Filed 10/7/13 CLP Resources v. WCAB (Mora) 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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


CLP RESOURCES, INC.,
         Petitioner,
                                                                     A138439
v.
WORKERS‘ COMPENSATION                                                (WCAB Case No. ADJ6781238)
APPEALS BOARD and JORGE MORA,
         Respondents.


         Respondent Jorge Mora was injured in a workplace accident while operating a
patently unsafe table saw. He had been dispensed to the jobsite by his temporary
placement agency employer, petitioner CLP Resources, Inc. (CLP), and was working
under the direction of John Lieb. Following the accident, Mora filed an application for
an award under Labor Code section 4553, which grants additional benefits to a worker
who is injured by the ―serious and willful misconduct‖ of his employer. The workers‘
compensation administrative law judge (WCJ) found CLP committed such misconduct
when it failed to inspect Lieb‘s jobsite and detect the dangerous table saw, and
respondent Workers‘ Compensation Appeals Board (Appeals Board) affirmed the
decision on this ground. Finding no substantial evidence of knowingly wrongful conduct
on the part of CLP, we annul the award.
                                               I. BACKGROUND
         Mora filed an application for workers‘ compensation benefits due to the serious
and willful misconduct of CLP and Lieb on December 8, 2009 (application). The
application alleged he was working as a carpenter for both employers, under the
supervision of Lieb, when Lieb directed him to use a table saw unsecured to a base and
lacking a protective guard. Mora sustained serious cuts to his left hand. Mora‘s first
theory alleged the injury was due to the willful failure of both employers to provide a safe
place of work. His second theory alleged Lieb had knowingly violated a safety order in
directing this work. Although joined in the application, Lieb was not properly served and
did not participate in the proceeding.
       At trial on the application, Mora testified he had 13 to 15 years‘ work experience
as a carpenter.1 He began work for CLP, a temporary placement agency, in April 2008,
and had been assigned to several different jobsites prior to his accident. At the jobsite on
which he was injured, Mora was supervised by Lieb, who provided his tools and told him
what to do. Mora was injured on December 9, 2008, while cutting wood on a table saw
provided by Lieb that was both unsteady and lacked a guard over the blade. He stepped
on debris, lost his balance, and placed his hand on the unguarded table saw blade.
       CLP had instructed Mora to contact Marlo Vasquez, a CLP employee, if ―there
was a problem, or if anything was not right,‖ such as ―dangerous conditions.‖ After his
second week of working at the Lieb jobsite, Mora ―saw things that were not right,‖ noting
in particular an open trench and a ladder not attached to the frame. In the third week,
Mora went to CLP‘s office to discuss with Vasquez his concerns about safety at the Lieb
jobsite. On direct examination, Mora testified he told Vasquez ―there were a lot of things
that were not right on the job site where he was working‖ and Vasquez ―should check it
out.‖ As Mora was about to list the specific safety problems, however, Vasquez told him
―there was no work, and he should just be careful.‖ After that, Vasquez turned back to
his computer and gave Mora no opportunity to provide more information. No one from
CLP came to inspect the site.



       1
        This account is taken from the ―Minutes of Hearing/Summary of Evidence‖
prepared in connection with the Labor Code section 4553 hearing. The appellate record
does not appear to contain a transcript of the hearing.


