SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background  

Plaintiffs Rosa Vargas and Enrique Vargas Ortiz (“Plaintiffs”) filed this action against Defendants Lebleuchateau dba Burbank Senior Villa West (“LBC”), Burbank Senior Villa West, Trion Solutions Inc. (“Trion”), Kornland Building, and Paul Lawrence Dunbar Haney IV (“Haney”) for wrongful death (Labor Code §3601) and premises liability.  

Plaintiffs, the parents of Decedent Moncerrat Vargas (“Decedent”), allege Decedent was an employee of LBC/Trion, wherein Decedent was stabbed by Haney, who had been terminated from his employment with the same employers, when Decedent arrived for her shift at work on July 30, 2021. Plaintiffs allege Decedent’s employers were aware of Haney’s threat of violence against Decedent and failed to protect Decedent from Haney.  

At this time, Defendant LBC dba as Burbank Senior Villa West, erroneously sued as a separately named defendant, moves for judgment on the pleadings arguing that the wrongful death and premises liability claims against it is barred by the workers’ compensation exclusive remedy rule under Labor Code section 3601, et seq. Defendant Trion joins LBC’s motion. 

 

(b) An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances: 

(1) Where the employee's injury or death is proximately caused by a willful physical assault by the employer. 

 

(2) Where 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. The burden of proof respecting apportionment of damages between the injury and any subsequent aggravation thereof is upon the employer. 

 

(3) Where the employee's injury or death is 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. 

 

(c) In 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 had not been enacted. 

(Labor Code § 3602, subd. (b) and (c).)  

Here, the complaint alleges in pertinent part the following: 

 

24. […]. Specifically, Defendants CHATEAU, BURBANK, TRION, and/or DOES 11 through 50, inclusive, managed, ran, maintained, operated, and/or otherwise controlled a nursing home facility at the SUBJECT PREMISES. 

 

26. Plaintiffs are informed and believe, and thereon allege, that Defendant HANEY was 

employed by Defendants CHATEAU, BURBANK, TRION, and/or DOES 11 through 50, inclusive, from approximately March 2021 up until approximately June 29, 2021, where he worked as a dishwasher at the SUBJECT PREMISES. 

 

27. Plaintiffs are informed and believe, and thereon allege, that at all times relevant herein, 

Decedent was an employee of Defendants CHATEAU, BURBANK, TRION and/or DOES 11 through 50, inclusive, where she worked as a Human Resources Manager at the SUBJECT PREMISES. 

 

29. This is a wrongful death action arising from an incident that occurred on July 30, 2021 at 

approximately 8:00 a.m. at the SUBJECT PREMISES. 

 

35. On or around June 25, 2021, Decedent provided Defendant HANEY with a Disciplinary 

Warning Notice and placed Defendant HANEY on a three-day suspension for misconduct and for being uncooperative. While speaking with Defendant HANEY, Decedent was accompanied by the Maintenance Director for Defendants CHATEAU, BURBANK, TRION, and/or DOES 11 through 50, inclusive, in case Defendant HANEY became aggressive. Defendant HANEY yelled at the Maintenance Director during this conversation. 

 

36. On or around June 28, 2021, Defendant HANEY returned from suspension and was 

terminated from employment. Decedent and FRANKLIN conducted the termination. During the termination and exit interview, Defendant HANEY was angry and swore multiple times. 

 

37. On or around July 2, 2021, Defendant HANEY sent a text message to FRANKLIN stating, 

among other things, that “[Decedent] is lucky I didn’t stab her”. FRANKLIN notified other persons 

working for Defendants CHATEAU, BURBANK, TRION, and/or DOES 11 through 50, inclusive, about this text message. […] 

 

38. At all times relevant herein, it was the policy of Defendants CHATEAU, BURBANK, 

TRION and/or DOES 11 through 50, inclusive, to call the police if a threat of violence is made by one employee against another. 

 

41. At some point after July 2, 2021, BERCOVICH advised ZENOU of the text message and 

stated that he had consulted with an attorney as to whether there was anything that Defendants CHATEAU, BURBANK, TRION, and/or DOES 11 through 50, inclusive, should do, such as to alert authorities. Upon information and belief, and thereon alleged, BERCOVICH was advised that there was really nothing the police could do, although BERCOVICH did tell ROMERO and Decedent they could try calling the police if they wanted. 

 

43. Upon information and belief, and thereon alleged, Defendants CHATEAU, BURBANK, 

TRION, and/or DOES 11 through 50, inclusive, did not change any business practice to ensure the safety of Decedent against these serious threats of violence by Defendant HANEY, such as but not limited to: 

 

a. hiring any security to patrol the SUBJECT PREMISES; 

b. providing any extra support to Decedent to ensure she did not enter or exit the SUBJECT 

PREMISES alone; 

c. providing Decedent with any other work accommodations such as telling Decedent to 

work from home; 

d. alerting any authorities about the serious threats of violence and to prevent Defendant 

HANEY from being around the area of the SUBJECT PREMISES 

 

(Compl. at ¶¶ 24, 26, 27, 29, 35-38, 41, 43.) 

