Karty v. DePhilippis
Filed 6/12/13 Karty v. DePhilippis CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
JAMES KARTY,
Plaintiff and Appellant,
v.
RICHARD DePHILIPPIS,
Defendant and Respondent.
D059554
(Super. Ct. No. 37-2009-00088978-
CU-PO-CTL)
APPEAL from
a judgment of the Superior Court
of
County, William S. Dato, Judge. Affirmed.
David A.
Kay for Plaintiff and Appellant.
Wright
& L'Estrange, Robert C. Wright and Alexander T Gruft for Defendant and
Respondent.
James Karty
sued his employer, Richard DePhilippis, seeking to recover for a burn injury
sustained while Karty was at work. After
Karty presented his case to a jury, DePhilippis moved for a nonsuit on the
basis that Karty's tort action was barred by the exclusive workers'
compensation remedy. (See Lab. Code,
motion. Karty appeals. We affirm.
FACTUAL
AND PROCEDURAL SUMMARY
On August 15, 2007, Karty was working as
a waiter at Filippi's Pizza Grotto (Filippi's), a sole proprietorship owned by
Richard DePhilippis. At about 8:40 p.m., one of Filippi's pizza cooks,
Marcos Sevilla, heated a pan in a 550-degree pizza oven before placing a pizza
on the pan for Karty's order. Because
the pizza pans are generally cool, Karty picked up the pan with his uncovered
hand intending to deliver it to a customer's table. When he did so, Karty screamed and then
dropped the pan. Karty suffered serious
and permanent burn injuries. Shortly
after the incident, Sevilla admitted he was responsible for the action, quit
his job, and never returned to the restaurant.
In addition
to receiving workers' compensation benefits, Karty sued his employer,
DePhilippis, and two of Karty's coworkers, Sevilla and Gricelda Lopez. Karty asserted two causes of action: battery and intentional infliction of
emotional distress. Karty alleged that
both Sevilla and Lopez "deliberately and with intent to injure [him] . . .
heated up a pizza pan . . . with full knowledge of the almost-certain
likelihood that when [Karty] touched the heated [pan], he would be
burned." Karty also alleged Lopez
was a "managing agent" of Filippi's restaurant. Karty sought to recover against DePhilippis
based on two exceptions to workers' compensation exclusivity rules: (1) section 3602(b)(1), which provides for
employer liability if the employee's injury is caused "by a willful
physical assault by the employer" and (2) employer ratification
principles.
Karty later
dismissed the complaint against Lopez and Sevilla, and elected to pursue only
his employer, DePhilippis, for tort damages.
DePhilippis moved for summary judgment, arguing that workers'
compensation exclusivity rules barred the lawsuit. The court (Judge David Oberholtzer) denied
the motion. In its denial order, the
court found that although there did not appear to be any evidence supporting
Karty's ratification theory, there was a triable issue of fact on the section
3602(b)(1) theory based on Karty's claims that Lopez was a manager or
supervisor. The matter was later
reassigned to Judge William Dato for trial.
At trial,
Karty's primary theory was that DePhilippis was liable based on the fact that
Lopez "instigated" or "participated" in the burn incident,
and Lopez was a "managing agent" of the restaurant.
To support
this theory, Karty presented evidence that although Lopez did not have a formal
position as a manager or supervisor and never attended manager meetings, she
was the "lead" night cook and functioned as the night kitchen manager
for many practical purposes. According
to Karty's evidence, the restaurant was generally managed by three individuals,
Daniel Moceri (the general manager), and two other subordinate managers who
worked mostly at night, Harriet Crivello and Alice Kirk. All of these managers had the full authority
to manage all aspects of the business, including to hire, fire, discipline, and
train employees, order food and other supplies, and set employee
schedules. Moceri was primarily responsible
for hiring and supervising the kitchen staff, but the other two managers were
responsible for the kitchen when Moceri was not at the restaurant.
