Opinion
C055102
7-30-2008
SHAYNE ALVIS, Plaintiff and Appellant, v. ROBERT McINTYRE et al., Defendants and Respondents.
Not to be Published
Plaintiff Shayne Alvis was seriously injured while working on a construction site, and sued a number of parties. In this part of the case, he seeks to avoid the exclusivity provisions of the workers compensation scheme as against parties he pleaded were his employers, albeit employers who allegedly failed to comply with the workers compensation laws.
The trial court entered summary judgment in favor of the employers (Pat Thomaselli, Thomaselli Construction, Robert McIntyre and McIntyre Enterprises), and Alvis timely appealed from the ensuing judgment. After the parties waived oral argument, Alvis and the Thomaselli defendants settled. We conclude that the pleadings and undisputed facts show that under no hypothesis can Alvis prevail against the McIntyre defendants. Accordingly, we shall affirm.
STANDARD OF REVIEW
We review summary judgment appeals de novo, using the same three-step analysis employed by the trial court: We identify the issues framed by the pleadings, determine whether the movant has shown the opponent cannot prevail on any pleaded theory, and then determine whether the opposition demonstrates the existence of a triable issue of material fact. (Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.)
Ordinarily where, as here, defendants separately move for summary judgment, the motions should be analyzed separately. (See, e.g., Wilson v. Blue Cross of So. California (1990) 222 Cal.App.3d 660, 671.) But Thomasellis motion incorporated McIntyres motion and no objection was lodged.
Alvis, as the appellant, must "point out the triable issues [he] claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed." (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)
BACKGROUND
A worker may not normally sue an employer for job injuries because the remedies provided by the workers compensation statutes are "in lieu of any other liability whatsoever." (Lab. Code, § 3600, subd. (a).) An exception relevant to this case is that an employer who "fails to secure the payment of compensation" may be sued "as if [the compensation statutes] did not apply." (Id., §§ 3602, subd. (c); 3706.)
A. Pleadings
Alvis filed a verified complaint, raising numerous theories against several defendants, including some who are not parties on appeal. The gist is that on November 18, 2004, Alvis was working at a construction site when another worker cut into a roof truss, causing Alvis to be crushed.
The complaint partly alleges:
"The Employer on the job was Defendant Robert McIntyre, of Defendant McIntyre Enterprises, with supervision by Defendant Pat Thomaselli, of Defendant Thomaselli Construction (`Employer Defendants). The Employer Defendants did not comply with California Workers Compensation law, and other labor laws, although some medical expenses have been paid by Robert McIntyre, by and through his workers compensation carrier [State Compensation Insurance Fund, or SCIF]."
The complaint also alleges that Thomaselli was McIntyres agent. A claim for negligent hiring partly alleges:
"At this time a [Workers Compensation Appeals Board (WCAB) case] is pending to determine who was the employer . . ., either Defendant Robert McIntyre, of Defendant McIntyre Enterprises, or Pat Thomaselli, of Thomaselli Construction (together `Defendant Employers)."
Robert McIntyre, doing business as McIntyre Enterprises (collectively, McIntyre) answered in part by denying he was Alviss employer; he also alleged he had compensation insurance and Alvis had filed a compensation claim, therefore this suit was barred by the workers compensation remedy.
Pat Thomaselli and Thomaselli Construction (collectively, Thomaselli) in part denied that he employed Alvis, but he, too, also alleged that Alviss claims were barred.
B. Summary Judgment Motions
Thomasellis motion observed that the complaint conceded Alviss injuries took place in the course of employment, and that Thomaselli acted as a supervisor and McIntyres agent; further, Alvis had both sought and received compensation benefits. Thomaselli alleged he and McIntyre were Alviss employers, or that Thomaselli was a coworker, citing Alviss verified complaint.
McIntyre alleged that he had compensation insurance at all relevant times, citing his declaration. Alvis denied that McIntyre had insurance, based on lack of information. Because no evidence supported Alviss claim, he did not effectively oppose McIntyres allegation. (See Code Civ. Proc., § 437c, subds. (b)(3) & (p)(2); Cal. Rules of Court, rule 3.1350(f); Tilley v. CZ Master Assn. (2005) 131 Cal.App.4th 464, 477-479; Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1025-1026.)
Alviss opposition claimed there was a dispute as to who was his employer, based on the WCAB proceeding mentioned in the complaint, and claimed that McIntyre did not comply with the compensation laws, thus he could not maintain the exclusivity defense. For example, Alvis claimed McIntyre did not post proper workplace notices, and did not timely give Alvis a claim form.
Alviss declaration opposing summary judgment stated that McIntyre "sent me to work" for Thomaselli.
