Opinion
G044710 (consol. with G044712) Super. Ct. No. 30-2009-00296831
02-29-2012
JANET A. TIDGEWELL, Plaintiff and Appellant, v. DAVID E. GENTRY, APC et al., Defendants and Respondents.
Bohm, Matsen, Kegel & Aguilera, Kari M. Myron, Richard A. Semon; Chavos & Rau, Anthony Chavos and Laurie Rau for Plaintiff and Appellant. Lubrani & Brown, Michael D. Lubrani, Lawya Rangel and Kazoua V. Cha for Defendant and Respondent David E. Gentry. Morris Polich & Purdy, David L. Brandon, James M. Chantland and Christian A. Carrillo for Defendant and Respondent Hollins Schechter.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Franz E. Miller, Judge. Affirmed.
Bohm, Matsen, Kegel & Aguilera, Kari M. Myron, Richard A. Semon; Chavos & Rau, Anthony Chavos and Laurie Rau for Plaintiff and Appellant.
Lubrani & Brown, Michael D. Lubrani, Lawya Rangel and Kazoua V. Cha for Defendant and Respondent David E. Gentry.
Morris Polich & Purdy, David L. Brandon, James M. Chantland and Christian A. Carrillo for Defendant and Respondent Hollins Schechter.
***
Plaintiff Janet A. Tidgewell appeals from a summary judgment entered in favor of her former attorneys, defendants Hollins Schechter, APC, and David E. Gentry, APC, in this legal malpractice action. Hollins Schechter and Gentry represented Tidgewell on her workers' compensation claim against her employer, Becton Dickinson and Company (Becton), for injuries to both of her wrists.
Using the Workers' Compensation Appeals Board mandatory Compromise and Release form, Hollins Schechter settled Tidgewell's workers compensation claim with Becton. Tidgewell agreed to the settlement and signed the Compromise and Release form when Gentry assured her the agreement would not impact the separate age discrimination lawsuit she intended to file against Becton. When Tidgewell later filed her age discrimination lawsuit, however, Becton asserted the Compromise and Release as an affirmative defense, arguing Tidgewell waived her age discrimination claims by signing the form. Tidgewell agreed to settle her discrimination lawsuit with Becton for what she characterizes as a significant discount because the Compromise and Release she signed severely weakened her case. She then filed this action against Hollins Schechter and Gentry.
The trial court granted Hollins Schechter and Gentry summary judgment, finding the Compromise and Release agreement unambiguously settled Tidgewell's workers' compensation claim only and had no impact on her age discrimination lawsuit as a matter of law. As explained below, we affirm the trial court's judgment because nothing in the Compromise and Release expresses an intent to resolve any claim other than Tidgewell's workers' compensation claim and the Compromise and Release actually limited itself to claims based on Tidgewell's wrist injuries only.
Tidgewell also appeals from a trial court order denying her motion for a new trial. Tidgewell contends the trial court erred in denying her new trial motion for the same reasons it erred in granting Hollins Schechter's and Gentry's summary judgment motion. Accordingly, we affirm the trial court's ruling on the new trial motion for the same reasons we affirm its ruling on the summary judgment motions.
I
FACTS AND PROCEDURAL HISTORY
Tidgewell began working for Becton in 1976, eventually advancing to regional business manager. During her employment, she developed carpel tunnel syndrome in both wrists, and in April 2005, Tidgewell went on medical leave to have surgery. In September 2005, Tidgewell, represented by Hollins Schechter, filed a workers' compensation claim against Becton based on her wrist injuries.
When she hired Hollins Schechter, Tidgewell informed the firm she also intended to file an age discrimination claim against Becton. Tidgewell believed she received differential treatment before she took her medical leave and it would only be a matter of time until Becton fired her because it recently had fired several other employees in her age group without cause. Hollins Schechter offered to represent Tidgewell on her age discrimination claim, but she informed the firm she already had retained separate counsel.
Tidgewell's doctors cleared her to return to work in November 2005, but her fears proved prophetic and Becton terminated her employment days before she was to resume working. Tidgewell filed a complaint with the California Department of Fair Employment and Housing in September 2006 and received a letter authorizing her to file an age discrimination lawsuit against Becton.
