WORK COMP LEGAL UPDATE

EMPLOYER CAN SUE AA OFFICE

FOR MALICIOUS PROSECUTION

In Parter Medical Products v. The Dominguez Firm (May 2025, unpublished) Victoria Flores injured her right hand and wrist while employed at Parter Medical Products. Flores was represented by The Dominguez Firm who settled her post-surgical wrist workers' compensation claim with a $60,000 C&R, which included a resignation letter prepared by the Dominguez Firm and signed by the applicant. Thereafter, the Dominguez Firm filed a civil wrongful termination action against the employer. They refused to dismiss the action even after being reminded that Ms. Flores had resigned and was never terminated. At trial, the judge granted the employer's motion for summary judgment. After getting the civil case dismissed, the employer then proceeded to file a malicious prosecution civil suit against the Dominguez Firm for having filed the frivolous initial lawsuit; Dominguez in turn countered by filing an anti-SLAPP motion requesting the employer's case be dismissed.

In short, the Second District Court of Appeal upheld the employer's right to sue the applicant's law firm for malicious prosecution because there was no factual dispute that the applicant was never terminated and had voluntarily resigned as part of a financial arrangement. Even if the applicant felt like she had been wrongfully terminated, her counsel was required to review the "relative merit of pursuing a civil claim against her employer" and should have advised her against filing such a claim.

[COMMENT: This case is not an example of why an applicant should not resign as part of a C&R, because her severe wrist injury was preventing her from returning to work for that employer anyway. Instead, this case should be a wake-up call to applicant's attorneys about the potential consequences of filing frivilous claims.]

HOMEOWNER CASE: WCAB EXCLUSIVITY APPLIED

In Padron v. Osoy (2025) 53 CWCR 55 an injured worker sued the homeowner for supplying a faulty ladder to install skylights. The parties contracted for more than 52 hours of work. However, the injury occurred before working 52 hours, so the plaintiff claimed he was not a residential employee under the workers' compensation portion of the homeowner's policy. Instead he filed a civil suit for damages under the general liability portion of the policy..

The Court of Appeal correctly noted the 52 hour requirement pertains to the amount of hours that was intended or contracted to be worked for the homeowner, and not the actual amount of hours worked. Here the parties contracted for more than 52 hours, and therefore he qualified as a residential employee under the homeowners policy for which workers' compensation would be the exclusive remedy under Labor Code section 3600. As a result the civil case was dismissed

[COMMENT: Labor Code section 3352 used to require that 52 hours be actually worked before qualifying as a residential employee, but that was changed in 2017 when the statute was modified to require an individual to work 52 hours "or was contracted to be" working at least 52 hours to qualify.

While the civil case was dismissed, sounds like theapplicant has a solid work comp claim as well as a possible S&W claim due to the homeowner allegedly providing a faulty ladder.

HOMEOWNER CASE: WHO HAS BURDEN OF PROOF

In Ibarra v. Cagle Drywall (2025) 53 CWCR 51,the applicant was injured at a home improvement project while working for an unlicensed and uninsured contractor. Employment was at issue; and the trial judge determined the applicant did not meet the 52 hour requirement to qualify as a residential employee, despite oral testimony of working 60 hours at the project.

The WCAB overruled the trial judge, noting employment was presumed, and therefore the homeowner carried the burden of proof that they qualify for an exception under Labor Code section 3352(h).

[COMMENT: In residential employee cases, the defense typically needs homeowner testimony or documentation such as cancelled checks to prove how many hours or days the applicant actually worked on the premises to establish whether or not the applicant qualified as a residential employee entitled to benefits under the homeowner policy.]

HEWS NEWS

Lynn P. Peterson of our Burbank office successfully obtained a "Take Nothing" trial decision from the Anaheim Board in Gallegos v. Control Air by demonstrating the numerous factual inconsistencies and possible fraud by the applicant. Congrats to Ms. Peterson on an outstanding job.

June HEWS Work Anniversaries:

Attorney/Shareholders Michelle Waters (25 years) and Brandon R. Lewis (21 years). Also legal assistants Livni Galvan (1 year) and Kauthar Alaghbar (1 year).

_______________________________

Main Contributor: H. Neal Wells IV hnw@hmplc.com

Editorial Staff: Lynn P. Peterson

lpp@hmplc.com

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The above is for informational purposes only, and not intended to constitute legal advice.