Jimenez v. Mrs. Gooch's Natural Food Markets CA2/3 ( 2023 )

Filed 8/28/23 Jimenez v. Mrs. Gooch’s Natural Food Markets CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
MARTHA EVE JIMENEZ et al., B322732
Plaintiffs and Appellants, Los Angeles County
Super. Ct. No.
v. 20STCV45863
MRS. GOOCH’S NATURAL
FOOD MARKETS, INC.
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark A. Young, Judge. Affirmed.
Law Office of David M. Feldman and David M. Feldman for
Plaintiffs and Appellants.
Brockman Quayle Bennett, Matthew E. Bennett, and
Rachel B. Kushner for Defendant and Respondent.
_______________________________________
INTRODUCTION
This case arises out of a tragic accident in which Timoteo
Alejandro Martinez Ildefonso (the decedent) was hit by a pickup
truck in a crosswalk at a major intersection. After the accident,
the decedent, who was on a 15-minute work break, walked back
to the Whole Foods market (the store) where he worked. There,
store employees gave him an ice pack, a form to fill out relating to
his injury, and a ride home. He died several hours later.
The decedent is survived by his wife and three children
(plaintiffs) who filed this wrongful death action against several
parties including Mrs. Gooch’s Natural Food Markets, Inc. (Mrs.
Gooch’s), the parent company of the store and the decedent’s
employer. Mrs. Gooch’s demurred to the operative first amended
complaint because an administrative law judge and the Workers’
Compensation Appeals Board had found the decedent’s injury
and death to be employment related and therefore within the
scope of workers’ compensation. And because workers’
compensation is generally the exclusive remedy for such injuries,
Mrs. Gooch’s argued that the wrongful death suit is barred.
Plaintiffs argued that two exceptions to the exclusive remedy rule
apply: dual capacity and fraudulent concealment. The court found
neither exception applied and sustained the demurrer without
leave to amend. Finding no error, we affirm.
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FACTS1 AND PROCEDURAL BACKGROUND
1. The Accident
The decedent worked at a Whole Foods store in Venice,
California. While on a 15-minute break, the decedent left the
store and was hit by a pickup truck while using a crosswalk at a
nearby intersection. The driver stopped, spoke with the decedent,
then returned to the car and drove away. The decedent walked
back to the store where he told his supervisors that he was
injured and wanted to go home. A store employee later drove him
home. The decedent died a few hours later.
An administrative law judge and the California Workers’
Compensation Appeals Board determined that the decedent’s
injuries arose out of his employment and occurred in the course of
that employment.
2. Complaint
Plaintiffs filed this wrongful death action against several
parties including the decedent’s employer, Mrs. Gooch’s.
Plaintiffs rely on two narrow exceptions to the general principle
that workers’ compensation is the exclusive remedy for workplace
injury: dual capacity and fraudulent concealment (Lab. Code,
§ 3602, subd. (b)(2)).2
As to the dual capacity exception, plaintiffs allege that in
addition to its role as the decedent’s employer, Mrs. Gooch’s acted
as an emergency first aid responder after the decedent was
1 In accordance with the standard of review, we accept as true all
factual allegations contained in the operative complaint. (Ivanoff v.
Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.)
2 All undesignated statutory references are to the Labor Code.
3
injured in the crosswalk. In that capacity, Mrs. Gooch’s caused a
second injury for which it is liable.3 Plaintiffs allege that when
the decedent told store employees that he was injured and
wanted to go home, they gave him an icepack and requested that
he wait while they prepared forms for him to sign. After the
decedent signed one form, another store employee drove him
home. The store employees did not call 9-1-1, did not call the
decedent’s wife, did not allow the decedent to leave and obtain
medical care, and did not drive him to a nearby emergency room.
As a result, plaintiffs allege, the store employees failed to
exercise reasonable care in rendering services to the decedent,
and that failure was a substantial factor in causing harm to the
decedent.