Thomasellis reply included a letter Alviss counsel had sent, stating that Alvis had been McIntyres employee, but had been loaned to other subcontractors, as on this occasion. Nowhere in Thomasellis or McIntyres papers is there any evidence that Alvis had been employed by either of them.
McIntyres reply pointed out that the verified complaint alleges McIntyre was Alviss employer. He replied to Alviss argument regarding the WCAB proceeding as follows:
"This passage in plaintiffs complaint does not controvert his express statement under penalty of perjury that his employer was Robert McIntyre. Rather, it simply anticipates that [SCIF] might dispute that allegation. As we know, SCIF did not dispute that McIntyre is plaintiffs employer, accepted the claim, and has provided workers compensation benefits."
In support, McIntyre cited the declaration of a SCIF attorney previously filed with his motion, stating SCIF was his insurer, and that Alvis had filed a claim and received benefits. Alvis produced no evidence opposing these facts, and on appeal he does not dispute them.
Alvis filed a "supplement," describing a form McIntyre filed with SCIF in which he said Alvis was not his employee but was working "per subcontract" for Thomaselli; Alvis asserted that Thomaselli had variously claimed to be Alviss employer, that McIntyre was Alviss employer and that Thomaselli was Alviss "special employer," and argued that this raised a triable issue as to who was his employer.
C. Trial Court Ruling
The trial court in part found McIntyre and Thomaselli were Alviss employers and the purported failings regarding Alviss claim did not vitiate the compensation exclusivity defense. The trial court granted both summary judgment motions. Alvis appealed from the ensuing judgment.
DISCUSSION
I. McIntyre was Alviss Employer.
Whether the employment relationship exists is generally a question for the trier of fact, but where neither the evidence nor inferences conflict, the issue may be resolved on summary judgment. (See Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 210, 217 (Brassinga).)
McIntyre produced no evidence of employment. But he did not need to, because of the first step of summary judgment analysis: What issues are defined by the pleadings? (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.)
Alviss verified complaint, which he never sought to amend, alleged that McIntyre was his employer and Thomaselli was his supervisor and McIntyres agent. It is settled that "a party can rely on his adversarys pleadings to establish facts not contained in his own affidavits." (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181; see College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 720, fn. 7.)
Alvis asserts that because the answers, and McIntyres SCIF form, denied an employer relationship, there is a triable issue of fact. We disagree. That McIntyre may at times have denied the employment relationship is of no moment because at the summary judgment stage he was were entitled to accept the complaint on its terms. "The burden of a defendant moving for summary judgment only requires that he or she negate plaintiffs theories of liability as alleged in the complaint. A `moving party need not ". . . refute liability on some theoretical possibility not included in the pleadings." [Citation.] [Citation.] `"[A] motion for summary judgment must be directed to the issues raised by the pleadings. The [papers] filed in response to a defendants motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings."" (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342; see AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064.)
We have found an analogous case, where a defendant relied on a complaint to show entitlement to summary judgment and a plaintiff attempted to rely on an answer to raise a triable issue of fact. In 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, the plaintiff alleged that defendants "were acting within the course and scope of their employment at all relevant times[]" and defendants relied on that allegation in their summary judgment motions. (Id. at pp. 1210-1211.) The plaintiff tried to refute the point, but the court concluded that the allegation in the complaint was a factual allegation, not a legal conclusion, and therefore defendants did not need to provide further evidence of it to establish their initial burden on summary judgment. (Id. at p. 1211.) Further, the plaintiff tried to point to the answer of one defendant, much as Alvis relies on the defendants answers here, to contest the point. The court rejected this tactic as well, because "To the extent that [plaintiffs] opposition thus rests only upon pleadings, rather than evidence, it was insufficient to satisfy her burden." (Id. at p. 1211.) So, too, here.
As stated, Alvis could have, but did not, move to amend his complaint; his failure to do so means he is stuck with the complaint as pleaded. (See Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1500; Robinson v. Hewlett-Packard Corp. (1986) 183 Cal.App.3d 1108, 1132.)
For this reason, Alviss reliance on his declaration in opposition to summary judgment is unavailing. "Regardless of how good the arguments may seem, a plaintiff plainly cannot base them on causes of action which are not in its complaint, without amending to include them!" (Younger on California Motions (2007) Summary Judgment, § 8:61, p. 270; original italics.)
Alvis points to the part of the complaint describing a WCAB proceeding, claiming it shows that his complaint, taken as a whole, did not plead that these defendants were his employers. We disagree. The allegation that a WCAB case was pending did not change the explicit allegation that both McIntyre and Thomaselli were, factually, his employers. That another forum was adjudicating the question might have had relevance for purposes of abatement or, had the other forum reached a decision, for issue or claim preclusion. As far as this complaint is concerned, the allegation was irrelevant.
