BERRENDA MESA FARMS v. WORKERS COMPENSATION APPEALS BOARD

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Court of Appeal, Fifth District, California.

BERRENDA MESA FARMS, et al., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and Irene Marones Perez, et al., Respondents.

Civ. F002650.

Decided: February 10, 1984

Dawson & Ninnis, and Robert O. Cribbs, Fresno, for petitioners. Perez, Makasian, Williams & Sanches and Robert Gray Williams, Fresno, for respondents Irene Morones Perez and Angelica M. Morones. No appearance by respondent Workers' Compensation Appeals Bd.

OPINION

Petitioners seek relief from the decision after reconsideration of respondent Board holding that Juan Morones (decedent) was killed in the course of and his death arose out of his employment by petitioner Berrenda Mesa Farms (employer).

FACTS

Employer is in the business of farming.   It had an equipment repair shop in rural Kern County at the intersection of Highway 33 and Twissleman Road.   There were two trailers used for employee housing near the repair shop.   The decedent and Jose Villapando lived in one trailer 1 ;  about six men lived in the other trailer.2

The shop/trailer area is enclosed by a six-foot high barbed-wire and chain-link fence with a gate secured by a chain and lock.   The people who lived in the trailers had a key to the lock.   The gate was locked at night, usually between 8 and 10 p.m.   The gate was about 20 feet from the road;  the trailers were about 60 feet from the road.   There was a telephone booth outside of the fenced area.

The shop/trailer area is isolated;  it is surrounded by agricultural land.   Lost Hills, the closest town, is about 20–25 miles from the shop area.

Jose Villapando, decedent's roommate, testified that to his knowledge decedent was an illegal alien;  employees were paid by check weekly.

Decedent was shot in the bathroom of his trailer the evening of November 23, 1980;  he died of the gunshot wound.   Michele Keener was in the trailer when decedent was shot;  she testified as follows:

She had engaged in acts of prostitution with the decedent at the trailer on three or four occasions prior to November 23, 1980.   On one prior occasion, she had sex with decedent and two other men at the trailer.

Her clients were laborers, mostly Mexicans.   She lived in Hanford, but had made three or four trips to engage in prostitution at labor camps.   On these trips, she went to decedent's trailer and stopped at a labor camp at Devil's Den on the way back.   Otherwise, she went to houses in Hanford, Stratford and Kettleman—mostly in Hanford.

On November 23, 1980, she went to decedent's trailer to solicit or engage in prostitution and to sell guns.   Danny Karl, Rocky Laboa and Mike Denny went with her.   Rocky and Mike had three guns;  they told her they wanted to sell the guns.   She had decedent in mind as a buyer.   Prior to the trip, she told the men her purpose in going to the trailer.

The men planned to rob decedent.3

Upon arrival at the trailer, she and Danny went to the door.   Decedent motioned for her to enter and Danny to go to the car.   After decedent paid her, they had sex.   As decedent was about to put his clothes on, the three men entered the trailer.4  Mike put a gun in decedent's face and told decedent to move back and lay down.   Danny and Mike were with decedent in the bathroom when she heard a shot.

At the time of the shot, she was looking for money.   She didn't know where decedent kept his money, but found some cash in a box.   She knows that most illegal alien laborers keep some cash and sent the rest of their pay home, but a few stash it in the house.   She didn't tell the men this, but something was said about decedent having some money.

After decedent had been shot, Mike said it was an accident;  he was crying and upset.   There had never been any discussion about killing prior to the event.

She knew the other trailer was occupied from prior visits.   On the night of the killing, all the lights were out in the other trailer.

It is common for prostitutes to visit rural farm labor camps to offer their services.   There were at least 15 girls in Hanford who did so.

She doesn't know whether decedent was an illegal alien, but referred to him as a “wetback” (illegal alien) in other court proceedings.

Kern County Deputy Sheriff Valdez investigated decedent's death.   He came from the Shafter substation 30 or 40 miles away.   It took him 24 minutes to arrive.   It was not uncommon to be that far from a call.   The Sheriff only patrols the area of decedent's death three or four times a week due to the large area they have to cover.

Decedent had been shot in the head.   Four hundred dollars cash was found under decedent's bed.

