Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEALS from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BC338491, Rolf Treu, Judge.
Dwyer & Biggs, John P. Dwyer and Julian A. Biggs for Plaintiff and Appellant Eugene Duffy.
Loeb & Loeb, Scott M. Lidman; Dreier Stein & Kahan, Fred B. Griffin; Greines, Martin, Stein & Richland, Timothy T. Coates and Lillie Hsu for Defendant and Appellant Technicolor Entertainment Services, Inc.
KITCHING, J.
INTRODUCTION
Defendant Technicolor Entertainment Services, Inc. (Technicolor) appeals from an order denying its motion for judgment notwithstanding the verdict (JNOV) as to causes of action for negligent retention and supervision and for assault brought by plaintiff Eugene Duffy and from the subsequently entered judgment for Duffy. We conclude that Duffy’s injuries sustained as a result of Technicolor’s negligent retention and supervision of Duffy’s coworker assailant did not arise out of and occur in the course of his employment. Therefore the exclusive remedy provision of the Workers Compensation Act (Lab. Code, § 3601, subd. (a) ) did not bar plaintiff’s civil action for negligent retention and supervision and the trial court did not err in denying Technicolor’s motion for JNOV on this ground. Regarding Duffy’s second claim against Technicolor for damages from injuries from two verbal assaults by the coworker, we conclude that substantial evidence supports the jury’s finding that there were willful physical assaults on Duffy and that those assaults fell within the exception to Workers’ Compensation coverage in section 3602, subdivision (b)(1). We therefore affirm the judgment for Duffy on the claims for negligent retention and supervision and for assault.
Unless otherwise specified, statutes in this opinion will refer to the Labor Code.
Duffy has appealed from an order denying his motion for leave to amend the complaint, made at the start of the damages phase of the bifurcated trial, to include a prayer for punitive damages in the assault cause of action. We find that the trial court’s findings of delay, and of prejudice to the defendant, support the denial of plaintiff’s motion, and conclude that no abuse of discretion occurred.
PROCEDURAL HISTORY
Eugene Duffy filed a complaint alleging causes of action for assault and for battery against Technicolor and Harry Streng, for negligent retention and supervision against Technicolor, and for intentional infliction of emotional distress against Technicolor, Streng, and Russell Kern, Dave Adcock, and Pablo Alarcon. Kern, Adcock, and Streng were dismissed before trial. At the conclusion of plaintiff’s case, the trial court granted Alarcon’s motion for nonsuit as to the sole cause of action (for intentional infliction of emotional distress) against him.
The assault and battery causes of action were based on the theory that the employer, Technicolor, had ratified Streng’s verbal attacks on Duffy at work and Streng’s physical beating of Duffy outside his house. Duffy’s negligent retention and supervision claim was based on the theory that before Streng beat Duffy, Technicolor had notice of Streng’s violent acts against other employees in previous years, continued to employ him, and failed to discipline him.
At the conclusion of plaintiff’s case, the trial court granted Technicolor’s motion for nonsuit as to the causes of action for battery and for assault based on Streng’s beating of Duffy, and as to the cause of action for intentional infliction of emotional distress. Technicolor also moved for nonsuit based on the affirmative defense that the exclusive remedy provisions of the Workers’ Compensation Act preempted the lawsuit because Streng’s acts and injuries to Duffy grew out of and were incidental to Technicolor’s employment of Duffy. The trial court, however, denied Technicolor’s motion for nonsuit as to the cause of action for negligent retention and as to the cause of action against Technicolor for assault based on the first two verbal assaults on Duffy by Streng.
Technicolor later moved for a directed verdict on the assault cause of action, again arguing that the exclusive remedy provisions of the Workers’ Compensation Act barred that claim. The trial court denied this motion.
The trial was bifurcated to try liability and damages separately. After the trial as to liability, the jury found by special verdict that Duffy’s injury was not caused or contributed to by events which arose out of or occurred within the course and scope of his employment with Technicolor; that Technicolor negligently retained and/or supervised Streng; that Technicolor’s negligence was a substantial factor in causing harm to Duffy; that Streng’s conduct occurred after the conduct of Technicolor; that a reasonable person would not consider Streng’s conduct as a highly unusual or an extraordinary response to the situation; that Streng committed one or more acts of willful physical aggression before Duffy left work at Technicolor on August 18, 2004; that Duffy had reasonable fear of bodily harm caused by Streng’s conduct; that Duffy did not consent to Streng’s conduct; that Technicolor later learned of Streng’s conduct toward Duffy which occurred before Duffy left work on August 18, 2004; and that after learning of Streng’s conduct directed at Duffy and which occurred before Duffy left work at Technicolor on August 18, 2004, Technicolor ratified Streng’s conduct.
The jury awarded damages to Duffy of $1,040,000. Pursuant to the parties’ stipulation to reduce the jury finding as to Duffy’s future economic loss to present value, judgment against Technicolor was entered entitling Duffy to $1,018,250.00 and costs of $12,866.26. Judgment was entered on October 31, 2006.
