Filed 1/8/16 Medina v. State of California CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 ONE


CYNTHIA MEDINA,
         Plaintiff and Appellant,
                                                                     A141235
v.
STATE OF CALIFORNIA,                                                 (Napa County
                                                                     Super. Ct. No. 2661393)
         Defendant and Respondent.


         The trial court sustained the State’s demurrer to Cynthia Medina’s complaint for
personal injuries on limitations and worker compensation exclusivity grounds and
dismissed her lawsuit. We affirm. She did not comply with the jurisdictional, one-year
deadline for notifying the government of her claims, and her claims, which arise from her
exposure to second-hand smoke while working as a nurse at a veterans home, must be
brought through the workers’ compensation system, not the courts.
                                                   BACKGROUND
         During a span of 20 years, between 1990 and 2010, Medina worked as a nurse at
the Yountville Veterans Home of California. The home was operated by the State of
California through the Department of Veterans Affairs. While employed there, Medina
encountered to second-hand smoke for approximately 30 to 45 minutes a day. Veterans
were “deliberately” allowed to smoke anywhere on home premises. Medina asserts they
would “intentionally blow smoke” into her body while she administered medications.




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       On February 28, 2011, Medina was diagnosed with lung cancer and immediately
had surgery to remove a portion of her right lung. After the surgery, Medina was in pain,
weak, and needed a portable oxygen tank to breath. She was bedridden for some time
and thereafter required assistance to stand and walk. Her health slightly improved at the
end of 2012.
       More than two years after her diagnosis, in March 2013, Medina filed a claim with
the State’s Victim Compensation and Government Claims Board, giving notice she
wished to sue the State for $10 million for causing her cancer. A timely pre-suit claim is
generally a prerequisite to a variety of suits against the state. (See Gov. Code, § 945.6.)1
Recognizing her claim was late, given the six-month deadline set forth in section 911.2,
Medina also submitted a letter requesting late consideration, citing section 911.6, which
enumerates grounds for such relief from the limitations period.
       The board denied Medina’s claim. Not only was the claim more than six months
late, it was more than one year late, and the board concluded it had no jurisdiction to
consider claims filed beyond the one-year mark, a time limitation found in section 911.4.
       Medina, invoking section 946.6, then petitioned the superior court for leave to sue
the State and the Department despite the delay. When no one opposed the petition, the
trial court granted leave to sue.
       Medina filed her complaint against both the State and the Department (collectively
the State). The State demurred, asserting, despite not having opposed Medina’s petition,
that her claims were untimely, and also that the workers’ compensation system was her
exclusive recourse. Medina filed an amended complaint. The State again demurred.
And after the trial court sustained the demurrer with leave to amend, Medina filed the
operative, second amended complaint.


       1
         All further statutory references are to the Government Code unless otherwise
indicated.


                                              2
       Medina’s second amended complaint, which included all the causes of action from
her two previous pleadings, alleged battery, assault, premises liability, negligence, and
violation of Labor Code section 6404.5, subdivision (d)(12), which addresses employers’
obligations regarding workplace smoke exposure. Each cause of action was grounded on
the State allowing patients to smoke in front of Medina.
       The State again interposed a demurrer. The trial court sustained it without leave to
amend and dismissed the case, and Medina appealed.
                                        DISCUSSION
       “When reviewing a judgment dismissing a complaint after the granting of a
demurrer without leave to amend, courts must assume the truth of the complaint’s
properly pleaded or implied factual allegations. . . . [W]e determine whether the
complaint states facts sufficient to state a cause of action.” (Schifando v. City of Los
Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando).) We do not defer to the trial court on
such a question of law; our review is de novo. (Lewis v. Safeway, Inc. (2015)
235 Cal.App.4th 385, 390 (Lewis).) As to the trial court’s denial of leave to amend, we
review that decision for abuse of discretion. The plaintiff has the burden of
demonstrating how amendment could remedy the pleading defect that led to the demurrer
being sustained. (Schifando, supra, 31 Cal.4th at p. 1081; Lewis, supra, 235 Cal.App.4th
at pp. 390, 395–396.)
Jurisdiction
       A claim against a government entity “relating to a cause of action . . . for injury to
person . . . shall be presented” to the Victim Compensation and Government Claims
Board “not later than six months after the accrual of the cause of action.” (§ 911.2, subd.
(a).) A late claim may be considered upon written application, if presented “within a
reasonable time not to exceed one year after the accrual of the cause of action.” (§ 911.4,
subd. (b), italics added.) For such late claims filed after six months but within a year, the
board shall consider the claim’s merits if one of several exceptions is met, such as if “the

