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Fermino v. Fedco, Inc.

Supreme Court of California

May 12, 1994, Decided

No. S033096.


 [*706]  [**560]  [***19]    In this case we consider whether an employee subject to false imprisonment at the hands of her employer may sue that employer in a civil action, or whether such a suit is barred by the exclusivity provisions of the Workers'  [****2]  Compensation Act (Lab. Code, § 3600, 3602). We conclude that her suit would not be barred, because an employer that falsely imprisons its employee has stepped outside its proper role, and an injury resulting therefrom is beyond the scope of what we have termed the "compensation bargain."  [**561] 


 CA(1)(1) ] Because this case comes to us after the sustaining of a demurrer, all well-pleaded allegations of the complaint will be taken as true. (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 747 [7 Cal.Rptr.2d 808, 828 P.2d 1195].)

The facts, as stated in plaintiff's second amended complaint, are as follows. Plaintiff Fermino was employed as a salesclerk in defendant's department store, working in the jewelry department. The store's personnel manager summoned her to a windowless room, and proceeded to interrogate her concerning her alleged theft of the proceeds of a $4.95 sale to a customer. The personnel manager was joined by the store's loss prevention  [*707]  manager and by two security agents. One of the security agents stated that a customer and an employee, who were waiting in the next room, had witnessed [****3]  the theft. He then demanded that Fermino confess. He told her that the interrogation could be handled in two ways: the "Fedco way" or the "system way." The "Fedco way" was to award points each time she denied her guilt. When 14 points were reached, she would be handled the "system" way, i.e., handed over to the police. After each of plaintiff's repeated and vehement denials, the security agent said "one point." The loss prevention manager "hurled profanities" and demanded that Fermino confess.

Fermino's repeated requests to leave the room and to call her mother were denied. She was physically compelled to remain in the room for more than one hour. At one point Fermino rose out of her chair and walked toward the door of the interrogation room in an attempt to leave; however, as soon as she made a move toward the door, one of the security guards slid in front of the door, threw up a hand and gestured her to stop.

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7 Cal. 4th 701 *; 872 P.2d 559 **; 30 Cal. Rptr. 2d 18 ***; 1994 Cal. LEXIS 2193 ****; 94 Cal. Daily Op. Service 3399; 9 I.E.R. Cas. (BNA) 1132; 59 Cal. Comp. Cases 296; 94 Daily Journal DAR 6423

JULIE LORETTA GLASS FERMINO, Plaintiff and Appellant, v. FEDCO, INC. et al., Defendants and Respondents.

Prior History:  [****1]  Superior Court of Los Angeles County, No. BC 032054, Charles Carter Lee, Judge.

Disposition: The judgment of the Court of Appeal is reversed.


imprisonment, assault, bargain, distress, intentionally, interrogation, theft, confinement, emotional, misconduct, infliction, demotion, tortious, detain, harassment, detention, workplace, merchant, confess, deliberately

Civil Procedure, Appeals, Standards of Review, De Novo Review, Responses, Defenses, Demurrers & Objections, Demurrers, Workers' Compensation & SSDI, Coverage, Actions Against Employers, Intentional Misconduct, Employment Status, Employers, Compensability, Course of Employment, General Overview, Torts, Intentional Torts, False Imprisonment, Criminal Law & Procedure, Crimes Against Persons, Elements, Defenses, Defense of Property, Justifications & Privileges, Theft & Related Offenses, Larceny & Theft, Remedies, Labor & Employment Law, Wrongful Termination, Public Policy, Governments, Legislation, Interpretation, Assault & Battery, Simple Offenses, Penalties, Misconduct of Employee, Statutory Offenses, Postconviction Proceedings, Imprisonment