Christensen v. Grai

















Filed 5/9/13 Christensen v. Grai CA2/3













NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



SECOND APPELLATE
DISTRICT



DIVISION THREE




>

DAVID CHRISTENSEN, Plaintiff and Appellant, v. ELLEN GRAI et al., Defendants and Respondents.

B242146 (Los Angeles County Super. Ct. No. LC096148)

APPEAL
from a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Huey Cotton, Judge. Affirmed.

David
Christensen, in pro. per., for Plaintiff and Appellant.

State
of California, Department of
Industrial Relations Division of Workers’ Compensation and James M. Robbins for
Defendants and Respondents.

>_________________________

INTRODUCTION

Plaintiff
David Christensen appeals from the judgment entered upon the order of the
superior court sustaining the demurrer of defendants Ellen Grai and Deborah
Strickland of the Uninsured Employers Benefit Trust Fund (the Fund) and denying
leave to amend. Plaintiff and the Fund
had entered into a settlement of his worker’s compensation action. The Worker’s Compensation Appeals Board
(WCAB) approved the settlement.
Plaintiff filed the instant complaint after Grai and Strickland
allegedly delayed mailing him the settlement check. We conclude the superior court properly
sustained the demurrer and denied leave to amend because it has no authority to
hear plaintiff’s case. Although
plaintiff’s complaint alleges causes of action for breach of contract and of
fiduciary duty, negligence, and fraud, his prayer seeks the same damages for
the same injuries that were the subject of his worker’s compensation action, over
which the WCAB has exclusive jurisdiction.
Alternatively, we hold the trial court properly denied leave to amend
because plaintiff’s complaint is barred by plaintiff’s failure to comply with
the Government Claims Act. (Gov. Code, §
900 et seq.) Accordingly, we affirm.

FACTUAL
AND PROCEDURAL BACKGROUND

For review purposes, we
assume the truth of the allegations in the challenged complaint, but not
contentions, deductions, or conclusions of fact or law. (Gulf Ins. Co. v. TIG Ins. Co. (2001)
86 Cal.App.4th 422, 429.) Plaintiff was
injured while at work for an employer that did not carry worker’s compensation
insurance. Plaintiff filed a worker’s
compensation action seeking $149,000 (David
Christensen v. Cesar Orosa dba Professional Limousine Service (WCAB case
No. ADJ2096753)) and joined the Fund in the lawsuit. The employer filed for bankruptcy protection
and so the Fund negotiated a settlement with plaintiff for $20,000. Plaintiff signed the compromise and release
on August 9, 2011. The WCAB approved the settlement.

According
to plaintiff, his adjuster at the Fund, Grai, and her supervisor, Strickland
made an oral promise that plaintiff would receive his settlement check within
30 to 45 days. Plaintiff sent two
“Demands for Performance Notice” via certified mail. Receiving no response after 150 days, and
because the “administrative resolves have failed,” plaintiff filed the instant
action in propria persona, naming
Grai and Strickland, among others.

The
complaint alleges (1) breach of contract; (2) breach of fiduciary duty in that
the Fund has a trust to help injured workers of California, and the failure to
pay him money pursuant to the settlement is a breach of defendants’ fiduciary
duties to him; (3) negligence in failing to pay plaintiff so that he
became homeless and unable to obtain medical care; and (4) fraud because
defendants entered into the settlement agreement with no intention of
performing their oral promise to pay within 30 to 45 days. As damages, plaintiff seeks, : (1)
“$149,000 originally requested in my
worker compensation case.” (2) “$78,000 (for the 78 weeks of not being
stable enough to work . . . .” (3) “$50,000 for tuition >to retrain myself in another career.”
(4) “$8,900 for out of pocket physical therapy.” (5) “[F]uture medical expenses
for my left shoulder.” He also seeks
interest and other relief. (Italics
added.)

The check for full payment
of the settlement was issued to plaintiff on January
25, 2012, two days after he filed this complaint.
Plaintiff cashed the check.