On November 15, 2006, Technicolor moved for JNOV, again arguing that the exclusive remedy provisions of the Workers Compensation Act preempted Duffy’s two causes of action. The trial court denied that JNOV motion on December 14, 2006. Technicolor filed a timely notice of appeal.
On January 26, 2007, plaintiff Duffy filed a notice of cross-appeal from the trial court’s order to amend the complaint to state a prayer for punitive damages as to Duffy’s claims for assault.
FACTS
Technicolor operates a motion picture film laboratory in North Hollywood, which processes motion picture negatives and provides intermedia products leading to release prints which are distributed to theater exhibitors worldwide. In August 2004 the Technicolor facility operated 24 hours a day, seven days a week. Of the three shifts in a 24-hour period, the overnight “graveyard” shift was the busiest and had the most employees working to prepare film dailies for customers to see the next morning. The employees were under great pressure to process large amounts of film in a short time period, which sometimes caused tempers to flare.
Plaintiff Eugene Duffy, age 55 at trial, worked for Technicolor as a viewing inspector, watching motion picture films for defects caused by processing machinery. He worked the graveyard shift, six days a week, arriving at 7:48 p.m. and leaving at 4:18 a.m. When his supervisor, Donna Harris, went on disability leave, Duffy became temporary shift boss in viewing on June 1, 2004, but only one or two persons reported to him. In mid-July 2004, Harry Streng came into Duffy’s unit, and worked the graveyard shift as a viewer. Duffy worked with Streng on a nightly basis. Other than observing that Streng’s work habits were slow and he took advantage of his breaks, Duffy considered Streng “all right.” Duffy did not socialize with Streng at meals or breaks and did not share personal information with him. He viewed Streng as just a coworker.
Prior Incidents in Which Streng Threatened Other Employees With Violence: Thompson, the parent company of Technicolor, acquired Consolidated Film Industries (CFI) in early 2000, and in the first half of 2003 merged CFI and Technicolor. Several employees of Technicolor or of CFI testified about previous incidents in which Streng threatened co-employees.
Before Technicolor acquired CFI, Ray Botana worked at CFI as a negative assembler. Botana worked with Streng in 1998 and 1999 for about a year. Botana described Streng as constantly arguing with his co-workers. During this time, while Botana was having lunch in a parked car in the parking lot with another employee, Marvin Epstein, Streng said something as he passed by. Botana replied. Streng turned around and came back, became upset and irate, and yelled at Botana. He then said he had a gun in his car and would take care of Botana. Botana saw Streng go to his truck, open the door, and reach under the seat. He put his hand in his jacket, came back to Botana’s car, and continued to argue and yell at Botana. Epstein and Botana decided to go back to the plant. Botana felt frightened, and was afraid Streng—who he described as “nuts”—had a gun and was afraid Streng would shoot him. Nothing happened and Botana reached the plant safely, but he and Epstein went directly to the office of the plant superintendent, Gary Stanford, and reported the incident. Stanford had him write and sign a report. Stanford then called Streng into his office and asked him if what Botana reported was true. Streng admitted it was true, and became upset, thinking he was going to lose his job. As far as Botana knew, management did not suspend or take any action against Streng as a result of this incident.
Marvin Epstein, also a Technicolor/CFI negative assembler, testified that he witnessed the incident in which Streng threatened Botana. Epstein signed Botana’s written report describing what happened in that incident. At that time, Epstein feared for the safety of Botana and of himself because of Streng’s threat against him. To Epstein’s knowledge, Streng was never disciplined as a result of the incident.
Linda Sparks, also a negative assembler at Technicolor/CFI, held the supervisory position of shift boss for nine years. Botana, who worked under her, told Sparks about the incident in which Streng threatened to kill him with a gun. Besides reporting the incident to Stanford, Botana also probably reported the incident to Sparks’s boss, Michael Richardson. The incident became widely known by employees throughout CFI.
Len Arbuckle was first employed as a chemical mixer at CFI. On January 1, 2004, he moved to Technicolor, as did a number of other CFI employees. He later took a job in negative assembly, where he worked in the same room as Streng. Mike Richardson was their supervisor. Arbuckle experienced problems with Streng, who threatened him. In March 2001, after they had an argument and exchanged profanities, Streng asked Arbuckle if he would like to take it across the street. Arbuckle interpreted this as Streng’s invitation to go across the street and fight. Arbuckle agreed to go across the street, but in fact they did not go and fight because someone else—possibly Linda Sparks—observed words being exchanged and notified Richardson. Richardson spoke to both Arbuckle and Streng, who were “written up” because of the incident. Arbuckle received a written admonishment for his behavior, stating that his behavior was “not in keeping with CFI/Technicolor policy of a zero tolerance for workplace violence.” Arbuckle received a written warning that if he ever again engaged in conduct that could be construed as harassment by inciting a fight, threatening a coworker with physical harm, or creating a work atmosphere charged with hostility, he would be subject to further disciplinary action up to and including discharge for cause. Arbuckle was suspended for two days. Arbuckle did not know whether Streng was suspended for his part in the incident.
