Opinion
Rehearing Denied April 13, 1994.
Review Granted June 16, 1994.
Review Granted Previously published at: 28 Cal.App.4th 1685, 23 Cal.App.4th 800
Opinion on pages 1360-1371 omitted.
REVIEW GRANTED.
COUNSEL [Copyrighted Material Omitted] [Copyrighted Material Omitted]
[29 Cal.Rptr.2d 213]Rufus L. Cole, Penelope S. Pahl, Law Offices of Rufus L. Cole, San Francisco, for plaintiff and appellant.
William M. McMillan, Chief Counsel, Daniel C. Murphy, Thomas Lacchia, Rene Lias, Legal Div., Dept. of Transp., State of Cal., San Francisco, for defendants and respondents.
OPINION
CHIN, Associate Justice.
Linda Arriaga appeals from a judgment dismissing her action for personal injury against respondents County of Alameda (County) and State of California (State). The trial court entered judgment after sustaining a demurrer to Arriaga's complaint without leave to amend. It sustained the demurrer because it found as a matter of law that Arriaga suffered her injuries in the course of employment with respondents, and therefore her exclusive remedy was under the Workers' Compensation Act (Act) (Lab.Code, § 3200 et seq.). Arriaga contends that the trial court's finding is erroneous. We disagree. Therefore, we affirm.
All further statutory references are to the Labor Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On January 4, 1993, Arriaga filed a complaint alleging a cause of action for negligence against respondents in connection with injuries she sustained on February 15, 1992. The complaint alleged liability based on the following facts: " ... ARRIAGA was assigned by the Sheriff Department for the ... COUNTY ... through the Department's Weekender Program to work for the Department of Transportation for [the] State ... [29 Cal.Rptr.2d 214] (hereinafter ‘ CAL TRANS'), as part of her sentence to work off a four year old speeding ticket. [Arriaga] was assigned by CAL TRANS to clean greasy walls of a ventilation duct deep inside the building over the Posey Tube connecting the city of Alameda to Oakland. [Arriaga] was required to work for several hours in the ventilation duct in an unsafe and dangerous environment. Specifically, [Arriaga] was left without supervision and without adequate warning or instruction concerning the hazards and risk associated with the use of the solvent she was provided by defendants. [Arriaga] was compelled to wash walls utilizing the solvent without ventilation or special respiratory equipment which defendants knew or should have known was dangerous to [her] physical, mental and emotional health. As a consequence of said actions, [Arriaga] was exposed to toxic fumes and experienced dizziness and lost consciousness."
Respondents demurred to the complaint on three grounds. They first argued that they were immune from liability under Government Code section 844.6, which provides that a public entity is not liable for an injury to a prisoner. They also argued that, because Arriaga was an employee under section 3351 at the time of her injury, her exclusive remedy was workers' compensation. Finally, they argued that, under Government Code section 815, they were not liable for general negligence, and that Arriaga had failed to allege a statutory cause of action. Arriaga opposed the demurrer, contending that she was not a prisoner within the meaning of Government Code section 844.6, that she was not an employee within the meaning of the workers' compensation laws, and that the alleged facts stated certain statutory causes of action. She therefore requested that the court overrule the demurrer or grant her leave to amend the complaint.
At the hearing on the demurrer, the court agreed that, under the alleged facts, workers' compensation constituted Arriaga's exclusive remedy. It therefore sustained the demurrer without leave to amend and entered a judgment dismissing the complaint. Arriaga then filed this timely appeal.
DISCUSSION
This appeal turns on whether the trial court was correct in determining that workers' compensation is Arriaga's exclusive remedy. Ordinarily, " a defendant in a civil action who claims to be one of that class of persons protected from an action at law by the provisions of the ... Act bears the burden of pleading and proving, as an affirmative defense to the action, the existence of the conditions of compensation set forth in the statute which are necessary to its application. [Citations.]" (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96-97, 151 Cal.Rptr. 347, 587 P.2d 1160, fn. omitted.) However, when a complaint affirmatively alleges facts indicating that the Act applies, no civil action will lie, and the complaint is subject to a general demurrer unless it states additional facts that negate application of the exclusive remedy rule. (Id., at p. 97, 151 Cal.Rptr. 347, 587 P.2d 1160; Hughes v. Western MacArthur Co. (1987) 192 Cal.App.3d 951, 957, 237 Cal.Rptr. 738.)