In October 2006, Hollins Schechter negotiated a $30,000 settlement regarding Tidgewell's workers' compensation claim. The firm signed a document entitled "Compromise and Release" and sent a copy to Tidgewell for her signature. The Compromise and Release included a one-page addendum further elaborating on the settlement. Tidgewell did not immediately sign the release because she had questions regarding her claim and had difficulty getting a satisfactory response from Hollins Schechter.
In January 2007, Tidgewell appeared at a hearing in her workers' compensation case and met Gentry for the first time. Hollins Schechter hired Gentry to represent Tidgewell because the firm had closed its workers' compensation practice. Tidgewell met with Gentry a few days later to review and discuss whether she should sign the Compromise and Release form. Gentry advised Tidgewell she must sign the Compromise and Release to resolve her workers' compensation claim. He also assured her it would not impact the age discrimination claim she intended to file. Tidgewell claims Gentry bullied her into signing the form to settle her workers' compensation claim.
Hollins Schechter requests we judicially notice the order by the Workers' Compensation Appeals Board approving the Compromise and Release agreement Tidgewell and Becton signed. We deny that request because the document was not presented to the trial court and we find it irrelevant to our interpretation of the agreement. (Alvarez v. Brookstone Co., Inc. (2011) 202 Cal.App.4th 1023, 1029, fn. 6; Bullis Charter School v. Los Altos School Dist. (2011) 200 Cal.App.4th 296, 316, fn. 10.)
In May 2007, Tidgewell filed her discrimination lawsuit against Becton, alleging claims for age discrimination, failure to prevent age discrimination, and wrongful termination based on age under the Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.). During that litigation Becton asserted the Compromise and Release agreement as an affirmative defense, arguing Tidgewell waived her age discrimination claims by signing the release. According to Tidgewell, she settled her age discrimination claims for a sum substantially less than their actual value because her signature on the Compromise and Release agreement severely weakened her case.
Tidgewell's complaint in the discrimination lawsuit alleged the following claims: (1) unlawful discrimination based on age; (2) failure to prevent discrimination based on age; (3) wrongful termination on the basis of age; (4) unlawful discrimination based on medical condition; (5) failure to prevent discrimination based on medical condition; (6) wrongful termination on the basis of medical condition; (7) intentional infliction of emotional distress; and (8) unfair business practices. Tidgewell based her claims for medical condition discrimination on her carpel tunnel syndrome.
After removing the case to federal court, Becton moved to dismiss the medical condition discrimination claims because carpel tunnel syndrome did not qualify as a protected medical condition and Tidgewell failed to exhaust her administrative remedies regarding any medical condition discrimination claims. Tidgewell voluntarily dismissed her medical condition claims rather than oppose the motion. She also voluntarily dismissed her intentional infliction of emotional distress claim. Tidgewell does not contend the Compromise and Release forced her to dismiss these claims or otherwise impacted these claims in any way.
In August 2009, Tidgewell filed this lawsuit against Hollins Schechter and Gentry. The operative second amended complaint asserted claims for legal malpractice/professional negligence, breach of fiduciary duty, and negligent misrepresentation. Tidgewell alleged Hollins Schechter and Gentry committed malpractice when they failed to advise her that signing the Compromise and Release would negatively impact her age discrimination case.
Hollins Schechter and Gentry both moved for summary judgment, arguing they did not commit malpractice or cause Tidgewell any damage because the Compromise and Release agreement did not bar or otherwise affect Tidgewell's age discrimination claims. The trial court granted both motions, explaining: "As a matter of law, the [Compromise and Release] had no impact or effect on a later civil action for employment discrimination. [¶] The [Compromise and Release] unambiguously says it resolves the Workers' Compensation matter and does not impact a later civil action unless it expressly provides otherwise, which it does not. Paragraph 9 is a list of Workers' Compensation issues that are covered by the agreement. They do not refer, even by way of ambiguity, to a later civil action." Tidgewell moved for a new trial based on alleged errors in the trial court's decision granting the two summary judgment motions. The court denied Tidgewell's new trial motion. She timely appealed.