As to the fraudulent concealment exception, plaintiffs
allege that store employees knew the decedent was injured but
failed to disclose to him that his injury was connected to his
employment. Plaintiffs allege that if the other employees had
both disclosed that the injury was work related and treated it as
such, they would have called an ambulance and instructed the
decedent to wait to receive an examination by a paramedic.
Further, under those circumstances, the decedent would likely
have followed those instructions, as he had a few weeks prior to
the accident when he cut his finger at work and was instructed to
(and did) go to urgent care to have it treated. Plaintiffs also allege
that the store employees’ fraudulent concealment of the
decedent’s injury and its connection to his employment
aggravated his injury by delaying critical emergency medical
care. Specifically, the accident occurred at 9:33 p.m., the decedent
3 The complaint does not identify or describe a second injury.
4
arrived at home at 10:01 p.m., and the decedent’s wife arrived
home at 11:13 p.m. and called 9-1-1. Approximately two hours
passed between the accident and the decedent’s first medical
examination.
3. Demurrer
3.1. Demurrer
Mrs. Gooch’s demurred to the operative first amended
complaint, asserting the pleading failed to state facts sufficient to
constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)
Mrs. Gooch’s conceded that the decedent’s injury was
employment related and suggested that workers’ compensation
benefits had already been paid. But plaintiffs sought to avoid the
workers’ compensation exclusive remedy rule by citing two
exceptions: employer’s dual capacity and employer’s fraudulent
concealment.
Mrs. Gooch’s noted that the dual capacity exception
generally allows employees to obtain relief in tort when work
related injuries are aggravated by an employer that steps into a
non-employer role, as when a physician or hospital employer
treats the employee’s injury. But Mrs. Gooch’s argued that where,
as here, an employer simply provides medical treatment
incidental to the employment relationship, such as basic first aid
administered by coworkers, the exception does not apply.
Additionally, and as to the fraudulent concealment
exception, Mrs. Gooch’s observed that the exception only applies
where the employer conceals from the employee both the injury
and the connection between the injury and employment. In the
present case, the decedent was fully aware of his injury from the
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time of the accident, thereby rendering the exception
inapplicable.
3.2. Opposition
In opposition, plaintiffs submitted a declaration by their
attorney attaching a number of documents and purporting to
attest to certain relevant facts. Specifically, the attorney
described the content of video footage from the store taken on the
night of the accident which had been produced during discovery
and relayed several statements purportedly made by percipient
witnesses during the discovery process.
Regarding the dual capacity exception, plaintiffs argued
that the allegations of the complaint, if true, establish that the
exception applies. Specifically, after the decedent sustained his
first injury (being hit by the pickup truck), Mrs. Gooch’s acted as
both his employer and as an emergency first aid responder. And
in providing first aid, Mrs. Gooch’s caused a second injury to the
decedent. Accordingly, plaintiffs asserted they were entitled to
recover for injuries sustained as a result of Mrs. Gooch’s
negligent undertaking of the decedent’s emergency care.
As to the fraudulent concealment exception, plaintiffs
conceded that the decedent was aware of his injury after the
accident. But, the complaint alleges, the decedent was not aware
that the injury was caused by a work-related event. As a result,
plaintiffs claimed, the decedent was prevented from obtaining
immediate emergency medical care and the consequent two-hour
delay in treatment aggravated his injuries and resulted in his
death.
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3.3. Reply
In reply, Mrs. Gooch’s objected to plaintiffs’ attorney’s
declaration and the attached documents. Further, Mrs. Gooch’s
asserted that the provision of ice to an injured employee by his
coworkers was not sufficient to render an employer an emergency
first aid responder, as plaintiffs claimed. And as to the fraudulent
concealment issue, Mrs. Gooch’s noted that the decedent was
fully aware of his injury and must have been aware that the
injury was related to employment because the store employees
requested that he sign employment related forms immediately
after his injury.
4. Ruling
The court sustained the demurrer without leave to amend
based on the principle that the workers’ compensation system
provides the exclusive remedy for employment-related injury.
