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


### NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 Co rtez (appellants) appeal an award of unpaid wages, damages, and attorney fees to their former em ployee, respondent Sacramento Lopez. They contend (1) Lope z’s exclusive remedy fo r 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 work place 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 appe llants. He sued, seeking damages for the injury and also alleging violations of va rious wage and hour laws . In response to an interrogatory request pr opounded during discov ery, appellants admitted they did not have workers’ compensation insuranc e covering Lopez’s injury.2 Appellants later reversed course and cont ended they did have insurance, relying on a workers’ compensation policy purchased fo r a different employment site, which they argued also covered the employment site wh ere Lopez was injured. Their insurance company denied coverage and appellants file d a separate lawsuit against the insurance company and others (the insurance action ), naming Lopez as an indispensable party. 1 Appellants voluntarily dismissed with prejudi ce the insurance action prior to trial in Lopez’s lawsuit. After a jury verdict in Lopez’s favor, th e 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 wo rk performed in the
insurance action “because that ac tion was closely related with th is 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: ap pellants waived this defense by failing to plead it as an affirmative defe nse; appellants admitted they lacked applicable workers’ compensation insurance in an interrogatory response; a nd the workers’ compensation policy relied upon by appellants could not reas onably 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, unoppose d 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, Orde r regarding motion fo r 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 st atements contained in them. ( Espinoza v. Calva (2008) 169 Cal.Ap p.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 rec over such compensation is generally the employee’s exclusive remedy against his or her employer. [Citation.]” ( Gibbs v. American Airlines, Inc. (1999) 74 Cal.App.4t h 1, 9-10, fn. omitted ( Gibbs ).) However, if an employer has failed to obta in workers’ compen sation 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 Work ers’ Compensation Act bears the burden of pleading and proving, as an a ffirmative defense to the ac tion, the existence of the conditions of compensation set fo rth 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 goe s on to state additional fa cts 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 no t plead and prove that it has purchased workers’ compen sation insurance where the plaintiff alleges facts that otherwise bring the case within the exclusiv e province of worker s’ compensation law, and no facts presented in the pleadings or at trial negate the wo rkers’ compensation law’s application or the em ployer’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 work ers’ compensation exclusivity as an affirmative defense. However, Lopez subsequently presented ev idence of facts negating the workers’

3 All undesignated section refe rences 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 res ponse that they lacked insurance coverage (Code Civ. Proc., § 2030.410; Evid. Code, § 1220). While ad missions 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 conclude d the insurance policy did not apply to Lopez’s injury. In their briefs on appeal, appellants do no t 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 5 17, 538.) Instead, appellants’ only response
to the trial court’s construction of the insurance policy is to re ly on an order issued in the
insurance action. This order denied a su mmary judgment motion filed by the insurance company, finding the applicability of the in surance policy to Lopez’s injury was a question of fact. However, this was an inte rim order in a separate case that appellants voluntarily dismissed. Appe llants do not contend the orde r has any res judicata or collateral estoppel effect, nor do they cite any authority to su pport such a contention. The
mere existence of the order does not esta blish error in the trial court’s ruling.
II. Evidence of Drug and Alcohol Use Appellants sought, over Lope z’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 testifie d medical records showed that within a few hours of the accident, Lopez ha d an extremely low blood al cohol level — well below the legal limit for driving under the influence — and had taken cocain e sometime within one to two days prior. The trial court exclude d 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 dama ges for workplace injuries wh en the employer failed to obtain workers’ compensation insu rance (§ 3706), “it is presum ed that the in jury 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 a5 defense to the employer that the employee was guilty of contri butory negligence” (§ 3708). After the California Supreme Cour t 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 cont ributory negligence, is unavailable to the employer,” otherwise “uninsured employers would have a potential advantage over insured employers, a result clearly cont rary 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 su ch evidence would be relevant for any other reason, the trial court’s findi ng the proposed evidence was more prejudicial than probative under Evidence Code section 35 2 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. Furt her, as no evidence of intoxication was presented to the jury, the trial court’s refu sal to instruct on intoxication was proper.
III. Backpay Award Appellants contend Lopez is an undocume nted 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 Na tional Labor Relations Act (29 U.S.C.A. § 151 et seq.). “ ‘Back pay’ ‘seeks to make an employee w hole by awarding wages that would have
been earned but for an unlawfu l 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, th e judgment did not award Lopez backpay — “wages that would have been earned but for an unlawful [act].” ( Reyes, supra, 1486 Cal.App.4th at p. 613, fn. 7.) Instead, he was awarded wages earned, but not paid, for work already performed; damages, which di d 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 defe ndant. We affi rm the award. As to the work perfo rmed 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 work place 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 absolu tely necessary to the action in which fees are awarded but was nonetheless closely relate d to the action in which fees are sought and useful to its resolution.” ( Children’s Hospital & Medi cal 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 st ate.” 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 aw ard of fees for the wage and hour claims, which are also authorized by statute. (§§ 218.5, subd. (a), 1194, subd. (a).)7 be awarded requires ‘an intensel y factual [and] pragmatic’ i nquiry [citation], it is entitled to great respect and may be set aside as an a buse 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 in jury 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 attorn eys 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 in surance action agreed to bear their own fees and costs upon its dismissa l. However, the only evidence cited in support of this contention is a line typed onto the form orde r 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 agreemen t between appellants a nd Lopez that Lopez would not seek to recover his attorney fees for work perform ed in that case.8 DISPOSITION The judgment and the order awarding a ttorney fees are affirmed. Lopez is awarded his costs on appeal.

SIMONS, Acting P.J.

We concur.

NEEDHAM, J.

BRUINIERS, J.