Filed 7/24/19
           CERTIFIED FOR PUBLICATION
  IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
             SECOND APPELLATE DISTRICT
                    DIVISION FOUR
LEANNE HOLLINGSWORTH et al.,       B297658

       Petitioners,                    (Los Angeles County
                                       Super. Ct. No. BC690999/
    v.                                 ADJ11235905)
THE SUPERIOR COURT OF LOS
ANGELES COUNTY et al.,

        Respondents;

HEAVY TRANSPORT, INC., et al.,

       Real Parties in Interest.



      ORIGINAL PROCEEDINGS in mandate and to review a
decision of the Workers’ Compensation Appeals Board. Mark C.
Kim, Judge. Petition granted.
      Murray & Associates and Murray D. Lawrence; Frances L.
Diaz for Petitioners.
      Anne Schmitz, Allison J. Fairchild and Peter Ray for
Respondent Workers’ Compensation Appeals Board.
      No appearance for Respondent Superior Court of Los
Angeles.
      Gray Duffy and John Joseph Duffy for Real Parties in
Interest.
                          INTRODUCTION
       “Pursuant to constitutional mandate, the Legislature has
vested the Workers’ Compensation Appeals Board (WCAB) with
exclusive jurisdiction over claims for workers’ compensation
benefits. (Cal. Const., art. XIV, § 4, Lab. Code, § 5300.)” (La
Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co.
(1994) 9 Cal.4th 27, 35.) Thus, in an action involving a worker
injured during his or her employment, “the superior court and the
WCAB . . . ‘do not have concurrent jurisdiction over the whole of
the controversy, and one of them will be without jurisdiction to
grant any relief whatsoever, depending upon whether or not the
injuries were . . . covered by the workmen’s compensation laws.’”
(Ibid.) “The only point of concurrent jurisdiction of the two
tribunals is jurisdiction to determine jurisdiction; jurisdiction
once determined is exclusive, not concurrent.” (Ibid.)
       This case presents the question of which tribunal—the
superior court or the WCAB—had jurisdiction to determine which
tribunal had exclusive jurisdiction. The Supreme Court has
made clear that when a civil action and a workers’ compensation
proceeding are concurrently pending, “the tribunal first assuming
jurisdiction” should determine exclusive jurisdiction. (Scott v.
Industrial Acc. Commission (1956) 46 Cal.2d 76, 81 (Scott).)
Here, the superior court exercised jurisdiction first, so the court
had jurisdiction to decide which tribunal has exclusive
jurisdiction. The court erred by staying the civil case to allow the
WCAB to decide that issue, and the WCAB erred by proceeding
without deference to the superior court. We therefore grant
plaintiffs’ petition.




                                 2
        FACTUAL AND PROCEDURAL BACKGROUND
A.     Workers’ compensation exclusivity
       “As a general rule, an employee who sustains an industrial
injury ‘arising out of and in the course of the employment’ is
limited to recovery under the workers’ compensation system.”
(Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995,
1001.) “The underlying premise behind this statutorily created
system of workers’ compensation” is a bargain in 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.’” (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund
(2001) 24 Cal.4th 800, 811, citing Shoemaker v. Myers (1990) 52
Cal.3d 1, 16.) For purposes of this matter, it is not disputed that
the fatal injury at issue occurred in the course of the decedent’s
employment.
       However, “[t]he price that must be paid by each employer
for immunity from tort liability is the purchase of a workers’
compensation policy.” (Hernandez v. Chavez Roofing, Inc. (1991)
235 Cal.App.3d 1092, 1095.) All employers are required to
“secure the payment of compensation by obtaining insurance
from an authorized carrier or by securing a certificate of consent
from the Director of Industrial Relations to become a self-
insurer.” (Minish v. Hanuman Fellowship (2013) 214
Cal.App.4th 437, 461; Lab. Code, § 3700.) “If any employer fails
to secure the payment of compensation, any injured employee or




