Judge: Anne Hwang, Case: 21STCV42358, Date: 2024-02-27 Tentative Ruling

Case Number: 21STCV42358    Hearing Date: February 27, 2024    Dept: 32

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. 

TENTATIVE RULING

MOTION

On November 16, 2021, Plaintiff Andre Cohen (“Plaintiff”) filed a form complaint against Defendants Bevmo Holdings, LLC, Beverages & More, Inc., Jeffrey A. Fischer and Hilary Fischer, Trustees of J&H Fischer Trust, and Does 1 to 50 for negligence and premises liability.

Defendant Beverages & More, Inc. (“Defendant”) now demurs to the entire complaint arguing that the causes of action fail since they are: (1) precluded by the worker’s compensation exclusivity doctrine, (2) barred by res judicata, and (3) uncertain. Plaintiff opposes and Defendant replies.  

LEGAL STANDARD

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  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.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) 

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

            Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).  

MEET AND CONFER

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).)

According to the Declaration of Kendall Cole, it appears the parties have met and conferred by telephone prior to bringing this demurrer. (See Cole Decl. ¶ 4–8.)

JUDICIAL NOTICE

The Court grants Defendant’s request for judicial notice of the Order Approving Joint Compromise and Release by the Workers Compensation Appeals Board (Case Nos. ADJ12857158; ADJ13286557). (See Lake v. Lakewood Chiropractic Center (1993) 20 Cal.App.4th 47, 53.)

ANALYSIS

Defendant argues that Plaintiff was injured within the scope of employment with Defendant and filed a worker’s compensation claim. A release was purportedly signed.

Defendant filed this demurrer on the assumption that Plaintiff’s complaint pertains to same incident that was settled though the worker’s compensation appeals board. (Demurrer at p. 2.) Here, the complaint states that the incident took place on November 17, 2019 at 12123 Ventura Boulevard, Studio City, California. (Complaint at p. 4.) Plaintiff does not allege he was Defendant’s employee. Additionally, exhibit 1 does not show that Plaintiff was Defendant’s employee on that date, or that he was working when the injury took place.

In opposition, Plaintiff admits his complaint arises out of his employment with Defendant, but that Defendant may be liable beyond worker’s compensation. (Opposition at p. 3.) Plaintiff alleges that the ceiling at the subject property caved in, causing him injuries. Plaintiff alleges that Defendant may have signed a lease agreement with the landlord, making it responsible for the dangerous condition, and thus beyond the scope of worker’s compensation. However, Plaintiff does not provide any authority for any exception to workers’ compensation exclusivity.

Regardless, looking at the face of the complaint and the judicially noticed exhibit 1, the Court cannot determine that the claim is barred by worker’s compensation exclusivity or res judicata. Exhibit 1 does not contain information that shows the compromise and release pertains to the same facts in the complaint.

Lastly, Defendant argues the demurrer should be sustained for uncertainty so that Defendant may ascertain if the claims arise from the prior worker’s compensation claim. However, here, since Plaintiff has alleged a date and location of the incident, and has alleged a dangerous condition caused him injuries, there are enough facts for Defendant to ascertain the claims against it.  

Accordingly, the demurrer is overruled.  

CONCLUSION AND ORDER

Therefore, the Court OVERRULES Defendant’s demurrer to Plaintiff’s complaint.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.