Judge Salvatore Sirna, Case 20STCV01287 2022-12-07 Tentative Ruling

Judge: Salvatore Sirna, Case: 20STCV01287, Date: 2022-12-07 Tentative Ruling

Case Number: 20STCV01287 Hearing Date: December 7, 2022 Dept: A

Defendant M. Lehmann Enterprises, Inc.’s Motion for Summary Judgment/Adjudication

Respondent: Plaintiffs Linda Sanchez and Francisco Sanchez

TENTATIVE RULING

Defendant M. Lehmann Enterprises, Inc.’s Motion for Summary Judgment/Adjudication is GRANTED.

BACKGROUND

This is a wrongful death action. Daniel Sanchez (Daniel) and Rafael Sanchez (Rafael) were both employees of Defendant M. Lehmann Enterprises, Inc., doing business as Domino’s Pizza. On March 10, 2018, Daniel and Rafael were working at Defendant’s store location in La Puente when Rafael came up behind Daniel and stabbed Daniel with a knife. Daniel denied shortly afterwards while Rafael was arrested and subsequently convicted of first-degree murder.

On January 10, 2020, Daniel’s parents, Linda Sanchez and Francisco Sanchez (collectively, Plaintiffs), filed a complaint, individually as successors-in-interest, against Defendant M. Lehmann Enterprises, Inc., Defendant Rafael Sanchez, and Does 1-20, alleging (1) employer’s willful physical assault pursuant to Labor Code section 3602, subdivision (b)(1) and (2) wrongful death. On April 3, 2020, Defendant M. Lehmann Enterprises, Inc. filed a cross-complaint against Rafael and Roes 1-10, alleging (1) equitable indemnity, (2) implied indemnity, (3) contribution and apportionment of fault, and (4) declaratory relief.

On August 6, 2021, Plaintiffs filed a First Amended Complaint (FAC) against the same defendants, alleging the following causes of action: (1) employer’s willful physical assault pursuant to Labor Code section 3602, subdivision (b)(1); (2) wrongful death; (3) negligent hiring, training, and retention; (4) premises liability; (5) negligence; and (6) survival.

On September 14, 2022, Defendant filed the present motion for summary judgment or adjudication. A hearing on the motion is set for December 7, 2022. A final status conference is also set for January 17, 2023 and a jury trial is set for January 31.

EVIDENTIARY OBJECTIONS

Defendant and moving party submitted eight (8) objections to Plaintiffs’ evidence. The court OVERRULES objections 1, 2, and 8. The court SUSTAINS objections 3, 4, 5, 6, and 7.

ANALYSIS

Defendant moves for summary judgment on grounds that worker’s compensation is the sole remedy for Plaintiffs. For the following reasons, the court GRANTS Defendant’s motion.

Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119, quoting Code Civ. Proc., § 437c, subd. (c).) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues[;] the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, quoting FPI Development, Inc. v. Nakashima (1991) 231 Cal. App.3d 367, 381-382.)

“A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on¿the¿cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) Then, “the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to¿the¿cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).) To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Workers’ Compensation

Defendant argues workers’ compensation statutes apply and provide an exclusive remedy that bars the present action. The court agrees.

When an employee is covered by workers’ compensation pursuant to Labor Code section 3600, it is the sole and exclusive remedy. (Collins v. Union Pacific Railroad Co. (2012) 207 Cal.App.4th 867, 876, citing Labor Code, § 3602.) Workers’ compensation imposes liability “against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death.” (Labor Code, § 3600, subd. (a).) “The phrase ‘arising out of’ refers to the origin or cause of the injury, while the phrase ‘in the course of employment’ refers to the time and place of the injury.” (Wright v. State of California (2015) 233 Cal.App.4th 1218, 1229.) “To be within the scope of employment, the incident giving rise to the injury must be an outgrowth of the employment, the risk of injury must be inherent in the workplace, or typical of or broadly incidental to the employer's enterprise.” (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1008 (Torres).)

Here, there is no dispute of material fact that Daniel was stabbed by Rafael, who was Daniel’s coworker and an employee of Defendant. (Plaintiffs’ Separate Statement of Undisputed Material Facts (PSSUMF), ¶ 5.) There is also no dispute of material fact that Daniel was stabbed while working at Defendant’s La Puente location. (Plaintiffs’ SSUMF, ¶ 5, 108-109.) With regards to whether Rafael’s actions were with the scope of employment, “an employee's willful acts, including aggressive physical acts, may be considered within the scope of employment.” (Id., at p. 1009.)

Plaintiffs rely on Torres and Labor Code section 3601, subdivision (a)(1) to argue that an employer can be held liable for intentional acts of a coworker. However, this argument fails because Labor Code section 3601, subdivision (a)(1) only allows an employee to bring a civil action against fellow employees. Furthermore, subdivision (b) explicitly prohibits employers from being held directly or indirectly liable in such actions.