                                             2
       On cross-examination, Mora acknowledged he had testified at his deposition he
had not told anyone at CLP that there were dangerous conditions at the Lieb jobsite.2 In
explanation, Mora said he had tried to tell Vasquez that day, but he was ignored. Mora
acknowledged he had not told anyone at CLP specifically about the unsecured,
unguarded table saw, although he said it was one of the safety problems he intended to
discuss with Vasquez.
       The only CLP employee to testify was a company safety official. He said CLP
inspects the work sites of the contractors to whom its employees are assigned and had
inspected the Lieb jobsite in October 2008, about two months prior to Mora‘s injury. In
the inspection, CLP had found no safety violations. If the unguarded table saw was
present, it was not located by the inspector, although it had been ―mentioned by the
individuals who previously worked on the job site.‖ The employee speculated the
inspector might have missed the table saw because Lieb removed his tools from the site
each day to prevent theft.
       Following the accident, the California Occupational Safety and Health
Administration (Cal-OSHA) had investigated. CLP was cited for having an inadequate
injury and illness prevention program and for the hazardous state of the table saw. Cal-
OSHA ultimately reduced the proposed penalty against CLP, possibly after concluding
that CLP was unaware of the hazardous nature of the saw.
       The WCJ found that Mora‘s injury was proximately caused by the willful and
serious misconduct of CLP and awarded appropriate damages under Labor Code
section 4553. In explaining her decision, the WCJ found the use of an unguarded table
saw to be ―an inherently dangerous proposition‖ likely to cause serious injury and noted
Cal-OSHA had cited both CLP and Lieb for use of the unsafe saw. Although she found
―no clear evidence that management representatives at CLP . . . knowingly violated the

       2
        A transcript of Mora‘s deposition was marked for identification and used at the
hearing. When asked at the deposition whether he ―ever inform[ed] anyone at CLP
Resources that you personally felt something was dangerous about your work‖ for Lieb,
Mora answered, ―No.‖


                                            3
safety order‖ and ―no[] evidence that a CLP managing representative ‗turned his mind‘ to
the dangerous situation here,‖ she noted Lieb was aware of the problem. The WCJ, who
viewed the testimony regarding CLP‘s inspection of the jobsite to be of ―questionable‖
reliability, concluded CLP ―failed to adequately inspect the jobsite.‖
       CLP petitioned for reconsideration of the order, arguing there was no evidence any
of its supervisory or managing agents had engaged in willful or serious misconduct, as
required by Labor Code section 4553.
       In her report and recommendation to the Appeals Board, rendered in response to
CLP‘s petition, the WCJ again acknowledged ―there is no clear evidence that any named
management representative‖ of CLP ―knowingly violated a safety order‖ or ― ‗turned his
mind‘ to the dangerous situation of an unguarded table saw.‖ She concluded, however,
that CLP ―failed in its duty to adequately inspect the jobsite. It is so obvious that this
unguarded saw created a probability of serious injury that failure to inspect and correct
the condition is believed to constitute a reckless disregard for the probable consequences,
i.e. the serious hand injury sustained by the injured worker.‖ The Appeals Board
affirmed the decision for the reasons stated by the WCJ in her report and
recommendation.
       CLP applied to this court for a writ of review of the Appeals Board‘s decision.
(Lab. Code, § 5950.)
                                     II. DISCUSSION
       CLP contends there was no substantial evidence that its supervisory or managing
personnel committed willful and serious misconduct in connection with Mora‘s injury.
In his answer to the petition, Mora raises no specific legal arguments, instead purporting
to adopt the WCJ‘s decision and rely on the rationale articulated in her decision.
       ― ‗Our review of an award by the Workers‘ Compensation Appeals Board is
confined to the determination whether, under applicable principles of law, the award is
supported by substantial evidence. [Citations.] . . . [I]f the board‘s findings ― ‗are
supported by inferences which may fairly be drawn from evidence even though the
evidence is susceptible of opposing inferences, the reviewing court will not disturb the


