SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

1. Background 

Plaintiff, Adela Escamilla, filed a complaint against Defendant Donna W. Scott (“Defendant”) asserting causes of action for premises liability and negligence. Plaintiff alleges that on July 18, 2020, she was a housekeeper at the premises. (Compl. page 5.) While Plaintiff was walking to the laundry room using the side door of the house due to work being done inside, Plaintiff slipped and fell on something on the ground. (Compl. page 4.)  

At this time, Defendant moves for summary judgment.  Plaintiff opposes the motion, and Defendant filed a reply.     

 

2. Judicial Notice 

Defendant requests judicial notice be taken of (1) Plaintiff’s applications for adjudication of claim with the Workers’ Compensation Appeals Board (“WCAB”) on December 9, 2019 and March 11, 2022; (2) Plaintiff’s Complaint; (3) Defendant’s Answer; and (4) Defendant’s Substitution of Attorney. The requests are granted to the extent that the court may take judicial notice of the existence of the documents, but not to the truth of the matters asserted in the documents. (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.) 

Plaintiff requests judicial notice to be taken of Defendant’s Answer. For the same reasons as above, the request is granted.  

 

3. Motion for Summary Judgment 

a. Moving Argument  

Defendant provides the subject incident occurred on July 18, 2019, when Plaintiff fell on Defendant’s residential property during the course and scope of her employment for Defendant as a housekeeper. Defendant avers that Plaintiff filed two claims with WCAB related to the incident prior to filing a civil action against Defendant. Defendant contends that Plaintiff’s civil action is barred by the workers’ compensation exclusivity rule, because at the time of the alleged injury, Plaintiff was Defendant’s employee and Defendant had workers’ compensation insurance through Defendant’s Homeowner’s Insurance Policy with AIG. Therefore, Defendant avers that Plaintiff’s causes of action for negligence and premises liability are barred by the Labor Code exclusive remedy rule.  

 

b. Opposing Argument 

Plaintiff argues Defendant waived her right to assert the workers’ compensation exclusive remedy rule because Defendant failed to plead it as an affirmative defense in Defendant’s Answer to Plaintiff’s Complaint. Therefore, Plaintiff contends that Defendant’s motion must be denied solely on this ground.  

 

c. Reply Argument 

Defendant contends that Plaintiff’s Complaint contains allegations that provide an exception to the general rule that Defendant must plead the workers’ compensation exclusive remedy rule as an affirmative defense, because Plaintiff’s allegations evidence an employer-employee relationship between the parties. Furthermore, Defendant avers that Plaintiff did not dispute any Defendant’s undisputed material facts (“UMF”) in Defendant’s separate statement to the motion, and therefore concedes that there was an employer-employee relationship.  

 

d. Burdens on Summary Judgment 

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Code Civ. Proc. §437c(c).)  Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.”  (Id. at §437c(o)(2).)  A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.  (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)  Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”  (Ibid.)   

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 defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action.  (Id. at §437c(p).)  A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66, 

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.)  Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.)  In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.) 

 

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)  

(Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.) 

 

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action.  (Id. at §437c(p)(2).)  On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.  (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) 

 

d. Analysis: Workers’ Compensation as the Exclusive Remedy 

“ ‘The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury.  [Citation.] The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.’ [Citation.]”  (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)  As in any negligence action, whether a duty was owed under the facts is a question of law for the court.  (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.)   

The Workers Compensation Act (“WCA”) governs compensation to employees for injuries incurred in the course and scope of their employment. (See Cal. Const., art. XIV, § 4; Cal. Labor Code, § 3201; Charles J. Vacanti, M.D., Inc. v. State Compensation Insurance Fund (2001) 24 Cal.4th 800, 810.) Compensation under the WCA is an employee’s exclusive remedy against an employer for injuries sustained out of and in the course of employment. (See Cal. Labor Code, §§ 3600(a), 3602(a).) Whether exclusivity bars a cause of action against an employer depends on whether the alleged injury falls within the scope of the exclusive remedy provisions. (See Charles J. Vacanti, M.D., Inc., supra, 24 Cal.4th at 811.) The exclusive remedy provisions apply only in cases of industrial personal injury or death. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.) The exclusive remedy provisions do not apply where the dual capacity doctrine applies. (See id.) The dual capacity doctrine applies where the injury stems from an employer-employee relationship that is distinct and invokes a different set of obligations than the employer’s usual duties to its employee. (See id.; Cole v. Fair Oaks Fire Protection District (1987) 43 Cal.3d 148, 161-62.) Causes of action predicated upon an injury that is collateral to or derivative of an injury compensable by the exclusive remedies of the WCA may be subject to the exclusivity bar. (Id.) “While common law tort claims are generally preempted [citation], claims for separate injuries under distinct statutory schemes are not.” (Veguez v. Governing Board of Long Beach Unified School District (2005) 127 Cal.App.4th 406, 418.)¿¿ 

Ordinarily, an employee's rights against his or her employer for on-the-job injuries lie solely under the workers' compensation law.  When the “conditions of compensation” are present (Lab.C. § 3600), the employer is immune from civil damages liability because workers' compensation is the injured employee's “exclusive remedy.”  (Lab.C. §§ 3600, 3601, 3602(a).)  “[T]he whole theory of the Workmen's Compensation Act is to put a burden in limited amounts upon employers for all industrially caused injuries and deaths regardless of fault, and concomitantly to take from employees ... the right of recovering any greater amounts even though the injury ... is tortiously caused by the employer. It is inherent in this system that the statutory recovery, whatever it may be, shall be allowed in every case to which the statute makes it applicable, and apparent hardship in individual cases to either employer, employee, or dependents ... must be disregarded in view of the social desirability of the system as a whole.”  (Blew v. Horner (1986) 187 Cal.App.3d 1380, 1389.)  

