Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. CGC 04-428654
OPINION
Haerle, J.
I. INTRODUCTION
Appellant appeals from a summary judgment entered against him on his complaint against respondent, his former superior at a Safeway store in San Francisco. That complaint alleged, among other things, slander, assault, and intentional infliction of emotional distress. Appellant appeals only from the trial court’s dismissal of the latter two causes of action. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of a confrontation over the condition of a Safeway, Inc. produce section between two supermarket employees, Ronald Squaglia, the plaintiff and appellant, and his manager Joe Mascitto, the defendant and respondent. On February 22, 2003 (hereafter February 22), appellant was working in the produce section of a San Francisco Safeway store when respondent came through and began complaining about the state of the department. Apparently, a few senior managers were planning to visit. As respondent pointed out problems, he grew angrier and became louder and louder. Eventually, respondent followed the appellant into the back room, where he yelled “what have you been doing out there all day?” Respondent’s veins were bulging and he was turning red. Appellant told respondent that he was cleaning up after his boss, Tom Warren, who hadn’t done his fair share of the work. After the pair exchanged more words about the condition of the produce section, appellant said he would talk to the union about whether he could be switched out of the department. At mention of the union, respondent kicked some empty boxes off of appellant’s dolly. Respondent then jumped over the dolly, got within inches of appellant’s face, and continued to yell at his employee, telling appellant he would retaliate if appellant called the union. Appellant left the room and went to lunch. He then returned to finish his shift after lunch. That same day, appellant received a perfect 10 score from a secret Safeway shopper.
We take these facts from the complaint and from appellant’s deposition, which respondent presented in support of his motion for summary judgment.
The incident occurred at a time when appellant was having attendance problems. Before the yelling episode, appellant had missed work or arrived late for his shifts on several occasions. On January 29, 2003, and February 2, 2003, appellant did not attend work or notify anyone he would be absent from his scheduled shifts. On February 4, 2003, he was suspended for three days and warned of possible termination.
Less than a month after the February 22 incident, appellant was again suspended for three days for attendance violations. He was then transferred to a new Safeway store, where he again came late to work, was suspended for a third time, and was terminated. Following his termination, appellant had anxiety attacks, chest pains, and trouble sleeping.
Respondent’s briefs also contain allegations that the appellant later stole respondent’s car and vandalized another worker’s automobile. Even if true, these claims are outside the scope of this appeal.
In June of the following year, appellant filed a personal injury suit against respondent, alleging intentional interference with economic advantage, slander, assault, and intentional infliction of emotional distress. Appellant contended that respondent intended to injure him when he kicked over the empty boxes and yelled. He also alleged that respondent’s conduct was extreme and outrageous.
Respondent moved for summary judgment contending that under Labor Code section 3601, appellant’s exclusive remedy was the workers’ compensation system. Respondent further argued that no material facts were in dispute and that respondent did not act outrageously or extremely or cause appellant’s emotional distress. In opposition to the motion, appellant argued that his claim fell under one of the exemptions from the exclusivity clause. Appellant also claimed respondent was not acting in the course and scope of his employment when he yelled at appellant. Therefore, appellant argued, the court should allow a separate claim against respondent outside of worker’s compensation.
The trial court granted respondent’s motion for summary judgment, finding, among other things, that the Worker’s Compensation Act (the Act) precluded appellant’s assault claim and that respondent’s conduct was not extreme and outrageous and did not cause emotional distress. This timely appeal followed.
III. DISCUSSION
A. Appellant’s first argument is that the trial court erred in ruling that his first cause of action was barred by the exclusivity provisions of the Act. On this point, of course an issue of law, we agree with the trial court.
