06AS02871

Corazon Batoon vs. Eastern Manor & Maria Apuya

Nature of Proceeding: Hearing on Demurrer

Filed By: Hurley, Michael D.

Demurrer by Defendant Christine Baker, Administrative Director of the
Department of Industrial Relations as Administrator of the Uninsured
Employers Benefit Trust Fund (“UEBTF” sued as “Doe 1”) to the Second
Amended Complaint (“SAC”) is unopposed, taken as a concession to the merits, and is
sustained, without leave to amend.

The Court sustained the demurrer to the First Amended Complaint on June 25, 2013,
and granted leave to amend. The defects of the FAC have not been cured, therefore
the demurrer is sustained without leave to amend.

Plaintiff’s SAC sets forth causes of action based on personal injuries incurred by her
within the course and scope of her employment with defendants Eastern Manor and
Maria Apuya. Plaintiff admits in her complaint that ordinarily she would be limited to
filing a workers compensation claim under the exclusive remedy rule, but because her
employer was illegally uninsured for workers compensation
coverage, she was entitled to file a civil action concurrently with a workers
compensation claim pursuant to Labor Code section 3706. Instead of filing
a concurrent workers compensation action, she chose to proceed solely
with a civil action against her employers. At no time relevant herein has plaintiff filed a
workers’ compensation action against the defendants Eastern Manor or Apuya. At no
time relevant herein has there been a determination by the WCAB as to what, if any,
workers’ compensation benefits plaintiff is entitled to.

Labor Code section 3715 (a) requires that where the employer has failed to secure the payment of compensation, “any employee…. may, in addition to proceeding against his
or her employer by civil action in the courts
as provided in Section 3706, file his or her application with the appeals
board for compensation and the appeals board shall hear and determine
the application for compensation in like manner as in other claims and
shall make the award to the claimant as he or she would be entitled to
receive if the employer had secured the payment of compensation as
required, and the employer shall pay the award in the manner and amount
fixed thereby or shall furnish to the appeals board a bond, in any amount
and with any sureties as the appeals board requires, to pay the employee
the award in the manner and amount fixed thereby.” [emphasis added]

Labor Code § 3716.2, permits demurring defendant, as administrator of
the Uninsured Employers Fund, to pay the claimant only such benefits
allowed, that would have accrued against an employer properly insured for
workers’ compensation liability. Labor Code section 3716.2 prohibits the
UEBTF from paying any tort damages, since those would not have been
allowed had the employer been properly insured for workers’ compensation liability.

In this case, no workers’ compensation claim was filed with the WCAB.
Thus, the employer could not have made a general appearance before the
WCAB, nor could the employer have been served with a copy of the
application and notice of lawsuit. Therefore, no valid claim can now be
made against the UEBTF. Further, in the absence of a workers’
compensation action brought before the WCAB in the first instance as
allowed by Labor Code section 3715, there can be no finding of
compensable injury and disability and no award of benefits made to the injured worker.
As such, the director, as administrator of the UEBTF, cannot make any payments to
the injured worker.

Plaintiff has obtained a default Judgment against her former employer for tort damages
in the amount of $517,807.21. However, plaintiff cannot collect that sum from
demurring defendant, as no Workers Compensation action was filed or determination
was made in the compensation forum. It is now clear that plaintiff cannot amend her
complaint to state facts sufficient to support a cause of action against the UEBTF,
since she would have to establish that a workers’ compensation action was filed and
that she was awarded benefits as a result of such action. Plaintiff has already stated in
her first amended complaint that she did not file a workers’ compensation claim,
therefore, leave to amend need not be granted.

A demurrer must be sustained without leave to amend absent a showing by plaintiff
that a reasonable possibility exists that the defect can be cured by amendment. Blank
v Kirwan (1985) 39 Cal.3d 311, 318. The burden of proving such reasonable possibility
th
rests squarely on the plaintiff. Torres v City of Yorba Linda (1993) 13 Cal.App.4 1035,
1041. Plaintiff has not met that burden.

The Demurrer to the SAC sustained without leave to amend. Defendant shall submit a
formal order and judgment of dismissal.