Lopez was a
senior kitchen employee who helped direct kitchen activities during the night
shift. She frequently translated for the
managers, and served as a point of contact for others in the restaurant who had
problems relating to the kitchen, particularly with respect to pizza
preparation. But unlike the managers,
Lopez had no authority to engage in any restaurant management or supervisory
tasks, including to hire, fire, discipline, or to set or change employee
schedules.
At trial,
Karty acknowledged that before his August 15 burn injury, there was substantial
horseplay among the restaurant employees, including Karty, Lopez, and Sevilla. Karty and the other employees routinely
engaged in practical jokes and other similar activities. For example, Karty frequently placed spoons
in other employees' pockets and would throw small items at other employees, and
the employees (including Karty and Lopez) would hit each other with menus and
pizza boxes. Karty viewed these
activities as innocent horseplay or "joking around" and did not
believe these actions were hostile or improper.
Within several days before the August 15 burn incident, Lopez put three
dough balls into a pizza box and slammed it on Karty's head. Although manager Crivello saw the incident,
she did not discipline Lopez or otherwise respond to the incident. Karty did not complain and there was no
evidence this action was materially different from the normal horseplay
activities. In his testimony, Karty
agreed that before the burning incident he considered Lopez to be a "good
co-worker" and a "nice person."
According
to Karty's evidence, on the evening of August 15, Sevilla was the person who
placed the pizza on the hot tray for Karty's order, knowing that Karty would
pick up the tray with his bare hand.
After Karty picked up the pizza pan and severely burned his hand, he was
in extreme pain and put his hand in a pitcher of ice water. As he was doing so, Karty saw Lopez and
several other employees laughing.
Although both restaurant night managers (Crivello and Kirk) were on a
work errand when the incident occurred, they soon returned and drove Karty to
urgent care. When the urgent care nurse
asked what happened, Karty responded that the other employees "played a
trick on me or a joke." Karty later
repeated to his doctor that his coworkers had played a joke on him and handed
him a hot pan that he thought was cold.
Shortly
after the incident, Sevilla admitted responsibility and quit his job. Later that evening, manager Crivello told all
the kitchen employees to stay at the restaurant after closing time for a
meeting. During the meeting, Crivello
was angry and said that this conduct would not be tolerated. The employees responded: "[W]hat are you yelling at us for? We didn't do it. Marcos [Sevilla] did it." Lopez denied any involvement in the incident,
and said she did not see the incident because she was in the back bringing out
cheese. Crivello did not receive any
information that anyone was responsible for the incident except for
Sevilla.
About one
month later, Karty returned to work and told Crivello he did not want to
continue working with Lopez. Crivello
responded that she could not fire Lopez because there was no evidence that
Lopez was involved in the burn incident.
But Crivello arranged the shifts so the two would not work
together. At the time of trial, both
Karty and Lopez were still working at Filippi's.
At trial, a
former Filippi's employee (Isaac Miguel) testified regarding statements made by
Sevilla and Lopez before Karty's burn injury.
Miguel testified that about two weeks before the burn incident, he heard
Sevilla say to Lopez, " 'Hey if, [Karty] start[s] playing again [in the
kitchen], I'm going to burn him.' "
According to Miguel, Lopez responded " 'Burn the motherfucker. He deserve it. So he can stop playing with us.' " Miguel said he heard Lopez say this numerous
times, "[l]ike every day," mostly at the beginning of his shift and
at about 9:00 p.m. or 10:00 p.m. After
Karty was injured, Miguel heard Lopez "saying that [Karty] deserve[d]
it" because "he was playing too much."
However,
there was no evidence that DePhilippis or any of the restaurant managers heard
any of these statements or that Miguel communicated any of the statements to
Filippi's management.
name="_ftnref2" title="">[2]
After Karty
completed his presentation of his case, DePhilippis moved for a nonsuit based
on his argument that workers' compensation was the exclusive remedy for Karty's
injuries. In response, Karty argued that
Lopez was a manager who encouraged and/or directed the burn incident and thus
her actions could be attributed to the employer for civil liability purposes. After considering the parties' supplemental
briefs on the legal issues and holding a hearing, the court granted the nonsuit
motion, finding that although Karty presented evidence sufficient to establish
that Lopez " 'participated in a "willful physical assault" on
Karty,' " Lopez's involvement did not establish an exception to the
workers' compensation exclusive remedy rules.
