Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of the County of Los Angeles Super. Ct. No. BC375255, Maureen Duffy-Lewis, Judge.
Mary Jones, in pro. per. for Plaintiff and Appellate.
Adelson, Testan, Brundo & Jimenez and Michael D. McLean for Defendant and Respondent.
MOSK, J.
INTRODUCTION
Plaintiff and appellant Mary Jones (Jones or plaintiff) filed a complaint alleging ten separate causes of action against defendant and respondent Sedgwick Claims Management Services, Inc. (Sedgwick) and its predecessor in interest, Octagon Risk Services, Inc. (Octagon) (collectively defendant), third party administrators of workers’ compensation benefits for the Regents of the University of California (Regents). The trial court sustained the demurrer to the complaint without leave to amend. We hold that the claims are either within the exclusivity of the Workers’ Compensation Act or are otherwise defective. We also hold that plaintiff has not shown an abuse of discretion in sustaining the demurrer without leave to amend because plaintiff has not supplied an adequate record on appeal.
BACKGROUND
Jones filed a complaint against Octagon, an entity that at the time of her initial injuries, was responsible for administering workers’ compensation benefits on behalf of the Regents. Octagon was later acquired by Sedgwick and was the administrator during some of the acts alleged.
Jones alleged she was injured during her nursing duties for the employer the University of California at Los Angeles. She asserts that Octagon would not allow her to see her own doctor, would not approve necessary tests, discontinued her workers’ compensation benefits, conspired to force her back to work, required her to take tests, and withheld medical records from her. Although she asserts she was told to see certain doctors and questioned their services, she did not name them as defendants or claim they were employed by Regents.
Jones alleges that the actions by Octagon and Sedgwick caused her physical, mental and financial injury. She further alleges the acts were done maliciously and intentionally, with knowledge she would suffer emotional and financial damages. She specifically states in her complaint, “20. This is a complaint for damages and injury by an insurance company, a parent company, administrator (or those by any other title who had the authority for administering), determination, withholding and authorizing worker’s compensation benefits to injured workers in the state of California and to Plaintiff.”
Plaintiff alleges the following causes of action: breach of the implied covenant of good faith and fair dealing in that defendant violated its contract for administering workers’ compensation benefits by, inter alia, withholding benefits; breach of the contract for administering workers’ compensation benefits by, inter alia, requiring inappropriate medical care and cutting off benefits; negligence in connection with the required care, withholding of benefits, demands she go back to work, and various other intentional acts; negligence per se; negligent hiring and supervision of its agents and employees; unjust enrichment; anti-trust violations by being a monopoly and restraining trade; violation of Business and Professions Code section 17200, et seq.; intentional and negligent infliction of emotional distress; and violation of her right to privacy by demanding certain records and in connection with investigating her claims.
Defendant moved to strike various portions of the complaint and filed a demurrer. The trial court sustained the demurrer without leave to amend on the ground that under Marsh & McLennan v. Superior Court (1989) 39 Cal.3d 1 (Marsh & McLennan), all of the claims are within the exclusive jurisdiction of the Workers’ Compensation Appeals Board (WCAB). Judgment was entered on the demurrer and plaintiff filed a notice of appeal. She did not include a reporter’s transcript in the record on appeal.
DISCUSSION
A. Inadequate Record
Jones appeared before the trial court and before this court in propria persona. We recognize the difficulties she would have in navigating the legal system. But she is “not exempt from the [applicable] rules because [she] is representing herself on appeal in propria persona. Under the law, a party may choose to act as his or her own attorney. [Citations.] ‘[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]’ [Citation.] Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
Authorities provide that if an appellant does not provide an adequate record, the judgment will be affirmed. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; In re Kathy P. (1979) 25 Cal.3d 91, 102; Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448; Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809, disapproved on a different point in Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 328, fn. 30; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) It has been said that although the court reviews the sufficiency of a complaint de novo, “[w]ithout a transcript of the hearing on the demurrer, we have no idea what grounds were actually advanced or what arguments were made in the trial court in support of or in opposition to the demurrer.” (Rossiter v. Benoit, supra, 88 Cal.App.3d at p. 711.)