Michael Richardson, a negative cutting foreman, had worked for CFI, and for Technicolor after it purchased CFI, for 34 years. His current title was negative cutting foreman, and he had management responsibility for making sure work was completed on time, evaluating employees, monitoring employee break periods, and disciplining employees. Richardson had knowledge of Streng’s violent and aggressive conduct toward other employees in the years before he attacked and beat Duffy. An April 18, 2001, performance correction notice regarding Streng listed Richardson as his supervisor. Richardson agreed with statements in the correction notice, which stated that Streng told Arbuckle that he wanted to cross the street and settle the situation by fighting, and that such behavior was not in keeping with CFI/Technicolor’s policy providing all employees with an environment free of workplace violence. Thus Richardson was aware of the incident between Arbuckle and Streng in 2001. Besides Streng’s threatening of Arbuckle, Richardson observed three other occasions of Streng’s threatening behavior toward CFI/Technicolor employees. Streng threatened a co-employee named Richard Ben-Azzouz; in another incident, Streng threatened Richard Pilkington; in a third, Streng threatened Linda Sparks. Sparks had made numerous complaints about Streng’s poor work, laziness, abuse of his breaks, and offensive comments to other works. Sparks did not complain that Streng was threatening or violent, however. Richardson also knew about the incident in which Streng threatened Ray Botana and Marvin Epstein during a break. When he found out about that incident, he instructed Botana and Epstein to report it to the night supervisor, Gary Stanford, who took control of it after that point. In the years before Streng beat Duffy, Richardson had received five complaints about Streng’s threatening conduct toward other employees.
After Duffy Becomes Streng’s Boss, Streng Is Suspended for Sleeping on the Job: Around August 1, 2004, Duffy became Streng’s boss. Duffy and Streng were the only employees working during the graveyard shift. A problem arose because Streng took an extended break of more than an hour, when a break was supposed to last 20 minutes. On the same night, instead of a 45-minute lunch break, Streng took an hour and 20 minutes for lunch. These over-long breaks were backing up the work, and Duffy could not handle the load by himself. The plant superintendent, Gary Stanford, phoned Duffy and wanted to know why a job Stanford was personally involved in was not finished. Duffy told Stanford he was shorthanded and would get to it as soon as possible, but that he could not get to it until Streng came back. The time was about 12:50 a.m. Duffy told Stanford that Streng went to lunch at midnight and should be back any minute. Stanford called back three more times to ask whether the job he was waiting for was ready. In his last call at 1:25 a.m., Stanford was getting mad and asking whether Streng was back yet. As Stanford told Duffy to find out where Streng was and why he was late, Streng walked into the room. Still on the phone with Stanford, Duffy asked Streng where he had been and why he was gone so long. Streng said he was up on the roof parking facility in his car, and fell asleep. Duffy repeated what Streng said to Stanford. Duffy later learned that as a result of his conversation with Stanford, Streng was suspended without pay for three days for sleeping on the job.
Streng’s First Verbal Attack on Duffy: Duffy described Streng, who stood 5 feet 10 or 11 inches tall and weighed about 310 pounds, as someone who could be physically intimidating. Streng returned to work from suspension on August 11, 2004. At about the same time, Donna Harris returned from disability leave and again became the supervisor. At about 8:00 p.m. Duffy passed Streng on his way to a machine where he was going to work. As he passed, Streng called him a “rat bastard,” and said “it’s not over between us” and “I’m going to get you.” His demeanor became irate and he was yelling. Spittle came from his mouth. Unsure what Streng was going to do, Duffy took a step back from him. Then he told Streng he had better get his story straight because Duffy did not “write him up” and had nothing to do with his suspension other than report to the plant superintendent what was asked of him. Duffy testified that before this incident he had done nothing to provoke Streng. Streng’s behavior worried him. He told Harris that Streng was threatening him and that he was going to see the plant superintendent. Harris agreed.
That night the plant superintendent was Mark Loveless. As Duffy walked to see Loveless, Streng overtook him and reached Loveless’s office five or ten seconds before Duffy arrived there. The two went into Loveless’s office. Duffy told Loveless they had “a situation” and that Streng was threatening him, screaming and hollering. Streng then said Duffy should be written up because Duffy had arrived for work at 8:00 p.m. and had a radio, which he should not have. As Streng spoke, it seemed to Duffy that he was mad and out of control. After telling Loveless he had work to do, Duffy left Loveless’s office and returned to his department. Loveless later told Duffy that Streng felt stress and went home. Duffy told Loveless, “he’s threatening me. We can’t have this. We work in a very small room. We have to get along.” Duffy added that he and Harris were worried about Streng’s actions. Duffy expected Loveless to take action against Streng to prevent this from happening again. The next day, Duffy learned that Streng had asked to return to his old department, negative assembly, and Streng was transferred out of Duffy’s department.
The next night when he arrived at work, Duffy noticed that the human resources office was open, and reported the incident in which Streng had threatened him to Dave Adcock. Adcock said Streng would not be working with Duffy, and Streng would be working in his old department in a different building. Duffy did not see or talk to Streng again until the early morning of August 18, 2004.