II
DISCUSSION
A. Standard of Review
We review the trial court's ruling on a summary judgment motion de novo. The trial court's stated reasons do not bind us because we review its ruling, not its rationale. (Biancalana v. T.D. Service Co. (2011) 200 Cal.App.4th 527, 531-532 (Biancalana).)Our review requires that we apply the same three-step analysis as the trial court. (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 848 (Eriksson).)
First, we identify the issues framed by the pleadings because it is these allegations to which the motion must respond. (Eriksson, supra, 191 Cal.App.4th at p. 848.) Next, we examine the moving party's motion. A defendant moving for summary judgment bears the initial burden to show a cause of action lacks merit because one or more of its elements cannot be established or there is a complete defense to the cause of action. (Biancalana, supra, 200 Cal.App.4th at p. 532; Code Civ. Proc., § 437c, subd. (p)(2).) To meet this burden, the defendant must present evidence sufficient to show he or she is entitled to judgment as a matter of law. (Eriksson, at pp. 847-848.)
Finally, if the defendant makes that showing, the burden shifts to the plaintiff to present evidence showing a triable issue of material fact exists. (Richards v. Sequoia Ins. Co. (2011) 195 Cal.App.4th 431, 435; Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of material fact exists "'if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' [Citation.] Thus, a party 'cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact. [Citation.]' [Citation.]" (Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145.) B. Legal Principles Governing Settlement of Workers' Compensation Claims
The purpose of the Workers' Compensation Act (Lab. Code, § 3200 et seq.) "is to protect individuals against the special risks of employment. [Citations.] 'The Act intends comprehensive coverage of injuries in employment. . . .'" (Arriaga v. County of Alameda (1995) 9 Cal.4th 1055, 1061.)
"The workers' compensation law applies to employee injuries 'arising out of and in the course of the employment' when the statutorily specified 'conditions of compensation concur.' [Citation.] Generally, it is the exclusive remedy for such injuries. [Citations.] But some claims, including those based on sexual or racial discrimination or other conduct contrary to fundamental public policy, are not subject to the exclusivity provisions of the workers' compensation law. [Citation.] Thus, such claims may be the subject of both workers' compensation proceedings and civil actions. [Citation.]" (Claxton v. Waters (2004) 34 Cal.4th 367, 372-373 (Claxton).)
"Liability under the workers' compensation law is founded in neither tort nor contract law. [Citation.] Instead, it is liability without fault [citations], to ensure that injured workers are quickly provided benefits to relieve the effects of the industrial injury [citation]. . . . [A]ll workers' compensation statutes are to be liberally construed in favor of the injured worker. [Citations.]" (Claxton, supra, 34 Cal.4th at p. 373.)
To safeguard injured workers from agreeing to unfair or unwise settlements "'because of economic pressure or lack of competent advice,'" Labor Code section 5001 provides no settlement is valid unless the Workers' Compensation Appeals Board or a workers' compensation referee approves the settlement. (Steller v. Sears, Roebuck & Co. (2010) 189 Cal.App.4th 175, 180 (Steller).)The board or referee must inquire into the fairness and adequacy of a settlement and may set the matter for hearing to take evidence when necessary to determine whether to approve the settlement. (Id. at p. 181; Cal. Code Regs., tit. 8, §§ 10870, 10882.) "These safeguards against improvident releases place a workmen's compensation release upon a higher plane than a private contractual release; it is a judgment, with 'the same force and effect as an award made after a full hearing.' [Citation.]" (Johnson v. Workmen's Comp. Appeals Bd. (1970) 2 Cal.3d 964, 973; see also Steller, at p. 181.)
To settle any workers' compensation case, the parties must use the "Compromise and Release" form adopted by the Workers' Compensation Appeals Board. (Claxton, supra, 34 Cal.4th at p. 371; Lab. Code, § 5003; Cal. Code Regs., tit. 8, § 10874.) Because the workers' compensation system is not intended to compensate an employee for all injuries arising from the employment relationship, the release language in this mandatory form does not apply to an employee's civil claims against an employer that fall outside the workers' compensation system. (Claxton, at pp. 374-376.) Specifically, the Supreme Court in Claxton held "the standard language of the preprinted form used in settling workers' compensation claims releases only those claims that are within the scope of the workers' compensation system, and does not apply to claims asserted in separate civil actions." (Id. at p. 376, fn. omitted.)
