*1 Dist., D004042. Fourth Div. One. Jan. [No. 1987.] SPRATLEY, Appellant, ANDREA Plaintiff and HOUSE, INC., Respondent. WINCHELL DONUT Defendant and *2 Counsel David N. Nissenberg Nissenberg and for Plaintiff and
Nissenberg & Appellant.
Kinkle, Rodiger Spriggs & Jefferi Hamilton for Defendant Respondent.
Opinion KREMER, superior P. J.The court sustained without leave to amend House, defendant Winchell plaintiff Donut Inc.’s Sprat demurrer to Andrea ley’s first amended for fraud and bad faith. judg entered dismissing ment Spratley appeals. lawsuit. judgment We affirm the dismissal.
I Spratley’s first complaint’s purported amended cause of action for fraud alleged: Spratley told Winchell she accept employment did wish to with working Winchell because she feared alone night at as a baker at Winchell’s shop burglary where a had recently occurred. Spratley To induce to enter employment Winchell, into contract agent with falsely Winchell’s and fraudulently Spratley shop told all at locks changed had been after the burglary, only employees shop current keys shop had to the and arrange deputies provide Winchell for sheriff’s to security continuous Spratley night. while she worked at alone About a month later while working shop early hours, morning Spratley alone Winchell’s was physically by person a attacked who not Winchell and who key through Spratley’s used a to enter a locked door. intruder skull broke jaw Contrary representa- and knocked her and unconscious. to Winchell’s tions, shop only changed on four locks one of the doors had been after burglary keys the earlier and shop. Winchell did not know who had to the Further, shop, deputies Winchell asked to cruise sheriff’s which was ceased; done for a few weeks but then Spratley when asked Winchell to arrange coverage, agent renewed said would take care Winchell of it representations but Winchell failed to do so. Winchell made such knowing they were grounds they false or were without reasonable to believe true. Spratley Winchell concealed from the fact all locks had been changed. Spratley’s doing everything possible Winchell said it was to assure safety. Spratley employment would not have entered the contract with falsity had she known of Winchell’s the concealed facts and the representations. perform promises intending Winchell made the without employment them. Spratley Winchell’s fraud induced to enter an contract give up opportunities greater salary with Winchell and to work at a elsewhere working pain Spratley better conditions. mental and also incurred punitive $to 1 million Spratley was entitled suffering and distress. emotional damages. for bad complaint’s purported cause of action amended first for fraud purported cause of action incorporated allegations of her
faith implied faith good covenant alleged: and Winchell breached further fraudulently relationship by parties’ dealing and fair concealing employment contract and inducing to enter into allowing security promised and facts, her the by failing material failing shop, burglarized night recently in a her to work alone breach represented. Winchell’s promised as change locks on all doors life, safety. health and jeopardized *4 judgment compensatory complaint sought for
Spratley’s amended first suffering pain damages mental according proof, for damages to punitive damages. $1 proof according and million to emotional distress II ground amended on
Winchell demurred to first to constitute a cause of action. it failed to state facts sufficient Winchell jurisdiction subject no matter because asserted court had workers’ remedy. Code,1 3602.) compensation (Lab. exclusive After § hearing, the sustained Winchell’s demurrer leave court without to amend. found: “The first and causes fail to court second of action state facts defendant; against demurring to a cause of sufficient constitute action jurisdiction subject plaintiff’s the court has no of matter of first and judgment dismissing Spratley’s second causes of action.” court entered lawsuit.
III compensation employer injuries Under an to its workers’ is liable for employment. Where employee arising (§ 3600.) out and in the of of course compensation exist, such right of workers’ to recover conditions compensation employee’s remedy against the for is the exclusive injuries. (§ 3602.) such employ- place duty provide employees a
An has its safe seq.) et compensation (§ 3200 seq.) The act (§ ment. 6400 et place condi- work arising out unsafe compensates employees injuries for in cases compensation section tions, including enhanced specified. statutory to the Labor unless otherwise 1All references are Code involving (Royster serious and willful misconduct. Montanez 362, Cal.Rptr. 560].) Workers’ compensation remedy employee injured is the sole employer’s for workplace. (Johns-Manville failure to a safe 465, Cal.Rptr. Cal.3d 474-475 Montanez, 758]; Royster p. 9 A.L.R.4th concedes workers’ was her remedy exclusive physical injuries occurring during recover employment. her However, Spratley contends in sustaining erred demurrer to her cause action fraudulently inducing for Winchell’s her to accept employment. Spratley asserts workers’ the exclu remedy sive for an tort committed employment before the rela began; tionship superior asserts court should have allowed her a civil remedy injury occurring for the fraud employment before the began arising and not out of the relationship.