With respect to the attorney declaration and attachments
submitted by plaintiffs, the court noted those items were
improper and did not consider them.4
Regarding the dual capacity exception, the court noted that
the exception is extremely narrow. The court described the
leading case, Duprey v. Shane (1952) 39 Cal.2d 781 (Duprey), a
case in which an employee nurse was injured on the job. The
employer doctors treated the nurse and aggravated her initial
injury. (Id. at pp. 785–790.) The court held, under the dual
capacity doctrine, that workers’ compensation barred an action
against the employer relating to the initial injury, but the nurse
4 Because plaintiffs do not challenge the court’s evidentiary ruling, we
do not describe the evidence or the ruling in detail.
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retained the ability to sue her employer for negligence with
respect to the treatment of the injury, i.e., the injury sustained
when her employer acted in a second or dual capacity as her
treating doctor. By contrast, the court noted, other courts have
held that the dual capacity exception does not apply when an
employee receives medical services incidental to employment, i.e.,
because of the injured person’s status as an employee. The court
found that in the present case, the dual capacity exception does
not apply because the operative complaint does not identify
either a second injury or any negligent medical treatment
provided by the store employees. Further, the court found that
“[f]ailing to render aid does not equate to aggravating injury with
such aid.”
As to the fraudulent concealment exception, the court noted
that an employer may be liable for aggravating an employee’s
injury where it conceals from the employee both the injury and
the injury’s connection with employment. The court found that
the complaint does not allege that Mrs. Gooch’s concealed the
injury and, in fact, alleges that the decedent reported his injury
to his employer in the first instance. Because the complaint does
not allege that Mrs. Gooch’s concealed any information relating
to the decedent’s injury, the fraudulent concealment exception
cannot apply.
5. Judgment and Appeal
The court entered a judgment of dismissal on July 5, 2022.
Plaintiffs timely appeal.
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DISCUSSION
1. Standard of Review
We independently review a trial court’s order sustaining a
demurrer to determine whether the operative complaint alleges
facts sufficient to state a cause of action. (Ivanoff v. Bank of
America, N.A., supra, 9 Cal.App.5th at p. 725.) We assume the
truth of all properly pled factual allegations and matters that are
judicially noticeable. (Ibid.) We also liberally construe the
complaint’s allegations with a view toward substantial justice.
(Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th
26, 43, fn. 7.) But where facts appearing in attached exhibits or
judicially noticed documents contradict, or are inconsistent with,
the complaint’s allegations, we must rely on the facts in the
exhibits and judicially noticed documents. (Ivanoff, at p. 726.)
When a demurrer is sustained without leave to amend, we
decide whether there is a reasonable possibility that the plaintiff
can amend the pleading to cure the defect. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) If the defect can be cured, the trial
court has abused its discretion and we reverse; if not, there has
been no abuse of discretion and we affirm. (Ibid.) The burden of
proving such reasonable possibility is squarely on the plaintiff.
(Ibid.) Such a showing may be made for the first time on appeal.
(Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93
Cal.App.4th 700, 711; City of Torrance v. Southern California
Edison Co. (2021) 61 Cal.App.5th 1071, 1083–1084.)
Finally, “ ‘we do not review the validity of the trial court’s
reasoning but only the propriety of the ruling itself. [Citations.]’
[Citation.]” (Align Technology, Inc. v. Tran (2009) 179
Cal.App.4th 949, 958.) Accordingly, we will affirm the “ ‘trial
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court’s decision to sustain the demurrer [if it] was correct on any
theory. [Citation.]’ [Citation.]” (Ibid.)
2. The court properly sustained the demurrer without
leave to amend.
2.1. Background: Workers’ Compensation
“First created more than a century ago, California’s
workers’ compensation system is now governed by the Workers’
Compensation Act (WCA; Lab. Code, § 3200 et seq.), ‘a
comprehensive statutory scheme governing compensation given
to California employees for injuries incurred in the course and
scope of their employment.’ [Citations.] At the core of the WCA is
what we have called the ‘ “ ‘compensation bargain.’ ” ’ ([Charles J.
Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th
800, 811].) Under this 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.” ’ (Ibid.)
The employee, for his or her part, ‘ “is afforded relatively swift
and certain payment of benefits to cure or relieve the effects of
industrial injury without having to prove fault but, in exchange,
gives up the wider range of damages potentially available in
tort.” ’ (Ibid.)” (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039,
1046–1047 (King).)
“To give effect to the compensation bargain underlying the
system, the WCA generally limits an employee’s remedies against
an employer for work-related injuries to those remedies provided
by the statute itself. Labor Code section 3600, subdivision (a)
provides that workers’ compensation liability ‘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
10
of the employment … in those cases where the … conditions of
compensation concur.’ Subject to certain enumerated exceptions
not relevant here, this liability is ‘in lieu of any other liability
whatsoever.’ (Lab. Code, § 3600, subd. (a).)” (King, supra,5 Cal.5th at p. 1051, fn. omitted.)
As noted, ante, the Workers’ Compensation Appeals Board
confirmed the decedent’s injury arose out of and occurred in the
course of his employment. Typically, workers’ compensation is
“the sole and exclusive remedy of the employee or his or her
dependents against the employer.” (§ 3602, subd. (a); King, supra,5 Cal.5th at p. 1051.) The exclusive remedy rule generally bars
wrongful death actions arising out of an industrial injury. (See
Melendrez v. Ameron Internat. Corp. (2015) 240 Cal.App.4th 632,
642; Seide v. Bethlehem Steel Corp. (1985) 169 Cal.App.3d 985,
991.) Plaintiffs argue, however, that two exceptions to the
exclusive remedy rule apply here. We address those exceptions in
turn.
2.2. Dual Capacity
Plaintiffs first argue that Mrs. Gooch’s, through its
employees, acted in a dual capacity following the accident.
Specifically, in addition to acting as the decedent’s employer,
plaintiffs urge that Mrs. Gooch’s also acted as a “provider of
emergency first aid services” subject to liability for negligence
outside the workers’ compensation scheme. We reject this
argument.
As explained, if an employee’s injury “aris[es] out of and in
the course of the employment” (§ 3600, subd. (a)), and is
“proximately caused by the employment, either with or without
negligence,” (id., subd. (a)(3)), the employee’s remedy is confined
to workers’ compensation benefits from the employer.
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(D’Angona v. County of Los Angeles (1980) 27 Cal.3d 661, 664.)
There is a judicially recognized exception to the exclusive remedy
rule known as the “ ‘dual capacity doctrine.’ ” (Hendy v. Losse
(1991) 54 Cal.3d 723, 730; see King, supra, 5 Cal.5th at p. 1054.)
This doctrine “posits that an employer may have or assume a
relationship with an employee other than that of employer-
employee, and that when an employee seeks damages for injuries
arising out of the secondary relationship the employee’s claim is
not subject to the exclusive remedy provisions of the Workers’
Compensation Act.” (Hendy, at p. 730; King, at p. 1054 [same];
see also Gund v. County of Trinity (2020) 10 Cal.5th 503, 525 [“A
plaintiff may pursue tort claims for intentional misconduct that
has only a questionable relationship to the employment, an
injury that did not occur while the employee was performing a
service incidental to and a risk of the employment, or where the
employer stepped out of its proper role. [Citation.] These types of
injuries are beyond the [workers’] compensation bargain.”].)
For example, in the leading case of Duprey, supra, 39
Cal.2d 781, the employee of a chiropractic partnership received
workers’ compensation benefits for an injury she suffered in the
course of her employment. Nevertheless, the court held the
employee could bring an action at law against her employer for
the aggravation of the injury caused by the employer’s negligent
medical treatment. The court reasoned that the employer had no
obligation to treat the employee himself but, once he undertook to
do so, there was no logical reason that he should not be held
responsible in a civil action for professional negligence. The
employer did not treat the injury because of the employer-
employee relationship, but, rather, treated the employee as an
attending doctor. Thus, with respect to the aggravated injury, the
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court held, their relationship was that of doctor and patient. (Id.
at p. 793.)
