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Court of Appeal, First District, Division 2, California.

Jon C. FRETLAND, Plaintiff and Appellant, v. COUNTY OF HUMBOLDT, Defendant and Respondent.

No. A078588.

Decided: May 05, 1998

Bradford C. Floyd, Eureka, for Plaintiff and Appellant. Michael S. Balavage, Redding, for Defendant and Respondent.


Jon C. Fretland (Fretland) appeals a summary judgment which disposed of his action against his former employer, the County of Humboldt (the County).   Fretland contends triable issues of fact exist as to his claims for assault and battery, emotional distress, and discrimination in violation of the Fair Employment and Housing Act (FEHA).   We hold that Fretland's claims are barred by the exclusive remedy provisions of the workers' compensation law and affirm the judgment.


On November 2, 1985, Fretland filed his complaint against the County and two County employees, Gordon Schuler (Schuler) and Fred Vadar (Vadar).   After the lower court sustained demurrers to several causes of action, Fretland filed a first amended complaint alleging the following facts:  Fretland was first hired by the County's Department of Public Works in December 1973 and worked there until September 1982, when he was terminated because of medical problems with his lower back.   He was re-hired in July 1985, pursuant to a written memorandum of understanding and with the County's knowledge that he would be unable to perform certain strenuous physical functions.

According to the complaint, Fretland began to be subjected to harassment and discrimination by County employees in 1991.   Fretland alleged, among other things, that he was falsely accused of stealing County materials and of idleness during work hours, that Vadar and Schuler ordered him to use unsafe machinery, that Vadar verbally abused him, vandalized his car and made obscene and threatening phone calls to him, and that Vadar and Schuler lied about him to co-workers and told them not to associate with him.   Fretland further alleged that, on January 24, 1995, Vadar committed an unprovoked assault and battery on him by grabbing him and “propelling him against a stair railing” and yelling profanities.   Fretland claimed the resulting injury to his back has rendered him unable to work since the incident occurred.

Fretland claimed his treatment by County employees was the result of hostility because of Fretland's physical disability and was retaliation for Fretland's exercise of his legal rights and constituted “unlawful discrimination in employment” in violation of the FEHA. He alleged causes of action for constructive discharge, discrimination and harassment based on a physical handicap, breach of contract, breach of the implied covenant of good faith and fair dealing, retaliation, conspiracy, assault and battery and negligent and intentional infliction of emotional distress.

The trial court sustained demurrers to the claims for conspiracy, constructive discharge, breach of contract, breach of the implied covenant, and retaliation.   The demurrer rulings are not at issue in this appeal.   The County and Schuler obtained summary judgment on the remaining claims for discrimination, assault and battery and emotional distress.   The court also granted Vadar's motion for summary adjudication as to the discrimination and emotional distress claims.   Fretland's claim against Vadar for assault and battery is apparently still pending.

Fretland filed a timely notice of appeal of the judgment in favor of the County and Schuler.   Pursuant to a stipulation between the parties, this court dismissed Fretland's appeal as against Schuler.


A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code Civ. Proc., § 437c, subd. (c).)  The trial court's summary judgment rulings are subject to de novo review.  (580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 14, 272 Cal.Rptr. 227.)

A. The FEHA Claim **

B. The Assault and Battery Claim

The lower court granted the County's summary judgment on the seventh cause of action on the ground the assault and battery allegedly committed by Vadar “did not occur within the course and scope of employment with the County.”   Fretland contends this ruling was erroneous because there is a triable issue of fact as to whether Vadar's assault and battery was committed within the scope of his employment, thereby rendering the County liable pursuant to the doctrine of respondeat superior.   Before addressing this issue, we must first determine whether the assault and battery claim is barred by the workers' compensation exclusivity rule.

1. The Exclusivity Rule

Fretland contends the assault and battery claim falls within an express exception to the exclusivity rule codified at Labor Code section 3602, subdivision (b)(1).   That provision states:  “An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances:  [¶] (1) Where the employee's injury or death is proximately caused by the willful physical assault by the employer.”  (Lab.Code, § 3602, subd. (b)(1) (hereafter § 3602(b)(1)).)