Defendants
demurred to the complaint on four grounds: (1) the trial court lacked subject
matter jurisdiction because the WCAB had exclusive jurisdiction; (2) the trial
court had no jurisdiction because plaintiff failed to exhaust his
administrative remedies before the WCAB; (3) the complaint does not allege
compliance with the Government Claims Act because plaintiff does not allege the
timely filing with the Victim Compensation and Government Claims Board; and (4)
the case is moot because plaintiff cashed his check in full satisfaction of the
settlement.

The
superior court sustained the demurrer without leave to amend on the grounds it
lacked subject matter jurisdiction and plaintiff failed to timely file a claim
in violation of the Government Claims Act.
After judgment was entered against him, plaintiff appealed.

CONTENTIONS

Plaintiff
contends the trial court erred in sustaining the demurrer.

DISCUSSION

1. Our
standard of review

“A
demurrer lies only for defects appearing on the face of the complaint or from
matters of which the court must or may take judicial notice. [Citation.]”
(Stevens v. Superior Court (1999)
75 Cal.App.4th 594, 601.) For the
purpose of determining the effect of the complaint, its allegations are
liberally construed with a view toward substantial justice. (Code Civ. Proc., § 452.)

Our
analysis of a complaint against a general demurrer works thusly: “we
determine whether the complaint states facts sufficient to constitute a cause
of action. [Citation.] And when it is sustained without leave to
amend, we decide whether there is a reasonable possibility that the defect can
be cured by amendment: if it can be, the
trial court has abused its discretion and we reverse; if not, there has been no
abuse of discretion and we affirm.
[Citations.]” (>Blank v. Kirwan (1985) 39 Cal.3d 311,
318.)

Plaintiff
did not offer any amendment and so he stands on his complaint.

2. The
trial court properly sustained the demurrer and denied leave to amend because
plaintiff’s complaint arises out of matters that fall within the exclusive
jurisdiction of the WCAB.

It
has long been the law in California
that the WCAB is the sole tribunal empowered to adjudicate claims for workers’
compensation benefits. (Lab. Code,
§ 5300;href="#_ftn1" name="_ftnref1"
title="">[1]
La Jolla Beach & Tennis Club, Inc. v.
Industrial Indemnity Co. (1994) 9 Cal.4th 27, 35.) If the injuries for which a plaintiff claims
damages were suffered in the course and scope of an employment relationship,
they are covered by the workers’ compensation laws and the WCAB has the
exclusive authority over those claims. (>La Jolla Beach & Tennis Club, Inc. v.
Industrial Indemnity Co., at p. 35.)


The
aim of plaintiff’s complaint is to recover for the very same injuries that were
the subject of his worker’s compensation case.
Designating the
causes of action as breach of contract, breach of fiduciary duty, negligence,
and fraud does not alter the fact the complaint prays for $149,000 (the demand in
plaintiff’s worker’s compensation action), plus $78,000 in wage replacement
(permanent disability benefits under sections 4653 and 4658), $50,000 for
vocational retraining; $8,900 for reimbursement of out of pocket physical
therapy, and special damages of an unspecified amount. Those injuries were suffered in the course
and scope of plaintiff’s employment, with the result the WCAB ‑‑ not
the superior court ‑‑ has exclusive jurisdiction.href="#_ftn2" name="_ftnref2" title="">[2]

Plaintiff’s
objective in bringing this lawsuit, namely to recover for his work-related
injuries, was confirmed when he explained to the superior court that his
“intended purpose was the contract [settlement agreement] was breached and
void. I didn’t want any part of it
anymore. And it was my intention that I
was just going to send the check back, because I didn’t want to be a party to
the contract.” Effectively, plaintiff
would like to undo the settlement and re-litigate his workers’ compensation
claim. Apart from the fact plaintiff
cashed the Fund’s check, the decision of the WCAB confirming plaintiff’s
settlement is conclusively presumed to be lawful. (§ 5302.)href="#_ftn3" name="_ftnref3" title="">>[3] If dissatisfied, plaintiff must return to the
WCAB and seek to modify the ruling. (>Ibid.)
Or plaintiff should have petitioned for a writ of review. (§ 5950.)href="#_ftn4" name="_ftnref4" title="">>[4]> Regardless, the superior court has no
authority to adjudicate this complaint.
(§ 5955;href="#_ftn5" name="_ftnref5"
title="">[5] >Koszdin v. State Comp. Ins. Fund (2010)
186 Cal.App.4th 480, 492.)