A Week Later, Streng Again Verbally Attacks Duffy: After reporting for work at 7:48 p.m. on August 17, 2004, Duffy went to lunch at about 2:30 a.m. on August 18. He left the Technicolor facility and intended to cross a courtyard and enter a second building, where he would “punch out.” As he crossed the courtyard, he saw a friend, Mike Kanyer, and Streng in the smoking area. He walked by within 10 feet of Streng, who stopped talking to Kanyer and glared at Duffy, became hostile, and let out a tirade of profanity directed at Duffy. Duffy testified that Streng said “you better just keep on walking, you rat mother-fucker. It’s not over between us. I’m going to get you.”
Duffy stopped, looked at Streng, and said, “Harry, get your story straight.” Streng responded, “we can handle this right now, right here, or we can go off the lot and take care of it.” Duffy said, “Harry, I’m not going to fight you. I want nothing to do with you. Get your story straight.” Duffy started to walk to the time clocks to punch out. Streng then said, “you better watch out, because I know where you live.” He was shouting, red in the face, and out of control. Duffy felt threatened. He said to Streng, “Okay, that does it. I’m going to see Pablo [Alarcon].”
The other witness to the incident, Kanyer, testified that Streng spoke first, and said, “Don’t even look at me, you snitch mother-fucker. I’ll kick your ass. I’ll kick your ass right now. We can take this to the parking lot, and we can settle this.”
Pablo Alarcon was the plant superintendent. Duffy went to Alarcon’s office to report the situation, arriving at 2:40 or 2:45 a.m. Streng did not follow. Duffy told Alarcon what happened in the courtyard, and that Streng had threatened to beat him up and wanted to fight right there or take it off the lot into the parking facility. Duffy told Alarcon he was not going to have anything to do with that. Duffy then said that as he walked away, Streng told Duffy he had better be careful because Streng knew where Duffy lived.
Duffy also told Alarcon what he had said to Dave Adcock earlier in the week. Alarcon told Duffy not to worry, to go to lunch and to return to see him afterwards. Alarcon said he would talk to Streng.
Alarcon called Streng into his office and asked if he had a verbal confrontation with Duffy in the courtyard. Streng said no. Streng did say he felt Duffy was going to do something funny and was out to get him. Alarcon did not believe Streng. Alarcon next called Kanyer into his office. Kanyer said that Duffy and Streng had exchanged words, but claimed that he did not want any part of it and had walked away, and therefore did not know what Duffy and Streng said to one another. Alarcon did not believe Kanyer, either.
The Technicolor Plant Superintendent Sends Duffy and Streng Home From Work: Hearing three different stories, Alarcon did not know what to believe. Because no one in the human resources department was on the premises at that time, Alarcon felt he had no choice but to send both Streng and Duffy home. Alarcon feared that if Duffy and Streng remained at work the dispute could escalate, arguments could continue, and they could have a physical altercation and disrupt people, production, and the workplace. To avoid a fight between them in the parking structure, Alarcon sent Streng and Duffy home at different times. Alarcon sent Duffy home at 3:30 a.m., even though Duffy said he was not going to fight Streng and wanted nothing to do with him, and that he wanted to return to work and help Donna Harris, who was by herself. Alarcon told him not to bother punching out and to just go home. He also told Duffy he was also going to send Streng home. Alarcon instructed a guard to telephone him when Duffy drove off the lot. When Alarcon received that call, he waited 15 or 20 minutes, and then sent Streng home. Alarcon himself observed Streng drive off the lot at approximately 3:55 a.m..
When Duffy Arrives Home, Streng Beats and Injures Him: Duffy left Alarcon’s office at approximately 3:35 a.m. He returned to the viewing department, told Donna Harris about his meeting with Alarcon, and said Alarcon had told him not to punch out and to go home. Harris did not understand why he was being sent home, but Duffy said Alarcon was the boss and he was not going to argue with him and would do what Alarcon said to do. At approximately 3:40 a.m. Duffy walked to his car and drove away. On the way home he stopped at a 7-Eleven to get milk and a salad, since he had not eaten that night. He arrived at his house at approximately 3:50 a.m. He estimated eight to ten minutes had elapsed from the time he left the Technicolor parking lot until he reached his home. As Duffy stepped out of his car, Streng assaulted him.
Streng attacked Duffy by tackling him into his car. Duffy’s head hit the upper doorjamb and his hip and ribs hit the inside where the door locks to the body of the car. As Duffy pulled himself up, Streng threw a “huge wild punch” that hit Duffy in his left eye. Streng kicked out his left knee. Duffy tried to protect himself and covered his eyes with both hands. Duffy continued to beat him, pummeling the left and right side of his head with his fists. Duffy suffered significant injuries to his eye and both knees. Eventually Streng switched to kicking, and gave Duffy several kicks in his ribs. He also tried to kick him in the head, and Duffy testified that he took a kick on the side of his head and several to his hip. Duffy remembered thinking that he would not live through the attack. The assault continued for five to seven minutes. Streng left when Duffy startled Streng by swinging at him, got to his feet and bluffed, telling Streng that if that was the best he had he was a dead man. Streng backed up. Duffy realized that a witness with a cell phone stood nearby, and believed that is what made Streng leave. Streng drove away. After the assault, Duffy was disoriented. He found his keys and went into his house. Irate, he called Alarcon, told him that Streng had just attacked him, and said he was going to call the police after he hung up. He then called 911. Police officers arrived at about 4:45 a.m. Eventually Duffy went to the hospital. He pressed charges against Streng, who accepted a plea bargain and was sentenced to one year with three years formal probation.
