# Doney v. Tambouratgis

> California Supreme Court · January 4, 1979 · 23 Cal. 3d 91

URL: https://www.frixlaw.com/law-library/cases/9611433

## Case

- **Full name:** PATRICIA DONEY, Plaintiff, Cross-Defendant and Respondent, v. DINO TAMBOURATGIS, Defendant, Cross-Complainant and Appellant
- **Court:** California Supreme Court
- **Decided:** January 4, 1979
- **Citations:** 23 Cal. 3d 91; 151 Cal. Rptr. 347; 587 P.2d 1160; 44 Cal. Comp. Cases 127; 1979 Cal. LEXIS 186
- **Precedential status:** Published
- **Opinion:** Dissent by Richardson
- **Judges:** Manuel, Richardson
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9611433

## How later opinions describe it (automated extraction)

- stating that the person requesting to be one of the persons protected from an action at law by the provisions of the workers’ compensation act bears the burden of pleading and proving, as an affirmative defense, that he or she is in the class protected by the act
- holding that the defendant who failed to raise immunity as an affirmative defense under California's workers' compensation laws until appeal waived the defense
- observing that the Workers’ 22 Compensation Act is an affirmative defense

## Opinion text

RICHARDSON, J.
I respectfully dissent, assuming that it is fundamental California law that the lack of subject matter jurisdiction may be raised by the parties at any time, even, for the first time, on appeal. (Consolidated Theatres, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 721 [ 73 Cal.Rptr. 213 , 447 P.2d 325 ]; Keithley v. Civil Service Bd. (1970) 11 Cal.App.3d 443, 448 [ 89 Cal.Rptr. 809 ]; 1 Witkin, Cal. Procedure (2d ed. 1970) Jurisdiction, § 10, pp. 534-536; 3 Witkin, supra, Pleading, § 819, p. 2427.)
The applicable rule was well stated in Keithley , “The question of jurisdiction has been raised by plaintiff for the first time on this appeal. In the court below plaintiff did not contend that the [Civil Service] Board did not have jurisdiction .... Subject matter jurisdiction may not, however, be conferred by consent, waiver or estoppel. [Citations.] Accordingly, an objection to subject matter jurisdiction may be raised for the first time on appeal since it is never deemed waived. [Citations.]” (Italics added, p. 448.)
We have recognized a second controlling principle. “[I]t is settled that the [Workers’ Compensation Appeals] Board has exclusive jurisdiction to determine the extent of recovery for an injury suffered when the ‘conditions of compensation concur.’ (Lab. Code, § 3600; Scott v. Industrial Acc. Com. (1956) 46 Cal.2d 76, 83 [ 293 P.2d 18 ].) Conversely the employer is immunized under sections 3600 and 3601 from an action at law brought by the employee for such injury.” (Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 624 [ 102 Cal.Rptr. 815 , 498 P.2d 1063 ].) Unquestionably then, if plaintiff’s injuries arose out of, and in the course of, her employment with defendant (and the majority does not dispute that fact), the trial court herein lacked jurisdiction over the subject matter of plaintiff’s action. It follows inexorably from the interaction of the foregoing principles that defendant had the right to contest the trial court’s jurisdiction at any time. He may even make his contention initially on appeal.
*101 In the matter before us, defendant did not await an appeal to press the jurisdictional point. He raised the issue at the conclusion of plaintiff’s case, based upon the evidence she adduced at trial. As properly noted by the majority, plaintiff’s complaint was entirely silent on the question of whether her injuries arose from her employment. Nonetheless, plaintiff’s own proof established that the injury was work-related, thereby triggering defendant’s motion for nonsuit. Under such circumstances, defendant’s motion was both timely and proper.
The cases cited by the majority (e.g., Popejoy v. Hannon (1951) 37 Cal.2d 159 [ 231 P.2d 484 ]) are inapposite for, with one exception, they fail to consider whether the availability of a workers’ compensation recovery divests the trial court of subject matter jurisdiction, and whether such a jurisdictional defect may be raised at any time. One of the majority’s cases, however, clearly supports the view herein asserted, for it holds that whether an injury was covered by workers’ compensation insurance “is a question going to the jurisdiction of the superior court to entertain the action for wrongful death. [Citations.] It may be raised by a motion for nonsuit [citation] . . . .” (Coleman v. Silverberg Plumbing Co. (1968) 263 Cal.App.2d 74, 79-80 [ 69 Cal.Rptr. 158 ], italics added.)
The majority emphasizes the fact that the trial court had general subject matter jurisdiction over common law tort actions such as plaintiff’s suit. Yet the majority also acknowledges that such jurisdiction lasted only “unless and until it was properly demonstrated that the case was one ‘covered by the statute’ due to the presence therein of the conditions of compensation set forth in section 3600 of the Labor Code.” (ante, p. 98.) The majority inexplicably fails to realize that plaintiff herself proved at trial that she suffered an injury which arose out of, and in the course of her employment. (The evidence disclosed that plaintiff was assaulted by her employer, on the. employment premises, during her working hours, and that the assault was causally connected with plaintiff’s employment.)
The majority suggests (ante, p. 98) that the record is silent regarding defendant’s workers’ compensation insurance coverage. However, the premise of such coverage was implicit in defendant’s motion for nonsuit, which asserted the availability of a workers’ compensation remedy for plaintiff. Moreover, state law requires every employer to secure such coverage (Lab. Code, § 3700). Furthermore, every licensee such as defendant is required both to designate in his license application the name of his workers’ compensation insurer and to acknowledge his *102 awareness of the requirement for insurance coverage. (Bus. & Prof. Code, § 16545.) Thus, we reasonably may presume that defendant had secured coverage. Of course, in the event such coverage were found not to exist, the present action could be readily reinstated.
I would reverse the judgment in plaintiff’s favor.
Clark, J., concurred.
Appellant’s petition for a rehearing was denied February 1, 1979. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9611433. Public record. Not legal advice.