Leanne Hollingsworth v. The Superior Court of Los Angeles, Heavy Transport, Inc., Real Party in Interest

“Pursuant to constitutional mandate, the Legislature has

vested the Workers’ Compensation Appeals Board (WCAB) with

exclusive jurisdiction over claims for workers’ compensation

benefits. (Cal. Const., art. XIV, § 4, Lab. Code, § 5300.)” (La

Jolla Beach & Tennis Club, Inc. v. Industrial Indemnity Co.

(1994) 9 Cal.4th 27, 35.) Thus, in an action involving a worker

injured during his or her employment, “the superior court and the

WCAB . . . ‘do not have concurrent jurisdiction over the whole of

the controversy, and one of them will be without jurisdiction to

grant any relief whatsoever, depending upon whether or not the

injuries were . . . covered by the workmen’s compensation laws.’”

(Ibid.) “The only point of concurrent jurisdiction of the two

tribunals is jurisdiction to determine jurisdiction; jurisdiction

once determined is exclusive, not concurrent.” (Ibid.)

This case presents the question of which tribunal—the

superior court or the WCAB—had jurisdiction to determine which

tribunal had exclusive jurisdiction. The Supreme Court has

made clear that when a civil action and a workers’ compensation

proceeding are concurrently pending, “the tribunal first assuming

jurisdiction” should determine exclusive jurisdiction. (Scott v.

Industrial Acc. Commission (1956) 46 Cal.2d 76, 81 (Scott).)

Here, the superior court exercised jurisdiction first, so the court

had jurisdiction to decide which tribunal has exclusive

jurisdiction. The court erred by staying the civil case to allow the

WCAB to decide that issue, and the WCAB erred by proceeding

without deference to the superior court. We therefore grant

plaintiffs’ petition.

3

FACTUAL AND PROCEDURAL BACKGROUND

A. Workers’ compensation exclusivity

“As a general rule, an employee who sustains an industrial

injury ‘arising out of and in the course of the employment’ is

limited to recovery under the workers’ compensation system.”

(Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995,

1001.) “The underlying premise behind this statutorily created

system of workers’ compensation” is a bargain in which “‘the

employer assumes liability for industrial personal injury or death

without regard to fault in exchange for limitations on the amount

of that liability. The employee is afforded relatively swift and

certain payment of benefits to cure or relieve the effects of

industrial injury without having to prove fault but, in exchange,

gives up the wider range of damages potentially available in

tort.’” (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund

(2001) 24 Cal.4th 800, 811, citing Shoemaker v. Myers (1990) 52

Cal.3d 1, 16.) For purposes of this matter, it is not disputed that

the fatal injury at issue occurred in the course of the decedent’s

employment.

However, “[t]he price that must be paid by each employer

for immunity from tort liability is the purchase of a workers’

compensation policy.” (Hernandez v. Chavez Roofing, Inc. (1991)

235 Cal.App.3d 1092, 1095.) All employers are required to

“secure the payment of compensation by obtaining insurance

from an authorized carrier or by securing a certificate of consent

from the Director of Industrial Relations to become a selfinsurer.”

(Minish v. Hanuman Fellowship (2013) 214

Cal.App.4th 437, 461; Lab. Code, § 3700.) “If any employer fails

to secure the payment of compensation, any injured employee or

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his dependents may bring an action at law against such employer

for damages, as if this division did not apply.” (Lab. Code,

§ 3706.) There is a dispute in this case about whether the

decedent’s employer had workers’ compensation insurance, and

therefore whether the claims are restricted to the workers’

compensation system.

B. Procedural background

Kirk Hollingsworth was involved in a fatal accident while

working for defendant Heavy Transport, Inc. in June 2016. His

wife, Leanne Hollingsworth, and son, Mark Hollingsworth

(plaintiffs),1 filed a wrongful death complaint in superior court on

January 22, 2018. Plaintiffs alleged that Heavy Transport did

not have workers’ compensation insurance. They also alleged

that defendant Bragg Investment Company purported to have

merged with Heavy Transport in 1986, but that the two

companies had always maintained separate operations.