3. Alternatively,
insofar as the complaint seeks to recover damages other than for which worker’s
compensation is the sole remedy, the trial court properly denied leave to amend
because plaintiff did not allege he complied with the Government Claims Act (>Gov. Code, § 900 et seq.) >by filing a claim with the California Victim
Compensation and Government Claims Board.

“The
intent of the Tort Claims Act is not to expand the rights of plaintiffs against
governmental entities. Rather, the
intent of the act is to confine potential governmental liability to rigidly
delineated circumstances.
[Citation.] [¶] The Tort Claims Act requires that any civil
complaint for money or damages first be presented to and rejected by the
pertinent public entity [citations.].
The act creates a bond between the administrative claim and the judicial
complaint. Each theory of recovery
against the public entity must have been reflected in a timely claim. In addition, the factual circumstances set
forth in the claim must correspond with the facts alleged in the
complaint. [Citation.]” (Munoz
v. State of California (1995) 33 Cal.App.4th 1767, 1776.) The aim of the tort claim statutes is to
provide sufficient information to enable the public entity to investigate
claims and settle, if appropriate, without the expense of litigation, and to
take the potential claim into account in fiscal planning. (Nelson
v. County of Los Angeles (2003) 113 Cal.App.4th 783, 797; >Johnson v. San Diego Unified School Dist.
(1990) 217 Cal.App.3d 692, 697.)

“Compliance
with the claims provisions is mandatory.
[Citations.]” (>Johnson v. San Diego Unified School Dist.,
supra, 217 Cal.App.3d at p.
697.) Fulfilling the requirements of the
tort claims presentation procedure is a condition precedent to filing suit; it
is not an affirmative defense. (>Munoz v. State of California, >supra, 33 Cal.App.4th at p.
1777.) Thus, an injured party may not
maintain an action against a public entity unless it has presented a claim to
the entity, in this case the Victim Compensation and Government Claims Board
(the Board). (Gov. Code, § 945.4.) All claims against the state, such as the
Fund, “[f]or money or damages on express contract or for an injury for which
the state is liable,” must be filed with the Board. (Gov. Code, § 905.2, subd. (a) &
(b)(3).)

Here,
to the extent plaintiff’s complaint seeks damages other than for which worker’s
compensation is the sole remedy,href="#_ftn6"
name="_ftnref6" title="">[6]> it is barred by plaintiff’s failure to
allege he filed a claim with the appropriate body, namely the Board. (Gov. Code, § 905.2, subd. (a) &
(b)(3).) Plaintiff’s asserted ignorance
of the claims filing requirement is not a sufficient basis for relief from the
filing requirement. (>Garcia v. Los Angeles Unified School Dist.
(1985) 173 Cal.App.3d 701, 708.) Nor are
we persuaded by plaintiff’s argument that the Government Claims Act is
unconstitutional. (Tammen v. County of San Diego (1967) 66 Cal.2d 468, 481;
accord, Whitfield v. Roth (1974) 10
Cal.3d 874, 889, fn. 20; see Dias v.
Eden Township Hospital Dist. (1962) 57 Cal.2d 502, 504.) Plaintiff has neither alleged that he filed a
claim with the Board, nor proposed that he could amend to allege compliance
with the Government Claims Act.
Therefore, plaintiff’s complaint against the Fund is barred (Gov. Code,
§ 945.4) and likewise his causes of action against Grai and Strickland are
barred (Gov. Code, § 950.2).

DISPOSITION

The
judgment is affirmed. Each party to bear
their own costs on appeal.



>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS









ALDRICH,
J.





We concur:









KLEIN,
P. J.









KITCHING,
J.