Duffy testified that other than the incident which led to his being suspended, Streng had no other reason or motivation to assault him.
On August 18, 2004, both Duffy’s and Streng’s shifts were scheduled to end at 4:18 a.m.
I. Technicolor’s Appeal
ISSUE
Technicolor’s appeal claims that the trial court erroneously denied Technicolor’s motions for nonsuit, directed verdict, and JNOV because the undisputed facts establish as a matter of law that the exclusive remedy provisions of the Workers’ Compensation Act bar Duffy’s action.
DISCUSSION
A. The Standard of Review of an Order Denying a Motion for Judgment Notwithstanding the Verdict
The standard of review of a denial of a JNOV motion is essentially the same as when the trial court grants the motion. On appeal, the appellate court must read the record in the light most favorable to the plaintiff, resolve conflicts in plaintiff’s favor, and give plaintiff the benefit of all reasonable inferences supporting the jury’s original verdict. We therefore determine whether substantial evidence exists to support the jury’s conclusions and the trial court’s decision, i.e., whether plaintiff proved every element of his cause of action. (Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 703.) The appellate court reviews a trial court’s denial of a motion for judgment notwithstanding the verdict to determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury’s conclusion and where so found, to uphold the trial court’s denial of the motion. (Shapiro v. Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722, 730.) Where the issues presented deal solely with the application of a statute to the facts supporting the verdict, the issue before this court is a question of law: whether, under the facts as determined by the jury’s verdict, the exclusive remedy provisions of the Workers’ Compensation Act do or do not bar plaintiff’s action. We review this question of law de novo. (Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal.App.4th 710, 718-719 (Gunnell).)
B. The Exclusive Remedy Provisions of the Workers’ Compensation Act
“In determining whether a [Workers’ Compensation Act] WCA exclusivity provision bars a cause of action against an employer, the initial question is whether the alleged injury falls within the scope of the exclusive remedy provision. Section 3602, subdivision (a) sets forth the exclusive remedy provision applicable in this appeal. It states, in relevant part: ‘(a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer[.]’
“Thus section 3602 requires the conditions of compensation set forth in section 3600 to concur. Section 3600, subdivision (a) states, in part, that ‘[l]iability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as otherwise specifically provided in Sections 3602, 3706, and 4558, shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment . . . in those cases where the following conditions of compensation concur: [¶] . . . [¶]
“ ‘(2) Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment.
“ ‘(3) Where the injury is proximately caused by the employment, either with or without negligence.’
“Thus a precondition for applying section 3602, subdivision (a) is that the employee must sustain the injury ‘arising out of and in the course of the employment,’ the [employment] must proximately cause the injury, and at the time of the injury the employee must be performing service growing out of and incidental to the employment and must be acting within the course of the employment.
“Section 3602, subdivision (a), reflects a ‘compensation bargain’ that underlies this exclusive remedy provision of the WCA. Pursuant to this compensation bargain, the employer ‘assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability.’ [Citations.] The employee, without having to prove fault, receives relatively swift and certain benefits to cure or relieve the effects of industrial injury. In exchange, the employee gives up the wider range of civil tort damages potentially available.” (Gunnell, supra, 92 Cal.App.4th at pp. 719-720.)
“Whether an employee’s injury arose out of and in the course of her employment is generally a question of fact to be determined in light of the circumstances of the particular case. [Citations.] However, where the facts are undisputed, resolution of the question becomes a matter of law. [Citations.]” (Wright v. Beverly Fabrics, Inc. (2002) 95 Cal.App.4th 346, 353.)
“[T]he rule requiring a liberal construction of the Act in favor of its applicability applies in civil suits as well as in compensation proceedings [citations]. [¶] ‘The rule [of liberal construction of the Act in favor of its applicability] is not altered because a plaintiff believes that he can establish negligence on the part of his employer and brings a civil suit for damages. If the injury falls within the scope of the act, a proceeding thereunder constitutes his exclusive remedy.’ [Citations.] [¶] Where a reasonable doubt exists as to whether an act of an employee is contemplated by the employment, or as to whether an injury occurred in the course of the employment, section 3202 requires courts to resolve the doubt against the right of the employee to sue for civil damages and in favor of the applicability of the Compensation Act.” (Eckis v. Sea World Corp. (1976) 64 Cal.App.3d 1, 6-7.)
