Preview
1 HANSON BRIDGETT LLP
SHANNON M. NESSIER, SBN 267644
2 snessier@hansonbridgett.com ELECTRONICALLY
GEOFFREY R. PITTMAN, SBN 253876
3 gpittman@hansonbridgett.com F I L E D
Superior Court of California,
425 Market Street, 26th Floor County of San Francisco
4 San Francisco, California 94105
Telephone: (415) 777-3200 01/10/2020
Clerk of the Court
5 Facsimile: (415) 541-9366 BY: DAVID YUEN
Deputy Clerk
6 Attorneys for Defendant ATHLETA, INC.
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF SAN FRANCISCO
9
10 KIMBERLY SHERAY, Case No. CGC-19-577297
11 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
12 v. DEFENDANT ATHLETA, INC.’S
DEMURRER TO PLAINTIFF
13 GAP SERVICES, INC.; GAP (ITM) INC.; KIMBERLY SHERAY’S FIRST
GAP INTERNATIONAL SALES, INC.; GAP AMENDED COMPLAINT
14 INTERNATIONAL SOURCING, INC.; GAP
INTERNATIONAL SOURCING (U.S.A.) [Filed concurrently with Notice of Hearing on
15 INC.; ATHLETA (ITM); ATHLETA, INC.; Demurrer and Demurrer; and Declaration of
and DOES 1-100, inclusive,, Geoffrey R. Pittman re: Satisfaction of Civ.
16 Proc. Code § 430.41]
Defendants.
17 Judge: Hon. Ethan P. Schulman
Date: February 14, 2020
18 Time: 9:30 a.m.
Dept.: 302
19 Reservation #: 01080214-10
20
Action Filed: July 1, 2019
21 Trial Date: None Set
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DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
1 TABLE OF CONTENTS
Page
2
I. INTRODUCTION ..................................................................................................................5
3
II. FACTUAL BACKGROUND ................................................................................................5
4
A. Relevant procedural history. ......................................................................................5
5
B. Plaintiff’s factual allegations and causes of action. ...................................................6
6
III. LEGAL STANDARD ............................................................................................................7
7
A. Plaintiff’s seven causes of action against Athleta are barred by the exclusive
8 remedy provisions of California’s Workers’ Compensation Law. ............................8
9 1. The California Workers’ Compensation Act ensures employees
prompt and reasonable compensation and, in exchange, forecloses
10 tort liability. ....................................................................................................9
11 2. The California Workers’ Compensation Act provides the exclusive
remedy even for alleged intentional employer misconduct..........................10
12
3. The FAC pleads facts demonstrating that Plaintiff’s claims fall
13 within the exclusive remedy provision of the Workers’
Compensation Act. .......................................................................................13
14
4. Plaintiff has not alleged any statutory exception to the California
15 Workers’ Compensation Act. .......................................................................14
16 a. Plaintiff has not alleged the willful physical assault
exception. .........................................................................................14
17
b. Plaintiff has failed to plead sufficient facts to establish the
18 fraudulent concealment exception. ...................................................16
19 c. Plaintiff has not alleged that her injuries were caused by a
defective product manufactured by Athleta. ....................................17
20
B. Plaintiff’s fraud, intentional misrepresentation, and concealment causes of
21 action are not pled with sufficient particularity........................................................18
22 IV. CONCLUSION ....................................................................................................................18
23
24
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26
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DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 Aubry v. Tri-City Hospital Dist.,
5 2 Cal. 4th 962 (1992)....................................................................................................................8
6 Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund,
24 Cal. 4th 800 (2001)................................................................................................................19
7
Committee on Children’s Television, Inc. v. General Foods Corp.,
8 35 Cal. 3d 197 (1983) .................................................................................................................19
9 Davis v. Lockheed Martin Corp.,
13 Cal. App. 4th 519 (1993) .......................................................................................................10
10
11 Foster v. Xerox Corp.,
40 Cal. 3d 306 (1985) ...........................................................................................................17, 18
12
Gunnell v. Metrocolor Labs, Inc.,
13 92 Cal. App. 4th 710 (2001) ............................................................................................... passim
14 Halliman v. Los Angeles Unified School Dist.,
163 Cal. App. 3d 46 (1994) ........................................................................................................10
15
16 Herrick v. Quality Hotels, Inns & Resorts, Inc.,
19 Cal. App. 4th 1608 (1993) .....................................................................................................15
17
Hughes Aircraft Co. v. Superior Court,
18 44 Cal. App. 4th 1790 (1996) ...............................................................................................17, 18
19 Jensen v. Amgen, Inc.,
105 Cal. App. 4th 1322 (2003) .............................................................................................17, 18
20
Johns-Manville Prods. Corp. v. Superior Court,
21
27 Cal. 3d 465 (1980) .....................................................................................................11, 13, 14
22
Lazo v. Mobil Oil Refining Corp.,
23 No. CV 14-1072 ABC, 2014 WL 12596424 (C.D. Cal. May 30, 2014)....................................18
24 Livitsanos v. Superior Court,
2 Cal. 4th 744 (1992)..............................................................................................................9, 12
25
Lomibao v. Baxter Healthcare Corp.,
26 No. CV 13-1789 PSG, 2013 WL 12138733 (C.D. Cal. Aug. 5, 2013) ................................16, 17
27
Migliori v. Boeing North American, Inc.,
28 97 F. Supp. 2d 1001 (C.D. Cal. 2001) ........................................................................................17
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DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
1 Nagy v. Nagy,
210 Cal. App. 3d 1262 (1989) ....................................................................................................19
2
Rakestraw v. Cal. Physicians’ Serv.,
3 81 Cal. App. 4th 39 (2000) .......................................................................................................8, 9
4
Seidler v. Municipal Ct. of the Beverly Hills Judicial Dist. of Los Angeles County,
5 12 Cal. App. 4th 1229 (1993) .......................................................................................................8
6 Stansfield v. Starkey,
220 Cal. App. 3d 59 (1990) ........................................................................................................19
7
Vuillemainroy v. American Rock & Asphalt, Inc.,
8 70 Cal. App. 4th 1280 (1999) .......................................................................................................9
9 Williams v. Int’l Paper Co.,
10 129 Cal. App. 3d 810 (1982) ......................................................................................................12
11 Wright v. FMC Corp.,
81 Cal. App. 3d 777 (1978) ........................................................................................................12
12
Statutes
13
Cal. Lab. Code §§ 3600-3602 ............................................................................................................9
14
Cal. Lab. Code §§ 3600(a), 3602(a) .................................................................................................14
15
16 Cal. Lab. Code § 3602(a) .........................................................................................................6, 9, 10
17 Cal. Lab. Code § 3602(b)(2) ......................................................................................................17, 18
18 Cal. Lab. Code § 4553 ................................................................................................................11, 13
19 California Code of Civil Procedure
20 § 430.10(e) .............................................................................................................................8
§ 430.41(a) .............................................................................................................................6
21 § 430.50(a) .............................................................................................................................8
22
23
24
25
26
27
28
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DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
1 I. INTRODUCTION
2 Plaintiff’s First Amended Complaint (“FAC”) is subject to demurrer without leave to
3 amend because each of her causes of action are precluded by the exclusive remedy provisions of
4 California’s Workers’ Compensation Act. Plaintiff alleges that she was employed by Defendant
5 Athleta, Inc. (“Athleta”) when she was allegedly exposed to “toxic fabrics and materials” and
6 injured during the course and scope of her employment. Given these allegations, Plaintiff’s seven
7 causes of action fall squarely within the purview of workers’ compensation immunity, which
8 provides that the California Workers’ Compensation Act is “the sole and exclusive remedy of the
9 employee or his or her dependents against the employer.” (Cal. Lab. Code § 3602(a) (emphasis
10 added).) Workers’ compensation benefits are thus the only remedy available to Plaintiff for
11 injuries arising from her alleged exposure to “toxic fabrics and materials” during her employment.
