Filed 8/30/18 Yoon v. Contractor Services Co. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

DAE YOON,

Plaintiff and Appellant,

v.

CONTRACTOR SERVICES COMPANY et al.,

Defendants and Respondents.

A152581

(Alameda County

Super. Ct. No. RG14736109)

Appellant Dae Yoon worked on a construction project for defendant Kwame E. Gregory, doing business as Contractor Services Company, and after the project was completed Yoon sought additional payment from Gregory for work beyond the scope of their original agreement. On April 30, 2014, the two met to discuss Yoon’s final payment. Yoon contends that Gregory grabbed and twisted his arm, causing him to drop certain documents he was holding in his hands and injuring him. Yoon sued Gregory for negligence and assault, and after a bench trial the trial court found that Yoon had not established that Gregory intended to injure him as required to bring his claims outside the exclusivity provision of the workers’ compensation law. Yoon argues that this finding was error. We affirm.

BACKGROUND

In March and April of 2014, Yoon worked for Gregory building a redwood deck for a residential home. After the project was completed, Yoon contended he had done additional work beyond the scope of the original contract and sought some $2,700 in additional payment. On April 30, 2014, Yoon met with Gregory in the kitchen at the project to discuss Yoon’s payment. The parties disagree as to what happened next. Gregory testified that Yoon placed various documents on the kitchen counter; that Yoon eventually came toward Gregory with his hands empty, and Gregory extended his hands and pushed Yoon back; and that Yoon then left in a huff. Yoon testified that during the meeting, he had a building card and building plans clutched in his hands, and that Gregory grabbed and twisted his wrist, causing him to drop the documents and leaving him injured.

On August 6, 2014, Yoon brought suit against Gregory for general negligence and assault. A bench trial was held in July 2017, at which both Yoon and Gregory testified. After trial, the trial court gave an oral statement of decision, finding that Yoon was an employee and not an independent contractor and that the case was within the general purview of the workers’ compensation law (Lab. Code, § 3600 et seq.). The court then concluded:

“However, the second issue that the court must address is: Did the defendant willfully, physically assault Mr. Yoon with the deliberate intent to injure him?

“Labor Code [s]ection 3602[, subdivision] (b)(1) exempts willful physical assaults by the employer from the exclusivity provisions of the Workers’ Compensation Act; willful physical assaults have been found to be only batteries that are specifically intended to injure.

“And you’ve both quoted [Soares v. City of Oakland (1992) 9 Cal.App.4th 1822 (Soares)]. And I would point out also to CACI 2801 which codifies that case in our jury instructions.

“The plaintiff’s testimony was that he and Mr. Gregory argued over a final payment over change orders.

“The plaintiff stated that he was holding the building plans and the City-approved Permit Inspection Record and told Mr. Gregory he would not release them until he got the extra $1,200 he felt he was owed.

“Plaintiff contends that Mr. Gregory then became angry and grabbed for the plans, twisting the plaintiff’s wrist in the process, injuring plaintiff’s right wrist and hand.

“Mr. Gregory denies that he attempted to grab the plans from Mr. Yoon; rather he alleges that Mr. Yoon was agitated over not being fully compensated and came too close into Mr. Gregory’s personal space with his arms raised in the air.

“Gregory says that in a reflexive action, he pushed Mr. Yoon’s arm back and that Mr. Yoon then stormed out of the meeting, leaving the Permit Inspection Record on the counter.

“The court is not required to resolve the factual disparities in these two accounts, because even if the court were to accept Mr. Yoon’s account at face value, it fails to prove an intent to injure.

“All that Mr. Yoon’s account supports is an intent by Mr. Gregory to obtain the plans or Permit Inspection Record.

“To fall within the very limited exception to the Labor Code, plaintiff needed to prove by a preponderance of the evidence that defendant’s intent in touching him was to hurt him.

“And the court finds that there has been little to no evidence in support of a deliberate intent to injure.

“It is regrettable if the plaintiff was injured, but if so, it was incidental to the defendant’s attempt to obtain the plans.

“And therefore the Labor Code [s]ection 3602[, subdivision] (b)(1) exemption is inapplicable and this case falls exclusively within the province of the Workers’ Compensation Act.

