Ballester v. Ecolab CA1/3 filed
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Filed 2/23/11 Ballester v. Ecolab CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE ANTHONY BALLESTER, Plaintiff and Appellant, A129073 v. (Contra Costa County Super. Ct. No. C09-02296) ECOLAB, INC., Defendant and Respondent. Plaintiff Anthony Ballester appeals from a judgment entered after the court sustained a demurrer without leave to amend. He says the court wrongly concluded that his claim for intentional infliction of emotional distress is barred by the exclusive remedy provisions of the Workers Compensation Act. We agree with the trial court and affirm. BACKGROUND This lawsuit concerns Anthony Ballester s termination from his employment with Ecolab, Inc. Ballester claims his termination was due to a fraudulent report of his poor performance by his immediate supervisor, which was then ratified by Ecolab managers and corporate officers. He sued Ecolab as a result of his termination, seeking compensatory and punitive damages and reinstatement to his position. Ballester s second amended complaint, like his first two pleadings,1 alleged a single count for intentional 1 Ballester filed his first amended complaint in lieu of an opposition to Ecolab s demurrer to his original complaint. The court sustained Ecolab s demurrer to Ballester s first amended complaint, with leave to amend, on the ground that his claim was preempted by the exclusive remedy provisions of the Workers Compensation Act. 1 infliction of emotional distress. The trial court sustained Ecolab s demurrer to Ballester s second amended complaint without leave to amend. DISCUSSION I. Standard of Review A general demurrer searches the complaint for a failure to state a cause of action as a matter of law. [Citation.] On review from an order sustaining a general demurrer, [w]e treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. (Stanton Road Associates v. Pacific Employers Ins. Co. (1995) 36 Cal.App.4th 333, 340-341.) II. Analysis The second amended complaint alleged that Ballester s supervisor, Darren Evans, disseminated a report to Ecolab s human resources department that fraudulently criticized Ballester s job performance. Ballester alleged that Evans did so intentionally and for the purpose of causing Ballester to suffer emotional distress, and, further, that Ecolab s senior corporate counsel was aware of the scheme and nevertheless rejected Ballester s complaints about the fraudulent performance report. Ecolab demurred to the second amended complaint, as it had to the two previous complaints, on the ground that the Workers Compensation Act provides the exclusive remedy for infliction of emotional distress resulting from the alleged personnel actions. 2 In addition, Ecolab argued the second amended complaint failed to state a claim for fraud because it did not and could not allege that Ballester relied on the allegedly fraudulent performance report. Finally, Ecolab argued that, as a matter of law, Ballester could not amend his complaint because workers compensation provided his exclusive remedy. The trial court agreed and sustained the demurrer without leave to amend. The court ruled correctly. Subject to exceptions that do not apply in this case (see Vuillemainroy v. American Rock & Asphalt, Inc. (1999) 70 Cal.App.4th 1280, 1284), the Workers Compensation Act provides the only remedy available to an employee against his employer for injuries arising out of and in the course of employment. (Lab. Code, §§ 3601, 3602; Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1484.) Unless it can be said that the employer stepped out of [its] proper role[] or the allegedly injurious employment action had a questionable relationship to the employment (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 713-715), claims for even intentional and egregious infliction of emotional distress arising out of personnel actions are subject to workers compensation preemption. (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 754; Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.) As explained in Cole, [W]hen the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an 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. . . . [¶] If characterization of conduct normally occurring in the workplace as unfair or outrageous were sufficient to avoid the exclusive remedy provisions of the Labor Code, the exception would permit the employee to allege a cause of action in every case where he suffered mental disability merely by alleging an ulterior purpose of causing injury. Such an exception would be contrary to the compensation 3 bargain and unfair to the employer. (Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p. 160.) Similarly, termination, a known risk of any employment relationship, does not, by itself, insulate a cause of action from the exclusive remedy provisions. (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 821.) Much like the plaintiff in Cole, Ballester alleges he suffered humiliation, mental anguish, and emotional distress, and has been injured in mind due to allegedly negligent, intentional, fraudulent, and malicious personnel actions taken against him by Evans and to Ecolab s ratification of those actions. Our Supreme Court has squarely held such allegations are the exclusive province of the Workers Compensation Act. While Ballester argues, as we understand it, that his fraud allegations take this case beyond the scope of workers compensation exclusivity because fraud is not a normal part of the employment relationship (Cole v. Fair Oaks Fire Protection Dist., supra, 43 Cal.3d at p. 160), the law is to the contrary. In assessing whether a claim arises exclusively under workers compensation, courts should disregard any alleged intent beyond the intent to do the acts that establish the elements of the cause of action when determining whether these acts are encompassed within the compensation bargain. Such a focus is necessary in order to preserve the compensation bargain. Indeed, permitting civil claims based on conduct that appeared on its face to be a normal part of the employment relationship [or claims process] . . . merely because the mental state . . . rendered the conduct intentionally or knowingly tortious undermines the premise behind the workers compensation system. (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, supra, 24 Cal.4th at pp. 820-821, italics added; Fermino v. Fedco, Inc., supra, 7 Cal.4th at p. 713.) Ballester also suggests that his complaint alleged a cause of action under Civil Code section 3294, which authorizes punitive damage claims, and that this cause of action is not subject to workers compensation. However, [t]here is no cause of action for punitive damages. . . . Punitive damages are merely incident to a cause of action, and 4 can never constitute the basis thereof. (Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 391.) Leave to amend must only be granted where the plaintiff establishes a reasonable possibility that a pleading s defects can be cured by amendment. (Stanton Road Associates v. Pacific Employers Ins. Co., supra, 36 Cal.App.4th at p. 341.) Because there is no way Ballester can amend his complaint to avoid workers compensation exclusivity, the court properly sustained the demurrer to the second amended complaint without leave to amend. DISPOSITION The judgment is affirmed. _________________________ Siggins, J. We concur: _________________________ McGuiness, P.J. _________________________ Jenkins, J. 5
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