Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 42425
OPINION
RAYE , J.
In these consolidated appeals of their dismissed personal injury actions, two in propria persona plaintiffs attempt to evade the exclusivity of the workers’ compensation system by claiming that the injuries they suffered violated the fundamental public policy of the State of California. From a layperson’s perspective, negligent, willful and, worse yet, egregious misconduct by an employer offends our basic notion of the state’s public policy to protect its employees. But plaintiffs misunderstand the nuances of the law and the finely tuned “public policy” exception to exclusivity. Because none of plaintiffs’ causes of action fit within that narrow exception, the trial court properly sustained the public agencies’ demurrers without leave to amend. We affirm.
FACTS
We take the facts, as we must, from the allegations set forth in the second amended complaints. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Mary Jasso and Illa Garcia were both employed by the California Department of Forestry and Fire Protection (CDF) as seasonal fire lookouts on Likely Mountain. Jasso worked for 11 fire seasons, Garcia for 3. Both alleged they suffered a vast array of physical injuries as a result of radiation poisoning from exposure to toxic radio frequency and microwave radiation emitted from the telecommunications equipment on the lookout and the telecommunications towers. A number of state agencies lease or use the equipment. CDF also provided plaintiffs a trailer as on-site living quarters for all lookouts who worked at Likely Mountain.
The defendant agencies include: California Department of Forestry and Fire Protection, California Department of Fish and Game, California Department of Transportation, California Highway Patrol, and California Department of General Services.
Jasso alleged four causes of action: dangerous condition of public property, failure to protect against injury and to perform the mandatory duty pursuant to Government Code section 815.6, strict liability for ultrahazardous activity, and concealment of a dangerous condition of hazardous workplace and hazardous employment without consent. In essence, Jasso complains she was never warned about the risks of radiation exposure, a dangerous condition and ultrahazardous activity, and had she known she would have terminated her employment. She further alleges that state and federal statutes and regulations create a mandatory duty to provide a “safe work site and/or place of employment free from recognized hazards that cause or are likely to cause death or serious physical harm to their employees,” to conduct environmental assessments to insure that employees were not exposed to “radiofrequency, microwave and other telecommunication radiations . . . from their telecommunication devices,” and to post warning signs of the dangers.
In her fourth cause of action, Jasso further alleges that defendants “concealed all facts of the hazardous and dangerous” exposure to radiation on Likely Mountain. Because she never gave her consent to work in hazardous conditions or to be exposed to radiation, Jasso contends her employer “acted outside the scope of plaintiff Mary Araina Jasso’s employment.” In conclusion, she alleges she has “an inherent Right to Life free of oppression and harm from others and the Right to make choices of where she will work and what risks she will take in that work” pursuant to the “First Amendment of the Constitution of the United States; California Constitution Art. 1. Declaration of Rights Sec. 1; and Charters of Freedom Declaration of Independence Paragraph 2.”
Garcia, on the other hand, alleges a single cause of action for negligence per se. She asserts that pursuant to California Code of Regulations, title 8, section 8618, defendants had a duty to post a conspicuous sign warning that radiation may exceed hazard limitations; pursuant to California Code of Regulations, title 47, section 1.1307, subdivision (b), defendants had a duty to prepare an environmental assessment of radiation levels; and pursuant to title 18 United States Code section 1864, defendants were prohibited from using a hazardous and injurious device on federal land. Garcia further alleges she was within the class of persons each of these statutes or regulations was designed to protect and her injuries were the direct, foreseeable, and proximate result of defendants’ violations.
The trial court sustained defendants’ respective demurrers without leave to amend. In sustaining the demurrer against Jasso’s complaint, the court ruled: “Plaintiff’s sole and exclusive remedy against the State is worker’s compensation. (Labor Code, § 3600; Colombo v. State of California, (1991) 3 Cal.App.4th 594 [(Colombo)].) Telecommunications does not rise to the level of conduct contrary to public policy such that an exception to the exclusive remedy of worker’s compensation is applicable.” Similarly, the court sustained defendants’ demurrer against the Garcia complaint, also because her “sole and exclusive remedy against the State is worker’s compensation.” Jasso and Garcia appeal.
DISCUSSION
“California’s workers’ compensation scheme was developed early in the 20th century as a result of the inadequacy of the common law that often denied injured workers any recovery for work-related injuries.” (Claxton v. Waters (2004) 34 Cal.4th 367, 372 (Claxton).) The common law was also slow to allow employees a tort recovery for wrongful discharge based on the long-standing principle that they could be terminated at will. (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 71.) But in the 1980’s and 1990’s courts carved a narrow exception allowing wrongful termination cases when the discharge violated a “fundamental public policy” of the state. (See, e.g., Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172 (Tameny); Stevenson v. Superior Court (1997) 16 Cal.4th 880, 894 (Stevenson); Rojo v. Kliger (1990) 52 Cal.3d 65, 90-91 (Rojo); Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1095 (Gantt).) In wrongful discharge vernacular, “fundamental public policy” is used to circumscribe the tort. (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 669.)
