Unruh v. Truck Insurance Exchange

• Decision Date: 21 July 1972
• Citation: 498 P.2d 1063,102 Cal.Rptr. 815,7 Cal.3d 616
• Parties: , 498 P.2d 1063 Orpha UNRUH, Plaintiff and Appellant, v. TRUCK INSURANCE EXCHANGE et al., Defendants and Respondents. L.A. 29954. In Bank
• Court: California Supreme Court

Page 815

102 Cal.Rptr. 815

7 Cal.3d 616, 498 P.2d 1063

Orpha UNRUH, Plaintiff and Appellant, v. TRUCK INSURANCE EXCHANGE et al., Defendants and Respondents.

L.A. 29954.

Supreme Court of California,

In Bank.

July 21, 1972.

Everett E. Demler, Long Beach, for plaintiff and appellant.

Low & Ball, Remington Low, Raymond Coates and John Wynne Herron, San Francisco, as amici curiae for plaintiff and appellant.

Ball, Hunt, Hart, Brown & Baerwitz, Long Beach, Sikes, Pinney & Matthew, North Hollywood, and Stephen A. Cirillo, Long Beach, for defendants and respondents.

SULLIVAN, Justice.

Plaintiff appeals from separate written orders ¹ dismissing her second amended complaint after the court sustained demurrers thereto without leave to amend.

The second amended complaint (hereinafter for convenience referred to as 'complaint') names as defendants Truck Insurance Exchange (Truck), Farmers Insurance Group (Farmers), William Baker and Lawrence Marino ² as well as additional defendants sued by fictitious names. It contains five counts.

First Count

The First count, purporting to state a cause of action on a theory of negligence, alleges in substance as follows: Defendants Truck and Farmers were and are insurance companies authorized to transact workmen's compensation insurance in California. Defendants Baker and Marino were and are 'individuals or partners' engaged in the business of investigating industrial accident claims. At all times mentioned defendants and each of them 'were the agents, servants and employees of each other, and were acting within the scope of and pursuant to such agency and employment.'

On March 31, 1960, plaintiff injured her back while working for an employer insured under the workmen's compensation laws by defendant Truck. Subsequently she underwent four surgeries on her back and her condition deteriorated, causing extreme pain and requiring treatment. At all times mentioned defendants 'had knowledge of plaintiff's physical and mental condition and medical history.'

About April 10, 1964, defendants, and their employees, acting in the scope of their employment, placed plaintiff under surveillance in Long Beach. Defendant Baker 'befriended the plaintiff and did in the City of Long Beach and elsewhere misrepresent his capacity and his intentions toward the plaintiff.' On specified dates, for the purpose of obtaining motion pictures of plaintiff, defendants 'did entice and cause the plaintiff to conduct herself in a manner beyond her usual and normal physical capabilities . . ..' In particular defendants enticed plaintiff to visit Disneyland with defendant Baker, in the unseen presence of defendant Marino, where Baker caused plaintiff to cross a rope bridge and a barrel bridge and 'did wilfully and intentionally violently shake and disturb said bridges and the physical person of the plaintiff, and the defendants did at said place cause the plaintiff to engage in other activities so as to aggravate and injure the plaintiff.' These events were filmed by defendant Marino.

Plaintiff did not know at any time that she was under surveillance, that defendant Baker had misrepresented his capacity, or that defendant Marino was photographing her activities. At the instance and invitation of Baker, plaintiff had been caused 'to become emotionally interested' in him.

On April 30, 1964, defendants negligently exhibited at a hearing of the Industrial Accident Commission (now the Workmen's Compensation Appeals Board) ³ the motion pictures of plaintiff taken while she was under surveillance. Upon learning of 'the ruse and deception' practiced on her by defendants, plaintiff suffered a physical and mental breakdown requiring hospitalization. This breakdown was proximately caused by defendants' negligent exhibition of the films described, and by defendants' negligent failure to properly control their agents and employees 'as to the limit, scope and manner of their investigation,' and as to 'the possible risk of injury to plaintiff therefrom.' As a proximate result of the above conduct of defendants, plaintiff sustained 'injury to her nervous system and person,' in the sum of $500,000 general damages, and special damages for medical and other expenses and wage loss, past and future, in sums to be determined.