Spratley’s pleading essentially accept that to induce her employ fraudulently represented ment her be safe. Such allegation exclusivity provisions does not avoid the compen the workers’ sation (Wright Corp. (1978) act. FMC Cal.App.3d 777, 779 [146 Further, 740].) Spratley first sustained injury resulting from *5 alleged fraud and alleged discovered such only during fraud the injury and such arose out of and in the course of employment relationship. the (See generally, Witkin, 5 Cal. (3d Procedure 1985) 680, p. 131; ed. Pleading, Proc., 338, Code Civ. subd. § § Corp., Wright Cal.App.3d 777, superior In 81 FMC the court employer’s to sustained without leave amend an employee’s demurrer to an alleging pleading employer job the knew the involved contact with noxious misrepresented but him chemicals concealed and hazard the to induce to accept employment. appeal On employee allegation the contended such exclusivity provisions the compensation avoided of the workers’ act. The appellate rejected employee’s contention, finding the the fact the upon employee employer’s based his case the deceit was immaterial. because, Wright contends should not here unlike control the compensation in employee Wright, recovery did workers’ from not seek employer However, injury her in her for the asserted lawsuit. upon Wright. is contention based an inaccurate characterization of appellate court in Wright sustaining affirmed the the demurrer not because employee duplicate sought recovery the but rather because section 3600 et seq. compensation remedy. Wright the made workers’ exclusive controls remedy provisions compensation here. The exclusive of the workers’ act bar
1413 purported against induce- cause of action Winchell for fraudulent ment. supra, Cal.App.3d 777, Corp., employee alleged the Wright
In FMC dangers employer inherent materials used work. In the concealed his Cal.App.2d (1940) 439], Bell Tel. P.2d Buttner American Co. represented falsely material employee alleged employer the used in his the Paper Cal.App.3d In Williams v. International Co. work safe. employer Cal.Rptr. 342], employee alleged intentionally the the 810 [181 despite knowing injurious working hazardous conditions failed correct substantially In explosion was to occur. United States certain Borax & Chem 155], Court ical misrepresented plaintiffs alleged employer intentionally working the the compensation In safe. each case conditions would be workers’ was held to remedy justify and the intentional act did be the exclusive not Buttner, discussing Supreme Wright at law. In the California an action foregoing wrote: “The reason the rule seems It obvious. is employer ‘put danger his mind’ for an to the existence of a uncommon employee and fail to take action. to an nevertheless corrective [Citation.] cases, employee many of these the does not warn the of the risk. may conduct be as intentional even if Such characterized or deceitful. Yet remedy, many cognizable allowed an action law were as a cases prosecuted system. be that workers’ also outside injury involving injury in a case focus work-related would often be employment, whether arose of and in the out course but knowledge regarding state of injury. which a result would dangerous condition caused Such undermine upon premise system underlying which advantage immunity system That balances the based. relatively swift liability against detriment of and certain at law from *6 employee expedi Conversely, while receives compensation payments. larger recovery right potentially compensation, he surrenders his a tious negligence willful misconduct of his law action for the or a common in hold, if we significantly disturbed were to employer. This balance be may which be charac any of an plaintiff urges, that misconduct as damages. It clear at law for seems as warrants an action terized intentional compensation against an remedy the sole for additional that section 4553 is as a is instance the result of employee injured the first whose place physical environment of work deliberate failure to assure that the Court, supra, Superior 27 Corp. Cal.3d (Johns-Manville is safe.” v. Products p. 474.) at
Spratley demurrer have overruled Winchell’s contends court should damages sought to her cause of because she action for fraudulent inducement 1414
only suffering mental damages for and emotional distress and such are not compensation. However, recoverable under workers’ the existence of compensable an compensation workers’ does not without abrogate provisions. more the workers’ remedy act’s exclusive (Renteria County Orange (1978) Cal.App.3d 833, v. 82 840 [147 of A 447].) failure of workers’ law include an element of legislative, damages judicial, problem. recoverable at common law is a not a (Williams Compensation (1975) Cal.App.3d 116, v. State Ins. Fund Cal.Rptr. 812].) 122-123 [123 supra,
