Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BC420252, Michael L. Stern, Judge.
Law Office of Arthur Csillag, Arthur Csillag for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, Lisa S. Berger, Deputy City Attorney; Richard M. Brown, General Counsel for Defendants and Respondents.
ARMSTRONG, J.
Raymond Garcia appeals from the judgment entered in favor of defendants and respondents City of Los Angeles, acting by and through the Department of Water and Power (hereinafter, "DWP"), and City employee Gregory Troschak, after defendants' demurrer was sustained without leave to amend. We affirm.
Factual and Procedural Summary
In reviewing the sufficiency of a complaint against a general demurrer, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context, and treat the demurrer as admitting all material facts properly pleaded. Where, as here, a demurrer is sustained without leave to amend, we decide whether there is a reasonable possibility the defect can be cured by amendment. If it can, the trial court abused its discretion and we reverse; if not, there was no abuse of discretion and we affirm. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Appellant was a DWP employee. His complaint, filed on August 21, 2009, alleged that on August 22, 2008, he was recovering from a knee injury which necessitated the use of a cane. He was trying to wean himself from the cane, and while at work that day he left it behind when he walked away from his desk for a brief errand. When he next used the cane, he lunged forward and reinjured his knee. He then noticed that the cane had been shortened.
Plaintiff suspected that one of three employees (Vargas, Johnson, and Troschak) had shortened the cane. All were Electric Trouble Dispatches (EDTs) who were seated near him. He told the EDTs that his knee hurt, that the cane-shortening "wasn't funny, " and that "you guys should not mess with anyone's handicap aids... because it's not funny." None of them said anything.
On August 24, plaintiff was again at work. He asked Vargas who had shortened the cane. Vargas answered that he was not the culprit, and that he knew who had done it but could not tell. Plaintiff had a similar conversation with Johnson. On August 27, 2008, plaintiff asked Troschak, who admitted that he had shortened the cane. He apologized and asked whether he was in trouble. Plaintiff responded that he did not know, but that if he continued to feel pain in his knee, he would seek medical attention.
The complaint alleged, inter alia, that Troschak was acting within the course and scope of his employment when he shortened the cane, that the other employees had allowed the "horseplay/prank/joke/battery" to go forward, and that the DWP condoned pranks, jokes, and horseplay and failed to deal appropriately with pranks, jokes, and horseplay, creating the atmosphere which allowed Troschak to believe that he could engage in the subject behavior.
The complaint brought causes of action against both defendants titled assault, battery, intentional infliction of emotional distress, and vicarious liability and respondeat superior; and causes of action against the DWP titled hostile environment, failure to prevent harassment under Government Code section 12940, subdivision (k), negligent hiring, training, retention, and supervision, discrimination based on disability in violation of the Labor Code, Civil Code section 51.9, and the Fair Employment and Housing Act, and violation of the Fair Employment and Housing Act.
Defendants demurred on several grounds, asserting, inter alia, that all causes of action were barred by the doctrine of workers' compensation exclusivity. The trial court sustained the demurrer without leave to amend and entered judgment for defendants.
Discussion
The workers' compensation system is the exclusive remedy for an employee who suffers physical injury at work, and this includes an injury suffered at the hands of a fellow employee acting within the scope of employment. (Lab. Code, § 3601, subd. (a); Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1001-1002.) "Where the complaint affirmatively alleges facts indicating coverage by the workers' compensation laws, if it fails to state additional facts negating application of the exclusive remedy provision, no civil action will lie and the complaint is subject to a general demurrer. [Citations.]" (Roberts v. Pup 'N' Taco Driveup (1984) 160 Cal.App.3d 278, 284.) As the trial court found, those rules describe this case.
