1 

Filed 3/19/14 Lopez v. Delgadillo CA1/5 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION FIVE 

SACRAMENTO LOPEZ, 

 Plaintiff and Respondent, 

 v. 

ELENA DELGADILLO et al., 

 Defendants and Appellants. 

 A137463 

 A138246 

 (Alameda County 

 Super. Ct. No. HG09473452) 

 Appellants Elena Delgadillo and Jesus Cortez (appellants) appeal an award of 

unpaid wages, damages, and attorney fees to their former employee, respondent 

Sacramento Lopez. They contend (1) Lopez’s exclusive remedy for a workplace injury 

was workers’ compensation; (2) the trial court improperly excluded evidence of Lopez’s 

drug and alcohol use at the time of the workplace injury; (3) Lopez’s immigration status 

precludes an award for backpay; and (4) attorney fees should not have been awarded. We 

affirm. 

BACKGROUND 

 Lopez was injured while working for appellants. He sued, seeking damages for 

the injury and also alleging violations of various wage and hour laws. In response to an 

interrogatory request propounded during discovery, appellants admitted they did not have 

workers’ compensation insurance covering Lopez’s injury. 
2 

 Appellants later reversed course and contended they did have insurance, relying on 

a workers’ compensation policy purchased for a different employment site, which they 

argued also covered the employment site where Lopez was injured. Their insurance 

company denied coverage and appellants filed a separate lawsuit against the insurance 

company and others (the insurance action), naming Lopez as an indispensable party.1 

Appellants voluntarily dismissed with prejudice the insurance action prior to trial in 

Lopez’s lawsuit. 

 After a jury verdict in Lopez’s favor, the trial court entered judgment awarding 

Lopez unpaid wages and penalties for the wage and hour violations, and damages 

(medical expenses and noneconomic losses) for the workplace injury. The trial court 

subsequently awarded Lopez attorney fees, including fees for work performed in the 

insurance action “because that action was closely related with this action and useful to its 

resolution.” 

DISCUSSION 

I. Applicability of Workers’ Compensation Law

 Prior to trial, appellants filed a motion in limine to dismiss Lopez’s complaint, 

arguing workers’ compensation was the exclusive remedy for Lopez’s injury.2 The trial 

court denied the motion on three grounds: appellants waived this defense by failing to 

plead it as an affirmative defense; appellants admitted they lacked applicable workers’ 

compensation insurance in an interrogatory response; and the workers’ compensation 

policy relied upon by appellants could not reasonably be construed to apply to Lopez’s 

injury. Appellants challenge this ruling on appeal, but we find no error. 

 

1 We grant appellants’ July 9, 2013, unopposed request that we take judicial notice of 

the following documents filed in the insurance action: First Amended Complaint, Lopez’s 

Answer to First Amended Complaint, Order regarding motion for summary judgment, 

and Request for Dismissal. In granting this request, we take judicial notice only of the 

fact these documents were filed, but not of the truth of any statements contained in them. 

(Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1396.) 

2 An additional argument relating to Lopez’s wage and hour violations is not relevant to 

this appeal. 
3 

 “There are several essential conditions to an employer’s liability to an employee 

under the workers’ compensation law. [Citation.] Where those ‘conditions of 

compensation’ concur, the right to recover such compensation is generally the 

employee’s exclusive remedy against his or her employer. [Citation.]” (Gibbs v. 

American Airlines, Inc. (1999) 74 Cal.App.4th 1, 9-10, fn. omitted (Gibbs).) However, if 

an employer has failed to obtain workers’ compensation insurance or permission from the 

state to self-insure, the employee may bring a civil action for damages. (Labor Code, 

§§ 3700, 3706.)3

 “It has long been established in this jurisdiction that, generally speaking, a 

defendant in a civil action who claims to be one of that class of persons protected from an 

action at law by the provisions of the Workers’ Compensation Act bears the burden of 

pleading and proving, as an affirmative defense to the action, the existence of the 

conditions of compensation set forth in the statute which are necessary to its application. 

[Citations.]” (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96-97, fn. omitted.) 

However, “where the complaint affirmatively alleges facts indicating coverage by the 

act[,] unless the complaint goes on to state additional facts which would negative the 

application of the act, no civil action will lie and the complaint is subject to a general 

demurrer.” (Id. at p. 97.) Accordingly, “[a] defendant need not plead and prove that it 

has purchased workers’ compensation insurance where the plaintiff alleges facts that 

otherwise bring the case within the exclusive province of workers’ compensation law, 

and no facts presented in the pleadings or at trial negate the workers’ compensation 

law’s application or the employer’s insurance coverage. [Citations.]” (Gibbs, supra, 74 

Cal.App.4th at p. 14, italics added.) 