As a general rule, an employee suffering an injury arising out of and in the course of employment is limited to recovery provided by the workers’ compensation system. (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1001 (Torres); Lab. Code, § 3600.) The workers’ compensation scheme is based on a “presumed compensation bargain” between the employee and employer, where an employee receives swift relief regardless of fault while giving up the wider range of potentially available tort damages. (Torres, supra, 26 Cal.4th at p. 1001.) Thus, the exclusivity provisions are to be construed broadly, and courts should find that a close case falls within the system. (Mitchell v. Scott Wetzel Services, Inc. (1991) 227 Cal.App.3d 1474, 1480.)
In determining whether an employee’s action is barred by the exclusive remedies of the workers’ compensation system, courts look at whether the injury arises out of the course of employment and whether an exemption from the exclusivity provisions applies. (Torres, supra, 26 Cal.4th at p. 1003.) In doing so, courts “must take into account not only the facts alleged (i.e., of physical injury) but also their relation to the scope and purposes of the workers’ compensation statutory scheme.” (Shoemaker v. Myers (1990) 52 Cal.3d 1, 13 (Shoemaker).)
Our Supreme Court has routinely held that acts related to discipline, termination and the actions leading up to such events, arise out of and occur within the scope of the employment. (Shoemaker, supra, 52 Cal.3d at p. 18; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160 (Cole).) As the court noted in Cole and Shoemaker, many intentional acts in the workplace may cause emotional distress; yet they are not outside the Act’s scope. (Ibid.) That is, “[f]lare-ups, frustrations, and disagreements among employees are commonplace in the workplace . . . .” (Torres, supra, 26 Cal.4th at p. 1009.) Thus, “[e]ven if such conduct may be characterized as intentional, unfair or outrageous, it is nevertheless covered by the workers’ compensation exclusivity provisions.” (Shoemaker, supra, 52 Cal.3d at p. 25. )
The Labor Code does provides two exemptions from the workers’ compensations system when a work-related injury involves a co-worker (Lab. Code, § 3601, subd. (a)(1).) If one of these exemption applies, a plaintiff’s claim would not be barred. The first exemption includes injuries caused by an intoxicated co-worker. (Ibid.) Under the second exemption—claimed here—an employee may bring a civil suit against a co-worker for injuries stemming from the co-worker’s “willful and unprovoked physical act of aggression.” (Ibid.)
Our Supreme Court has held that such an act of aggression must include an intent to injure. (Torres, supra, 26 Cal.4th at p. 1001.) Although bodily contact is not necessary for a physical assault, the conduct must be the type that “ ‘a reasonable [person] would perceive to be a “ ‘real, present, and apparent threat of bodily harm.’ ” ’ ” (Iverson v. Atlas Pacific Engineering (1983) 143 Cal.App.3d 219, 225 (Iverson), quoting Mathews v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 719.)
In holding that a co-worker’s actions amount to assault outside the exclusive provisions of the Act, courts have examined the severity of the co-worker’s actions. For example, in Herrick v. Quality Hotels, Inns & Resorts, Inc. (1993) 19 Cal.App.4th 1608, 1617, the supervisor of the plaintiff, a hotel security guard, repeatedly showed his gun to his employees. When the plaintiff balked at signing a termination agreement, the supervisor drew his gun and threatened to blow the employee’s “head off,” causing the plaintiff to shake like a leaf, call the police, and spend the night in the bathroom. (Id. at pp. 1613-1615.) The court found that the threats constituted a physical assault within the meaning of Labor Code section 3601. (Ibid. ) Similarly, in State Rubbish Collectors Assn. v. Siliznoff (1952) 38 Cal.2d 330, 335, the court held that the actions of a trade association inspector amounted to assault where he threatened to beat up the plaintiff, slash his tires, and drive him out of business, forcing the plaintiff to become ill and remain away from work for several days. Furthermore, in Young v. Libbey-Owens Ford Co. (1985) 168 Cal.App.3d 1037, the court allowed a claim outside the workers compensation system when a co-worker purposefully drove an electric cart into plaintiff, injuring his back. The court held the action went beyond normal workplace conduct covered by the exclusivity provisions. (Id. at p. 1042.)
