Case Name: Mele Tupou Talivakaola v. Camille Norman Dion, et al.

Case No.: 2016-1-CV-291430

Demurrer to First Amended Complaint for Damages by Defendants AAA Quality Homecare, Inc. and Asinate Tuakalau

Defendants AAA Quality Homecare, Inc. (“AAA”) and Asinate Tuakalau (“Tuakalau”) hired plaintiff Mele Tupou Talivakaola (“Plaintiff”) to be a live-in caregiver for defendant Camille Norman Dion (“Dion”) at Dion’s premises located at 19104 Spring Brook Lane in Saratoga (“Premises”). (First Amended Complaint, ¶¶9, 11, and 12.) Plaintiff was caring for defendant Dion at the Premises in the early morning hours of January 24, 2016 when defendant Dion retrieved a loaded gun from a nightstand, pointed the gun at Plaintiff, and fired the gun at Plaintiff’s direction, barely missing her. (Complaint, ¶13.) Plaintiff wrestled the gun away from defendant Dion. (Id.) The police arrived at the Premises and located three other guns. (Complaint, ¶15.) Plaintiff later inquired from a representative of defendants AAA and Tuakalau whether it was known that loaded guns were kept at the Premises. (Complaint, ¶17.) The representative affirmed her knowledge that defendant Dion kept a loaded gun in the bedroom where caregivers worked. (Id.) Plaintiff was never informed there were guns at the Premises. (Complaint, ¶16.) Defendants AAA and Tuakalau knew of the loaded gun but failed to notify Plaintiff or make the workplace safe for Plaintiff. (Complaint, ¶18.)

On February 10, 2016, Plaintiff filed a complaint against defendants Dion, AAA, and Tuakalau asserting causes of action for:

(1) Intentional Infliction of Emotional Distress [versus defendant Dion]
(2) Assault [versus defendant Dion]
(3) Negligence [versus all defendants]
(4) Negligent Infliction of Emotional Distress [versus all defendants]
(5) Negligent Supervision [versus defendants AAA and Tuakalau]

On April 12, 2016, defendants AAA and Tuakalau filed this demurrer

I. Defendants AAA and Tuakalau’s demurrer to the third through fifth causes of action is SUSTAINED.

California’s workers’ compensation scheme was developed early in the 20th century as a result of the inadequacy of the common law that often denied injured workers any recovery for work-related injuries. (Western Indemnity Co. v. Pillsbury (1915) 170 Cal. 686, 693; see Matthews v. Workmen’s Comp. Appeals Bd. (1972) 6 Cal.3d 719, 728-734—describing the history and development of California’s worker’s compensation law.)

The workers’ compensation law applies to employee injuries “arising out of and in the course of the employment” when the statutorily specified “conditions of compensation concur.” (Lab. Code, §3600.) Generally, it is the exclusive remedy for such injuries. (Id., §§ 3600, subd. (a), 3601.) “The legal theory supporting such exclusive remedy provisions is a presumed compensation bargain, pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.” (Employers Mutual Liability Ins. Co. v. Tutor-Saliba Corp. (1998) 17 Cal.4th 632, 637 [internal quotations omitted].)

Defendant AAA and Tuakalau demur to the third through fifth causes of action on the ground that the claims asserted by Plaintiff are barred by the workers’ compensation exclusivity rule. “Where the complaint affirmatively alleges facts indicating coverage by the workers’ compensation laws, if it fails to state additional facts negating application of the exclusive remedy provision, no civil action will lie and the complaint is subject to a general demurrer.” (Colombo v. State of California (1991) 3 Cal.App.4th 594, 599.)

“[Labor Code] Section 3602 provides that the sole and exclusive remedy of an injured employee against an employer is the right to recover workers’ compensation benefits, 1) if ‘the conditions of compensation set forth in [s]ection 3600 concur,’ and 2) unless an exception specified in sections 3602, 3706 or 4558 applies.” (Wright v. Beverly Fabrics (2002) 95 Cal.App.4th 346, 352.)

A. Employee – Independent Contractor

In opposition, Plaintiff argues that she is not an employee, but rather an independent contractor.

The Workers’ Compensation Act (Act) extends only to injuries suffered by an “employee,” which arise out of and in the course of his “employment.” (§§ 3600, 3700; see Cal. Const., art. XIV, § 4 (former art. XX, § 21).) “[Employees]” include most persons “in the service of an employer under any . . . contract of hire” (§ 3351), but do not include independent contractors. The Act defines an independent contractor as “any person who renders service for a specified recompense for a specified result, under the control of his principal as to the result of his work only and not as to the means by which such result is accomplished.” (§ 3353.)

The determination of employee or independent-contractor status is one of fact if dependent upon the resolution of disputed evidence or inferences, and the Division’s decision must be upheld if substantially supported. (Germann v. Workers’ Comp. Appeals Bd. (1981) 123 Cal.App.3d 776, 783 [176 Cal.Rptr. 868].) If the evidence is undisputed, the question becomes one of law (Tieberg v. Unemployment Ins. App. Bd. (1970) 2 Cal.3d 943, 951 [88 Cal.Rptr. 175, 471 P.2d 975]), but deference to the agency’s view is appropriate. The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced. [Citations.] The Act must be liberally construed to extend benefits to persons injured in their employment. (§ 3202.) One seeking to avoid liability has the burden of proving that persons whose services he has retained are independent contractors rather than employees. (§§ 3357, 5705, subd. (a).)

(S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal.3d 341, 349.)