The complaint alleges that on or around July 30, 2021, Haney hid in some bushes at Earthwalk Park for Decedent to arrive for her shift at the subject premises. Decedent arrived at the premises and walked towards the patio area through the gate closest to the building when Haney hopped the fence, and stabbed Decedent multiple times. (Id. at ¶¶ 45-50). Decedent passed away as a result of her injuries, and Haney was charged with murder. (Id. at ¶ 51 and ¶ 53.) Plaintiffs allege Defendants were responsible for Decedent’s death, and that as a direct and proximate result of Defendants’ conduct, Plaintiffs lost the love, companionship, and support of their daughter. (Id. at ¶¶ 54-55). Plaintiffs further allege that under California Labor Code section 3601(a), employers can be held liable as joint participants if there is evidence of ratification of the conduct of the aggressor employee, and that Defendants ratified Haney’s conduct by engaging in the following affirmative acts: 

 

a. Defendants CHATEAU, BURBANK, TRION, and/or DOES 11 through 50, inclusive 

knew that Defendant HANEY wanted to stab Decedent over three (3) weeks before the 

incident ultimately occurred; 

 

b. Defendants CHATEAU, BURBANK, TRION, and/or DOES 11 through 50, inclusive, 

had a policy to call the police whenever a threat of violence was made by one employee 

against another; 

 

c. Defendants CHATEAU, BURBANK, TRION, and/or DOES 11 through 50, inclusive, 

discussed whether this policy needed to be followed in this instance and determined 

not to follow the policy; 

 

Defendant HANEY from being around the area of the SUBJECT PREMISES. 

(Id. at ¶¶ 57-58, 64) 

Generally injuries arising from ordinary employer conduct, even that which intentionally, knowingly, or recklessly harms an employee, is still subject to the exclusive remedies provided by the workers' compensation system. (Arendell v. Auto Parts Club, Inc. (1994) 29 Cal. App. 4th 1261.) In Arendell, the store employees filed a tort action against Auto Parts Club, asserting causes of action for negligence, premise liability, and “serious and willful misconduct and reckless disregard” for failing to provide adequate premises security, resulting in their being bound, gagged, threatened, and robbed. However, the store employees did not allege intentional conduct on part of store, which might have brought store beyond boundaries of workers' compensation bargain. The Arendell Court reiterated the applicable law set forth in Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, wherein the Supreme Court described a tripartite system classifying injuries arising in the course of employment:  

 

“First, there are injuries caused by employer negligence or without employer fault that are compensated at the normal rate under the workers' compensation system.” (citations.) These injuries are subject to workers' compensation exclusivity.  

 

“Second, there are injuries caused by ordinary employer conduct that intentionally, knowingly or recklessly harms an employee, for which the employee may be entitled to extra compensation under [Labor Code] section 4553.” (Ibid.) These also are subject to workers' compensation exclusivity, but the employee is entitled to a 50 percent increase in compensation if the injury results from the employer's “serious and willful misconduct.” (Lab.Code, § 4553.)  

 

“Third, there are certain types of intentional employer conduct which bring the employer beyond the boundaries of the compensation bargain, for which a civil action may be brought.” (citations, emphasis added in original.) Intentional conduct is beyond the compensation bargain if it could not be considered a normal risk of employment or is contrary to fundamental public policy. (citations.) 

(Arendell, supra, 29 Cal. App. at 1264.) 

When the alleged intentional misconduct does not go beyond failure to assure a safe working environment, workers' compensation is the exclusive remedy for injuries suffered by an employee; only intentional employer misconduct is exempt from the exclusivity provisions. Thus, in order to bring a separate tort action, it must be alleged and proved that the employer acted deliberately with the specific intent to injure the employee. (Arendell, supra, 29 Cal. App. 4th at 1265; see also Roberts v. Pup 'N' Taco Driveup (1984) 160 Cal. App. 3d 278.)  