12 Further, Plaintiff fails to adequately plead any applicable exception to this workers’ compensation
13 immunity under California Labor Code section 3602(b). Because Plaintiff’s claims are each
14 predicated on, collateral to, or derivative of personal injuries that Plaintiff allegedly suffered
15 during the course and scope of her employment, the only proper avenue for her to obtain relief is
16 through the workers’ compensation system, not through civil tort litigation. In addition, her causes
17 of action for fraud, intentional misrepresentation, and concealment are also subject to demurrer on
18 the separate and independent ground that they are not pled with the requisite particularity. For
19 these reasons, the demurrer should be sustained in its entirety.
20 II. FACTUAL BACKGROUND
21 A. Relevant procedural history.
22 Plaintiff Kimberly Sheray (“Plaintiff” or “Sheray”) filed her initial Complaint in this action
23 on July 1, 2019. Plaintiff’s initial Complaint asserted causes of action for fraudulent concealment
24 of injury, assault, and battery. (Complaint, ¶¶ 24-51.) On September 26, 2019, Athleta’s counsel
25 sent a detailed letter to Plaintiff’s counsel, identifying the pleading deficiencies in Plaintiff’s
26 Complaint pursuant to California Code of Civil Procedure section 430.41(a). In response, Plaintiff
27 filed the operative First Amended Complaint (“FAC”) on November 5, 2019, which added
28 additional allegations and causes of action, but failed to cure the pleading defects previously
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DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
1 identified by Athleta’s counsel. Athleta’s counsel met and conferred again with Plaintiff’s counsel
2 regarding the pleading deficiencies in the FAC, but those meet and confer efforts proved
3 unsuccessful. (See Declaration of Geoffrey R. Pittman filed concurrently herewith).
4 B. Plaintiff’s factual allegations and causes of action.
5 Plaintiff alleges that she was employed by Athleta 1 on the 6th Floor of the facility at 1
6 Harrison Street, San Francisco, California 94105 (the “Facility”). (FAC, ¶ 15.) Plaintiff further
7 alleges that she was “continuously overexposed” to “toxic fabrics and materials at the Facility”
8 and that she was “forced . . . to keep these materials on her desk and chair located in her office
9 over a period of several days.” (Id., ¶¶ 16-17, 24.) According to Plaintiff, the Facility was allowed
10 to “reach temperatures that caused the various toxic chemicals in the fabrics and garments to
11 vaporize and become airborne” and that Athleta “did not provide and/or prevented proper air
12 ventilation and/or air conditioning” at the Facility. (Id., ¶¶ 16, 18, 25.) Plaintiff further alleges that
13 Athleta “stored hundreds of untested toxic fabrics and materials at the Facility . . .” and
14 “knowingly chose to store them with Plaintiff.” (Id., ¶ 15.) Plaintiff claims that she was
15 “continuously exposed” to “toxic chemicals and airborne contaminants” at the Facility and, as a
16 result, she has suffered the following injuries: “rashes, breakdown of the dermal barrier, spreading
17 of rashes from the neck to the shoulder, arms, and face; airway issues, loss of voice, difficulty
18 speaking, hoarse voice; tightness and pressure in the chest; dizziness and blurry vision; headaches,
19 fatigue, nausea, burning eyes; severe allergy to fragrance/similar particulates, hyper reactive
20 immune system, Allergic Contact Dermatitis and progression of the syndrome; harm to liver and
21 kidneys, and harm to internal physiological symptoms.” (FAC, ¶ 19.)
22 Plaintiff also generally alleges that Athleta “knew about Plaintiff’s injuries and that they
23 were job related” (FAC, ¶ 20), that she “complained about the skin rashes to her supervisors” (id.,
24 ¶ 33), and “[a]t a certain point after Plaintiff had been exposed to the toxic chemical compounds,
25 Plaintiff complained to [Athleta] of chemical smell and informed [Athleta] that there was an issue
26 of chemical exposure and toxic chemicals in the fabric of certain materials.” (Id., ¶ 17.) However,
27
1
28 Through a stipulation that was filed on January 9, 2020, Plaintiff has agreed to dismiss all named
defendants other than Athleta without prejudice.
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DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
1 these general allegations contradict the specific allegations from Plaintiff’s initial Complaint that
2 “Plaintiff submitted a Leave of Absence Letter in November 2017” to inform Athleta of her work-
3 related injuries (Complaint, ¶ 18), and that Plaintiff’s symptoms and injuries “worsened when she
4 returned from work in April of 2018.” (Complaint, ¶ 20.) The FAC is devoid of any specific
5 allegations regarding when Plaintiff allegedly informed Athleta of her alleged injuries.
6 Additionally, Plaintiff alleges that Athleta “knew that the skin problems that Plaintiff . . . [was]
7 suffering from were a precursor to the development of injuries including, but not limited to,
8 Allergic Contact Dermatitis” and that Athleta “concealed the causal relationship and significance
9 [of] chemical exposures, the development of skin conditions, other forms of dermatitis, and her
10 contraction of injuries including, but not limited to, Allergic Contact Dermatitis.” (FAC, ¶¶ 32,
11 39.) Plaintiff further alleges that “[e]ach toxin that entered her body was a substantial factor in
12 bringing about, prolonging, and aggravating her injuries. . .” (Id., ¶ 42.)
13 Based on her alleged injuries, Plaintiff’s FAC asserts the following seven causes of action:
14 (1) fraudulent concealment of injury, (2) assault, (3) battery, (4) fraud, (5) intentional
15 misrepresentation, (6) concealment, and (7) intentional infliction of emotional distress. (FAC,
16 ¶¶ 22-96.)
17 III. LEGAL STANDARD
18 A complaint is subject to demurrer under California Code of Civil Procedure section
19 430.10(e) if it does not state facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code
20 § 430.10(e). A demurrer “may be taken to the whole complaint . . . or to any of the causes of
21 action stated therein.” Cal. Civ. Proc. Code § 430.50(a). For purposes of testing the sufficiency of
22 the pleadings, all material facts pleaded are deemed to be true; however, the court does not assume
23 the truth of contentions, deductions, or conclusions of law. Aubry v. Tri-City Hospital Dist., 2 Cal.
24 4th 962, 967 (1992) (citations omitted). In evaluating a demurrer, a court may reject allegations
25 constituting opinion, speculation, or conclusions of fact or law. See Rakestraw v. Cal. Physicians’
26 Serv., 81 Cal. App. 4th 39, 42-43 (2000). A demurrer may be sustained without leave to amend
27 where “the facts are not in dispute and the nature of the plaintiff’s claim is clear, but under the
28 substantive law, no liability exists. Obviously, no amendment could change the result.” Seidler v.