Merely because an employee performs a personal act when injured does not place him outside the workers’ compensation law. The test for when an injury arises out of the workers’ employment is: “ ‘ “If the particular act is reasonably contemplated by the employment, injuries received while performing it arise out of the employment, and are compensable. In determining whether a particular act is reasonably contemplated by the employment, the nature of the act, the nature of the employment, the custom and usage of a particular employment, the terms of the contract of employment, and perhaps other factors should be considered. Any reasonable doubt as to whether the act is contemplated by the employment, in view of this state’s policy of liberal construction in favor of the employee, should be resolved in favor of the employee.” ‘ ” (LaTourette v. Workers’ Comp. Appeals Bd. (1998) 17 Cal.4th 644, 651-652 (La Tourette).)
C. The Workers’ Compensation Act Does Not Provide the Exclusive Remedy for Duffy’s Injuries Sustained as a Result of the Employer’s Negligent Retention and Supervision
Duffy’s negligent retention and supervision claim alleged that despite notice of his violent, assaultive tendencies in the workplace, Technicolor negligently retained Streng as its employee and failed to properly supervise Streng by disciplining him or by preventing his threatening, menacing or assaultive workplace behavior. This claim alleged that Technicolor’s negligence proximately caused injuries Duffy sustained when Streng attacked and beat him after Technicolor released both employees from work after Streng had threatened Duffy with violence.
The question is whether Duffy’s injury was one “arising out of and in the course of” his employment. (§ 3600, subd. (a).) More specifically, the question is whether “at the time of the injury, [Duffy was] performing service growing out of and incidental to his . . . employment and [was] acting within the course of his . . . employment.” (Id. at subd. (a)(2).)
The “course of employment” requirement ordinarily refers to the time, place, and circumstances under which the injury occurs. An employee is in the course of the employment “ ‘ “ ‘when he does those reasonable things which his contract with his employment expressly or impliedly permits him to do.’ ” ’ ” (Ralphs Grocery Co. v. Workers’ Comp. Appeals Bd. (1997) 58 Cal.App.4th 647, 652.) Thus an employee acts within the course of his employment when performing a duty which is imposed on him by his employer and which is necessary to perform before the terms of the employment contract are mutually satisfied. (Ibid.)
Time: Duffy’s employer dismissed him from his shift and sent him home. Thus Duffy’s injury occurred at a time when he was no longer performing work for Technicolor. “When an employee is off duty, the employer-employee relation is temporarily suspended until the employee reenters the employer’s service. In general, ‘ . . . the employment relationship is deemed suspended from the time the employee leaves work until the time the employee resumes work.’ ” (Ralphs Grocery Co. v. Workers’ Comp. Appeals Bd., supra, 58 Cal.App.4th at p. 652.)
Place: Duffy’s injuries did not occur in his place of employment. After being dismissed and sent home by his supervisor, Duffy stopped to buy some food and then drove to his home, where his assailant was waiting for him. His injuries thus occurred at the end of his commute, at his home. “As a general matter, an employee going to and coming from his or her place of employment is not rendering any service to the employer, and therefore injuries occurring during the commute do not qualify for workers’ compensation benefits.” (Pettigrew v. Workers’ Comp. Appeals Bd. (2006) 143 Cal.App.4th 397, 405.) “[F]or an injury to occur in the course of employment the employee must be engaged in the work he has been hired to perform or some expectable personal act incidental thereto and the injury must occur within the period of his employment and at a place where he may reasonably be for that purpose.” (Dept. of Water & Power v. Workmen’s Comp. App. Bd. (1967) 252 Cal.App.2d 744, 746.) Duffy’s injuries did not occur in a place where he reasonably was for the purpose of engaging in the work he was hired to perform or some expectable personal act incidental to that work.
Circumstances: An injury sustained outside working hours, or off the employer’s premises, does not preclude a workers’ compensation award if the activity is in furtherance of the employer’s business. (Dept. of Water & Power v. Workmen’s Comp. App. Bd., supra, 252 Cal.App.2d at p. 746.) When he was injured, however, Duffy was not performing any service for Technicolor or any activity reasonably contemplated by, or incidental to, his employment. (Wright v. Beverly Fabrics, Inc., supra, 95 Cal.App.4th at p, 356.)
Therefore where Duffy’s injuries occurred after his work had ended, at his home, and in circumstances in which he was not working, performing any service for his employer, or engaging in any activity in furtherance of his employer’s business, the “conditions of compensation” in section 3600, subdivision (a)(2) did not “concur” and the Workers’ Compensation Act does not provide the exclusive remedy for Duffy’s injuries. Consequently we find no error in the trial court’s denial of motions for nonsuit, directed verdict, and JNOV on this ground.
D. The Workers’ Compensation Act Does Not Provide the Exclusive Remedy for Assault
Duffy’s assault claim was based on the theory that the employer, Technicolor, had ratified Streng’s two verbal attacks on Duffy at work.
Technicolor claims on appeal that the two incidents in which Streng verbally assaulted Duffy on August 11 and 18, 2004, arose out of and occurred in the course of Duffy’s employment and therefore the exclusive remedy provisions of the Workers’ Compensation Act barred Duffy’s civil action based on assault. Technicolor also claims that Duffy failed to establish that the “willful physical assault” exception of section 3602, subdivision (b)(1) applied.
