punitive damages for intentional and negligent infliction of emotional distress, damages for a violation of the California Fair Employment Practices Act, and an injunction.

Defendants demurred to the complaint on several grounds, but the court sustained the demurrer on the single ground that the Workers' Compensation Appeals Board had exclusive jurisdiction to provide a remedy for the wrongs alleged in the complaint. On plaintiff's appeal from the ensuing judgment of dismissal, the only issue presented is whether the demurrer was properly sustained on that ground. Since a demurrer admits all well-pleaded allegations, plaintiff's allegations are deemed true for purposes of this appeal. (Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.)

Labor Code section 3600 provides that where certain "conditions of compensation" occur an employer is liable for workers' compensation for any injury sustained by an employee arising out of and in the course of the employment, and that this liability is "in lieu of any other liability whatsoever to any person . . . ." Labor Code section 3601 provides that the right to recover workers' compensation benefits is "the exclusive remedy for injury or death of an employee against the employer or against any other employee of the employer acting within the scope of his employment . . . ." Labor Code section 5300 declares that proceedings to recover workers' compensation shall be instituted before the Workers' Compensation Appeals Board and not elsewhere.

As background to the discussion which follows, we will review cases which have discussed an employee's remedies for intentional physical assaults by an employer.

The first California case to deal with this issue was Conway v. Globin, 105 Cal.App.2d 495, 233 P.2d 612. There an employee appealed from a judgment of dismissal following the sustaining of a demurrer on the ground that the employee's action was subject to the exclusive jurisdiction of the Industrial Accident Commission, predecessor of the Workers' Compensation Appeals Board. The complaint sought compensatory and punitive damages for a wilful and unprovoked attack on plaintiff by his employer, during which two of plaintiff's teeth were broken. The Third District Court of Appeal concluded that an employee intentionally assaulted by his employer could maintain a civil action for damages because such an intentional assault was not a "risk or condition incident to employment." To hold otherwise, the court observed, "would be not only to sanction indirectly conduct of the employer which is both tortious and criminal, but also would be to permit the employer to use the Workmen's Compensation Act to shield him from his larger civil liability, which liability would exist independent of the common law defenses to personal injury actions by employees which prevailed prior to the advent of the Workmen's Compensation Act." (Conway v. Globin, supra, 105 Cal.App.2d 495, 498, 233 P.2d 612, 614.)

Fifteen years later, in Azevedo v. Industrial Accident Commission, 243 Cal.App.2d 370, 52 Cal.Rptr. 283 (hereafter Azevedo I ), the Third District Court of Appeal overruled its decision in Conway. In Azevedo I an employee who had been assaulted by her employer commenced both a workers' compensation proceeding and a civil action against the employer. The Industrial Accident Commission dismissed the employee's application, relying on Conway. The court in Azevedo I concluded that the Industrial Accident Commission did have jurisdiction to award compensation to an employee for injuries intentionally inflicted by an employer which were fairly traceable to an incident of employment and not attributable to a personal grievance. (Azevedo v. Industrial Accident Commission, supra, 243 Cal.App.2d 370, 376-377, 52 Cal.Rptr. 283.)

The court noted that the workers' compensation laws were to be liberally construed to extend their benefits to injured employees, that the Constitution in article XX, section 21, speaks of a "complete system" of compensation "irrespective of the fault of any party," and that there are penalty provisions in Labor Code section 4553 for "serious and wilful misconduct" by an employer. Having determined that the Industrial Accident Commission did have jurisdiction of the employee's application for benefits, the court left open the question whether the commission's jurisdiction was exclusive. The question left open in Azevedo I was decided in Azevedo v. Abel, 264 Cal.App.2d 451, 70 Cal.Rptr. 710 (hereafter Azevedo II ). After the decision in Azevedo I, the petitioner, Mrs. Azevedo, was awarded temporary and permanent disability benefits, medical expenses, and further medical treatment. Her employer moved to dismiss the civil action pending against him on the ground that the commission's jurisdiction was exclusive. The motion was granted and the employee appealed. On the appeal, the employee contended that for an employer's intentional torts there existed "a concurrent pair of liabilities and concurrent jurisdiction on the part of the two tribunals in this limited class of cases, the ultimate damage award to be diminished by the compensation award." (Azevedo v. Abel, supra, 264 Cal.App.2d 451, 458, 70 Cal.Rptr. 710, 714.) The court rejected the contention, stating that Labor Code section 3600 clearly provided that the compensation remedy was exclusive. "A damage suit as an alternative or additional source of compensation, becomes permissible only by carving a judicial exception in an uncarved statute." (Id., at p. 459, 70 Cal.Rptr. at p. 715.) The court also noted that the exclusive remedy provision was a reasonable policy choice made by the Legislature: "The policy choice is to provide employees economic insurance against disability in exchange for the speculative possibility of general damages; to offer the augmented award for serious and willful misconduct in trade for the relatively rare award of punitive damage." (Id., at pp. 459-460, 70 Cal.Rptr. at p. 715, fn. omitted.) ¹

The most recent case to consider this issue in depth is the First District Court of Appeal's decision in Magliulo v. Superior Court, 47 Cal.App.3d 760, 121 Cal.Rptr. 621. There the court concluded that an employee intentionally injured by an employer had the cumulative or at least alternative remedies of a civil suit for damages or an application for workers' compensation benefits.

The court began its analysis by noting the recent Supreme Court decision in Mathews v. Workmen's Compensation Appeals Board, 6 Cal.3d 719, 100 Cal.Rptr. 301, 493 P.2d 1165, which held that the constitutional provision establishing a system of compensation " 'irrespective of the fault of any party' . . . was intended only to give the Legislature power to grant benefits unhampered by common law tort concepts of negligence ; it has never been construed as prohibiting the Legislature from increasing, decreasing or even eliminating awards based upon the wilful wrongdoing of a party." (6 Cal.3d at 728, 100 Cal.Rptr. at 306, 493 P.2d at 1170.) (Magliulo v. Superior Court, supra, 47 Cal.App.3d 760, 768, 121 Cal.Rptr. 621.) The court concluded: "It may therefore be proper to say that the provisions of section 3601 . . . should be read in the light of section 3600 which refers to 'without regard to negligence,' and that in the absence of a controlling statute the courts are free to determine whether the employer loses his immunity from civil suit in the event he personally intentionally inflicts an injury on the person of his employee." (Id., at p. 769, 121 Cal.Rptr. at p. 628.)

The court further observed that Labor Code section 3601 permits an employee injured by the physical aggression of a fellow employee to pursue concurrent remedies. The court stated: "If the employee can recover both compensation and damages caused by an intentional assault by a fellow worker, he should have no less right because the fellow worker happens to be his boss." (Magliulo v. Superior Court, supra, 47 Cal.App.3d 760, 773, 121 Cal.Rptr. 621, 631.)

Finally, with regard to the penalty provisions of Labor Code section 4553, the court declared that the phrase "serious and wilful misconduct" had been construed as embracing a degree of fault greater than ordinary negligence but less than intentional wrongdoing. In view of this fact, and also because the penalty was only for compensation and did not constitute exemplary damages, the court concluded there were no grounds for supposing that the...