Citing Orange, Cal.App.3d County 833, v. Renteria recovery may properly seek Spratley contends she for mental suffering resulting alleged distress from Winchell’s emotional intentional However, only involved the narrow issue employee’s tort. Renteria of “an distress,” for intentional infliction of emotional a cause of remedies action p. (Id. 838.) at here. not asserted Court, Corp. Superior supra, Products 27 Cal.3d Johns-Manville at “ Supreme noted a trend
page the California ... toward allowing injuries if at law for suffered an action acts purpose injuring employee or if the deliberately resulting for the harm aggravation consists of intentional misconduct initial from the present injury____” Neither such situations here. work-related misconduct is actionable at law where An intentional specific injure” employee. intent deliberately “acted with the Cal.App.3d 278, (Roberts Pup Driveup 282-283 ‘N’Taco Co., supra, Cal.App.3d Paper Cal.Rptr. 533]; Williams International p. was a allege Winchell’s misconduct delib did not Instead, alleged inten specifically injure erate act intended to her. knowing go beyond tional failure to assure safe misconduct did its workplace. remedy exclusive misconduct was for such compensation. (Johns-Manville supra, pp. 474-475; 27 Cal. Angeles 3d at Halliman v. Los School Dist. Unified 163 Cal.App.3d Cal.Rptr. 175]; Williams v. 51-52 [209 Co., Paper International p. 819.)
Citing O’Hara v. Corp. (1977) Western Seven Trees *7 Cal.Rptr. 487], Spratley adequately pleaded [142 contends she a cause of action for fraudulent entitling inducement her to recover mental suffering and punitive O’Hara, emotional plus damages. distress a land- allegedly prospective lord induced a apartment tenant to an by rent falsely representing premises as safe and secure. apply O’Hara does not here it did involve because an relationship. Fire Protection Dist. with Cole v. Fair Oaks resolution is consistent
Our There, Supreme Cal.Rptr. 308, (1987) 43 Cal.3d 743]. for intentional infliction of emotional rejected a claim an action workplace arising conduct normal to the maintained from distress could be compensation. compensable workers’ resulting disability under when discussing alleged intentional distinguished cases misconduct The court workplace in the and those with normal conduct closely associated related, all, workplace. remotely if at to the In the concerning misconduct remedy, is the sole fall category, in which workers’ former “ ‘ dangers employer ... concealed inherent in the in which the cases required (Wright Corp. (1978) to handle v. FMC employees were material 777, Cal.Rptr. 740]) representations or made false (1940) Cal.App.2d American Bell Tel. Co. regard (Buttner v. in that Dist., 439]). . . .’” (Cole supra, v. Fair Oaks Fire P.2d Protection 584 [107 148, 157.) category, separate in which a may The latter tort 43 Cal.3d action maintained, includes cases of assault an and conspiracy with be injured employee party against third to conceal the fact has a tort claim pp. party. (Id. 158-159.) the third explained: permitted
The court “The cases that have recovery in tort for causing disability intentional misconduct have involved conduct of an ‘questionable’ employer having a employment, to the injury an employee which did not occur while the was performing service incidental employment and to the which would not be employ- viewed as a risk of the ment, or conduct where the employer stepped or insurer proper out of their roles. Such circumstances are not in the [Citations.] before (Cole Dist., us.” v. Fair Oaks Fire supra, p. 161.) Protection 43 Cal.3d at Nor they Spratley alleges are here. misrepresentations regarding working condi- tions, injury during that work outside no conduct employer. the role of reasoning pertinent. Citing of Cole is Johns-Manville supra, claims for Cal.3d the court said “ if an action at law properly intentional ‘... misconduct were barred since compensa remedy, many cognizable
were allowed as a cases inquiry focus of prosecuted system. tion would also be that outside injury whether the be involving a case would often work-related knowledge the state employment, but arose of and in out the course dangerous condition which regarding the and the underlying premise undermine injury. caused a result would Such (Cole v. upon compensations system is based....’” Fair which the workers’ Dist., p. 3d at 43 Cal. Oaks Fire Protection *8 tort, employee in Were we to hold this states a claim an So here. an injured who and suffers emotional distress due to unknown or concealed is simply hazard in the could avoid the workers’ bar misrepresented by alleging fraudulently or concealed the result, well, hiring process. would invite a multi- during hazard Such a as claims, knowledge plicity of focus attention on the of and underlying premise and undermine the on which the workers’ system is based. superior properly sustained without leave to amend Winchell’s Spratley’s purported cause of action for fraudulent inducement.
