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Court of Appeal, First District, Division 5, California.

Sandra CHILDRESS, Plaintiff and Appellant, v. CHURCH'S FRIED CHICKEN, Defendant and Respondent.

No. A021166.

Decided: November 10, 1983

Terence O'Reilly, Walkup, Downing, Shelby, Bastian, Melodia, Kelly & O'Reilly, San Francisco, for plaintiff and appellant. Joseph D. Ryan, Jr., Martin, Ryan & Andrada A Professional Corp., Oakland, for defendant and respondent.

Section 3600 of the Labor Code provides that an employer is liable for injuries to its employees arising out of and in the course of employment, and section 3601 declares that where the conditions of workers' compensation exist, the right to recover such compensation is the exclusive remedy against an employer for injury or death of an employee.   Plaintiff Sandra Childress appeals from the judgment of dismissal after the demurrer of her employer, Church's Fried Chicken, to her third amended complaint for tort damages was sustained without leave to amend.1  We reverse.

Appellant seeks damages for breach of contract, mental distress, emotional suffering, and personal injuries from, inter alios, her employer, respondent Church's Fried Chicken [Church's],2 based on its alleged failure to provide sufficient security services at the restaurant where appellant was employed as a bookkeeper.   In appellant's own words, “the thrust of [her] Third Amended Complaint [is] that [respondent Church's] acted outrageously in placing her in a position of great personal danger, on the deceit that guards would be provided.   This cause is variously phrased as a breach of oral contract (First Cause of Action), negligent infliction of emotional distress (Second Cause of Action), and fraud and intentional infliction of emotional distress (Fifth, Sixth and Seventh Causes of Action).”   The trial court sustained the demurrer on the basis of Labor Code section 3600 et seq.   (Code of Civ.Proc., §§ 430.10, subd. (e), 430.30, subd. (a).) 3

 At the outset, it is well settled that a general demurrer admits the truth of all material factual allegations in the complaint.  (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170, 164 Cal.Rptr. 839, 610 P.2d 1330.)   The function of the demurrer is to test the sufficiency of plaintiff's pleading by raising questions of law.  (Buford v. State of California (1980) 104 Cal.App.3d 811, 818, 164 Cal.Rptr. 264 [hg. denied June 12, 1980];  3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 796, pp. 2408–2409.)   The question of plaintiff's ability to prove the allegations or the possible difficulty in making such proof does not concern the reviewing court.   (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 919, 167 Cal.Rptr. 831, 616 P.2d 813.)  “[T]he defendant bears the burden of pleading and proving, as an affirmative defense, that the Workers' Compensation Act is a bar to the employee's civil action.  (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96–97 [151 Cal.Rptr. 347, 587 P.2d 1160];  Popejoy v. Hannon (1951) 37 Cal.2d 159, 173 [231 P.2d 484].)   But if the complaint ‘affirmatively alleges facts indicating coverage by the act,’ then unless it states additional facts which negative application of the exclusive remedy provision, ‘no civil action will lie and the complaint is subject to a general demurrer.’  (Doney, supra, 23 Cal.3d at p. 97 [151 Cal.Rptr. 347, 587 P.2d 1160];  Lowman v. Stafford (1964) 226 Cal.App.2d 31, 35 [37 Cal.Rptr. 681].)”  (Iverson v. Atlas Pacific Engineering (1983) 143 Cal.App.3d 219, 224, 191 Cal.Rptr. 696 [hg. denied August 19, 1983].)   With these principles before us, we review appellant's third amended complaint in light of the judgment of dismissal based upon a claimed failure to state a valid cause of action.

As alleged in the complaint, the facts are as follows:  Appellant was employed as a bookkeeper at Church's restaurant at 1455 High Street, Oakland.   Church's owned, operated, or was otherwise legally responsible for operating the 1455 High Street premises, and was “legally required and had a duty to maintain said building as a safe and fit place for the general public to enter and purchase food.”   Respondent knew that the 1455 High Street premises was the scene of criminal activity and that persons entering said building were subject to criminal conduct by others.   Prior to November 23, 1980, various Church's establishments, including the restaurant at 1455 High Street, were robbed on a number of occasions;  such criminal activity was uncontrolled by respondent;  and respondent's employees were in constant danger of robbery or assault, or other criminal activity while at work.   Respondent knew that one of its employees had been kidnapped and murdered and that appellant had been robbed.   Appellant had advised respondent that she wished to terminate her employment because of the danger of working at 1455 High Street.   In order to persuade appellant to continue in her employment as a bookkeeper, respondent told her that as a condition of employment, it would undertake to employ security services to protect appellant and her fellow employees at work.   Respondent “falsely and fraudulently represented to [appellant] that security services, guards and undercover guards were present at or about the Church's ․ at 1455 High Street.”   Relying on respondent's representation that it would provide security services for the restaurant in order to ensure and guarantee the safety of appellant and her fellow employees, and having been led to believe security services had been employed to protect the premises, appellant continued to work as a bookkeeper.   She was so employed on November 23, 1980.   Respondent failed to provide security services and concealed the absence of security services from appellant.   On November 23, 1980, the restaurant was robbed and appellant was shot.   She suffered the loss of her right eye, loss of her senses of smell and taste, internal damages to the head, scarring, and mental and emotional distress.   Appellant sought general, special, compensatory, and punitive damages.