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DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
1 Municipal Ct. of the Beverly Hills Judicial Dist. of Los Angeles County, 12 Cal. App. 4th 1229,
2 1233 (1993) (citation and internal quotation marks omitted). Where a complaint’s defects cannot
3 be cured by further amendment, a court must sustain the demurrer without leave to amend. See
4 Rakestraw, 81 Cal. App. 4th at 43-44. A plaintiff bears the burden of proving that the defects may
5 be cured. Id. Here, the Complaint fails to state any cause of action as to any of Plaintiff’s claims
6 and Blue Diamond’s demurrer should be sustained without leave to amend.
7 A. Plaintiff’s seven causes of action against Athleta are barred by the exclusive
remedy provisions of California’s Workers’ Compensation Law.
8
9 Under well-established California law, each of Plaintiff’s causes of action against her
10 former employer, Athleta, are barred by the California Labor Code. Generally, an employee whose
11 injuries arise out of and in the course of employment is limited to the recovery of workers’
12 compensation benefits. Cal. Lab. Code §§ 3600-3602. “Section 3600 of the Labor Code provides
13 that an employer is liable for injuries to its employees arising out of and in the course of
14 employment, and section [3602] declares that where the conditions of workers’ compensation
15 exist, the right to recover such compensation is the exclusive remedy against an employer for
16 injury or death of an employee.” Vuillemainroy v. American Rock & Asphalt, Inc., 70 Cal. App.
17 4th 1280, 1283 (1999). These provisions apply to all injuries that arise from the employment
18 relationship. See, e.g., Livitsanos v. Superior Court, 2 Cal. 4th 744, 747 (1992).
19 More specifically, California Labor Code section 3602(a) provides, in relevant part, as
20 follows: “(a) Where the conditions of compensation set forth in Section 3600 concur, the right to
21 recover compensation is, except as specifically provided in this section and Sections 3706 and
22 4558, the sole and exclusive remedy of the employee . . . against the employer[.]” In turn,
23 California Labor Code section 3600(a) states, in relevant part, that:
24 Liability for the compensation provided by this division, in lieu of any other
liability whatsoever to any person except as otherwise specifically provided in
25 Sections 3602, 3706, and 4558, shall, without regard to negligence, exist against an
employer for any injury sustained by his or her employees arising out of and in the
26 course of employment . . . in those cases where the following conditions of
compensation concur: . . .
27
(2) Where, at the time of the injury, the employee is performing service growing
28 out of and incidental to his or her employment and is acting within the course of his
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DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
1 or her employment.
2 (3) Where the injury is proximately caused by the employment, either with or
without negligence.
3
4 Where, as here, “the complaint affirmatively alleges facts indicating coverage by the workers’
5 compensation laws, if it fails to state additional facts negating application of the exclusive remedy
6 provision, no civil action will lie and the complaint is subject to a general demurrer.” Halliman v.
7 Los Angeles Unified School Dist., 163 Cal. App. 3d 46, 50 (1994) (citations omitted).
8 1. The California Workers’ Compensation Act ensures employees prompt
and reasonable compensation and, in exchange, forecloses tort liability.
9
10 The California Workers’ Compensation Act creates a comprehensive statutory scheme for
11 addressing all injuries “arising out of and in the course of employment, including injuries caused
12 by unsafe workplace conditions.” Cal. Lab. Code § 3600(a). Where coverage exists, workers’
13 compensation is therefore the “sole and exclusive remedy of the employee . . . against the
14 employer.” Id. § 3602(a); see also Davis v. Lockheed Martin Corp., 13 Cal. App. 4th 519, 521
15 (1993) (“As a general rule, an employee injured in the course of employment is limited to the
16 remedies available under the Workers’ Compensation Act.”).
17 The exclusive remedy provision is based on the “compensation bargain.” The employer
18 avoids the costs and burdens of civil litigation and assumes liability through workers’
19 compensation for work-related injuries “without regard to fault in exchange for limitations on the
20 amount of that liability,” while the employee receives speedy, guaranteed compensation for work-
21 related injuries “without having to prove fault,” but “[i]n exchange, the employee gives up the
22 wider range of civil tort damages potentially available.” Gunnell v. Metrocolor Labs, Inc., 92 Cal.
23 App. 4th 710, 722 (2001). Consequently, the exclusive remedy provision furthers the interests of
24 both employers and employees by freeing them from the substantial costs and uncertainties of
25 civil litigation. See id. (affirming trial court’s grant of judgment notwithstanding the verdict where
26 the trial court found that the exclusive remedy provision barred plaintiffs’ civil action).
27 Here, Plaintiff has gone beyond her available remedies through the California workers’
28 compensation system and has asserted claims against her former employer in this Court for “the
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DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
1 wider range of civil tort damages potentially available.” Gunnell, 92 Cal. App. 4th at 720. Yet, the
2 California Workers’ Compensation system remains her exclusive forum under the “compensation
3 bargain.” Every employer, like Athleta here, and every employee, like Plaintiff, is entitled to have
4 that bargain kept and their statutory rights enforced. However, Plaintiff is not entitled to
5 unilaterally breach the compensation bargain and pursue costly and time-consuming civil tort
6 litigation against her former employer. Under both the clear language of the California Workers’
7 Compensation Act, and its legislatively determined purpose, Plaintiff’s FAC should be dismissed
8 without leave to amend.
9 2. The California Workers’ Compensation Act provides the exclusive
remedy even for alleged intentional employer misconduct.
10
11 The California Workers’ Compensation Act applies the exclusive remedy even where, as
12 here, the employee alleges intentional misconduct by the employer, such as where an employer
13 allegedly exposed employees “to a dangerous chemical substance and concealed the danger from
14 those employees.” Gunnell, 92 Cal. App. 4th at 714. As the California Supreme Court has long
15 held, the California Workers’ Compensation Act provides employees with additional damage
16 remedies, and potentially subjects employers to statutory penalties, for any alleged egregious or
17 intentional conduct through a statutory application. See Johns-Manville Prods. Corp. v. Superior
18 Court, 27 Cal. 3d 465, 473-475 (1980); see also Cal. Lab. Code § 4553.
19 Indeed, California courts have consistently applied the exclusive remedy provision when
20 the employer allegedly knowingly fails to maintain a safe workplace for the employee or
21 intentionally misrepresents the danger of the employee’s working conditions. See, e.g., Johns-
22 Manville, 27 Cal. 3d at 469, 474-75 (holding that an employer’s intentional actions of concealing
23 knowledge of plaintiff’s 29-year exposure to asbestos and advising him that the workplace was
24 safe, violating state and federal regulations, failing to provide sufficient protective equipment or
25 health warnings, and providing plaintiff with unqualified doctors to examine his claimed injuries
26 did not alter the conclusion that plaintiff’s exclusive remedy was through the workers’
27 compensation system); Gunnell, 92 Cal. App. 4th at 714 (workers’ compensation is the exclusive
28 remedy for intentional infliction of emotional distress, strict liability ultrahazardous activity, civil
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DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
1 conspiracy, battery, and fraud causes of action based on allegations of employer concealment of
2 employee exposure to hazardous chemicals); Livitsanos, 2 Cal. 4th at 752 (“the proposition that
3 intentional or egregious employer conduct is necessarily outside the scope of the workers
4 compensation scheme is erroneous”); Williams v. Int’l Paper Co., 129 Cal. App. 3d 810, 813
5 (1982) (workers’ compensation is the exclusive remedy for an employee who alleged that his
6 employer intentionally failed to correct hazardous working conditions, despite knowledge that a
7 dangerous explosion was substantially likely to occur); Wright v. FMC Corp., 81 Cal. App. 3d
8 777, 779 (1978) (workers’ compensation is the exclusive remedy for an employee whose employer
9 allegedly concealed the dangers inherent in the employees’ work materials). Based on these
10 authorities, Plaintiff’s causes of action should be dismissed as a matter of law because Plaintiff’s
11 exclusive remedy is provided by the California’s Workers’ Compensation Act.