Plaintiffs asserted that Bragg “sought to extend Worker’s

Compensation Benefits” to them. Plaintiffs also alleged that

defective Bragg equipment contributed to the incident.

On March 5, 2018, Bragg and Heavy Transport

(defendants) demurred to plaintiffs’ complaint. They asserted

that Heavy Transport was a fictitious business name for Bragg,

and therefore they were the same entity. Bragg had a workers’

compensation policy that covered the accident, so plaintiffs’

action was barred by workers’ compensation exclusivity.

Defendants sought judicial notice of several documents they



1 Leanne and Mark Hollingsworth are the petitioners in

this case, and Bragg Investment Company and Heavy Transport,

Inc. are real parties in interest. Herein, we refer to these parties

as “plaintiffs” and “defendants,” respectively.

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contended supported the demurrer, including documents

regarding ownership of Heavy Transport and insurance

information.

On March 14, 2018, defendants filed an application for

adjudication of claim with the WCAB. The application listed

Bragg as the employer, included insurance information, and

noted that a lawsuit had been filed.

The trial court denied defendants’ request for judicial

notice and overruled the demurrer. The court held that plaintiffs

had adequately alleged an exception to workers’ compensation

exclusivity, because they had alleged that Heavy Transport was

the decedent’s employer and it did not have workers’

compensation insurance.

On January 14, 2019, defendants filed an ex parte

application for an order staying the civil action, Defendants

asserted that in December 2018 the WCAB determined that the

accident had occurred in the course of decedent’s employment.

The WCAB then set a hearing for February 19, 2019 to determine

if any applicable workers’ compensation insurance covered the

incident. Defendants noted that plaintiffs had served deposition

notices and document requests. Defendants asked that the civil

case be stayed until the WCAB determined the insurance issue,

which would then determine which tribunal had exclusive

jurisdiction.

Plaintiffs opposed defendants’ request for a stay, asserting

that evidence showed that decedent was employed by Heavy

Transport, not Bragg, and there was no indication that Heavy

Transport had workers’ compensation insurance. Plaintiffs

asserted that defendants’ attempt to cast Bragg as the employer

was an effort to “escape responsibility” for the incident.

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Judge Stephen Goorvitch heard defendants’ ex parte

application and partially granted it. The court noted that there

was a factual dispute about the identity of decedent’s employer

and whether the employer was insured, and “Plaintiffs are

entitled to conduct discovery to attempt to resolve these issues.”

The court granted defendants’ request for a stay of discovery

“except with respect to discovery concerning the identity[2],

employment, and insurance issues in this case.” The court also

found the case to be complex, and transferred it to a new

department.

On March 11, 2019, plaintiffs filed a request for a

preliminary injunction “to preserve [the trial] court’s

jurisdiction.” Plaintiffs stated that they also had filed a motion

with the WCAB to stay those proceedings, but “[r]ather than

grant the motion, the WCAB set the case for trial before a WCAB

arbitrator on June 6, 2019, on the issue of insurance coverage,

which is the exact issue retained by this Court for decision.”

Plaintiffs cited Scott, supra, 46 Cal.2d 76, which we discuss in

greater detail below. In short, Scott held that where there is a

jurisdictional dispute about whether the superior court or a

workers’ compensation tribunal has exclusive jurisdiction over a

claim, both the superior court and the workers’ compensation

tribunal have concurrent jurisdiction to determine exclusive

jurisdiction, and the tribunal that first exercised jurisdiction

should determine exclusive jurisdiction. (Scott, supra, 46 Cal.2d

at pp. 81, 89.) Plaintiffs requested a preliminary injunction to

“preserve the status quo” until the trial court determined

jurisdiction.



2 It appears the court was referencing questions about

whether Bragg and Heavy Transport were a single entity.

