Judge: Daniel M. Crowley, Case: 22STCV07824, Date: 2022-12-14 Tentative Ruling

Case Number: 22STCV07824    Hearing Date: December 14, 2022    Dept: 28

Defendant Fenix Marine Services, LTD’s Demurrer

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On March 3, 2022, Plaintiff Vicenta Christensen (“Plaintiff”) filed this action against Defendant Fenix Marine Services, LTD (“Fenix”) for negligence and premises liability.

On September 14, 2022, Plaintiff filed the FAC.

On November 10, 2022, Plaintiff filed the SAC, adding a cause of action for dangerous condition of public property and Defendant City of Los Angeles (“City”).

On November 16, 2022, Fenix filed a Demurrer to be heard on December 14, 2022. Plaintiff filed an opposition on December 1, 2022. On December 7, 2022, Fenix filed a reply.

Trial is scheduled for August 31, 2023.  

PARTY’S REQUESTS

Fenix requests the Court sustain demurrer, without leave to amend, on the basis that the complaint fails to state a cause of action, and that the causes of action are preempted by the Worker’s Compensation Exclusivity Rule.

Plaintiff requests the Court overrule the demurrer.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

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.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  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, 147 Cal.App.4th at 747.)

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. Premises liability ‘is grounded in the possession of the premises and the attendant right to control and manage the premises’; accordingly, ‘mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.’ But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)

A land possessor does not have a duty to warn an invitee of obvious dangers but does have a duty to warn about dangerous conditions known to the possessor and those that might have been found by exercise of ordinary care. (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27.) Obvious dangerous are those that which that an invitee will perceive “that which would be obvious to him through the ordinary use of his senses.” Id. A land possessor is not liable for damages caused “by a minor, trivial, or insignificant defect in property.” (Caloroso v. Hathaway (2004) 122 Cal. App. 4th 922, 927.)

“There is a strong presumption under California Law, commonly referred to as the Privette doctrine, that “a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety...mean[ing] a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job.” Gonzalez v. Mathis (2021) 12 Cal. 5th 29, 37. This applies even when the hiring party, while acting as a landlord, failed to comply with workplace safety requirements, resulting in the injury. SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal. 4th 590, 595.   

“A hirer is liable to an employee of a contractor insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries.” Hooker v. Department of Transportation (2002), 27 Cal. 4th 200, 202. “When a hirer of an independent contractor, by negligently furnishing unsafe equipment to the contractor, affirmatively contributes to the injury of an employee of the contractor, the hirer should be liable to the employee for the consequences of the hirer's own negligence.” McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal. 4th 219, 225. “Affirmative contribution” occurs where the hirer is “actively involved in, or asserts control over, the manner of performance of the contracted work. Such assertion of control may occur when the hiring entity specifically directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished. (Id. at p. 215; Padilla v. Pomona College, (2008) 166 Cal. App. 4th 661, 671 fn. 13.)

“When a complaint affirmatively alleges facts indicating coverage by Workers’ Compensation laws but fails to state additional facts negating the application of the exclusive remedy rule, no civil action will lie and the complaint is subject to a general demurrer.... This pleading requirement is jurisdictionally-based; if the complaint indicates that the action is within the scope of the Workers’ Compensation law, the superior court has no jurisdiction over it unless additional allegations indicate that an exception to the exclusive remedy rule applies.” Hughes v. Western MacArthur Co. (1987) 192 Cal.App.3d 951, 957.

DISCUSSION

Judicial Notice

The Court takes notice of the request documents, pursuant to Evidence Code Sections 452(c) and 452(d).

Demurrer

Plaintiff’s complaint alleges that Plaintiff was walking on the subject premises, owned by Defendants, when she tripped on a “dilapidated and uneven surface, causing her to trip and fall.” In regarding to Fenix, Plaintiff only added paragraph 12, which stated “Prior to the filing of this amended complaint, Defendant EAGLE MARINE SERVICES, LTD., was to identify in discovery the responsible entity who constructed the uneven surface at the Premises that caused Plaintiff’s injuries as alleged herein, but Defendant EAGLE MARINE SERVICES, LTD., has refused to provide such responses.”

Plaintiff’s complaint alleges that Defendants, as owners and controllers of the subject property, failed to use reasonable care to keep the common areas of the subject premises in reasonably safe condition. Plaintiff specifically notes that the common area stairs were unsafe and hazardous at the time of the incident and that there was no warning provided to Plaintiff of the dangerous character of the stairs, resulting in Plaintiff falling and injuring herself.

Fenix alleges that Plaintiff’s action is barred by worker’s compensation. In September 2018, Fenix changed its name from Eagle Marine Services LTD to Fenix Marine Services LTD. (Ex. 1.) Plaintiff was employed by Fenix at the time of her accident. The lease agreement for the terminal was not updated to reflect the name change until after the subject incident. (Ex. 4.) Plaintiff has already settled her workers’ compensation claim with Fenix as of March 3, 2022. (Ex. 5.) Plaintiff’s complaint does not allege that Eagle Marine Services LTD is a different entity than Fenix, meaning that as amended, the SAC does not bring a proper cause of action.

Plaintiff argues that Fenix should not be allowed to escape liability by merely shifting the name or assets to a new corporation, citing Thomson v. L.C. Roney & Co. (1952) 112 Cal.App.2d 420, 429. The Court agrees. Fenix has already paid workers’ compensation to Plaintiff for this action—a name change does not make Fenix a separate entity. Both parties agree that Fenix and Eagle are the same entity, and Plaintiff does not contest that Fenix agreed to pay workers’ compensation.

Plaintiff argues that Fenix was not Plaintiff’s employer at the time of the incident, and that the SAC explicitly states as such.

Regardless of the actual employment status between Plaintiff and Fenix, Fenix provided judicially noticed documentation that Plaintiff has received compensation for the injury in question. The mere fact that Fenix’s lease had not been updated to reflect a corporate name change does not mean that Plaintiff can pursue double recover against Fenix. Labor Code §3600 provides that Workers’ Compensation is the exclusive remedy against employers; by nature of having her workers’ comp claim approved, Plaintiff has identified Fenix as her employer at the time of the incident. Plaintiff has offered no alternative explanation for the judicially noticed documents, merely stating that Fenix was a third party and cannot delegate its duty. Fenix has not delegated its duty—it has already agreed to pay compensation. Plaintiff is not entitled to double recovery. Plaintiff’s “reliance on [Eagle] and [Fenix] being separate entities in resolving her workers’ compensation case...” does not change the fact she is not entitled to double recovery. The Court sustains the demurrer.

CONCLUSION

Defendant Fenix Marine Services, LTD’s Demurrer is SUSTAINED, without leave to amend.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.