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person who sustained the alleged injury, damage or loss was physically or mentally
incapacitated during all of the [six months] . . . and by reason of such disability failed to
present a claim during such time.” (§ 911.6, subd. (b)(3).) But the exceptions provided
by section 911.6 do not apply to claims filed after one year. (§ 911.4.)
       There are limited means of tolling, or pausing, the one-year period. (§ 911.4,
subd. (c).) Thus, if the victim is a minor, the time when the minor is mentally
incapacitated and has no guardian does not count toward the year. (§ 911.4, subd. (c)(1).)
Nor does time count while a minor victim is a dependent of the juvenile court, under
certain circumstances. (§ 911.4, subd. (c)(2) & (3).) None of these tolling provisions are
applicable here.
       The statute authorizing courts to allow suit after the board denies a late claim
filing, section 946.6, asks the superior court to consider the same exceptions set forth in
section 911.6 (governing the board’s consideration of six-month to one-year claims) and
states only that relief shall be granted when the late application fits within one of those
exceptions and was “made within a reasonable time not to exceed that specified in
subdivision (b) of Section 911.4”—that is, one year. (§§ 946.6, subds. (b)–(c), 911.6,
subd. (b), 911.4, subd. (b).) Therefore, section 946.6 allows a superior court to
independently review whether a six-month to one-year claim should go forward despite a
board denial. It does not authorize relief when claims are over a year late.
       In fact, courts hold the one-year outside claim deadline is jurisdictional and cannot
be forfeited by litigation conduct. Failure to meet the deadline divests courts of their
power to adjudicate a victim’s claims. (J.J. v. County of San Diego (2014)
223 Cal.App.4th 1214, 1221; Munoz v. State of California (1995) 33 Cal.App.4th 1767,
1779 [“Filing a late-claim application within one year after the accrual of a cause of
action is a jurisdictional prerequisite to a claim-relief petition. [Citation.] When the
underlying application to file a late claim is filed more than one year after the accrual of
the cause of action, the court is without jurisdiction to grant relief under Government

                                              4
Code section 946.6.”]; Dixon v. City of Turlock (1990) 219 Cal.App.3d 907, 913 [under
section 911.4, “appellant’s claim was time barred and neither the respondent public entity
nor the courts had any discretion to waive or otherwise relieve appellant’s failure to file a
timely claim or application”]; Santee v. Santa Clara County Office of Education (1990)
220 Cal.App.3d 702, 713 [“filing a late-claim application within one year is a
jurisdictional prerequisite to a claim-relief petition”]; Greyhound Lines, Inc. v. County of
Santa Clara (1986) 187 Cal.App.3d 480, 488 [“When the underlying application to file a
late claim is filed more than one year after accrual of the cause of action, the court is
without jurisdiction to grant relief under section 946.6.”].)2
       As Medina presented her claim well over a year after her lung cancer diagnosis,
the courts lack jurisdiction to hear her claims, and dismissal was appropriate. This is so
even though the government initially failed to oppose her petition for relief under
section 946.6. Court rulings in excess of jurisdiction are void and may be challenged at
any time, as the parties cannot confer jurisdiction on the courts by consent. (Sullivan v.
Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 307, fn. 9; Airlines Reporting Corp. v. Renda
(2009) 177 Cal.App.4th 14, 20.)
       To avoid the one-year deadline, Medina points to her physical incapacity during
the claim period. Although Medina amply alleges serious physical disability—she was at
times bedridden and required assistance to move about—she does not allege or credibly
argue this disability was so severe, for an entire year, so as to preclude her making a
claim or having one filed on her behalf. Moreover, while physical disability might




       2
         There may be limited circumstances under which a public entity is equitably
estopped from asserting the one-year deadline because, through threats or deceitful
conduct, it deterred a timely filing. (See Doe v. Bakersfield City School Dist. (2006)
136 Cal.App.4th 556, 567.) Medina does not invoke this doctrine.


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excuse the filing of a claim within six months to one year (§ 911.6, subd. (b)(3)), it does
not excuse Medina’s filing beyond one-year (§ 911.4).3
Workers Compensation Exclusivity
       Even if the one-year deadline were not jurisdictional, or if the State could be said
to have forfeited that jurisdictional problem by not opposing Medina’s section 946.6
petition, the dismissal was still proper because of workers’ compensation exclusivity.
       When the workers’ compensation system provides a remedy for an employee, it is
the sole remedy available. (Lab. Code, §§ 3600, 3602.) “The legal theory supporting this
exclusive remedy provision ‘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.’ [Citation.]” (Wilson v. Southern California
Edison Co. (2015) 234 Cal.App.4th 123, 141–142.)
       Here, as the parties’ briefing suggests, the applicability of the workers’
compensation regime hinges on the presence of two conditions: first, whether, “at the
time of the injury, the employee [was] performing service growing out of and incidental
to his or her employment and [was] acting within the course of his or her employment”
(Lab. Code, § 3600, subd. (a)(2)); and second, whether “the injury [was] proximately
caused by the employment, either with or without negligence” (id. § 3600, subd. (a)(3)).