 Lopez’s complaint alleged an employment relationship and a workplace injury but 

did not allege appellants lacked workers’ compensation insurance, and thus appellants 

were not required to plead workers’ compensation exclusivity as an affirmative defense. 

However, Lopez subsequently presented evidence of facts negating the workers’ 

 

3 All undesignated section references are to the Labor Code. 
4 

compensation law’s application (Gibbs, supra, 74 Cal.App.4th at p. 14), namely, 

appellants’ admission in an interrogatory response that they lacked insurance coverage 

(Code Civ. Proc., § 2030.410; Evid. Code, § 1220). While admissions in interrogatory 

responses may be rebutted by credible contrary evidence (Mason v. Marriage & Family 

Center (1991) 228 Cal.App.3d 537, 545-546), appellants provided no such evidence here, 

as the trial court concluded the insurance policy did not apply to Lopez’s injury. 

 In their briefs on appeal, appellants do not analyze the insurance contract itself to 

contend it does apply to Lopez’s injury. They have therefore waived any such argument. 

(Behr v. Redmond (2011) 193 Cal.App.4th 517, 538.) Instead, appellants’ only response 

to the trial court’s construction of the insurance policy is to rely on an order issued in the 

insurance action. This order denied a summary judgment motion filed by the insurance 

company, finding the applicability of the insurance policy to Lopez’s injury was a 

question of fact. However, this was an interim order in a separate case that appellants 

voluntarily dismissed. Appellants do not contend the order has any res judicata or 

collateral estoppel effect, nor do they cite any authority to support such a contention. The 

mere existence of the order does not establish error in the trial court’s ruling. 

II. Evidence of Drug and Alcohol Use

 Appellants sought, over Lopez’s objection, to present evidence at trial of Lopez’s 

drug and alcohol use at the time of his injury. At a hearing held outside the presence of 

the jury, appellants’ expert witness testified medical records showed that within a few 

hours of the accident, Lopez had an extremely low blood alcohol level — well below the 

legal limit for driving under the influence — and had taken cocaine sometime within one 

to two days prior. The trial court excluded the evidence as more prejudicial than 

probative under Evidence Code section 352, and refused appellants’ request for a jury 

instruction regarding intoxication. 

 In lawsuits seeking damages for workplace injuries when the employer failed to 

obtain workers’ compensation insurance (§ 3706), “it is presumed that the injury to the 

employee was a direct result and grew out of the negligence of the employer, and the 

burden of proof is upon the employer, to rebut the presumption of negligence. It is not a 
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defense to the employer that the employee was guilty of contributory negligence” 

(§ 3708). After the California Supreme Court replaced contributory negligence with 

comparative negligence, this statute was construed to preclude a defense of the 

employee’s comparative negligence. (Logan v. Masters (1981) 120 Cal.App.3d 145, 

147-148 [“[c]omparative negligence, like contributory negligence, is unavailable to the 

employer,” otherwise “uninsured employers would have a potential advantage over 

insured employers, a result clearly contrary to the Legislature’s intent”].) 

 Accordingly, any evidence of Lopez’s drug and alcohol use to show his 

negligence was properly excluded. To the extent any such evidence would be relevant 

for any other reason, the trial court’s finding the proposed evidence was more prejudicial 

than probative under Evidence Code section 352 is reviewed under an abuse of discretion 

standard. (People v. Harris (2013) 57 Cal.4th 804, 845.) Given the very low levels of 

cocaine and alcohol in Lopez’s system, we find no such abuse. Further, as no evidence 

of intoxication was presented to the jury, the trial court’s refusal to instruct on 

intoxication was proper. 

III. Backpay Award

 Appellants contend Lopez is an undocumented worker and, as such, cannot be 

awarded backpay. Appellants rely on Hoffman Plastic Compounds, Inc. v. NLRB (2002) 

535 U.S. 137 (Hoffman Plastic), which reviewed a National Labor Relations Board 

(NLRB) decision awarding backpay to an undocumented worker as a remedy for an 

employer’s violation of the National Labor Relations Act (29 U.S.C.A. § 151 et seq.). 