Courts have also applied the exemptions in false imprisonment claims where a co-worker tormented the plaintiff and physically blocked him or her from leaving. (Iverson, supra, 143 Cal.App.3d 219; Fermino v. FEDCO, Inc. (1994) 7 Cal.4th 701 (Fermino).) In Iverson, for example, a co-worker set up a steel horseshoe target above the workplace of the plaintiff. The co-worker then repeatedly pounded a sledgehammer against the target, making loud crashing noises while preventing the plaintiff from leaving. (Iverson, supra, 143 Cal.App.3d at p. 222.) In Fermino, the court held that a plaintiff pleaded facts sufficient to survive a demurrer in the case of a department store employee who was interrogated for more than an hour about a theft, reduced to tears, and physically blocked from leaving when she tried to exit. (Fermino, supra, 7 Cal.4th at pp. 706-707.)
In contrast, the Supreme Court has refused to apply the exemptions when a co-worker did not intend to harm the plaintiff. (Torres, supra, 26 Cal.4th at p. 1001; Soares v. City of Oakland (1992) 9 Cal.App.4th 1822 (Soares).) In Torres, the plaintiff was repairing and installing tires when a co-worker—in an apparent act of horseplay—approached him from behind, grabbed his belt, lifted him off the ground a few times and then dropped him. (Torres, supra, 26 Cal.4th at p. 1000.) The plaintiff suffered back injury and did not return to work. (Ibid.) The court held that the trial court properly instructed jurors that the co-worker’s actions fell under the provisions of the Act unless he intended to harm the plaintiff. (Id. at p. 1006.) In Soares, the plaintiff, a city jail worker, sued a co-worker who put him in a type of choke hold while restraining him from jumping on a prisoner. (Soares, supra, 9 Cal.App.4th at p. 1824.) Even though the restrained plaintiff turned “a little bit purple,” the court held that he was limited to the Act’s exclusive remedies because the co-worker had no intent to injure him. (Ibid.)
Similarly here, appellant has not presented evidence that gives rise to an inference that respondent intended to injure him. Appellant and respondent were involved in a conflict arising out of apparently shoddy upkeep of the produce department, an area of the store where they both worked. Thus, the incident occurred within the scope of employment. Moreover, when respondent started yelling at the appellant—an employee who reported to him—it amounted to precisely the type of emotional flare-up that is inherent in workplace disputes. Although respondent allegedly got within an inch of appellant’s face with his veins bulging, we note that respondent did not make any attempt to touch appellant or threaten to touch him. Allegations involving a flaring temper over workplace upkeep, although unfortunate and unsettling, are not sufficient to state an act of aggression outside the worker’s compensation system.
In fact, appellant’s opening brief on this issue consists almost entirely of five paragraphs lifted verbatim from the Fermino case without any further analysis. These paragraphs discuss the purpose behind the Act and compare California’s law with other jurisdiction, but they do not address the intent to injure issue that the Supreme Court later spelled out in Torres.
Nor was appellant’s subjective reaction—along with his belief that respondent was an amateur boxer—enough to allow an inference that respondent had a specific intent to injure him. Respondent did not block appellant from leaving the site of the conflict. And after the confrontation, appellant walked out of the room, went to get lunch, and came back to work. Although respondent’s outburst was obviously unpleasant and annoying to appellant, a reasonable person in appellant’s position would not have feared he was about to suffer physical harm. Simply put, and as the trial court here held, appellant’s screaming fit was not a willful and unprovoked physical act of aggression conducted with intent to harm. Therefore, the trial court correctly ruled that respondent’s behavior does not support a claim for assault outside the workers’ compensation system.
B. Appellant’s second contention is that his fourth cause of action for emotional distress was not properly subject to the summary judgment granted to respondent because “[a]ppellant was, and continues to be, depressed and anxiety ridden because of the assault, and . . . receives professional treatment for his emotional distress.”