12 Of the cited authorities, Gunnell is particularly instructive and most analogous to
13 Plaintiff’s allegations here. Gunnell involved tort claims by laborers who alleged that they were
14 unknowingly exposed to hazardous and toxic chemicals during the course and scope of their
15 employment as cleaners of a film-processing lab. See id. at 716-717. Specifically, the plaintiffs in
16 Gunnell were directed by their employer to clean the interior of the film lab with a blue-green
17 substance they believed to be cleaning soap. Id. at 716. They filled mop buckets and sprayers with
18 the blue-green solution from 55-gallon barrels that did not contain any information identifying the
19 contents of the barrels or labels warning of a chemical hazard. Id. The Gunnell plaintiffs were
20 exposed to large quantities of the hazardous cleaning solvent for the four and one-half months that
21 they cleaned the interior walls and ceiling of the film lab, often having the substance “rain down”
22 on them, leaving their clothing, skin, and feet “soaked.” Id. at 716-717. The Gunnell plaintiffs’
23 employer did not provide any hazard training, posted no signs about chemical hazards of the
24 cleaning solution, actively removed labeling information from the 55-gallon barrels, never told the
25 laborers what the 55-gallon barrels contained, and represented that the cleaning solution was safe.
26 Id. Following their employment at the defendant film lab, the Gunnell plaintiffs discovered that
27 the blue-green solution was the hazardous chemical solvent/degreaser, Adsorb. Id. at 717. As a
28 result of their exposure, the Gunnell plaintiffs suffered significant personal injuries and brought
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16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
1 causes of action against their employer for intentional infliction of emotional distress, strict
2 liability ultrahazardous activity, civil conspiracy, battery, and fraud. Id. at 714, 717.
3 In its decision affirming the lower court’s determination after trial that plaintiffs’ claims
4 were precluded by the exclusive remedies of the Workers’ Compensation Act, the appellate court
5 in Gunnell held that the case was governed by Johns-Manville, “which [held] that an employer’s
6 concealment of known unsafe working conditions and violation of environmental safety
7 regulations remain within the compensation bargain underlying the [Workers’ Compensation
8 Act].” Gunnell, 92 Cal. App. 4th at 714. “Under Johns-Manville, an injury to an employee caused
9 by an employer’s deceit and concealment of hazardous substances used in the employment, failure
10 to train, and failure to assure a safe workplace environment remains within the course of
11 employment.” Id. at 722. Further, the Gunnell court also reasoned that:
12 To permit an action at law for damages for any intentional misconduct by an
employer would significantly disturb the compensation bargain upon which the
13 [Workers’ Compensation Act] is based. ‘[S]ection 4553 is the sole remedy for
additional compensation against an employer whose employee is injured in the first
14 instance as a result of a deliberate failure to assure that the physical environment of
work place is safe. . . . Thus, if the complaint alleged only that plaintiff contracted
15 the disease because defendant knew and concealed from him that his health was
endangered by asbestos in the work environment, failed to supply adequate
16 protective devices to avoid disease, and violated governmental regulations related
to dust levels at the plant, plaintiff’s only remedy would be to prosecute his claim
17 under the workers’ compensation law.’
18 Id. (quoting Johns-Manville, 27 Cal. 3d at 474-75).
19 Similarly here, Plaintiff’s allegations of intentional misconduct (which Athleta strongly
20 denies) nonetheless are appropriately resolved under the California Workers’ Compensation Act
21 and its statutory penalties for alleged willful misconduct. See Cal. Lab. Code § 4553. This is the
22 case even when the employer’s conduct is alleged to be “egregious,” “‘intentional or even
23 deceitful.’” Gunnell, 92 Cal. App. 4th at 714, 721 (citation omitted). As demonstrated below,
24 Plaintiff’s allegations in the FAC, even when accepted as true, serve only to bring this case
25 squarely within the holdings of Gunnell and Johns-Manville, which make clear that Plaintiff’s
26 only remedy for her alleged injuries that arose out of her employment with Athleta is provided by
27 the California Workers’ Compensation Act. See Gunnell, 92 Cal. App. 4th at 714, 719-723; Johns-
28 Manville, 27 Cal. 3d at 474-75.
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DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
1 3. The FAC pleads facts demonstrating that Plaintiff’s claims fall within
the exclusive remedy provision of the Workers’ Compensation Act.
2
3 Plaintiff’s FAC affirmatively alleges facts showing that her alleged injuries are covered by
4 California’s workers’ compensation laws. (See FAC, ¶¶ 15-19, 24, 26, 42.) Plaintiff alleges that
5 she was “employed by” Athleta at the Facility. (Id., ¶ 15.) Plaintiff further alleges that “[d]uring
6 the time that [Athleta] employed her, Plaintiff was continuously overexposed at work to toxic
7 chemical compounds.” (Id., ¶ 24.) Plaintiff claims that she was “continuously overexposed” to
8 “toxic fabrics and materials at the Facility” and that she was “forced . . . to keep these materials on
9 her desk and chair located in her office over a period of several days.” (See id., ¶¶ 16-17, 24.) As a
10 result of her alleged overexposure to toxic chemicals during the course and scope of her
11 employment for Athleta at the Facility, Plaintiff allegedly suffered several injuries including:
12 “rashes, breakdown of the dermal barrier, spreading of rashes from the neck to the shoulder, arms,
13 and face; airway issues, loss of voice, difficulty speaking, hoarse voice; tightness and pressure in
14 the chest; dizziness and blurry vision; headaches, fatigue, nausea, burning eyes; severe allergy to
15 fragrance/similar particulates, hyper reactive immune system, Allergic Contact Dermatitis and
16 progression of the syndrome; harm to liver and kidneys, and harm to internal physiological
17 symptoms.” (Id., ¶ 19.)
18 Based on the allegations contained in the FAC, it is undisputed that Plaintiff alleges that
19 she was injured during the “course and scope of her employment,” meaning that California Labor
20 Code section 3600(a) applies, and workers’ compensation provides the exclusive remedy for
21 Plaintiff’s alleged injuries unless an exception to the exclusivity rule under California Labor Code
22 section 3602(b) has been sufficiently pleaded. (See FAC, ¶¶ 15-19, 24, 26, 42; see also Cal. Lab.
23 Code §§ 3600(a), 3602(a).) As shown below, the FAC fails to adequately plead any of the three
24 exceptions to the exclusivity rule. Therefore, for the same reasons expressed in the Gunnell and
25 Johns-Manville decisions discussed above, Plaintiff’s allegations that she was injured due to
26 Athleta’s alleged concealment of known unsafe working conditions at the Facility are not
27 sufficient to avoid the exclusive remedy rule imposed by California’s workers’ compensation
28 system. Athleta’s Demurrer to the FAC should therefore be sustained without leave to amend.