“ ‘Back pay’ ‘seeks to make an employee whole by awarding wages that would have 

been earned but for an unlawful firing.’ [Citation.]” (Reyes v. Van Elk, Ltd. (2007) 148 

Cal.App.4th 604, 613, fn. 7 (Reyes).) Hoffman Plastic held the NLRB lacked the 

discretion to make such an award because it “runs counter to policies underlying [the 

federal Immigration Reform and Control Act of 1986],” to discourage the employment of 

undocumented workers. (Hoffman Plastic, at pp. 148-149.) 

 Contrary to appellants’ assertion, the judgment did not award Lopez backpay — 

“wages that would have been earned but for an unlawful [act].” (Reyes, supra, 148 
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Cal.App.4th at p. 613, fn. 7.) Instead, he was awarded wages earned, but not paid, for 

work already performed; damages, which did not include any economic loss from lost 

work; and statutory penalties. Appellants do not argue Hoffman Plastic applies to such 

awards.4

 In sum, appellants have demonstrated no error based on Lopez’s immigration 

status. 

IV. Attorney Fees

 Appellants challenge the trial court’s award of attorney fees to Lopez for (1) work 

performed in this case, and (2) work performed in the insurance action, in which 

appellants named Lopez as a defendant. We affirm the award. 

 As to the work performed in this case, appellants again argue they had workers’ 

compensation insurance; we have rejected this argument above. As they failed to prove 

such insurance, an award of attorney fees is authorized by statute. (§§ 3706, 3709 

[judgment against employer in lawsuit for damages from workplace injury where 

employer has failed to obtain workers’ compensation insurance “shall include a 

reasonable attorney’s fee fixed by the court”].)5

 As to the work performed in the insurance action, “California case law clearly 

provides a trial court discretion to award a fee that compensates work performed in a 

collateral action that may not have been absolutely necessary to the action in which fees 

are awarded but was nonetheless closely related to the action in which fees are sought 

and useful to its resolution.” (Children’s Hospital & Medical Center v. Bontá (2002) 97 

Cal.App.4th 740, 779-780 (Children’s Hospital).) “Because a ruling whether fees should 

 

4 We note also that, in response to Hoffman Plastic (Reyes, supra, 148 Cal.App.4th at 

p. 615 & fn. 9), California’s Legislature enacted section 1171.5, subdivision (a), 

providing, in relevant part: “All protections, rights, and remedies available under state 

law, except any reinstatement remedy prohibited by federal law, are available to all 

individuals regardless of immigration status who have applied for employment, or who 

are or who have been employed, in this state.” This statute has been upheld against 

challenges based on Hoffman Plastic and its reasoning. (Reyes, supra, at pp. 615-619.) 

5 Appellants do not appear to contest the award of fees for the wage and hour claims, 

which are also authorized by statute. (§§ 218.5, subd. (a), 1194, subd. (a).) 
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be awarded requires ‘an intensely factual [and] pragmatic’ inquiry [citation], it is entitled 

to great respect and may be set aside as an abuse of discretion only if the record provides 

no basis for the ruling.” (Id. at p. 781.) 

 We cannot say the trial court’s ruling was an abuse of discretion in this case. The 

two cases both involved Lopez’s workplace injury and whether appellants had workers’ 

compensation insurance covering that injury. Appellants have provided no record for us 

to determine whether the work performed by Lopez’s attorneys in the insurance action 

was useful to the instant case. Accordingly, we cannot say “the record provides no basis 

for the ruling.” (Children’s Hospital, supra, 97 Cal.App.4th at p. 781.) 

 Appellants contend each party in the insurance action agreed to bear their own 

fees and costs upon its dismissal. However, the only evidence cited in support of this 

contention is a line typed onto the form order of dismissal providing, “Each party bears 

its own fees and costs.” This form was prepared by appellants and was not signed by 

Lopez or his counsel. Its entry by the clerk of the superior court is a ministerial act. 

(Rosen v. Robert P. Warmington Co. (1988) 201 Cal.App.3d 939, 943.) Accordingly, it 

does not demonstrate an enforceable agreement between appellants and Lopez that Lopez 

would not seek to recover his attorney fees for work performed in that case. 
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DISPOSITION 

 The judgment and the order awarding attorney fees are affirmed. Lopez is 

awarded his costs on appeal. 

 

 SIMONS, Acting P.J. 

We concur. 

 

NEEDHAM, J. 

 

BRUINIERS, J.