Judge: Lee W. Tsao, Case: 23NWCV00762, Date: 2023-05-18 Tentative Ruling
Case Number: 23NWCV00762 Hearing Date: May 18, 2023 Dept: C
CASTILLO v. AVMGH
SIX-THUNDERBIRD VILLA LIMITED
CASE NO.: 23NWCV00762
HEARING: 05/18/23
#4
TENTATIVE ORDER
I.
Defendant AVMGH SIX-THUNDERBIRD VILLA LIMITED
PARTNERSHIP’s Demurrer to Plaintiff’s Complaint is OVERRULED in part,
SUSTAINED with 30 days leave to amend in part, and SUSTAINED without leave to
amend in part.
II.
Defendant AVMGH SIX-THUNDERBIRD VILLA LIMITED
PARTNERSHIP’s Motion to Strike Portions of Plaintiff’s Complaint is DENIED.
Opposing Party to give notice.
Defendant AVMGH SIX-THUNDERBIRD VILLA LIMITED PARTNERSHIP’s
Request for Judicial Notice is GRANTED as to the existence of the documents,
but not as to any hearsay statements contained therein. (Cal. Ev. Code §452.)
This personal injury action was field by Plaintiffs MELBA
CASTILLO, individual, and as successor-in-interest to Douglas Castillo;
JEANETTE SELENA ORTEGA PERALTA, a minor, by and through her guardian ad litem;
YASMIN CATALINA ORTEGA PERALTA; MARIA DEL CARMEN CASTILLO; OSMAR QUINTERO;
MARIA GARCIA; and SOSTENES DELCID (collectively “Plaintiffs”) on March 9, 2023.
Plaintiffs allege that: “[o]n or about September 12, 2022,
defendants Michael Gingrich, a plumbing contractor and Michael Gingrich dba Coz
Plumbing… hired Douglas Castillo and co-workers, plaintiffs Sostenes Delcid,
Osmar Quinteros, and Mario Garcia to perform construction work at 10001 West
Frontage Road, South Gate, CA 90280, which was at the request of defendants
AVMGH Six-Thunderbird Villa Limited…. [¶] [P]rior to September 12, 2022,
Defendants AVMGH Six-Thunderbird Villa Limited… knowingly hired an unlicensed
contractor, defendants Michael Gingrich and Michael Gingrich dba Coz
Plumbing….” (Complaint ¶¶13-14.) Plaintiffs allege that AVMGH Six-Thunderbird
Villa Limited knew or should have known that they hired a contractor who did
not carry worker’s compensation insurance. “On or about September 14, 2022, the
work site fatality occurred. Just prior to the work site fatality, decedent
Douglas Castillo and plaintiff Osmar Quinteros were in the trench. Plaintiffs
Mario Garcia and Sostenes Delcid were at ground level (above Castillo and
Quinteros). Because of the depth of the trench, when dirt became loose or the
dirt could not be hurled up over their shoulders and out of the trench, Douglas
Castillo and Osmar Quinteros would remove the dirt by putting it in buckets,
and with ropes, would hoist the dirt out that way…. [¶] Due to the way the dirt
was being piled upon on e side of the trench on top, the weight of that dirt
caused one of the walls to cave in, which brought on an onslaught of dirt, and
then a water pipe burst. This caused an immediate mudslide. This trapped
Douglas Castillo and Osmar Quinteros. They became engulfed in rapidly rising
mud. Sostenes Delcid and Mario Garcia jumped in to rescue them. Quinteros was
rescued…. Douglas Castillo was buried alive and killed in the mudslide.”
(Complaint ¶¶17-18.)
Plaintiffs assert the following causes of action: (1)
Negligence; (2) Premises Liability; (3) Negligence Per Se; (4) Wrongful Death;
(5) Intentional Infliction of Emotional Distress; and (6) Negligent Infliction
of Emotional Distress.
Defendant AVMGH SIX-THUNDERBIRD VILLA LIMITED PARTNERSHIP
(“Defendant”) generally demurs to the entire complaint on the basis that
Plaintiffs’ claims are barred by the Worker’s Compensation Act; and specially
and generally demurs to the sixth, seventh, and eighth causes of action.
Workers’ Compensation Act
Generally, under the
workers’ compensation doctrine, when an injured employee is entitled to recover
workers’ compensation benefits, those benefits constitute the employee’s
exclusive remedy against the employer and his or her employees. (Cal. Lab. Code
§§3600, 3601, 3602.) The workers’ compensation exclusivity provisions generally
preclude a civil action against an employer for physical or emotional injury
resulting from wrongful conduct in the workplace. (Livitsanos v. Sup. Ct.
(1992) 2 Cal.4th 744, 754.)