DISCUSSION
I. Review
Standard
We review a
grant of a nonsuit motion under a de novo review standard. (Curtis
v. Santa Clara Valley Medical Center (2003) 110 Cal.App.4th 796, 800.) A nonsuit is proper only if the defendant
shows entitlement to judgment as a matter of law assuming all of the
plaintiff's evidence to be true. (O'Neil
v. Crane Co. (2012) 53 Cal.4th 335, 347.)
" ' "[A] trial court may not grant a defendant's
motion for nonsuit
if plaintiff's evidence would support a jury verdict in plaintiff's favor. [Citations.]
[¶] In determining whether
plaintiff's evidence is sufficient, the court may not weigh the evidence or
consider the credibility of witnesses.
Instead, the evidence most favorable to plaintiff must be accepted as
true and conflicting evidence must be disregarded. The court must give 'to the plaintiff['s]
evidence all the value to which it is legally entitled, . . . indulging
every legitimate inference which may be drawn from the evidence in
plaintiff['s] favor. . . .' " [Citation.]' " (Ibid.)
II. Karty's
Tort Claims Are Barred by Workers' Compensation Exclusivity Rules
A. Overview
Generally,
an employee suffering an injury during the course and scope of his or her
employment is limited to recovery provided by the workers' compensation
system. (§§ 3600(a), 3602(a); Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995,
1001; Fermino v. Fedco, Inc. (1994) 7
Cal.4th 701, 708.) The workers' compensation scheme is based
on a " ' "presumed 'compensation
bargain' " ' " between the employee and employer, in
which an employee receives swift relief regardless of fault while giving up the
wider range of potentially available tort damages. (Torres,
supra, at p. 1001
exclusivity provisions and narrowly interpret exceptions to those
provisions. (See Soares v. City of Oakland (1992) 9 Cal.App.4th 1822, 1830.)
Karty
acknowledges his injuries were suffered while in the course and scope of his
employment, but argues he presented evidence supporting two exceptions to the
rule: (1) an exception embodied in
section 3602(b)(1) pertaining to injuries "proximately caused by a willful
physical assault by the employer"; and (2) employer ratification of an
employee's intentional misconduct. We
conclude neither of these exceptions apply on the factual record before us.
B. Section
3602(b)(1) Exception
Section
3602(b)(1) creates an express exception to the workers' compensation
exclusivity rules "[w]here the employee's injury or death is proximately
caused by a willful physical assault by
the employer." (Italics
added.) Under the undisputed facts,
DePhilippis was Karty's employer as
defined in the Labor Code. (See § 3300(c).) Karty presented no evidence that DePhilippis
committed a physical assault or had any involvement or knowledge of the burn
incident, or that Lopez or Sevilla was acting on his behalf in committing the
claimed assault. Because there was no
evidence that DePhilippis (or someone on his behalf) engaged in the misconduct,
the section 3602(b)(1) exception is inapplicable.
As his
primary appellate argument, Karty urges us to construe the term
"employer" under section 3602(b)(1) to include vicarious liability
concepts. Karty notes that under
California law, an employer may be held vicariously liable for torts committed
by an employee within the scope of employment (see Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208), and this
respondeat superior liability may extend to "an employee's willful,
malicious and even criminal torts . .
. even though the employer has not authorized the employee to commit crimes or intentional
torts." (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th
291, 296-297.) Karty thus argues that an
employee is not limited to the workers' compensation remedy when a coemployee
commits an intentional assault during the scope of his employment.