The nearest bank was in Wasco, about 25 miles from the trailers.   Based upon his experience in arresting illegal aliens, Deputy Valdez believes they keep large amounts of money on their person.   In his experience, illegal Mexican aliens are less likely than others to report crimes.   In Deputy Valdez' opinion, Mexican aliens are more likely than others to be victims of crimes such as robbery.   Most of the robberies Deputy Valdez investigated occurred in metropolitan areas, but a city robbery is more likely to be reported than a rural robbery.

Deputy Valdez testified that it was very common for employers in the Lost Hills area to hire illegal aliens.   He had “come across” employer's name “quite a few times” in cases involving illegal aliens.

The compensation judge found decedent's death did not arise out of his employment relying upon our decision in State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (1982) 133 Cal.App.3d 643, 184 Cal.Rptr. 111.

Respondent board concluded that the death was compensable upon the following analysis:

“Based upon the aforementioned evidence, the WCJ concluded that the purpose of the visit was robbery, that this was purely personal between the assailants and the decedent herein and that therefore the employment could not be deemed to have contributed to the death herein.

“For the reasons set forth hereinafter, the board believes that the case cited by the WCJ is distinguishable from the facts herein and that the death will be deemed compensable based upon the combination of both the neutral risk theory as well as direct employment contribution through remoteness of location thereby placing decedent in a position of danger.

“In Madin v. IAC (Richardson) (1956), 46 Cal.2d 90 [292 P.2d 892], 21 CCC 49, the Supreme Court stated in part:

‘Where the injury occurs on the employer's premises, while the employee is in the course of the employment, the injury arises out of the employment unless the connection is so remote from the employment that it is not an incident of it ․’

“While the court in the Santos/Macias case acknowledge the aforementioned Madin principle the court stated in part as follows:

‘․  [We] devine (sic) the following principles:  Injuries to employees in bunkhouses are not per se compensable;  if a third party assaults and injures the employee while in the course of employment (including being in a bunkhouse) and the third party acted out of purely personal motives there is no compensability.   However, if the employee can also show there was some employment connection or contribution, i.e., an industrial cause of the injury so as to establish the arising-out-of element, then there is compensability.   Such cause need not be the sole cause and need only be a contributing cause.   Finally, if the third party's assault causing the injury occurs in the course of employment and is committed for unknown motives or no motive at all, i.e., for nonpersonal motives, the injury is compensable.  (Emphasis included.)’

“Based upon this board's reading of Madin, Santos/Macias and the cases cited in this latter case, the board believes that the present factual situation justifies inferences leading to a conclusion of compensability.   We interpret Santos/Macias to mean that if the assault is motivated for personal reasons in regard to the person assaulted, i.e., Santos/Macias was assaulted because he was Santos/Macias, then it is not compensable.

“Juan Antonio Morones was not assaulted because he was Juan Antonio Morones, he was assaulted because he was a person who might have money to be taken.

“That is, the evidence presented in this record justifies the board in inferring that there was no ‘purely personal motive’ leading to the killing herein.   The evidence does not indicate that the assailants herein had ever met, confronted, or dealt with the decedent prior to this occasion;  that witness Keener in fact was involved in a conspiracy to gain entrance for the three individuals, noting the testimony to the effect that one of the assailants initially knocked on the door but voluntarily left when decedent summoned witness Keener;  or that there was any direct or indirect racial motivation in these killings as discussed by the court in the aforementioned [Santos/Macias] case.   Hence, because the evidence justifies the inference that there was no purely personal motivation in the killing herein, coupling this inference with the liberal mandate of Labor Code Section 3202 to resolve all doubts in favor of compensability, the board believes that the Madin principle controls to justify a finding of compensability.

“Moreover, the board believes that the evidence likewise would justify inferences that the bunkhouse in the present case was sufficiently remote and isolated so as to place the decedent in a position of danger.   It appears to the board that a reasonable inference can be drawn from the evidence that is equally probable that this remoteness was used and relied upon by the assailants in their plan to ultimately carry out the robbery.   However, it also appears to the board that the robbery while ruminated upon prior to the actual occurrence, was not necessarily decided upon until it actually occurred.   It appears to the board that if the plan had been robbery from the outset, the robbery could have easily taken place at the time one of the assailants initially knocked upon and had the door opened to him by the decedent, or while the decedent was engaged in the act of intercourse with witness Keener, thus being distracted from any entrance by the three assailants.   It appears that the testimony in evidence of Deputy Sheriff Valdez justifies the conclusion that this was a remote and isolated area, that there would be a good chance at least that cash money would be available in light of the locations of the bank and the common practice of the Mexican farm workers in this area.   Under all of these circumstances, and once again coupling the board's inferences with the liberal mandate of Labor Code Section 3202, the board believes that the isolated and dangerous position in which the decedent was placed, while not the sole cause of the ultimate incident, was at least a contributing cause to the robbery and killing.   Based upon all of the above, the board will conclude that the death did occur both in the course of employment and arise out of the employment, returning the matter to the trial level for further proceedings and decision on the other issues.”   (Original emphasis.)