" An employer-employee relationship must exist in order to bring the ... Act into effect. (§ 3600.)" (County of Los Angeles v. Workers' Comp. Appeals Bd. (1981) 30 Cal.3d 391, 396, 179 Cal.Rptr. 214, 637 P.2d 681 (hereafter Conroy ).) However, the coverage of the Act extends beyond those who have entered into " traditional contract[s] of hire." (Laeng v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 771, 776, 100 Cal.Rptr. 377, 494 P.2d 1 (hereafter Laeng ).) " [S]ection 3351 provides broadly that for the purpose of the ... Act, ‘ " Employee" means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written....’ " (Laeng, supra, at pp. 776-777, 100 Cal.Rptr. 377, 494 P.2d 1, fn. omitted.) Given this " section's explicit use of the disjunctive," a contract of hire is not " a prerequisite" to the existence of an employment relationship. (Id., at p. 777, fn. 5, 100 Cal.Rptr. 377, 494 P.2d 1; see also Conroy, supra, 30 Cal.3d at pp. 398, 402-403, 179 Cal.Rptr. 214, 637 P.2d 681.) Moreover, under [29 Cal.Rptr.2d 215] section 3357, " [a]ny person rendering service for another, other than as an independent contractor, or unless expressly excluded ..., is presumed to be an employee."
Real party in interest was Francis P. Conroy.
" Given these broad statutory contours, ... an ‘ employment’ relationship sufficient to bring the [A]ct into play cannot be determined simply from technical contractual or common law conceptions of employment but must instead be resolved by reference to the history and fundamental purposes underlying the ... Act [citations]." (Laeng, supra, 6 Cal.3d at p. 777, 100 Cal.Rptr. 377, 494 P.2d 1, fn. omitted.) The purpose of the Act is to protect individuals against the special risks of employment. (Id., at pp. 774, 782, 100 Cal.Rptr. 377, 494 P.2d 1; Conroy, supra, 30 Cal.3d at p. 397, 179 Cal.Rptr. 214, 637 P.2d 681.) " The Act intends comprehensive coverage of injuries in employment. It accomplishes this goal by defining ‘ employment’ broadly in terms of ‘ service to an employer’ and by including a general presumption that any person ‘ in service to another’ is a covered ‘ employee.’ [Citations.]" (S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 354, 256 Cal.Rptr. 543, 769 P.2d 399 (hereafter Borello ).) Thus, " the basic inquiry in compensation law involves which injuries to the employee should be insured against by the employer. [Citations.]" (Laeng, supra, 6 Cal.3d at p. 778, fn. 7, 100 Cal.Rptr. 377, 494 P.2d 1.)
Applying these principles, the Supreme Court in Laeng extended compensation coverage to a city job applicant who was injured " as part of a ‘ tryout’ competition for the position of ‘ refuse crew worker,’ " even though he " was concededly not an ‘ employee’ of the city in a strict, contractual sense" at the time of the injury. (Laeng, supra, 6 Cal.3d at p. 774, 100 Cal.Rptr. 377, 494 P.2d 1.) In reaching this conclusion, the court first found that the city received benefit from the applicant, in that his " efforts permit[ted] the employer to select workers who are likely to be better suited for the available position." (Id., at p. 781, 100 Cal.Rptr. 377, 494 P.2d 1.) It further found that the applicant was " in the ‘ service’ of" the employer in that, " during the tryout [he] subject[ed] himself to the employer's control, and the employer, in turn, assum[ed] responsibility for directing the applicant's activities." (Id., at p. 782, 100 Cal.Rptr. 377, 494 P.2d 1.) Finally, the court found that the applicant " incurred his injury while undertaking a ‘ special risk’ of employment...." (Id., at p. 783, 100 Cal.Rptr. 377, 494 P.2d 1.) Therefore, he qualified as an " ‘ employee,’ " as that term must be understood " in light of ... the [A]ct's purpose of protecting individuals from any special risks inherent in employment...." (Id., at p. 782, 100 Cal.Rptr. 377, 494 P.2d 1.)
