See's Candies, Inc. v. Superior Court of Cal. for the Cnty. of L. A.

73 Cal.App.5th 66

288 Cal.Rptr.3d 66

SEE'S CANDIES, INC., et al., Petitioners,

v.SUPERIOR COURT OF CALIFORNIA FOR the COUNTY OF LOS ANGELES, Respondent;

Matilde Ek et al., Real Parties in Interest.

B312241

Court of Appeal, Second District, Division 1, California.

Filed December 21, 2021

Munger, Tolles & Olson, Joseph D. Lee (Los Angeles) and Malcolm A. Heinicke (San Francisco) for Petitioners.

Gibson, Dunn & Crutcher, Bradley J. Hamburger (Los Angeles) and Lucas C. Townsend (Washington, D.C.) for Chamber of Commerce of the United States of America, California Chamber of Commerce, California Workers' Compensation Institute, Restaurant Law Center, California Restaurant Association, National Association of Manufacturers, National Retail Federation, and National Federation of Independent Business Small Business Legal Center as Amici Curiae on behalf of Petitioners.

No appearance for Respondent.

Krissman & Silver, Joel Krissman and Donna Silver, Long Beach, for Real Parties in Interest.

OPINION AND ORDER DENYING PETITION FOR WRIT OF MANDATE

BENDIX, Acting P. J. See's Candies, Inc. and See's Candy Shops, Inc. (collectively, defendants) petition for a writ of mandate directing the trial court to vacate an order overruling their demurrer to a wrongful death action filed by real parties in interest Matilde Ek (Mrs. Ek), Karla Ek-Elhadidy, Lucila del Carmen Ek, and Maria Ek-Ewell (collectively, plaintiffs). Plaintiffs are the wife and daughters of decedent Arturo Ek (Mr. Ek).

Plaintiffs allege that Mrs. Ek, defendants' employee, contracted COVID-19 at work because of defendants' failure to implement adequate safety measures. They claim that Mr. Ek subsequently caught the disease from Mrs. Ek while she convalesced at home. He died from the disease a month later.

Defendants filed a demurrer asserting that plaintiffs' claims are preempted by the exclusivity provisions of the Workers' Compensation Act (WCA; Lab. Code,¹ § 3200 et seq. ). Specifically, defendants argued plaintiffs' claims are barred by the "derivative injury doctrine" (see Snyder v. Michael's Stores, Inc. (1997) 16 Cal.4th 991, 1000, 68 Cal.Rptr.2d 476, 945 P.2d 781 ( Snyder )), under which "the WCA's exclusivity provisions preempt not only those causes of action premised on a compensable workplace injury, but also those causes of action premised on injuries ‘ "collateral to or derivative of" ’ such an injury." ( King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1051, 236 Cal.Rptr.3d 853, 423 P.3d 975 ( King ).) Among other things, this doctrine preempts third party claims "based on the physical injury or disability of the spouse," such as loss of consortium or emotional distress. ( Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 162–163, 233 Cal.Rptr. 308, 729 P.2d 743.)

Defendants argued below, as they do in this writ proceeding, that under Snyder , a claim is derivative if it would not exist absent injury to the employee. Because plaintiffs allege Mr. Ek contracted COVID-19 from Mrs. Ek, who in turn contracted the disease at work, defendants contend Mr. Ek's death would not have occurred absent Mrs. Ek's workplace exposure, and thus was derivative of Mrs. Ek's work-related injury. Accordingly, defendants argue that plaintiffs' claims are subject to WCA exclusivity. The trial court rejected this argument and overruled the demurrer.

We agree with the trial court. Assuming arguendo that Mrs. Ek's workplace infection constitutes an injury for purposes of the WCA, we reject defendants' efforts to apply the derivative injury doctrine to any injury causally linked to an employee injury. Defendants' interpretation is inconsistent with the language of Snyder , which establishes that the fact an employee's injury is the biological cause of a nonemployee's injury does not thereby make the nonemployee's claim derivative of the employee's injury.

Further, Snyder 's discussion of prior case law applying the derivative injury doctrine does not support applying the doctrine based solely on causation. Snyder approved of cases applying the doctrine to claims by family members for losses stemming from an employee's disabling or lethal injury, such as wrongful death, loss of consortium, or emotional distress from witnessing a workplace accident. In contrast, the Supreme Court called into question a case applying the derivative injury doctrine outside these contexts based on causation alone.

Defendants' interpretation of the derivative injury doctrine would lead to anomalous results, shielding employers from civil liability in contexts the drafters of the WCA could not have intended. Although the breadth of the derivative injury doctrine presents serious policy considerations, Snyder recognizes that such policy considerations are within the province of the Legislature and should not be judicially addressed by expansion of the derivative injury doctrine.

