06AS02871
Corazon Batoon vs. Eastern Manor & Maria Apuya
Nature of Proceeding:
Filed By:
Hearing on Demurrer
Hurley, Michael D.

This matter was continued to this date from November 14, 2013 because the parties
had previously stipulated to have the motion heard on March 3, 2014.

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 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 Court has now considered the opposition filed
November 8, 2014, which merely repeats the arguments made in the opposition to the
first demurrer. 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
rests squarely on the plaintiff. Torres v City of Yorba Linda (1993) 13 Cal.App.4th 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.