In Conroy, the Supreme Court reached a similar conclusion as to " workfare" recipients. There, Los Angeles County required Conroy to work as a watchman for a school district in exchange for general assistance. (Conroy, supra, 30 Cal.3d at p. 395, 179 Cal.Rptr. 214, 637 P.2d 681.) Conroy sustained injury while working at a high school to which the school district had assigned him, and sought workers' compensation under the Act. (Ibid.) In opposing the application, Los Angeles County cited McBurney v. Industrial Acc. Com. (1934) 220 Cal. 124, 30 P.2d 414, which denied benefits to a " workfare" recipient " because ... no contract of employment was present. [Citation.]" (Conroy, supra, 30 Cal.3d at p. 397, 179 Cal.Rptr. 214, 637 P.2d 681.) The Conroy court first observed that McBurney incorrectly " restricted the definition [of " employee" ] to those situations where a contract for hire was present." (Conroy, supra, at p. 398, 179 Cal.Rptr. 214, 637 P.2d 681, fn. omitted.) Then, applying " the principles of Laeng, " it held that Conroy was an employee under the Act, reasoning: " [Conroy] was in the service of [Los Angeles] County when he was injured. He performed the job of watchman on the grounds of a school.... [He] subjected himself to [Los Angeles] County's control. [Los Angeles] County, though it did not directly supervise his day-to-day activities, exercised its right of control by assigning him to jobs. Also, [Los Angeles] County determined [his] rate of pay, specified the number of hours he was to work, and had the sole power to terminate his benefits if he did not perform his work to [its] satisfaction. [Los Angeles] County received a benefit from [his] work, which helped to ensure the safety [29 Cal.Rptr.2d 216] of a school within [its] boundaries. Finally, by assigning [him] to work at the school, [Los Angeles] County exposed him to the same risks of employment faced by similar school employees." (Conroy, supra, at pp. 398-399, 179 Cal.Rptr. 214, 637 P.2d 681, fn. omitted.)
In a footnote, the court also stated that McBurney " erred in concluding ... that no contract of hire existed." (Conroy, supra, 30 Cal.3d at p. 398, fn. 4, 179 Cal.Rptr. 214, 637 P.2d 681.) However, the court's principal holding was that Conroy was entitled to benefits regardless of the existence of such a contract, and the court expressly overruled McBurney as being " based on the erroneous notion that the essentials of a contract for hire are required under the ... Act...." (Conroy, supra, 30 Cal.3d at pp. 402-403, 179 Cal.Rptr. 214, 637 P.2d 681.)
Under Laeng and Conroy, we find that the allegations of Arriaga's complaint establish as a matter of law that she was an employee under the Act. She was doing maintenance work for the State Department of Transportation within the County's boundaries at the time of her injury. Thus, she was in the service of both the County and the State, and both entities received benefit from her work. She also was under the control of both the County, which had the power to assign her to a job through the Weekender Program, and the State, which assigned her to the particular task that she was performing at the time of her injury. Finally, Arriaga's assigned work in the ventilation duct exposed her to the same risks of employment that other transportation workers face. Therefore, we find that she was an employee of both the County and the State for workers' compensation purposes. In finding that Arriaga was an employee under the Act, we decline to follow California State Univ ., Fullerton v. Workers ' Comp . Appeals Bd . (1993) 16 Cal.App.4th 1819, 21 Cal.Rptr.2d 50 (hereafter Fullerton ). There, after Rembold was convicted of a criminal offense, the court assessed a fine and provided in his probation order that the fine would be forgiven if he completed 78 hours of community service. ( Id ., at p. 1821, fn. 1, 21 Cal.Rptr.2d 50 and accompanying text.) Rembold chose community service, and sustained injury while working as a groundskeeper on the campus of California State University, Fullerton (University). ( Id., at p. 1821, 21 Cal.Rptr.2d 50.) The court concluded that Rembold was not an employee under section 3351, but was a volunteer under section 3352, subdivision (i). [29 Cal.Rptr.2d 217] ( Fullerton , supra , at p. 1827, 21 Cal.Rptr.2d 50.) That section excludes from the definition of employee " [ a]ny person performing voluntary service for a public agency or a private, nonprofit organization who receives no remuneration for the services other than meals, transportation, lodging, or reimbursement for incidental expenses." (§ 3352, subd. (i).) The court reasoned that " individuals in Rembold's circumstances receive no consideration that ‘ could support an employer-employee relationship as to any entity.... [ Citation.] Depending on the crime and the criminal, a defendant who owes a debt to society may have several options: incarceration, payment of a fine, or performance of community service. Community service may be a more palatable means for some to pay the debt; but that does not mean ‘ consideration,’ in the legal sense, has flowed from the beneficiary of the community service to the defendant." ( Fullerton , supra , at pp. 1826- 1827, 21 Cal.Rptr.2d 50.) Given its conclusion that Rembold was a volunteer under section 3352, the court held that he could obtain compensation benefits from the University only if it " adopted the resolution contemplated in ... section 3363. 5." ( Fullerton , supra , at p. 1827, 21 Cal.Rptr.2d 50.)