demurrer to
IV incorporated allegations Spratley’s of action for bad faith of her cause and further for fraudulent inducement cause of action parties’ implied good dealing faith and fair in the covenant of breached fraudulently inducing her to enter into the facts, concealing by failing and material her employment contract allowing night recently in promised security and her to work alone at a promised shop, failing change the on all doors as burglarized and locks without leave to amend Winchell’s represented. The court sustained purported ground action for bad faith on the Spratley’s cause of demurrer to remedy. compensation was exclusive have overruled Winchell’s Spratley contends the court should demurrer, asserting adequately pleaded a cause of action for tortious implied good dealing. Citing breach fair covenant of faith and Wallis 123], Spratley necessary contends elements for a tortious breach contract were present parties unequal power, here bargaining because the had her motiva in entering tion profit peace contract was not but rather of mind and workplace security safety, ordinary contract would not compensate totally accountable, her or fully hold Winchell especially she was placed vulnerable and perform, trust Winchell to and Winchell was aware vulnerability. light circumstances, her these asserts Winchell unreasonably breaching acted the contract and should be liable in tort. However, properly the court sustained Winchell’s demurrer to purported cause action for bad faith. unavailing. dispute
Spratley’s reliance on Wallis Wallis involved a about postemployment payments terminating to an employee, surrounding disability insurance contract to a situation where an similar (Id. payments withhold to an insured duty unreasonably. not to has a insurer *9 1417 upon remedy p. the exclusive at Wallis did not involve defense based provisions compensation act. of the workers’ remedy compensation act’s exclusive
Spratley may not avoid the workers’
recharacterizing
alleged fraud as tortious
provisions simply by
dealing. Spratley’s
implied
good faith and fair
covenant of
breach of the
misrepresentations,
facts and
made
concealed
pleading alleged workplace.
safety
Regardless how
involving the
promises
breached
action,
purported
denote her
causes of
Spratley may have chosen to
failure to
a safe
damages for Winchell’s intentional
essentially sought
representations
knowledge
potential
despite
promises,
workplace
its
remedy
for such
misconduct was
Spratley’s exclusive
dangers.
Court,
Corp.
Superior
compensation. (Johns-Manville
474-475;
pp.
United States Borax & Chemical
supra,
Disposition judgment of dismissal is affirmed. J.,
Lewis, concurred. and Dissenting. agree I WORK, J., Concurring Although good faith and fair purported cause of the covenant of action breach provisions exclusivity of Labor Code1 pleaded, dealing, as is barred fraudulent analysis her claim for induce 3602,1 majority’s find section judg I would reverse legally skewed. factually and ment to contract both of action and remand for fraud cause further ment as to of dismissal proceedings. assertion, pivotal issue is not when majority’s
Contrary to
wrongful
conduct from which
occurred,
injury
whether
but
type
is of the
that
normally expected
in the
flowed occurred
specified.
statutory
are to the Labor Code unless otherwise
references
1All
(Cole
there.
v. Fair
Fire Protection Dist.