Counts Two to Five

The second, third, and fourth counts, purporting to state causes of action on theories of assault, conspiracy and intentional infliction of emotional distress, incorporate by reference the allegations of the first count. The second count alleges that at the times described above defendants intentionally and wilfully assaulted and battered plaintiff. The third count alleges that defendants conspired to perform the acts described. The fourth count alleges that defendants 'wilfully, wantonly and intentionally' inflicted emotional distress on plaintiff by the acts alleged. The fifth count, incorporating by reference the allegations of the preceding four counts, alleges that said acts of the defendants, and each of them, were wilful and malicious, whereby plaintiff seeks punitive damages of $2,000,000.

Defendants (except Marino--see fn. 2, ante) demurred to the complaint asserting that the complaint and each count thereof failed to state facts sufficient to constitute a cause of action, in that it appeared on the face of the complaint that the court had no jurisdiction over the subject matter of the action, as the Board had and continues to have exclusive jurisdiction. As previously noted, the court sustained the demurrers without leave to amend and dismissed the action. This appeal followed.

At the outset, we dispose of two procedural questions raised by plaintiff. First, she contends that the court erred in ordering her to file the second amended complaint, thereby restoring defendants' opportunity to demur. Her point is that defendants had waived their right to demur to the first amended complaint and by ordering her to file a new complaint the court deprived her of 'immunity from attack by demurrer.' It suffices merely to note that the grounds of the demurrers are that the complaint fails to state facts sufficient to constitute a cause of action and that the court lacked jurisdiction over the subject-matter of the action. These grounds for demurrer are not waivable and may even be asserted for the first time on appeal. (Code Civ.Proc., § 434; see Horacek v. Smith (1949) 33 Cal.2d 186, 191, 199 P.2d 929; Griffin v. Griffin (1953) 122 Cal.App.2d 92, 101, 264 P.2d 167, 3 Witkin, Cal.Procedures (2d ed. 1971) Pleading, § 819, p. 2427.) Since these objections can be raised at any time at the trial or on appeal (3 Witkin, op. cit. supra, Pleading, § 808, pp. 2418--2419), the court in no sense 'restored' an opportunity which had been irrevocably lost. The court's purpose was to have the first amended complaint and subsequent amendments thereto incorporated into one document. The order did not constitute an abuse of discretion.

Second, plaintiff contends that the court, in its minute order sustaining the demurrers, improperly took judicial notice of certain determinations previously made by a trial referee of the Board when plaintiff was seeking workmen's compensation benefits for her back injury and its aggravations. ⁴ She urges that she was not given sufficient notice under Evidence Code section 453, ⁵ that such matters should be judicially noticed and that she did not have a 'reasonable opportunity . . . to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed.' (Evid.Code, § 455, subd. (a).)

Defendants did not at any time make the request specified by section 453. Nevertheless, at the hearing on the demurrers, defendants' attorney did say that workmen's compensation had been awarded plaintiff, as the court file would reveal. The court indicated that counsel should make an appropriate request that judicial notice be taken. ⁶

It is true that the court judicially noticed the referee's findings and award, without a specific request by defendants. In prior proceedings, however, plaintiff herself, in opposing a motion to dismiss, had incorporated the Board's file in toto and had given a detailed summary of its entries. Indeed, her counsel had placed in the record the specific documents from which the court made excerpts for its order quoted above. It is clear that plaintiff's counsel had knowledge of the particular matters of which the court ultimately took judicial notice and had ample opportunity beforehand to object to the court's action. While the court may not have complied with sections 453 and 455 in a strict sense, we cannot say that any resulting error constituted a 'miscarriage of justice' (Cal.Const., art. VI, § 13).

We turn to the merits. The crucial question before us is whether an industrially injured employee can maintain against the workmen's compensation insurance carrier of her employer a common law action for damages for the negligent or intentional acts of such carrier. Plaintiff's appeal is grounded on the contention that Labor Code sections 3850 ⁷ and 3852, ⁸ properly construed, do not compel a conclusion of exclusive jurisdiction in the Board and, therefore, permit such an action. Defendants, on the other hand, maintain that the Board does have exclusive jurisdiction and that plaintiff made a binding election to invoke it. They assert that the Board's determination of compensability was res judicata as to the cause of action alleged before the superior court, which therefore had no jurisdiction to proceed. (Scott v. Industrial Acc. Com. (1956) 46 Cal.2d 76, 83, 293 P.2d 18.) As will appear, we conclude that the Board had exclusive jurisdiction as to plaintiff's count based on a theory of negligence but not as to those counts based on the carrier's intentional torts.

We first examine count one of the complaint. Section 3601 of the Labor Code provides in...