Plaintiffs would have us expand the notion of a breach of “fundamental public policy” in wrongful termination cases to encompass intentional and negligent misdeeds by an employer and exempt such misconduct from the exclusivity of the workers’ compensation system. That is not the law. Such an expansion would emasculate the carefully constructed balance achieved by the Legislature’s execution of its constitutional authority to create a comprehensive workers’ compensation system. (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 810 (Vacanti).)
“Section 3600 of the Labor Code provides that an employer is liable for injuries to its employees arising out of and in the course of employment, and section 3601 declares that where the conditions of workers’ compensation exist, the right to recover such compensation is the exclusive remedy against an employer for injury or death of an employee.” (Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 467-468 (Johns-Manville).) “[T]he employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.” (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.) The rule of exclusivity is designed to preserve this carefully crafted balance. (Vacanti, supra, 24 Cal.4th at p. 811.)
But for every rule, there often lurks an exception with hidden land mines. Quoting the Supreme Court in Claxton, supra, 34 Cal.4th 367, 373, plaintiffs insist, “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.” Claxton itself is inapposite and irrelevant, standing as it does for the unrelated proposition that the settlement and release of workers’ compensation claims on a preprinted form does not release causes of action that are not exclusively subject to the workers’ compensation law. (Id. at p. 370.) But there is indeed a narrow exception to exclusivity drawn from wrongful discharge cases.
In Tameny, supra, 27 Cal.3d at p. 176, the Supreme Court reasoned that “an employer’s obligation to refrain from discharging an employee who refuses to commit a criminal act . . . reflects a duty imposed by law upon all employers in order to implement the fundamental public policies embodied in the state’s penal statutes. As such, a wrongful discharge suit exhibits the classic elements of a tort cause of action.” In subsequent cases applying Tameny, the Supreme Court “recognized tort causes of action for wrongful discharge based on sex (Rojo, supra, 52 Cal.3d at pp. 90-91), age (Stevenson, supra, 16 Cal.4th at pp. 897, 909), and retaliation for testifying truthfully (Gantt, supra, 1 Cal.4th at pp. 1086-1087).” (City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1159 (City of Moorpark). In City of Moorpark, the Supreme Court determined that disability discrimination, like sex and age discrimination, could form the basis of a common law wrongful termination case. (Id. at pp. 1159-1161.) Discriminatory firings violate the “fundamental public policy” of the State of California. (Id. at p. 1153.)
In order for a public policy to support a common law tort claim, it must be delineated in a statute or a constitutional provision, it must inure to the benefit of the public rather than the individual, it must be well established, and it must be substantial and fundamental. (City of Moorpark, supra, 18 Cal.4th at p. 1159.) Borrowing from the wrongful discharge arena on fundamental public policy, courts found that the compensation bargain “‘cannot encompass conduct, such as sexual or racial discrimination, “obnoxious to the interests of the state and contrary to public policy and sound morality.”’” (Id. at p. 1153.) Thus, in these limited cases, the exclusivity of the workers’ compensation system does not bar an action at law for damages against the employer.
Plaintiffs misconstrue the breadth of the exception, arguing in essence that any violation of a public policy allows an employee to bring an action at law. They tether their causes of action to a variety of state and federal regulations and statutes to fit within the exception. But in attempting to enlarge the exception they would destroy the balance that is at the heart of the legislatively mandated compensation bargain. The Supreme Court provides a useful template in an analogous case, Johns-Manville, supra, 27 Cal.3d 465.
In Johns-Manville, the court plainly stated that had the plaintiff there alleged, as plaintiffs do here, that he was injured because the defendant knew and concealed from him that his health was endangered by asbestos in the work environment, failed to supply adequate protective devices to avoid injury, and violated governmental regulations, “plaintiff’s only remedy would be to prosecute his claim under the workers’ compensation law.” (Johns-Manville, supra, 27 Cal.3d at pp. 474-475.) In other words, because the employer’s conduct was considered one of the “hazards of the employment,” an action at law was barred. (Id. at p. 477.) If, however, the employee contracts a disease caused by ingestion of asbestos and the employer, knowing of the employee’s condition, deliberately fails to notify him or his doctors, the employee could pursue a tort action for damages for the aggravation to his injuries caused by the employer’s fraud. (Ibid.)
Plaintiffs do not allege a fraudulent cover-up, as in Johns-Manville, that aggravated their injuries once defendants became aware of the radioactive poisoning. Rather, their complaints allege the same kind of facts that the Supreme Court held in Johns-Manville fall within the exclusive domain of workers’ compensation.