DISCUSSION

Part I

This portion of our opinion presumes that decedent's employment was not a factor in the decision to rob him.

In State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (Vargas), supra, 133 Cal.App.3d 643, 184 Cal.Rptr. 111, we held that a racially motivated murder of an employee who was a virtual stranger to the killers (Vargas) 5 during a robbery which occurred in the employer's bunkhouse was not compensable upon application of the following principles:

“Injuries to employees in bunkhouse are not per se compensable;  if a third party assaults and injures the employee while in the course of employment (including being in a bunkhouse) and the third party acted out of purely personal motives there is no compensability.   However, if the employee can also show there was some employment connection or contribution, i.e., an industrial cause of the injury so as to establish the arising-out-of element, then there is compensability.   Such cause need not be the sole cause and need only be a contributing cause.   Finally, if the third party's assault causing the injury occurs in the course of employment and is committed for unknown motives or no motive at all, i.e., for nonpersonal motives, the injury is compensable.”  (133 Cal.App.3d at p. 655, 184 Cal.Rptr. 111;  original emphasis.)

 Respondent board concluded in substance that decedent's death is compensable because the killers were not shown to have had a grudge against or dislike of decedent.   This was error.   A personal motive for an assault exists if the assailants intended to injure the employee for reasons unrelated to his employment.   Personal animus toward the employee supports, but is not essential to, a finding of personal motive for an assault.   An intent to obtain the employee's property by force is a personal motive for the assault required to do so.

The critical issue is whether the employment was a substantial cause of decedent's death.   Absent such causation, the death did not arise out of the employment.

 The assailants in this case clearly planned to rob a specific person—decedent.6  They also may have planned to kill decedent because he was a witness to the robbery.7  If so, they intended to kill decedent for purely personal reasons within the meaning of Vargas.   Alternatively, the killing may have been accidental.   However, where there is an intent to rob a specific person, as here, and the intended victim is accidentally slain during the robbery, the killing arises out of the robbery rather than the victim's employment.

A hypothetical example would help to clarify our analysis.

If a criminal plans to rob a convenience store, any store employee killed during the robbery, intentionally or accidentally, is entitled to compensation.   This is because the employment placed the employee in harms way and he would not have been injured but for his employment.   The robber is analogous to the bulldozer in Madin v. Industrial Acc. Com. (1956) 46 Cal.2d 90, 292 P.2d 892.

But suppose that unknown to his employer the convenience store clerk was selling heroin as a sideline and the criminal intended to rob him of his heroin.   The criminal could perform the robbery at any time or place, but decides upon impulse to do it while the heroin dealer is at work and accidentally kills the clerk during the robbery.   Here, the employment did not proximately cause the robbery or the accidental killing which resulted from it—the criminal's intent to rob the clerk was the sole proximate cause of his death.   However, if a female employee was then murdered as a witness to the robbery/murder of the heroin dealer, her death would be compensable under Madin because she would not have been harmed except for her employment.

 Upon the assumption of this part of our opinion, this case is directly analogous to the heroin dealer example.   The assailants intended to and did rob decedent;  by assumption, the criminal intent to rob decedent was independent of and unrelated to his employment.

Part II

Suppose the hypothetical robber decided to rob the clerk/heroin dealer and then investigated how best to execute this intent;  after learning that the dealer worked alone in the store, he decided to rob the dealer at work.   Now the employment is a factor in the robbery, but it has affected only the execution of a pre-existing intent to rob the dealer—i.e., when and where the robbery will occur.

 Isolation in employment which merely facilitates the execution of a personally motivated assault, such as robbery, is not a sufficient nexus with the employment to cause injuries received as a result of such assault to arise out of the employment.   Therefore, the hypothetical clerk's death during the robbery would not be compensable.