Next, Plaintiffs argue their suit is excepted from workers’ compensation requirements pursuant to Labor Code section 3602, subdivision (b)(1). This section allows civil suits against employers “where the employee’s injury or death is proximately caused by a willful physical assault by the employer.” (Labor Code, § 3602, subd. (b)(1).) While there is no evidence that Defendant willfully physically assaulted Daniel, Plaintiffs argue Defendant can be held liable as a joint participant in Rafael’s assault of Daniel through ratification. (See Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489-1490 (Fretland).) An agent’s act may be ratified expressly or “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.” (Id., at p. 1490-1491, quoting Rakestraw v. Rodriguez (1972) 8 Cal.3d 67, 73.)

In order for a principal to ratify an agent’s conduct, the principal must have actual knowledge of the conduct first. (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 168.) For example, in Hart v. National Mortgage & Land Co. (1987) 189 Cal.App.3d 1420 (Hart), the court noted the plaintiff may be able to state a cause of action for assault and battery against an employer where the employer was aware of a supervisor’s ongoing assaults and batteries against plaintiff and did nothing. (Id., at p. 1432.) In C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, the court held plaintiff successfully pled defendant ratified an agent’s sexual misconduct where defendant was aware agent was committing sexual assaults, refused to take action, and actively concealed the assaults. (Id., at p. 1112.)

Here, Plaintiffs argue Defendant’s knowledge of Rafael’s past misbehavior can establish Defendant ratified Rafael’s actions. Plaintiffs point to evidence that managers were aware Rafael brought knives to work (PSSUMF, ¶ 12-14), made staff uncomfortable (PSSUMF, ¶ 32-33, 48-49, 95), and had anger problems (PSSUMF, ¶ 42-43, 61-63, 96). However, there are only two instances where Rafael got into physical altercations or came close. In November 2017, Rafael shoved another delivery driver. (PSSUMF, ¶ 24.) Management was made aware and investigated but determined Rafael’s actions were accidental. (PSSUMF, ¶ 72.) Shortly afterwards in December 2017, Rafael was transferred from that location to the La Puente location. (PSSUMF, ¶ 81.) The second incident occurred at the La Puente location within a few weeks of the stabbing in which Rafael became angry and threw pizza boxes at an assistant manager. (PSSUMF, ¶ 98.) However, unlike the first incident, Plaintiffs provided no evidence that management was made aware.

Ultimately, the court finds these instances are insufficient to establish that Defendant ratified Rafael’s physical attack and stabbing of Daniel. Ratification occurs when an employer “subsequently ratifie[s] an originally unauthorized tort” by “fail[ing] to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169.) There is no evidence that Defendant subsequently ratified Rafael’s attack on Daniel. There is also no evidence Rafael had any history of violently attacking coworkers with weapons of which Defendant could have been made aware and ratified. Thus, Labor Code section 3602, subdivision (b)(1) does not remove Plaintiffs’ claims from coverage by workers’ compensation.

Lastly, Plaintiffs suggest their claims for negligent hiring, supervision, and retention are not precluded by workers’ compensation because Defendant’s actions fell outside the workers’ compensation bargain. In doing so, Plaintiffs point the court to four cases including Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701 (Fermino); Hart, supra, 189 Cal.App.3d 1420; Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258 (Ventura); and Jane IL Doe v. Brightstar Residential Inc. (2002) 76 Cal.App.5th 171 (Brightstar).)

However, the cases cited by Plaintiff deal with employers committing intentional torts or ratifying the torts of employees. (Fermino, supra, 7 Cal.4th at p. 723 [employer’s false imprisonment of employees]; Hart, supra, 189 Cal.App.3d at p. 1430 [employer ratified employee’s torts of battery and assault]. The other cases are inapposite. In Ventura, the court did not apply workers compensation to claims of negligent hiring and supervision because defendants failed to raise it. (Ventura, supra, 212 Cal.App.4th at p. 265.) Here, this issue provides the primary justification for Defendant’s summary judgment motion. Furthermore, Brightstar did not deal with injuries arising from the workplace and was a personal injury action against an adult care facility by one of its residents. (Brightstar, supra, 76 Cal.App.5th at p. 173.)

In fact, authorities suggest the opposite. In Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, the court noted in dicta that an employee’s suit for negligent or improper supervision would be barred by workers’ compensation. (Id., at p. 1606; see also Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 316; Hine v. Dittrich (1991) 228 Cal.App.3d 59, 63 & fn.4.)

Thus, Defendant M. Lehmann Enterprises, Inc. established that workers’ compensation provides the exclusive remedy for Plaintiffs’ claims and Plaintiffs have failed to establish any exception to this exclusivity. Furthermore, the court finds there is no evidence establishing Defendant ratified Rafael’s attack on Daniel.

CONCLUSION

Accordingly, Defendant’s motion for summary judgment is GRANTED.