While plaintiffs cite various laws and regulations they assert defendants violated, they cite no authority, and we have found none, for their proposition that these types of statutory violations regarding operations of telecommunications towers are considered conduct contrary to a fundamental public policy of the state as that concept has been narrowly construed in both workers’ compensation and wrongful termination cases. Particularly in workers’ compensation cases, the exception to the rule of exclusivity is narrowly drawn to preserve the legislative balance securing a prompt recovery for injured workers while simultaneously limiting the employers’ exposure to tort liability. Moreover, contrary to plaintiffs’ assertion that the statutory violations ipso facto violate a fundamental public policy, even the violation of child labor laws has been held to be within the employment bargain and therefore subject to the exclusive jurisdiction of the Workers’ Compensation Appeals Board. (Up-Right, Inc. v. Van Erickson (1992) 5 Cal.App.4th 579, 583-584.) Similarly, regulatory crimes do not “violate the employee’s reasonable expectations and transgress the limits of the compensation bargain.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 723, fn. 7.)
Plaintiffs also make repeated references to violations of their civil rights, citing to various provisions of the state and federal Constitutions. We are somewhat perplexed as to the meaning of these allegations. Their sweeping allegations that defendants’ operation of the telecommunication facilities, failure to warn, and failure to monitor radioactivity levels violated their inherent rights to be free of harm, if accepted, would dismantle the workers’ compensation system because every injured employee would contend his or her employer’s harmful conduct violated the fundamental public policy of the state as embodied in the Constitution. Courts have been careful to narrowly construe the exception to exclusivity so as not to intrude into the Legislature’s constitutional prerogative to implement a workers’ compensation system.
If, on the other hand, plaintiffs’ allegations that their civil rights have been violated are an attempt to state an alternative exemption to exclusivity, they fail to cite any relevant authority. They appear to rely on a federal preemption case, Silkwood v. Kerr-McGee Corp. (1984) 464 U.S. 238 [78 L.Ed.2d 443], in which the United States Supreme Court held that federal statutes did not preempt state awards of punitive damages for the operation of hazardous devices. The case did not, however, involve workers’ compensation or address the issue of exclusivity. Moreover, the holding of the Supreme Court “was overruled by the Amendments Act which specifically bars punitive damages. See 42 U.S.C. § 2210(s)) . . . .” (O’Conner v. Commonwealth Edison Co. (7th Cir. 1994) 13 F.3d 1090, 1105, fn. 13.) As a result, plaintiffs have failed to demonstrate a viable civil rights action sufficiently independent of their other claims or, put another way, to allege conduct that is not work related. (See Continental Casualty Co. v. Superior Court (1987) 190 Cal.App.3d 156, 162.)
In answer to the series of questions posed by plaintiff Jasso, the Labor Code does not exonerate defendants from any malfeasance. Rather, it establishes a different forum for the redress of the injuries Jasso sustained during the course and scope of her employment. If, as plaintiffs allege, defendants violated both state and federal statutes, as well as state and federal constitutional rights, and abrogated their duties to protect, warn, and safeguard the employees who manned the lookout towers on Likely Mountain, they should be held accountable for their dereliction of duty. We do not condone either any intentional or negligent conduct. But the propriety of their conduct is not before us; we consider only the venue in which their conduct will be addressed.
We therefore conclude that because plaintiffs, state employees, affirmatively allege they were injured while in the course and scope of their employment, no civil action will lie and the trial court properly sustained the demurrer. (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96-97.) “[L]awsuits against state agencies are in effect suits against the state.” (Colombo, supra, 3 Cal.App.4th at p. 598.) Thus, the exclusive remedy of workers’ compensation bars a state employee’s claims against another state agency. (Id. at p. 599.) All defendant state agencies were properly dismissed.
Plaintiff Garcia complains that her “opportunity to file an amended complaint and proceed to trial was unfairly precluded by defendants when they brought in as new facts at the hearing on 5/15/06 without defense counsel[’]s knowledge or chance to rebut the new information on new case authority.” The “new case authority” was Colombo, supra, 3 Cal.App.4th 594, a case that was decided in 1991, or 15 years before the hearing. Nor did the case relied on by Garcia, Claxton, supra, 34 Cal.4th 367, overrule Colombo as Garcia asserts. Defendants rely on Colombo for the straightforward proposition that because an action brought against one state agency is a suit against the state, workers’ compensation provides the exclusive remedy when a state employee pursues tort claims against another state agency. (Colombo, supra, 3 Cal.App.4th at p. 599.) Nor did Claxton change, modify, or expand the rule of exclusivity. Rather, in dicta, Claxton merely reiterated the narrow exception to exclusivity for those few cases in which an employer’s conduct violates fundamental public policy. In short, both old and new law bars Garcia’s action at law against her employer for injuries she sustained during the course and scope of her employment.
Garcia makes a feeble attempt to separate her job duties from other times she might have been exposed to radiation on Likely Mountain. For example, she argues that on occasion she would be on Likely Mountain to retrieve something she forgot, to visit a coworker, or to get ready to begin her shift or unwind when the shift was over. These activities are all “closely connected” to her normal job-related duties and, as a consequence, they too are subject to the workers’ compensation scheme. (Vacanti, supra, 24 Cal.4th at p. 823.)
Because, as the trial court found, workers’ compensation provides the exclusive remedy for plaintiffs’ injuries, defendants’ demurrers were properly sustained without leave to amend. All other issues are moot.
The judgment is affirmed.
We concur: BLEASE , Acting P.J., HULL , J.