An exception to the exclusivity rule is provided in California Labor Code, section 3706, which states, “if an employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages, as if this division did not apply.”  (California Labor Code, section 3706.)  “In a statutory action under section 3706, it is the 'plaintiff's obligation to plead and prove violation of section 3700 by his [defendant employer's] failure to carry workers' compensation insurance.”'  (Campos Food Fair v. Superior Court (1987) 193 Cal.App.3d 965, 968.)  Subject to certain exceptions, employees may not sue their employers or coworkers for injuries suffered in a workplace as they were limited to the exclusive remedies of the Workers’ Compensation system. (See Lab. Code, §§ 3601, 3602.) An employee may maintain a tort action against his or her employer for workplace injuries resulting from a willful physical assault by the employer. (See id., § 3602(b); Herrick v. Quality Hotels, Inns & Resorts, Inc. (1993) 19 Cal.App.4th 1608, 1617.) An employer generally cannot be held vicariously liable for damages resulting from a coworker’s physical act of aggression, unless the employer ratifies or directs the coworker’s act. (See Herrick, supra, 19 Cal.App.4th at 1618.) 

Plaintiff does not dispute any of Defendant’s material facts contained in the separate statement. Between August 2018 and October 2019, Defendant employed Plaintiff to perform “general housekeeping services” at Defendant’s home located at 23648 Malibu Colony Road, #46, Malibu, CA 90265. (UMF 4.) Between August 2018 and October 2019, Defendant paid Plaintiff $17,860 for general housekeeping services at a rate of $22.50 per hour, and between April 18, 2019 and July 18, 2019, Defendant paid Plaintiff $3,200 for general housekeeping services. (UMFS 5-6.) Plaintiff’s Complaint alleges that slipped and fell at Defendant’s residential property on July 18, 2020. (UMF 7.) On December 9, 2019, Plaintiff’s counsel filed an “Application for Adjudication of Claim” with the Workers’ Compensation Appeals Board, which Plaintiff signed under penalty of perjury, indicating that the date of the alleged “slip and fall” was July 18, 2019. (UMF 8.) On March 11, 2022, Plaintiff’s worker’s compensation counsel filed a second “Application for Adjudication of Claim” with the Workers’ Compensation Appeals Board, which Plaintiff signed under penalty of perjury, indicating that the date of the alleged “slip and fall” occurred on July 18, 2019. (Case No. ADJ12802064.) (UMF 9.) In her Applications with the Workers’ Compensation Appeals Board, Plaintiff claims that the alleged injury she sustained occurred within the course and scope of her employment with Defendant. (UMF 10.) For the time period between May 6, 2019 and May 6, 2020, Defendant was a named insured under a Homeowner’s Insurance Policy issued by AIG Property Casualty Company (Policy No. PCG 0019477934) that contained provisions and coverage for workers’ compensation. (UMF 11.) Plaintiff’s verified written discovery responses to Defendant’s set one of form interrogatories indicate that the slip and fall occurred on July 18, 2019, and Plaintiff provided Plaintiff’s workers’ compensation information. (UMF 12.) 

Therefore, Defendant met her burden of proving Plaintiff was an employee and performing housekeeping work within the course and scope of Plaintiff’s employment at the time of injury. Thus, Plaintiff’s claims for injuries in relation thereto are barred by the workers’ compensation exclusive remedy provisions. Accordingly, the burden shifts to Plaintiff to demonstrate that she may maintain a tort action against Defendant for workplace injuries.  

 

d. Analysis: General Denial and Affirmative Defenses 

Plaintiff’s sole argument is that Defendant waived her right to assert the workers’ compensation exclusive remedy rule because Defendant failed to affirmatively raise it in her Answer.  

Plaintiff relies on Doney v. Tambouratgis, (1979) 23 Cal.3d 91. In Doney, plaintiff sued defendant for assault and battery; nowhere in the complaint was it mentioned or suggested that plaintiff and defendant had an employment relationship, or that the injuries which formed the basis of the action arose out of the course of employment. Therefore, because defendant failed to set forth the affirmative defense of the worker’s compensation exclusive remedy rule, defendant was precluded from later raising it. The California Supreme Court specifically noted that an exception to the general rule of pleading and proof by defendant appears in the situation where the complaint affirmatively alleges facts indicating coverage by the act. In Doney, there were neither direct or indirect allegations indicating the existence of an employment relationship between plaintiff and defendant. Accordingly, it became the responsibility of defendant to plead and prove the conditions of compensation rendering defendant subject to the protections of the act existed.  

Distinguishable from Doney, Plaintiff alleges in her complaint that she “was walking to the laundry room using the side door of the house due to work been done inside when she slipped and fell on something of the ground, causing Plaintiff to sustain bodily injures” (Compl. page 4) and “Plaintiff, ADELA ESCAMILLA, housekeeper at 23648 Malibu Colony Rd., #46, Malibu California 90265, was walking to laundry room when she slipped and fell to the ground, causing her to sustain bodily injuries that required medical attention” (Compl. page 5.) Here, Plaintiff’s allegations suggest the parties had an employment relationship, because Plaintiff was a housekeeper on the premises, and her injuries arose while within the course and scope of her employment as a housekeeper. Accordingly, Defendant falls within the pleading exception, and need not affirmatively raise the worker’s compensation exclusive remedy rule as a defense in Defendant’s Answer. Plaintiff has not provided any specific exceptions to take her outside of the exclusive remedies of the Workers’ Compensation system. Therefore, Plaintiff fails to demonstrate there are any triable issues of material fact to this effect. 

 

4. Conclusion  

Based on the foregoing, Defendant’s motion for summary judgment is granted.