Section 3602(b)(1) applies if Vadar's alleged attack constitutes a willful physical assault by Fretland's employer.   Fretland contends that it does, pursuant to the doctrine of respondeat superior.   Under that doctrine, “an employer may be held vicariously liable for torts committed by an employee within the scope of employment.  [Citation.]”  (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208, 285 Cal.Rptr. 99, 814 P.2d 1341.)   Apparently the trial court accepted the validity of this theory, though it ultimately ruled against Fretland on the factual issue of whether Vadar was acting within the scope of his employment.   We conclude that the trial court misinterpreted the section 3602(b)(1) exception.

 While assaults by a co-employee are not mentioned in section 3602(b)(1), they are expressly addressed in Labor Code section 3601, subdivision (a), which provides that workers' compensation is an employee's exclusive remedy for claims for “injury or death of an employee against any other employee of the employer acting within the scope of his or her employment, except that an employee ․ shall, in addition to the right to compensation against the employer, have a right to bring an action at law for damages against the other employee, as if this division did not apply ․ [¶] (1)[w]hen the injury or death is proximately caused by the willful and unprovoked physical act of aggression of the other employee.”  (Lab.Code, § 3601, subd. (a)(1) (hereafter § 3601(a)(1)).)   Thus, section 3601(a)(1) establishes an exception to the exclusivity rule permitting Fretland's cause of action against Vadar for the assault and battery.   However, this exception does not authorize a private action against the employer based on another employee's willful and unprovoked physical act of aggression.   Any doubt as to this point is removed in Labor Code section 3601, subdivision (b).

 Section 3601, subdivision (b) states:  “In no event, either by legal action or by agreement whether entered into by the other employee or on his or her behalf, shall the employer be held liable, directly or indirectly, for damages awarded against, or for a liability incurred by the other employee under paragraph (1) or (2) of subdivision (a).”  (Lab.Code, § 3601, subd. (b) (hereafter § 3601(b).))  Section 3601(b) unambiguously prohibits imposing civil liability on an employer for one employee's assault and battery of another.

 Applying the doctrine of respondeat superior to expand the scope of the section 3602(b)(1) exception to cover conduct committed by a co-employee would directly violate section 3601(b).   To reconcile these two statutory provisions, liability under section 3602(b)(1) must be based on positive misconduct by the employer and not on a theory of vicarious liability such as that which forms the basis of the doctrine of respondeat superior.

Our conclusion is consistent with the analysis of Division One of this Court in Iverson v. Atlas Pacific Engineering (1983) 143 Cal.App.3d 219, 191 Cal.Rptr. 696 (Iverson ), disagreed with on other grounds in Soares v. City of Oakland (1992) 9 Cal.App.4th 1822, 1829-1830, 12 Cal.Rptr.2d 405.   Iverson was a suit against an employer and its employee for assault, false imprisonment, emotional distress and negligence.   The plaintiff alleged that the employee defendant “willfully ‘set up a steel horseshoe target directly above [appellant's] place of work,’ forced appellant to remain in confined quarters against his will, and repeatedly pounded a large sledge hammer against the target which subjected appellant to ‘loud crashing noises․' ”   (Iverson, supra, 143 Cal.App.3d at p. 222, 191 Cal.Rptr. 696.)   The plaintiff further alleged that his employer “ ‘condoned and ratified’ ” its employee's tortious conduct by “failing to ‘criticize, censure, terminate, suspend or otherwise sanction or take any action’ against him.”  (Ibid.)

The Iverson court ruled that the trial court erroneously granted defendants' demurrers pursuant to the workers' compensation exclusivity rule.   The court found that the suit against the employee who committed the alleged assault was permissible under Labor Code section 3601(a)(1).   But the court expressly rejected the contention that liability for the employee's acts could be imputed to appellant's employer.  (Iverson, supra, 143 Cal.App.3d at p. 226, 191 Cal.Rptr. 696.)   According to the court, section 3601 “insulates the employer from common law vicarious liability to an employee for the acts of another employee.”  (Id. at p. 227, 191 Cal.Rptr. 696.)   We agree that is the only reasonable interpretation of section 3601.2