The Claxton court explained its holding does not prohibit employers and employees from simultaneously settling both workers' compensation claims and civil claims outside the workers' compensation system. Rather, it merely requires the parties make clear their intent to settle civil claims outside the workers' compensation system by executing a separate document expressing that intent: "Thus, execution of the mandatory standard preprinted compromise and release form would only establish settlement of the workers' compensation claims; the intended settlement of claims outside the workers' compensation system would have to be reflected in a separate document. [Citations.] As is true with settlements in civil actions generally, the separate document need not identify precise claims; it would be sufficient to refer generally to causes of action outside the workers' compensation law 'in clear and non-technical language.' [Citation.]" (Claxton, supra, 34 Cal.4th at p. 378.)
Because it held the language in the preprinted form does not apply to civil claims falling outside the workers' compensation system as a matter of law, the Claxton court also held the parties may not offer extrinsic evidence in an attempt to show they nonetheless intended the preprinted release language to cover civil claims outside the workers' compensation system. (Claxton, supra, 34 Cal.4th at p. 377.)
To prevent employers from using the release language in the preprinted form to bar claims outside the workers' compensation system, the Claxton court urged the Workers' Compensation Appeals Board to revise the Compromise and Release form to "include a statement, in the clearest possible terms, that execution of the form has no effect on claims outside the workers' compensation system." (Claxton, supra, 34 Cal.4th at p. 376, fn. 1.) The release language in the form at issue in Claxton provided, in pertinent part, "'said employee releases and forever discharges said employer and insurance carrier from all claims and causes of action, whether now known or ascertained, or which may hereafter arise or develop as a result of said injury . . . ." (Id. at p. 371.)
In an apparent response to the Claxton decision, the Workers' Compensation Appeal Board adopted a revised Compromise and Release form a little more than a year after the Supreme Court's decision. The foregoing release language remains without any significant changes, but the board added the following sentence to the paragraph containing that language: "Execution of this form has no effect on claims that are not within the scope of the workers' compensation law or claims that are not subject to the exclusivity provisions of the workers' compensation law, unless otherwise expressly stated." (Italics added.) Consequently, the Compromise and Release form now incorporates Claxton's holding and states it does not affect claims outside the workers' compensation system unless the parties include a specific statement expressing their intent to do so.
In amending the Compromise and Release, the Workers' Compensation Appeals Board also added the following new paragraph immediately after the paragraph setting forth the release language: "This agreement is limited to settlement of the body parts, conditions, or systems and for the dates of injury set forth in Paragraph No. 1 despite any language to the contrary in this document or any addendum." Finally, the board added a new paragraph 9 that allows the employee and employer to specify the issues in dispute on the employee's workers' compensation claim and the reasons why they agreed to the specific settlement they reached. (Eskenazi et al., Cal. Civil Practice Workers' Compensation (2007) § 7:15, p. 7-25 (Eskenazi).)
Tidgewell and Becton used this new version of the Compromise and Release to settle Tidgewell's workers' compensation claim. They also added a one-page addendum further describing the workers' compensation benefits covered by the Compromise and Release. C. The Trial Court Properly Granted the Summary Judgment Motions
1. Hollins Schechter and Gentry Met Their Initial Burden to Negate an Essential Element of Tidgewell's Claims
Hollins Schechter and Gentry moved for summary judgment on the ground they did not breach any duty they owed Tidgewell and did not misrepresent the legal effects of the Compromise and Release. Specifically, they argued Tidgewell's claims failed as a matter of law because the Compromise and Release she signed was unambiguous and did not apply to her age discrimination claims. We agree.