I complaint. amended first action There are two causes of preceded the which creation of by Winchell charges first fraudulent conduct falsity discover the Spratley did not relationship, although employment commenced. The employment representation of Winchell’s until after suffering and pain and injuries redress are the “mental for which she seeks defrauded, the had been she flowing emotional distress” from the realization had she not been salary loss have received of the differential which she would damages to sanction gulled punitive accepting into Winchell’s offer and occurring injuries from conduct Winchell’s fraudulent conduct. These flow being employment They before the construed as based was created. cannot be on normally cause of action would occurring conduct in the and a lie Here, even had Spratley physical injury. never both the tort and suffered injuries independent for which of acts which are claimed are Further, exemplary occurred commenced. after 2Any recovery by appropriate (Johns-Manville double was deemed avoidable Prod offsets. Corp. Here, pp. 478-479.) ucts 27 Cal.3d at there would be none. Sprat- during with damages, appropriate, nothing if have to do what occurred ley’s employment. Clearly, a workers’ state could employee. an any claim for conduct she became before Ramey Petroleum General relating fraudulent conduct of 787], distinguished injuries P.2d the court compensation reme- injuries which workers’ physical for from itself There, although fraudulent conduct occurred dies were available. (a present here), the factor not employment contract during the term misrepresentation by fraudulent allegedly caused emotional distress proxi- job-related injuries concerning rights and remedies legal *11 and in out of the course employment and did arise by mately caused are in Labor Code section that the terms used employment in the sense of Corp. (Id. in Johns-Manville pointed out Products p. 401.) As 3600. 476, page Ramey Legislature held Cal.3d the Superior employment, risk was a of the and there- fraud intended an never of causes of action do not occur injury from fraudulent concealment the fore employment. growing of or incidental to performing services out Simi- while alleges injuries arising cause of action emotional Spratley’s first out of larly, employment relationship preceding arising the and not out of the conduct employment. required each of the of Because factors course for workers’ liability under established, section 3600 have not been the provisions exclusivity triggered section 3602 are not applicable and the statutory 3602, in is stated (c): rule section “In all subdivision where cases in concur, the conditions set forth Section 3600 do not liability shall be the same as if this division had not been enacted.”3
II implied second cause of action is for breach implied of good dealing. every faith and in covenant fair Such covenant Service, (Seaman’s Buying Direct Inc. Oil contract. v. Standard Co. 354, 1158].) employment Cal.3d violating wrongful discharges obliga- it used to has been redress contracts imposed by party anything injures law that will do which neither tion (See an agreement. to receive the benefits of discussion in right of other Superior 1168-1170 Koehrer good dealing the covenant of faith and fair Cal.Rptr. 820].) Since does not agreement part, independent of which it is a conduct which exist contract, definition, aof cannot creation breach that precedes the cove- pleads implied Spratley Thus, covenant was when breached when nant. 1982, chapter 922, 6, page Statutes was amended section 3367. 3Section 3602 into a contract of “fraudulently to enter induced [her] impossibility. stating a factual employment” she is However, alleges Spratley also the covenant was breached when Winchell doors, promised security change and to the locks on all failed to all changed. these facts and told the locks had been concealed misrepresentations, pleaded, However, as all these omissions and occurred only contract of came into existence. misconduct before the implies during the term of the contract was that Winchell’s occurred patrols falsely be reinstated manager stated sheriffs to enhance deceitful, act, security. although This characterizable as or even intentional may than that the have acted with reckless disre suggests no more Here, probable injury Spratley. the distinction gard of articulated There, compensa the court found the workers’ is relevant. Johns-Manville employers falsely where concealed or remedies to be exclusive cases tion workplace. (Johns-Manville dangers in represented the true Court, supra, p. 474.) statutory system Cal. 3d at injure employee. not to exclude acts intended was deemed recognized in was noted with p. 476.) The distinction Johns-Manville (Id.,at *12 Dist., supra, Fire 43 Cal. 3d v. Fair Oaks Protection approval Cole probability disregard reckless should not “... which stated remedy provisions exemption the exclusive of the Labor from warrant allege significant does not p. 159.) It is (Id. at Code.” injury. In cause her the absence of were intended to misrepresentations escape exclusivity Spratley cannot regard, in that allegations factual during employ occurring the term of remedy for conduct statutory her Winchell’s demurrer Thus, properly sustained the court contract. ment cause of action. Spratley’s second