In reaching this conclusion, we reject Arriaga's assertion that respondents' " moving papers" in the trial court limit us to determining whether she was an employee under section 3351, subdivision (e), which defines an employee to include " [a]ll persons incarcerated in a state penal or correctional institution while engaged in assigned work." Respondents' notice of hearing states generally that the complaint is insufficient because Arriaga's " remedy, if any is worker's compensation." Moreover, although respondents cited this subdivision in their supporting memorandum, it was not the sole basis of their argument. In any event, because the issue implicates the trial court's jurisdiction to hear the matter, we are not limited to a consideration of the arguments that respondents raised in the trial court. (See People v. Oakland Water Front Co. (1897) 118 Cal. 234, 238-239, 50 P. 305; Rowland v. County of Sonoma (1990) 220 Cal.App.3d 331, 333-335, 269 Cal.Rptr. 426.)
The allegations of Arriaga's proposed first amended complaint reinforce this conclusion. In it, Arriaga names State employees whom she alleges were " assigned to supervise the work of the participants of the Weekender Program." She alleges that the State and its employees " forced [her] to work in an unsafe and dangerous environment." She further alleges that " [t]he cleaning job to which [she] was assigned ... was planned by" the County and the State, and that she was injured while using a " solvent which [they] provided to her" and " directed [her] to use...." Finally, she alleges that the County and the State " had a duty to provide a work environment that was safe and to provide adequate safety equipment, instructions, and/or precautions to participants in the County ... Weekender Program...."
As between the County and the State, the situation is similar to that in Conroy. There, the court held that Los Angeles County was Conroy's general employer because it assigned Conroy to the school district, but retained the right to control other aspects of his work: " whether to accept him as a worker, where to assign him, and whether to discharge him." (Conroy, supra, 30 Cal.3d at p. 406, 179 Cal.Rptr. 214, 637 P.2d 681.) The school district was the special employer; it " supervised [his] day-to-day activities as a watchman." (Ibid.) Here, the County was the general employer and the State was the special employer. As to both, workers' compensation constitutes Arriaga's exclusive remedy. (McFarland v. Voorheis-Trindle Co. (1959) 52 Cal.2d 698, 702, 343 P.2d 923.)
Section 3363.5, subdivision (a), provides: " Notwithstanding Sections 3351, 3352, and 3357, a person who performs voluntary service without pay for a public agency, as designated and authorized by the governing body of the agency or its designee, shall, upon adoption of a resolution by the governing body of the agency so declaring, be deemed to be an employee of the agency for purposes of this division while performing such service."
We find Fullerton unpersuasive. As set out above, section 3352, subdivision (i), applies only if the person seeking compensation is " performing voluntary service." We do not believe that persons who perform work pursuant to a court order are performing " voluntary service" within the meaning of this section, even if the order permits them to pay a fine instead of working. As generally understood, the term " voluntary" at minimum " means an exercise of will, i.e., it ‘ implies freedom from any compulsion that could constrain one's choice.’ [Citation.]" (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 231, 110 Cal.Rptr. 144, 514 P.2d 1224; see also Flynn v. San Francisco (1941) 18 Cal.2d 210, 217, 115 P.2d 3 [payments were not voluntary where their " motivating cause ... was fear of infliction of the penalties outlined in the coercive provisions" of ordinance].) Thus, in Edwards v. Hollywood Canteen (1946) 27 Cal.2d 802, 806-807, 167 P.2d 729, the Supreme Court explained that " a citizen compelled by a sheriff to act as a deputy is not a ‘ volunteer,’ " and therefore may obtain workers' compensation. Similarly, we find that a person who works in order to comply with a court order to pay a fine or work is not acting free of compulsion, and therefore is not " performing voluntary service" within the meaning of section 3352, subdivision (i).