                                              4
award.‘ ‖ ‘ ‖ (Western Electric Co. v. Workers’ Comp. Appeals Bd. (1979)
99 Cal.App.3d 629, 643–644.)
       Under Labor Code section 4553, the benefits awarded to an employee may be
increased by one-half if the employee has been injured ―by reason of the serious and
willful misconduct‖ of the worker‘s employer. If the employer is a corporation, the
misconduct must be ―on the part of an executive, managing officer, or general
superintendent‖ of the corporation. (Ibid.) Unlike normal workers‘ compensation
benefits, which automatically follow from an injury, ―the additional award based on
serious and wilful misconduct of the employer is . . . actually of the nature of a penalty,
which is imposed . . . only upon proof of the aggravated criminal or quasi-criminal
behavior which constitutes serious and wilful misconduct, and against which the
employer cannot purchase insurance.‖ (Lambreton v. Industrial Acc. Com. (1956)
46 Cal.2d 498, 504, fn. omitted.)
       In Bigge Crane & Rigging Co. v. Workers’ Comp. Appeals Bd. (2010)
188 Cal.App.4th 1330 (Bigge Crane), this court reviewed the law governing serious and
willful misconduct under Labor Code section 4553, relying largely on the landmark
decision Mercer-Fraser Co. v. Industrial Acc. Com. (1953) 40 Cal.2d 102 (Mercer-
Fraser), disapproved on other grounds in Le Vesque v. Workers’ Comp. Appeals Bd.
(1970) 1 Cal.3d 627, 636–637 and footnote 14: ― ‗ ―Wilful misconduct . . . necessarily
involves deliberate, intentional, or wanton conduct in doing or omitting to perform acts,
with knowledge or appreciation of the fact, on the part of the culpable person, that
danger is likely to result therefrom.‖ ‘ [Citation.] . . . [¶] . . . ‗ ―The term ‗serious and
wilful misconduct‘ is described . . . as being something ‗much more than mere
negligence, or even gross or culpable negligence‘ and as involving ‗conduct of a quasi
criminal nature, the intentional doing of something either with the knowledge that it is
likely to result in serious injury, or with a wanton and reckless disregard of its possible
consequences[.]‘ . . . The mere failure to perform a statutory duty is not, alone, wilful
misconduct. It amounts only to simple negligence. To constitute ‗wilful misconduct‘
there must be actual knowledge, or that which in the law is esteemed to be the equivalent


                                                5
of actual knowledge, of the peril to be apprehended from the failure to act, coupled with a
conscious failure to act to the end of averting injury. . . .‖ ‘ [Citation.] [¶] ‗ ―. . . Wilful
misconduct implies at least the intentional doing of something either with a knowledge
that serious injury is a probable (as distinguished from a possible) result, or the
intentional doing of an act with a wanton and reckless disregard of its possible result.‖ ‘ ‖
(Bigge Crane, at pp. 1349–1350.)
       Under Mercer-Fraser and subsequent decisions, the inadequate inspection cited by
the WCJ and the Appeals Board as misconduct could not have constituted the type of
intentional conduct required for liability under Labor Code section 4553, unless a
managing agent at CLP was aware of the actual risks presented by the inadequate
inspection. As the Supreme Court held in a case decided with Mercer-Fraser, ―[a]
‗reckless disregard‘ of the safety of employees . . . . must be an affirmative and knowing
disregard of the consequences. Likewise, a finding that the ‗employer . . . should have
known had he put his mind to it‘ does not constitute a finding that the employer had that
degree of knowledge of the consequences of his act that would make his conduct wilful.
The standard requires an act or omission to which the employer has ‗put his mind.‘ ‖
(Hawaiian Pineapple Co. v. Ind. Acc. Com. (1953) 40 Cal.2d 656, 663.) Similarly, ―a
finding that [an employer] is guilty of wilful misconduct [must] be based on evidence that
he deliberately failed to act for the safety of his employees, knowing that his failure
would probably result in injury to them.‖ (Rogers Materials Co. v. Ind. Acc. Com. (1965)
63 Cal.2d 717, 721–722, disapproved on other grounds in Le Vesque v. Workers’ Comp.
Appeals Bd., supra, 1 Cal.3d 627, 636–637 & fn. 12; see also Johns-Manville Sales Corp.
v. Workers’ Comp. Appeals Bd. (1979) 96 Cal.App.3d 923, 933 [―an employer guilty of
serious and willful misconduct must know of the dangerous condition, know that the
probable consequences of its continuance will involve serious injury to an employee, and
deliberately fail to take corrective action‖]; Abron v. Workers’ Comp. Appeals Bd. (1973)
34 Cal.App.3d 232, 238 [―An employer must know the probable consequences of his
failure to provide more adequate safety devices or a safer place to work. He must have
put his mind to the existence of a danger to an employee and have failed to take


