FERMINO v. FEDCO INC

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Court of Appeal, Second District, Division 7, California.

Julie Loretta Glass FERMINO, Plaintiff and Appellant, v. FEDCO, INC., et al., Defendants and Respondents.

No. B066499.

Decided: April 22, 1993

Robert M. Ball, Los Angeles, for plaintiff and appellant. McClintock, Weston, Benshoof, Rochefort, Rubalcava & MacCuish, Steven W. Weston and Andrew M. Gilford, Los Angeles, for defendants and respondents.

Julie Loretta Glass Fermino appeals from the judgment entered dismissing her second amended complaint against Fedco, Inc., following the sustaining of a demurrer without leave to amend.   She contends in essence that Fedco's conduct was not part of the normal course of an employment relationship and the court erred in determining at the demurrer stage that the exclusive remedy of worker's compensation applied to appellant's claims.

PROCEDURAL HISTORY AND STATEMENT OF FACTS 1

 Fermino filed a second amended complaint for damages against Fedco for false imprisonment, intentional infliction of emotional distress and negligent infliction of emotional distress.   The complaint alleged in pertinent part that Fermino was employed by Fedco as a salesperson;  while working in the jewelry department she was summoned by the store personnel manager and escorted to a windowless interrogation room where the personnel manager, the loss prevention manager and two security agents were present;  the door was closed and defendants accused her of stealing the proceeds of a $4.95 sale to a customer and threatened to have her arrested and publicly charged with the crime unless she confessed her guilt;  the security agent asserted that a customer and employee had witnessed the theft and were waiting in the next room;  the security agent demanded Fermino confess and stated the interrogation could be handled the “Fedco way” or the “system way” by the police;  the “Fedco way” was to award points for each denial of wrongdoing and once fourteen points were reached the employee would be handled the “system way” by the police;  each time Fermino denied stealing money, the security agent said, “one point”;  periodically, the loss prevention manager “hurled profanities” and demanded that Fermino tell the truth and confess;  Fermino's requests to leave the room and call her mother were denied and Fermino was physically prevented from leaving the room;  Fermino was compelled to remain in the windowless interrogation room, against her will for approximately one hour;  when Fermino became hysterical, she was allowed to leave and was told there were no witnesses in the next room and that her interrogators believed her.   Fermino alleged the defendants intentionally, maliciously and oppressively conspired to accomplish the acts alleged and deprive her of her liberty, and as a result she suffered injury;  Fedco's officers, directors and managing agents authorized or ratified the intentional, malicious, oppressive and despicable conduct and at all times, the agents and employees were acting within the course of their employment;  and that she suffered physical and mental injury as a result of Fedco's misconduct.

The trial court sustained the demurrer without leave to amend on the ground that Fermino's claims came within the exclusive jurisdiction of the Workers' Compensation Act.

DISCUSSION

In relevant part and at all relevant times, where certain conditions of compensation concur, Labor Code section 3600 provides that liability for compensation under the Workers' Compensation Act, exists against an employer, without regard to negligence, for injuries sustained by an employee during the course of employment.

Labor Code section 3602 provides that where conditions of compensation concur, the right to recover such compensation, with certain exceptions, is the sole and exclusive remedy of the employee against the employer.

“A determination whether a cause of action is barred by the exclusive remedy provisions of the workers' compensation law must take into account not only the facts alleged (i.e., of physical injury) but also their relation to the scope and purposes of the workers' compensation statutory scheme.”   (Shoemaker v. Myers (1990) 52 Cal.3d 1, 13, 276 Cal.Rptr. 303, 801 P.2d 1054.)

“ ‘[T]he basis of compensation and the exclusive remedy provisions is an injury sustained and arising out of the course of employment․’  [Citation.]   Second, if the injuries did arise out of and in the course of the employment, the exclusive remedy provisions apply notwithstanding that the injury resulted from the intentional conduct of the employer, and even though the employer's conduct might be characterized as egregious.  ‘[A]n employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer's decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability.’  [Citation.]  Further, we noted that the legal theory supporting such exclusive remedy provisions is a presumed ‘compensation bargain,’ pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability.   The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.  [Citations.]”  (Shoemaker v. Myers, supra, 52 Cal.3d at pp. 15–16, 276 Cal.Rptr. 303, 801 P.2d 1054.)