In a recent published decision, this court set out the law and procedure applicable to appeals from a trial court’s grant of summary judgment. In Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 100-101 (Andrews), we wrote: “The trial court’s summary judgment rulings are subject to de novo review. [Citation.] ‘In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally, construing [his] evidentiary submission while strictly scrutinizing [plaintiff’s] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor.’ [Citation.] [¶] ‘A motion for summary judgment must be granted if all of the papers submitted show “there is no triable issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law. In determining whether the papers show . . . there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, . . . and all inferences reasonably deducible from the evidence. . . .” ([Code Civ. Proc.,] § 437c, subd. (c).) A defendant has met its burden of showing a cause of action has no merit if it “has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show . . . a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show . . . a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists. . . .” (Id., subd. (o)(2); [citations].)’ [Citation.] [¶] As our Supreme Court has noted, ‘[s]ummary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.’ [Citations.] ‘There is a triable issue of material fact 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, ‘the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.’ [Citation.] Circumstantial evidence supporting a defendant’s summary judgment motion ‘can consist of “factually devoid” discovery responses from which an absence of evidence can be inferred,’ but ‘the burden should not shift without stringent review of the direct, circumstantial and inferential evidence.’ [Citation.]” (Andrews, supra, 138 Cal.App.4th at pp. 100-101.)
Respondent clearly met his initial burden of producing evidence sufficient to make a prima facie showing that he did nothing on February 22, 2003, or thereafter for that matter, that would constitute intentional infliction of emotional distress upon appellant. Most specifically, in support of his motion he presented a substantial portion of appellant’s September 2004 deposition. There, appellant testified that, on the day of the major confrontation with respondent, February 22, the latter entered the back room where appellant was working, “kicked all my [empty cardboard] boxes and knocked my stuff off my dolly,” “stepped over the dolly and [got] right in my face,” i.e., “one inch” away, and “started screaming, ‘[w]hat the hell you been doing out there? What the hell you doing for the last four hours?’ Appellant testified he could remember “[n]othing more” that respondent said to him at that time and place. He testified that he did not say a “single word to” respondent afterwards, and described his reaction to the encounter in these terms: “I remember being shocked. I couldn’t understand why he would come at me. I remember being shocked. I walked out. I went to lunch.” After lunch, appellant went back to work.
In answer to a follow-up question from respondent’s counsel, appellant reiterated that he had said nothing in response to respondent’s angry words to him, again testifying: “I was just in shock. My mouth was open.”
In its order granting summary judgment, the trial court found that appellant had not produced sufficient evidence to establish that there were triable issues of material fact regarding either (1) respondent’s exercise of “extreme and outrageous conduct” towards appellant on February 22 or (2) the impact of that conduct on appellant. We agree with both conclusions.
On the first point, the trial court’s order granting summary judgment states: “[T]he undisputed material facts establish as a matter of law that Defendant’s alleged conduct was not extreme or outrageous . . . .” This holding is consistent with the applicable law, which is clear that a workplace argument of the sort involved here, no matter how inappropriate, loud or unfair it or its origins might have been, simply does not qualify as a basis for a claim of intentional infliction of emotional distress.
The leading case summarizing the requirements of this tort is Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593, where a unanimous California Supreme Court held: “The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) and actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. [Citations.] ‘Whether treated as an element of the prima facie case or as a matter of defense, it must also appear that the defendants’ conduct was unprivileged.’ [Citations.] Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citations.]” (Id. at p. 593.)
Several appellate decisions apply these principles to claims of the intentional infliction of the employment context. These include two subsequent Supreme Court decisions, as well as a decision of the federal Court of Appeals for the Ninth Circuit. (See Cole, supra, 43 Cal.3d at p. 155, fn. 7; Shoemaker, supra, 52 Cal.3d at p. 25; and Schneider v. TRW (9th Cir. 1991) 938 F.2d 986, 992-993 (Schneider).)