7

Defendants opposed the motion, noting that Labor Code

section 5955 explicitly states that a superior court does not have

the authority to “suspend or delay the operation or execution

thereof, or to restrain, enjoin, or interfere with the appeals board

in the performance of its duties.” Defendants also asserted that

plaintiffs had not established a reasonable probability of

prevailing on the merits.

Judge Mark C. Kim heard the matter and took it under

submission. The court later denied plaintiffs’ motion in a written

ruling, stating that plaintiffs “do not offer any evidence

supporting a probability of prevailing on the merits.” The court

also stated that plaintiffs had not “presented any authority for

the Court to stay a pending WCAB case.” In addition, the court

stated, “Plaintiff [sic] also has not indicated why a WCAB trial on

the issue of insurance is an issue.”

The court further stated that on its own motion, upcoming

discovery motion hearings were vacated, and all further discovery

was stayed. The court set a status conference regarding the

WCAB proceedings for June 27, 2019.

Plaintiffs filed a petition for writ of mandate in this court,

and requested that we issue an order staying the June 6

arbitration scheduled in the WCAB proceeding. We issued an

alternative writ and an order staying the WCAB proceedings, and

requested briefing from the parties. Defendants and the WCAB

each filed a return, and plaintiffs filed a reply. The superior

court did not appear. The matter proceeded to oral argument.

DISCUSSION

This case presents a relatively simple question: Which

tribunal—the superior court or the WCAB—should resolve the

questions that will determine whether the superior court or the

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WCAB has exclusive jurisdiction over plaintiffs’ claims? The

Supreme Court in Scott, supra, 46 Cal.2d 76, decided this issue in

1956, and held that whichever tribunal exercised jurisdiction first

should make the necessary findings to determine which tribunal

has exclusive jurisdiction over the remainder of the matter. We

follow that rule here, and find that the trial court erred by

deferring to the WCAB to determine jurisdiction.

In Scott, an injured “invitee” filed a lawsuit in superior

court, and the defendant company pled as an affirmative defense

that the Industrial Accident Commission had “exclusive

jurisdiction for the injuries claimed by plaintiff.” (Scott, supra, 46

Cal.2d at p. 79.) Later, the “defendant in the superior court

action and State Compensation Insurance Fund as its workmen’s

compensation insurance carrier filed with the Industrial Accident

Commission an application for adjustment of claim arising out of

the same personal injuries as those alleged by plaintiff in the

superior court action.” (Id. at pp. 79-80.) After additional

proceedings in both tribunals, the case reached the Supreme

Court, which considered “whether the Industrial Accident

Commission may, and should, be required to suspend the exercise

of its jurisdiction in the proceeding before it because of the

pendency of the action in the superior court.” (Id. at p. 81.)

The court noted that “the two tribunals involved[,] the

superior court on the one hand and the commission on the

other[,] do not have concurrent jurisdiction over the whole of the

controversy, and one of them will be without jurisdiction to grant

any relief whatsoever, depending upon whether or not the

injuries were suffered within the course and scope of an

employment relationship and so covered by the workmen’s

compensation laws. In other words . . . , the only point of

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concurrent jurisdiction of the two tribunals appears to be

jurisdiction to determine jurisdiction; jurisdiction once

determined will be exclusive, not concurrent.” (Scott, supra, 46

Cal.2d at pp. 82-83.) The court added, “It is elementary that the

type and extent of relief which can be granted and the factors by

which such relief is determined differ materially between the two

tribunals; the superior court cannot award workmen’s

compensation benefits, and the commission cannot award

damages for injuries.” (Id. at p. 83.)

The Scott court held that “the general rule long recognized

as governing tribunals whose jurisdiction is generally concurrent

should be applied here where jurisdiction to determine

jurisdiction is concurrent.” (Scott, supra, 46 Cal.2d at p. 89.)