Consistent with Claxton, the Compromise and Release Tidgewell signed stated it did not apply to claims outside the workers' compensation system "unless otherwise expressly stated." A civil claim falls outside the workers' compensation system if it is "either not within the scope of workers' compensation law or not subject to the exclusivity provisions of that law." (Claxton, supra, 34 Cal.4th at p. 373.) Tidgewell's age discrimination claims fell outside the workers' compensation system because that system does not provide the exclusive remedy for age discrimination claims. (Id. at p. 373; City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1155; Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1285-1287.) Accordingly, the Compromise and Release did not apply to Tidgewell's age discrimination claims because that form did not expressly state that the release included Tidgewell's discrimination claims.
Claxton explained the Compromise and Release need not identify precise claims outside the workers' compensation system, but it must "refer generally to causes of action outside the workers' compensation law 'in clear and non-technical language.' [Citation.]" (Claxton, supra, 34 Cal.4th at p. 378.) Nothing in the Compromise and Release Tidgewell signed referred to causes of action outside the workers' compensation law at all, let alone in clear and nontechnical language. The addendum attached to Tidgewell's Compromise and Release likewise contains no reference to any claims outside the worker's compensation law. To the contrary, the addendum expressed Tidgewell and Becton's intent to limit their settlement to claims covered by the workers' compensation law: "Parties hereto agree that this Compromise and Release is fair, reasonable and resolves all serious and substantial disputes within the jurisdiction of the [Workers' Compensation Appeals Board] in the claims . . . ." (Italics added.)
Moreover, even if we assume Tidgewell and Becton intended to settle Tidgewell's age discrimination claims, the Compromise and Release prohibited them from using that document or any addendum for that purpose. Paragraph 3 of the Compromise and Release states, "This agreement is limited to settlement of the body parts, conditions, or systems and for the dates of injury set forth in Paragraph No. 1 despite any language to the contrary in this document or any addendum." (Italics added.) Paragraph 1 states that Tidgewell claims she suffered injuries to her left and right wrists between June 21, 2004 and June 21, 2005 "arising out of and in the course of [her] employment" with Becton. It does not mention any claims or injuries arising from age discrimination.
The release language in paragraph 2 of the Compromise and Release also limited itself to "all claims and causes of action, whether now known or ascertained or which may hereafter arise or develop as a result of the above referenced injury(ies). . . ." (Italics added.)
Tidgewell argues Claxton does not govern our interpretation of the Compromise and Release she signed because Claxton interpreted a different version of that form. Tidgewell fails to recognize Claxton's holding and the basis for that holding. Claxton did not merely hold the language used in the then-current Compromise and Release form was inadequate to release claims outside the workers' compensation system. Rather, Claxton held the mandatory, standardized form used to compromise workers' compensation claims may not be used to compromise claims outside the workers' compensation system unless the employer and employee modify or augment that form to clearly express their intent that the settlement of the workers' compensation claim also covers claims outside the workers' compensation system. Claxton's holding is not based on the specific language used in the then-current Compromise and Release form, but rather on "the public policy of protecting the injured worker against the unintentional loss of workers' rights." (Claxton, supra, 34 Cal.4th at pp. 378, 373.) To further that policy, Claxton requires more than merely signing a preprinted form to include nonworkers' compensation claims in a workers' compensation settlement.
Consequently, Claxton compels the conclusion the Compromise and Release form Tidgewell signed did not apply to her age discrimination claims because nothing in the release or the attached addendum expressed an intent to compromise those claims. To the contrary, the Compromise and Release limited itself to Tidgewell's wrist injuries. Hollins Schechter and Gentry therefore met their initial burden on their summary judgment motions and the burden shifted to Tidgewell to establish a triable issue of material fact.
2. Tidgewell Failed to Establish a Triable Issue of Material Fact
Tidgewell contends the Compromise and Release she signed was ambiguous and a triable issue of material fact exists on whether it applies to her age discrimination claims. According to Tidgewell, paragraph 9 added to the Compromise and Release form after the Claxton decision creates an ambiguity because she and Becton initialed the blanks in paragraph 9 indicating their settlement included issues regarding "employment." Specifically, Tidgewell argues a triable issue exists on whether the reference to "employment" in her settlement with Becton applies to all issues arising out of her Becton employment, including her age discrimination claims. The Compromise and Release Tidgewell signed, however, is neither ambiguous nor reasonably susceptible to Tidgewell's interpretation.