Because we find that Arriaga was not a volunteer under section 3352, subdivision (i), we need not decide whether respondents have complied with section 3363.5, subdivision (a), by adopting a resolution declaring her to be an employee. Therefore, we deny respondents' request for judicial notice of a 1983 agreement between the County and the State relating to " referral work volunteers," and a County resolution authorizing execution of the agreement.
Nor do we agree that such a person " receives no remuneration for the services other than meals, transportation, lodging, or reimbursement for incidental expenses." (§ 3352, subd. (i).) As Fullerton recognizes, " remuneration" for purposes of section 3352, subdivision (i), need not be in monetary form. ( Fullerton , supra , 16 Cal.App.4th at p. 1826, fn. 6, 21 Cal.Rptr.2d 50.) Thus, in Barragan v. Workers' Comp. Appeals Bd. (1987) 195 Cal.App.3d 637, 650, 240 Cal.Rptr. 811, the court found that " a worker who receives instruction and training designed to provide the worker with a skill" receives remuneration and therefore is not a volunteer under that section. Here, in exchange for her work, Arriaga received credit against the court-imposed fine. She thus received remuneration sufficient to render section 3352, subdivision (i), inapplicable.9
[29 Cal.Rptr.2d 218] Our conclusion comports with the Legislature's command in section 3202 that the Act " be liberally construed by the courts with the purpose of extending [its] benefits for the protection of persons injured in the course of their employment." This command governs all aspects of workers' compensation; it applies to factual as well as statutory construction. (Kerley v. Workmen's Comp. App. Bd. (1971) 4 Cal.3d 223, 227, 93 Cal.Rptr. 192, 481 P.2d 200; Gross v. Workmen's Comp. Appeals Bd. (1975) 44 Cal.App.3d 397, 402, 118 Cal.Rptr. 609.) Thus, " [i]f a provision in [the Act] may be reasonably construed to provide coverage or payments, that construction should usually be adopted even if another reasonable construction is possible." (Department of Corrections v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 197, 206, 152 Cal.Rptr. 345, 589 P.2d 853.) The rule of liberal construction " is not altered because a plaintiff believes that [she] can establish negligence on the part of [her] employer and brings a civil suit for damages." (Freire v. Matson Navigation Co. (1941) 19 Cal.2d 8, 10, 118 P.2d 809.) It requires that we liberally construe the Act " in favor of awarding work[ers'] compensation, not in permitting civil litigation. [Citation.]" (Dixon v. Ford Motor Co. (1975) 53 Cal.App.3d 499, 506, 125 Cal.Rptr. 872; see also Machado v. Hulsman (1981) 119 Cal.App.3d 453, 455-456, 173 Cal.Rptr. 842; [Act must " be liberally construed in favor of the application of ... benefits [citations] even where it might be to the advantage of a particular plaintiff to avoid them and seek a remedy at law" ].)
In Fullerton , the court looked to the definition of " ‘ [ v]oluntary’ in the context of criminal sentencing," and concluded that " [ a] choice between forms of punishments is considered voluntary in that lexicon." ( Fullerton , supra , 16 Cal.App.4th at p. 1827, fn. 6, 21 Cal.Rptr.2d 50.) However, we are not construing the term in the context of criminal sentencing. We are construing it in the context of the Act, and therefore must apply the command of section 3202.
