Judge: Lee S. Arian, Case: 23STCV2118, Date: 2023-12-18 Tentative Ruling

Case Number: 23STCV2118    Hearing Date: December 18, 2023    Dept: 27

Lorraine Guillen, et al. v. Airgas USA LLC, et al.

 

Monday, December 18, 2023

 

 

 

 

CASE NUMBER: 23STCV21188

 

[OPPOSED]

 

Motion – Defendants’ Demurrer to Plaintiffs’ Complaint

 

TENTATIVE

            Defendants’ Demurrer to Plaintiffs’ Complaint is SUSTAINED in its entirety. Plaintiffs’ request for leave to amend is GRANTED. Plaintiffs are granted 30 days leave to amend their Complaint.

 

Background

            This suit arises out of the death of Derrick Keith Lute (“Decedent”) who passed away on September 3, 2021, after battling COVID-19, the infectious disease caused by the SARS-CoV-2 virus. This action has been filed by Katherine Lemond and Lorraine Guillen, along with Jaiden Lute, Jada Lute, and Devin Lute, the latter three who are all minors who file this action through their Guardian Ad Litem Lorraine Guillen (hereinafter collectively referred to as “Plaintiffs”).

 

            The Complaint filed on September 1, 2023, alleges four causes of action: (1) negligence, (2) premises liability, (3) intentional tort – retaliation, and (4) fraud. Plaintiffs file this suit against Airgas USA LLC, Airgas Inc., Michelle Hernandez (“Hernandez”), Adrienne Johnson (“Johnson”), Marjorie Chapman (“Chapman”), and Charles Goodman (“Goodman”) (collectively, “Defendants”).  

 

            Plaintiffs allege that Defendants owned the Airgas facility where Decedent worked and that during the global COVID-19 pandemic were aware of the risk of infection to Decedent. But after Defendants received complaints from Decedent and other employees, Defendants failed to put appropriate safety mitigation measures in place. (Complaint, ¶ GN-1.) Plaintiffs further allege that after Decedent complained to Defendants, including Chapman and Goodman, Decedent was retaliated against for his complaints. This retaliation included making racist depictions of Decedent - who is African American ­­- as a black gorilla. (Id.) Finally, after co-workers were infected with COVID-19, Defendants required Decedent and infected co-workers to return to work in close proximity, which Plaintiffs allege was the cause of Decedent’s subsequent contraction of COVID-19 and his death. (Id.)

 

            Defendants now file this Demurrer, demurring to all four causes of action, and the request for punitive damages. Plaintiffs oppose (“Opposition Papers”) this Demurrer, and Defendants followed with a reply brief (“Reply Papers”).       

 

Discussion

 

Meet and Confer

            “Before filing a demurrer…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.” (CCP § 430.41(a); see also CCP § 435.5 (imposing similar requirements for a motion to strike).)

 

            Defendants’ Counsel provides the Declaration of Nicole A. Baarts (“Baarts Dec.”) which states that Defense Counsel’s office reached out to Plaintiffs’ Counsel on October 25, 2023 via email requesting a telephonic meet and confer. (Baarts Dec, ¶ 2.) Although Plaintiffs’ Counsel responded after Defense Counsel reached out twice more, Plaintiff’s Counsel declined to meet and confer. (Id.) Here, the requirements for CCP § 430.41(a) remain unsatisfied. However, per CCP § 430.41(a)(4), “A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” Therefore, the Court will turn its attention to the Demurrer.

 

Legal Standard for Demurrer

            “[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) 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. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

 

            The question of plaintiff's ability to prove these allegations is of no concern at the pleadings stage. (See Committee on Children’s Television, Inc. v. General Foods Corp., (1983) 35 Cal.3d 197, 213-214. [“It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct.”]) 

 

Analysis

            Defendants put forth two primary arguments in demurring to all four causes of action within the Complaint. Their first argument is that any remedy for harm or death suffered at the workplace is solely confined to the California Workers’ Compensation Act (WCA; Lab. Code, § 3200 et seq.). Defendants’ second argument is that the four causes of action lack the necessary facts sufficient to constitute a cause of action. The Court agrees with Defendant’s first argument; therefore, it need not address the second. The Demurrer is sustained in its entirety. Plaintiffs’ request for leave to amend is granted.

 

A.    Worker’s Compensation Exclusivity –

            Defendants argue first that this Court does not have subject matter jurisdiction because remedies for injuries or death that occur in the course of employment are the province of the WCA. Supporting this contention Defendants cite to Williams v. International Paper Co. (1982) 129 Cal.App.3d 810 and to the California Labor Code § 3602 (CA Labor § 3602).

