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Date: 03-25-2020
Case Style:
Michael Reynaud v. Technicolor Creative Services USA, Inc.
Case Number: B290836
Judge: Ashmann-Gerst, Acting P.J.
Court: California Court of Appeals Second Appellate District, Division Two on appeal from the Superior Court, County of Los Angeles
Plaintiff's Attorney: Faegre Baker Daniels, Ellen E. Boshkoff and Amanda Semaan
Defendant's Attorney: Jeffrey A. Lipow, Rob R. Nichols, Douglas G. Benedon and Wendy S. Albers
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Plaintiffs and respondents Michael Reynaud and Fiona
Reynaud1 prevailed at trial on their negligence cause of action
against defendant and appellant Technicolor Creative Services
USA, Inc. (Technicolor). Technicolor appeals, arguing, first, that
the verdict is unsupported by substantial evidence and, second,
that the damages awarded for emotional distress are, at least in
part, barred by workers’ compensation exclusivity. We disagree
with each of these contentions and, therefore, affirm the
judgment.
FACTUAL BACKGROUND2
I. Technicolor Employs Michael, a British Citizen, and Sponsors
a Series of Temporary Work Visas
Michael, a British citizen, was born and grew up in the
south of England. In 2005, he moved to Los Angeles to attend
business school at the University of Southern California (USC).
In 2007, after obtaining a master of business administration
(MBA) degree, he accepted a job and started working for
Technicolor as a “global associate.” Technicolor arranged and
sponsored a series of temporary work visas for Michael, allowing
him to remain in Los Angeles.
In 2010, Michael and Fiona, a British citizen based in
England, began a romantic, long-distance relationship. Their
1 Because Michael and Fiona share the same last name, for
clarity we refer to them, individually, by their first names. No
disrespect is intended. We refer to them, collectively, as “the
Reynauds.”
2 We summarize the facts in the light most favorable to the
judgment. (Atempa v. Pedrazzani (2018) 27 Cal.App.5th 809,
813, fn. 3.)
3
first daughter was born in England in 2011. Fiona travelled to
Los Angeles as often as possible and, following her marriage to
Michael in 2015, was able to move there with her daughter based
on Michael’s work visa. The Reynauds’ second daughter was
born in Los Angeles later that year.
II. Technicolor Agrees to Sponsor Michael’s Green Card
Knowing that his work visa was set to expire in a few
years, Michael asked Technicolor, toward the end of 2013, to
sponsor him for a green card.3 He was told, informally, that “it
wouldn’t be a problem.” It was not until October 2014, however,
that he received an e-mail from Cecilia Salazar (Salazar),
Technicolor’s mobility manager, indicating that the company had
agreed to sponsor him. Fiona was “[a]bsolutely over the moon”
when she learned the news. To Michael, “it felt like the pieces of
[their] lives were really coming together. . . . It meant that [they]
could stay [in Los Angeles] and achieve what [they] wanted to
achieve.” Even Salazar considered it “great news” because
Technicolor “doesn’t sponsor everyone.”
III. Technicolor’s Handling of Michael’s Green Card Matter
A. The employment-based green card process
The employment-based green card process has three
primary stages: (1) applying for a permanent labor certification
(PERM) from the Department of Labor (DOL); (2) filing an
immigrant petition (I-140) and supporting documents with the
3 We use the term “green card” to refer to legal permanent
resident status in the United States. (U.S. v. Ross (9th Cir. 2004)
372 F.3d 1097, 1103, fn. 1; see also Black’s Law Dict. (9th ed.
2009) p. 770, col. 2 [defining “green card” as “[a] registration card
evidencing a resident alien’s status as a permanent U.S.
resident”].)
4
United States Custom and Immigration Service (USCIS); and
(3) filing an adjustment of status form (I-485) with the USCIS to
become a legal permanent resident—that is, obtain a green card.
Several steps are required before the initial PERM
application can be filed. The employer must draft a description of
the job that it seeks to fill with the foreign worker; set the
minimum requirements for the position; apply for a prevailing
wage determination from the DOL; and conduct advertising and
recruitment to establish that there is no interested U.S. citizen or
permanent resident who meets the minimum requirements for
the position. If a minimally qualified U.S. worker applies for the
position, the PERM application cannot be filed.