-13-
DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT
1 4. Plaintiff has not alleged any statutory exception to the California
Workers’ Compensation Act.
Preview
1 HANSON BRIDGETT LLP SHANNON M. NESSIER, SBN 267644 2 snessier@hansonbridgett.com ELECTRONICALLY GEOFFREY R. PITTMAN, SBN 253876 3 gpittman@hansonbridgett.com F I L E D Superior Court of California, 425 Market Street, 26th Floor County of San Francisco 4 San Francisco, California 94105 Telephone: (415) 777-3200 01/10/2020 Clerk of the Court 5 Facsimile: (415) 541-9366 BY: DAVID YUEN Deputy Clerk 6 Attorneys for Defendant ATHLETA, INC. 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SAN FRANCISCO 9 10 KIMBERLY SHERAY, Case No. CGC-19-577297 11 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 12 v. DEFENDANT ATHLETA, INC.’S DEMURRER TO PLAINTIFF 13 GAP SERVICES, INC.; GAP (ITM) INC.; KIMBERLY SHERAY’S FIRST GAP INTERNATIONAL SALES, INC.; GAP AMENDED COMPLAINT 14 INTERNATIONAL SOURCING, INC.; GAP INTERNATIONAL SOURCING (U.S.A.) [Filed concurrently with Notice of Hearing on 15 INC.; ATHLETA (ITM); ATHLETA, INC.; Demurrer and Demurrer; and Declaration of and DOES 1-100, inclusive,, Geoffrey R. Pittman re: Satisfaction of Civ. 16 Proc. Code § 430.41] Defendants. 17 Judge: Hon. Ethan P. Schulman Date: February 14, 2020 18 Time: 9:30 a.m. Dept.: 302 19 Reservation #: 01080214-10 20 Action Filed: July 1, 2019 21 Trial Date: None Set 22 23 24 25 26 27 28 DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 TABLE OF CONTENTS Page 2 I. INTRODUCTION ..................................................................................................................5 3 II. FACTUAL BACKGROUND ................................................................................................5 4 A. Relevant procedural history. ......................................................................................5 5 B. Plaintiff’s factual allegations and causes of action. ...................................................6 6 III. LEGAL STANDARD ............................................................................................................7 7 A. Plaintiff’s seven causes of action against Athleta are barred by the exclusive 8 remedy provisions of California’s Workers’ Compensation Law. ............................8 9 1. The California Workers’ Compensation Act ensures employees prompt and reasonable compensation and, in exchange, forecloses 10 tort liability. ....................................................................................................9 11 2. The California Workers’ Compensation Act provides the exclusive remedy even for alleged intentional employer misconduct..........................10 12 3. The FAC pleads facts demonstrating that Plaintiff’s claims fall 13 within the exclusive remedy provision of the Workers’ Compensation Act. .......................................................................................13 14 4. Plaintiff has not alleged any statutory exception to the California 15 Workers’ Compensation Act. .......................................................................14 16 a. Plaintiff has not alleged the willful physical assault exception. .........................................................................................14 17 b. Plaintiff has failed to plead sufficient facts to establish the 18 fraudulent concealment exception. ...................................................16 19 c. Plaintiff has not alleged that her injuries were caused by a defective product manufactured by Athleta. ....................................17 20 B. Plaintiff’s fraud, intentional misrepresentation, and concealment causes of 21 action are not pled with sufficient particularity........................................................18 22 IV. CONCLUSION ....................................................................................................................18 23 24 25 26 27 28 -2- DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 Aubry v. Tri-City Hospital Dist., 5 2 Cal. 4th 962 (1992)....................................................................................................................8 6 Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 24 Cal. 4th 800 (2001)................................................................................................................19 7 Committee on Children’s Television, Inc. v. General Foods Corp., 8 35 Cal. 3d 197 (1983) .................................................................................................................19 9 Davis v. Lockheed Martin Corp., 13 Cal. App. 4th 519 (1993) .......................................................................................................10 10 11 Foster v. Xerox Corp., 40 Cal. 3d 306 (1985) ...........................................................................................................17, 18 12 Gunnell v. Metrocolor Labs, Inc., 13 92 Cal. App. 4th 710 (2001) ............................................................................................... passim 14 Halliman v. Los Angeles Unified School Dist., 163 Cal. App. 3d 46 (1994) ........................................................................................................10 15 16 Herrick v. Quality Hotels, Inns & Resorts, Inc., 19 Cal. App. 4th 1608 (1993) .....................................................................................................15 17 Hughes Aircraft Co. v. Superior Court, 18 44 Cal. App. 4th 1790 (1996) ...............................................................................................17, 18 19 Jensen v. Amgen, Inc., 105 Cal. App. 4th 1322 (2003) .............................................................................................17, 18 20 Johns-Manville Prods. Corp. v. Superior Court, 21 27 Cal. 3d 465 (1980) .....................................................................................................11, 13, 14 22 Lazo v. Mobil Oil Refining Corp., 23 No. CV 14-1072 ABC, 2014 WL 12596424 (C.D. Cal. May 30, 2014)....................................18 24 Livitsanos v. Superior Court, 2 Cal. 4th 744 (1992)..............................................................................................................9, 12 25 Lomibao v. Baxter Healthcare Corp., 26 No. CV 13-1789 PSG, 2013 WL 12138733 (C.D. Cal. Aug. 5, 2013) ................................16, 17 27 Migliori v. Boeing North American, Inc., 28 97 F. Supp. 2d 1001 (C.D. Cal. 2001) ........................................................................................17 -3- DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 Nagy v. Nagy, 210 Cal. App. 3d 1262 (1989) ....................................................................................................19 2 Rakestraw v. Cal. Physicians’ Serv., 3 81 Cal. App. 4th 39 (2000) .......................................................................................................8, 9 4 Seidler v. Municipal Ct. of the Beverly Hills Judicial Dist. of Los Angeles County, 5 12 Cal. App. 4th 1229 (1993) .......................................................................................................8 6 Stansfield v. Starkey, 220 Cal. App. 3d 59 (1990) ........................................................................................................19 7 Vuillemainroy v. American Rock & Asphalt, Inc., 8 70 Cal. App. 4th 1280 (1999) .......................................................................................................9 9 Williams v. Int’l Paper Co., 10 129 Cal. App. 3d 810 (1982) ......................................................................................................12 11 Wright v. FMC Corp., 81 Cal. App. 3d 777 (1978) ........................................................................................................12 12 Statutes 13 Cal. Lab. Code §§ 3600-3602 ............................................................................................................9 14 Cal. Lab. Code §§ 3600(a), 3602(a) .................................................................................................14 15 16 Cal. Lab. Code § 3602(a) .........................................................................................................6, 9, 10 17 Cal. Lab. Code § 