A release or settlement agreement is interpreted in the same manner as any other contract. (General Motors Corp. v. Superior Court (1993) 12 Cal.App.4th 435, 439.) The basic goal is to give effect to the parties' mutual intent at the time of contracting. (Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 955 (Founding Members); Civ. Code, § 1636.) "The parties' intent is ascertained from the language of the contract alone, 'if the language is clear and explicit, and does not involve an absurdity.' [Citation.]" (DVD Copy Control Assn., Inc. v. Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, 712 (DVD Copy); Civ. Code, §§ 1636, 1638, 1639.) "The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other." (Civ. Code, § 1641.) "Courts must interpret contractual language in a manner which gives force and effect to every provision, and not in a way which renders some clauses nugatory, inoperative or meaningless." (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 473.) "However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract." (Civ. Code, § 1648; see also RN Solution, Inc. v. Catholic Healthcare West (2008) 165 Cal.App.4th 1511, 1523 ["even a broad form arbitration clause will not cover every type of dispute that might arise between those bound by it"].)
Tidgewell's interpretation of the Compromise and Release violates these basic contract interpretation principles because it ignores paragraph 3 and its prohibition against using the Compromise and Release or an addendum to settle any claim other than a claim relating to the injury at issue in the workers' compensation case. Tidgewell's workers' compensation claim sought compensation for her wrist injuries and therefore the scope of the Compromise and Release covered only claims relating to her wrist injuries. Tidgewell's age discrimination claims sought to recover for separate injuries unrelated to her wrist injuries and she fails to explain how a release expressly limited to her wrist injuries could apply to her age discrimination claims.
All reported cases the parties cite regarding whether a workers' compensation Compromise and Release agreement also applied to civil claims outside the workers' compensation system involved civil claims based on the same events and injuries giving rise to the workers' compensation claim. (Claxton, supra, 34 Cal.4th at p. 371 [workers' compensation claim and civil action for unlawful discrimination both related to the same events and injuries]; Jefferson v. Department of Youth Authority (2002) 28 Cal.4th 299, 301 [same]; Mitchell v. Union Central Life Ins. Co. (2004) 118 Cal.App.4th 1331, 1333-1334 [same]; Delaney v. Superior Fast Freight (1993) 14 Cal.App.4th 590, 593, 599 [same]; Asare v. Hartford Fire Ins. Co. (1991) 1 Cal.App.4th 856, 860-861 [same]; Lopez v. Sikkema (1991) 229 Cal.App.3d 31, 35 [workers' compensation claim for death benefits and civil claim for wrongful death based on same events and injuries].) These cases all predate the Workers' Compensation Appeal Board's inclusion of paragraph 3 in the Compromise and Release form. Tidgewell cites no authority applying a workers' compensation claim release to civil claims for unrelated injuries falling outside the workers' compensation system.
Moreover, paragraph 9 is not reasonably susceptible to the interpretation Tidgewell offers. Paragraph 9 states, "The parties wish to settle these matters to avoid the costs, hazards and delays of further litigation, and agree that a serious dispute exists as to the following issues (initial only those that apply). ISSUES NOT INITIALED BY ALL PARTIES ARE NOT INCLUDED WITHIN THIS SETTLEMENT." The paragraph then lists 13 issues the parties may include within their settlement by initialing the blank spaces next to each issue. The paragraph also includes two spaces and a "comments" section where the parties may include additional issues in their settlement. The 13 issues identified in paragraph 9 are all issues common to workers' compensation claims and nothing in the paragraph expresses an intent that these issues extend to claims outside the workers' compensation system.
The 13 issues listed in paragraph 9 are: (1) "earnings"; (2) "temporary disability"; (3) "jurisdiction"; (4) "apportionment"; (5) "employment"; (6) "injury AOE/COE [which means arising out of and in the course of employment (Seretti v. Superior Nat. Ins. Co. (1999) 71 Cal.App.4th 920, 924, fn. 4)]"; (7) "serious and willful misconduct"; (8) "discrimination (Labor Code §132a)"; (9) "statute of limitations"; (10) "future medical treatment"; (11) "permanent disability"; (12) "self-procured medical treatment, except as provided in Paragraph 7"; and (13) "vocational rehabilitation benefits/supplemental job displacement benefits."