Most of the authority upon which Fretland relies to support his contention the County is liable for Vadar's tort pursuant to the doctrine of respondeat superior is inapposite because it does not involve injury inflicted upon a co-employee and, thus, does not implicate section 3601(b).  (See Carr v. Wm. C. Crowell Company (1946) 28 Cal.2d 652, 171 P.2d 5;  John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 256 Cal.Rptr. 766, 769 P.2d 948;  Mary M. v. City of Los Angeles, supra, 54 Cal.3d 202, 285 Cal.Rptr. 99, 814 P.2d 1341.) 3  Indeed, the only case Fretland cites which holds that agency principles can be applied to hold an employer civilly liable for the intentional torts of another employee committed in the course of employment is Meyer v. Graphic Arts International Union (1979) 88 Cal.App.3d 176, 178-179, 151 Cal.Rptr. 597 (Meyer ).   However, Meyer is not persuasive to us because the court's terse analysis does not even mention section 3601(b), which expressly limits the liability of an employer for the willful acts of its employees.

 In his reply brief, Fretland seizes on an arguable concession made in the County's brief, that it might be liable for Vadar's conduct if Vadar had been Fretland's supervisor.   Fretland argues that since Vadar was his supervisor the County is vicariously liable for Vadar's acts pursuant to Government Code sections 12926, subdivision (d) and 12940, subdivision (h)(1).   However, Government Code sections 12926 and 12940 are part of the FEHA. Those provisions do not apply in this context, which is governed by the workers' compensation law.   In the current context, an employer's liability for injuries inflicted on one employee by another is governed by Labor Code section 3601.   Thus, we conclude that the exception to the exclusivity rule contained in section 3602(b)(1) does not authorize a civil action against an employer for injury resulting from the willful assault of a co-employee based on a theory of respondeat superior.   The trial court's finding that Vadar did not act within the scope of his employment is irrelevant.   However, this conclusion does not end our inquiry.

2. Ratification

 The Iverson court recognized that the prohibition against imposing vicarious liability on an employer does not apply when there was “positive misconduct” by the employer such as when the employer “ratified” the tortious conduct of its employee and thereby became “liable for the employee's wrongful conduct as a joint participant.”  (Iverson, supra, 143 Cal.App.3d at p. 228, 191 Cal.Rptr. 696.)   Other courts have also recognized that an employer can be held civilly liable as a joint participant in assaultive conduct committed by its employee pursuant to the doctrine of ratification.  (See Herrick v. Quality Hotels, Inns & Resorts, Inc. (1993) 19 Cal.App.4th 1608, 1618, 24 Cal.Rptr.2d 203;  Hart v. National Mortgage & Land Co. (1987) 189 Cal.App.3d 1420, 1432, 235 Cal.Rptr. 68.)

In the present case, Fretland alleged and continues to maintain that the County “adopt[ed] and ratifi[ed]” Vadar's conduct and that it promoted and condoned a work environment in which such conduct was tolerated.   The County contends “the trial court properly exercised its discretion in determining that there is no triable issue as to the material fact that there was no ratification.”   There are two things wrong with this contention.

 First, whether there is a triable issue of material fact does not turn on trial court discretion.   A motion for summary judgment “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  (Code Civ. Proc. § 437c, subd. (c), emphasis added.)   The trial court's summary judgment ruling is subject to independent review.   (Angell, supra, 21 Cal.App.4th at p. 986, 26 Cal.Rptr.2d 541.)  “The only exception to the independent review standard applies when we review a trial court's exercise of discretion as allowed by Code of Civil Procedure section 437c, subdivision (e).   Under all other circumstances, it is legally and procedurally incorrect to apply an abuse of discretion standard.  [Citation.]”  (Ibid.)

Second, the county's argument notwithstanding, the trial court made no ruling regarding ratification;  indeed it never addressed that issue in any of its orders notwithstanding the fact that both parties argued the issue below and presented factual evidence allegedly supportive of their respective positions.

 Nevertheless, “where there is no genuine issue of material fact, the appellate court should affirm the judgment of the trial court if it is correct under any theory of law applicable to the case.”  (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1481, 35 Cal.Rptr.2d 698;  see also Farron v. City and County of San Francisco (1989) 216 Cal.App.3d 1071, 1074, 265 Cal.Rptr. 317.)   In the present case, if there is no triable issue of fact to preclude a finding that the County did not ratify Vadar's alleged conduct, the worker' compensation exclusivity rule bars Fretland's assault and battery claim as a matter of law.