1. Duffy’s Injuries From the Verbal Assault Arose Out of and in the Course of Employment, Which Also Proximately Caused His Injuries
As we have seen, the first question is whether Duffy’s injuries arising from the two verbal assaults were injuries “arising out of and in the course of” his employment. (§ 3600, subd. (a).) More specifically, the question is whether “at the time of the injury, [Duffy was] performing service growing out of and incidental to his . . . employment and [was] acting within the course of his . . . employment.” (Id. at subd. (a)(2).)
Both assaults arose out of an employment dispute, in which Streng blamed Duffy for reporting Streng’s over-long work break and sleeping on the job to a supervisor, which resulted in Streng’s suspension. Both verbal assaults occurred during Streng and Duffy’s regular working hours, on Technicolor’s premises. They therefore occurred “in the course of” and “arose from” the employment. The employment, moreover, proximately caused the injury under the definition in LaTourette, ante. (LaTourette, supra, 17 Cal.4th at p. 651, fn 1; § 3600, subd. (a)(3).) Duffy makes no argument disputing this conclusion.
2. Substantial Evidence Supports the Jury’s Finding That There Was a Willful Physical Assault on Duffy
Technicolor claims that Streng’s two verbal assaults did not fall within the exception to Workers’ Compensation coverage in section 3602, subdivision (b)(1). That statutory exception states: “(b) An employee . . . 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.”
The section 3602, subdivision (b)(1) exception to the Workers’ Compensation Act exclusive remedy provisions applies when an employer ratifies a coworker’s willful physical assault. An employer can be held civilly liable as a joint participant in assaultive conduct committed by its employee, if it ratified that employee’s willful assault of a coemployee as defined in section 3602, subdivision (b)(1). (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489-1491.)
Technicolor argues there was no “willful physical assault” of Duffy. This court has defined the “willful physical assault” in section 3602, subdivision (b)(1) as requiring “the same element necessary for a criminal battery: the use of force or violence.” (Gunnell, supra, 92 Cal.App.4th at p. 727.) Although bodily contact is not necessary, “physical assault occurred when someone engaged in physical conduct which a reasonable person would perceive to be a real, present and apparent threat of bodily harm.” (Id. at p. 728.) The jury instruction on assault conformed to this definition.
Substantial evidence supports the jury’s verdict that Streng committed one or more acts of willful physical aggression, that Duffy had a reasonable fear of bodily harm caused by Streng’s conduct, and that Duffy did not consent to Streng’s conduct.
On August 11, 2004, Streng, whom Duffy described as weighing 310 pounds and standing 5 feet 10 or 11 inches and who could be physically intimidating, called him a “rat bastard,” and said “it’s not over between us” and “I’m going to get you.” His demeanor became irate. He was yelling. Spittle came from his mouth. Unsure what Streng was going to do, Duffy took a step back from him. Duffy testified that he had done nothing to provoke Streng, whose behavior threatened him. Streng seemed mad and out of control. He went to complain to the plant superintendent.
At 2:30 a.m. on August 18, 2004, Duffy crossed a courtyard toward a second Technicolor building and walked within 10 feet of Streng. Streng stopped talking to his coworker, Kanyer, glared at Duffy, became hostile, and let out a tirade of profanity directed at Duffy. Duffy testified that Streng said “you better just keep on walking, you rat mother-fucker. It’s not over between us. I’m going to get you.” Duffy told Streng, “Harry, get your story straight.” Streng responded, “we can handle this right now, right here, or we can go off the lot and take care of it.” As Duffy started to walk away, Streng said, “you better watch out, because I know where you live.” He was shouting, red in the face, and out of control, with his eyes fixated on Duffy. Duffy felt threatened. He again went to the plant superintendent. The other witness to the incident, Kanyer, testified that Streng spoke first, and said, “Don’t even look at me, you snitch mother-fucker. I’ll kick your ass. I’ll kick your ass right now. We can take this to the parking lot, and we can settle this.” Kanyer testified at trial that he was afraid of retaliation by Streng if he testified.
Donna Harris, Duffy’s supervisor, testified that Streng was very combative and frightening. She believed he would carry out his threat to follow Duffy home and beat him up.
This was sufficient evidence to satisfy the definition in Gunnell of physical assault as occurring when someone engages in “physical conduct which a reasonable person would perceive to be a real, present and apparent threat of bodily harm.” (Gunnell, supra, at p. 728.)
3. Conclusion
Technicolor has not shown error in the judgment imposing liability for assault. The judgment for plaintiff on this cause of action should be affirmed.
II. Duffy’s Appeal
PROCEDURAL BACKGROUND
At the conclusion of the liability phase, when the parties and the trial court discussed jury instructions, the trial court stated that a series of special instructions on damages were “temporarily withdrawn.” Defense counsel stated that was correct. Plaintiff’s counsel made no statement on the record. The intentional infliction of emotional distress cause of action in the complaint requested punitive damages. The trial court, however, had granted a nonsuit as to the intentional infliction of emotional distress cause of action.