Plaintiff contends she was an independent contractor and refers to various extrinsic facts to support her position. However, the cardinal rule on demurrers is that, “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213 – 214.)

Here, the pleading alleges, in relevant part, that Plaintiff “was being hired by Defendant AAA and Defendant Tuakalau [to] be the caregiver for Defendant Dion.” (Complaint, ¶11.) There are no allegations contained in the pleading to support Plaintiff’s argument on demurrer.

B. Exceptions.

Plaintiff also argues, in opposition, that several exceptions apply here. Plaintiff argues first that the dual capacity exception applies.

Section 3852 is the origin of the “dual capacity” exception to the exclusive remedy of workers’ compensation. Under the dual capacity doctrine, an employee may recover in tort for negligent aggravation of an initial industrial injury against an employer who assumes the capacity of medical care provider by undertaking to treat the employee’s injury itself. (Duprey v. Shane (1952) 39 Cal.2d 781, 793 [249 P.2d 8]; Alander, supra, 49 Cal.App.4th at p. 1305.) The dual capacity doctrine is not necessarily limited to situations in which the employer’s alternate second capacity toward the employee is that of medical care provider. “[T]he decisive test of dual capacity is whether the nonemployer aspect of the employer’s activity generates a different set of obligations by the employer toward the employee.” (D’Angona v. County of Los Angeles (1980) 27 Cal.3d 661, 667 [166 Cal.Rptr. 177, 613 P.2d 238] (D’Angona); see also Perry v. Heavenly Valley (1985) 163 Cal.App.3d 495, 508-509 [209 Cal.Rptr. 771] (Perry).)

Dual capacity is thus legal shorthand for describing a situation in which a party has a duty of care that arises independently of any employment relationship. It is based on the distinction between two entirely separate sets of duties: (1) the duties of an employer to an employee arising from the existence of an employment relationship under the workers’ compensation law; and (2) the common law (or other statutory) duties of care arising from other, nonemployment relationships, such as those of a medical care provider to a patient, or of a business or property owner to an invitee. (Bell v. Industrial Vangas, Inc. (1981) 30 Cal.3d 268, 277 [179 Cal.Rptr. 30, 637 P.2d 266].) For example, an employer’s duty to its employees requires it to provide, among other things, a safe place of employment. This duty is distinct from the obligation of a property owner or business to an invitee, based on the common law tort duty of care. The nature of an employer’s duty in a given situation depends on the circumstances of the parties’ relationship at the time of the incident. Just because a person is an employee clearly does not mean he or she is acting as an employee under all circumstances.

(Weinstein v. St. Mary’s Medical Center (1997) 58 Cal.App.4th 1223, 1230.)

Plaintiff asserts such a dual capacity exists here based upon her allegation that defendants AAA and Tuakalau are separate entities. This, however, does not set forth two distinct capacities. Both defendants are alleged only to have hired Plaintiff. [Defendant Tuakalau separately demurs on the ground that she cannot be vicariously liable for actions taken by the corporate defendant AAA. However, Plaintiff alleges both defendants to have hired her.]

Next, Plaintiff contends the workers’ compensation exclusivity rule does not apply to an action for the willful assault by a co-employee “when the employer ‘ratified’ the tortious conduct of its employee and thereby became ‘liable for the employee’s wrongful conduct as a joint participant.’ [Citation.]) (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489.) Plaintiff, however, does not allege the willful assault by a co-employee. The exception does not apply here.

As a third exception, Plaintiff refers to the fraudulent concealment exception. “Section 3602, subdivision (b)(2) provides a narrow exception to this exclusivity rule and allows a civil suit ‘[w]here the employee’s injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer’s liability shall be limited to those damages proximately caused by the aggravation….’ … [¶] Three conditions are necessary for the fraudulent concealment exception to apply: (1) the employer must have concealed ‘the existence of the injury’; (2) the employer must have concealed the connection between the injury and the employment; and (3) the injury must have been aggravated following the concealment. (Hughes Aircraft Co. v. Superior Court (1996) 44 Cal.App.4th 1790, 1794 [52 Cal.Rptr.2d 514].) If any one of these conditions is lacking, the exception does not apply and the employer is entitled to judgment in its favor. (Id. at p. 1797.)” (Jensen v. Amgen, Inc. (2003) 105 Cal.App.4th 1322, 1325.) Plaintiff’s allegations regarding concealment of the fact that defendant Dion kept guns at the Premises does not bring this case within the fraudulent concealment exception. The very first condition is that the employer concealed the existence of the injury. No such allegations are found here.

Finally, Plaintiff contends there is an exception for “outrageous conduct.” Plaintiff relies, however, on decisions allowing claims for intentional infliction of emotional distress in the employment context. “[W]here a plaintiff can allege that she suffered emotional distress because of a pattern of continuing violations that were discriminatory, her cause of action for infliction of emotional distress will not be barred by the exclusivity provisions of workers’ compensation laws. This is so because the claim is ‘founded upon actions that are outside the normal part of the employment environment ….’ [Citation.] Additionally, the same is true of harassment based on sexual orientation, where it has taken on the required degree of outrageousness. [Citation.]” (Murray v. Oceanside Unified School Dist. (2000) 79 Cal.App.4th 1338, 1363.) The same factual circumstances do not exist here.

Accordingly, defendants AAA and Tuakalau’s demurrer to the third, fourth, and fifth causes of action in Plaintiff’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e], i.e., the claims are barred by the workers’ compensation exclusivity rule, is SUSTAINED with 10 days’ leave to amend.