“Under the exclusivity of that law[], the court has no alternative but to now find judgment for the defendant.”

The trial court entered judgment for Gregory, and this appeal followed.

DISCUSSION

Yoon argues that the trial court erred in finding that he failed to establish that Gregory intended to injure him. We disagree.

Labor Code section 3601 provides that workers compensation is the exclusive remedy for injury of one employee against another except where, as relevant here, “the injury or death is proximately caused by the willful and unprovoked physical act of aggression of the other employee.” (Lab. Code, § 3601, subd. (a)(1).) “[A]s a general rule . . . a ‘willful and unprovoked physical act of aggression’ includes an intent to injure requirement.” (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1006; see Soares, supra, 9 Cal.App.4th at p. 1826 [“[a] ‘physical act of aggression’ is only ‘willful’ for purposes of this statute when the act is deliberately intended to injure”].)

Because the trial court found that Yoon failed to meet his burden of proof to establish that Gregory had the requisite intent to injure, Yoon has a heavy burden on appeal, as set forth in Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456 (Sonic): “ ‘Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.” ’ (In re I.W. (2009) 180 Cal.App.4th 1517, 1527–1528].)” (Sonic, at p. 466; accord, Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 967.)

Pointing to the trial court’s statement that it was “not required to resolve the factual disparities in these two accounts, because even if the court were to accept Mr. Yoon’s account at face value, it fails to prove an intent to injure,” Yoon argues that the standard of our review is de novo. The basis for this assertion is not entirely clear: Yoon asserts both that the question is one of statutory interpretation because the trial court incorrectly interpreted Labor Code section 3601, and that there was “overwhelming direct and uncontradicted evidence” that the intent to injure requirement was met. Neither assertion has any merit. There was, and is, no dispute that if Gregory assaulted Yoon with the intent to injure him, his conduct would fall outside the exclusivity of the workers’ compensation law pursuant to Labor Code section 3601. And as we now discuss, Yoon’s evidence in support of the intent to injure requirement was neither overwhelming nor uncontradicted.

The trial court expressly found that Yoon had presented “little to no evidence of an intent to injure,” concluding instead that even under Yoon’s version of events Gregory’s intent was to obtain the documents Yoon was holding in his hands. This finding was supported by Yoon’s own testimony, including his testimony that the parties met in order to exchange the documents for Yoon’s final payment, that Gregory needed certain of those documents to get paid for the project, that Gregory refused to pay Yoon the extra money he requested, and that Gregory ultimately twisted Yoon’s arm causing Yoon to drop the documents. For example: “Q. [Gregory] used force to get you to drop the plans. Is that correct? [Yoon:] Yeah, I – Like I explain, he – I keep it (indicating). He twist my hand. I drop, and he took. He push me away.” If that were not enough, Yoon’s testimony was also contradicted by Gregory’s testimony that his “intention was not to hurt Mr. Yoon” but was “simply to stop Mr. Yoon” from advancing toward him. We easily conclude that Yoon’s evidence was neither “uncontradicted” nor “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding” in his favor as a matter of law. (Sonic, supra, 196 Cal.App.4th at p. 466.)

The only argument to the contrary that can be distilled from Yoon’s brief is that Gregory’s actions (as Yoon described them) in and of themselves demonstrated the requisite intent to injure. In particular, Yoon asserts that “[t]he act of twisting requires force and pushing YOON into the kitchen wall shows intent to cause physical contact and harm,” and that “[t]he act of grabbing and twisting, which caused YOON’s injuries, clearly showed intent to harm YOON by GREGORY.” While the trial court certainly could have inferred that Gregory intended to injure Yoon based on his actions (see Torres v. Parkhouse Tire Service, Inc., supra, 26 Cal.4th at p. 1009), it was not required to do so. As discussed above, there was ample “room for a judicial determination that [Yoon’s evidence] was insufficient.” (Sonic, supra, 196 Cal.App.4th at p. 466.) Yoon’s claim of error fails.

DISPOSITION

The judgment is affirmed. Respondent shall recover their costs on appeal.

 

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Miller, J.

A152581; Yoon v. Contractor Services Co.