Judge Anne Hwang, Case Number: 21STCV30845, Date: 2023-09-13 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

DEPARTMENT	32
HEARING DATE	September 13, 2023
CASE NUMBER	21STCV30845
MOTION	Demurrer
MOVING PARTY	Cross Defendant Curtin Maritime
OPPOSING PARTY	Cross Complainant Miguel A. Bonilla and Ventura Transfer Company

Cross Defendant Curtin Maritime (Curtin) demurs to the first amended cross-complaint (FACC) filed by Cross Complainant Miguel A. Bonilla and Ventura Transfer Company (collectively “Ventura”). The demurrer is opposed.

This case resulted when Miguel Bonilla allegedly drove over Plaintiff Larry Chavez Jr.’s foot at Port D of the Port of Long Beach. (Complaint ¶ 1.) Plaintiff was employed by Curtin at the time, and Bonilla was employed by the Ventura Transfer Company. (Complaint ¶ 9.) Plaintiff was guiding a container to Curtin’s barge when the incident occurred. (Complaint ¶ 8–10.) Plaintiff filed an action against Bonilla and Ventura. Then, on April 21, 2023, Ventura filed a cross-complaint against Curtin, and later a FACC on June 26, 2023, which is the subject of this demurrer. In it, Ventura sued Curtin for: (1) implied equitable indemnity; (2) contribution; (3) declaratory relief; and (4) express contractual indemnity.

On July 28, 2023, Curtin demurred to Ventura’s first, second, and third causes of action arguing they failed to sufficiently state facts to constitute a cause of action. Curtin mainly argues that these causes of action are barred by the federal Longshore and Harbor Workers’ Compensation Act.

(2) Notice of and Application for Lien by American Longshore Mutual Association, LTD - Granted under Cal. Evid. Code § 452(d), (h).

(3) Cross-Complainant’s First Amended Cross-Complaint – Granted under Cal. Evid. Code § 452(d).

The Court declines to address Curtin’s objection to Ventura’s exhibits attached to the Declaration of Francesca B. Cheng, because the documents do not impact the Court’s ruling herein.

“The primary function of a pleading is to give the other party notice so that it may prepare its case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc. §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

Counsel for Curtin and Ventura met and conferred prior to filing this demurrer pursuant to Code Civ. Proc. § 430.41, subd. (a)(3). (Luk Decl. ¶ 2–10.)

All three causes of action that Curtin demurs to are based on the theory that if Plaintiff recovers judgment against Ventura, then Curtin is liable to Ventura based on its own negligence. (FACC ¶ 11.)

The Longshoremen’s and Harbor Worker’s Compensation Act (LHWCA) “establishes a comprehensive federal workers' compensation program that provides longshoremen and their families with medical, disability, and survivor benefits for work-related injuries and death.” (Howlett v. Birkdale Shipping Co., S.A. (1994) 512 U.S. 92, 96; 33 U.S.C. §§ 901 et seq.) The LHWCA applies only to employees engaged in maritime employment, “including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker.” (33 U.S.C. § 902 (3).)

An employer under the LHWCA is “liable for and shall secure the payment to his employees of the compensation payable under sections 907, 908, and 909 of this title.” (33 U.S.C. § 904.)

The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under the chapter, or to maintain an action at law or in admiralty for damages on account of such injury or death. …

Graco, Inc. v. Colberg, Inc. (1984) 162 Cal.App.3d 322, 328, held that this exclusiveness of liability provision of LHWCA precludes a third party from obtaining contribution from an employer who has paid benefits under the act. “Section 905 effectively eliminates any underlying tort liability of the employer.” (Seide v. Bethlehem Steel Corp. (1985) 169 Cal.App.3d 985, 989.)

Ventura relies on the Jones Act (46 U.S.C. §§ 30101–31113), which applies to “seamen.” The Jones Act provides, in pertinent part: “Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law. …” (46 U.S.C. App. § 688(a) (emphasis added).) “The Jones Act and the LHWCA each provide a remedy to the injured maritime worker; however, each specifies different maritime workers to be within its reach.” (Southwest Marine, Inc. v. Gizoni (1991) 502 U.S. 81, 86.)

Since state and federal courts have concurrent jurisdiction over the LHWCA and Jones Act, state courts apply federal substantive law. (Spears v. Kajima Engineering & Construction, Inc. (2002) 101 Cal.App.4th 466, 474.)

Curtin argues the allegations in the FACC are barred by the exclusiveness of liability provision in the LCHWA, 33 U.S.C. § 905(a), because its liability is exclusively limited to section 904 and Plaintiff is a qualifying longshoreman. Ventura argues that this provision does not apply because Plaintiff is alleged to be a seaman under the Jones Act, and argues that whether Plaintiff actually is a seaman under the Jones Act cannot be decided on a demurrer. (Opp. at pgs. 3-5.) Curtin responds that regardless of whether Plaintiff is a seaman, the exclusiveness of liability provision nevertheless bars Ventura’s claims. (Reply at pg. 3.)

The exclusiveness of liability provision broadly applies to the “liability of [Curtin]” to “anyone otherwise entitled to recover damages,” which would include Ventura. By contrast, the section of the Jones Act cited by Ventura expressly states that any seaman may maintain an action for damages “at his election.” Therefore, the Jones Act status as a seaman modifies the employer’s exclusive liability to the “employee” or his “legal representative.” Here, Plaintiff has not elected to maintain an action for damages against Curtin in his complaint. Ventura cites to no authority that interprets this provision to permit a third-party, such as Ventura, to make this election for Plaintiff. Accordingly, even if the Court assumes for purposes of this demurrer that Plaintiff is a Jones Act seaman, Ventura has not established that the exclusiveness of liability provision does not apply to Ventura, as opposed to Plaintiff.

Ventura further argues that the Court should not take judicial notice of the truth of the information contained in the notice of lien for purposes of this demurrer and, in any event, Curtin is not currently paying workers’ compensation benefits and therefore the exclusiveness of liability provision does not apply.

As an initial matter, the Court takes judicial notice that American Longshore Mutual Association, Ltd. claims and applies for a lien for payment of workers’ compensation benefits to Plaintiff under the LHWCA. (See Evid. Code § 452(h), (d); see also Scott v. JP Morgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754 (citations omitted) (“Where… judicial notice is requested of a legally operative document—like a contract—the court may take notice not only of the fact of the document and its recording or publication, but also facts that clearly derive from its legal effect. …Moreover, whether the fact derives from the legal effect of a document or from a statement within the document, the fact may be judicially noticed where … the fact is not reasonably subject to dispute.”)

Ventura argues that Curtin’s purported failure to fully pay worker’s compensation benefits takes Curtin outside of the exclusiveness of liability provision in the LCHWA. Ventura cites to no authority to support this proposition; indeed, the language of the provision states that “an injured employee, or his legal representative … may elect to claim compensation” if the “employer fails to secure payment of compensation as required.” (33 U.S.C. § 905(a).) The relief owed based on a failure to pay full benefits appears to be properly sought by Plaintiff, not a third-party.

Accordingly, Curtin’s demurrer to Ventura’s first amended cross-complaint is sustained with leave to amend.

Curtin shall give notice of the Court’s order and file a proof of service of such.