Once filed, 86 to 87 percent of PERM applications are
approved by the DOL without an audit. Jay Ruby (Ruby), an
attorney specializing in “corporate immigration, employmentbased visas and permanent residence” who was retained by
Technicolor for immigration matters, could not recall having any
of the hundreds of PERM applications he filed for the company
denied.
B. Delays in obtaining the PERM
Salazar and Lori Presson (Presson), a human resources
representative, were the primary Technicolor employees involved
in the sponsorship of Michael’s green card.
As a mobility manager, Salazar spent most of her time
working on temporary work authorizations and green cards for
Technicolor’s foreign employees. She worked directly with
outside immigration counsel, coordinating matters between the
lawyers, the company, and the employee. For Michael’s green
card matter, she interacted with Ruby, a partner at the law firm
5
Ogletree, Deakins, Nash, Smoak & Stewart, P.C. (Ogletree), and
Kara M. Dujenski (Dujenski), a law clerk at the firm.
Michael’s green card case was the first that Presson had
worked on, and she was unfamiliar with the process. Her role
was to respond to requests from immigration counsel conveyed
through Salazar.
Both Salazar and Presson knew that Michael’s green card
application was time sensitive. The goal was to be as far along in
the process as to allow Michael to remain in the United States
beyond the expiration of his temporary work visa.
1. Determining minimum job requirements
Developing minimum job requirements for the position
Technicolor sought to fill with Michael was of crucial importance
to obtain the PERM. Technicolor’s objective in crafting those
requirements was to ensure that, while Michael could meet them,
they were sufficiently narrow so that other applicants could not.
The requirements also had to be consistent with Technicolor’s
actual hiring practices so that truthful representations were
made to the government under penalty of perjury.
In late October 2014, Dujenski e-mailed Salazar drafts of
the advertising text, job description, and requirements for
Michael’s sponsored position. Apart from requiring an MBA or
closely related degree, the requirements still needed to be
determined.
Dujenski offered to schedule a call with Salazar and
Michael’s manager to discuss how to define the minimum job
requirements. In Dujenski’s experience, setting up such a call
could help to quickly and efficiently finalize the requirements.
Although Dujenski indicated that the requirements had to be
finalized before proceeding to the other steps of the green card
6
process, such as obtaining verification of Michael’s experience, no
call between Dujenski, Salazar, and Michael’s manager ever took
place.
It was not until over nine months later, in mid-August
2015, that the minimum requirements for the sponsored position
were sufficiently finalized to proceed to the next crucial step of
compiling evidence verifying that Michael could meet those
requirements.
2. Verifying Michael’s experience
After defining the job requirements, the next step is to
verify the sponsored employee’s experience. An employment
verification letter (EVL), on company letterhead from a former
employer, attests to the dates and titles of previous employment
and the experience and skills gained there. EVLs serve as
primary evidence that the foreign worker is qualified to meet the
minimum requirements for the sponsored job.
Although a PERM application may be filed without first
obtaining EVLs, Technicolor’s protocol was to wait for them.
Technicolor followed this practice in Michael’s case, despite
Ruby’s suggestion to Salazar that they proceed to the recruitment
stage before they had received all of Michael’s EVLs.
In September 2015, Salazar sent Michael draft EVLs to
provide to his former employers. This was the first time that
Michael had heard about EVLs from anyone at Technicolor since
he had an initial discussion with Salazar in October 2014 about
providing evidence to verify his experience. During that initial
discussion, Michael shared with Salazar his concern about
obtaining a letter from one of his former employers in England,
Observer Standard Newspapers (Observer Standard). Michael
had previously been married to the daughter of the Observer
7
Standard’s owners. Following their “messy” divorce, Michael’s
ex-wife and her family had “a lot of animosity” toward him, and
Michael thought it unlikely that they would assist him with the
letter. Salazar told Michael that they did not need to worry
about that for now and could deal with it later. Salazar never
told Michael that moving forward with the green card application
was dependent on obtaining an EVL from Observer Standard by
a particular date.