3602(b)(2) ......................................................................................................17, 18 18 Cal. Lab. Code § 4553 ................................................................................................................11, 13 19 California Code of Civil Procedure 20 § 430.10(e) .............................................................................................................................8 § 430.41(a) .............................................................................................................................6 21 § 430.50(a) .............................................................................................................................8 22 23 24 25 26 27 28 -4- DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 I. INTRODUCTION 2 Plaintiff’s First Amended Complaint (“FAC”) is subject to demurrer without leave to 3 amend because each of her causes of action are precluded by the exclusive remedy provisions of 4 California’s Workers’ Compensation Act. Plaintiff alleges that she was employed by Defendant 5 Athleta, Inc. (“Athleta”) when she was allegedly exposed to “toxic fabrics and materials” and 6 injured during the course and scope of her employment. Given these allegations, Plaintiff’s seven 7 causes of action fall squarely within the purview of workers’ compensation immunity, which 8 provides that the California Workers’ Compensation Act is “the sole and exclusive remedy of the 9 employee or his or her dependents against the employer.” (Cal. Lab. Code § 3602(a) (emphasis 10 added).) Workers’ compensation benefits are thus the only remedy available to Plaintiff for 11 injuries arising from her alleged exposure to “toxic fabrics and materials” during her employment. 12 Further, Plaintiff fails to adequately plead any applicable exception to this workers’ compensation 13 immunity under California Labor Code section 3602(b). Because Plaintiff’s claims are each 14 predicated on, collateral to, or derivative of personal injuries that Plaintiff allegedly suffered 15 during the course and scope of her employment, the only proper avenue for her to obtain relief is 16 through the workers’ compensation system, not through civil tort litigation. In addition, her causes 17 of action for fraud, intentional misrepresentation, and concealment are also subject to demurrer on 18 the separate and independent ground that they are not pled with the requisite particularity. For 19 these reasons, the demurrer should be sustained in its entirety. 20 II. FACTUAL BACKGROUND 21 A. Relevant procedural history. 22 Plaintiff Kimberly Sheray (“Plaintiff” or “Sheray”) filed her initial Complaint in this action 23 on July 1, 2019. Plaintiff’s initial Complaint asserted causes of action for fraudulent concealment 24 of injury, assault, and battery. (Complaint, ¶¶ 24-51.) On September 26, 2019, Athleta’s counsel 25 sent a detailed letter to Plaintiff’s counsel, identifying the pleading deficiencies in Plaintiff’s 26 Complaint pursuant to California Code of Civil Procedure section 430.41(a). In response, Plaintiff 27 filed the operative First Amended Complaint (“FAC”) on November 5, 2019, which added 28 additional allegations and causes of action, but failed to cure the pleading defects previously -5- DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 identified by Athleta’s counsel. Athleta’s counsel met and conferred again with Plaintiff’s counsel 2 regarding the pleading deficiencies in the FAC, but those meet and confer efforts proved 3 unsuccessful. (See Declaration of Geoffrey R. Pittman filed concurrently herewith). 4 B. Plaintiff’s factual allegations and causes of action. 5 Plaintiff alleges that she was employed by Athleta 1 on the 6th Floor of the facility at 1 6 Harrison Street, San Francisco, California 94105 (the “Facility”). (FAC, ¶ 15.) Plaintiff further 7 alleges that she was “continuously overexposed” to “toxic fabrics and materials at the Facility” 8 and that she was “forced . . . to keep these materials on her desk and chair located in her office 9 over a period of several days.” (Id., ¶¶ 16-17, 24.) According to Plaintiff, the Facility was allowed 10 to “reach temperatures that caused the various toxic chemicals in the fabrics and garments to 11 vaporize and become airborne” and that Athleta “did not provide and/or prevented proper air 12 ventilation and/or air conditioning” at the Facility. (Id., ¶¶ 16, 18, 25.) Plaintiff further alleges that 13 Athleta “stored hundreds of untested toxic fabrics and materials at the Facility . . .” and 14 “knowingly chose to store them with Plaintiff.” (Id., ¶ 15.) Plaintiff claims that she was 15 “continuously exposed” to “toxic chemicals and airborne contaminants” at the Facility and, as a 16 result, she has suffered the following injuries: “rashes, breakdown of the dermal barrier, spreading 17 of rashes from the neck to the shoulder, arms, and face; airway issues, loss of voice, difficulty 18 speaking, hoarse voice; tightness and pressure in the chest; dizziness and blurry vision; headaches, 19 fatigue, nausea, burning eyes; severe allergy to fragrance/similar particulates, hyper reactive 20 immune system, Allergic Contact Dermatitis and progression of the syndrome; harm to liver and 21 kidneys, and harm to internal physiological symptoms.” (FAC, ¶ 19.) 22 Plaintiff also generally alleges that Athleta “knew about Plaintiff’s injuries and that they 23 were job related” (FAC, ¶ 20), that she “complained about the skin rashes to her supervisors” (id., 24 ¶ 33), and “[a]t a certain point after Plaintiff had been exposed to the toxic chemical compounds, 25 Plaintiff complained to [Athleta] of chemical smell and informed [Athleta] that there was an issue 26 of chemical exposure and toxic chemicals in the fabric of certain materials.” (Id., ¶ 17.) However, 27 1 28 Through a stipulation that was filed on January 9, 2020, Plaintiff has agreed to dismiss all named defendants other than Athleta without prejudice. -6- DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 these general allegations contradict the specific allegations from Plaintiff’s initial Complaint that 2 “Plaintiff submitted a Leave of Absence Letter in November 2017” to inform Athleta of her work- 3 related injuries (Complaint, ¶ 18), and that Plaintiff’s symptoms and injuries “worsened when she 4 returned from work in April of 2018.” (Complaint, ¶ 20.) The FAC is devoid of any specific 5 allegations regarding when Plaintiff allegedly informed Athleta of her alleged injuries. 6 Additionally, Plaintiff alleges that Athleta “knew that the skin problems that Plaintiff . . . [was] 7 suffering from were a precursor to the development of injuries including, but not limited to, 8 Allergic Contact Dermatitis” and that Athleta “concealed the causal relationship and significance 9 [of] chemical exposures, the development of skin conditions, other forms of dermatitis, and her 10 contraction of injuries including, but not limited to, Allergic Contact Dermatitis.” (FAC, ¶¶ 32, 11 39.) Plaintiff further alleges that “[e]ach toxin that entered her body was a substantial factor in 12 bringing about, prolonging, and aggravating her injuries. . .” (Id., ¶ 42.) 13 Based on her alleged injuries, Plaintiff’s FAC asserts the following seven causes of action: 14 (1) fraudulent concealment of injury, (2) assault, (3) battery, (4) fraud, (5) intentional 15 misrepresentation, (6) concealment, and (7) intentional infliction of emotional distress. (FAC, 16 ¶¶ 22-96.) 