       3
          Medina also mistakenly asserts the “delayed discovery” rule applies to toll the
one-year period. This rule, which concerns the accrual of causes of action for latent
injuries, manifestly does not apply here. (See generally Fox v. Ethicon Endo-Surgery,
Inc. (2005) 35 Cal.4th 797, 807 [discussing rule].) Medina was well aware of her lung
cancer and her history of smoke exposure as of the date of her diagnosis, February 28,
2011.


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       There can be little question Medina was performing her job and acting within the
course of her employment when administering medications to veterans. Nor can there be
any doubt that she claims her injury was caused by being exposed to cigarette smoke
while she was on the job.
       Medina cites Johnson v. Industrial Acc. Commission (1958) 157 Cal.App.2d 838,
for the proposition that an illness acquired at work unrelated to that work—polio while
chaperoning a contagious child on a field trip—is not an “occupational” injury. That is
indeed what Johnson holds. But in finding the injury not “occupational,” it nonetheless
termed the injury “industrial” and acquired “in the course of her employment,” and in no
way held the injury was not compensable under the workers’ compensation regime. (Id.
at pp. 840–842.) Thus, injuries arising from mold in the workplace (Jensen v. Amgen
Inc. (2003) 105 Cal.App.4th 1322 (Jensen)) and from third-party violence at the
workplace (Spratley v. Winchell Donut House, Inc. (1987) 188 Cal.App.3d 1408
(Spratley)), have been held compensable through workers compensation.
       Medina argues she should be able to sue in court because allowing second-hand
smoke in the workplace violates public policy and Labor Code safety provisions. She
thus characterizes this conduct as a crime of violence, falling outside the compensation
bargain. While certain highly offensive, intentional conduct is beyond the compensation
bargain, much wrongful conduct, even “serious and willful misconduct” (see Lab. Code,
§ 4553), falls within it.
       The Supreme Court classifies employer-caused injuries under a “tripartite”
scheme. (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 713 (Fermino).) “First, there are
injuries caused by employer negligence or without employer fault that are compensated at
the normal rate under the workers’ compensation system.” (Id. at pp. 713–714.)
“Second, there are injuries caused by ordinary employer conduct that intentionally,
knowingly or recklessly harms an employee, for which the employee may be entitled to
extra compensation under section 4553.” (Id. at p. 714.) Labor Code section 4553

                                            7
specifically addresses injuries “by reason of the serious and willful misconduct” of an
employer and calls for a 50 percent compensation enhancement. Third, and finally,
“there are certain types of intentional employer conduct which bring the employer
beyond the boundaries of the compensation bargain, for which a civil action may be
brought.” (Fermino, at p. 714.)
       When we compare the kinds of serious and willful misconduct held to be
compensable under the workers’ compensation regime, we can only conclude Medina’s
exposure to second-hand smoke also falls under that regime.
       First, we look to Johns-Manville Products Corp. v. Superior Court (1980)
27 Cal.3d 465 (Johns-Manville), in which our Supreme Court considered a plaintiff who
developed lung cancer after 29 years of asbestos exposure in the defendant’s asbestos
manufacturing plant. The defendant had known the exposure was harmful for decades,
yet concealed this from the plaintiff, told him the plant was safe, and operated the plant
while violating state and federal regulations governing dust levels. (Id. at p. 469.)
       The court noted employers are routinely mindful of dangers, yet do not act. “In
many of these cases, the employer does not warn the employee of the risk. Such conduct
may be characterized as intentional or even deceitful. Yet if an action at law were
allowed as a remedy, many cases cognizable under workers’ compensation would also be
prosecuted outside that system. The focus of the inquiry in a case involving work-related
injury would often be not whether the injury arose out of and in the course of
employment, but the state of knowledge of the employer and the employee regarding the
dangerous condition which caused the injury. Such a result would undermine the
underlying premise upon which the workers’ compensation system is based.” (Johns-
Manville, supra, 27 Cal.3d 474.) Thus, enhanced compensation under “section 4553 is
the sole remedy . . . against an employer whose employee is injured in the first instance
as the result of a deliberate failure to assure that the physical environment of the work
place is safe.” (Ibid.)