Under this rule, “When two or more tribunals in this state have

concurrent jurisdiction, the tribunal first assuming jurisdiction

retains it to the exclusion of all other tribunals in which the

action might have been initiated. Thereafter another tribunal,

although it might originally have taken jurisdiction, may be

restrained by prohibition if it attempts to proceed.” (Scott, supra,

46 Cal.2d at p. 81.) The court stated that its intent was to

“declare a simple workable rule upon the law as it exists.” (Id. at

p. 89.)

Later the same year, the Supreme Court followed Scott in

Taylor v. Superior Court (1956) 47 Cal.2d 148. The court

summarized the holding of Scott: “The Scott case holds that

where two tribunals in this state have concurrent jurisdiction to

determine jurisdiction, the question of which shall have exclusive

jurisdiction shall be determined by the tribunal whose

jurisdiction was first invoked, and proceedings in the tribunal

whose jurisdiction was subsequently sought will, if not

10

voluntarily stayed, be halted by prohibition until final

determination of the jurisdictional question by the tribunal

where jurisdiction was first laid.” (Taylor, supra, 47 Cal.2d at p.

149.) The court noted that the employee “first invoked the

jurisdiction of the commission and thereafter sought that of the

superior court to adjudicate his claims as to the same injury.”

(Id. at p. 151.) The court continued, “Therefore, under [Scott], the

superior court should not try the case until the commission has

made a final determination of the issue as to whether it or the

court has jurisdiction to proceed; i.e., as to whether [the

employee’s] alleged injuries are covered by the workmen’s

compensation laws so far as concerns his claims against

petitioner. Meanwhile, the commission should proceed to a

determination of such issue. Its adjudication, when final, will be

conclusive on all parties.” (Ibid.)

Here, the superior court exercised jurisdiction first.

Plaintiffs’ complaint was filed on January 22, 2018, and

defendants’ demurrer was filed on March 5, 2018. Defendants’

WCAB application was filed on March 14, 2018. Under Scott, the

appropriate tribunal to determine the question of exclusive

jurisdiction is the superior court, because that tribunal exercised

jurisdiction first.

The WCAB acknowledges the holding of Scott, but argues

that no error occurred. It asserts, “Even if it is assumed

arguendo that the [superior court] holds precedential jurisdiction

to determine jurisdiction pursuant to Scott, the [court] deferred

jurisdiction to the WCAB on the issue of insurance coverage.”

The WCAB cites Sea World Corp. v. Superior Court (1973) 34

Cal.App.3d 494 (Sea World), in which the plaintiff “suffered

physical injury of undetermined character and extent as the

11

result of having bestridden a killer-whale owned by Sea World,

an action she took at the request of Sea World, made through her

supervisor at a time when she was employed as a secretary by

Sea World.” (Id. at p. 496.) The plaintiff alleged in a civil action

that she was not acting in the scope of her employment at the

time. (Id. at p. 497.) A WCAB proceeding was also initiated the

same day, and Sea World contended that “WCAB has a priority of

right to determine the threshold question of subject matter

jurisdiction because it first obtained jurisdiction over the parties

as a result of the service effected four days before the superior

court obtained jurisdiction over all the parties.” (Id. at p. 497.)

It appears that the parties in Sea World did not

immediately address the threshold issue of exclusive jurisdiction.

Instead, Sea World moved for summary judgment in the superior

court, thus “the jurisdiction of the superior court was invoked

specifically by Sea World to make the threshold determination

based upon what was originally claimed to be a showing of

undisputed facts.” (Sea World, supra, 34 Cal.App.3d at p. 502.)

Sea World’s later attempt to question the superior court’s

jurisdiction contradicted its earlier motion for summary

judgment: “Sea World’s motion was not to stay proceedings in

the superior court because of the claimed prior right of WCAB,

but was for summary judgment, calling for a determination of the

issue which Sea World now says the superior court might not

determine because WCAB had the prior right to do so.” (Id. at p.