Plaintiff argues that he is not limited to the workers' compensation system because Troschak was not acting in the course and scope of employment when he shortened the cane, in that the DWP received no benefit from the conduct. However, the complaint explicitly and repeatedly alleges that Troschak was acting within the scope of his employment. Further, "California no longer follows the traditional rule that an employee's actions are within the scope of employment only if motivated, in whole or part, by a desire to serve the employer's interests." (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 297; see also Oliva v. Heath (1995) 35 Cal.App.4th 926, 932 [horseplay injuries to both participating and nonparticipating employees are within the course and scope of employment when the employer condones the horseplay].) Even willful, malicious and criminal torts may be committed within the scope of employment. (Torres supra, 26 Cal.4th at p. 1008.) Plaintiff's argument is thus unavailing.
Nor can we agree with plaintiff that he should have been given leave to amend his complaint in this regard. Any amendment would contradict, not supplement, the complaint. "While inconsistent theories of recovery are permitted [citation] a pleader cannot blow hot and cold as to the facts positively stated." (Manti v. Gunari (1970) 5 Cal.App.3d 442, 449; Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1061.)
Plaintiff next argues that workers' compensation exclusivity does not apply because Troschak was engaging in a willful and unprovoked act of aggression.
Under Labor Code section 3601, subdivision (a)(1), "an employee, ... shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against the other employee, as if this division did not apply, in either of the following cases: (1) When the injury or death is proximately caused by the willful and unprovoked physical act of aggression of the other employee."
An employer may "in no event" be held liable for damages awarded against an employee under Labor Code section 3601, subdivisions (a)(1). (Lab. Code, § 3601, subd. (c).)
This exception to workers' compensation exclusivity applies when the conduct is "unprovoked conduct intended to convey an actual, present, and apparent threat of bodily injury." (Torres, supra, 26 Cal.4th at p. 1005.) Plaintiff contends that the complaint alleges that Troschak intended to cause injury, or that he can amend the complaint to so state.
In support of his argument that the complaint already includes sufficient allegations, plaintiff points to the allegation, in the cause of action for battery, that Troschak acted "with the intent to harm and offend, " that Troschak "intentionally manipulated [plaintiff's cane], and that Troschak acted "with a conscious disregard of [plaintiff's] safety'; and the allegation in the cause of action for intentional infliction of emotional distress that Troschak "intended to inflict severe emotional distress." Plaintiff argues that a trier of fact should have been permitted to determine whether his injury was "proximately caused by the willful and unprovoked physical act of aggression of the other employee." (Lab. Code, § 3601, subd. (a)(1).)
Those allegations are found in the complaint, but a few isolated and conclusory allegations that Troschak acted with intent to harm, or intent to offend, or with disregard for plaintiff's safety are not sufficient to allege a willful act of aggression. What is more, the complaint repeatedly describes the act as a prank, and the factual allegations establish that plaintiff so perceived the act at the time it occurred, when he told his coworkers not that he had been assaulted but that "it isn't funny." Indeed, the essence of the complaint is that the DWP is liable because it condoned pranks, jokes and horseplay, thus allowing Troschak to engage in that kind of conduct.
The fact that there is a battery cause of action is of no moment. Intent to injure is not an element of the tort of battery. "In an action for civil battery the element of intent is satisfied if the evidence shows defendant acted with a 'willful disregard' of the plaintiff's rights." (Ashcraft v. King (1991) 228 Cal.App.3d 604, 613.)
Plaintiff makes no separate arguments relating to the causes of action against the DWP titled hostile environment, failure to prevent harassment under Government Code section 12940, subdivision (k), negligent hiring, training, retention, and supervision, discrimination based on disability, or violation of the Fair Employment and Housing Act, though the DWP to some extent addresses them. Given that each of those causes of action is based on the same factual allegations, the incident with the cane, we simply say that plaintiff has given us no reason to conclude that the trial court abused its discretion.