After Salazar sent the draft EVLs to Michael in September
2015, Michael reminded Salazar of his concern about
approaching Observer Standard. Salazar asked Michael if he
could provide other supporting documentation of his employment
and experience gained there. She did not, however, advise him of
any time sensitivity. Seven weeks later, Salazar informed
Michael, for the first time, that the matter was urgent. Salazar
wrote to Michael: “We don’t have much time to work with on our
end; therefore, we need to determine what experience we can use
to frame the case and move forward to the next step.” Michael
tried but was unable to obtain an alternative form of
documentation regarding his employment at Observer Standard.
The EVL from Observer Standard was ultimately obtained
by Presson in March 2016.
IV. Because Michael Did Not Obtain a Green Card, the Reynauds
Are Forced to Return to England
On January 5, 2016, Salazar informed Presson that it was
very unlikely that they would be far enough into the green card
process to allow Michael to stay in the United States on
Technicolor payroll after his temporary work visa expired later
that year. This information was not, however, conveyed to
Michael at the time.
8
Finally, on March 7, 2016, Presson e-mailed Michael that
she did not “have good news for [him].” Michael spoke with
Salazar and Presson the next day and was told that no part of his
green card application had yet been filed and that it would take
another 10 to 12 months to complete the process. Because his
temporary work visa was set to expire soon, he would have to
leave the United States for about 10 months. It was initially
suggested that Michael could continue to work for Technicolor
remotely from the United Kingdom during that period, but by the
end of March 2016, Technicolor decided it would not employ
Michael beyond the expiration of his visa on May 24, 2016.
Michael’s manager told him that it was “a bad time for her” as
she was only “worried about . . . hitting” quarterly numbers and
could not “deal[] with someone . . . not in the office.”
The Reynauds were devastated by the news that Michael
would no longer be employed. Faced with a lack of income and
healthcare, they had no choice but to uproot their young family,
sell their condominium, and return to England in June 2016.
The family initially lived with Michael’s parents in London, but
subsequently moved to the north of England to live with Fiona’s
terminally ill mother. Michael’s extensive efforts to obtain work
in England were unsuccessful, as his business contacts were in
Los Angeles.
Michael has suffered from depression, which has “taken a
big toll on” his relationship with his wife and children. Fiona has
woken up to find Michael crying because “[h]e feels like he can’t
support his family.” Fiona has also sought counseling for
depression and anxiety.
9
PROCEDURAL BACKGROUND
The Reynauds sued Technicolor for negligence, alleging
that Technicolor breached its assumed duty of due care “by
failing to initiate the green card process.” If not for Technicolor’s
breach, the Reynauds “would have obtained a green card and
would not have been forced to move back to England in the face of
deportation proceedings.”4
The case was tried to a jury in March 2018. In a special
verdict, the jury found that Technicolor had been negligent and
that its negligence was a substantial factor in causing harm to
the Reynauds. In addition, the jury found that Michael had been
negligent and that his negligence had also been a substantial
factor in causing harm to himself and Fiona. The jury assigned
95 percent responsibility for the Reynauds’ harm to Technicolor
and 5 percent to Michael.
The jury awarded Michael $317,114 in past lost wages and
benefits; $570,000 in future lost wages and benefits; $1,200,000
for past mental and emotional suffering; and $600,000 for future
mental and emotional suffering. Fiona was awarded $300,000 for
past mental and emotional suffering; and $200,000 for future
mental and emotional suffering. The trial court reduced the
jury’s damages awards based on the finding of Michael’s
comparative fault and Ogletree’s prior settlement. As a result,
judgment was entered in the amount of $803,838.30 for economic
damages and $2,083,920 for noneconomic damages, for a total
award of $2,887,758.30.
4 The Reynauds also sued Ogletree for professional
malpractice. That cause of action was settled prior to trial and is
not at issue in this appeal.
10
The trial court subsequently denied Technicolor’s motions
for judgment notwithstanding the verdict and for a new trial, and
this timely appeal ensued.
DISCUSSION
I. Substantial Evidence Supports the Verdict
Technicolor raises two challenges to the sufficiency of the
evidence supporting the jury’s verdict. First, Technicolor argues
that, irrespective of any delay,5 there is no evidence that it could
have satisfied the labor verification requirement in order to
submit the PERM application. Second, it argues that there is no
evidence that its conduct harmed the Reynauds because they
were left in the same position that they were in before
Technicolor offered to sponsor Michael—without green cards.