As the Supreme Court noted in Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 233 Cal.Rptr. 308, 729 P.2d 743, “the actions of an employer which constitute a ‘normal part of the employment relationship’ [citation], i.e., risks encompassed within the compensation bargain, are subject to the exclusive remedy provisions of the Act.   In Cole, the employer allegedly falsely accused the employee of misconduct, subjected him to a ‘kangaroo’ disciplinary proceeding, publicly demoted him, gave him burdensome and menial duties, and even filed an application to force him to retire involuntarily.  [The court] held that such actions as demotion, transfer, discipline, and even the employer's attempt to force the employee into involuntary retirement, would be included within the ambit of workers' compensation.”  (Shoemaker v. Myers, supra, 52 Cal.3d 1, 18, 276 Cal.Rptr. 303, 801 P.2d 1054.)

 Similarly, the conduct at issue which forms the basis for Fermino's claim, questioning an employee regarding a possible theft of sale proceeds, is a normal part of the employment relationship.   This is true notwithstanding that injury resulted from the intentional conduct of the employer which might possibly be characterized as egregious, “manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability.”  (See Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d 148, 160, 233 Cal.Rptr. 308, 729 P.2d 743;  Levitsanos v. Superior Court (1992) 2 Cal.4th 744, 752, 7 Cal.Rptr.2d 808, 828 P.2d 1195.)   We conclude, therefore, there was no error in sustaining, without leave to amend, the demurrer to the second amended complaint.2

DISPOSITION

The judgment is affirmed.

I respectfully dissent.

I might quarrel with the majority opinion over its conclusion false imprisonment of the nature and degree alleged in this case is a “risk reasonably encompassed within the compensation bargain” (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16, 276 Cal.Rptr. 303, 801 P.2d 1054;  italics added).1  However, I have a more fundamental objection.   The primary injury which false imprisonment inflicts is not a type of injury covered by workers'compensation.   Consequently, the exclusive remedy provision of the workers' compensation law does not bar the false imprisonment cause of action in appellant's complaint.

To explain why, one does not have to go further than the Supreme Court opinion from which the majority quotes so extensively, Shoemaker v. Myers, supra, 52 Cal.3d 1, 276 Cal.Rptr. 303, 801 P.2d 1054.   This opinion represents the high court's most recent and thorough explanation of the reach of the exclusive remedy clause of the Workers' Compensation Act.   Notably omitted from the majority's summary of Shoemaker, however, is its discussion of what types of injuries fall within—and without—the scope of that clause.   Here is what the high court said about that subject.

“[T]he fundamental basis of workers' compensation is an injury sustained in and arising out of the course of employment when the injury is ‘personal physical injury or death.’  (Citation omitted, italics added.)   Conversely, the exclusive remedy provisions apply only in cases of such industrial injury or death.  (See, e.g., Howland v. Balma (1983) 143 Cal.App.3d 899, 192 Cal.Rptr. 286 ․ [workers' compensation not exclusive remedy for defamation];  ․” (Shoemaker v. Myers, supra, 52 Cal.3d at p. 16, 276 Cal.Rptr. 303, 801 P.2d 1054, italics in original.)   It is only after an injury is deemed a “personal physical injury” and thus encompassed under workers' compensation that the inquiry properly moves on to the question whether that injury also was a “risk reasonably encompassed within the compensation bargain.”  (52 Cal.3d at p. 16, 276 Cal.Rptr. 303, 801 P.2d 1054), italics added.)

The Supreme Court happened to use the example of defamation to illustrate the general principle that the exclusivity provision does not apply to torts which inflict harm other than “personal physical” injuries.   However, it could as well have used false imprisonment for that same purpose.   Like defamation, but unlike ordinary negligence or intentional acts inflicting personal physical harm to the victim, the primary harm occasioned through false imprisonment is the affront to personal dignity.  “To establish a prima facie case of false imprisonment, the plaintiff must prove that the defendant intended to confine the plaintiff.   The interest to be protected is primarily a dignitary one in freedom from restraint.”  (Love, Actions for Nonphysical Harm:  The Relationship Between the Tort System and No–Fault Compensation (With an Emphasis on Workers' Compensation) (1985) 73 Cal.L.Rev. 857, 880.)