Nor can we see that there is any abuse of discretion in the court's denial of leave to amend. In other contemporaneous writings, before the trial court on demurrer, plaintiff repeatedly described the act as a prank. For instance, in a written description of the incident which plaintiff prepared for a supervisor soon after the event, plaintiff wrote that other employees chose not to "do or say anything and just allow the horseplay/prank/joke to go forward, " and concluded the memo, "All for what? Just possibly for a laugh! For a handful of individuals." Pleadings in the workers' compensation proceeding are in accord, as is plaintiff's filing with the Department of Fair Housing and Employment. The act is consistently described as a prank or joke, and is not described as an intentional act of aggression. Plaintiff is not now free to amend his complaint with allegations to the contrary. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604; Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1061.)
These documents were exhibits to plaintiff's application for relief from the Government Claims Act filing requirements.
In Torres, supra, the employees worked for a tire service company. A fellow employee approached the plaintiff while he was on his knees fixing a tire, grabbed his back support belt, lifted him off the ground, and dropped him on his knees, causing the plaintiff to suffer a back injury. (Id. at p. 1000.) The conduct alleged here is very similar. This is horseplay, no matter how rough or thoughtless, or even cruel, and is part of the workers' compensation bargain.
As plaintiff argues, in Torres the matter went to the jury, but we cannot conclude from that fact that a jury was required here. If a complaint does not state a cause of action, it is subject to demurrer.
Plaintiff also asks that we create an exception to Torres, because the act here involved manipulating a disabled person's cane, constituting discrimination against the handicapped. Torres is based on the workers' compensation statutes, and we see nothing in those statutes which would delegate to this court the power to create an exception to workers' compensation exclusivity.
Plaintiff makes an additional argument concerning the cause of action for intentional infliction of emotional distress, contending that it is not subject to workers' compensation exclusivity because his emotional distress arose out of disability discrimination and because the conduct so far exceeded the normal risks of employment that it is not encompassed in the compensation bargain.
An employee may not pursue a cause of action for intentional infliction of emotional distress against his or her employer and fellow employees if the alleged misconduct is a normal part of the employment relationship and if the essence of the wrong is a personal physical injury, permitting a remedy under the workers' compensation statutes. "The basis of compensation and the exclusive remedy provisions is an injury sustained and arising out of the course of employment (former Lab. Code, §§ 3600, 3601), and then the essence of the wrong is personal physical injury or death, the action is barred by the exclusiveness clause no matter what its name or technical form if the usual conditions of coverage are satisfied." (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.) As we have already noted, this conduct, repeatedly described by plaintiff as a prank or joke or horseplay, does not fall outside the compensation bargain.
Plaintiff's reliance on Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, is misplaced. The emotional distress claims in that case involved five years of false accusations, orders to use unsafe machinery, verbal abuse, vandalism, and obscene and threatening telephone calls, as well as an unprovoked battery, all motivated by plaintiff's prior work-related injuries and in retaliation against him because he filed a workers' compensation claim. (Id. at pp. 1482-1483.) In contrast, the intentional infliction of emotional distress claim here is based on one incident of horseplay.
Plaintiff makes additional arguments concerning Troschak's liability. He first argues that under Government Code section 820, Troschak is liable for his intentional torts. That statute provides that "Except as otherwise provided by statute... a public employee is liable for injury caused by his act or omission to the same extent as a private person." The argument is unavailing where, as here, the complaint alleges that the coemployee was acting within the scope of employment, and where, as here, the complaint alleges that the employer is liable under theories of respondeat superior and vicarious liability. (Torres, supra, 26 Cal.4th at p. 1002; Oliva v. Heath, supra, 35 Cal.App.4th at p. 934.)
Finally, plaintiff argues that Troschak is personally liable under FEHA. He cites Government Code section 12940, subdivision (j) which provides it is an unlawful employment practice for an employer to harass an employee because of a medical condition, and provides in subdivision (j)(3) that "[a]n employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, ..." Plaintiff argues that Troschak is thus personally liable for his discrimination and harassment. Plaintiff did not, however, sue Troschak for harassment or discrimination, and thus may not recover under that theory.
Disposition
The judgment is affirmed.
We concur: TURNER, P. J., KRIEGLER, J.