Filed 3/19/14 Lopez v. Delgadillo CA1/5


             NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE



SACRAMENTO LOPEZ,
          Plaintiff and Respondent,                                      A137463
                                                                         A138246
                   v.
ELENA DELGADILLO et al.,                                                 (Alameda County
                                                                         Super. Ct. No. HG09473452)
          Defendants and Appellants.

          Appellants Elena Delgadillo and Jesus Cortez (appellants) appeal an award of
unpaid wages, damages, and attorney fees to their former employee, respondent
Sacramento Lopez. They contend (1) Lopez’s exclusive remedy for a workplace injury
was workers’ compensation; (2) the trial court improperly excluded evidence of Lopez’s
drug and alcohol use at the time of the workplace injury; (3) Lopez’s immigration status
precludes an award for backpay; and (4) attorney fees should not have been awarded. We
affirm.
                                                  BACKGROUND
          Lopez was injured while working for appellants. He sued, seeking damages for
the injury and also alleging violations of various wage and hour laws. In response to an
interrogatory request propounded during discovery, appellants admitted they did not have
workers’ compensation insurance covering Lopez’s injury.



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       Appellants later reversed course and contended they did have insurance, relying on
a workers’ compensation policy purchased for a different employment site, which they
argued also covered the employment site where Lopez was injured. Their insurance
company denied coverage and appellants filed a separate lawsuit against the insurance
company and others (the insurance action), naming Lopez as an indispensable party.1
Appellants voluntarily dismissed with prejudice the insurance action prior to trial in
Lopez’s lawsuit.
       After a jury verdict in Lopez’s favor, the trial court entered judgment awarding
Lopez unpaid wages and penalties for the wage and hour violations, and damages
(medical expenses and noneconomic losses) for the workplace injury. The trial court
subsequently awarded Lopez attorney fees, including fees for work performed in the
insurance action “because that action was closely related with this action and useful to its
resolution.”
                                      DISCUSSION
I. Applicability of Workers’ Compensation Law
       Prior to trial, appellants filed a motion in limine to dismiss Lopez’s complaint,
arguing workers’ compensation was the exclusive remedy for Lopez’s injury.2 The trial
court denied the motion on three grounds: appellants waived this defense by failing to
plead it as an affirmative defense; appellants admitted they lacked applicable workers’
compensation insurance in an interrogatory response; and the workers’ compensation
policy relied upon by appellants could not reasonably be construed to apply to Lopez’s
injury. Appellants challenge this ruling on appeal, but we find no error.


1   We grant appellants’ July 9, 2013, unopposed request that we take judicial notice of
the following documents filed in the insurance action: First Amended Complaint, Lopez’s
Answer to First Amended Complaint, Order regarding motion for summary judgment,
and Request for Dismissal. In granting this request, we take judicial notice only of the
fact these documents were filed, but not of the truth of any statements contained in them.
(Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1396.)
2   An additional argument relating to Lopez’s wage and hour violations is not relevant to
this appeal.
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       “There are several essential conditions to an employer’s liability to an employee
under the workers’ compensation law. [Citation.] Where those ‘conditions of
compensation’ concur, the right to recover such compensation is generally the
employee’s exclusive remedy against his or her employer. [Citation.]” (Gibbs v.
American Airlines, Inc. (1999) 74 Cal.App.4th 1, 9-10, fn. omitted (Gibbs).) However, if
an employer has failed to obtain workers’ compensation insurance or permission from the
state to self-insure, the employee may bring a civil action for damages. (Labor Code,
§§ 3700, 3706.)3
       “It has long been established in this jurisdiction that, generally speaking, a
defendant in a civil action who claims to be one of that class of persons protected from an
action at law by the provisions of the Workers’ Compensation Act bears the burden of
pleading and proving, as an affirmative defense to the action, the existence of the
conditions of compensation set forth in the statute which are necessary to its application.
[Citations.]” (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96-97, fn. omitted.)
However, “where the complaint affirmatively alleges facts indicating coverage by the
act[,] unless the complaint goes on to state additional facts which would negative the
application of the act, no civil action will lie and the complaint is subject to a general
demurrer.” (Id. at p. 97.) Accordingly, “[a] defendant need not plead and prove that it
has purchased workers’ compensation insurance where the plaintiff alleges facts that
otherwise bring the case within the exclusive province of workers’ compensation law,
and no facts presented in the pleadings or at trial negate the workers’ compensation
law’s application or the employer’s insurance coverage. [Citations.]” (Gibbs, supra, 74
Cal.App.4th at p. 14, italics added.)
       Lopez’s complaint alleged an employment relationship and a workplace injury but
did not allege appellants lacked workers’ compensation insurance, and thus appellants
were not required to plead workers’ compensation exclusivity as an affirmative defense.
However, Lopez subsequently presented evidence of facts negating the workers’