True, the loss of personal dignity, whether caused by a false imprisonment or a defamatory statement, may lead to other injuries—severe emotional distress, for example, or even a physical manifestation of that distress such as an ulcer.   Nonetheless, the “gist of the injury” imposed by false imprisonment is not a “personal physical injury” but rather is of the same class of “injury” as defamation, and like torts.  “[C]ourts have distinguished between ‘personal injury’, which is covered by workers' compensation legislation, and “ ‘interference with a legal right,’ ” which is not.   Using this distinction, they have permitted tort recovery for such dignitary harms as false imprisonment, defamation, invasion of privacy, and civil rights violations.”  (Love, supra, 73 Cal.L.Rev. 857, 871–872, italics added.)   This is the very distinction our high court reemphasized in Shoemaker.   Consequently, in California a false imprisonment claim is not barred by the exclusive remedy provision of workers' compensation.

The Michigan courts have applied this same rationale to a false imprisonment cause of action filed in circumstances similar to the instant case.  (Moore v. Federal Department Stores, Inc., supra, 33 Mich.App. 556, 190 N.W.2d 262.)   There, as in the instant case, a store employee was accused and detained for questioning about a minor alleged embezzlement, in that case $5.20.   There, as here, the employee was cleared and eventually sued the store for false imprisonment.   She sought $100,000 in damages under this cause of action to compensate “for her humiliation, embarrassment, and nervous stress.”   As in this case, the trial court dismissed on grounds “the Workmen's Compensation Act ․ provided the exclusive remedy for the alleged injury.”  (190 N.W.2d at p. 263.)

In Moore, however, unlike the instant case, the appellate court reversed.  “The [workers compensation] Act has been interpreted to encompassphysical and mental injuries which arise out of and in the course of one's employment.   However, the gist of an action for false imprisonment is unlawful detention irrespective of any physical or mental harm.  (See Carr v. National Discount Corporation (C.A.6, 1949), 172 F.2d 899, cert. den. 338 U.S. 817, 70 S.Ct. 59, 94 L.Ed. 495.   We do not feel, therefore, that the plaintiff has suffered the type of personal injury covered under the Act.”  (Moore v. Federal Department Stores, Inc., supra, 190 N.W.2d at p. 264, italics added.)

The Michigan workers' compensation law is virtually identical to the California law in its definition of covered injuries.   Moreover, as a comparison of the quotation from Moore in the preceding paragraph and the quotation from Shoemaker reveals, that statutory language has been construed in the same way by the courts of the two states.   In both states coverage is limited to personal physical (or mental) injuries.

The two jurisdictions also use nearly identical language in their “exclusive remedy” provisions.   California law provides:  “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․”  (Lab.Code, § 3602(a), italics added.)   Meanwhile at the time of Moore, Michigan law provided:  “ ‘Where the conditions of liability under this act exist, the right to the recovery of compensation benefits, as herein provided, shall be the exclusive remedy against the employer.’ ”  “(M.C.L.A., § 411.4.)”

This similarity becomes relevant, because the Moore court also addressed the issue whether the fact false imprisonment is not the sort of injury compensable under workers' compensation removed the bar against suing an employer for that injury under the common law.  “It used to be the law in Michigan that no action apart from the Act could be brought against an employer even though no remedy was provided under the Act․  The statute [giving rise to this interpretation], however, was amended [to read as quoted in the paragraph above].  [¶] We feel that the Legislature [sic ] intended by this amendment to put Michigan in harmony with the great weight of authority to the effect that workmen's compensation acts do not bar suits against employers for injuries not compensable under the Acts.   Injuries which are outside the conditions of liability of the Act may be sued upon by means of a common law tort action.  (Citation omitted.)”  (Moore v. Federal Department Stores, Inc., supra, 190 N.W.2d at p. 264.)   Notably, the California courts have construed this state's “exclusive remedy” provision in the same way.   (Shoemaker v. Myers, supra, 52 Cal.3d at pp. 16–17, 276 Cal.Rptr. 303, 801 P.2d 1054, and cases cited therein.)

Subsequent decisions of Michigan courts likewise have allowed employees to sue their employers for false imprisonment.  (Schutt v. Lado (1984) 138 Mich.App. 433, 360 N.W.2d 214.)   Nor are the Michigan courts alone in recognizing false imprisonment claims are outside the exclusive remedy bar of workers compensation laws.  (See, e.g., Powers v. Middlesboro Hospital (1935) 258 Ky. 20, 79 S.W.2d 391;  Miller v. McRae's, Inc., supra, 444 So.2d 368;  Jones v. State (1973) 33 N.Y.2d 275, 352 N.Y.S.2d 169, 307 N.E.2d 236;  Werner v. State (1980) 79 A.D.2d 873, 434 N.Y.S.2d 548 affd., 53 N.Y.2d 346, 441 N.Y.S.2d 654, 424 N.E.2d 541;  Hamilton v. East Ohio Gas Co., (1973) 47 Ohio App.2d 55, 351 N.E.2d 775;  Skelton v. W.T. Grant Company, supra, 331 F.2d 593.   See also 2a Larson's Workmen's Compensation Law, supra, § 68.31 [Non-physical injury torts—False imprisonment] pp. 13–137–142.)

