Judge Lee W. Tsao, Case Number: 23NWCV00762, Date: 2023-11-08 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00762, Date: 2023-11-08 Tentative Ruling

Case Number: 23NWCV00762 Hearing Date: November 8, 2023 Dept: C

Castillo, et al. v. avmgh six-thunderbird villa, et al.

CASE NO.: 23NWCV00762

HEARING: 11/8/23 @ 10:30 AM

I. Defendant’s Demurrer to the entire First Amended Complaint is SUSTAINED.

II. Defendant’s Demurrer as to Plaintiff Maria Del Carmen Castillo’s Cause of Action is MOOT.

III. Defendant’s Motion to Strike is MOOT.

IV. The court, on its own motion, stays proceedings in this matter pending the outcome of the concurrent workers’ compensation proceedings.

V. A status conference is scheduled for May 8, 2024 at 9:30 a.m. in Dept. SE-C.

Moving Party to give NOTICE.

Defendant AVMGH Six-Thunderbird Villa demurs to Plaintiffs’ entire First Amended Complaint (FAC) and to Plaintiff Maria Del Carmen Castillo’s cause of action, and moves to strike portions of the FAC.

Background

This personal injury action was filed on March 9, 2023 by Plaintiffs Melba Castillo, individually, 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).

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 coworkers, 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….” (FAC ¶¶ 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 one 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.” (FAC ¶¶17-18.)

Plaintiffs assert the following causes of action: (1) Negligence; (2)-(4) Premises Liability; (5) Negligence Per Se; and (7) Intentional Infliction of Emotional Distress by Plaintiffs Osmar Quinteros, Mario Garcia, and Sostenes Delcid; and (6) Wrongful Death by Plaintiffs Melba Castillo, Jeanette Selena Ortega Peralta, and Maria Del Carmen Castillo. Defendant AVMGH Six-Thunderbird Villa Limited Partnership (Defendant) generally demurs to the entire FAC on the basis that Plaintiffs’ claims are barred by the Worker’s Compensation Act; and demurs to the sixth cause of action as to Plaintiff Maria Del Carmen Castillo.

The Complaint was the subject of a Demurrer and Motion to Strike by Defendant which this Court sustained in part and overruled in part.

Judicial 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.)

Legal Standard

The party against whom a complaint has been filed may object to the pleading, by demurrer, on several grounds, including the ground that the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) A party may demur to an entire complaint, or to any causes of action stated therein. (CCP § 430.50(a).)

Motions to strike are used to reach defects or objections to pleadings which are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (CCP §§ 435, 436 & 437.) A motion to strike lies only where the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (C.C.P. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (C.C.P. § 437.)

Discussion

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 argues, “Per Labor Code § 2750.5, 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.

Plaintiff argues that workers’ compensation is not the exclusive remedy in this case because Plaintiff had not worked 52 hours in the 90 days prior to the date of the injury. (Zaragoza v. Ibarra (2009) 174 Cal.App.4th 1012.) However, this exception to the workers’ compensation exclusivity rule is only applicable to homeowners and, therefore, does not apply to Defendant. (CCP §§ 3351(d) and 3352(a)(8).

Additionally, Plaintiff argues that workers’ compensation is not the exclusive remedy because the fact that Defendant has workers’ compensation insurance is outside the allegations of the FAC and the judicially noticed facts. Defendant argues that it has submitted Plaintiffs’ applications for workers’ compensation related to the same injuries. “But if the complaint ‘affirmatively alleges facts indicating coverage by the [Workers’ Compensation Act],’ then unless it states additional facts which negate application of the exclusive remedy provision, ‘no civil action will lie and the complaint is subject to a general demurrer.’” (Iverson v. Atlas Pacific Engineering (1983) 143 Cal.App.3d 219, 224; Roberts v. Pup ‘N’ Taco Driveup (1984) 160 Cal.App.3d 278, 284.) In Roberts, the appellate court affirmed the trial court’s ruling, sustaining the defendant’s demurrer, because the plaintiff failed to include additional facts to allege an exception to the workers’ compensation exclusivity rule. The appellate court ruled that the plaintiff’s complaint alleged facts indicating coverage by workers’ compensation laws, and thus, the complaint must allege an exception to the workers’ compensation exclusivity rule. (Ibid.) Here, Plaintiffs allege injuries within the course of employment, but they fail to allege an applicable exception to the workers’ compensation exclusivity rule. Thus, Defendant’s Demurrer to the entire First Amended Complaint.

Defendant argues that Plaintiff should not be granted leave to amend because they have filed a workers’ compensation application which provides that Defendant has insurance through Preferred Employers San Diego. However, as far as the court is aware, the workers’ compensation proceedings are still ongoing. For this reason, the court on its own motion will stay the proceedings in this case pending the outcome of the concurrent workers’ compensation proceedings. (CRC Rule 3.515.)

Defendant’s alternative ground for demurrer and Motion to Strike are moot.

Accordingly, Defendant’s Demurrer to the entire First Amended Complaint is SUSTAINED. Defendant’s Demurrer to the Plaintiff Maria Del Carmen Castillo’s Cause of Action is MOOT. Defendant’s Motion to Strike is MOOT. Proceedings in this case are stayed pending the outcome of the concurrent workers’ compensation proceedings.