Defendant relies on
Lab. Code §2750.5 which states that “an unlicensed contractor and its employees
are presumed to be employees of the hirer. Thus, Thunderbird in this case is
legally deemed the employer of Gingrich and all of the plaintiffs for purposes of
this accident and injuries stemming from it. This is a legal conclusion which
is inescapable given the facts as alleged in this case. (Indeed, this is why
plaintiffs are concurrently pursuing workers’ compensation benefits via
Thunderbirds’ workers’ compensation insurance.)” (Dem. 6:6-10.) Defendant
argues that it is the statutory employer of Gingrich and the workers he hired,
which means that Plaintiffs can only pursue claims under workers’ compensation.
Defendant’s reliance
on Lab. Code §2750.5 is not sufficient to demonstrate that Plaintiffs were
employees under the Workers’ Compensation Act at this stage in the litigation.
Lab. Code §2750.5 merely states that there is a “rebuttable presumption” which
affects the burden of proof for a worker—Plaintiffs are not required to plead
proof at the demurrer stage. Therefore, the Court is unable to determine, at
this time, that Defendant was the employer of Plaintiffs and the action cannot
be barred by the Workers’ Compensation Act at the pleading stage—even
considering the judicially noticeable documents.
Importantly, the
Court does not reach whether an exception ultimately applies. The demurrer
based on the Workers’ Compensation Exclusivity Rule is OVERRULED.
Uncertainty
Defendant argues that Plaintiffs’ sixth, seventh, and eighth
causes of action are fatally uncertain. This argument lacks merit because “[a] special demurrer for uncertainty is not
intended to reach the failure to incorporate sufficient facts in the pleading,
but is directed at the uncertainty existing in the allegations actually made.”
(Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.) Moreover,
demurrers for uncertainty are disfavored and will only be sustained where the
pleading is so bad that the defendant cannot reasonably respond, i.e. he or she
cannot reasonably determine what issues must be admitted or denied, or what
counts or claims are directed against him or her. (Khoury v. Maly’s of
Calif. Inc. (1993) 14 Cal.App.4th 612, 616.) 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.” (Ibid.)
Here, it is clear from Defendant’s other arguments that it understands what
Plaintiff is at least attempting to allege, and there is no true uncertainty.
The demurrer is not sustained on the basis of uncertainty.
Sixth Cause of Action – Wrongful Death as to Plaintiffs
Melba Castillo and Maria Del Carmen Castillo
Defendants argue that Plaintiffs Melba Castillo and Maria
Del Carmen Castillo are not proper parties to the wrongful death claim of
Douglas Castillo. Melba Castillo and Maria Del Carmen Castillo are alleged to
be the mother and grandmother of Douglas Castillo, respectively.
As argued in Opposition, CCP §377.60 (b)(1) states that
standing can be established: “Whether or not qualified under subdivision (a),
if they were dependent on the decedent, the putative spouse, children of the
putative spouse, stepchildren, parents, or the legal guardians of the decedent
if the parents are deceased.” Facts concerning Melba Castillo and Maria Del
Carmen Castillo’s financial dependence on Douglas Castillo are not alleged in
the Complaint.
The demurrer to the sixth cause of action as to MELBA
CASTILLO and MARIA DEL CARMEN CASTILLO is SUSTAINED with 30 days leave to
amend.
Seventh Cause of Action – Intentional Infliction of
Emotional Distress
A cause of action for intentional infliction of emotional
distress consists of three elements: (1) extreme and outrageous conduct by the
Defendant with the intention of causing, or reckless disregard for the
possibility of causing, emotional distress; (2) Plaintiff suffering severe or
extreme emotional distress; and (3) actual and proximate causation of the
emotional distress by Defendant’s outrageous conduct. (Hughes v. Pair
(2009) 46 Cal.4th 1035, 1050.) Outrageous conduct is defined as conduct that is
“so extreme as to exceed all bounds of that usually tolerated in a civilized
community.” (Id. at p. 1050-1051.)
Plaintiffs’ allegations—liberally construed for purposes of
demurrer—sufficiently plead that Defendants knew about and failed to correct
multiple unsafe concealed conditions at the Subject jobsite and knowingly hired
unlicensed contractors. Whether Defendants’ conduct be considered sufficiently
“outrageous” raises a factual determination. Plaintiffs’ ability to prove their
allegations are not properly adjudicated at this time. The demurrer to the
seventh cause of action is OVERRULED.
Eighth Cause of Action - Negligent Infliction of Emotional Distress
In Opposition, Plaintiffs withdrew their NIED cause of
action. The demurrer to the eighth cause of action is SUSTAINED without leave
to amend.
Motion to Strike