Plaintiffs cite to Hart v. Nat'l Mortg. & Land Co. (1987) 189 Cal. App. 3d 1420, arguing that the employer can be said to have ratified the tortfeasor employee’s tortious conduct and became a joint participant in it because the plaintiff allegedly reported the act to a supervisor. However, the facts of Hart are not applicable to the present case. In Hart, the Court held that the plaintiff may state a cause of action by alleging the employer was aware of the employee’s act of jumping, grabbing, and pinching the plaintiff, and the act of the employer of doing nothing to discipline the employee for those acts may fall under the doctrine for ratification for the exclusivity doctrine to not apply. Here, the complaint alleges Haney was reported by employees of Defendants to have been observed throwing objects around the kitchen, throwing a chair across the room, and singing and screaming loudly with no music playing. (Compl. at ¶ 33.) Haney was then provided a disciplinary warning notice, placed on a three-day suspension for misconduct and being uncooperative, and ultimately terminated from his employment. (Id. at ¶¶ 35-36.) Plaintiffs argue that LBC “allowed and even encouraged Defendant HANEY to act on his violent threats” by concealing a threat to Decedent’s life. (Opp. lines 2-7.) However, there are no allegations of any encouragement by LBC to ratify Haney’s conduct, nor any concealment of the text message threat when the complaint alleges that “BERCOVICH did tell ROMERO and Decedent they could try calling the police if they wanted.” (Id. at ¶41.) The complaint essentially alleges LBC failed to provide adequate premises security and failed to report the text message threat to the police, in direct contravention to LBC’s own policies and procedures. However, unlike the facts presented in Hart, LBC is alleged to have disciplined Haney, and there are no allegations that would constitute ratification of Haney’s subsequent murder of Decedent after Haney’s termination.   

Plaintiffs do not allege any intentional conduct by LBC with the specific intent to injure Decedent. An intentional tort is one in which the actor “desires to cause consequences of his act” or “believes that the consequences are substantially certain to result from it.” (Rest.2d Torts, § 8A.) Rather, Plaintiffs allege that LBC failed to protect Decedent from Haney’s action by failing to provide security for the subject premises and failing to call the police regarding Haney’s threat of violence. The complaint alleges negligence, and at most recklessness, for failure to protect Decedent from the tortious acts of a former employee, but do not allege a desire by LBC to cause injurious consequences to Decedent. In line with the rationale set forth in Arendell, “An employer's failure to take adequate security measures despite a known risk of harm may be reprehensible, justifying a 50 percent penalty under the workers' compensation law for serious and willful misconduct (Labor Code § 4553), but it invokes no fundamental public policy that we can discern.” (Id. at 1266.) Subdivision (c) of § 3601 insulates the employer from common law vicarious liability to an employee for the acts of another employee. (Iverson v. Atlas Pac. Eng'g (1983) 143 Cal. App. 3d 219, 227.) The rationale is reiterated in Fretland v. Cnty. of Humboldt (1999) 69 Cal. App. 4th 1478, in which the plaintiff’s claims against his employer arising from assault and battery by another employee was barred by the exclusive remedy provisions of the workers’ compensation law. The Fretland court rejected plaintiff’s argument that the assault by a co-employee was imputed to the employer pursuant to the doctrine of respondeat superior, holding that the doctrine of respondeat superior cannot be used to extend section 3602, subdivision (b)(1) exception to exclusivity to an employer. (Id. at 1486.) The court reasoned that “liability under section 3602, subdivision (b)(1), must be based on positive misconduct by the employer and not on a theory of vicarious liability such as that which forms the basis of the doctrine of respondeat superior.” (Id. 1487.)  

As LBC points out, Section 3601, subdivision (a)(1) would permit a cause of action against an employee for assault and battery, but it does not authorize a private action against an employer based on another employee’s willful and unprovoked physical act of aggression. (Ibid.) Plaintiff alleges no positive misconduct by LBC, as the employer of Decedent, to be exempt from the exclusivity rule. "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." (Rakestraw v. Rodrigues (1972) 8 Cal. 3d 67, 73.) Ultimately, LBC’s knowledge of Haney’s text message threat of violence against Decedent, and the alleged failure to provide workplace safety resulting therefrom, still falls within the statutory scheme contemplated by the Workers Compensation Act. (Cole v. Fair Oaks Fire Prot. Dist. (1987) 43 Cal. 3d 148, 159 [“Since awareness of the danger by the employer is not a basis for liability for damages, it follows that reckless disregard of the probability of injury should not warrant exemption from the exclusive remedy provisions of the Labor Code.”].) Iverson v. Atlas Pac. Eng'g (1983) 143 Cal. App. 3d 219 made clear that the ratification by the employer must be a positive act on the part of the employer. (Id. at 228.) Under this theory, the employer is directly liable to the employee “for its own acts” of ratification. (Id. [characterizing the ratifying employer as a “joint participant”.) The inaction of LBC to report is not the same as the “ratification” of an ongoing unsafe workplace condition by an employer that provides for direct employer liability for the tort committed.  

Based on the foregoing, Plaintiffs’ claims against Decedent’s employers are barred by workers’ compensation exclusive remedy rule.  

The burden is on Plaintiffs to show in what manner they can amend the complaint, and how that amendment will change the legal effect of the pleading.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Plaintiffs contend that they can cure any defect to the complaint, and request leave to amend. Under the general policy of liberality toward amendment of pleadings, LBC’s motion for judgment on the pleadings is GRANTED with 20 days leave to amend.  

 

Moving party is ordered to give notice.   

 

PLEASE TAKE NOTICE: 

Dated this 19th day of January 2024