A
California Court of Appeal rejected this same argument more than 10 years
ago. (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478,
1486-1489 (Fretland).) The Fretland
court reasoned that physical acts of aggression by employees are the
express subject of another statutory provision, section 3601. Subdivision (a) of section 3601 states that
workers' compensation is an employee's exclusive remedy for injuries caused by
a coemployee acting within the scope of employment, except "[w]hen the injury or death is proximately caused by
the willful and unprovoked physical act of aggression of the other
employee." (§ 3601(a)(1).) However, subdivision (b) of section 3601
states: "In no event . . . shall
the employer be held liable, directly or indirectly, for damages awarded
against, or for a liability incurred by the other employee under [the
intentional coemployee assault] paragraph."
Reviewing
these subdivisions of section 3601 together with section 3602(b)(1), the
unambiguously prohibits imposing civil liability on an employer for one
employee's assault and battery of another.
[¶] Applying the doctrine of
respondeat superior as [the appellant] proposes, to expand the scope of the
section 3602, subdivision (b)(1), exception to cover conduct committed by a
coemployee, would directly violate section 3601, subdivision (b). To reconcile these two statutory provisions,
liability under section 3602, subdivision (b)(1), must be based on positive
misconduct by the employer and not on a theory of vicarious liability such as
that which forms the basis of the doctrine of respondeat superior." (Fretland,
supra, 69 Cal.App.4th at p. 1487.)
We agree
with Fretland's reasoning and conclusion.
None of the
cases cited by Karty supports a contrary rule.
For example, in Meyer v. Graphic
Arts International Union (1978) 88 Cal.App.3d 176, the court reversed a
judgment sustaining a demurrer on a complaint alleging employees,
intentionally assaulted the employee. (
liability exception, and instead concerns an employer's direct liability for its own actions committed through its
agents. (See Arendell v. Auto Parts Club, Inc. (1994) 29 Cal.App.4th 1261,
1265.) Moreover, Meyer was decided before section 3601(b) was enacted in its current
form. Thus, as Fretland observed, the Meyer decision
is unpersuasive because the court did not discuss or even mention section
3601(b). (Fretland, supra, 69 Cal.App.4th at pp. 1488-1489.)
Similarly,
Karty's reliance on Farmers Ins. Group v.
County of Santa Clara (1995) 11 Cal.4th 992 is misplaced. Farmers
involved claims of sexual harassment between coemployees, rather than an
intentional physical assault under section 3601(a)(1) or an act of aggression
under section 3602(b)(1). (
998-1001.) Additionally, the
of the workers' compensation exclusivity rule.
A case is not authority for a proposition not considered therein. (In re
Marriage of Cornejo (1996) 13 Cal.4th 381, 388.)
Karty's
reliance on Herrick v. Quality Hotels,
Inns & Resorts, Inc. (1993) 19 Cal.App.4th 1608 (Herrick) is also
unavailing. In Herrick, the court found the employer ratified the employee's
misconduct based on facts showing the employer was aware of the assaultive
conduct and failed to discipline or terminate the employee. (Id.
at p. 1618.) As discussed below, there
was no similar ratification evidence in this case.
Karty
alternatively contends his employer (DePhilippis) may be held liable under
section 3602(b)(1) based on Lopez's status as a managing agent or
supervisor. However, exceptions to the
workers' compensation exclusivity rules are strictly statutory. Section 3602(b)(1) refers only to an injury
"caused by a willful physical assault by the employer." (Italics
added). Under its plain meaning, this
statutory exception does not extend to conduct by the supervisor or manager of
a sole proprietor absent a showing of the employer's own positive
misconduct.
Karty does
not cite to any statutory language extending section 3602(b)(1) to supervisors
or managers. Instead, Karty relies on
section 4553, which provides for increased workers' compensation
caused by the employer's
"serious and willful misconduct."
(§ 4553.) Section 4553 identifies three categories of
employers and the persons whose misconduct may trigger the increased benefits
under each category: (1) if the employer
is an individual, the misconduct must be by the "employer" or
"his managing representative"; (2) if the employer is a
"partnership," the misconduct must be "on the part of one of the
partners or a managing representative or general superintendent"; (3) if
the employer is a corporation, the misconduct must be "on the part of an
executive, managing officer, or general superintendent . . . ." (§ 4553(a), (b), (c).)
