Koscki v. Herbert

Filed 10/12/07 Koscki v. Herbert CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Cory J. Woodward, Commissioner.

Callahan & Blaine, Jim P. Mahacek, Stephen E. Blaine and Jill A. Thomas for Plaintiff and Appellant.

Manning & Marder Kass, Ellrod, Ramirez and Darin L. Wessel for Defendants and Respondents.

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Laura C. Koscki was seriously injured when her coworker, Gerald Henry Herbert, negligently operated a tractor-trailer rig, causing it to leave the roadway. Koscki sued Herbert and their employer, Consolidated Freightways Corporation (Consolidated), for her injuries.

The trial court granted Herberts motion for judgment on the pleadings based on his assertion that Kosckis exclusive remedy was workers compensation benefits. The trial court also denied Kosckis request for leave to amend to avoid the exclusivity provisions of the workers compensation statutes. Finally, the trial court also granted judgment in favor of Consolidated for reasons that are unclear from the record.

We conclude the trial court abused its discretion in refusing to grant Koscki leave to amend her complaint to avoid the exclusivity provisions of the workers compensation statutes. We also conclude the trial court erred in granting judgment in favor of Consolidated. We will, therefore, reverse the judgment.

FACTUAL AND PROCEDURAL SUMMARY

The following facts are taken from various papers filed in this action. Although not relevant to our analysis, these facts are helpful in understanding the issues in the case.

Koscki and Herbert were employed by Consolidated as truck drivers. Koscki was a union steward and very vocal in her criticism of her employer on various issues, including unsafe equipment, alcohol and drug abuse by drivers, and drivers working for extended periods of time without adequate time off. She felt she was harassed by Consolidated and believed Consolidated attempted to force her to quit her job through various nefarious means. She apparently had a good driving record, however, and was one of the top drivers in terms of miles driven.

On August 3, 2002, Koscki arrived at Consolidateds Sacramento terminal at approximately 3:00 a.m. after a long trip. She had worked for at least two weeks without a day off and requested two days plus eight hours off duty, apparently pursuant to the terms of the union agreement.

At 12:00 noon the same day, Koscki received a phone call from Consolidateds dispatcher with orders to be at the terminal to begin another trip at 8:00 p.m. that night, or lose her job. She arrived at work in a timely manner and was assigned to make a trip to Dallas, with Herbert as her codriver. The tractor they were assigned needed repairs before they could leave, so the trip did not commence until approximately 11:00 p.m.

Herbert drove the first part of the trip while Koscki slept in the sleeper compartment of the vehicle. In the early morning hours of August 4, 2002, somewhere near Mojave, Herbert apparently fell asleep, causing the vehicle to leave the roadway and roll over several times while crashing down an embankment. Koscki sustained serious injuries. Consolidated filed a petition in the bankruptcy court approximately one month after the accident.

Koscki pursued workers compensation benefits for her injuries. In addition, she filed a Judicial Council form complaint for the injuries she sustained in the accident, naming both Herbert and Consolidated as defendants. It is this personal injury complaint that is now before us.

The complaint contains two causes of action. The first cause of action asserts that Herberts negligent operation of the vehicle caused Kosckis injuries, and that Consolidated was the owner of the vehicle at the time of the accident. The second cause of action simply states that Herbert and Consolidated negligently caused Kosckis injuries.

Herbert answered the complaint with a general denial and asserted various affirmative defenses, including the exclusive remedy provisions of the workers compensation system. Consolidated did not file an answer. Apparently, it was not served.

Herbert filed a motion for judgment on the pleadings based on the exclusivity of the workers compensation remedy. Included in Herberts motion were several documents purported to be from Kosckis workers compensation claim. Herbert requested the trial court take judicial notice of these documents to establish that Koscki had filed a workers compensation claim.

Koscki conceded that she filed a workers compensation claim, but argued she should be granted leave to amend to allow her to plead facts that would provide an exception to the workers compensation exclusivity rule. Koscki provided her own declaration in an attempt to demonstrate that facts existed to support her request.

The trial court granted Herberts motion for judgment on the pleadings and denied Kosckis request for leave to amend. The trial court also dismissed the complaint without prejudice against Consolidated, without providing the grounds for doing so.^[1]

DISCUSSION

We begin with the relevant law regarding motions for judgment on the pleadings. Code of Civil Procedure section 438^[2]provides that a defendant may move for, or the trial court may grant on its own motion, judgment on the pleadings if the trial court does not have jurisdiction over the subject matter of the cause of action or the complaint does not state facts sufficient to constitute a cause of action. ( 438, subd. (c)(1)(B)(i), (ii), (3)(B)(i), (ii).)