The California Rules of Court, rules 8.121(b)(1)(C) and 8.130(a)(4), do not, however, mandate a reporter’s transcript. Here, we deal with the sufficiency of the complaint that we review de novo. And we have the trial court’s minute order giving its rationale for its ruling. (See Eisenberg, et al, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 4:18, p. 4-6.) So we do not necessarily have to have the reporter’s transcript to determine if facts stated in the complaint are sufficient to state a cause of action. But, the decision to grant the demurrer without leave to amend is a matter of discretion; we do not know what matters were argued or considered by the trial court at the hearing. “All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Plaintiff, as appellant, has the burden of overcoming the presumption of correctness. For this purpose, she must provide this court with an adequate record demonstrating the alleged abuse of discretion. Failure to provide an adequate record on that issue requires that it be resolved against her. (See Maria P. Riles, supra, 43 Cal.2d at p. 1295.) The record on appeal does not show that the plaintiff made any effort to demonstrate to the trial court that her complaint could be amended to state a cause of action.
B. Standard of Review
“‘Our only task in reviewing a ruling on a demurrer is to determine whether the complaint states a cause of action.’” (People v. ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300; Moore v. Regents of University of California (1990) 51 Cal.3d 120. 125.) The reviewing court assumes the truth of allegations in the complaint which have been properly pleaded and gives it a reasonable interpretation by reading it as a whole and with all its parts in their context. (Stop Youth Addiction, Inc. v Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558.) “On appeal from an order of dismissal after an order sustaining a demurrer, the standard of review is de novo: we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.” (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439.)
When a demurrer “is sustained without leave to amend,” we must decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and the trial court is reversed; if not, there has been no abuse of discretion and the trial court is affirmed. The burden of proving such reasonable possibility is “squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
C. Exclusivity of Workers’ Compensation Act (Lab. Code § 3200 et seq.)
The Workers’ Compensation Act provides a comprehensive system of remedies for job-related injuries. These remedies are available only before the Workers’ Compensation Appeals Board (WCAB), and such exclusive remedies are those against the employer and the workers’ compensation insurance carrier. The Workers’ Compensation Act specifically provides that any action “for the enforcement against the employer or any insurer of any liability... in favor of the injured employee... shall be instituted before the [WCAB] and not elsewhere.” (Lab. Code, § 5300, subd. (b); see also Lab. Code, §§ 3600, 3850.) This exclusivity provision remains in effect, notwithstanding any amendments to the Workers’ Compensation Act to which plaintiff alludes. (Senate Bill No. 899 (2003-2004) Reg. Sess.)
Jones in addition to allegations against her non-party employer and various nonparty medical professionals, has alleged causes of action concerning defendant’s administration of workers’ compensation benefits. The California Supreme Court held that the California Workers’ Compensation system preempts a private cause of action by an injured worker against the independent claims administrator of her self-insured employer for the delay or refusal to pay compensation benefits. (Marsh & McLennan, supra, 49 Cal.3d 1.) The court did say that a plaintiff may state a cause of action under Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, if the administrator’s actions were so extreme and outrageous that it “in effect stepped out of its role as a claims administrator....” (Marsh v. McLennan, supra, 39 Cal.3d at p. 11.) In the Unruh case, the deception and the formation of a romantic relationship with an injured employee while investigating a workers’ compensation claim was held not to be a normal part of the claims process and therefore justified an independent tort action against the insurer.
In Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 813 (Vacanti), the Supreme Court stated that “the exclusivity provisions encompass all inquiries ‘collateral to or derivative of’ an injury compensable by the exclusive remedies of the WCA [Workers’ Compensation Act].” The court said that “courts have regularly barred claims where the alleged injury is collateral to or derivative of a compensable workplace injury.” (Id. at p. 814.) The court added, “courts have invariably barred statutory and tort claims alleging that an insurer unreasonably avoided or delayed payment of benefits even though the insurer committed fraud and other misdeeds in the course of doing so.” (Id. at p. 821.) Here, all of the claims are from or are collateral to or derivative of a workplace injury, including the alleged mental anguish and abusive conduct during the workers’ compensation process. (Ibid.)
D. Causes of Action
One of the grounds on which defendant demurred to the complaint was that it was uncertain, ambiguous, and unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) The trial court did not specifically rule on this ground. Nevertheless, the complaint did contain a number of ambiguities and inconsistencies that subjected it to such a demurrer being sustained. While understandable for a pro. per. plaintiff, as noted above, that does not absolve the plaintiff from applicable pleadings rules. As examples of such pleading deficiencies, many of the allegations relate to acts or omissions of persons or entities that are not defendants and that are not attributed to defendant. Another example involves plaintiff’s claim about being required to see certain medical professionals. She does not allege that defendant could not legally direct her to medical professionals. (See Lab. Code, §§ 4616, 4616.3 [medical provider network].) Nevertheless, we have attempted to decipher the allegations and apply legal principles to them.