Appellant urges that because the demurrer which the court sustained raised only the bar of Labor Code section 3600, Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 165 Cal.Rptr. 858, 612 P.2d 948 does not preclude an action at law against respondent, and “fraud by an employer that results in physical injury to an employee should be compensable at law.”   Respondent, citing Johns-Manville, contends that an employer is liable only if an employee's preexisting, work-related injury is aggravated by the employer's concealment of the injury, and then only for damages proximately caused by the aggravation (see § 3602, subd. (b)(2), quoted in fn. 3, ante ).   Respondent further contends that when the complaint is for the injuries suffered in the course and scope of employment, albeit on several legal theories, but all based upon the same injury and alleged facts, “there is but one cause of action for one personal injury.” 4

In Johns-Manville, the issue was whether an employee was barred by Labor Code sections 3600 and 3601 from prosecuting an action at law against his employer for the intentional torts of fraud and conspiracy in knowingly ordering the employee to work in an unsafe environment, concealing the risk from him, and after the employee had contracted an industrial disease, deliberately failing to notify the state, the employee, or doctors retained to treat him of the disease and its connection with the employment, thereby aggravating the consequences of the disease.  (Johns-Manville Products Corp., supra, 27 Cal.3d at p. 468, 165 Cal.Rptr. 858, 612 P.2d 948.)   The worker had earlier filed a claim for workers' compensation benefits for disability caused by exposure to asbestos.   The employer moved for judgment on the pleadings, asserting that the action was barred by section 3601.   The trial court denied the employer's motion.   The Supreme Court denied a petition for writ of mandate by the employer.   It concluded “that while the workers' compensation law bars the employee's action at law for his initial injury, a cause of action may exist for aggravation of the disease because of the employer's fraudulent concealment of the condition and its cause.”  (Johns-Manville Products Corp. v. Superior Court, supra, 27 Cal.3d at p. 469, 165 Cal.Rptr. 858, 612 P.2d 948.)   In reaching this conclusion, the court noted that “while the case law cannot be described as consistent, it reveals that in some exceptional circumstances the employer is not free from liability at law for his intentional acts even if the resulting injuries to his employees are compensable under workers' compensation.”  (Id., at p. 473, 165 Cal.Rptr. 858, 612 P.2d 948.)

 The matter before us presents just such exceptional circumstances.   Here, appellant seeks damages from her employer for physical and mental injuries she suffered arising from respondent employer's deceit.   With knowledge that one of its employees had been kidnapped and murdered and that appellant herself had been robbed, appellant's continued employment as respondent's bookkeeper was induced by respondent's representations it would provide security services, which representations it knew to be false.   Relying on respondent's assurance of a safe work environment, appellant continued in her employment with respondent and she was injured.   Appellant has alleged conduct by respondent which goes beyond its failure to assure the employee's physical environment is a safe work place.  (Cf. Royster v. Montanez (1982) 134 Cal.App.3d 362, 370–372, 184 Cal.Rptr. 560;  Williams v. International Paper Co. (1982) 129 Cal.App.3d 810, 181 Cal.Rptr. 342.)   Although appellant has advanced several legal theories for her possible recovery, the fact remains that each theory is founded on the same injury.   The cause of action is based upon the harm suffered, as opposed to the particular theory asserted by the litigant.  (Slater v. Blackwood (1975) 15 Cal.3d 791, 795, 126 Cal.Rptr. 225, 543 P.2d 593.)

 Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 375–376, 193 Cal.Rptr. 422, hearing denied, September 30, 1983, sets forth the elements of appellant's cause of action.