Cole was a case involving the alleged intentional infliction of emotional distress brought by a former employee of a Sacramento-area public agency against it and a former fellow employee. The decision of the court concerned the extent to which such claims are within the exclusive jurisdiction of the WCAB. However, in the course of ruling on that issue, the court devoted a footnote to summarizing the requirements of the tort at issue, in the process citing both the Restatement of Torts and Prosser on Torts: “There is liability for conduct ‘exceeding all bounds usually tolerated by a decent society, of a nature which is especially calculated to cause, and does cause, mental distress. [Citation.] Ordinarily mere insulting language, without more, does not constitute outrageous conduct. The Restatement view is that liability “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. . . . There is no occasion for the law to intervene . . . where someone’s feelings are hurt.” [Citation.]’” (Cole, supra, 43 Cal.3d at p. 155, fn. 7.)
Shoemaker merely cited Cole in holding that “. . . discipline or criticism . . . are a normal part of the employment relationship.” (Shoemaker, supra, 52 Cal.3d at p. 25.)
In Schneider, the Ninth Circuit cited Cole (among other cases) in affirming a district court’s grant of summary judgment to a defendant employer who had been sued by a former employee who claimed that a supervisor had twice “screamed and yelled in the process of criticizing her performance . . . and made gestures she interpreted as threatening.” The Ninth Circuit noted: “While such incidents may show rudeness and insensitivity, they do not amount to outrageous conduct.” (Schneider, supra, 938 F.2d at p. 992.)
The same court, citing Schneider, ruled similarly in a case also decided under California law and involving alleged intentional infliction of emotional distress by an employer against a former employee, Braunling v. Countrywide Home Loans Inc. (9th Cit. 2000) 220 F.3d 1154, 1158 (Braunling). There, the former employee-plaintiff alleged that “she had to withstand a tirade from someone within Countrywide’s human resources department.” Citing Schneider, the Ninth Circuit ruled that the incident alleged “does not approach the level of extreme and outrageous conduct necessary to make a claim for intentional infliction of emotional distress.” (Braunling, supra, 220 F.3d at p. 1158.)
Interestingly, in Braunling, the Ninth Circuit affirmed a summary judgment granted to the defendant employer by then-federal district judge Carlos Moreno, now on our Supreme Court.
As already noted, the trial court provided a second reason why appellant’s intentional infliction of emotional distress claims fails was that he did not demonstrate a triable issue of material fact regarding whether he in fact suffered any severe emotional distress as a result of the events of February 22.
The record also amply supports this basis for granting summary judgment to respondent. As noted above, appellant testified at his deposition merely that he was “shocked” by respondent’s statements and conduct on February 22 but that he (1) said nothing back to respondent, (2) went out to a normal lunch, and (3) completed his work day. Additionally, he testified at his deposition that he did not begin to suffer any sort of “stress” until he was terminated by another superior several months later and, even then, did not seek medical attention concerning his condition until nearly a year after he ceased working with respondent.
Via declarations, appellant attempts to modify, if not substantially vary, his deposition testimony regarding both the conduct of respondent and the impact of that conduct on him. But the law is clear that, in determining a summary judgment motion, a trial court may, in view of admissions of a plaintiff litigant in the course of a deposition, disregard subsequent and different versions of the same events adduced via declarations. (See, e.g., D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22; Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 382; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1120; Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 77; Wilkins v. National Broadcasting Co. (1999) 71 Cal.App.4th 1066, 1082.) The trial court clearly did so here, and we agree with its conclusion that appellant presented no triable issue of material fact on either aspect of his claim of intentional infliction of emotional distress.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.
Another federal case citing Schneider and Cole in the course of granting summary judgment to an employer in a suit by a former employee claiming intentional infliction of emotional distress by a supervisor’s possibly “offensive and insensitive” conduct, is Dove v. PNS Stores, Inc. (C.D. Cal. 1997) 982 F.Supp. 1420, 1424-1427.)