The Duprey rationale was followed in a number of cases
including D’Angona v. County of Los Angeles, supra, 27 Cal.3d
661, Sturtevant v. County of Monterey (1991) 228 Cal.App.3d 758,
and Weinstein v. St. Mary’s Medical Center (1997) 58 Cal.App.4th
1223. In each of these cases, an employee suffered an initial
injury on the job and thereafter sought treatment for that
industrial injury from a medical provider who also happened to
be the employee’s employer. Because the medical provider had no
obligation to treat the employee, the courts permitted a medical
malpractice action against the employer to proceed when the
employer’s professional negligence aggravated the injury. (E.g.,
Weinstein, at pp. 1232–1235.)
By contrast, workers’ compensation is an employee’s
exclusive remedy when the employee obtains medical treatment
from the employer under circumstances incidental to the
employment relationship. For example, in Bell v. Macy’s
California (1989) 212 Cal.App.3d 1442 (disapproved on a
separate ground in Snyder v. Michael’s Stores, Inc. (1997) 16
Cal.4th 991, 1000), the employer provided a first-aid dispensary
and clinic for its employees. A pregnant employee became ill at
work and sought treatment at the in-house clinic. Because of the
attending nurse’s negligence, the employee’s then-unborn baby
eventually died. The court held that in providing a medical clinic
for its employees, the employer never stepped out of its role as an
employer and into that of a medical care provider. (Bell, at
pp. 1450–1451.) The employee attended the clinic as an employee,
not as a member of the public, and therefore the dual capacity
exception did not apply. Rather, the court held, the employee’s
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injury arose out of the employment relationship and occurred in
the course of employment. (Ibid.)
Similarly, in Alander v. VacaValley Hospital (1996) 49
Cal.App.4th 1298, the hospital employer provided testing and
treatment to any employee possibly exposed to tainted blood or
bodily fluids. This treatment was provided as an employee health
benefit. While voluntarily undergoing treatment pursuant to this
benefit, an employee suffered nerve damage. The court held the
employee was injured in the course of employment. In electing to
receive the treatment at the employer hospital, the employee was
asserting her right as an employee to one of the benefits of her
employment. Further, the employer was fulfilling its obligation
under the employment protocol as an employer, and not as a
medical provider. (Id. at pp. 1306–1307.)
Plaintiffs attempt to analogize the present case to Duprey
and similar cases in which an injured employee was allowed to
pursue a medical malpractice claim against an employer who was
also a treating medical professional. But this case is plainly
distinguishable from those cases because plaintiffs do not allege
that either Mrs. Gooch’s or the store employees who rendered
first-aid assistance were medical professionals. Instead, plaintiffs
apparently seek to expand the dual capacity doctrine to include a
negligent undertaking theory. Plaintiffs cite no case holding that
a negligent undertaking theory is viable in these circumstances
nor do they offer any legal support for their suggestion that we
expand the scope of the dual capacity exception. Indeed, they do
not even discuss the legal requirements of their negligent
undertaking theory. On that basis, we may consider the
argument forfeited. (See Hernandez v. First Student, Inc. (2019)
37 Cal.App.5th 270, 277 [noting courts “may and do ‘disregard
14
conclusory arguments that are not supported by pertinent legal
authority or fail to disclose the reasoning by which the appellant
reached the conclusions he wants us to adopt’ ”]; Keyes v. Bowen
(2010) 189 Cal.App.4th 647, 655–656 [noting that matters not
properly raised or that lack adequate legal discussion will be
deemed forfeited]; Dietz v. Meisenheimer & Herron (2009) 177
Cal.App.4th 771, 799 [noting that if an appellant fails to support
a claim with reasoned argument and citations to authority the
court of appeal may treat that claim as waived].)