There can be no doubt the "employment" issue on which Tidgewell relies is a common worker's compensation issue. "The Workers' Compensation Act . . . extends only to injuries suffered by an 'employee,' which arise out of and in the course of his 'employment.' [Citations.]" (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349; Lab. Code, § 3600, subd. (a).) The existence of an employment relationship is a "threshold issue" basic to any employee's right to workers' compensation benefits. (Maranian v. Workers' Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1075; see also California State Automobile Assn. Inter-Ins. Bureau v. Workers' Comp. Appeals Bd (2006) 137 Cal.App.4th 1040, 1043.)
Tidgewell concedes establishing an employment relationship is the first hurdle an employee faces on a workers' compensation claim, but contends paragraph 9's reference to employment did not refer to that issue. According to Tidgewell, the employer is the only party in a position to "waive" the employee's employment status. She contends an employee would never waive his or her status as an employee in connection with a workers' compensation settlement because doing so would frustrate the employee's claim. This argument, however, misconstrues paragraph 9.
The employee and employer do not waive anything by initialing an issue identified in paragraph 9 and including it in their settlement. Paragraph 2 sets forth the language used to release or waive the employee's claim to workers' compensation benefits in exchange for the agreed upon payment. Paragraph 9 explains the basis for the employee and employer's dispute regarding the employee's workers' compensation claim. Specifically, it explains the employee and employer have a "serious dispute" regarding each issue they initial, but nonetheless agree to settle the employee's workers' compensation claim "to avoid the costs, hazards and delays of further litigation" regarding those issues.
Paragraph 9 provides the parties the opportunity to identify and explain the reasons why they negotiated the settlement they reached. (Eskenazi, supra, at § 7:15, p. 7-25.) For example, if a serious dispute exists on whether an employment relationship actually existed, the employer may offer, and the employee may accept, fewer benefits than the employee would otherwise receive based on the possibility the employee could not establish an employment relationship at the hearing. Information regarding the issues in dispute and the reasons for the parties' settlement is necessary in a workers' compensation Compromise and Release because the Workers' Compensation Appeals Board or a workers' compensation judge must review and approve a Compromise and Release. (Steller, supra, 189 Cal.App.4th at pp. 180-181; Lab. Code, § 5001; Cal. Code Regs., tit. 8, § 10882.) "Agreements that provide for the payment of less than the full amount of compensation due or to become due and undertake to release the employer from all future liability will be approved only where it appears that a reasonable doubt exists as to the rights of the parties or that approval is in the best interest of the parties." (Cal. Code Regs., tit. 8, § 10870.)
Finally, Tidgewell contends the addendum attached to the Compromise and Release she signed creates a triable issue on whether the Compromise and Release applied to her age discrimination claims. She cites language in the addendum stating, "This release also resolves any and all claims, whether or not now alleged, for . . . any other benefits which allegedly accrued under the Labor Code through the date of the Order Approving the Compromise and Release." She also relies on language stating, "The applicant voluntarily releases the defendants in the claim(s) from any and all obligations or liabilities which they may have had in the past or presently have to applicant for benefits and services pursuant to California Labor Code §139.5 or as otherwise provided by law."
Tidgewell's age discrimination claims, however, are not benefits or services under the Labor Code or "as otherwise provided by law." Rather, they are causes of action seeking legal damages she alleged under the FEHA, which is set forth in the Government Code, not the Labor Code. Tidgewell cites no provision in the Labor Code providing a cause of action for age discrimination. Moreover, Tidgewell ignores the addendum's first sentence, which states she and Becton agree "this Compromise and Release . . . resolves all serious and substantial disputes within the jurisdiction of the [Workers' Compensation Appeals Board]." Tidgewell presents no evidence or authority establishing a triable issue of material fact on whether the Compromise and Release applied to her age discrimination claims. D. The Trial Court Did Not Err in Refusing to Consider Extrinsic Evidence to Aid Its Interpretation of the Compromise and Release Agreement
Tidgewell also argues the trial court failed to conduct the proper analysis and erroneously refused to consider extrinsic evidence regarding the Compromise and Release's meaning. This argument fails, however, because not only did Tidgewell waive it, but the argument also lacks any merit.