Both arguments lack merit.
A. Standard of review
“Where findings of fact are challenged on a civil appeal, we
are bound by the ‘elementary, but often over-looked principle of
law, that . . . the power of an appellate court begins and ends
with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted,’ to support the findings
below. [Citation.]” (Jessup Farms v. Baldwin (1983) 33 Cal.3d
639, 660.)
“‘In applying this standard of review, we “view the evidence
in the light most favorable to the prevailing party, giving it the
benefit of every reasonable inference and resolving all conflicts in
5 Technicolor does not challenge the sufficiency of the
evidence that it unreasonably delayed the green card process.
Nor does it dispute that it assumed a duty of care toward the
Reynauds.
11
its favor . . . .” [Citation.]’ [Citation.] ‘“Substantial evidence” is
evidence of ponderable legal significance, evidence that is
reasonable, credible and of solid value.’ [Citation.] We do not
reweigh evidence or reassess the credibility of witnesses.
[Citation.] We are ‘not a second trier of fact.’ [Citation.]” (Pope
v. Babick (2014) 229 Cal.App.4th 1238, 1245–1246.)
B. Substantial evidence that Technicolor could have
satisfied the labor verification requirement
The testimony presented to the jury, and the reasonable
inferences that could be drawn from that testimony, provide
substantial evidence that, if Technicolor had proceeded to the
advertising and recruitment stage, it would have failed to attract
a minimally qualified U.S. worker for Michael’s sponsored
position and, therefore, Technicolor could have satisfied the labor
verification requirement.
Several witnesses involved in Michael’s green card matter
testified that the objective when setting minimum requirements
is to minimize the pool of qualified candidates while, at the same
time, ensure that the sponsored employee’s qualifications are
sufficient and can be verified. And, the stated requirements must
be legitimate—that is, reflect actual hiring practices.
Technicolor and its experienced counsel at Ogletree spent
months drafting and revising the minimum requirements for
Michael’s sponsored job. They finally settled on 10 discrete
experiential requirements that a candidate for the position was
required to possess in addition to having an MBA: (1) three years
“in the related occupation of Business Analyst”; (2) one year “with
the analysis of competitive positioning within the Theatrical and
Broadcast post-production market”; (3) one year “in finance and
accounting, including complex financial modelling”; (4) three
12
years “with advanced Excel skills, including pivot tables and
manipulating data”; (5) one year “with management accounting
concepts and their application to post[-]production data”; (6) one
year “with non-financial metrics to analyze current and future
financial health of business units for accurate revenue
forecasting”; (7) one year “with evolving post[-]production
landscapes and workflows”; (8) three years “creating
presentations and presenting them to internal and external
clients and senior leadership”; (9) three years “analyzing business
workflows”; and (10) one year “using ScheduAll.”
Based on the goal shared by those involved at Technicolor
and Ogletree to craft the minimum requirements in such a way
as to minimize the applicant pool, the amount of time and effort
spent determining the requirements, the number and content of
the finalized requirements, and the extensive job-based
immigration experience of Salazar and Ruby, the jury could
logically and reasonably infer that advertising and recruiting for
the position would not have produced a qualified U.S. citizen or
permanent resident applicant. Therefore, more likely than not,
Technicolor could have satisfied the labor verification
requirement and filed the PERM application. And, based on
Ruby’s testimony that he had filed hundreds of PERM
applications while representing Technicolor and could not recall
ever having one of them denied, the jury could also rationally
conclude that, if not for Technicolor’s negligence, a PERM
application filed for Michael would probably have been approved
and he and Fiona would have, eventually, obtained green cards.
This was sufficient to meet the Reynauds’ burden on causation.
(See Uriell v. Regents of University of California (2015) 234
Cal.App.4th 735, 746 [“‘In any negligence case, the plaintiff must
13
present evidence from which a reasonable fact finder may
conclude that defendant’s conduct probably was a substantial
factor in bringing about the harm.’ [Citation.]”].)