The grounds for the motion must appear on the face of the pleading or from matters of which the trial court may take judicial notice.^[3] ( 438, subd. (d).) A defendant may file a motion for judgment on the pleadings only after it has filed its answer. (Id., subd. (f)(2).) A motion may be granted with or without leave to amend. (Id., subd. (h)(1).)

A motion for judgment on the pleadings, therefore, is equivalent to a demurrer. (Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672 (Kapsimallis).) The trial court is required to accept as true all properly pleaded facts and to give those facts a liberal construction. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516 (Gerawan); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Contentions, deductions, or conclusions of fact or law are not accepted as true. (Blank, at p. 318.) The trial court also may consider facts of which judicial notice may be taken. (Mendoza v. Continental Sales Co., Inc. (2006) 140 Cal.App.4th 1395, 1401 (Mendoza).) The trial court may not consider any other extrinsic evidence. (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1063.)

The motion should be denied if material factual issues exist. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) The motion should be granted only where the plaintiff cannot, as a matter of law, prevail on the merits of the action. (In re Guardianship of Olivia J. (2000) 84 Cal.App.4th 1146, 1155.) The trial court has discretion in determining whether to grant leave to amend, although leave to amend should be granted whenever there is a reasonable possibility the defect in the complaint may be cured. (Mendoza, supra, 140 Cal.App.4th at p. 1402; Haley v. Dow Lewis Motors, Inc. (1999) 72 Cal.App.4th 497, 506.)

Our task is similar to that of the trial court. (Gerawan, supra, 24 Cal.4th at p. 516.) We review the trial courts ruling de novo. (Kapsimallis, supra, 104 Cal.App.4th at p. 672.) We do not consider whether the plaintiff will ultimately be able to prove his or her claims. (Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 198.) When the issue is whether the plaintiff should have been granted leave to amend, it is the plaintiffs burden to show the trial court abused its discretion. (Mendoza, supra, 140 Cal.App.4th at p. 1402.)

We begin with some preliminary matters. First,we reject Kosckis arguments related to the propriety of the trial court taking judicial notice of documents related to her workers compensation claim. Koscki conceded that she filed a workers compensation claim in the trial court. [A]dmissions or concessions of matters which cannot reasonably be controverted are properly considered on a motion for judgment on the pleadings. [Citation.] (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549.)

Second, we deny Herberts request that we take judicial notice of various documents from the bankruptcy court. It is unclear what relevance these documents have to the issues before us. Moreover, our resolution of those issues renders the proceedings in the bankruptcy court irrelevant since the documents relate only to Consolidated. This is not to say that the bankruptcy proceedings may not have some relevance on remand, but only that they are not relevant to our analysis.

Third, we reject the contention that Koscki somehow consented to Herberts motion for judgment on the pleadings as being a joint motion that included Consolidated. Since Consolidated had not filed an answer in the action, it was barred procedurally from filing a motion for judgment on the pleadings. ( 438, subd. (f)(2).) Nor is there any indication in the record that Consolidated ever joined the motion filed by Herbert or made a motion to the trial court for judgment on its behalf. The footnote in Herberts points and authorities that he was moving for judgment in his favor and dismissal of the entirety of Plaintiffs complaint as against both defendants is plainly inadequate. Herbert may not make a motion on behalf of Consolidated.

We now turn to the only issue in this case, which also is the same issue that was before the trial court -- can Koscki avoid the exclusivity provision of the workers compensation statutes?

The workers compensations system is designed to (1) provide an employee with prompt, limited compensation for an injury, (2) insulate the employer from tort liability for work-related injuries, (3) shift the cost of industrial injuries to the cost of the goods produced, and (4) encourage workplace safety. [Citations.] [] In general, the Workers Compensation Act provides an employee with his or her exclusive remedy for a work-related injury. Subject to narrow exceptions an injured employee cannot maintain a civil action against his or her employer [citation] or another employee [citation]. (Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430, 443.)

The statutory framework for the workers compensation system is found in the Labor Code. Labor Code sections 3601 and 3602 are relevant here. Section 3601, subdivision (a) provides that the exclusive remedy for an employee injured by another employee in the course and scope of his or her employment is that of the Workers Compensation Act. Two exceptions are provided. An employee may seek remedies outside the Workers Compensation Act against another employee if (1) the injury is caused by the willful and unprovoked physical act of aggression of the other employee, or (2) the injury is caused by the intoxication of the other employee. (Lab. Code,  3601, subd. (a)(1), (2).)