Further, even if we construed the pleading in the manner Alvis suggests, he would run headlong into the rule that a party cannot "blow hot and cold" in a verified pleading.
In the reply brief Alvis points to the "right" of a plaintiff to plead inconsistent theories. But such "right" does not invariably allow the pleading of inconsistent facts. "`Inconsistent counts in a complaint usually constitute a pleading of the same cause of action according to different legal theories or different versions of ultimate facts." (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 363, p. 466.)
This pleading rule was not "intended to sanction the statement in a verified complaint of certain facts as constituting a transaction in one count or cause of action, and in another count or cause of action a statement of contradictory or antagonistic facts as constituting the same transaction. In short, the rule does not permit the pleader to blow both hot and cold in the same complaint on the subject of facts of which he purports to speak with knowledge under oath." (Beatty v. Pacific States S. & L. Co. (1935) 4 Cal.App.2d 692, 697, quoted with approval by Faulkner v. Cal. Toll Bridge Authority (1953) 40 Cal.2d 317, 328 (Faulkner), and cited with approval on this point by Steiner v. Rowley (1950) 35 Cal.2d 713, 718-719.)
Witkin notes the Beatty rule, and its approval by the California Supreme Court, and criticizes it on the ground that it requires pleaders who choose to plead antagonistic facts to avoid verifying the complaint. (4 Witkin, Cal. Procedure, supra, § 372, pp. 473-474.) But we must follow the California Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and here Alvis verified the complaint, therefore he may not take advantage of the fact—at least, as he construes the complaint—that he blew "both hot and cold" regarding who were his employers. (See Walker v. Dorn (1966) 240 Cal.App.2d 118, 119-120 [verified answer admitted and denied written lease; "the verified pleadings present contradictions of fact within the rationale of judicial admissions, conclusively conceding defendants tenancy under a written lease"]; 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 97, pp. 799-800.)
Witkin suggests that "Contradictory allegations of pure fact, deliberately made by a person with knowledge of the facts, can be prevented by striking out the pleading, or by treating one as an admission." (4 Witkin, Cal. Procedure, supra, § 372, p. 474, see Faulkner, supra, 40 Cal.2d at pp. 328-329 [specific allegation that a board allowed an hour and a half for comment precluded reliance on more general claim that the board did not conduct an adequate hearing].) Here, the complaint pleaded under oath, as a fact, not on information and belief, that the employer was McIntyre, "with supervision by" his agent, Thomaselli. The vague allegation about the WCAB dispute cannot be used to negate the more specific allegation.
Alvis pleaded that McIntyre was his employer and Thomaselli was his supervisor and McIntyres agent. It is unclear whether he really meant that Thomaselli was merely McIntyres "agent" or whether he meant to plead that he had two separate employers. We need not address this point in light of the settlement between Alvis and Thomaselli, as it does not change our analysis about McIntyres potential liability.
If Thomaselli was merely an "agent" of McIntyres, that is, working for McIntyre as the "supervisor" on the job, he was not separately liable to Alvis; he was a co-employee. (Lab. Code, § 3601 [co-employees not generally liable, with exceptions for assaults, drunkenness, etc.]; see Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1002.)
Another reading of the complaint—and the one confirmed by Alviss declaration that McIntyre "sent" him to work for Thomaselli—is that they were dual employers. "`Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employers—his original or "general" employer and a second, the "special" employer." (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174.) In such cases, if either employer has compensation coverage, an issue we address later, "`the workman is barred from maintaining an action for damages against either employer." (Id. at p. 175; see Brassinga, supra, 66 Cal.App.4th at p. 209; Diamond Woodworks, Inc. v. Argonaut Ins. Co. (2003) 109 Cal.App.4th 1020, 1030-1031.)
II. The claimed violations do not defeat exclusivity.
McIntyre was insured by SCIF, but Alvis claims that because of certain statutory violations by McIntyre, "he is denied the protections" of the exclusivity rule. We disagree.
Alvis describes the following purported violations by McIntyre: (1) McIntyre did not post the appropriate compensation notices at the jobsite; (2) McIntyre did not promptly give Alvis a claim form after learning of the injury; (3) McIntyre failed to return a completed form to Alvis; (4) McIntyre failed to ensure prompt payment to Alvis of his benefits; (5) McIntyre failed to tell Alvis his rights under the compensation system; and (6) McIntyre failed to provide a safe jobsite.
Without analysis, Alvis cites Labor Code section 3602 for the proposition that any violation of "the Workers Compensation laws," takes an employer outside the compensation system. That is not a correct statement of law.
Labor Code section 3602, subdivision (d) has two paragraphs.