There is nothing in these statutory
categories permitting a court to read section 4553's expanded scope of employer
liability into section 3602(b)(1). The
two statutes involve different concepts.
Section 4553 concerns an employer's liability for increased workers'
compensation benefits; whereas section 3602(b) sets forth exceptions to the
workers' compensation exclusivity rules.
The fact that both may be triggered by a form of employer misconduct
does not mean the Legislature intended to define the scope of the misconduct in
the same way. To the contrary, the
express inclusion of the "managing representative" phrase in section
4553(a) and the omission of this phrase in section 3602(b)(1) indicates that
the Legislature intended a different result with respect to a sole
proprietorship. (See People v. Athar
(2005) 36 Cal.4th 396, 409 ["[W]hen the Legislature uses a critical word
or phrase in one statute, the omission of that word or phrase in another
statute dealing with the same general subject generally shows a different
legislative intent."].) If the
Legislature had intended the section 3602(b)(1) exception to apply to a
managing representative or superintendent, we presume it would have used the
same language as in section 4553(a) or section 4553(c).
Moreover, even if an assault by a
"managing representative" creates an exception to the exclusivity
provisions under section 3602(b)(1), Karty did not present evidence showing
Lopez was a managing representative.
Under section 4553, a " ' "managing agent or a managing
representative is one who has general
discretionary powers of direction and control—one who may direct, control,
conduct or carry on his employer's business or any part or branch
thereof." ' " (
Comp. Appeals Bd. (2010) 188 Cal.App.4th 1330, 1342; see
Acci. Com. (1944) 25 Cal.2d 171, 174; California
Shipbuilding Corp. v. Industrial Acci. Com. (1948) 85 Cal.App.2d 435,
437.) Under this definition, the class
of persons whose misconduct triggers the enhanced section 4553 penalties is
limited, and the statute is not triggered merely because a supervisor exercised
some authority on the employer's behalf.
(Bechtel, supra, at p. 174;
pp. 1342-1343.) "[T]he fact that a
minor supervisory employee . . . provides direction to a handful of workers
assigned to help with a specific task, does not make that employee a 'managing
officer, or general superintendent' of the company." (Bigge
Crane, supra, at p. 1345.)
Karty did not present evidence that
Lopez fit within this definition of a managing representative. There was no evidence that Lopez exercised
general discretionary power of direction and control over Filippi's restaurant
business, or even over the kitchen. DePhilippis never gave Lopez any power to
supervise others or to make management decisions. Lopez had no authority to hire, fire or
discipline the employees. She had no
policymaking authority. There was always
a manager (other than Lopez) supervising the restaurant, including the kitchen
operations, even if the manager was sometimes briefly away from the premises.
Karty argues that a person can meet
the definition of a "managing representative" even if he or she was
not formally appointed to this position.
However, there is no evidence Lopez had informal authority over the
business. At most, she was the lead cook
and made decisions regarding the kitchen work in the evenings, primarily
involving the pizza-making operations.
This evidence was insufficient to show Lopez was DePhilippis's managing
representative. Additionally, contrary
to Karty's assertions, the fact that DePhilippis relied on several managers to
run the business (Moceri, Crivello, and Kirk) does not mean that Lopez—who was
not a manager and had no managerial authority—was a managing
representative.
C. Ratification
Exception
Karty additionally contends the
court erred in granting the nonsuit because the evidence showed DePhilippis
ratified Lopez's alleged misconduct.
The ratification doctrine provides
an exception to the rule that an employer is not liable for a coemployee's
assaultive conduct because ratification shows independent employer
misconduct. (See Fretland, supra, 69 Cal.App.4th at pp. 1489-1491;
1618; Hart v. National Mortgage &
Land Co. (1987) 189 Cal.App.3d 1420, 1432.)