Labor Code section 3602, subdivision (a) provides that the Workers Compensation Act is the exclusive remedy for the employee against the employer, again subject to certain exceptions. These exceptions are (1) where the injuries are caused by a willful physical assault by the employer; (2) where the injuries are aggravated by the employers fraudulent attempt to conceal the injury; (3) where the injury is caused by a defective product manufactured by the employer; (4) if the employer fails to secure the payment of compensation; or (5) the employer removes or permits the removal of a point of operation guard on a power press. (Lab. Code,  3602, subds. (b)(1)-(3), 3706, 4558.)

With these rules in mind, we turn to the proceedings in the trial court. Herbert filed a motion for judgment on the pleadings alleging that workers compensation was Kosckis exclusive remedy. Koscki admitted in her moving papers that her injuries arose out of her employment and that Herbert was her coemployee. Therefore, Labor Code section 3601 provides that workers compensation is her exclusive remedy, unless the injury was the result of an unprovoked act of physical aggression or was caused by Herberts intoxication. (Id., subd. (a)(1), (2).)

The facts cited by Koscki eliminate any possibility that the injuries were caused by an unprovoked act of physical aggression by Herbert; this was a motor vehicle accident. Koscki made numerous references to Herberts purported history of substance abuse and argued she should be allowed leave to amend her complaint to avoid the exclusivity rule. Nowhere, however, did Koscki state that Herbert was intoxicated, or that his intoxication caused the accident. Nor did she identify any other theory on which she could sue Herbert in the face of the exclusivity rule.

We are mindful that a trial court has discretion in ruling on the issue of whether to grant leave to amend, and we also are mindful that the courts of this state repeatedly have emphasized the preference for resolutions of disputes on the merits. (Kalai v. Gray (2003) 109 Cal.App.4th 768, 776.) While the representations by Koscki concerning liability are not certain, we still conclude it is reasonably probable that Koscki could have cured the defect in her complaint through amendment. Thus, we will reverse the judgment in Herberts favor and allow Koscki to file an amended complaint.

The issue of the judgment in favor of Consolidated is simpler to resolve. The record does not provide any explanation for the judgment. The minute order merely states: On the courts own motion the complaint against the remaining unserved defendant, Consolidated Freight is dismissed without prejudice. It is impossible, therefore, to review the order in any meaningful manner. (See, e.g., McBail & Co. v. Solano County Local Agency Formation Com. (1998) 62 Cal.App.4th 1223, 1230.)

Herberts motion was the only motion before the trial court. As stated above, Consolidated was barred procedurally from making a motion for judgment on the pleadings since it had not filed an answer to Kosckis complaint. ( 438, subd. (f)(2).)

In addition, the trial court did not give Koscki notice or an opportunity to oppose whatever theory on which the trial court may have dismissed Consolidated. Under these circumstances, this judgment cannot stand. (See, e.g., In re Paul W. (2007) 151 Cal.App.4th 37, 55.)

We are aware that it may be difficult for Koscki to establish that either Herbert or Consolidated is liable for her injuries in the face of the workers compensation exclusivity rule. A motion for judgment on the pleadings, however, is appropriate only when there is no possibility that the plaintiff can state facts sufficient to constitute a cause of action against the defendant. (Kapsimallis, supra, 104 Cal.App.4th at p. 672.) Because there are exceptions to the exclusivity rule, factual determinations must be made before judgment can be entered. For example, was Herbert intoxicated at the time of the accident and was Consolidated insured for the statutorily mandated workers compensation coverage? These determinations cannot be made on a motion for judgment on the pleadings.

DISPOSITION

The judgment is reversed. The matter is remanded to the trial court with directions to enter an order allowing Koscki to file an amended complaint in accordance with section 438, subdivision (h)(2). Koscki is awarded her costs.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

HARRIS, Acting P.J.

_____________________

HILL, J.

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^[1] The trial courts minute order Dismissed the complaint against Consolidated. The written judgment, however, states that judgment was entered in favor of Consolidated. As a convenience, we will assume judgment was entered in favor of Consolidated, despite the fact it never appeared in the trial court, and we will treat Consolidated as a party to this appeal.

^[2] All further statutory references are to the Code of Civil Procedure unless otherwise stated.

^[3] If the motion is based on matters of which the trial court may take judicial notice, the moving party must specify the matter in its moving papers. ( 438, subd. (d).)