503.) The Court of Appeal held that as a result, “Sea World has

waived, or is estopped to urge, objection to the jurisdiction which

it has invited the superior court to exercise, which the superior

court has exercised, which exercise has been followed by a

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suspension of proceedings before WCAB amounting to a waiver

by that tribunal of its priority of right.” (Id. at p. 503.)

The WCAB cites the statement in Sea World that

“[p]recedential jurisdiction”—concurrent jurisdiction to determine

exclusive jurisdiction—“may be the subject of waiver by the court

having it.” (Sea World, supra, 34 Cal.App.3d at p. 501.) Indeed,

in Sea World the court cited Scott and several similar cases, and

noted that “the court where jurisdiction first attaches may yield

it, and that it is the right of the court to insist upon or waive its

jurisdiction.” (Sea World, supra, 34 Cal.App.3d at p. 499.) Here,

however, the evidence does not support a finding of waiver or

estoppel, and neither the WCAB or defendants assert facts to

support such a finding. To the contrary, from the initiation of the

action, plaintiffs and defendants consistently asserted their

respective positions regarding jurisdiction, unlike the employer in

Sea World. Thus, waiver or estoppel does not compel us to depart

from the rule in Scott.

Moreover, the record does not support the WCAB’s

characterization that the superior court’s deference of jurisdiction

was intentional rather than erroneous. The court stated that

plaintiffs had not “indicated why a WCAB trial on the issue of

insurance is an issue,” suggesting that the court did not recognize

that the insurance question was central to the issue of exclusive

jurisdiction. Moreover, the court focused on the traditional

standards for a preliminary injunction3 and court’s lack of



3 “[A]s a general matter, the question whether a

preliminary injunction should be granted involves two

interrelated factors: (1) the likelihood that the plaintiff will

prevail on the merits, and (2) the relative balance of harms that

13

authority to impose a stay under Labor Code section 5955. Thus,

the record does not support a finding that the trial court

intentionally “waived” jurisdiction.

The WCAB and defendants also assert that the rule in

Scott may be disregarded so as long as proceedings in one

tribunal are stayed, so there is no risk of inconsistent rulings.

Defendants assert, “While Scott does address similar issues

associated with concurrent jurisdiction, the reasoning behind the

decision does not apply in this particular case. The Court in Scott

was primarily concerned with the risks of associated with

multiple tribunals potentially issuing inconsistent rulings. . . .

That is not an issue here since the Superior Court imposed its

own stay precluding the possibility of multiple rulings.”

Defendants argue that the problem in Scott was that “[a]llowing

both tribunals to continue simultaneously would create the

possibility for multiple or inconsistent rulings.” Here, the

superior court “eliminated any risk of multiple or inconsistent

rulings” by imposing a stay, and therefore there is no need to

follow the rule articulated in Scott. Similarly, the WCAB asserts

that “there is . . . no danger of multiple or inconsistent rulings in

this case” because the superior court “stay[ed] proceedings in the

civil case pending the outcome of the insurance coverage

arbitration.”

We decline to disregard clear Supreme Court precedent

simply because the trial court avoided the potential for

inconsistent rulings. Scott provided a “simple workable rule” in

the situation presented here. The “tribunal first assuming

jurisdiction retains it” to determine the question of exclusive



is likely to result from the granting or denial of interim injunctive

relief.” (White v. Davis (2003) 30 Cal.4th 528, 554.)

14

jurisdiction. The first tribunal to assume jurisdiction over the

issues in this case was the superior court. Under Scott, both the

superior court and the WCAB erred in their orders allowing the

questions central to exclusive jurisdiction to be determined by the

WCAB instead of the superior court.4

Let a writ of mandate issue directing the superior court to vacate its April 16, 2019 order staying proceedings in this action, and directing the WCAB to vacate its hearing to determine defendants’ insurance status (originally set for June 6, 2019). All proceedings in the WCAB shall remain stayed, and the trial court

shall conduct further proceedings limited to determining which tribunal has exclusive jurisdiction over plaintiffs’ claims. Plaintiffs are entitled to their costs in this proceeding.