Other California courts also have ruled false imprisonment claims to be outside the exclusivity clause of the workers compensation act, albeit on different rationales.  (Iverson v. Atlas Pacific Engineering (1983) 143 Cal.App.3d 219, 191 Cal.Rptr. 696 [false imprisonment and assault tort action allowed because act causing injury was not accidental, did not arise out of the employment relationship, and had been found noncompensable in the workers compensation proceeding], and Meyer v. Graphic Arts International Union (1979) 88 Cal.App.3d 176, 151 Cal.Rptr. 597 [false imprisonment and assault counts allowed on grounds these acts were committed by employer's agent and thus were intentional acts of employer and not accidental injuries].   Conversely, my research indicates that prior to the majority opinion in this case no California appellate court had ever found the exclusivity clause of workers' compensation to bar a false imprisonment claim.

A leading treatise in this area, Larson on Workmen's Compensation Law, first recognizes false imprisonment and like torts are well outside the exclusivity provisions of these acts, and cites the many cases from various jurisdictions supporting this conclusion.   This authority then sets forth an unusual situation which represents a potential limitation on that general rule.   This limitation is so unusual, however, the author must express it as a hypothetical rather than an actual case.

“[I]t might seem self-evident that the exclusive-remedy provision would never apply to such torts as false imprisonment, libel, malicious prosecution, ․ The reason is that ordinarily these torts would not come within the basic coverage formula of the typical workmen's compensation act:  ․ [¶] Several courts have held that an action for false imprisonment is not barred by the exclusive remedy clause․  [T]he controlling argument must be that the essence of the tort is not physical injury but deprivation of liberty, and that the physical or mental harm is incidental, and is not an indispensable ingredient of the tort.   This is undoubtedly the real situation in most of these cases, with the personal injury allegation sometimes thrown in as a makeweight․

“But it is possible to postulate a set of facts in which [physical injury] becomes critical․  [S]uppose the claimant, as the result of having been locked in a broom closet for an hour, suffers a complete physical and mental breakdown resulting in total disability and entailing large hospital and medical expenses.   Although the form of the conduct is false imprisonment, the essence of the injury is no longer humiliation but severe physical disability․  The case cannot be distinguished from a simple assault ․ producing the same injuries.   Indeed, [this hypothetical] action was an assault and battery as well as a false imprisonment.”  (Larson's Workmen's Compensation Law, supra, § 68.30, 13–134–135;  § 68.31, 13–137–142, italics added.)

It is readily apparent appellant's case falls within the category where the “essence of the tort” is deprivation of liberty and not physical injury, with the latter in the nature of a makeweight.   In her second amended complaint which is the subject of this demurrer, appellant alleges:  “Defendants ․ intentionally, maliciously and oppressively deprived plaintiff of her liberty for a period of approximately one hour․  [¶]  As a proximate result of the acts of defendants, ․ in addition to being wrongfully deprived of her liberty, plaintiff was injured in her health, strength, and activity, sustaining injury to her body and shock and injury to her nervous system and person, all of which injuries arose during the imprisonment of plaintiff․”

While the recitation of physical and emotional consequences is longer and more elaborate, the substance is the same as the allegation in Moore which the Michigan appellate court and the treatise author both concluded left the false imprisonment claim well outside the exclusive remedy provision of workers' compensation.   As will be recalled, the plaintiff in Moore alleged not only deprivation of liberty but “humiliation, embarrassment, and nervous stress”.   In the instant case, appellant's complaint does not allege any kind of physical abuse during her false imprisonment.   Consequently, the various adverse physical and emotional reactions she alleges occurred during her false imprisonment were the same sorts of injuries the Moore complaint characterized as “nervous stress” (which obviously can have physical as well as emotional manifestations).