California Comp & Fire Co. v. Workmen's Comp. App. Bd. (Schick) (1968) 68 Cal.2d 157, 65 Cal.Rptr. 155, 436 P.2d 67, does not compel a contrary conclusion.   The Schick court placed emphasis not only upon the employee's isolation but upon the peculiar risk of assault arising from the employee's duties and the fact that such duties formed an integral part of the assailant's elaborate scheme of attack.   The role of employment is inconsequential if it merely provides a place for a personally motivated assault.  (Transactron, Inc. v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 233, 137 Cal.Rptr. 142.)

The occupations or professions of substantially all employees require them at one time or the other during the regular workday to be in a position of isolation, even if it is no more than going somewhere alone in an automobile or by foot.   Many others regularly travel the isolated roads and byways of the countryside in pursuit of their employment.   Others live and work in isolation.   Isolation in a vacuum does not furnish sufficient connection with employment to render compensable injuries received as a result of a personally motivated attack by a third party.

Finally, suppose that the hypothetical robber wanted heroin, knew that the clerk sold heroin, but didn't decide to rob him until he learned that the clerk worked alone in the store.   Here, the employment contributed to assailant's selection of the clerk as his victim.   The resulting robbery of the clerk was proximately caused by the employment, and, therefore, his death during the robbery would be compensable.

The fact that the clerk's illegal personal conduct (selling heroin) was the primary cause of his selection as a robbery victim is not determinative.   The employment was a substantial cause of the robbery;  it need not be the sole proximate cause.

We reject employer's contention that because decedent's personal relationship with Keener was a substantial cause of the robbery,8 his death is not compensable.   Decedent's isolated location also may have been a substantial cause of the decision to rob him.   If so, the death is compensable.

 It is not clear from respondent board's decision whether it concluded that the death was compensable because the isolated location of the bunkhouse facilitated execution of the assailants' pre-existing intent to rob decedent or because such isolation was a substantial factor in selection of decedent as a robbery victim.   The former conclusion is insufficient to support the award;  the latter conclusion is sufficient if supported by substantial evidence.

We have concluded that this case should be remanded for further proceedings before respondent board.   At minimum, its decision must be clarified.   Also, respondent board may in its discretion take additional evidence upon remand.   Miss Keener's testimony regarding the discussions which led to the decision to rob decedent would be very useful.

Until respondent board clarifies its decision, we need not address the difficult issue of whether the present record supports the board's present decision.

The decision after reconsideration dated May 30, 1983, entered in action No. 81 F 50485 is vacated with directions to enter a new decision consistent with this opinion.

FOOTNOTES

FOOTNOTE.  

1.   At some point in time, decedent lived there with two other men.

2.   Only employees of employer lived in the trailers.   Jose didn't pay rent.   Decedent worked with the men in the other trailer.   The foreman lived in the other trailer;  he drove everyone to work in a company pickup and usually brought them home.

3.   Miss Keener testified:“Q When you went out there did you go out there with a specific intent to rob Juan Morones?“A At my apartment it started out as that, but I have never hurt anybody before.   And I told Danny on the way out there that they weren't going to do this.“․“Q When they were talking about robbing him back at your apartment, was there any discussion that he is likely to have money?“A There was something said about him having money.   I don't remember.   Something was said about him having some money.“Q Was there something said about wetbacks usually keeping money around?“A I never told them.   I mean, if I wanted a lot of money I know one guy that keeps at least six hundred dollars in his wallet.”

4.   She believed decedent locked the door, but apparently the assailants had no difficulty entering.

5.   One of the assailants had bought a car from Castellanos, the other murder victim;  he paid for the car with a bad check and wanted to recover it.

6.   Respondent board's conclusion that the robbery was not necessarily decided upon until it actually occurred is true in the sense that any criminal enterprise may be abandoned until the crime is actually committed.   However, our text conclusion is compelled as a matter of law on this record.   The plan to rob decedent had advanced to the point that three men and three weapons—one shotgun, one rifle and one .357 magnum—accompanied Miss Keener enroute to his trailer.

7.   If Mike's exculpatory hearsay statements that the killing was accidental and Keener's testimony regarding such statements, Mike's crying and the lack of prior intent to kill are believed, this did not occur.

8.   The assailants were associates of Keener;  she apparently told them about decedent;  she brought them to decedent knowing they intended to rob him.

THE COURT.* FN* Before WOOLPERT, Acting P.J., and HAMLIN and MARTIN, JJ.