Royster v. Montanez

• Decision Date: 27 July 1982
• Citation: 134 Cal.App.3d 362,184 Cal.Rptr. 560
• Court: California Court of Appeals Court of Appeals
• Parties: Betsy ROYSTER, Plaintiff and Appellant, v. Miguel MONTANEZ, Defendant and Respondent. Civ. 62764.

Page 560

184 Cal.Rptr. 560

134 Cal.App.3d 362

Betsy ROYSTER, Plaintiff and Appellant, v. Miguel MONTANEZ, Defendant and Respondent.

Civ. 62764.

Court of Appeal, Second District, Division 3, California.

July 27, 1982.

Schlifkin & Papell, Ronald M. Papell and Steven J. Kleifield, Los Angeles, for plaintiff and appellant.

Alvin M. Cassidy, Mal S. Duncan and William V. Stafford, Santa Ana, for defendant and respondent.

POTTER, Acting Presiding Justice.

Plaintiff Betsy Royster appeals from a summary judgment in favor of defendant Miguel Montanez in her action for damages against him for personal injuries incurred when plaintiff stepped in a hole on premises occupied by defendant as his home.

The summary judgment was granted on the sole ground that the exclusive remedy for plaintiff's injuries, incurred in the course of her employment, is an award of workers' compensation.

Defendant's motion for summary judgment was supported by a memorandum of points and authorities and by his declaration. The memorandum of points and authorities stated that plaintiff was "secretary to and employee of defendant MIGUEL MONTANEZ doing business as Pronto Drilling," and that defendant requested that "plaintiff, in her capacity as his secretary," make the necessary arrangements for payment of an unpaid bill. The declaration of defendant in support of the motion stated that on the day of her injury, plaintiff "was employed by my company, Pronto Drilling, as a secretary/clerk/girl-Friday and had been so employed for several weeks prior thereto"; that after being requested to "make payment for me of a utility bill," plaintiff came to defendant's mobile home in which he then resided "for the purpose of making further inquiry concerning the bill which I had asked her to pay." The declaration further explained that this errand was requested of plaintiff because "she stood in the relationship of secretary and clerk to myself and therefore was acquainted with and knew how to perform tasks of this kind," and that the injuries occurred as plaintiff "departed from the premises ... when she stepped into a depression in the soil ...."

Plaintiff filed no declaration in opposition to the motion. She impliedly admitted her status as an employee of defendant and opposed the motion for summary judgment solely on the ground that workers' compensation was not her sole remedy in view of defendant's dual capacity.

Contentions

Plaintiff contends that the trial court erred in granting defendant's motion for summary judgment because: (1) there is a triable issue of material fact in that the declaration of the defendant did not establish the existence of an employer-employee relationship between the parties; and (2) assuming the existence of an employment relationship, the dual capacity doctrine of Duprey v. Shane (1952) 39 Cal.2d 781, 249 P.2d 8, permits an action for damages against her employer in his capacity as an owner or occupier of land.

Defendant contends that: (1) plaintiff cannot raise for the first time on appeal the employee status issue, and (2) the dual capacity doctrine is inapplicable.

Discussion

Summary

Plaintiff's failure, in the trial court, to raise any issue as to the existence of an employer-employee relationship forecloses any attack upon the judgment on that basis. Defendant's concurrent roles as employer and occupier of land do not comprise dual capacity. Consequently, the trial court did not err in granting summary judgment.

Employment Issue Foreclosed

We find no merit in plaintiff's contention that it was error for the trial court to find that the parties stood in relation to each other as employer and employee. Defendant's factual showing in this respect, by stating that Pronto was his company, perhaps failed to negate the possibility that defendant's ownership was other than as sole proprietor; however, construed in the light of the statement in defendant's memorandum of points and authorities that plaintiff was "secretary to and employee of defendant MIGUEL MONTANEZ doing business as Pronto Drilling," the declaration was sufficient to oblige plaintiff to take issue by stating contradictory facts. Rather than doing so, plaintiff at least impliedly admitted that defendant was her employer by stating in her memorandum of points and authorities in opposition that "[a]long with the obligations which defendant owed to plaintiff as an employer, defendant's capacity as an owner or possessor of land generated a totally different set of obligations by the defendant toward the plaintiff." (Italics added.) Nothing in plaintiff's pleading papers raised even a hint of doubt about the employment relationship. In addition, in her points and authorities, plaintiff advised the trial court: "As the material facts, as stated, in defendant's Motion for Summary Judgment are not in dispute, the issue before this Court is solely a matter of law." (Italics added.)

