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Court of Appeal, First District, Division 3, California.

Patricia DONEY, Plaintiff and Respondent, v. Dino TAMBOURATGIS, Defendant and Appellant.

Civ. 40591.

Decided: September 19, 1977

Lewton & McGuinn, San Francisco, for defendant and appellant. Carpeneti, Carpeneti & Carpeneti, San Francisco, for plaintiff and respondent.

A superior court jury awarded plaintiff compensatory and punitive damages for assault and battery committed by her employer. Judgment was entered in accordance with the verdict. Defendant's motions for judgment notwithstanding the verdict and for now trial were denied. Employer appeals, arguing that plaintiff's sole right and remedy is under the Workers' Compensation Act.

Plaintiff-respondent was employed as a topless-bottomless dancer and as a cocktail waitress in a bar owned and operated by defendant-appellant. When the bar closed at 2 a. m., December 21, the employees remained to wash the glasses. When this work was complete, defendant told the other girls to go home, but asked plaintiff to come to his upstairs office to discuss a customer complaint. When plaintiff reached the office, defendant asked her to take off her clothes.1 She refused. He grabbed her hair and pulled her to the floor, where they struggled. He left the room, locking the door. She was telephoning police when defendant returned and stopped her. The bartender came upstairs to inquire about the noise, and plaintiff took the opportunity to run down the stairs to the front door. During the 10 to 15 minutes before her escape from the upstairs office, defendant did not mention any customer complaint. The front door was locked and defendant, who followed her, refused to open it. He then accused her of ‘hustling’ customers and stealing money, and struck her. Police arrived shortly.

It is quite true that liability for workers' compensation ‘shall * * * exist against an employer for any injury sustained by his employees arising out of and in the course of the employment,’ and that this obligation is ‘in lieu of any other liability whatsoever.’ (Labor Code, § 3600.) Also, ‘[w]here the conditions of compensation exist, the right to recover such compensation, * * * is, * * * the exclusive remedy for injury or death of an employee against the employer’ (Labor Code, § 3601). But, as is clear from the quoted sections, the injury must be one ‘arising out of and in the course of the employment’ and must, moreover, have been ‘proximately caused by the employment’ (Labor Code, § 3600, subd. (c)). Absent these conditions of compensation, jurisdiction lies in the courts.

The problem has been fully reviewed by the Supreme Court (Scott v. Ind. Acc.Comm., 46 Cal.2d 76, 293 P.2d 18). As against an employer, jurisdiction of the courts and the W.C.A.B. are mutually exclusive. But jurisdiction depends upon a determination whether the conditions of compensation exist. Jurisdiction to determine that issue, i.e., jurisdiction to determine jurisdiction, is concurrent. If proceedings are pending before both tribunals, the first determination of jurisdiction to become final is binding. Upon proper application for a stay order, preference will be given to the tribunal whose jurisdiction was first invoked by either party, and the proceeding later instituted will be stayed.

Here, there is no suggestion that either party at any time attempted to invoke jurisdiction of the Workers' Compensation Appeals Board. Thus there is no question that the superior court had jurisdiction to determine whether the conditions of employment existed. Defendant did urge the asserted exclusive jurisdiction of the appeals board by motion for nonsuit, for judgment notwithstanding the verdict, and for new trial. But each of these motions was made to the superior court, thus conceding its jurisdiction to determine which tribunal had jurisdiction.

Appellant argues only that the evidence is insufficient to support the verdict, i.e., that it necessarily establishes jurisdiction in the W.C.A.B., rather than the superior court. The partial transcript he ordered and produced contains only the testimony of respondent, and the partial clerk's transcript lacks minute entries which would show whether other witnesses were called. But a ‘judgment or order is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ (6 Witkin, Calif.Proc. (2d ed.) p. 4225.) We cannot find that respondent's testimony necessarily negated the implied conclusion that the conditions of compensation did not exist here.

The assault occurred after the entire crew of like employees had been dismissed. The mere fact that injury occurs after normal working hours does not, of itself, bar workers' ocmpensation if the injury is no the employer's premises and is an incident of the employment (e.g., Scott v. Pacific Coast Borax Co., 140 Cal.App.2d 173, 294 P.2d 1039; Gardner v. Industrial Acc.Com., 73 Cal.App.2d 361, 166 P.2d 362). The employer's request that respondent come to his office to discuss a customer's complaint would, on its face, indicate a purpose connected with the employment. Appellant's actions on her arrival in his office, however, demonstrated that the request was but a ruse and that the true purpose of appellant's request was the gratification of his sexual desires. Understandably, appellant cites, and we find, no case indicating that subjection to an employer's efforts to secure sexual gratification is an incident to the employment here shown.

We recognize the current rule that a wilful physical attack by an employer does not, of itself, bar workers' compensation (e.g., Azevedo v. Abel, 264 Cal.App.2d 451, 70 Cal.Rptr. 710). But the intentional infliction of injury becomes a workers' compensation case only ‘[i]f the injury were employment related’ (Busick v. Workmen's Comp.Appeals Bd., 7 Cal.3d 967, 976, fn. 11, 104 Cal.Rptr. 42, 48, 500 P.2d 1386, 1392.) As demonstrated above, this assault did not stem from anger generated by the employment relationship nor did it in any way relate to the employment. At most, the employment merely afforded the basis for a patently false ruse by the employer to lure respondent to the place of the sexually motivated attack. We do not find that, on the record here, these facts compel a finding that the assault arose out of and in the course of the employment.

Judgment affirmed.


1.  Apparently she was not in her dancing uniform.

DRAPER, Presiding Justice.

SCOTT and GOOD (Retired Judge of the Superior Court, assigned by the Chairperson of the Judicial Council), JJ., concur.

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