In any event, the allegations of the complaint indicate that
the decedent received first aid assistance from Mrs. Gooch’s in its
capacity as his employer. Plaintiffs allege that when the decedent
returned to “the store and told his supervisors that he was
injured and wanted to go home[,] [t]hey told him to wait, they
examined his head[,] and gave him ice to apply to the injured
area. Then, as Decedent waited in the seating area of the store
bleeding from his head with an icepack, his supervisors were in
the kitchen printing several forms and discussing which ones he
needed to fill out. Eventually[,] the supervisors presented
Decedent with a single form to sign, which he did. Then the
supervisors had a co-worker drive Decedent home instead of to
the hospital.” Nothing about these allegations suggests that the
employees or Mrs. Gooch’s assumed a separate and independent
role as purveyors of medical services unrelated to the
employment relationship, as the employers did in Duprey and
similar cases. Rather, this case is most similar to Bell v. Macy’s
California, supra, 212 Cal.App.3d 1442 in which the plaintiff
employee was not allowed to sue her employer for negligent
medical care she received in a company clinic for employees.
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2.3. Fraudulent Concealment
Plaintiffs also argue that the fraudulent concealment
exception to the exclusive remedy rule applies. We reject this
argument as well.
The fraudulent concealment exception is found in section
3602, subdivision (b)(2).5 To withstand a demurrer, an employee
must “in general terms” plead facts that if found true by the trier
of fact, establish the existence of three essential elements: (1) the
employer knew that the plaintiff had suffered a work-related
injury; (2) the employer concealed that knowledge from the
plaintiff; and (3) the injury was aggravated as a result of such
concealment. (Foster v. Xerox Corp. (1985) 40 Cal.3d 306, 312;
Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th 80,
89–90.) “If any one of these conditions is lacking, the exception
does not apply and the employer is entitled to judgment in its
favor. [Citation.]” (Silas v. Arden (2012) 213 Cal.App.4th 75, 91.)
Critically for our purposes, “[t]he exception does not apply
where the employee was aware of the injury at all times.
[Citation.]” (Silas v. Arden, supra, 213 Cal.App.4th at p. 91.) This
point is fatal to plaintiffs’ argument. The complaint does not
allege that the decedent was unaware of his injury. Nor could it
reasonably do so—the nature of the accident must have apprised
5 That section provides, in pertinent part: “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: [¶] … [¶] 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.”
16
the decedent that he was injured. Moreover, according to the
operative complaint, Mrs. Gooch’s was unaware of the decedent’s
injury until he advised his supervisors that he had been in an
accident. Thus, the allegations of the operative complaint
establish that the fraudulent concealment exception to the
workers’ compensation exclusivity rule does not apply as a matter
of law.
2.4. Amendment
As noted, ante, when a demurrer is sustained without leave
to amend, we must decide whether there is a reasonable
possibility that a plaintiff can amend the pleading to cure the
defect. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) The burden
of proving such reasonable possibility is squarely on the plaintiff.
(Ibid.)
Plaintiffs did not argue below, and do not explicitly argue
on appeal, that they should be granted leave to further amend
their complaint. But because we have determined that the
fraudulent concealment exception does not apply as a matter of
law, any amendment relating to that theory would be fruitless.
And as to the dual capacity exception, plaintiffs have not
identified what additional facts, if any, they could allege to state
a viable cause of action against Mrs. Gooch’s. They simply note,
in passing, that the court should have granted leave to amend “to
allow plaintiffs to gather more evidence.” We assume, then, that
plaintiffs lack a reasonable basis to add or amend allegations in
the complaint. As such, it appears there is no reasonable
possibility that plaintiffs can amend the pleading to cure the
defect.
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DISPOSITION
The judgment of dismissal is affirmed. Respondent Mrs.
Gooch’s Natural Foods Markets shall recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
ADAMS, J.
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