“Ratification is the voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him.  [Citations.]   A purported agent's act may be adopted expressly or it may be adopted by implication based on conduct of the purported principal from which an intention to consent to or adopt the act may be fairly inferred, including conduct which is ‘inconsistent with any reasonable intention on his part, other than that he intended approving and adopting it.’  [Citations.]”  (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73, 104 Cal.Rptr. 57, 500 P.2d 1401.)

In moving for summary judgment, the County argued that it was undisputed that “[n]o one from the County ratified the alleged assault and battery.”   To support this contention, the County submitted the declaration of Donald R. Raffaelli.   Raffaelli was the Deputy Public Works Director of the Road Equipment and Maintenance Division at the time the incident occurred and, as such, was Schuler's, Vadar's and Fretland's superior.   Raffaelli was directly responsible for investigation and discipline relating to claims of harassment, discrimination and assaults and batteries.   In his declaration, Raffaelli outlined the steps he took to investigate Fretland's claim that Vadar committed an assault and battery against him.   After his investigation, which produced conflicting stories from Vadar and Fretland, Raffaelli issued a “letter of warning” to “Vadar on March 15, 1995, to treat all employees with fairness and respect.”

In opposing summary judgment, Fretland did not produce any evidence which either contradicts Raffaelli's testimony or in any way indicates the County may have ratified the assault and battery.   Instead, Fretland relied on his own deposition testimony during which he maintained that he repeatedly reported incidents of discrimination and harassment to his superiors, who failed to take any action.   This testimony may arguably be relevant to prove the County actively participated in discrimination, but Fretland's discrimination claim is preempted.   Fretland's testimony is not relevant to prove ratification of the assault and battery.   Thus, Fretland has failed to rebut the County's undisputed evidence and to raise a triable issue of fact.

In summary, there is no exception to the exclusivity provisions of the workers' compensation law permitting an employee to hold an employer civilly liable for another employee's misconduct pursuant to the doctrine of respondeat superior.   Further, the exception to the exclusivity provisions for an employer's own misconduct does not apply because the County did not ratify the assault and battery allegedly committed by Vadar.   Therefore, the exclusivity provisions apply to Fretland's seventh cause of action and summary judgment was properly granted.

C. The Emotional Distress Claims ***


The judgment is affirmed.


FOOTNOTE.   See footnote *, ante.

2.   The limitation on the civil liability of the employer for an employee's misconduct was contained in subdivision (c) of the version of Labor Code section 3601 that was in effect when the Iverson plaintiff incurred his injury.  (Iverson,supra, 143 Cal.App.3d at pp. 222-223 fns. 2 & 3, 191 Cal.Rptr. 696,.) That limitation is now contained in subdivision (b).The incident at issue in Iverson occurred before section 3602(b)(1) was enacted.   However, at that time, there was a judicially established exception to the exclusivity rule for physical assaults committed by the employer upon an employee.  (Magliulo v. Superior Court (1975) 47 Cal.App.3d 760, 121 Cal.Rptr. 621;  see also Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 475, 165 Cal.Rptr. 858, 612 P.2d 948.)   The Iverson court's method of reconciling that judicial exception with the limitation on employer liability for assaults committed by co-employees applies as well to our analysis of section 3602(b)(1), which codified that judicial exception.

3.   At oral argument, Fretland's counsel argued, for the first time, that his position was supported by Farmers Ins. Groupv. County of Santa Clara (1995) 11 Cal.4th 992, 1005-1006, 47 Cal.Rptr.2d 478, 906 P.2d 440 (Farmers ).   He suggested that Iverson is inconsistent with our Supreme Court's analysis in Farmers.   The Farmers court held that the Tort Claims Act (Gov.Code, §§ 825-825.6, 995-996.6) does not require a public entity to indemnify an employee for liabilities arising out of a sexual harassment lawsuit against the employee because such conduct falls outside the scope of employment.  (Farmers,supra, 11 Cal.4th at p. 997, 47 Cal.Rptr.2d 478, 906 P.2d 440.)   Although Farmers involved co-employees, the challenged conduct was sexual harassment, not assault.   The Farmers court did not discuss section 3601 or any aspect of the workers' compensation exclusivity rule.   Nothing in the Farmers analysis is inconsistent with the Iverson court's interpretation of section 3601.

FOOTNOTE.   See footnote *, ante.

HAERLE, Acting Presiding Justice.

LAMBDEN and RUVOLO, JJ., concur.

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