“[A]ppellant pleaded deceit, an action sanctioned by Civil Code section 1709, which provides:  ‘One who willfully deceives another with intent to induce him [or her] to alter his [or her] position to his [or her] injury or risk, is liable for any damage which he [or she] thereby suffers.’   Deceit, within the meaning of section 1709, is defined by Civil Code section 1710 [fn. omitted] to include both fraudulent misrepresentations (‘The suggestion, as a fact, of that which is not true, by one who does not believe it to be true ․’) and negligent misrepresentations (‘The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true ․’).  (See, generally, 4 Witkin, Summary of Cal.Law, Torts, supra, §§ 445–482, pp. 2710–2744;  Prosser, supra, ch. 18, §§ 105–110, pp. 683–736;  Rest.2d Torts, §§ 310, 557A.)

“In pleading a cause of action for deceit, a plaintiff must specifically plead the following elements:  (1) a false representation (ordinarily of a fact) made by the defendant;  (2) knowledge or belief on the part of the defendant that the representation is false, or that the representation was made by defendant without reasonable grounds for believing its truth;  (3) an intention to induce the plaintiff to act or to refrain from action in reliance upon the misrepresentation;  (4) justifiable reliance upon the representation by the plaintiff;  (5) damage to the plaintiff, resulting from such reliance.  (See Prosser, supra, § 105, pp. 685–686;  Gagne v. Bertran (1954) 43 Cal.2d 481, 487–489, 275 P.2d 15;  O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 804–805, 142 Cal.Rptr. 487.)

“Appellant has pleaded all the essential allegations, as set forth above, of a cause of action for deceit․”

 We conclude that the facts alleged in appellant's complaint state a cause of action for deceit;  it is not barred by the 1982 amendment to Labor Code section 3602 (fn. 3, ante ), and the workers' compensation act should not be available as a defense in a fraud action instituted by an employee against her employer under the peculiar circumstances herein alleged.  “Surely, the Legislature never intended that an employer's fraud was a risk of employment.”  (Ramey v. General Petroleum Corp. (1959) 173 Cal.App.2d 386, 402–403, 343 P.2d 787.)

That portion of the judgment of dismissal which sustains the demurrer to appellant's fifth, sixth, and seventh causes of action is reversed and the cause remanded to the trial court with instructions to overrule the demurrer as to those counts.


1.   Childress originally noticed her appeal from the order sustaining her demurrer to the third amended complaint without leave to amend.   No appeal lies from an order sustaining a demurrer without leave to amend.  (Code of Civ.Proc., § 904.1;  3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 843, p. 2448.)   We treat the notice of appeal as being from the judgment of dismissal entered nunc pro tunc.

2.   Although Holloway's Security Service, specific individuals, and Does One through One Hundred are named as defendants in the complaint in addition to Church's Fried Chicken, the order on demurrer and subsequent judgment of dismissal refer only to Church's.   We therefore treat Church's as the only respondent and do not address any issues regarding the potential liability of any other defendants.

3.   All references are to the Labor Code unless otherwise noted.At the time the trial court ruled on the demurrer, section 3600 provided in part:“Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as provided in Section 3706, shall, without regard to negligence, exist against an employer for any injury sustained by his employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur:“(a) Where, at the time of the injury, both the employer and the employee are subject to the compensation provisions of this division.“(b) Where, at the time of the injury, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment.“(c) Where the injury is proximately caused by the employment, either with or without negligence.”Section 3601 provided in part:“(a) Where the conditions of compensation exist, the right to recover such compensation, pursuant to the provisions of this division is, except as provided in Section 3706, the exclusive remedy for injury or death of an employee against the employer or against any other employee of the employer acting within the scope of his employment, ․”Section 3602 provided:“In all cases where the conditions of compensation do not concur, the liability of the employer is the same as if this division had not been enacted.”In 1982, section 3602 was rewritten to provide in pertinent part:“(a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation is ․ the sole and exclusive remedy of the employee ․ against the employer ․“(b) An employee ․ may bring an action at law for damages against the employer, as if this division did not apply, in the following instances ․  [¶] (2) Where the employee's injury is aggravated by the employer's fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer's liability shall be limited to those damages proximately caused by the aggravation․”  (Stats.1982, ch. 922, § 6 [eff. 1/1/83].)

4.   In its brief, respondent states that the trial “court was asked to take judicial notice of the pendency of a workers' compensation action, Sandra Childress, applicant v. Church's Fried Chicken, defendant, Case No. Oak. Z093060, in which action the board determined the existence of the employment relationship.”

LOW, Presiding Justice.

KING and HANING, JJ., concur. Hearing denied;  BIRD, C.J., dissenting.

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