Judge Colin Leis, Case 21STCV46661 2022-08-12 Tentative Ruling

The court considered the moving papers, opposition, and reply filed in connection with this motion. The court notes that Plaintiff filed a sur-reply without leave of court, and so the court disregards it.

MOVING PARTY: Defendants Arzuman Brothers, Inc., Arman Arzuman, Edgar Arzumanyan, and Andrius Vaitkevicius, erroneously sued as Andrew Vi

Demurrer by Defendants Arzuman Brothers, Inc., Arman Arzuman, Edgar Arzumanyan, and Andrius Vaitkevicius, Erroneously Sued as Andrew Vi

The court considered the moving papers and opposition filed in connection with this motion. No reply was filed.

Plaintiff Daniel Mateo filed this action on December 22, 2021. Plaintiff alleges that he was injured while performing work for a residential construction project located at 10440 W. Whipple Street, Los Angeles, California 91602 (the “Premises”). Defendant Crespo’s Framing Inc. (“Crespo’s”) is alleged to be Plaintiff’s employer (but misclassified as an independent contractor), and Defendants Arzuman Brothers, Inc., Arman Arzuman, Edgar Arzumanyan, and Andrius Vaitkevicius (collectively, “Arzuman Brothers”) are alleged to own the Premises. Plaintiff asserts causes of action for (1) negligence, (2) premises liability, (3) fraud, (4) intentional infliction of emotional distress, (5) negligent infliction of emotional distress, (6) willful misclassification, (7) failure to pay wages, (8) failure to pay overtime, (9) failure to provide meal and rest periods, (10) failure to provide itemized wage statements, (11) waiting time penalties, and (12) unfair business practices.

Crespo’s and Arzuman Brothers separately demur to all causes of action on the basis that each fails to state facts sufficient to constitute a cause of action and that each is uncertain.

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.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Second, the settlement agreements submitted by Crespo’s are not proper subjects of judicial notice, and so to the extent that Crespo’s bases its demurrer to any causes of action on the existence of the settlement agreements, the demurrer is overruled.

Third, Crespo’s argues that no cause of action lies as to Joel Crespo or Aurelio Trejo as individuals, but neither Joel Crespo nor Aurelio Trejo is named as a moving party on the demurrer.

Fourth, as to the merits of the causes of action, the court overrules the demurrer to the causes of action for negligence, premises liability, intentional infliction of emotional distress (“IIED”), Labor Code violations, and violation of Business and Professions Code section 17200 and sustains the demurrer to the causes of action for fraud and negligent infliction of emotional distress.

With respect to the negligence and premises liability claims, Plaintiff alleges that Crespo’s duty arose from its ownership, possession, or control of the Premises. (Compl., ¶¶ 28, 42, 51.) Plaintiff alleges that Crespo’s caused or allowed a dangerous condition to exist on the Premises and failed to adequately warn Plaintiff about such condition. (Compl., ¶¶ 27-28.) And Plaintiff alleges that his injuries were a result of Crespo’s breach. (Compl., ¶¶ 47, 54.) This is enough to overcome demurrer.

Fraud claims must be supported by facts showing how, when, where, to whom, and by what means the representations were made. (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) And when fraud is asserted against a corporation, additional facts are required, such as the names of the persons who made the fraudulent representations and their authority to speak. (Ibid.) Here, Plaintiff does not allege which of the defendants made the intentional misrepresentations nor facts showing their authority to speak on behalf of Crespo’s. The demurrer is sustained.

Crespo’s argues that the IIED claim must fail because falling as the result of an accident is not outrageous conduct directed at Plaintiff. But the IIED claim is not based on those facts (Compl., ¶¶ 78-80.) Instead, the IIED claim (as well as the NIED claim) is based on the misrepresentations made by the various defendants about the nature of the agreement Plaintiff signed. Plaintiff alleges that he did not read or understand English, but was presented an agreement in English and was never told that he was signing away his right to recover damages for his injuries. (Compl., ¶¶ 62-65, 78-80, 87.) Crespo’s contends, however, that misrepresentations about a settlement agreement cannot support infliction of emotional distress because Crespo’s did not owe Plaintiff a duty in Crespo’s representations to Plaintiff about the settlement agreement. (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) Because Plaintiff fails to argue that any such duty exists, the court sustains the demurrer to the NIED cause of action. The court additionally sustains the demurrer to NIED because NIED is not a separate tort different from negligence. The demurrer to the IIED cause of action is overruled.

