Judge: Mel Red Recana, Case: 19STCV14406, Date: 2024-04-11 Tentative Ruling

All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.

Case Number: 19STCV14406    Hearing Date: April 11, 2024    Dept: 45

Superior Court of California 

County of Los Angeles 

Hearing Date:             April 11, 2024

Moving Party:             Plaintiff Jose Villagomez

Responding Party:      Lien Claimant Oak River Insurance Company

Motion to Expunge Lien 

The court considered the moving, opposition, and reply papers.

The Motion to Expunge Lien filed by Plaintiff Jose Villagomez is DENIED.

Background

This is a toxic tort action.  On April 25, 2019, Jose Villagomez (“Plaintiff”) filed this action against Does 1 through 100, alleging five causes of action for (1) Negligence; (2) Strict Liability – Failure to Warn; (3) Strict Liability – Design Defect; (4) Fraudulent Concealment; and (5) Breach of Implied Warranties.

The Complaint alleges the following: Plaintiff worked for Sierra Painting Company for the past 25 years as a painter in the industrial, commercial, and residential sectors.  (Complaint ¶ 4.)  The chemical products that Plaintiff worked with contained significant concentrations of benzene and other hemotoxic and carcinogenic toxic chemicals.  (Id. at ¶ 7.)  Plaintiff was exposed to toxicologically significant levels of these chemicals.  (Id.)  As a result, Plaintiff sustained serious injuries to his internal organs, including leukemia, which he was first diagnosed with on June 20, 2017.  (Id. at ¶¶ 7-8.)  Defendants fraudulently concealed the toxic hazards of their products from Plaintiff, the hazards of the conditions under which Plaintiff worked, that Plaintiff was being exposed to toxic chemicals from Defendants’ products, and the cause of Plaintiff’s injuries.  (Id. at ¶ 13.)

On September 27, 2019, Plaintiff filed Amendments to the Complaint substituting defendants Masco Corporation and PPG Industries, Inc. for Doe 1 and Doe 2, respectively. 

On December 10, 2019, Plaintiff filed Amendments to the Complaint substituting defendants DAP Products, Inc., Dunn-Edwards Corporation, Masterchem Industries LLC, Old Master, Rust-Oleum Corporation, Sunnyside Corporation, The Sherwin Williams Company, The Sherwin Williams Company dba Krylon Products Group, The Sherwin Williams Company dba McCloskey, The Sherwin Williams Company dba Minwax, Weiman Products, LLC, and W.M. Barr & Company, Inc. for, Doe 3, Doe 4, Doe 5, Doe 6, Doe 7, Doe 8, Doe 9, Doe 10, Doe 11, Doe 12, Doe 13, and Doe 14, respectively.

On March 18, 2020, Oak River Insurance Company (“Oak River”), the workers compensation carrier for Plaintiff’s employer, Sierra Painting Company, filed a notice of lien, pursuant to California Labor Code sections 3852 to 2868, upon any settlement or judgment rendered in favor of Plaintiffs in the amount of $23,526.14 for workers’ compensation benefits paid to and on behalf of Plaintiff to date, plus interest according to law, plus any amount for which payments or obligations for payment arise prior to Satisfaction of Judgment.  (Notice of Lien 3/18/20.)

After settling with all Defendants, Plaintiff filed the instant motion on December 8, 2023, to expunge lien asserted by Oak River.

Oak River filed its opposition on April 2, 2024, and Plaintiff filed his reply on the same day. 

Legal Standard

Labor Code sections 3852, 3859, 3860, and 3862 all deal with a situation in which an employee is injured at work, and therefore receives worker’s compensation, but asserts a claim for damages against a third party—rather than the employer—for causing the injury.  (For purposes of the following statutes, “employer” is defined to include a worker’s compensation insurer. See Lab. Code § 3850(b).) 

Pursuant to Lab. Code § 3852:

The claim of an employee . . . for compensation does not affect his or her claim or right of action for all damages proximately resulting from the injury or death against any person other than the employer. Any employer who pays, or becomes obligated to pay compensation, . . . may likewise make a claim or bring an action against the third person. In the latter event the employer may recover in the same suit . . . the total amount of compensation . . . paid to the employee or to his or her dependents.