The first states:
"For the purposes of this division, . . . an employer may secure the payment of compensation . . . by agreement by another employer by entering into a valid and enforceable agreement with that other employer under which the other employer agrees to obtain, and has, in fact, obtained workers compensation coverage . . . . In those cases, both employers shall be considered to have secured the payment of compensation . . . ." (Italics added.)
The second states:
"Employers who have complied with this subdivision shall not be subject to civil, criminal, or other penalties for failure to provide workers compensation coverage or tort liability in the event of employee injury, but may, in the absence of compliance, be subject to all three." (Italics added.)
The second paragraph refers to "this subdivision," that is, section 3602, subdivision (d), pertaining to agreements among employers to provide compensation coverage. Thus, a violation of the first paragraph of the subdivision may nullify the protections otherwise provided thereby and subject an employer to civil liability. But the purported violations alleged by Alvis have nothing to do with the McIntyre-Thomaselli agreement.
Alvis offers no authority for the proposition that any Labor Code violations deprive an employer of the protections of the compensation scheme. Indeed, delays in payment, failures to post notices and so forth occur commonly, which is why the compensation system includes penalties within that system for violations of the statutes. (See, e.g., 2 Witkin, Summary of Cal. Law (10th ed. 2005) Workers Compensation, §§ 31-34, pp. 575-577.) Alviss view, if correct, would vitiate the compensation scheme. It is Alviss burden to establish error, and he has failed to provide authority for his claim that McIntyres purporting statutory failings would allow this tort suit.
III. Thomaselli did not need separate insurance.
Alvis claims he raised a triable issue whether Thomaselli was properly insured. We disagree.
Alvis claims that it is uncontested that Thomaselli had no insurance. We accept Alviss view that Thomaselli had the burden to demonstrate that he had coverage, as a defendant moving for summary judgment has the burden to show the plaintiff cannot not recover on any theory. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; cf. Doney v. Tambouratgis (1979) 24 Cal.3d 91, 96-97 [if complaint shows employment, it must allege facts taking it outside compensation system].)
Here, the complaint alleges that due to statutory violations, the employers were precluded from invoking the act. But as we have explained above, none of those claimed violation vitiate the compensation exclusivity defense.
The trial court made a key finding that McIntyre and Thomaselli were dual employers. Alvis fails to attack this finding in his opening brief. Absent good cause, claims belatedly raised, that is, not raised in the opening brief, are forfeited. (Kahn v. Wilson (1898) 120 Cal. 643, 644; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807-808.)
Although we deem the point forfeited, we briefly address it. In a reply brief Alvis asserts "before Thomaselli can claim the right of a special employer in a dual employment relationship, there has to be undisputed facts that McIntyre was in a dual employment relationship with him."
We agree that whether a worker has dual employers is normally a factual question. (See Kowalski, supra, 23 Cal.3d at pp. 175-179.) But here, as stated, there was no need for Thomaselli to present facts about his relationship as between Alvis and McIntyre: The verified complaint pleaded that he acted as McIntyres agent and the job-site supervisor.
Further, the McIntyre-Thomaselli contract—tendered as evidence by Alvis—required Thomaselli to have compensation insurance, and provided that if he did not, McIntyre would provide it and recover the premiums from Thomaselli either on demand or by withholding those amounts from payments due to Thomaselli under the contract. That contract satisfied Thomasellis duty to ensure compensation coverage.
"Section 3602, subdivision (d), was enacted `to allow general and special employers to come to an agreement to ensure that the workers are fully covered by workers compensation insurance but not to burden both employers with redundant premium payments." (InfiNet Marketing Services, Inc. v. American Motorist Ins. Co. (2007) 150 Cal.App.4th 168, 178.)
Here, McIntyre provided compensation insurance and Alvis has received benefits thereunder. There was no need for Thomaselli to have duplicative coverage for Alvis. Whether Thomaselli is liable to indemnify McIntyre or reimburse him for premiums is a matter between the employers and does not affect this suit by Alvis against the employers.
IV. Other claims.
Alvis makes arguments within his summary of the trial courts ruling. We disregard them because a claim must be properly headed, and therefore made in the argument part of a brief. (See Cal. Rules of Court, rule 8.204(a)(1)(B); Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 59; Landa v. Steinberg (1932) 126 Cal.App. 324, 325.)
We need not address other points because they are either subsumed within the points discussed above or involve alternative theories to sustain summary judgment. (Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1287 [sustaining one ground suffices]; see Charpentier v. Von Geldern (1987) 191 Cal.App.3d 101, 107.)
DISPOSITION
The judgment is affirmed. Alvis shall pay McIntyres costs of this appeal. (Cal. Rules of Court, rule 8.278(a)(1)(2).)
We concur:
DAVIS, Acting P.J.
ROBIE, J.