The court overrules the demurrer to the sixth, seventh, eighth, ninth, tenth, and eleventh causes of action. Crespo’s offers no authority for the proposition that in order to state a cause of action for violations of the Labor Code, a plaintiff is required to allege any more than what is alleged in the complaint.

Lastly, Crespo’s argues that the cause of action for violation of Business and Professions Code section 17200 must fail because Plaintiff’s allegations are conclusory. But as Crespo’s itself acknowledges, the “unlawful” prong of the Unfair Competition Act is established when a business practice that is forbidden by any law is alleged. Here, Plaintiff has alleged violations of various Labor Code sections with reasonable particularity. This is sufficient to state a claim.

Arzuman Brothers contend that the causes of action for negligence, premises liability, IIED, and NIED are barred by the doctrine of workers’ compensation exclusivity.[1] An employee is “generally prohibited from pursuing any tort remedies against [an] employer or its agents” because the employer is already liable for an employee’s injuries arising out of and in the course of the employment under the workers’ compensation system. (Light v. Department of Parks & Recreation, supra, 14 Cal.App.5th at p. 96.) But as Plaintiff points out, Arzuman Brothers are not alleged to be Plaintiff’s employer, and employees may sue third parties for damages resulting from the work injury. (Scalice v. Performance Cleaning Systems (1996) 50 Cal.App.4th 221, 226.)

Arzuman Brothers next argue that the premises liability claim must fail because Plaintiff does not state the nature, extent, and method of his injury. But Arzuman Brothers cites no authority that requires these facts to state such a claim. The demurrer is overruled.

As to the fraud claim, Arzuman Brothers contend that Plaintiff has failed to plead the facts with the requisite particularity, and the court agrees. The allegations, while not ambiguous or uncertain, fail to identify the actual defendants who made the actual misrepresentations to Plaintiff. But contrary to Arzuman Brothers’ contention, because this is not a contract action, there is no additional requirement to attach a copy of the agreement underlying the fraud claim.

Arzuman Brothers attack the IIED cause of action on the basis that the alleged conduct (misrepresenting that nature of a written agreement to Plaintiff) is not extreme or outrageous. The court disagrees and overrules the demurrer.

Finally, Arzuman Brothers contend that there is no factual basis for the unfair business practices claim because the claim is based on violations of the Labor Code, and there are no allegations that Arzuman Brothers committed the violations. (Compl., ¶ 138.) The court agrees, and the demurrer is sustained.

Based on the foregoing, the court overrules Crespo’s demurrer to the causes of action for negligence, premises liability, intentional infliction of emotional distress, Labor Code violations, and violation of Business and Professions Code section 17200. The court sustains Crespo’s demurrer to the causes of action for fraud and negligent infliction of emotional distress, with leave to amend.

The court overrules Arzuman Brothers’ demurrer to the causes of action for negligence, premises liability, IIED, and NIED. The court sustains Arzuman Brothers’ demurrer to the causes of action for fraud and unfair business practices, with leave to amend.

The court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this order. If no amended complaint is filed within 20 days, the court orders Crespo’s and Arzuman Brothers to file and serve an answer within 30 days of the date of this order.

[1] “Although a general demurrer does not ordinarily reach affirmative defenses, it ‘will lie where the complaint ‘ “has included allegations that clearly disclose some defense or bar to recovery.”’” (Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 191.)

DANIEL MATEO ; Plaintiff, vs. CRESPO’S FRAMING INC. , et al., Defendants.	Case No.:	21STCV46661

	Hearing Date:	August 12, 2022

	Time:	8:30 a.m.

	[TENTATIVE] ORDER RE: DEMURRER; DEMURRER BY DEFENDANTS ARZUMAN BROTHERS, INC., ARMAN ARZUMAN, EDGAR ARUMANYAN, AND ANDRIUS VAITKEVICIUS, ERRONEOUSLY SUED AS ANDREW VI