17 III. LEGAL STANDARD 18 A complaint is subject to demurrer under California Code of Civil Procedure section 19 430.10(e) if it does not state facts sufficient to constitute a cause of action. Cal. Civ. Proc. Code 20 § 430.10(e). A demurrer “may be taken to the whole complaint . . . or to any of the causes of 21 action stated therein.” Cal. Civ. Proc. Code § 430.50(a). For purposes of testing the sufficiency of 22 the pleadings, all material facts pleaded are deemed to be true; however, the court does not assume 23 the truth of contentions, deductions, or conclusions of law. Aubry v. Tri-City Hospital Dist., 2 Cal. 24 4th 962, 967 (1992) (citations omitted). In evaluating a demurrer, a court may reject allegations 25 constituting opinion, speculation, or conclusions of fact or law. See Rakestraw v. Cal. Physicians’ 26 Serv., 81 Cal. App. 4th 39, 42-43 (2000). A demurrer may be sustained without leave to amend 27 where “the facts are not in dispute and the nature of the plaintiff’s claim is clear, but under the 28 substantive law, no liability exists. Obviously, no amendment could change the result.” Seidler v. -7- DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 Municipal Ct. of the Beverly Hills Judicial Dist. of Los Angeles County, 12 Cal. App. 4th 1229, 2 1233 (1993) (citation and internal quotation marks omitted). Where a complaint’s defects cannot 3 be cured by further amendment, a court must sustain the demurrer without leave to amend. See 4 Rakestraw, 81 Cal. App. 4th at 43-44. A plaintiff bears the burden of proving that the defects may 5 be cured. Id. Here, the Complaint fails to state any cause of action as to any of Plaintiff’s claims 6 and Blue Diamond’s demurrer should be sustained without leave to amend. 7 A. Plaintiff’s seven causes of action against Athleta are barred by the exclusive remedy provisions of California’s Workers’ Compensation Law. 8 9 Under well-established California law, each of Plaintiff’s causes of action against her 10 former employer, Athleta, are barred by the California Labor Code. Generally, an employee whose 11 injuries arise out of and in the course of employment is limited to the recovery of workers’ 12 compensation benefits. Cal. Lab. Code §§ 3600-3602. “Section 3600 of the Labor Code provides 13 that an employer is liable for injuries to its employees arising out of and in the course of 14 employment, and section [3602] declares that where the conditions of workers’ compensation 15 exist, the right to recover such compensation is the exclusive remedy against an employer for 16 injury or death of an employee.” Vuillemainroy v. American Rock & Asphalt, Inc., 70 Cal. App. 17 4th 1280, 1283 (1999). These provisions apply to all injuries that arise from the employment 18 relationship. See, e.g., Livitsanos v. Superior Court, 2 Cal. 4th 744, 747 (1992). 19 More specifically, California Labor Code section 3602(a) provides, in relevant part, as 20 follows: “(a) Where the conditions of compensation set forth in Section 3600 concur, the right to 21 recover compensation is, except as specifically provided in this section and Sections 3706 and 22 4558, the sole and exclusive remedy of the employee . . . against the employer[.]” In turn, 23 California Labor Code section 3600(a) states, in relevant part, that: 24 Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as otherwise specifically provided in 25 Sections 3602, 3706, and 4558, shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the 26 course of employment . . . in those cases where the following conditions of compensation concur: . . . 27 (2) Where, at the time of the injury, the employee is performing service growing 28 out of and incidental to his or her employment and is acting within the course of his -8- DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 or her employment. 2 (3) Where the injury is proximately caused by the employment, either with or without negligence. 3 4 Where, as here, “the complaint affirmatively alleges facts indicating coverage by the workers’ 5 compensation laws, if it fails to state additional facts negating application of the exclusive remedy 6 provision, no civil action will lie and the complaint is subject to a general demurrer.” Halliman v. 7 Los Angeles Unified School Dist., 163 Cal. App. 3d 46, 50 (1994) (citations omitted). 8 1. The California Workers’ Compensation Act ensures employees prompt and reasonable compensation and, in exchange, forecloses tort liability. 9 10 The California Workers’ Compensation Act creates a comprehensive statutory scheme for 11 addressing all injuries “arising out of and in the course of employment, including injuries caused 12 by unsafe workplace conditions.” Cal. Lab. Code § 3600(a). Where coverage exists, workers’ 13 compensation is therefore the “sole and exclusive remedy of the employee . . . against the 14 employer.” Id. § 3602(a); see also Davis v. Lockheed Martin Corp., 13 Cal. App. 4th 519, 521 15 (1993) (“As a general rule, an employee injured in the course of employment is limited to the 16 remedies available under the Workers’ Compensation Act.”). 17 The exclusive remedy provision is based on the “compensation bargain.” The employer 18 avoids the costs and burdens of civil litigation and assumes liability through workers’ 19 compensation for work-related injuries “without regard to fault in exchange for limitations on the 20 amount of that liability,” while the employee receives speedy, guaranteed compensation for work- 21 related injuries “without having to prove fault,” but “[i]n exchange, the employee gives up the 22 wider range of civil tort damages potentially available.” Gunnell v. Metrocolor Labs, Inc., 92 Cal. 23 App. 4th 710, 722 (2001). Consequently, the exclusive remedy provision furthers the interests of 24 both employers and employees by freeing them from the substantial costs and uncertainties of 25 civil litigation. See id. (affirming trial court’s grant of judgment notwithstanding the verdict where 26 the trial court found that the exclusive remedy provision barred plaintiffs’ civil action). 27 Here, Plaintiff has gone beyond her available remedies through the California workers’ 28 compensation system and has asserted claims against her former employer in this Court for “the -9- DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 wider range of civil tort damages potentially available.” Gunnell, 92 Cal. App. 4th at 720. Yet, the 2 California Workers’ Compensation system remains her exclusive forum under the “compensation 3 bargain.” Every employer, like Athleta here, and every employee, like Plaintiff, is entitled to have 4 that bargain kept and their statutory rights enforced. However, Plaintiff is not entitled to 5 unilaterally breach the compensation bargain and pursue costly and time-consuming civil tort 6 litigation against her former employer. Under both the clear language of the California Workers’ 7 Compensation Act, and its legislatively determined purpose, Plaintiff’s FAC should be dismissed 8 without leave to amend. 9 2. The California Workers’ Compensation Act provides the exclusive remedy even for alleged intentional employer misconduct. 10 11 The California Workers’ Compensation Act applies the exclusive remedy even where, as 12 here, the employee alleges intentional misconduct by the employer, such as where an employer 13 allegedly exposed employees “to a dangerous chemical substance and concealed the danger from 14 those employees.” Gunnell, 92 Cal. App. 4th at 714. As the California Supreme Court has long 15 held, the California Workers’ Compensation Act provides employees with additional damage 16 remedies, and potentially subjects employers to statutory penalties, for any alleged egregious or 17 intentional conduct through a statutory application. See Johns-Manville Prods. Corp. v. Superior 18 Court, 27 Cal. 3d 465, 473-475 (1980); see also Cal. Lab. Code § 4553. 19 Indeed, California courts have consistently applied the exclusive remedy provision when 20 the employer allegedly knowingly fails to maintain a safe workplace for the employee or 21 intentionally misrepresents the danger of the employee’s working conditions. See, e.g., Johns- 22 Manville, 27 Cal. 3d at 469, 474-75 (holding that an employer’s intentional actions of concealing 23 knowledge of plaintiff’s 29-year exposure to asbestos and advising him that the workplace was 24 safe, violating state and federal regulations, failing to provide sufficient protective equipment or 25 health warnings, and providing plaintiff with unqualified doctors to examine his claimed injuries 26 did not alter the conclusion that plaintiff’s exclusive remedy was through the workers’ 27 compensation system); Gunnell, 92 Cal. App. 4th at 714 (workers’ compensation is the exclusive 28 remedy for intentional infliction of emotional distress, strict liability ultrahazardous activity, civil -10- DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 conspiracy, battery, and fraud causes of action based on allegations of employer concealment of 2 employee exposure to hazardous chemicals); Livitsanos, 2 Cal. 4th at 752 (“the proposition that 3 intentional or egregious