3   All undesignated section references are to the Labor Code.
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compensation law’s application (Gibbs, supra, 74 Cal.App.4th at p. 14), namely,
appellants’ admission in an interrogatory response that they lacked insurance coverage
(Code Civ. Proc., § 2030.410; Evid. Code, § 1220). While admissions in interrogatory
responses may be rebutted by credible contrary evidence (Mason v. Marriage & Family
Center (1991) 228 Cal.App.3d 537, 545-546), appellants provided no such evidence here,
as the trial court concluded the insurance policy did not apply to Lopez’s injury.
       In their briefs on appeal, appellants do not analyze the insurance contract itself to
contend it does apply to Lopez’s injury. They have therefore waived any such argument.
(Behr v. Redmond (2011) 193 Cal.App.4th 517, 538.) Instead, appellants’ only response
to the trial court’s construction of the insurance policy is to rely on an order issued in the
insurance action. This order denied a summary judgment motion filed by the insurance
company, finding the applicability of the insurance policy to Lopez’s injury was a
question of fact. However, this was an interim order in a separate case that appellants
voluntarily dismissed. Appellants do not contend the order has any res judicata or
collateral estoppel effect, nor do they cite any authority to support such a contention. The
mere existence of the order does not establish error in the trial court’s ruling.
II. Evidence of Drug and Alcohol Use
       Appellants sought, over Lopez’s objection, to present evidence at trial of Lopez’s
drug and alcohol use at the time of his injury. At a hearing held outside the presence of
the jury, appellants’ expert witness testified medical records showed that within a few
hours of the accident, Lopez had an extremely low blood alcohol level — well below the
legal limit for driving under the influence — and had taken cocaine sometime within one
to two days prior. The trial court excluded the evidence as more prejudicial than
probative under Evidence Code section 352, and refused appellants’ request for a jury
instruction regarding intoxication.
       In lawsuits seeking damages for workplace injuries when the employer failed to
obtain workers’ compensation insurance (§ 3706), “it is presumed that the injury to the
employee was a direct result and grew out of the negligence of the employer, and the
burden of proof is upon the employer, to rebut the presumption of negligence. It is not a

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defense to the employer that the employee was guilty of contributory negligence”
(§ 3708). After the California Supreme Court replaced contributory negligence with
comparative negligence, this statute was construed to preclude a defense of the
employee’s comparative negligence. (Logan v. Masters (1981) 120 Cal.App.3d 145,
147-148 [“[c]omparative negligence, like contributory negligence, is unavailable to the
employer,” otherwise “uninsured employers would have a potential advantage over
insured employers, a result clearly contrary to the Legislature’s intent”].)
       Accordingly, any evidence of Lopez’s drug and alcohol use to show his
negligence was properly excluded. To the extent any such evidence would be relevant
for any other reason, the trial court’s finding the proposed evidence was more prejudicial
than probative under Evidence Code section 352 is reviewed under an abuse of discretion
standard. (People v. Harris (2013) 57 Cal.4th 804, 845.) Given the very low levels of
cocaine and alcohol in Lopez’s system, we find no such abuse. Further, as no evidence
of intoxication was presented to the jury, the trial court’s refusal to instruct on
intoxication was proper.
III. Backpay Award
       Appellants contend Lopez is an undocumented worker and, as such, cannot be
awarded backpay. Appellants rely on Hoffman Plastic Compounds, Inc. v. NLRB (2002)
535 U.S. 137 (Hoffman Plastic), which reviewed a National Labor Relations Board
(NLRB) decision awarding backpay to an undocumented worker as a remedy for an
employer’s violation of the National Labor Relations Act (29 U.S.C.A. § 151 et seq.).
“ ‘Back pay’ ‘seeks to make an employee whole by awarding wages that would have
been earned but for an unlawful firing.’ [Citation.]” (Reyes v. Van Elk, Ltd. (2007) 148
Cal.App.4th 604, 613, fn. 7 (Reyes).) Hoffman Plastic held the NLRB lacked the
discretion to make such an award because it “runs counter to policies underlying [the
federal Immigration Reform and Control Act of 1986],” to discourage the employment of
undocumented workers. (Hoffman Plastic, at pp. 148-149.)
       Contrary to appellants’ assertion, the judgment did not award Lopez backpay —
“wages that would have been earned but for an unlawful [act].” (Reyes, supra, 148