 

            Plaintiffs use their Opposition Papers to counter with two separate contentions. Plaintiffs’ first contention is that Kuciemba v. Victory Woodworks, Inc., (2023) 14 Cal.5th 993, 1003-1004  and See’s Candies, Inc. v. Superior Court (2021) 73 Cal.App.4th 66 support holding Defendants liable for Plaintiffs’ own personal injuries, which are not barred by the WCA. Second, there are exceptions to the exclusive remedy rule that apply in this case. Plaintiffs list (a) the dual capacity doctrine, (b) product exception, and (c) the fraudulent concealment exception which takes Defendants’ misconduct outside of the employment bargain (here, referring to the exception articulated in Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 706 and 717.) As explained below, the Court disagrees with both of Plaintiffs’ contentions.

 

(1)   Kuciemba and See’s Candies are inapplicable

 

a)      Kuciemba

            First, Plaintiffs’ reliance on Kuciemba and See’s Candies is misplaced. In Kuciemba, the Supreme Court was given two questions certified from the United States Court of Appeals for the Ninth Circuit: “(1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act (WCA; Lab. Code, § 3200 et seq.) bar the spouse's negligence claim against the employer? (2) Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members?” (Kuciemba, 14 Cal. 5th at 930.) The Supreme Court answered “no” to both questions. Although a spouse may bring claims against an employer, here, no claims by Plaintiffs themselves were ever mentioned in the initial Complaint. The facts as stated in the Complaint before the Court differ from the facts in Kuciemba in that the injuries suffered were suffered by the spouse in that case. Here, neither the spouse nor the rest of the Plaintiffs assert any claim on their own behalf. Each cause of action is a survivor action asserted on behalf of Decedent.

 

b)      See’s Candies

            See’s Candies’ facts are similar to those in Kuciemba. There, the plaintiff contracted COVID-19 while at work, and while recovering at home, her husband contracted the disease from her, dying a month later. (See’s Candies, supra at 72.) The plaintiff brought an action against her employer, See’s Candies. See’s Candies filed a demurrer arguing that the injury was derivative, the court there disagreed stating the WCA does not bar the claim, nor does it mean the nonemployee’s claim is derivative. (Id. at 73.) Again, the case before this Court poses different facts. No Plaintiff has claimed injury within the operative Complaint, the claims brought all belong to Decedent.

 

(2)   No exception applies

            Plaintiffs briefly note three different exceptions they argue apply to the current facts. However, Plaintiffs’ Opposition Papers are silent as to how they apply. Below, the Court takes each in turn and concludes that none are applicable to the current facts.

 

a)      Dual Capacity Doctrine

            The dual capacity doctrine “posits that an employer may have or assume a relationship with an employee other than that of employer-employee, and that when an employee seeks damages for injuries arising out of the secondary relationship, the employee's claim is not subject to the exclusive remedy provisions of the workers' compensation statute.” (MWC § 102:9) Here, Plaintiffs fail to state what the secondary relationship outside the employer-employee relationship was. Without this crucial element, the exception fails.

 

b)      Product Exception

The product exception is outlined in LAB § 3602(b)(3):

 

“(b) An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances…(3) Where the employee's injury or death is proximately caused by a defective product manufactured by the employer and sold, leased, or otherwise transferred for valuable consideration to an independent third person, and that product is thereafter provided for the employee's use by a third person.”

 

Plaintiff’s do not, in their Complaint nor their Opposition Papers, indicate how and what defective product proximately caused Decedent’s death.

 

c)      Fermino Exception

            Finally, Plaintiffs assert the Fermino exception arguing that the fraudulent concealment by Defendants qualifies as misconduct outside what the California Supreme Court termed the “compensation bargain” in Shoemaker v. Myers (1990) 52 Cal.3d 1, 16. The compensation bargain, as the Fermino Court has defined it is the “presumed ‘compensation bargain,’ pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.” (Fermino, supra at 708, citing Shoemaker, supra at 16.)

 

            However, there are recognized forms of employer misconduct that fall outside of that bargain. Here, Plaintiffs point to their cause of action for fraudulent concealment as the misconduct that fell outside of the bargain, and therefore allows them to seek remedies outside of those prescribed by the WCA. However, the allegations of fraud in the Complaint do not meet the requisite specificity needed to plead fraud. The only allegations that allude to fraud are that “All Defendants promised Decedent he would be protected and change his route to remove him from a Covid-19 hot spot.” (Complaint, ¶ GN-1.) However, to properly allege fraud against a corporation, Plaintiffs must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) Those details are absent in the operative complaint.

 

            As Plaintiffs present no facts nor exceptions that removes their remedies outside of the WCA, their remedies lie exclusively within it, and the Defendants’ Demurrer is sustained in its entirety.    

 

Leave to Amend

            Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]. As there is a reasonable possibility of successful amendment, Plaintiffs’ request for leave to amend is granted.

 

Conclusion

            Defendants’ Demurrer to Plaintiffs’ Complaint is SUSTAINED in its entirety. Plaintiffs’ request for leave to amend is GRANTED. Plaintiffs are granted 30 days leave to amend their Complaint.

 

 

 

Moving party is ordered to give notice.