Technicolor’s various arguments to the contrary run afoul
of the substantial evidence standard.
First, Technicolor rejects the suggestion that a juror could
reasonably infer from the evidence that Technicolor could have
satisfied the labor verification requirement. It claims that “the
notion that one of the world’s largest metropolitan labor
markets—where half of all domestic film and television jobs are
located—could supply no business analyst with post-production
experience to an industry leader like Technicolor requires a
suspension of all real-world experience and common sense.”
(Fn. omitted.)
“Our role is to determine the legal sufficiency of the found
facts and not to second guess the reasoning or wisdom of the fact
finder.” (People v. Lashley (1991) 1 Cal.App.4th 938, 946.) “‘Only
when there is a complete absence of probative facts to support the
conclusion reached does a reversible error appear. But where, as
here, there is an evidentiary basis for the jury’s verdict, the jury
is free to discard or disbelieve whatever facts are inconsistent
with its conclusion. And the appellate court’s function is
exhausted when that evidentiary basis becomes apparent, it
being immaterial that the court might draw a contrary inference
or feel that another conclusion is more reasonable.’ [Citation.]”
(Miller v. Southern Pacific Co. (1953) 117 Cal.App.2d 492, 507,
quoting Lavender v. Kurn (1946) 327 U.S. 645, 653.) Having
identified substantial evidence in the record to support the jury’s
finding of causation, we are unpersuaded by Technicolor’s
critique of the jury’s rationality.
14
Second, Technicolor asserts that the record “contains
unrebutted testimony by three experts . . . that qualified U.S.
workers were likely available to perform [Michael’s] job.” We do
not agree with this characterization of the evidence. Although
Technicolor’s immigration expert, Catherine Haight (Haight),
opined to this effect, the other expert witnesses referenced—
Technicolor’s damages expert, Jonathan Guryan (Guryan), and
the Reynauds’ vocational expert, Phillip Sidlow (Sidlow)—did not.
Neither Guryan nor Sidlow testified about the immigration
process or, more specifically, the likelihood that a U.S. citizen or
permanent resident meeting the minimum requirements
established for Michael’s sponsored position would have applied
for the job had it been advertised.
Technicolor points to Guryan’s testimony that Michael’s
skills were “very general or transferable” and that “[t]he tasks he
did in his job are the types of things that many, many businesses
have people doing.” Technicolor latches upon Sidlow’s testimony
that he located more than 10 postings for Los Angeles-based jobs
on the internet “that required an MBA or looked like they
required the kind of skills and background that [Michael] had.”
But these statements were made in the context of testifying
about Michael’s ability to find comparable employment for the
purpose of determining damages. Furthermore, “indulg[ing] all
legitimate and reasonable inferences to uphold the verdict”
(Ortega v. Pajaro Valley Unified School Dist. (1998) 64
Cal.App.4th 1023, 1043), the jury could have interpreted the
testimony of Guryan and Sidlow to mean that Michael’s skills
were highly sought after in the Los Angeles job market, thus
potentially making it less likely that the sponsored job, with its
15
specific educational and experiential minimum requirements,
would have drawn another qualified applicant.
Third, Technicolor contends that Haight’s opinion that
advertising and recruiting for Michael’s sponsored position likely
would have drawn a minimally qualified U.S. applicant was
dispositive and could not be disregarded by the jury. Not so.
As explained by our Supreme Court, “The jury is not
required to accept an expert’s opinion. The final resolution of the
facts at issue resides with the jury alone. The jury may conclude
a fact necessary to support the opinion has not been adequately
proven, even though there may be some evidence in the record
tending to establish it. If an essential fact is not found proven,
the jury may reject the opinion as lacking foundation. Even if all
the necessary facts are found proven, the jury is free to reject the
expert’s opinion about them as unsound, based on faulty
reasoning or analysis, or based on information the jury finds
unreliable. The jury may also reject an opinion because it finds
the expert lacks credibility as a witness.” (People v. Sanchez
(2016) 63 Cal.4th 665, 675.)