                                 3
his dependents may bring an action at law against such employer
for damages, as if this division did not apply.” (Lab. Code,
§ 3706.) There is a dispute in this case about whether the
decedent’s employer had workers’ compensation insurance, and
therefore whether the claims are restricted to the workers’
compensation system.
B.    Procedural background
      Kirk Hollingsworth was involved in a fatal accident while
working for defendant Heavy Transport, Inc. in June 2016. His
wife, Leanne Hollingsworth, and son, Mark Hollingsworth
(plaintiffs),1 filed a wrongful death complaint in superior court on
January 22, 2018. Plaintiffs alleged that Heavy Transport did
not have workers’ compensation insurance. They also alleged
that defendant Bragg Investment Company purported to have
merged with Heavy Transport in 1986, but that the two
companies had always maintained separate operations.
Plaintiffs asserted that Bragg “sought to extend Worker’s
Compensation Benefits” to them. Plaintiffs also alleged that
defective Bragg equipment contributed to the incident.
      On March 5, 2018, Bragg and Heavy Transport
(defendants) demurred to plaintiffs’ complaint. They asserted
that Heavy Transport was a fictitious business name for Bragg,
and therefore they were the same entity. Bragg had a workers’
compensation policy that covered the accident, so plaintiffs’
action was barred by workers’ compensation exclusivity.
Defendants sought judicial notice of several documents they


      1 Leanne and Mark Hollingsworth are the petitioners in
this case, and Bragg Investment Company and Heavy Transport,
Inc. are real parties in interest. Herein, we refer to these parties
as “plaintiffs” and “defendants,” respectively.



                                 4
contended supported the demurrer, including documents
regarding ownership of Heavy Transport and insurance
information.
      On March 14, 2018, defendants filed an application for
adjudication of claim with the WCAB. The application listed
Bragg as the employer, included insurance information, and
noted that a lawsuit had been filed.
      The trial court denied defendants’ request for judicial
notice and overruled the demurrer. The court held that plaintiffs
had adequately alleged an exception to workers’ compensation
exclusivity, because they had alleged that Heavy Transport was
the decedent’s employer and it did not have workers’
compensation insurance.
      On January 14, 2019, defendants filed an ex parte
application for an order staying the civil action, Defendants
asserted that in December 2018 the WCAB determined that the
accident had occurred in the course of decedent’s employment.
The WCAB then set a hearing for February 19, 2019 to determine
if any applicable workers’ compensation insurance covered the
incident. Defendants noted that plaintiffs had served deposition
notices and document requests. Defendants asked that the civil
case be stayed until the WCAB determined the insurance issue,
which would then determine which tribunal had exclusive
jurisdiction.
      Plaintiffs opposed defendants’ request for a stay, asserting
that evidence showed that decedent was employed by Heavy
Transport, not Bragg, and there was no indication that Heavy
Transport had workers’ compensation insurance. Plaintiffs
asserted that defendants’ attempt to cast Bragg as the employer
was an effort to “escape responsibility” for the incident.




                                5
       Judge Stephen Goorvitch heard defendants’ ex parte
application and partially granted it. The court noted that there
was a factual dispute about the identity of decedent’s employer
and whether the employer was insured, and “Plaintiffs are
entitled to conduct discovery to attempt to resolve these issues.”
The court granted defendants’ request for a stay of discovery
“except with respect to discovery concerning the identity[2],
employment, and insurance issues in this case.” The court also
found the case to be complex, and transferred it to a new
department.
       On March 11, 2019, plaintiffs filed a request for a
preliminary injunction “to preserve [the trial] court’s
jurisdiction.” Plaintiffs stated that they also had filed a motion
with the WCAB to stay those proceedings, but “[r]ather than
grant the motion, the WCAB set the case for trial before a WCAB
arbitrator on June 6, 2019, on the issue of insurance coverage,
which is the exact issue retained by this Court for decision.”
Plaintiffs cited Scott, supra, 46 Cal.2d 76, which we discuss in
greater detail below. In short, Scott held that where there is a
jurisdictional dispute about whether the superior court or a
workers’ compensation tribunal has exclusive jurisdiction over a
claim, both the superior court and the workers’ compensation
tribunal have concurrent jurisdiction to determine exclusive
jurisdiction, and the tribunal that first exercised jurisdiction
should determine exclusive jurisdiction. (Scott, supra, 46 Cal.2d
at pp. 81, 89.) Plaintiffs requested a preliminary injunction to
“preserve the status quo” until the trial court determined
jurisdiction.