                                                6
precautions to avert that danger.‖].) The WCJ found, in effect, that Mora failed to prove
this element of serious and willful misconduct when she noted there was ―no[] evidence
that a CLP managing representative ‗turned his mind‘ to the dangerous situation here.‖
In the absence of such evidence, the Appeals Board‘s finding of serious and willful
misconduct cannot be upheld. 3
       Searching the record, we find two potential means for attributing knowledge of the
dangerous conditions to CLP, but, in the end, neither of them provides substantial
evidence to support such a finding. First, Mora testified he told Vasquez ―there were a
lot of things that were not right on the job site where he was working.‖ Even if we accept
this testimony and disregard Mora‘s contrary deposition testimony that he had never told
anyone at CLP about the dangerous conditions, his statement is insufficiently detailed to
demonstrate CLP had knowledge of particular circumstances likely to cause serious
injury. As Mora testified, Vasquez gave him the brush-off before Mora had an
opportunity to read off the list of examples, thereby giving substance to his complaint.
At most, Vasquez knew Mora was concerned there were unsafe conditions at the site.
This is insufficient to attribute to Vasquez actual knowledge that serious injury was a
probable result of his failure to follow up.
       Second, the CLP safety employee testified, according to the summary of evidence,
―[t]o his knowledge, the unguarded table saw was not observed by those who did the
inspection prior to [Mora‘s] injury. It was mentioned by the individuals who previously
worked on the job site, but Mr. Lieb would remove his tools on a daily basis, due to high
crime in the neighborhood.‖ (Italics added.) This shred of testimony suggests CLP
might have known, at a minimum, that Lieb was using the table saw on the jobsite. If
other employees had reported to CLP the dangerous conditions of the table saw, it might

       3
         The WCJ‘s conclusion that ―It is so obvious that this unguarded saw created a
probability of serious injury that failure to inspect and correct the condition is believed to
constitute a reckless disregard for the probable consequences,‖ puts the cart before the
horse. CLP could not have known its failure to inspect created a risk of serious injury
unless it knew there was an extraordinarily dangerous condition on the jobsite. In the
absence of such knowledge, CLP‘s failure was merely negligence, not recklessness.


                                               7
have created a factual basis for a finding of serious and willful misconduct in the failure
to follow up. It is not clear from the summary of evidence, however, who observed the
table saw, when they ―mentioned‖ it, who they told at CLP about the saw, and what they
said about it. Mora‘s attorney appears not to have pursued the issue in cross-
examination, and the record contains no further information about CLP‘s knowledge of
the table saw.4 As a result, this, too, is insufficient to permit a finding of actual
knowledge that serious injury was probable. Because there was no substantial evidence
that CLP performed an inadequate inspection while knowing of the specific risk presented
by the failure to inspect, its failure was at most negligence and cannot support a finding
of serious and willful misconduct.
       Even if there was some evidence of a conscious disregard for safety, the claim of
misconduct would fail because Mora presented no evidence of any act or omission by ―an
executive, managing officer, or general superintendent‖ of CLP, a prerequisite to the
imposition of misconduct liability on a corporation under Labor Code section 4553. As
we noted in Bigge Crane, ― ‗ ―[a]n executive or managing officer‖ is ―a person in the
corporation‘s employ, either elected or appointed, who is invested with the general
conduct and control at a particular place of the business of a corporation.‖ (Italics
added.) [Citation.] A ―managing agent or a managing representative is one who has
general discretionary powers of direction and control—one who may direct, control,
conduct or carry on his employer‘s business or any part or branch thereof.‖ (Italics
added.) [Citation.]‘ [Citation.] ‗ ―While the terms of the . . . [statute] have been
broadened with each amendment, the [L]egislature has refrained from making the
employer liable for the misconduct of every person exercising authority on the
employer‘s behalf. On the contrary, the class of persons whose misconduct will result in
the imposition of such liability still remains limited.‖ ‘ ‖ (Bigge Crane, supra,
188 Cal.App.4th at pp. 1342–1343.)


       4
        It is possible there was no follow up because the ―mentions‖ came during the
investigation of Mora‘s accident, rather than prior to the accident.