Amici arguing in support of defendants describe the trial court's ruling as an "outlier," and contend other jurisdictions have dismissed complaints alleging similar facts and legal theories. Amici's hyperbole notwithstanding, the rulings they cite either were decided on bases other than workers' compensation exclusivity or do not articulate their reasoning sufficiently to be persuasive. Analogous precedents from other jurisdictions support our holding.

Because the parties have framed this writ exclusively to address the applicability of the WCA, we have no occasion to decide whether defendants owed Mr. Ek a duty of care or whether plaintiffs can demonstrate that Mr. or Mrs. Ek contracted COVID-19 because of any negligence in defendants' workplace, as opposed to another source during the COVID-19 pandemic. The parties have not raised these issues, and we decline to address them sua sponte.

Accordingly, we deny the petition.

PROCEDURAL BACKGROUND

Plaintiffs filed their complaint against defendants on December 30, 2020, alleging the following:

"Defendants operated a candy assembly and packing line and employed workers in the course and scope of said business, including [Mrs. Ek]. During said time there was a global, national, state and County of Los Angeles pandemic and epidemic, Sars-Cov-2 coronavirus, commonly referred to as Covid-19. Defendants were aware of the highly dangerous, contagious and transmissible nature of that virus, particularly where people are working and interacting in close proximity to each other. Further, Defendants' employees at the plant complained directly and through their union representative to Defendants about the close proximity of their work environment[,] requesting safety mitigation efforts due to fear of the virus. Defendants failed to operate and conduct their business as would and should be expected to protect their employees, including [Mrs. Ek], from the known high risk of this viral infection by failing to put known, appropriate and necessary safety mitigation measures in place. Defendants knew and should have known that the workers' duties, locations within the plant, and physical distancing from one another, created a foreseeable and high risk of viral infection and transmission among the workers, including [Mrs. Ek]. Defendants knew and should have known that their failure to take appropriate and necessary safety mitigation measures would increase the known and foreseeable risk that their workers, like [Mrs. Ek], would become infected in the course and scope of their work for Defendants, and carry said viral infection home infecting one or more of their family members[.]"

The complaint continued: "On or about 3/1/20–3/19/20, [Mrs. Ek] was working without appropriate and necessary social distancing on the packing line, using restrooms and break-rooms at times inches [or] only a few feet from other workers, some of whom were coughing [and] sneezing, and became infected along with other co-workers with Covid-19. [Mrs. Ek], unable to work[,] then convalesced at her home where she resided with her husband, [Mr. Ek], and one of their daughters, Plaintiff Karla Ek-Elhadidy, who provided care for her. Within a few days, on or about 3/22/20 both [Mr. Ek], and daughter Karla Ek-Elhadidy, became sick with Covid-19. [Mr. Ek], after struggling with the illness, died as a proximate and legal cause therefrom, on 4/20/20."

Plaintiffs asserted causes of action for general negligence and premises liability. They sought "all recoverable damages for the wrongful death of [Mr. Ek], including loss of love, care, comfort and society." Mrs. Ek, as Mr. Ek's successor in interest, also sought "economic losses for medical and care costs for the period of time [Mr. Ek] survived after being infected with Covid-19."

Defendants filed a demurrer contending that plaintiffs' claims were preempted by the WCA under the derivative injury doctrine. The doctrine applied, defendants argued, because plaintiffs could not state a claim against defendants for Mr. Ek's death without alleging an injury to an employee, namely Mrs. Ek's workplace infection with COVID-19. Plaintiffs filed an opposition.

Following a hearing, the trial court overruled the demurrer. The court found that any injury to Mrs. Ek was "irrelevant" to plaintiffs' claims because "that injury is not the injury upon which Plaintiffs sue." Rather, "[i]t was [Mr. Ek's] exposure to the COVID-19 brought home by Mrs. Ek that Plaintiffs claim caused Plaintiffs' injury."

The trial court continued: "Mrs. Ek did not have to become ill herself for Plaintiffs' injury to occur, and, so, contrary to Defendants' position, Plaintiffs do not allege that their injuries would not have existed in the absence of the workplace injury to Mrs. Ek. Accordingly, Plaintiffs' claimed injuries are not collateral to nor derivative of Mrs. Ek's becoming ill with COVID-19. Were Plaintiffs alleging that their injuries stemmed from Mrs. Ek's illness, say, because they lost income or missed out on Mrs. Ek's companionship while she was sick with the COVID-19 she contracted at work, a different outcome...