TENTATIVE RULING

Defendants Doc McGhee, McGhee Entertainment, Inc., Gene Simmons, and Paul Stanley’s Demurrer to Plaintiffs’ Complaint is OVERRULED.

Defendants Doc McGhee, McGhee Entertainment, Inc., Gene Simmons, and Paul Stanley shall file and serve an answer to the Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)

Defendants Doc McGhee, McGhee Entertainment, Inc., Gene Simmons, and Paul Stanley to give notice. 

REASONING

Request for Judicial Notice

Defendants Doc McGhee, McGhee Entertainment, Inc., Gene Simmons, and Paul Stanley (“Defendants”) request judicial notice of a Workers Compensation Appeals Board Order Approving Compromise and Release in Dependency Claim. Defendants’ request is GRANTED pursuant to Evidence Code section 452, subdivision (h); however, the Court notes that it only takes judicial notice of the existence of the document, not the truth of the contents therein.

Legal Standard

“[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 (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

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”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Analysis

Defendants demur to Plaintiffs The Estate of Francis S. Stueber III, by and through its Successors-In-Interest, Catherine Stueber and Patrick Von Stueber; Catherine Stueber, individually and as Co-Successors-in-Interest to decedent, Francis S. Stueber III; Patrick Von Stueber, individually and as Co-Successor-In-Interest to decedent, Francis S. Stueber III; Mason Layne Stueber by and through his Guardian ad Litem Catherine Stueber; and Dylan Jaymz Stueber, by and through his Guardian ad Litem Catherine Stueber (“Plaintiffs”) complaint on the grounds that worker’s compensation is Plaintiffs’ exclusive remedy, and Plaintiffs released their claims via a Workers Compensation Appeals Board Order Approving Compromise and Release in Dependency Claim.

First Defendants argue that Labor Code section 3600, subdivision (a)(2), provides that “[l]iability for the compensation” to an employee “in lieu of any other liability whatsoever . . . shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death” in a case “[w]here, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment.” Labor Code section 3602, subdivision (a), further provides that workers’ compensation is “the sole and exclusive remedy of the employee or his or her dependents against the employer.”

Notably, Plaintiffs do not allege that Decedent Francis S. Stueber III (“Decedent”) was employed by Defendants. Instead, Defendants argue that Plaintiffs’ workers’ compensation case against The Kiss Company renders it such that Plaintiffs have already exercised their exclusive remedy for compensation from Defendants. Put simply, this is not clear from the complaint, as Plaintiffs allege no employment relationship between Defendants and Decedent. Further, whether Defendants were released by way of the Workers Compensation Appeals Board Order Approving Compromise and Release in Dependency Claim is not readily apparent. The face of the complaint indicates only that Decedent worked as a guitar technician for the rock band KISS, Defendant McGhee Entertainment, Inc. managed KISS, and Defendants had contracts with each other. (Compl. ¶¶ 7, 17, 20.)

While Defendants ask that the Court take judicial notice that Defendants Gene Simmons and Paul Stanley founded and own the band KISS (Reply, p. 6, ll. 2-3), this fact does not prove that an employment relationship existed between any of the defendants and Decedent, nor does it establish that any Defendant was released when Plaintiffs resolved a workers’ compensation action against The Kiss Company. There is no mention of Defendants in the Workers Compensation Appeals Board Order Approving Compromise and Release in Dependency Claim. Thus, Defendants essentially ask the Court to make several assumptions about the parties in this demurrer, which the Court will not do. Defendants are welcome to make these arguments in the context of a motion allowing the consideration of evidence showing an employment relationship between Decedent and Defendants or that Defendants were released by way of the Workers Compensation Appeals Board Order Approving Compromise and Release in Dependency Claim.

For these reasons, Defendants Doc McGhee, McGhee Entertainment, Inc., Gene Simmons, and Paul Stanley’s Demurrer to Plaintiffs’ Complaint is OVERRULED. Defendants Doc McGhee, McGhee Entertainment, Inc., Gene Simmons, and Paul Stanley shall file and serve an answer to the Complaint within ten (10) days of entry of this order. (Cal. Rules of Court, rule 3.1320(j).)