During opening argument in the damages phase of the trial, plaintiff’s counsel stated that plaintiff would ask the jury to make a separate legal finding of punitive damages against Technicolor. The trial court observed that jurors had not been asked to make a finding of oppression, fraud, or malice, and asked how plaintiff got to punitive damages. Plaintiff’s counsel argued that the jury would be asked to make a finding based on oppression, fraud, or malice based on testimony the jury had heard during the liability phase. The trial court stated that evidence of oppression, fraud, or malice was to be presented during the liability phase, while the amount of punitive damages was to be decided during the damages phase of a bifurcated trial. The trial court noted that although the intentional infliction of emotional distress cause of action requested punitive damages, that request was not in the prayer of the complaint. Plaintiff’s counsel asked to amend the complaint to conform to proof on the assault cause of action to allow it to request punitive damages.
The trial court requested briefing on the issue of whether plaintiff should be granted leave to amend the complaint at that point in the trial and given that the jury had not been asked to make a finding of oppression, fraud, or malice in the first phase of the trial. Plaintiff submitted a trial brief alleging that he was entitled to have the jury decide punitive damages on the assault cause of action. Plaintiff argued that failing to plead punitive damages in the prayer of the complaint was irrelevant as long as the allegations of the complaint set forth facts supporting a punitive damages award; that Code of Civil Procedure section 3294, subdivision (b) allowed an employer to be liable for punitive damages based on an employee’s acts when the employer authorized or ratified the wrongful conduct for which punitive damages were awarded; and that plaintiff had not waived the ability to plead and prove punitive damages.
Defendant opposed the motion, arguing that plaintiff had no reasonable excuse for delaying the request to plead and prove punitive damages and allowing plaintiff to do so would cause defendant to suffer extreme and undue prejudice; that plaintiff had waived his right to seek punitive damages by failing to secure the predicate findings during the liability phase of the trial; and that notwithstanding plaintiff’s waiver, there was insufficient evidence to support a claim for punitive damages against Technicolor.
The trial court found that plaintiff had not provided a reason why plaintiff had not sought to amend much earlier, found that the late request to amend to allege and prove punitive damages prejudiced the defendant, and denied the motion.
ISSUE
Duffy claims on appeal that the trial court abused its discretion by denying his motion to amend the complaint.
DISCUSSION
A. Standard of Review of a Motion for Leave to Amend the Complaint
Code of Civil Procedure section 473, subdivision (a)(1) gives the trial court discretion, after notice to the adverse party, to allow amendment of any pleading upon any terms as may be just. Motions to amend may be granted as late as the first day of trial or even during trial if the factual allegations, no matter how framed, have alerted the defendant to the charges and if the amendment will not prejudice the defendant. When a request for amendment has been denied, an appellate court confronts two conflicting policies. On one hand, the trial court’s discretion should not be disturbed unless it has been clearly abused. On the other hand, a strong policy favors liberal allowance of amendment. (Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 965.) The policy of liberality in permitting amendments applies only where no prejudice is shown to the adverse party. An opposing party which can show inexcusable delay and probable prejudice leads to a denial of the motion to amend. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-487.)
B. The Ruling Denying the Motion for Leave to Amend the Complaint Was Not an Abuse of Discretion
1. The Trial Court’s Finding of Delay Supports Denial of the Motion
The complaint requested punitive damages only in the intentional infliction of emotional distress cause of action in the complaint, filed on August 18, 2005. More than a year later, the trial court granted a nonsuit as to this cause of action. The request to amend the complaint to allege punitive damages as to the assault cause of action was not made until after the jury’s special verdict in the liability, at the beginning of the second phase of the trial.
“ ‘ “[E]ven if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.” ’ ” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746; Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.) Denial of the motion because of delay was not an abuse of discretion.
2. The Trial Court’s Finding of Prejudice Supports Denial of the Motion
Duffy argues that Technicolor would have suffered no prejudice had the trial court allowed amendment of the complaint to add a prayer for punitive damages on the assault cause of action.
Technicolor argues that after the trial court granted a nonsuit as to Duffy’s cause of action for intentional infliction of emotional distress, Technicolor tried its case in the liability case believing that punitive damages were no longer an issue in the case, and made tactical decisions about what evidence to present. Specifically, Technicolor states that it did not introduce evidence to negate the predicate findings for punitive damages, that the relevant actors were not managing agents of Technicolor and that their actions did not constitute malice, oppression, or fraud. Technicolor also alleges that it made other tactical decisions that the attorney-client privilege and work product doctrine prevent it from disclosing. The trial court found prejudice because if plaintiff were allowed to amend, the defense would be prejudiced by the fact that it is not permitted to present any more evidence on the issue of malice, fraud, or oppression by either of the alleged managing agents because the liability phase of the trial was over. Denial of the motion to amend because of prejudice to the defendant was not an abuse of discretion.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to plaintiff Eugene Duffy.
We concur: CROSKEY, Acting P. J., ALDRICH, J.