Case Name:    Katrina Heredia v. Melanie Volpicella

Case No.:        1-13-CV-251643

 

This action arises from an incident in which plaintiff Katrina Heredia (“Plaintiff”) was bitten by a dog owned by defendant Melanie Volpicella (“Defendant”), for whom she worked as a nanny.  Currently at issue is Defendant’s motion for summary judgment on the ground that there is a complete defense to each of Plaintiff’s claims because workers’ compensation is Plaintiff’s exclusive remedy.

 

Plaintiff contends that there are triable issues as to whether Plaintiff was Defendant’s employee subject to Labor Code section 3600, et seq. (the Workers’ Compensation Act or “WCA”), whether the dog bite arose out of her employment and was a risk encompassed within the compensation bargain, and whether the bite was intended to fall under workers’ compensation.

 

Plaintiff’s Employee Status

 

“Except as provided in subdivision (h) of Section 3352,” an employee includes “any person employed by the owner or occupant of a residential dwelling whose duties are incidental to the ownership, maintenance, or use of the dwelling, including the care and supervision of children….”  (Lab. Code, § 3351, subd. (d).)  Section 3352, subdivision (h) states that any such person “who was employed by the employer to be held liable for less than 52 hours during the 90 calendar days immediately preceding the date of the injury … or who earned less than one hundred dollars ($100) in wages from the employer during the 90 calendar days immediately preceding the date of the injury…” is not an employee.  (Lab. Code, § 3352, subd. (h).)
Here, Defendant is the owner or occupant of a residential dwelling, and she offers evidence that Plaintiff’s duties encompassed the care and supervision of children and that Plaintiff was employed for more than 52 hours and earned more than $100 during the 90 calendar days preceding her injury.  (Defendant’s Separate Statement of Undisputed Facts (“DSF”), nos. 2, 6-9, 11, 13, 35, 36.)  Defendant has accordingly met her initial burden to show that Plaintiff was her employee.

 

Plaintiff does not address Labor Code sections 3351 and 3352 in her opposition papers, and she does not dispute that her duties included the care and supervision of children and that she was employed for more than 52 hours and earned more than $100 during the 90 calendar days preceding her injury.  (See Plaintiff’s Statement of Undisputed Facts (“PSF”), nos. 7, 9, 35, 36.)  Instead, she offers evidence concerning other factors “set forth by the California labor code and IRS guidelines,” which she does not identify with a citation.  It is true that the determination of employee status for purposes of the WCA is generally a question of fact involving the consideration of a number of factors.  (See S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349-351 [noting that the right to control work details is the most significant consideration, but identifying several secondary indicia of employment that are also considered].)  Here, however, the Legislature has expressly included individuals in Plaintiff’s circumstances in the definition of an employee.  Plaintiff’s evidence regarding factors that would otherwise be considered in the determination of employee status is consequently inadequate to create a triable issue of fact as to whether she is an employee pursuant to Labor Code section 3352, subdivision (h).

 

Consequently, Plaintiff has failed to create a triable issue of fact as to her employee status.  (See Scott v. Workers’ Comp. Appeals Bd. (1981) 122 Cal.App.3d 979, 985 [“The legislative history of section 3351, subdivision (d) shows it was intended to cover ‘casual employees’ not in the course of the employer’s trade, business or occupation such as household domestic servants, babysitters, and part-time gardeners.”].)

 

Connection of the Dog Bite to Plaintiff’s Employment

 

Defendant introduces evidence that Plaintiff met her dog at the time of her job interview, the dog routinely came into the house when Defendant or her husband was home, Defendant brought the dog into the house with a muzzle for a few weeks so it could get used to Plaintiff, and Defendant told Plaintiff it was okay to give the dog snacks. (DSF, nos. 17-19, 22.)  The incident occurred when Plaintiff tossed a snack to the dog, the dog did not eat it, and Plaintiff went to pick it up off the floor.  (DSF, no. 31.)  The dog then bit Plaintiff’s arm.  (Id.)  This evidence is adequate to meet Defendant’s initial burden, because it demonstrates that Plaintiff’s interaction with Defendant’s dog was not remote from her employment, but was in fact specifically within the parties’ contemplation from its commencement.  (See Madin v. Industrial Acci. Com. (1956) 46 Cal.2d 90, 94-95 [“Where the injury occurs on the employer’s premises, while the employee is in the course of the employment, the injury arises out of the employment unless the connection is so remote from the employment that it is not an incident of it.”].)

 

In opposition, Plaintiff does not dispute these facts, but argues that the dog bite was not connected to her employment because she had no job duties involving the dog.  However, an incident does not have to be part of an employee’s literal job duties to be a risk encompassed within the compensation bargain.  (See State Compensation Ins. Fund v. Workers’ Comp. Appeals Bd. (1967) 67 Cal.2d 925, 927 [“It is not indispensable to recovery that at the time of the injury an employee must be rendering service to his employer.”].)  It is undisputed that the parties knew the dog would be present and that Plaintiff might interact with it during the course of her employment.  Consequently, the dog bite was a risk reasonably encompassed within the compensation bargain.  (See Frigidaire Corp. v. Industrial Acci. Com. (1929) 103 Cal.App. 27, 29-30 [noting that injury from “mad or biting dogs” encountered on the street would arise from the employment of a workman “sent into the street on his master’s business”].)

 

 

Intent of the Parties

 

Finally, Plaintiff contends that the parties did not contemplate that an injury experienced by Plaintiff during her employment would be covered by workers’ compensation.  However, Plaintiff cites no authority for the proposition that the parties’ intent bears on the determination of whether an injury falls within the WCA, and such a rule would be contrary to the mandatory nature of the law.

 

As part of this argument, Plaintiff contends that Defendant did not provide her with notice that the WCA applied to her claim as required by law.  However, an employer’s failure to provide notice does not take a claim outside the scope of the WCA; it merely tolls the deadline for the injured employee to file a workers’ compensation claim.  (See California Ins. Guarantee Assn. v. Workers’ Comp. Appeals Bd. (2008) 163 Cal.App.4th 853, 859-860 [if the employer breaches its statutory duty to notify an employee unaware of his workers’ compensation rights of those rights, the limitations period is tolled for the period of time that the employee remains unaware of his or her rights].)

 

Consequently, there are no triable issues of fact that are relevant to the determination of whether workers’ compensation exclusivity applies.  Defendant’s motion for summary judgment is accordingly GRANTED.

 

Objections to Evidence

 

The objections to evidence submitted with Defendant’s reply brief are OVERRULED given that they are in improper format and are not accompanied by a proposed order as required by the California Rules of Court.  (Cal. Rules of Court, rule 3.1354, (b) & (c).)