When the “gist” of the cause of action is something other than physical and emotional injury, as is true of false imprisonment, courts simply have not allowed ancillary allegations of physical and emotional harm to convert the tort claim into one foreclosed by the exclusive remedy provision ofworkers' compensation.   In the context of slander, for example, it has been held, “We recognize the conceptual problem inherent in the employee's [complaint] including physical and mental injury as elements of damage in the defamation claim.   However, we feel that to block the main thrust of this action because of peripheral items of damages, when a compensation claim could not purport to give relief for the main wrong of injury to reputation, would be incongruous, and outside the obvious intent of the exclusiveness clause.”  (Foley v. Polaroid Corp. (1980) 381 Mass. 545, 413 N.E.2d 711, 715, quoted with approval in Howland v. Balma (1983) 143 Cal.App.3d 899, 903, 192 Cal.Rptr. 286, which in turn was cited with approval in Shoemaker v. Myers, supra, 52 Cal.3d 1, 16, 276 Cal.Rptr. 303, 801 P.2d 1054.)   In Howland itself the plaintiff had alleged his employer's slander had caused psychiatric and medical problems.   Nonetheless, based on the reasoning in Foley the court reversed a summary judgment which concluded the slander cause of action was barred by the exclusivity clause of workers' compensation.  (143 Cal.App.3d at p. 906, 192 Cal.Rptr. 286.)

Similarly, in the instant case, it would be “incongruous, and outside the obvious intent of the exclusiveness clause” to “block the main thrust of this [false imprisonment] action because of peripheral items of damages, when a compensation claim could not purport to give relief for the main wrong of [deprivation of liberty].”  (413 N.E.2d at p. 715.)   Appellant's allegations fall far short of the complete physical and mental collapse resulting in “severe physical disability” which Larson posits as the only situation where a false imprisonment claim could be barred by the exclusive remedy provision of worker's compensation.   To the contrary, the instant case represents a classic example of a “pure” false imprisonment and the typical harm this tort causes.

For all these reasons, I would allow appellant's case to proceed on the false imprisonment cause of action.

FOOTNOTES

1.   On appeal from the sustaining of a general demurrer, we accept as true all material allegations contained in the complaint.  (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.)

2.   While the dissent states the primary injury false imprisonment inflicts is not a type of injury covered by workers' compensation, the gist of Fermino's action as pled was for physical and mental injuries.   The relevant allegations in the cause of action for false imprisonment were essentially that as a result of defendants' acts, in addition to being wrongfully deprived of her liberty, Fermino was injured in her health, strength, and activity, sustaining injury to her body and shock and injury to her nervous system and person, all of which injuries arose during her imprisonment and caused her to suffer severe physical pain, mental anguish and emotional distress.  “If the essence of the tort, in law, is non-physical, and if the injuries are of the usual non-physical sort, with physical injury being at most added to the list of injuries as a makeweight, the suit should not be barred.   But if the essence of the action is recovery for physical injury or death, the action should be barred even if it can be cast in the form of a normally non-physical tort.”  (2A Larson, Workmen's Compensation Law (1982) § 68.34(a), pp. 13–62–13–63.)

1.   At one point, the majority characterizes what is alleged here as mere “questioning” of appellant about an alleged theft.   However, the majority does not dispute appellant's complaint alleges the elements of a “false imprisonment.”   Indeed this same pattern of conduct has been successfully charged as false imprisonment in a number of jurisdictions.   (See, e.g., Skelton v. W.T. Grant Company (5th Cir.1964) 331 F.2d 593 [female employee detained for one and a-half hours for questioning about stolen merchandise];  Moore v. Federal Department Stores, Inc. (1971) 33 Mich.App. 556, 190 N.W.2d 262 [female employee detained for questioning for one hour about alleged theft of $5.30];  Miller v. McRae's Inc. (Miss.1984) 444 So.2d 368 [security guard detained employee to question him about missing money].   See also other cases cited in Larson's Workmen's Compensation Law (1993) § 68.31, p. 13–137 [False Imprisonment].)Mere questioning of an employee about a suspected theft would appear to qualify as a normal part of the employment relationship and a risk encompassed within the compensation bargain.  (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160–161, 233 Cal.Rptr. 308, 729 P.2d 743.)   But false imprisoning an employee for purposes of questioning her—or for any other purpose—is an entirely different matter.   Even were false imprisonment deemed a “physical injury” under the exclusive remedy clause it would not be the type of injury or the type of employer conduct which qualifies as a normal part of the employment relationship or a risk within the compensation bargain.   Employees may be deemed to have anticipated the possibility they would be hurt through a fellow employee's negligence or be fired or disciplined.   Yet I have difficulty concluding employees can be expected to anticipate the possibility their employer would deprive them of their freedom as a normal incident of their employment.

LILLIE, Presiding Justice.

Fred WOODS, J., concurs.

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