employer conduct is necessarily outside the scope of the workers 4 compensation scheme is erroneous”); Williams v. Int’l Paper Co., 129 Cal. App. 3d 810, 813 5 (1982) (workers’ compensation is the exclusive remedy for an employee who alleged that his 6 employer intentionally failed to correct hazardous working conditions, despite knowledge that a 7 dangerous explosion was substantially likely to occur); Wright v. FMC Corp., 81 Cal. App. 3d 8 777, 779 (1978) (workers’ compensation is the exclusive remedy for an employee whose employer 9 allegedly concealed the dangers inherent in the employees’ work materials). Based on these 10 authorities, Plaintiff’s causes of action should be dismissed as a matter of law because Plaintiff’s 11 exclusive remedy is provided by the California’s Workers’ Compensation Act. 12 Of the cited authorities, Gunnell is particularly instructive and most analogous to 13 Plaintiff’s allegations here. Gunnell involved tort claims by laborers who alleged that they were 14 unknowingly exposed to hazardous and toxic chemicals during the course and scope of their 15 employment as cleaners of a film-processing lab. See id. at 716-717. Specifically, the plaintiffs in 16 Gunnell were directed by their employer to clean the interior of the film lab with a blue-green 17 substance they believed to be cleaning soap. Id. at 716. They filled mop buckets and sprayers with 18 the blue-green solution from 55-gallon barrels that did not contain any information identifying the 19 contents of the barrels or labels warning of a chemical hazard. Id. The Gunnell plaintiffs were 20 exposed to large quantities of the hazardous cleaning solvent for the four and one-half months that 21 they cleaned the interior walls and ceiling of the film lab, often having the substance “rain down” 22 on them, leaving their clothing, skin, and feet “soaked.” Id. at 716-717. The Gunnell plaintiffs’ 23 employer did not provide any hazard training, posted no signs about chemical hazards of the 24 cleaning solution, actively removed labeling information from the 55-gallon barrels, never told the 25 laborers what the 55-gallon barrels contained, and represented that the cleaning solution was safe. 26 Id. Following their employment at the defendant film lab, the Gunnell plaintiffs discovered that 27 the blue-green solution was the hazardous chemical solvent/degreaser, Adsorb. Id. at 717. As a 28 result of their exposure, the Gunnell plaintiffs suffered significant personal injuries and brought -11- DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 causes of action against their employer for intentional infliction of emotional distress, strict 2 liability ultrahazardous activity, civil conspiracy, battery, and fraud. Id. at 714, 717. 3 In its decision affirming the lower court’s determination after trial that plaintiffs’ claims 4 were precluded by the exclusive remedies of the Workers’ Compensation Act, the appellate court 5 in Gunnell held that the case was governed by Johns-Manville, “which [held] that an employer’s 6 concealment of known unsafe working conditions and violation of environmental safety 7 regulations remain within the compensation bargain underlying the [Workers’ Compensation 8 Act].” Gunnell, 92 Cal. App. 4th at 714. “Under Johns-Manville, an injury to an employee caused 9 by an employer’s deceit and concealment of hazardous substances used in the employment, failure 10 to train, and failure to assure a safe workplace environment remains within the course of 11 employment.” Id. at 722. Further, the Gunnell court also reasoned that: 12 To permit an action at law for damages for any intentional misconduct by an employer would significantly disturb the compensation bargain upon which the 13 [Workers’ Compensation Act] is based. ‘[S]ection 4553 is the sole remedy for additional compensation against an employer whose employee is injured in the first 14 instance as a result of a deliberate failure to assure that the physical environment of work place is safe. . . . Thus, if the complaint alleged only that plaintiff contracted 15 the disease because defendant knew and concealed from him that his health was endangered by asbestos in the work environment, failed to supply adequate 16 protective devices to avoid disease, and violated governmental regulations related to dust levels at the plant, plaintiff’s only remedy would be to prosecute his claim 17 under the workers’ compensation law.’ 18 Id. (quoting Johns-Manville, 27 Cal. 3d at 474-75). 19 Similarly here, Plaintiff’s allegations of intentional misconduct (which Athleta strongly 20 denies) nonetheless are appropriately resolved under the California Workers’ Compensation Act 21 and its statutory penalties for alleged willful misconduct. See Cal. Lab. Code § 4553. This is the 22 case even when the employer’s conduct is alleged to be “egregious,” “‘intentional or even 23 deceitful.’” Gunnell, 92 Cal. App. 4th at 714, 721 (citation omitted). As demonstrated below, 24 Plaintiff’s allegations in the FAC, even when accepted as true, serve only to bring this case 25 squarely within the holdings of Gunnell and Johns-Manville, which make clear that Plaintiff’s 26 only remedy for her alleged injuries that arose out of her employment with Athleta is provided by 27 the California Workers’ Compensation Act. See Gunnell, 92 Cal. App. 4th at 714, 719-723; Johns- 28 Manville, 27 Cal. 3d at 474-75. -12- DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 3. The FAC pleads facts demonstrating that Plaintiff’s claims fall within the exclusive remedy provision of the Workers’ Compensation Act. 2 3 Plaintiff’s FAC affirmatively alleges facts showing that her alleged injuries are covered by 4 California’s workers’ compensation laws. (See FAC, ¶¶ 15-19, 24, 26, 42.) Plaintiff alleges that 5 she was “employed by” Athleta at the Facility. (Id., ¶ 15.) Plaintiff further alleges that “[d]uring 6 the time that [Athleta] employed her, Plaintiff was continuously overexposed at work to toxic 7 chemical compounds.” (Id., ¶ 24.) Plaintiff claims that she was “continuously overexposed” to 8 “toxic fabrics and materials at the Facility” and that she was “forced . . . to keep these materials on 9 her desk and chair located in her office over a period of several days.” (See id., ¶¶ 16-17, 24.) As a 10 result of her alleged overexposure to toxic chemicals during the course and scope of her 11 employment for Athleta at the Facility, Plaintiff allegedly suffered several injuries including: 12 “rashes, breakdown of the dermal barrier, spreading of rashes from the neck to the shoulder, arms, 13 and face; airway issues, loss of voice, difficulty speaking, hoarse voice; tightness and pressure in 14 the chest; dizziness and blurry vision; headaches, fatigue, nausea, burning eyes; severe allergy to 15 fragrance/similar particulates, hyper reactive immune system, Allergic Contact Dermatitis and 16 progression of the syndrome; harm to liver and kidneys, and harm to internal physiological 17 symptoms.” (Id., ¶ 19.) 18 Based on the allegations contained in the FAC, it is undisputed that Plaintiff alleges that 19 she was injured during the “course and scope of her employment,” meaning that California Labor 20 Code section 3600(a) applies, and workers’ compensation provides the exclusive remedy for 21 Plaintiff’s alleged injuries unless an exception to the exclusivity rule under California Labor Code 22 section 3602(b) has been sufficiently pleaded. (See FAC, ¶¶ 15-19, 24, 26, 42; see also Cal. Lab. 23 Code §§ 3600(a), 3602(a).) As shown below, the FAC fails to adequately plead any of the three 24 exceptions to the exclusivity rule. Therefore, for the same reasons expressed in the Gunnell and 25 Johns-Manville decisions discussed above, Plaintiff’s allegations that she was injured due to 26 Athleta’s alleged concealment of known unsafe working conditions at the Facility are not 27 sufficient to avoid the exclusive remedy rule imposed by California’s workers’ compensation 28 system. Athleta’s Demurrer to the FAC should therefore be sustained without leave to amend. -13- DEFENDANT ATHLETA, INC.’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16070481.1 DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT 1 4. Plaintiff has not alleged any statutory exception to the California Workers’ Compensation Act.