Judge Lynette Gridiron Winston, Case Number: 23PSCV01056, Date: 2023-11-02 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV01056, Date: 2023-11-02 Tentative Ruling

Defendant is ordered to file an answer to the First Amended Complaint within 10 days of the date of this order.

Plaintiff is ordered to give notice of the Court’s ruling herein and file proof of service of same within five days of the Court’s order.

This is a personal injury action. On April 11, 2023, Plaintiff Martin Castillo (Plaintiff) filed this action against Defendant Langer Juice Company, Inc. (Defendant) and Does 1 through 100, alleging causes of action for premises liability and general negligence. On July 21, 2023, Plaintiff filed the operative First Amended Complaint (FAC), alleging the same causes of action against Defendant.[1]

On September 5, 2023, Defendant filed the instant demurrer to the FAC. On October 20, 2023, Plaintiff opposed. On October 26, 2023, Defendant replied.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)

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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Per Code of Civil Procedure section 430.41, subdivision (a)(4), the parties were required to meet and confer before Defendant filed the demurrer. (Code Civ. Proc., § 430.41.) The Court finds the parties’ meet and confer efforts to be sufficient. (Reid Decl., ¶ 11.)

To state claims for premises liability and general negligence, the plaintiff must allege facts demonstrating: “1) a legal duty of care, (2) breach of that duty, and (3) proximate cause resulting in injury. [Citations.]” (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 517.)

Defendant demurs to both causes of action for premises liability and general negligence on the grounds that the Privette Doctrine bars Plaintiff’s claims because the FAC alleges that Plaintiff was an independent contractor at the time of the incident. (FAC, 9.) Defendant contends the Kinsman exception to the Privette Doctrine does not apply because the FAC does not allege facts demonstrating that Defendant knew or should have known about the hazard that led to Plaintiff’s injuries. (See Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 674-675.) Defendant further contends that the second recognized exception to the Privette Doctrine does not apply here because the FAC does not allege facts demonstrating that Defendant retained or exercised any control over Plaintiff’s conduct in a manner that affirmatively contributed to Plaintiff’s injuries. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 210.) Defendant also cites to the cases of Sandoval v. Qualcomm, Inc. (2021) 12 Cal.5th 256 and Khosh v. Staples Construction Co., Inc. (2016) 4 Cal.App.5th 712 to support these arguments.

In opposition, Plaintiff cites to the case of McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, which held that, “a hirer is liable to an employee of an independent contractor insofar as the hirer's provision of unsafe equipment affirmatively contributes to the employee's injury.” (Id., at p. 222.) Plaintiff points to the allegations in the FAC which state that, “[t]he pipe which burst is the property of Defendant LANGER JUICE COMPANY, INC., provided to Plaintiff for use in his job, and was defective, unsafe, and a concealed hazard at the time of the incident.” (FAC, ¶ 9.) Plaintiff further contends that the cases Defendant cites to in support of the demurrer involved plaintiffs that were specially skilled contractors hired to perform tasks that required specialized skill, whereas Plaintiff’s skills were that of a general laborer and not specialized. However, the Court agrees with Plaintiff based on the Supreme Court’s decision in McKown.

The FAC alleges that Plaintiff was on the subject property at the time of the incident which belonged to Defendant. (FAC, ¶¶ 2, 9.) It alleges that Plaintiff was performing labor for Defendant as an independent contractor, which involved the transfer of juice from a truck to barrels on the subject property and then from the barrels to smaller containers. (Id., ¶ 9.) The FAC alleges that Plaintiff had completed this portion of his labor and was cleaning the equipment with a hose that produced scalding hot water when a pipe transporting water suddenly burst above him and burned his whole back and buttocks. (Id.) The FAC then alleges that the pipe which burst belonged to Defendant and was defective and that Defendant provided it to Plaintiff for use in Plaintiff’s labor at the time of the incident. (Id.) The Court finds these allegations sufficient to state causes of action for premises liability and general negligence.

The Court further finds Defendant’s arguments based on the Privette Doctrine to be unavailing in light of the exception set forth in McKown. As noted above, the FAC alleges that Defendant provided Plaintiff with the equipment he was using when the accident occurred. (FAC, ¶ 9.) The Court finds unpersuasive Defendant’s argument that McKown applies only when the equipment is obviously defective to the hirer and thereby “negligently” provided. The Supreme Court made clear in McKown that it is the supplying of the defective equipment that renders the hirer liable. “’[W]here the hiring party actively contributes to the injury by supplying defective equipment, it is the hiring party's own negligence that renders it liable, not that of the contractor.’” (McKown, supra, 27 Cal.4th at p. 225.) The Supreme Court further stated that, “[a]n owner is not liable for injuries resulting from defective appliances unless he has supplied them…” (McKown, supra, 27 Cal.4th at p. 225, italics in original, quoting (McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, 788–789.)

The Court does note that the Supreme Court’s decision in McKown contains some potentially confusing language on this point by referring to “negligently furnishing unsafe equipment,” (McKown, supra, 27 Cal.4th at p. 225). However, the other language quoted above and otherwise stated throughout that decision makes clear that the Supreme Court was referring to the provision of the defective equipment itself as constituting negligence, and makes no mention of whether the hirer was aware of the equipment being defective when provided to the independent contractor. In fact, in discussing another issue, the Supreme Court noted that Wal-Mart presumably believed the equipment it provided was safe. (Id. at p. 226.)

In light of the applicability of the McKown case addressed herein, the Court declines to address the other cases cited by Defendant in support of the demurrer.

Defendant is ordered to file an answer to the First Amended Complaint within 10 days of the date of this order.

Plaintiff is ordered to give notice of the Court’s ruling herein and file proof of service of same within five days of the Court’s order.

[1] Plaintiff has filed multiple Doe amendments to the FAC, but none of those parties are involved in this motion and therefore are omitted from this discussion.