Case Name: Michael Richmond, Jr. v. Alfonzo Guzman, et al.
Case No.: 2013-1-CV-255579

This is a personal injury action. Plaintiff Michael Richmond, Jr. (“Plaintiff”) alleges he was injured while participating in a recruitment and training program for jail officers put on by the Sheriff’s Office of Defendant County of Santa Clara (“County”). (See Second Amended Complaint (“SAC”) at para. 16-18, 24.) Plaintiff alleges Defendant Alfonzo Guzman (“Guzman”) the sheriff’s deputy training him, was verbally and physically abusive to trainees, including (alleged on information and belief) stepping on or kicking a recruit other than Plaintiff during a “sand box exercise,” and that supervisors took no action to rein in Guzman when this behavior was complained of. (See SAC at para. 21-23.) Plaintiff further alleges that, while taking trainees out on a run, Guzman grabbed him from behind, threw him into a chain link fence and pinned his arms and legs to the fence while yelling profanities at him. Plaintiff’s right shoulder was slammed into a fence pole, partially dislocating it. (See SAC at para. 25-26.) Shortly afterward, Guzman pulled Plaintiff out of a class conducted by another training officer, ordered him into an empty classroom, and continued to scream profanities at him, refusing to let Plaintiff leave the room until he admitted he was at fault for the incident that injured him. (See SAC at para. 28-31.)

Plaintiff’s initial complaint was filed on November 4, 2013. The operative SAC was filed on March 20, 2018. Only three causes of action remain at issue. These are: 1) the first cause of action for assault and battery; 2) the second cause of action for false imprisonment, and: 3) the sixth cause of action for intentional infliction of emotional distress (“IIED”). All three remaining claims are alleged against both Guzman and the County. Currently before the Court is the motion by the County for summary judgment/adjudication of the three remaining causes of action and a joint motion by Defendants County and Guzman for summary adjudication of “special damages.”

1. Request for Judicial Notice
A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.)

With its motion, included as a separate document in its packet of “evidence in support” of the motion as required, the County has submitted a request for judicial notice of four documents, attached as exhibits A-D to the request. Exhibit A is a copy of the SAC, exhibits B and C are copies of documents related to proceedings before the Workers Compensation Appeals Board (“WCAB”) and exhibit D is a copy of the Court’s September 14, 2017 order on Defendants’ motion for judgment on the pleadings.

While unnecessary as it is already considered by the Court, notice of the SAC’s existence and filing date is GRANTED pursuant to Evidence Code §452(d). Notice of the WCAB documents is GRANTED pursuant to §452(c), “official acts” of the County (signing the stipulation) and of the WCAB (the award). However, the fact that an employee has received workers’ compensation benefits does not prove that the workers’ compensation exclusivity rule applies because it does not establish that an award was the correct remedy. (See Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606, 637 (“Lee”).) The elements stated in Labor Code §§ 3600, 3601 and 3612 determine whether the exclusivity rule applies and the existence or nonexistence of an award is not one of those elements. (Id. at 637-638.) Notice of the Court’s prior order is DENIED. The ruling on the pleading challenge to the original complaint is not relevant to the analysis of a MSJ/MSA directed at the three remaining causes of action in the operative SAC.

Plaintiff’s purported request for judicial notice of certain facts, stated in the “Declaration and Exhibits in Opposition,” is DENIED for failure to comply with Cal. Rule of Court 3.1113(l) [request must be made in a separate document and must comply with Rule of Court 3.1306(c)].

2. Defendants’ motion for summary judgment/adjudication
The SAC limits the issues presented for summary judgment or adjudication. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]) Summary adjudication of general “issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136.)

The moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037. See also Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [court must liberally construe evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party].) The moving party may generally not rely on additional evidence filed with its reply papers. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.)

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.)

As an initial matter, the County’s motion must be and is deemed a motion for summary judgment only, and both the County’s motion for summary adjudication in the alternative and the County and Defendant Guzman’s joint motion for summary adjudication of the issue of whether Plaintiff can recover “special damages” is DENIED as Defendants have failed to comply with California Rule of Court 3.1350(b), stating in pertinent part that “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Court’s emphasis.) Defendants’ noncompliance with Rule 3.1350(b) is plainly evident when their joint Notice of Motion at p. 2:3-22 is compared with their Separate Statement.