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Cal.App.4th at p. 613, fn. 7.) Instead, he was awarded wages earned, but not paid, for
work already performed; damages, which did not include any economic loss from lost
work; and statutory penalties. Appellants do not argue Hoffman Plastic applies to such
awards.4
          In sum, appellants have demonstrated no error based on Lopez’s immigration
status.
IV. Attorney Fees
          Appellants challenge the trial court’s award of attorney fees to Lopez for (1) work
performed in this case, and (2) work performed in the insurance action, in which
appellants named Lopez as a defendant. We affirm the award.
          As to the work performed in this case, appellants again argue they had workers’
compensation insurance; we have rejected this argument above. As they failed to prove
such insurance, an award of attorney fees is authorized by statute. (§§ 3706, 3709
[judgment against employer in lawsuit for damages from workplace injury where
employer has failed to obtain workers’ compensation insurance “shall include a
reasonable attorney’s fee fixed by the court”].)5
          As to the work performed in the insurance action, “California case law clearly
provides a trial court discretion to award a fee that compensates work performed in a
collateral action that may not have been absolutely necessary to the action in which fees
are awarded but was nonetheless closely related to the action in which fees are sought
and useful to its resolution.” (Children’s Hospital & Medical Center v. Bontá (2002) 97
Cal.App.4th 740, 779-780 (Children’s Hospital).) “Because a ruling whether fees should

4   We note also that, in response to Hoffman Plastic (Reyes, supra, 148 Cal.App.4th at
p. 615 & fn. 9), California’s Legislature enacted section 1171.5, subdivision (a),
providing, in relevant part: “All protections, rights, and remedies available under state
law, except any reinstatement remedy prohibited by federal law, are available to all
individuals regardless of immigration status who have applied for employment, or who
are or who have been employed, in this state.” This statute has been upheld against
challenges based on Hoffman Plastic and its reasoning. (Reyes, supra, at pp. 615-619.)
5  Appellants do not appear to contest the award of fees for the wage and hour claims,
which are also authorized by statute. (§§ 218.5, subd. (a), 1194, subd. (a).)
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be awarded requires ‘an intensely factual [and] pragmatic’ inquiry [citation], it is entitled
to great respect and may be set aside as an abuse of discretion only if the record provides
no basis for the ruling.” (Id. at p. 781.)
       We cannot say the trial court’s ruling was an abuse of discretion in this case. The
two cases both involved Lopez’s workplace injury and whether appellants had workers’
compensation insurance covering that injury. Appellants have provided no record for us
to determine whether the work performed by Lopez’s attorneys in the insurance action
was useful to the instant case. Accordingly, we cannot say “the record provides no basis
for the ruling.” (Children’s Hospital, supra, 97 Cal.App.4th at p. 781.)
       Appellants contend each party in the insurance action agreed to bear their own
fees and costs upon its dismissal. However, the only evidence cited in support of this
contention is a line typed onto the form order of dismissal providing, “Each party bears
its own fees and costs.” This form was prepared by appellants and was not signed by
Lopez or his counsel. Its entry by the clerk of the superior court is a ministerial act.
(Rosen v. Robert P. Warmington Co. (1988) 201 Cal.App.3d 939, 943.) Accordingly, it
does not demonstrate an enforceable agreement between appellants and Lopez that Lopez
would not seek to recover his attorney fees for work performed in that case.




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                                   DISPOSITION
      The judgment and the order awarding attorney fees are affirmed. Lopez is
awarded his costs on appeal.




                                              SIMONS, Acting P.J.



We concur.




NEEDHAM, J.




BRUINIERS, J.




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