Our conclusion also comports with the statutory history surrounding section 3301. Subdivision (b) of that section excludes from the definition of " ‘ employer’ " under the Act " [a]ny private, nonprofit organization while acting solely as the sponsor of a person who, as a condition of sentencing by a superior or municipal court, is performing services for the organization." (§ 3301, subd. (b).) The Finance, Insurance, and Commerce Committee, whose chairman authored the amendment that added subdivision (b) to section 3301, provided the following analysis: " Quite often, a person convicted of a minor crime is given the opportunity of performing a certain amount of public service in lieu of a jail sentence. The sentence is normally satisfied by performing services under the sponsorship of a private nonprofit organization. A question has been raised as to whether these convicts are employees of the private nonprofit organization while performing these services. Since these individuals are not technically inmates, they are not eligible for workers' compensation under ... Section 3370 nor are they ‘ volunteers' and thereby excluded under Sections 3363.5 or 3363.6. Accordingly, the purpose of the amendment is to clarify that they are not employees of the sponsoring private nonprofit organization." (Finance, Ins., and Commerce Com., Summary and Analysis of Assem. Bill No. 44 (1991-1992 Reg.Sess.) January 27, 1981, p. 2, emphasis added.) The Legislature's belief that persons who perform service in lieu of a jail sentence are not volunteers under the Act, and its enactment of an express exclusion for private, nonprofit organizations that receive such service, supports our conclusion that Arriaga is not a volunteer under section 3352, subdivision (i).
Finally, we note that, in finding Arriaga to be an employee within the meaning of the Act, we have applied a different analysis than courts have applied in determining whether county jail inmates are employees under the Act. (See Rowland v. County of Sonoma, supra, 220 Cal.App.3d 331, 269 Cal.Rptr. 426; Morales v. Workers' Comp. Appeals Bd. (1986) 186 Cal.App.3d 283, 230 Cal.Rptr. 575; Parsons v. Workers' Comp. Appeals Bd. (1981) 126 Cal.App.3d 629, 179 Cal.Rptr. 88; State Compensation Ins. Fund v. Workmen's Comp. App. Bd. (1970) 8 Cal.App.3d 978, 87 Cal.Rptr. 770 (hereafter Childs ); [29 Cal.Rptr.2d 219] Pruitt v. Workmen's Comp. App. Bd. (1968) 261 Cal.App.2d 546, 68 Cal.Rptr. 12.) In each of those cases, the court focused on whether there was sufficient consideration and consent to establish a contract of hire. (Rowland, supra, 220 Cal.App.3d at pp. 333-334,269 Cal.Rptr. 426; Morales, supra, 186 Cal.App.3d at pp. 287-290,230 Cal.Rptr. 575; Parsons, supra, 126 Cal.App.3d at pp. 635-639,179 Cal.Rptr. 88; Childs, supra, 8 Cal.App.3d at pp. 981-983,87 Cal.Rptr. 770; Pruitt, supra, 261 Cal.App.2d at pp. 549-553,68 Cal.Rptr. 12.) However, as we have previously explained, a contract of hire is not a prerequisite to coverage under the Act. Thus, to qualify as an employee under the Act, a person need not " be receiving actual ‘ compensation’ for [her] ‘ services'...." ( Laeng, supra, 6 Cal.3d at p. 777, fn. 5, 100 Cal.Rptr. 377, 494 P.2d 1.) Moreover, an employment relationship may exist under the Act even where the worker is acting under compulsion. (See Argonaut Ins. Co. v. Industrial Acc. Com. (1926) 199 Cal. 221, 224-225, 248 P. 912 [person commandeered by sheriff to assist without pay in arrest of criminals was entitled to compensation because he was acting under appointment].) Therefore, in resolving this appeal, we find it unnecessary to determine whether the facts establish a contract of hire.
Real party in interest was Carl Childs.
Notably, Conroy addressed the issue of consent only in its footnoted discussion regarding the existence of a contract of hire. (Conroy, supra, 30 Cal.3d at p. 398, fn. 4, 179 Cal.Rptr. 214, 637 P.2d 681.) It did not address the issue in connection with its primary holding that a " workfare" recipient is an employee under the Act, even if there is no contract of hire.
Because we find that workers' compensation constitutes Arriaga's exclusive remedy, we need not determine whether respondents are immune under Government Code section 844.6, or whether Arriaga's complaint stated sufficient facts to allege a statutory cause of action.
WHITE, P.J., and MERRILL, J., concur.