Pursuant to Lab. Code § 3859(b):

Notwithstanding anything to the contrary contained in this chapter, an employee may settle and release any claim he may have against a third party without the consent of the employer. Such settlement or release shall be subject to the employer's right to proceed to recover compensation he has paid in accordance with Section 3852.

Pursuant to Lab. Code § 3860:

(a) No release or settlement under this chapter, with or without suit, is valid or binding as to any party thereto without notice to both the employer and the employee, with opportunity to the employer to recover the amount of compensation he has paid or become obligated to pay and any special damages to which he may be entitled under Section 3852, and opportunity to the employee to recover all damages he has suffered and with provision for determination of expenses and attorney's fees as herein provided.

(b) Except as provided in Section 3859, the entire amount of such settlement, with or without suit, is subject to the employer's full claim for reimbursement for compensation he has paid or become obligated to pay and any special damages to which he may be entitled under Section 3852, together with expenses and attorney fees, if any, subject to the limitations in this section set forth.

Pursuant to Lab. Code § 3862:

Any employer entitled to and who has been allowed and has perfected a lien upon the judgment or award in favor of an employee against any third party for damages occasioned to the same employer by payment of compensation, expenses of medical treatment, and any other charges under this act, may enforce payment of the lien against the third party, or, in case the damages recovered by the employee have been paid to the employee, against the employee to the extent of the lien, in the manner provided for enforcement of money judgments generally.

Discussion

Plaintiff moves pursuant to Labor Code section 3852 for an order expunging the lien asserted by Oak River. 

Plaintiff contends Oak River’s lien for $23,526.14 should be expunged because no medical treatment or “benefits” were conferred upon Plaintiff since (1) Plaintiff’s employer required him to submit to medical evaluation, not treatment, and (2) the lien asserted by Oak River is for the expenses incurred in litigating Plaintiff’s worker’s compensation, thus not paid to Plaintiff as “compensation.” (Motion, pp. 4-5.)

In opposition, Oak River contends that Plaintiff has failed to provide notice of settlement per California Labor Code section 3860, which requires notice of settlement be given to the employer/workers compensation carrier.  Further, because Plaintiff failed to provide notice of settlement, Oak River was deprived of the right to pursue its credit rights per California Labor Code section 3861.  (Opposition, pp. 6-7.) 

In reply, Plaintiff asserts the opposition is untimely, and, as a workers’ compensation insurer, Oak River cannot recover anything on its lien since it did not file a complaint in intervention in this case.  (Reply, pp. 2-3.)  Plaintiff cites Aetna Casualty & Surety Co. v. Superior Court (1993) 20 Cal.App.4th 1502 (“Aetna”) and the case explaining Aetna, American Home Assurance Co. v. Hagadorn (1996) 48 Cal.App.4th 1898 (“Hagadorn”), to support the latter argument.  (Id.)

Here, as a preliminary matter, the Court finds that Oak River’s opposition is late.  Code of Civil Procedure section 1005, subdivision (b) requires oppositions to be filed nine court days before the hearing.  Oak River filed its opposition on April 2, 2024, less than nine court days before the hearing date of April 11, 2024. 

The Court also finds that the Labor Code section cited by Plaintiff does not provide for an expungement of the lien.  Plaintiff moves pursuant to Labor Code section 3852.  This section provides where an employee brings an action for damages proximately caused by a third person, an employer who pays or becomes obligated to pay compensation, or salary in lieu of compensation, may likewise make a claim or bring an action against the third person.  (Lab. Code, § 3852.)  “[T]he employer may recover in the same suit, in addition to the total amount of compensation, damages for which he or she was liable including all salary, wage, pension, or other emolument paid to the employee or to his or her dependents.”  (Id.)  This section does not provide for an expungement of the lien as requested by Plaintiff.  Further, while Plaintiff contends that Oak River was obligated to file a complaint in intervention to protect its subrogation rights, citing Aetna and Hagadorn in support, Plaintiff raised such argument for the first time in his reply thus leaving no opportunity for Oak River to respond in its opposition. 

Based on the foregoing, Plaintiff’s motion is DENIED.

It is so ordered.

Dated: April 11, 2024

_______________________

ROLF M. TREU

                                                                                         Judge of the Superior Court