Additionally, the Court in ruling on a motion for summary judgment/adjudication is not, as Defendant County repeatedly suggests in its papers, bound by any portion of the Court’s September 14, 2017 order on the Count’s motion for judgment on the pleadings directed at Plaintiff’s original complaint rather than the now operative SAC. A motion for judgment on the pleadings is an equivalent to a general demurrer, a pleading challenge, and no extrinsic evidence is considered. In ruling on a motion for summary judgment or adjudication admissible evidence submitted by either side, such as sworn deposition testimony or declarations, can be considered by the Court and the Court is required to strictly construe the moving party’s evidence, liberally construe evidence submitted by the party opposing summary judgment and resolve all evidentiary doubts in favor of the opposing party.

The County contends it is entitled to summary judgment on all three remaining causes of action because the workers’ compensation exclusivity rule (Labor Code §3602) applies here, that it may only be liable to Plaintiff on a ratification theory, and that there is no evidence of ratification.

California’s Workers’ Compensation Act (Labor Code § 3600 et seq.) provides an employee’s exclusive remedy against his or her employer for injuries arising out of and in the course of employment. (Wright v. State (2015) 233 Cal.App.4th 1218, 1229 (Wright).) Labor Code §3601 states: “Where the conditions of compensation exist, the right to recover such compensation is the exclusive remedy for injury or death of an employee against the employer or against any other employee of the employer acting within the scope of his employment.” Thus, where an employee is injured by any other employee of the employer acting within the scope of his or her employment, workers’ compensation is generally the exclusive remedy of the employee against the co-employee.

Labor Code § 3602(a) sets forth the general exclusivity rule. However, subsection (c) states that “[i]n all cases where the conditions of compensation set forth in Section 3600 do not concur, the liability of the employer shall be the same as if this division [division 4, the WCA] had not been enacted.” (Emphasis and brackets added.) Labor Code §3600(a)(7) states that one of the conditions required for exclusivity to apply is “[w]here the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor.” (Emphasis added.) The Supreme Court in Matthews v. Workers’ Comp. Appeals Bd. (1972) 6 Cal.3d 719, 727, interpreting what is now Labor Code §3600(a)(7) ruled that a person could be the “initial physical aggressor” without committing battery. “He who by physical conduct first places his opponent in reasonable fear of bodily harm is the ‘initial physical aggressor.’ His act need not actually cause physical harm; throwing a punch or shooting a gun is not necessary.”

Labor Code §3602(b) states in pertinent part that “an employee, or his or her dependents in the event of his or her death, may bring an action” for damages against the employer, in the following instances where the employee’s injury or death is: (1) proximately caused by a willful physical assault by the employer; (2) 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 is limited to those damages proximately caused by the aggravation; and (3) proximately caused by a defective product manufactured by the employer and sold, leased, or otherwise transferred for valuable consideration to an independent third person, and that product is thereafter provided for the employee’s use by a third person. (Labor Code §3602(b)(1)-(3).)

Labor Code §3602(b)(1) does not create respondeat superior liability. However the employer may be civilly liable for damages if it ratifies the co-worker’s tortious acts and thereby becomes a “joint participant” in the assaultive conduct. (See Fretland v. County. of Humboldt (1999) 69 Cal.App.4th 1478, 1498-1490.) “Ratification is the voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him. [Citations.] A purported agent’s act may be adopted expressly or it may be adopted by implication based on conduct of the purported principal from which an intention to consent to or adopt the act may be fairly inferred, including conduct which is ‘inconsistent with any reasonable intention on his part, other than that he intended approving and adopting it.’ [Citations.]” (Id. at pp. 1490-91; Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73.)

Broken down into its separate elements, Labor Code §3602 is the sole and exclusive remedy if: (1) the conditions of compensation set forth in Labor Code section 3600 exist; (2) the employer has secured the payment of compensation; and (3) none of the exceptions apply. (See Borah, et al., California Workers’ Compensation Practice (4th ed. Cal. CEB 2008) §1.36, pp. 23-24.) On summary judgment, it is the defendants’ initial burden to establish all of the elements of this affirmative defense, including that no exceptions apply.

The County’s motion for summary judgement is DENIED as follows. Assuming for purposes of argument that the County met its initial burden, when the burden passes to Plaintiff he is able to raise triable issues of material fact through admissible evidence, including evidence calling into question whether the workers’ compensation exclusivity rule properly applies here in the first place. Plaintiff is correct that the deposition testimony of Defendant Guzman (Plaintiff’s exhibit 15 at 51:23-53:25 and 93:5-20, stating that he thought Plaintiff was “harassing” him) raises a triable issue as to whether Plaintiff was the “initial physical aggressor” under Labor Code §3600(a)(7). (See also the SAC at para. 8.) Guzman’s testimony on this point is less clear than the opposition or the SAC suggests, but given that on summary judgment/adjudication the opposing party’s evidence must be liberally construed with all doubts concerning the evidence resolved in favor of the opposing party, it is enough to raise a triable issue as a jury might reasonably believe Guzman’s testimony and interpret it as establishing that Plaintiff put Guzman in reasonable fear of bodily harm before he grabbed Plaintiff, in which case the exclusivity rule would not apply pursuant to Labor Code §3600(a)(7) and §3602(c).