                                               8
       Testimony at the hearing mentioned only two CLP employees by name, Vasquez
and Marcus Peterson. Peterson interviewed Mora for the job and introduced Mora to
Vasquez. Vasquez was said to have been designated as Mora‘s contact person at CLP
only because Vasquez spoke Spanish, not because he exercised any particular functions
at CLP. There is no further information about either person‘s title, job duties, or
responsibilities and prerogatives. In particular, there is no information about whether
either exercised ―general conduct and control‖ or significant discretionary authority at the
local CLP office. While the testimony did mention that a person or persons from CLP
inspected Lieb‘s jobsite in October 2008, no other information was given about these
people. In the absence of such information, the WCJ had no basis for finding misconduct
on the part of an appropriate corporate actor, as required by Labor Code section 4553.5
       In her decision, the WCJ referred to, but did not rely on, an argument by Mora that
CLP would be jointly and severally liable for any award based on misconduct by Lieb
because it was a general employer of Mora. Because, as discussed below, joint and
several liability does not adhere until a general employer has been found liable, the
argument provides no basis for upholding the award against CLP.
       When one employer ―lends‖ an employee to another employer, the two employers
become, respectively, a general and special employer. (Marsh v. Tilley Steel Co. (1980)
26 Cal.3d 486, 492.) In tort law, the designations are significant because, if the
employers exercise joint control over the employee‘s activities, they are jointly and
severally liable to third parties under the doctrine of respondeat superior for negligence of
the employee. (Societa per Anzioni de Navigazione Italia v. City of Los Angeles (1982)
31 Cal.3d 446, 460.) When two or more defendants are held to be jointly and severally



       5
         The WCJ also discussed the violation of a safety order. Labor Code
section 4553.1 establishes particular requirements when such a violation is alleged to be
the basis for a finding of serious and willful misconduct, but it does not alter the
standards of section 4553. (Grason Elec. Co. v. Industrial Acc. Com. (1965)
238 Cal.App.2d 46, 51.) Accordingly, any such violation would not present an
independent basis for finding liability against CLP here.


                                             9
liable for a judgment, each is liable to the plaintiff for the entire amount of the judgment.
(Dauenhauer v. Sullivan (1963) 215 Cal.App.2d 231, 236.)
       When the two employers exercise joint control over an employee, both are also
jointly and severally liable to the employee under workers‘ compensation law for any
award of workers‘ compensation benefits. (County of Los Angeles v. Workers’ Comp.
Appeals Bd. (1981) 30 Cal.3d 391, 405.) Under the circumstances presented here, CLP
and Lieb would be deemed to be exercising joint control, creating joint and several
liability for ordinary workers‘ compensation benefits. (Id. at p. 406.)
       Neither Mora nor the WCJ cited case law finding joint and several liability for
awards under Labor Code section 4553 arising solely from an employer‘s status as a
general employer, and we find no legal basis for imposing such liability. The principle of
joint and several liability is not itself a means for establishing liability; rather, it is a
means for apportioning responsibility for payment of a judgment once liability for the
judgment has been established. Before joint and several liability arises, liability for the
judgment must first be proven individually against each defendant. (Orser v. George
(1967) 252 Cal.App.2d 660, 667.) The liability of general and special employers for an
award of ordinary workers‘ compensation benefits arises merely from their status as
employers. Joint and several liability for the award follows from that common liability to
the employee. In contrast, liability for an award under Labor Code section 4553 arises
only if the employee has proven his or her injury was caused by serious and willful
misconduct. Under the statute, such misconduct must be proven individually with respect
to each employer; there is nothing in section 4553 or workers‘ compensation law more
generally to suggest a general employer is vicariously liable for the misconduct of a
special employer. It is only after individual section 4553 liability has been established
that the possibility of joint and several liability arises. Because Mora failed to
demonstrate section 4553 liability against CLP, the possibility of joint and several
liability for an award against Lieb never arose.
                                      III. DISPOSITION
       The order awarding additional compensation is annulled.


                                                10
                                                 _________________________
                                                 Margulies, Acting P.J.


We concur:


_________________________
Banke, J.


_________________________
Sepulveda, J.*




       *
        Retired Associate Justice of the Court of Appeal, First Appellate District
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.


                                            11