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       Accordingly, to the extent plaintiff “alleged only that plaintiff contracted the
disease because defendant knew and concealed from him that his health was endangered
by asbestos in the work environment, failed to supply adequate protective devices to
avoid disease, and violated governmental regulations relating to dust levels at the plant,
plaintiff’s only remedy would be to prosecute his claim under the workers’ compensation
law. (Johns-Manville, supra, 27 Cal.3d at pp. 474–475.) In contrast, allegations that
defendant aggravated plaintiff’s cancer by fraudulently and intentionally concealing the
asbestos problem when the plaintiff sought help and treatment were of different nature.
That alleged conduct, which prevented treatment and induced further exposure, was
“distinct from the hazards of employment” and was outside the compensation bargain.
(Id. at p. 477.)
       In Fermino, the Supreme Court embraced the reasoning of Johns-Manville. It held
“false imprisonment is outside the scope of the compensation bargain because it
constitutes a crime against the person of the employee.” (Fermino, supra, 7 Cal.4th at
p. 723, fn. 7.) There, the plaintiff had pleaded “she was held against her will by her
employer for an appreciable time under threat of force and threat of arrest for an
apparently ill-founded reason.” (Id. at p. 724.)
       Fermino cautioned, however, that not all “employer crimes” fall outside of the
workers’ compensation regime. “[W]e do not mean to suggest that regulatory crimes
such as violations of health and safety standards or special orders are actions outside the
normal course of employment. On the contrary, the Act includes such regulatory crimes
within its scope. (See §§ 6423, 4553.1; see also Johns–Manville, supra, 27 Cal.3d at
pp. 474–475 [workers’ compensation the only remedy for injuries resulting from willful
failure to comply with government regulations regarding dust levels].) It is an expected
part of the compensation bargain that industrial injury will result from an employer’s
violation of health and safety, environmental and similar regulations. What we hold
today, rather, is that those classes of intentional employer crimes against the employee’s

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person by means of violence and coercion, such as those crimes numerated in part 1, title
8 of the Penal Code, violate the employee’s reasonable expectations and transgress the
limits of the compensation bargain.” (Fermino, supra, 7 Cal.4th at p. 723, fn. 7.)
       In the wake of Johns-Manville and Fermino, the courts have continued to
conclude known workplace safety injuries give rise to workers’ compensation claims, not
private lawsuits, even when those injuries are not directly related to, or a normal part of,
the type of work being performed. (Jensen, supra, 105 Cal.App.4th at pp. 1324–1328
[toxic mold at workplace]; Spratley, supra, 188 Cal.App.3d at pp. 1410–1411 [known
likelihood of violence from neighborhood and failure to change locks on donut shop after
break in]; Gunnell v. Metrocolor Laboratories, Inc. (2001) 92 Cal.App.4th 710, 716–717,
722–723 [an OSHA-listed hazardous substance which worker was intentionally made to
use without proper protection or information] (Gunnell); Davis v. Lockheed Corp. (1993)
13 Cal.App.4th 519 [workplace asbestos that caused cancer].)
       Under the Johns-Manville and Fermino framework, the State’s alleged
misconduct—deliberately allowing patients to smoke in Medina’s presence—while
possibly a regulatory or safety violation, is not criminal behavior involving force or
violence that would permit Medina a litigation remedy. (Johns-Manville, supra,
27 Cal.3d 474; Fermino, supra, 7 Cal.4th at p. 723, fn. 7; Gunnell, supra, 92 Cal.App.4th
at p. 725; see also Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001)
24 Cal.4th 800, 824 [again distinguishing regulatory crimes from crimes of violence and
coercion].) An employer causing exposure to a hazardous chemical substance by
allowing or insisting on the use of the chemical does not act with violent or physical
force. (Gunnell, supra, 92 Cal.App.4th at p. 725 [even if employer’s intentional chemical
exposure “caused a ‘touching,’ ” for criminal battery, employer “did not accomplish that
touching by using ‘physical force’ ”].) Moreover, Medina alleged patients intentionally
touched her with their smoke. While the government allegedly allowed this conduct, it
was not the primary actor, nor did it allegedly induce patients to smoke at the home, and

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can hardly be said to have acted with force or violence. Medina’s exposure to patients’
smoking while working at the veterans home, though harmful and unsafe, was within the
compensation bargain and her claimed injuries therefrom are subject to workers’
compensation exclusivity.
                                      DISPOSITION
      The judgment of dismissal is affirmed.




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                                 _________________________
                                 Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Dondero, J.




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