Guzman also testified that the reason he grabbed Plaintiff from behind and threw him against a fence post (one of several, arguably inconsistent, explanations he offered for his conduct) was that it was a training exercise for the other members of the class on how to deal with an inmate attack on a fellow officer (see Plaintiff’s ex. 15 at pp. 50:24-51:2; 97:11-99:5). While he testified (ex. 15 at p.72:23-25) that he could not use hands-on techniques as “discipline,” he also testified (ex. 15 at p. 41:2-42:2) that “there was no policy and procedures for hands-on with recruits” and it was his understanding that in certain scenarios, such as “[a] scenario that would be fitting to a jail setting,” he was allowed put his hands on recruits. Guzman’s deposition testimony (Plaintiff’s exhibit 15) and Plaintiff’s declaration stating his version of the encounter with Guzman is sufficient evidence to raise a triable issue as to whether the exclusivity rule applies at all, because it suggests that the confrontation in which Plaintiff was injured may have been outside the compensation bargain.

As the Supreme Court has noted in Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 717 (“Fermino”), “normal employer actions causing injury would not fall outside the scope of the exclusivity rule merely by attributing to the employer a sinister intention. Conversely, … actions by employers that have no proper place in the employment relationship may not be made into a ‘normal’ part of the employment relationship merely by means of artful terminology. Indeed, virtually any action by an employer can be characterized as a ‘normal part of employment’ if raised to the proper level of abstraction.” “[C]ertain types of injurious employer misconduct remain outside this bargain. There are some instances in which, although the injury arose in the course of employment, the employer engaging in that conduct ‘“stepped out of [its] proper role[]” ’ or engaged in conduct of ‘“questionable relationship to the employment.” ’ ” (Id. at 708. See also Light v. Dept. Of Parks & Recreation (2017) 14 Cal.App.5th 75, 97 [“[T]he exclusive remedy provisions are not applicable under certain circumstances, sometimes variously identified as ‘conduct where the employer or insurer stepped out of their proper roles’ [citations], or ‘conduct of an employer having a “questionable” relationship to the employment’ [citations], but which may be essentially defined as not stemming from a risk reasonably encompassed within the compensation bargain.”])

A reasonable finder of fact presented with Defendant Guzman’s deposition testimony and Plaintiff’s declaration could certainly conclude that Guzman’s conduct—grabbing Plaintiff from behind during a training run and throwing him up against a fence post while screaming obscenities—had a “questionable” (if any) relationship to recruit training, the “employment” that Plaintiff was undergoing at the time of the incident. “The jury could properly find the injury did not arise out of the employee’s work because it was caused by such employer action and therefore the conditions of compensation did not exist. To hold that the jury must first find the injury to be within the conditions of compensation and then find it also to be within the Fermino exception, instead of simply finding that the conditions of compensation were not met in the first place in light of Fermino, would be elevating form over substance.” (Lee, supra, 5 Cal.App.5th at p. 629.)

Finally, even if it is assumed for purposes of argument that the exclusivity rule does apply here, a triable issue of material fact remains as to whether the County ratified Defendant Guzman’s conduct. “The failure to discharge an employee who has committed misconduct may be evidence of ratification. [Citations.] The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. [Citations.] Whether an employer has ratified an employee’s conduct is generally a factual question.” (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110, internal citations omitted. See also Ventura v. ABM Industries, Inc. (2012) 212 Cal.App.4th 258, 272.)

The initial investigation into the incident was completed after one day and resulted in no penalty to Guzman, he was simply transferred back to his original post at the main jail rather than continuing as a training officer. Defendants’ own evidence establishes that this transfer was not a demotion and that there was no reduction in pay. (See Declaration of Dalia Rodriguez in support of motion.) While Defendants also state that there was a second, internal affairs, investigation they have not submitted any evidence directly establishing that this second investigation concluded and made any findings regarding Guzman’s conduct, or reprimanded or penalized him in any fashion. Defendant Guzman testified at deposition (Plaintiff’s exhibit 15 at p. 27:8-28:12) that approximately a year after being transferred back to the main jail he was again made a training officer. Accordingly the County has not established that the Labor Code §3602(b)(1) exception to the exclusivity rule does not apply here because it has not established through evidence that there was no implied ratification of the conduct.