Judge: Ashfaq G. Chowdhury, Case: 23GDCV01334, Date: 2024-01-26 Tentative Ruling
Case Number: 23GDCV01334 Hearing Date: January 26, 2024 Dept: E
DEMURRER WITH MOTION TO STRIKE
[CCP
§430.10 et. seq.; CCP § 436]
Date: 1/26/24
Case No: 23GDCV01334
Trial Date: None
Set
Case Name: Anna Markosyan v. Gor Enterprises, Inc.,
D/B/A Paradise Pastry & Cafe
Moving
Party: Defendant GOR Enterprises, Inc. d/b/a Paradise Pastry & Café
Responding
Party: Plaintiff Anna Markosyan
Pleading filed on: June
23, 2023
Demurrer filed on: November
3, 2023
Pleading served on: Not on file, but OSC re: failure to file
POS discharged on 11/30/2023
Meet and Confer? Ok
RELIEF REQUESTED:
Sustain demurrer to
the Complaint on the grounds that it fails to state facts sufficient to
constitute a cause of action.
CAUSES OF ACTION: from Complaint
1)
Premises Liability
2)
General Negligence
SUMMARY OF FACTS:
MEET AND CONFER
A party
filing a demurrer “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 shall meet and confer at least five days before the date the
responsive pleading is due. If the parties are not able to meet and confer at
least five days prior to the date the responsive pleading is due, the demurring
party shall be granted an automatic 30-day extension of time within which to
file a responsive pleading, by filing and serving, on or before the date on
which a demurrer would be due, a declaration stating under penalty of perjury
that a good faith attempt to meet and confer was made and explaining the
reasons why the parties could not meet and confer.” (Code Civ. Proc., §430.41,
subd. (a)(2).) Failure to sufficiently meet and confer is not grounds to
overrule or sustain a demurrer. (Id., §430.41(a)(4).)
Defendants
submit the declaration of David N. Lake who states that he spoke with
Plaintiff’s counsel, Armen Tashjian on October 18, 2023 via phone call, where
he raised the issue of preemption under the Workers’ Compensation Act. Mr. Lake
also followed up with email, stated the grounds for demurrer, and requested
authority as to why preemption would not apply. He did not receive a response.
Theses communications show that the parties were unable to informally resolve
the disputes. Therefore, the meet and confer requirement has been met.
ANALYSIS:
Demurrer
Legal
Standard
A demurrer
for sufficiency tests whether the complaint states a cause of action. (Hahn
v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers,
courts read the allegations liberally and in context. (Taylor v. City of Los
Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The
court “treat[s] the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions or conclusions of fact or law ....” (Berkley
v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the
defects must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters; therefore, it lies only where the defects appear on the face
of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.)
The only issue involved in a demurrer hearing is whether the complaint, as it
stands, unconnected with extraneous matters, states a cause of action. (Hahn,
supra, 147 Cal.App.4th at 747.)
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 ... 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.) “Generally it is an abuse of discretion to sustain a demurrer without
leave to amend if there is any reasonable possibility that the defect can be
cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d.)
Claims Are
Barred Under Workers’ Compensation Exclusivity
Workers’
compensation exclusivity
bars claims against employers or workers’ compensation
insurers for injuries that fall within the scope of the exclusive remedy
provisions. (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001)
24 Cal.4th 800, 811.) This summation of worker’s compensation
exclusivity is based upon the following statutory provisions: Labor Code
sections 3600, subdivision (a), section 3602, subdivision (a), as well as
section 5300, subdivision (a). (Lab. Code, §§ 3600, subd. (a); 3602, subd. (a);
5300, subd. (a); Charles J. Vacanti, supra, at 813.) Together,
these provisions establish that the liability of employers and insurers for
“industrial injury which results in occupational disability or death” is
limited to workers' compensation
remedies.¿(Charles J. Vacanti, at 813.)
Here, the
complaint alleges that Plaintiff incurred injuries “while performing her work
duties at her place of employment.” (Complaint, ¶¶ L-1, GN-1.) Specifically,
she “tripped/slipped and fell on the stairs on her way to the freight elevator
while carrying boxes of dough suffering significant injuries.” (Id.) These
allegations, on their face, show that Plaintiff’s claims and complaint are
subject to the Workers’ Compensation Act because she incurred injuries within
the scope of employment. Plaintiff’s argument that her slip and fall on a
staircase while carrying baking supplies lacks the direct connection to
employment is belied by her direct assertion that she was “performing her work
duties.” The Complaint on its face shows that Plaintiff incurred injuries
within the scope of her employment such that her causes of action for premises
liability and general negligence are barred.
Thus, the Court SUSTAINS the demurrer to the Complaint WITH 10
days LEAVE TO AMEND.