Given the substantial evidence we have identified, which
conflicted with Haight’s opinion, and her responses to
questioning aimed at impeaching her credibility, the jury could
properly reject her opinion.6
6 Technicolor relies on Krause v. Apodaca (1960)
186 Cal.App.2d 413, but that case is factually distinguishable. In
Krause, the Court of Appeal found the jury’s verdict unsupported
by substantial evidence because there was a dearth of evidence
regarding the cause of a fire except for the uncontradicted opinion
of two experts. (Id. at pp. 416–417.) Neither the qualifications
nor the probity of the experts were questioned. (Id. at p. 417.)
Under these unique circumstances, the Court of Appeal
16
Fourth, and finally, we find it irrelevant that Michael’s
duties at Technicolor were assumed by a U.S. worker, Jennifer
Maurus (Maurus), upon his departure. Maurus did not have an
MBA and therefore would not have been minimally qualified for
the sponsored position had it been advertised. Technicolor
argues that “[t]he bare fact that Maurus performed [Michael’s]
job means she was minimally qualified to do so.” This is a
challenge to the validity of the minimum requirements set by
Technicolor with its legal counsel’s guidance; it does not affect
our conclusion that substantial evidence exists that the
sponsored position, if advertised with those minimum
requirements, likely would have failed to attract a qualified U.S.
worker to apply.
C. Substantial evidence that Technicolor’s negligence left
the Reynauds in a worse position
Technicolor also argues that the Reynauds were left in the
same position as they were before Technicolor voluntarily agreed
to sponsor Michael for a green card—that is, without green
cards—and, therefore, no cognizable harm exists. We disagree.
As discussed above, the conclusion that Technicolor’s
negligence was a substantial factor in preventing the Reynauds
from obtaining green cards is supported by substantial evidence.
Substantial evidence also exists that the Reynauds relied on
Technicolor to act with due care and were adversely affected by
Technicolor’s breach of that duty.
Michael testified that he “would have planned [his] life very
differently” had he known that he would not get a green card.
concluded that the experts’ opinions could not be disregarded.
(Ibid.)
17
Technicolor contends that the jury was not permitted to speculate
that Michael might have obtained a green card through another
employer. Assuming that is true, the jury could still reasonably
infer from Michael’s testimony that if Technicolor had not agreed
to sponsor his green card in October 2014, or had even informed
him earlier than March 2016 that time had run out on his ability
to stay uninterrupted in the United States, the Reynauds could
have better prepared for their eventual departure from the
country. (See Maaso v. Signer (2012) 203 Cal.App.4th 362, 371
[“Substantial evidence includes reasonable inferences drawn from
the evidence in favor of the judgment”].) Instead, the evidence
presented to the jury indicated that the Reynauds were
unexpectedly faced with Michael’s unemployment and the need to
quickly sell their home and move thousands of miles away with
two young children. These are cognizable injuries.
II. Workers’ Compensation Exclusivity Is Inapplicable
A. Relevant law
Under California’s Workers’ Compensation Act (Lab. Code,
§ 3200 et seq.),
7 workers’ compensation is the exclusive remedy
(“in lieu of any other liability whatsoever”) “for any [employee]
injury . . . arising out of and in the course of the employment”
where enumerated “conditions of compensation” are satisfied.
(§ 3600, subd. (a); see also § 3602, subd. (a).) As relevant here,
the conditions of compensation include that “at the time of the
injury, the employee is performing service growing out of and
incidental to his or her employment and is acting within the
course of his or her employment” (§ 3600, subd. (a)(2)) and that
7 All further statutory references are to the Labor Code
unless otherwise indicated.
18
“the injury is proximately caused by the employment, either with
or without negligence” (§ 3600, subd. (a)(3)).
“‘[A]rising out of’ and ‘in the course of’ are two separate
requirements.” (Lee v. West Kern Water Dist. (2016)
5 Cal.App.5th 606, 625; see also Maher v. Workers’ Comp.
Appeals Bd. (1983) 33 Cal.3d 729, 732–733 (Maher) [referring to
the “two-pronged requirement” of workers’ compensation].) “[F]or
an injury to ‘arise out of the employment’ it must ‘occur by reason
of a condition or incident of [the] employment . . . .’ [Citation.]
That is, the employment and the injury must be linked in some
causal fashion. [Citation.]” (Maher, supra, at pp. 733–734.)