Tidgewell contends the trial court erred by limiting its analysis to the express terms of the Compromise and Release, but she fails to identify any particular extrinsic evidence the trial court refused to consider in her opening brief. Tidgewell did not identify the extrinsic evidence she argues the trial court should have considered until her reply brief. By waiting until the reply to identify the extrinsic evidence on which she relies, Tidgewell waived this argument. (Cold Creek Compost, Inc. v. State Farm Fire & Casualty Co. (2007) 156 Cal.App.4th 1469, 1486 ["Arguments cannot properly be raised for the first time in an appellant's reply brief, and accordingly we deem them waived in this instance"].)
Regardless of Tidgewell's waiver, the trial court properly refused to consider her extrinsic evidence. If a contract's language is clear and explicit, the court must interpret the contract based on its express terms. (Civ. Code, §§ 1636, 1638.) "Extrinsic evidence is admissible to explain the meaning of a contract if 'the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible.' [Citation.] In order to determine whether the extrinsic evidence is admissible, the trial court first makes 'a preliminary consideration of all credible evidence offered to prove the intention of the parties.' [Citation.] 'If the court decides, after considering this evidence, that the language of a contract, in the light of all the circumstances, "is fairly susceptible of either one of the two interpretations contended for . . ." [citations], extrinsic evidence relevant to prove either of such meanings is admissible.' [Citation.]" (DVD Copy, supra, 176 Cal.App.4th at p. 712.)
In Claxton, however, the Supreme Court held extrinsic evidence is not admissible to show the preprinted language on the Compromise and Release form applies to claims outside the workers' compensation system. (Claxton, supra, 34 Cal.4th at p. 377.) Thus, extrinsic evidence may be offered to aid in interpreting language the parties add to the Compromise and Release form or an addendum they attach to the form, but extrinsic evidence may not be used to aid in interpreting the language preprinted on the form.
Here, Tidgewell argues the trial court should have admitted the following extrinsic evidence: (1) an expert declaration by a practicing workers' compensation attorney regarding how he interprets the Compromise and Release form; (2) Tidgewell's own declaration noting Becton argued in her age discrimination case that Tidgewell waived her discrimination claims by initialing paragraph 9 of the Compromise and Release; and (3) Tidgewell's deposition testimony that Becton's attorney and a mediator in her age discrimination case told Tidgewell she waived her claims by signing the Compromise and Release.
None of this extrinsic evidence, however, explains how any language Tidgewell and Becton added to the Compromise Release form or included in the addendum is reasonably susceptible to an interpretation making the Compromise and Release applicable to Tidgewell's age discrimination claims. Rather, this evidence offers nothing more than an opinion that the Compromise and Release applies to Tidgewell's age discrimination claims.
Moreover, extrinsic evidence regarding how a workers' compensation expert or even how Becton interpreted the Compromise and Release are irrelevant to the court's interpretation of that document. (In re Tobacco Cases I (2010) 186 Cal.App.4th 42, 51 ["the interpretation of contractual language is a legal matter for the court . . . and '[e]xpert opinion on contract interpretation is usually inadmissible'"]; Industrial Indemnity Co. v. Apple Computer, Inc. (1999) 79 Cal.App.4th 817, 835, fn. 4 ["'[t]he opinion of a linguist or other expert as to the meaning of the [contract] is irrelevant to the court's task of interpreting the [contract] as read and understood by a reasonable lay person'"]; Steller, supra, 189 Cal.App.4th at pp. 184-185 ["'"[t]he parties' undisclosed intent or understanding is irrelevant to contract interpretation"'"]; Founding Members, supra, 109 Cal.App.4th at p. 956 ["'[i]t is the objective intent, as evidenced by the words of the contract, rather than the subjective intent of one of the parties, that controls interpretation'"].)
III
DISPOSITION
The judgment is affirmed. The Gentry and Hollins Schechter shall recover their costs on appeal.
ARONSON, J. WE CONCUR: RYLAARSDAM, ACTING P. J. IKOLA, J.