      It appears the court was referencing questions about
      2

whether Bragg and Heavy Transport were a single entity.



                                6
      Defendants opposed the motion, noting that Labor Code
section 5955 explicitly states that a superior court does not have
the authority to “suspend or delay the operation or execution
thereof, or to restrain, enjoin, or interfere with the appeals board
in the performance of its duties.” Defendants also asserted that
plaintiffs had not established a reasonable probability of
prevailing on the merits.
      Judge Mark C. Kim heard the matter and took it under
submission. The court later denied plaintiffs’ motion in a written
ruling, stating that plaintiffs “do not offer any evidence
supporting a probability of prevailing on the merits.” The court
also stated that plaintiffs had not “presented any authority for
the Court to stay a pending WCAB case.” In addition, the court
stated, “Plaintiff [sic] also has not indicated why a WCAB trial on
the issue of insurance is an issue.”
      The court further stated that on its own motion, upcoming
discovery motion hearings were vacated, and all further discovery
was stayed. The court set a status conference regarding the
WCAB proceedings for June 27, 2019.
      Plaintiffs filed a petition for writ of mandate in this court,
and requested that we issue an order staying the June 6
arbitration scheduled in the WCAB proceeding. We issued an
alternative writ and an order staying the WCAB proceedings, and
requested briefing from the parties. Defendants and the WCAB
each filed a return, and plaintiffs filed a reply. The superior
court did not appear. The matter proceeded to oral argument.
                             DISCUSSION
      This case presents a relatively simple question: Which
tribunal—the superior court or the WCAB—should resolve the
questions that will determine whether the superior court or the




                                 7
WCAB has exclusive jurisdiction over plaintiffs’ claims? The
Supreme Court in Scott, supra, 46 Cal.2d 76, decided this issue in
1956, and held that whichever tribunal exercised jurisdiction first
should make the necessary findings to determine which tribunal
has exclusive jurisdiction over the remainder of the matter. We
follow that rule here, and find that the trial court erred by
deferring to the WCAB to determine jurisdiction.
        In Scott, an injured “invitee” filed a lawsuit in superior
court, and the defendant company pled as an affirmative defense
that the Industrial Accident Commission had “exclusive
jurisdiction for the injuries claimed by plaintiff.” (Scott, supra, 46
Cal.2d at p. 79.) Later, the “defendant in the superior court
action and State Compensation Insurance Fund as its workmen’s
compensation insurance carrier filed with the Industrial Accident
Commission an application for adjustment of claim arising out of
the same personal injuries as those alleged by plaintiff in the
superior court action.” (Id. at pp. 79-80.) After additional
proceedings in both tribunals, the case reached the Supreme
Court, which considered “whether the Industrial Accident
Commission may, and should, be required to suspend the exercise
of its jurisdiction in the proceeding before it because of the
pendency of the action in the superior court.” (Id. at p. 81.)
        The court noted that “the two tribunals involved[,] the
superior court on the one hand and the commission on the
other[,] do not have concurrent jurisdiction over the whole of the
controversy, and one of them will be without jurisdiction to grant
any relief whatsoever, depending upon whether or not the
injuries were suffered within the course and scope of an
employment relationship and so covered by the workmen’s
compensation laws. In other words . . . , the only point of




                                  8
concurrent jurisdiction of the two tribunals appears to be
jurisdiction to determine jurisdiction; jurisdiction once
determined will be exclusive, not concurrent.” (Scott, supra, 46
Cal.2d at pp. 82-83.) The court added, “It is elementary that the
type and extent of relief which can be granted and the factors by
which such relief is determined differ materially between the two
tribunals; the superior court cannot award workmen’s
compensation benefits, and the commission cannot award
damages for injuries.” (Id. at p. 83.)
       The Scott court held that “the general rule long recognized
as governing tribunals whose jurisdiction is generally concurrent
should be applied here where jurisdiction to determine
jurisdiction is concurrent.” (Scott, supra, 46 Cal.2d at p. 89.)
Under this rule, “When two or more tribunals in this state have
concurrent jurisdiction, the tribunal first assuming jurisdiction
retains it to the exclusion of all other tribunals in which the
action might have been initiated. Thereafter another tribunal,
although it might originally have taken jurisdiction, may be
restrained by prohibition if it attempts to proceed.” (Scott, supra,
46 Cal.2d at p. 81.) The court stated that its intent was to
“declare a simple workable rule upon the law as it exists.” (Id. at
p. 89.)
       Later the same year, the Supreme Court followed Scott in
Taylor v. Superior Court (1956) 47 Cal.2d 148. The court
summarized the holding of Scott: “The Scott case holds that
where two tribunals in this state have concurrent jurisdiction to
determine jurisdiction, the question of which shall have exclusive
jurisdiction shall be determined by the tribunal whose
jurisdiction was first invoked, and proceedings in the tribunal
whose jurisdiction was subsequently sought will, if not