“‘[I]n the course of the employment[]’ . . . ‘ordinarily refers to the
time, place, and circumstances under which the injury occurs.’
[Citation.]” (Id. at p. 733.) These two requirements are “often so
intertwined that no valid line of demarcation can be drawn[.]”
(Scott v. Pacific Coast Borax Co. (1956) 140 Cal.App.2d 173, 178–
179.)
The Workers’ Compensation Act is to be liberally construed
in favor of awarding workers’ compensation benefits. (§ 3202;
King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1051.) “The
rule is not altered because a plaintiff believes that he can
establish negligence on the part of his employer and brings a civil
suit for damages.” (Freire v. Matson Navigation Co. (1941) 19
Cal.2d 8, 10.)
B. Relevant proceedings
Among the affirmative defenses raised in its answer,
Technicolor asserted that workers’ compensation provides the
exclusive remedy for the Reynauds’ claims premised on emotional
injury or distress. Technicolor also raised the issue of workers’
19
compensation exclusivity in a motion to strike and in a motion in
limine.
The motion to strike sought to remove language from the
operative first amended complaint regarding the Reynauds’
alleged physical, mental, and emotional injuries on the ground
that they were barred by workers’ compensation exclusivity.
Technicolor does not specifically challenge the denial of the
motion to strike on appeal.
The motion in limine sought to exclude “irrelevant and
prejudicial” evidence at trial “regarding [the Reynauds’] alleged
physical, mental and emotional distress injuries.”8 The trial
court expressed its “skeptic[ism] of the reach of the workers’ comp
scheme to this type of fact situation.” Although “related to
[Michael] being a Technicolor employee[,]” the court did not
consider Technicolor’s sponsorship of the green card to be
“directly related to” or “inherent in” Michael’s employment, and
therefore denied the motion. Technicolor challenges this ruling.
While we generally review orders on motions in limine for
abuse of discretion, our review is de novo when the issue is one of
law. (Children’s Hospital Central California v. Blue Cross of
California (2014) 226 Cal.App.4th 1260, 1277; see also People
8 Although the Reynauds have not argued that they suffered
any prejudice by Technicolor’s procedure, it would have been
more appropriate for Technicolor to raise workers’ compensation
exclusivity in a motion for summary adjudication. (See Pellegrini
v. Weiss (2008) 165 Cal.App.4th 515, 530 [“Generally speaking, in
limine motions are disfavored in cases in which they are used not
to determine in advance the court’s projected ruling if presented
with an evidentiary objection during trial, but instead to serve as
a substitute for a dispositive statutory motion”].)
20
ex rel. Alzayat v. Hebb (2017) 18 Cal.App.5th 801, 811–812 [when
the relevant facts are undisputed, whether workers’
compensation exclusivity applies is a question of law].)
C. The Reynauds’ injuries did not arise out of Michael’s
employment
Technicolor contends that the damages awarded to the
Reynauds for emotional distress were barred, in part, by workers’
compensation exclusivity. Specifically, it argues that Michael
suffered a personal injury during his employment when
“Technicolor shared its decision to halt all sponsorship efforts”;
that this “occurred while [Michael] was performing his regular
work and ‘enjoying’ visa services incident to that work”; that the
risk was reasonably encompassed within the employment; and
that Fiona’s claims are derivative of Michael’s and thus equally
barred.
Technicolor cites no factually similar authority in support
of its position and instead relies on readily distinguishable cases.
(See, e.g., Weber v. United Parcel Service, Inc. (2003) 107
Cal.App.4th 801, 808–809 [holding that workers’ compensation
was exclusive remedy where employment posed an inherent risk
of hearing loss and required, employer-provided hearing
examination was negligently administered]; Wickham v. North
American Rockwell Corp. (1970) 8 Cal.App.3d 467, 469–470, 472
[holding that workers’ compensation was exclusive remedy where
employment posed an inherent respiratory health hazard and
employer’s agent negligently took and analyzed lung x-rays
during an employer-provided examination].)
Though not cited by either party, we find DerKevorkian v.