By raising the issue of the employment relationship for the first time on appeal, plaintiff encounters the general rule that issues not presented to the trial court are considered waived.

"An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the lower court by some appropriate method .... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver .... Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial." (6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 276, pp. 4264-4265. See also, 4 Cal.Jur.3d, Appellate Review, § 126, pp. 186-187; Degnan v. Morrow (1969) 2 Cal.App.3d 358, 366, 82 Cal.Rptr. 557.)

Plaintiff asserts that, although it was not raised in the trial court, the question of the employment relationship has not been waived, citing Central Mutual Ins. Co. v. Del Mar Beach Club Owners Assn. (1981) 123 Cal.App.3d 916, 176 Cal.Rptr. 895. In that case, the court permitted a best evidence rule objection to affidavits in support of a motion for summary judgment to be raised for the first time on appeal. The court noted, however, that this result was permitted only because the notice of appeal in that case had been filed prior to the effective date of an amendment to section 437c of the Code of Civil Procedure. Prior to the amendment, objections to the competency of evidence were permitted to be raised for the first time on appeal. As amended, section 437c provides that evidentiary objections not raised at the hearing on the motion for summary judgment shall be deemed waived. The now-abolished exception applied in Central Mutual Ins. Co. does not apply to this case, ¹ and in no way diminishes the general rule that questions not raised at the hearing are waived.

Plaintiff also relies on Maxwell v. Colburn (1980) 105 Cal.App.3d 180, 163 Cal.Rptr. 912, for the proposition that triable issues of material fact not raised at the hearing cannot be waived. But Maxwell stands only for the proposition that an appellate court has a duty to take into account any inferences reasonably deducible from the evidence set forth in the moving papers, even if such inferences were not urged by counsel at the hearing. Maxwell does not upset the well-established rule that a summary judgment must be reviewed on the basis of the papers filed at the time the court considers the motion. (Id., at [134 Cal.App.3d 368] p. 185, 163 Cal.Rptr. 912.) No inferences favorable to plaintiff can be drawn from defendant's declaration in this case. Maxwell certainly does not suggest that plaintiff can assert on appeal issues which were conceded.

Dual Capacity Not Made Out By Defendant-Employer's Concurrent Role as Occupier of Land

Plaintiff contends that her action for damages for personal injuries incurred on the premises of defendant's residence during the course of her employment as his secretary is not barred by the exclusive remedy provisions of the Worker's Compensation Act (Lab.Code, §§ 3600, 3601) ² because, under the reasoning of Duprey v. Shane (1952) 39 Cal.2d 781, 249 P.2d 8, defendant is liable at law in his capacity as an owner or occupier of land. We conclude, however, that the dual capacity doctrine of Duprey is not applicable to defendant's role as an owner or occupier of land.

As a general rule, when the conditions of compensation exist, an injured employee is limited to worker's compensation as the exclusive remedy and is precluded from bringing a tort action for damages against his employer. Section 3600 provides in relevant part: "Liability for the compensation provided by this division [is] in lieu of any other liability whatsoever to any person...." Section 3601 provides: "Where the conditions of compensation exist, the right to recover such compensation, pursuant to the provisions of this division is ... the exclusive remedy for injury or death of an employee against the employer...."

A policy of reciprocal concessions underlies the general rule of exclusivity of remedy. In exchange for relatively swift and certain compensation for injury, the employee relinquishes the opportunity to recover the greater award which might be had from a jury. The employee is relieved of the burden of litigating claims for damages, while the employer can anticipate and pass on to consumers the lower cost of employee injuries which results from a statutorily prescribed measure of damages.

Duprey v. Shane, supra, 39 Cal.2d 781, 249 P.2d 8, introduced the concept of dual capacity as an exception to the general rule making workers' compensation the exclusive remedy. In Duprey, the employer-chiropractor personally undertook to treat the work-related injury of his employee and negligently caused an aggravation of her condition. The...