                                 9
voluntarily stayed, be halted by prohibition until final
determination of the jurisdictional question by the tribunal
where jurisdiction was first laid.” (Taylor, supra, 47 Cal.2d at p.
149.) The court noted that the employee “first invoked the
jurisdiction of the commission and thereafter sought that of the
superior court to adjudicate his claims as to the same injury.”
(Id. at p. 151.) The court continued, “Therefore, under [Scott], the
superior court should not try the case until the commission has
made a final determination of the issue as to whether it or the
court has jurisdiction to proceed; i.e., as to whether [the
employee’s] alleged injuries are covered by the workmen’s
compensation laws so far as concerns his claims against
petitioner. Meanwhile, the commission should proceed to a
determination of such issue. Its adjudication, when final, will be
conclusive on all parties.” (Ibid.)
       Here, the superior court exercised jurisdiction first.
Plaintiffs’ complaint was filed on January 22, 2018, and
defendants’ demurrer was filed on March 5, 2018. Defendants’
WCAB application was filed on March 14, 2018. Under Scott, the
appropriate tribunal to determine the question of exclusive
jurisdiction is the superior court, because that tribunal exercised
jurisdiction first.
       The WCAB acknowledges the holding of Scott, but argues
that no error occurred. It asserts, “Even if it is assumed
arguendo that the [superior court] holds precedential jurisdiction
to determine jurisdiction pursuant to Scott, the [court] deferred
jurisdiction to the WCAB on the issue of insurance coverage.”
The WCAB cites Sea World Corp. v. Superior Court (1973) 34
Cal.App.3d 494 (Sea World), in which the plaintiff “suffered
physical injury of undetermined character and extent as the




                                10
result of having bestridden a killer-whale owned by Sea World,
an action she took at the request of Sea World, made through her
supervisor at a time when she was employed as a secretary by
Sea World.” (Id. at p. 496.) The plaintiff alleged in a civil action
that she was not acting in the scope of her employment at the
time. (Id. at p. 497.) A WCAB proceeding was also initiated the
same day, and Sea World contended that “WCAB has a priority of
right to determine the threshold question of subject matter
jurisdiction because it first obtained jurisdiction over the parties
as a result of the service effected four days before the superior
court obtained jurisdiction over all the parties.” (Id. at p. 497.)
       It appears that the parties in Sea World did not
immediately address the threshold issue of exclusive jurisdiction.
Instead, Sea World moved for summary judgment in the superior
court, thus “the jurisdiction of the superior court was invoked
specifically by Sea World to make the threshold determination
based upon what was originally claimed to be a showing of
undisputed facts.” (Sea World, supra, 34 Cal.App.3d at p. 502.)
Sea World’s later attempt to question the superior court’s
jurisdiction contradicted its earlier motion for summary
judgment: “Sea World’s motion was not to stay proceedings in
the superior court because of the claimed prior right of WCAB,
but was for summary judgment, calling for a determination of the
issue which Sea World now says the superior court might not
determine because WCAB had the prior right to do so.” (Id. at p.
503.) The Court of Appeal held that as a result, “Sea World has
waived, or is estopped to urge, objection to the jurisdiction which
it has invited the superior court to exercise, which the superior
court has exercised, which exercise has been followed by a




