CORRECTION: Thanks to input from a gracious and kind reader, it appears that this case was ordered published. Cite it with confidence!
Happy Monday, dear readers!
You know, the thing about unpublished decisions is that they are a double-edged sword. Sometimes you’re grateful that they’re unpublished, and sometimes you resent it.
One recent unpublished opinion issued by the Court of Appeal in the case of Ly v. County of Fresno.
This is an interesting one, but in particular it is useful for those cases when an entity faces exposure from claims other than just workers compensation.
Three plaintiffs filed racial and national discrimination claims against the County of Fresno, along with workers’ compensation claims for psych injuries related to the discrimination.
So, miracle of miracles for the defense, the WCAB ruled that plaintiff/applicants’ complaints stemmed primarily from good faith personnel actions due to business necessity.
Two of the three plaintiffs filed petitions for reconsideration which were ultimately unsuccessful.
Well, with a ruling that the so-called discriminatory actions being found as “good faith, non-discriminatory personnel actions” by the WCAB, the defendant moved for summary judgement in the civil complaint, which was granted by the Superior Court Judge on the case.
On Appeal the Court of Appeal reminded the parties that claim preclusion applies if the decision of the former proceeding is final and on the merits, the present proceeding is on the same cause of action as the former proceeding, and the parties in both the former and present proceedings are the same.
This seems like something that would come up often enough in these cases. The applicant’s attorney is probably thinking that workers’ comp is a stacked deck and the plaintiff will be able to stick the defense with all the discovery costs.
But it looks like the plan backfired, at least in the Ly case. Perhaps the desk isn’t that stacked.
Sometimes employers elect to plant their heads deep, deep, deep into the sand and decline to actively cooperate with the workers’ comp case or the insurer’s efforts to mitigate the harm. Great things can be accomplished with the employer and the adjuster (and don’t forget the defense attorney).
In this case, the defense got to pay workers’ comp rates to try their civil-court case.