The causes of action for breach of covenant of good faith and fair dealing, breach of contract, negligence, negligence per se, negligent hiring and unjust enrichment are essentially based on the failure to pay and administration of workers’ compensation benefits and are preempted by the workers’ compensation laws. “The WCAB is an employee’s exclusive forum for relief when any entity unreasonably delays or refuses to pay [her] compensation benefits.” (Marsh & McLennan, supra, 49 Cal.3d at p. 10.) Defendant has no direct contractual relationship with plaintiff. If it is an agent of the employer, it has no contractual liability. That plaintiff alleges malevolent motives is not determinative. We can only focus on the acts—not the motives. (See Vacanti, supra, 24 Cal.4th at pp. 821-822.)
Although Jones alleges a violation of a medical program and of California law and Federal “HIPAA” law [the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 201 et seq.)], she fails to set forth facts showing that specific violations of any law proximately caused her damage. (See Evid. Code, § 669, subd. (a).) Accordingly, she has not stated sufficient facts to show that a violation of the statute constituted negligence per se or a violation of Business and Professions Code section 17200. The allegations of a monopoly or anti-trust violations do not indicate how such actions specifically affected plaintiff, who is not a competitor or consumer of any services of defendant. Rather, all her grievances arise out of the handling of her claim and are therefore within the exclusive province of the WCAB.
With respect to the invasion of privacy claim, Jones alleges, in effect, that defendant hired someone to investigate her claims and attend her medical appointments, required her to provide private information concerning her claim, and obtained her social security number and medical records regarding her claim. These activities, which are normal aspects of the process, fall within Workers’ Compensation Act exclusivity. (See Vacanti, supra, 24 Cal.4th at pp 821-822; Teague v. Home Ins. Co. (1985) 168 Cal.App.3d 1148, 1152 [investigation including surveillance acts are part of the workers’ compensation system].) Moreover, she does not specify what private information, other than her social security number, was required to be disclosed.
An administrator of health claims may be liable for the intentional infliction of emotional distress injury, but only when the conduct alleged is ‘“‘“so extreme and outrageous “as to go beyond all reasonable [bounds] of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community”’”’” (Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1608), and so “extreme and outrageous” so that defendant had “stepped” out of its role in administering workers’ compensation benefits. (Marsh & McLennan, supra, 49 Cal.3d at pp. 6-7; see Everfield v. State Comp. Ins. Fund (1981) 115 Cal.App.3d 15, 20.) The claims for negligence would not involve conduct so extreme and outrageous so as not to be preempted.
Allegations that defendants “acted ‘intentionally’ or ‘unfairly’ or ‘outrageously’ or ‘intentionally to cause emotional distress resulting in disability’ are not sufficient, by themselves, to permit a civil action outside the workers’ compensation system.” (Chin, et al., California Practice Guide: Employment Litigation (Rutter Group 2008) ¶ 15:537, p. 15-64.) No matter what the intention or motives, all of the alleged acts were in connection with the handling of plaintiff’s claim. The alleged acts involved delay and discontinuance of benefits that fall within the exclusive jurisdiction of the WCAB. (Marsh & McLennan, supra, 49 Cal.3d at p. 7.) So far as can be ascertained from the allegations, defendant’s conduct was not “so extreme and outrageous that it had in effect stepped out of its role as an insurer.” (Id. at p. 6; see Everfield v. State Comp. Ins. Fund (1981) 115 Cal.App.3d 15, 21; Fremont Indemnity Co. v. Superior Court (1982) 133 Cal.App.3d 879, 881; see also Mintz v. Blue Cross of California, supra, 172 Cal.App.4th at p. 1609.) Even if the motives and consequences could be viewed as extreme or outrageous, the acts themselves fall within those subject to the Workers’ Compensation Act system. (See Vacanti, supra, 24 Cal.4th at pp. 821-822.)
E. Without Leave to Amend
“To show abuse of discretion, plaintiff must show in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint... to state a cause of action.” (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 992.) Jones requested in a brief sentence in her written opposition to the demurrer the opportunity to amend her complaint in the trial court and before this court. Her papers do not indicate how she would amend, and as noted, we do not have a transcript as to what occurred at the hearing. The inadequate record is a sufficient ground to affirm the order not allowing an amendment. Moreover, plaintiff has not sustained her burden of proving that there is a reasonable possibility the defect or defects can be cured. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) There was no abuse of discretion in not allowing an amendment.
DISPOSITION
The judgment of the Superior Court is affirmed. Costs are awarded to defendant and respondent.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.