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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”].)

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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.

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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

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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.

The judgment is affirmed. The Reynauds are entitled to costs on appeal.