                                11
suspension of proceedings before WCAB amounting to a waiver
by that tribunal of its priority of right.” (Id. at p. 503.)
       The WCAB cites the statement in Sea World that
“[p]recedential jurisdiction”—concurrent jurisdiction to determine
exclusive jurisdiction—“may be the subject of waiver by the court
having it.” (Sea World, supra, 34 Cal.App.3d at p. 501.) Indeed,
in Sea World the court cited Scott and several similar cases, and
noted that “the court where jurisdiction first attaches may yield
it, and that it is the right of the court to insist upon or waive its
jurisdiction.” (Sea World, supra, 34 Cal.App.3d at p. 499.) Here,
however, the evidence does not support a finding of waiver or
estoppel, and neither the WCAB or defendants assert facts to
support such a finding. To the contrary, from the initiation of the
action, plaintiffs and defendants consistently asserted their
respective positions regarding jurisdiction, unlike the employer in
Sea World. Thus, waiver or estoppel does not compel us to depart
from the rule in Scott.
       Moreover, the record does not support the WCAB’s
characterization that the superior court’s deference of jurisdiction
was intentional rather than erroneous. The court stated that
plaintiffs had not “indicated why a WCAB trial on the issue of
insurance is an issue,” suggesting that the court did not recognize
that the insurance question was central to the issue of exclusive
jurisdiction. Moreover, the court focused on the traditional
standards for a preliminary injunction3 and court’s lack of



      3 “[A]s a general matter, the question whether a
preliminary injunction should be granted involves two
interrelated factors: (1) the likelihood that the plaintiff will
prevail on the merits, and (2) the relative balance of harms that



                                 12
authority to impose a stay under Labor Code section 5955. Thus,
the record does not support a finding that the trial court
intentionally “waived” jurisdiction.
       The WCAB and defendants also assert that the rule in
Scott may be disregarded so as long as proceedings in one
tribunal are stayed, so there is no risk of inconsistent rulings.
Defendants assert, “While Scott does address similar issues
associated with concurrent jurisdiction, the reasoning behind the
decision does not apply in this particular case. The Court in Scott
was primarily concerned with the risks of associated with
multiple tribunals potentially issuing inconsistent rulings. . . .
That is not an issue here since the Superior Court imposed its
own stay precluding the possibility of multiple rulings.”
Defendants argue that the problem in Scott was that “[a]llowing
both tribunals to continue simultaneously would create the
possibility for multiple or inconsistent rulings.” Here, the
superior court “eliminated any risk of multiple or inconsistent
rulings” by imposing a stay, and therefore there is no need to
follow the rule articulated in Scott. Similarly, the WCAB asserts
that “there is . . . no danger of multiple or inconsistent rulings in
this case” because the superior court “stay[ed] proceedings in the
civil case pending the outcome of the insurance coverage
arbitration.”
       We decline to disregard clear Supreme Court precedent
simply because the trial court avoided the potential for
inconsistent rulings. Scott provided a “simple workable rule” in
the situation presented here. The “tribunal first assuming
jurisdiction retains it” to determine the question of exclusive

is likely to result from the granting or denial of interim injunctive
relief.” (White v. Davis (2003) 30 Cal.4th 528, 554.)



                                 13
jurisdiction. The first tribunal to assume jurisdiction over the
issues in this case was the superior court. Under Scott, both the
superior court and the WCAB erred in their orders allowing the
questions central to exclusive jurisdiction to be determined by the
WCAB instead of the superior court.4
                           DISPOSITION
       Let a writ of mandate issue directing the superior court to
vacate its April 16, 2019 order staying proceedings in this action,
and directing the WCAB to vacate its hearing to determine
defendants’ insurance status (originally set for June 6, 2019). All
proceedings in the WCAB shall remain stayed, and the trial court
shall conduct further proceedings limited to determining which
tribunal has exclusive jurisdiction over plaintiffs’ claims.
Plaintiffs are entitled to their costs in this proceeding.
                CERTIFIED FOR PUBLICATION



                           COLLINS, J.

We concur:


MANELLA, P. J.                                  WILLHITE, J.




      4 The parties’ filings in this court include lengthy
arguments about the underlying issues to be determined,
including whether Bragg and Heavy Transport are the same
entity, whether Bragg’s workers’ compensation insurance covered
the incident, and whether plaintiffs’ claims are barred by the
unclean hands doctrine. These issues are not relevant to the
questions before us, and therefore we do not address them.



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