Lionbridge Technologies, Inc. (10th Cir. 2008) 316 Fed.Appx. 727
[nonpub. opn.] (DerKevorkian), 2008 U.S. App. Lexis 24566 to be
21
both factually analogous and persuasive on the applicability of
workers’ compensation exclusivity to the Reynauds’ claims.9
That case also involved a “dispute arising out of an
[employer’s] effort to obtain a permanent resident ‘green card’
for” a foreign employee, Isabelle DerKevorkian, in Colorado.
(DerKevorkian, supra, 316 Fed.Appx. at p. 729.) Like Michael’s,
DerKevorkian’s temporary work visa was set to expire and she
needed to obtain a green card to remain in the United States.
Her employer, Lionbridge, maintained a program that assisted
employees applying for green cards. To participate,
DerKevorkian agreed to work for Lionbridge for two years after
obtaining the green card and to use an immigration attorney
retained by the company. (Ibid.) After numerous complications
arose, Lionbridge did not file an application to sponsor the green
card, and DerKevorkian left the country. (Id. at pp. 729–732.)
She claimed that she suffered mental injuries such as depression
and anxiety. (Id. at p. 732.)
DerKevorkian sued Lionbridge. The case was ultimately
tried to a jury, which returned verdicts against Lionbridge on
DerKevorkian’s claims for breach of contract, breach of fiduciary
duty, and promissory estoppel and awarded noneconomic
damages. (DerKevorkian, supra, 316 Fed.Appx. at pp. 732–733.)
9 “Although we may not rely on unpublished California cases,
the California Rules of Court do not prohibit citation to
unpublished federal cases, which may properly be cited as
persuasive, although not binding, authority. [Citations.]”
(Airline Pilots Assn. Internat. v. United Airlines, Inc. (2014)
223 Cal.App.4th 706, 724, fn. 7; see also Cal. Rules of Court,
rule 8.1115(a); Fed. Rules App.Proc., rule 32.1(a); U.S. Cir. Ct.
Rules (10th Cir.), rule 32.1(A).)
22
“The district court rejected Lionbridge’s argument that the noneconomic damage award must be reduced to zero under
[Colorado’s] Workers’ Compensation Act” because “DerKevorkian
had not suffered a ‘personal injury’ under [Colorado’s Workers’
Compensation] Act, which the district court thought required
bodily harm.” (Id. at p. 733.)
As with California, under Colorado law, workers’
compensation is “the exclusive remedy for personal injuries
‘arising out of and in the course of the employee’s employment.’
[Citation.]” (DerKevorkian, supra, 316 Fed.Appx. at p. 735; see
also Colo. Rev. Stat. § 8-41-301, subds. (1)(b), (2)(a).) On appeal,
while the Tenth Circuit agreed with Lionbridge that
DerKevorkian’s depression and anxiety were the type of injuries
that could be compensable under workers’ compensation, it
disagreed that workers’ compensation exclusivity applied because
her “injuries did not occur in the course of or arise out of her
employment.” (DerKevorkian, supra, at p. 735.) Rather, the
court reasoned, DerKevorkian’s injuries “came about because of a
completely separate agreement to assist her with her green card
application. While it is true that she would not have been eligible
to participate in the [green card assistance program] were she not
a Lionbridge employee, and it would have been mutually
beneficial to both her and Lionbridge had she obtained a green
card, we cannot say that her injuries occurred in connection with,
or stemmed from, work-related activities or were related to her
actual job function as a translator, translator manager, or any
other functions she performed at Lionbridge.” (Ibid.)
We conclude that workers’ compensation exclusivity is
inapplicable here for the same reasons. The Reynauds’ injuries
did not arise out of Michael’s job-related duties or responsibilities
23
as a business analyst at Technicolor. Michael was not
“performing service growing out of and incidental to his . . .
employment[.]” (§ 3600, subd. (a)(2), italics added.) The
sponsorship of Michael’s green card was neither a condition of
employment nor a form of compensation. Nor was Technicolor’s
negligent handling of the process an inherent risk of Michael’s
employment.
Under these circumstances, the trial court properly denied
Technicolor’s motion in limine, and we will not disturb the jury’s
damages award.
Outcome: The judgment is affirmed. The Reynauds are entitled to costs on appeal.
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