If an employer ratifies an employee's tortious conduct, the employer can
become civilly liable for the tort as a joint participant. (Fretland,
supra, 69 Cal.App.4th at pp. 1489-1490.)
The failure to discharge an
be evidence of ratification. (Delfino v. Agilent Technologies, Inc.
(2006) 145 Cal.App.4th 790, 810; Murillo v. Rite Stuff Foods, Inc.
(1998) 65 Cal.App.4th 833, 852.)
"The theory of ratification is generally
applied where an employer fails to investigate or respond to charges that an
v. Robinson (2006) 143 Cal.App.4th 151, 169; accord, C.R. v. Tenet
Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110.)
Karty did not present sufficient
evidence to show ratification because there was no evidence that DePhilippis or
any of his managers were aware that Lopez had any responsibility for Karty's burn
injuries or that Lopez was involved in any inappropriate assaultive conduct
towards Karty. The undisputed facts show
a restaurant manager questioned the employees after the incident, and the only
information obtained was that Sevilla was responsible for placing the hot tray
for Karty's order. Although Miguel
testified at trial that he heard Lopez encouraging and/or directing Sevilla to
"burn" Karty, Miguel conceded that no manager heard these statements
and there was no evidence Miguel ever reported the statements to management or
anyone else. An employer cannot be held
liable for ratification by failing to discipline or terminate an employee if
there is no evidence the employer was aware of that employee's misconduct.
Karty acknowledges "the issue of
ratification depends on what the employer knew at the time of the ratifying
behavior . . . ." However, he
argues DePhilippis was aware of Lopez's involvement because several days before
Karty sustained the burn injuries, one manager saw Lopez hit Karty on the head
with a pizza box containing three dough balls.
At trial Karty described this pizza-box incident in response to his
counsel's question regarding whether "[a]t any point did any of this
[horseplay] escalate," but Karty presented no evidence that he
complained about the incident or that he considered it to be materially
different than the other normal horseplay activities. Similarly, the fact that Lopez allegedly
laughed immediately after Karty was burned and that she may have been in the
vicinity when Karty reached for the pizza pan, would not have reasonably
disclosed to management that Lopez had any responsibility for the burn
incident.
DePhilippis's
failure to terminate or discipline Lopez for her alleged participation in the
burn incident was insufficient to show ratification of the assaultive conduct
because Karty did not present evidence showing DePhilippis or his managers were
aware of Lopez's purported involvement in the incident. In reaching this conclusion, we recognize
that before trial Judge Dato ruled that ratification was no longer an issue
based on Judge Oberholtzer's earlier order denying DePhilippis's summary
judgment motion. In that denial order,
Judge Oberholtzer found no triable issues of fact on the ratification
theory. However, this finding should not
have precluded Karty from asserting the ratification theory at trial because
Judge Oberholtzer's ruling was based solely on the summary judgment
record. After a court denies a summary
judgment motion, the parties are free to litigate all issues raised by the
pleadings.
However, in
his appellate briefs Karty does not challenge Judge Dato's pretrial ruling
regarding the ratification theory. Thus,
Karty has forfeited any challenge to this ruling on appeal. In any event, it appears that Karty had the
opportunity to, and did, present all evidence relating to the ratification
issue at trial, despite Judge Dato's earlier ruling. Thus, there is no basis to conclude the
court's ruling on the ratification theory was prejudicial. We have determined based on our review of the
entire record that there was no evidence of ratification, and Karty does not
claim that he would have presented additional evidence but for Judge Dato's
pretrial ruling on the ratification theory.
DISPOSITION
Judgment
affirmed. Appellant to bear respondent's
costs on appeal.
HALLER, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
name="_ftn1" title="">[1]
All further statutory references
are to the Labor Code. The word
"subdivision" will be omitted from the statutory references.
name="_ftn2" title="">[2]
The record indicates the first
time DePhilippis became aware of Miguel's claims was when Karty filed Miguel's
declaration in response to DePhilippis's summary judgment motion.
