Judge Michael E. Whitaker, Case Number: 22SMCV01585, Date: 2024-04-25 Tentative Ruling

Judge: Michael E. Whitaker, Case: 22SMCV01585, Date: 2024-04-25 Tentative Ruling

Plaintiff Francisco Barron (“Plaintiff”) worked for FR Construction, Inc. (“FR Construction”, as a laborer. In August or September of 2020, FR Construction secured a “job” at 4711 Berryman Ave in Culver City, California. The owner of the property at that time was 4711 Berryman LLC (“Berryman”).

On September 16 2020, Plaintiff and other workers were instructed to fix some tile, pipes and grout. The work was situated on the exterior of the project about 10 feet above ground level. There was no scaffolding or ladders present. Rodriguez directed the workers to place several garbage bins in a line and place wooden planks across the garbage bins so that the workers could reach the work area. While working on top of the planks, on top of garbage bins, the contraption gave way. Plaintiff was on top of one area and fell to ground about 8 feet and landed on his leg, breaking it.

FR Construction and Francisco Rodriguez (“Rodriguez”), the principal of FR Construction, did not maintain either workers’ compensation insurance or general liability insurance, among other alleged shortcomings in their business practices. Plaintiff filed suit against FR Construction, Rodriguez and Berryman on September 15, 2022 alleging various claims under the Labor Code including a failure to maintain workers' compensation insurance coverage.

In turn, on July 24, 2023, Berryman filed a Cross-Complaint alleging seven causes of action for (1) indemnity; (2) apportionment of fault; (3) comparative fault; (4) declaratory relief; (5) intentional misrepresentation; (6) negligent misrepresentation; and (7) negligence. On February 5, 2024, Berryman filed a Roe Amendment, naming Cross-Defendant State Compensation Insurance Fund (“State”) as Roe 1.

State now demurs to the first, second, third, fourth, and seventh[1] causes of action on the grounds that they each fail to state facts sufficient to constitute a cause of action, and are uncertain, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f), respectively. The fifth and sixth causes of action are alleged as to Cross-Defendants Icon Remodeling, Inc. and Yoni Eliyahu only. State also moves to strike the second, third, and fourth causes of action as “irrelevant and improper.”

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law. [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.” (See Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if one consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

Here, the crux of the Cross-Complaint is that Berryman, the owner of the property under construction, seeks indemnity/contribution from the contractor and subcontractor for maintaining lax safety standards at the construction site and failing to carry worker’s compensation insurance for workers like the plaintiff. State, a worker’s compensation insurance company, was brought into the lawsuit after the fact, via a Roe amendment. However, the Cross-Complaint alleges “Plaintiff alleges […] that his injuries were not covered by workers’ comp insurance because Cross-Complainant and Cross-Defendants failed to carry any.” (Cross-Complaint ¶ 19.) Thus, pursuant to the allegations of the Cross-Complaint, State is a worker’s compensation insurance carrier that was not engaged to provide coverage for the plaintiff.

As such, there appears no basis in the Cross-Complaint to hold State liable for indemnity, apportionment of fault, or comparative fault. Similarly, it is unclear what basis Berryman has for its request for declaratory relief as to State, or how State could have “owed a duty to Cross-Complainant to follow all applicable statutes, rules, and regulations for the renovations and construction at the Subject Property and to carry the necessary and appropriate insurance, including workers’ comp insurance.” (Cross-Complaint ¶ 52.) As an insurer, State would not have been renovating or constructing anything at the subject property, nor would State be carrying insurance. At best, State would be providing the insurance. But because the other Cross-Defendants are alleged to not have carried any worker’s compensation insurance to cover the plaintiff, State was apparently also not the insurance provider for the project. Thus, based on the allegations of the Cross-Complaint, it is unclear what connection State would have to the underlying litigation at all.

Therefore, although demurrers for uncertainty are typically disfavored, here, the existing allegations simply do not appear to apply to State at all. As such, it is unclear what wrongdoing State is alleged to have done. Because the Cross-Complaint is alleged as to all “Cross-Defendants,” it is too difficult to discern what allegations are alleged as to State, who, as an insurer, is differently situated than the contractors and subcontractors on the project, for whom the existing allegations make more sense.

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

Because the Court sustains the demurrer, it denies State’s motion to strike as moot.

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Berryman points out in opposition that State insured Cross-Defendant Icon Remodeling Inc., the alleged general contractor, who then engaged FR Construction as a subcontractor on the construction project. Thus, the question is whether Berryman may be able to assert allegations that the coverage provided by State to the general contractor would apply to a subcontractor’s injured employee such as Plaintiff. At this stage of the litigation, the Court finds that the answer is Yes and therefore, Berryman should be afforded the opportunity to amend the cross-complaint.

For the reasons stated, the Court sustains State’s demurrer in its entirety with leave to amend. Berryman may file and serve an amended Cross-Complaint consistent with this ruling on or before May 23, 2024.

Further, having sustained the demurrer, the Court denies State’s Motion to Strike as moot.

State shall provide notice of the Court’s ruling and file a proof of service regarding the same.

[1] The Cross-Complaint erroneously lists two causes of action labeled “Sixth Cause Of Action.” State demurs to the negligence cause of action, which is the last cause of action alleged in the Cross-Complaint. Therefore, to avoid confusion, the Court refers to the negligence cause of action as the seventh cause of action.

DEPARTMENT	207
HEARING DATE	April 24, 2024
CASE NUMBER	22SMCV01585
MOTIONS	Demurrer and Motion to Strike Portions of Cross-Complaint
MOVING PARTY	Cross-Defendant State Compensation Insurance Fund
OPPOSING PARTY	Cross-Complainant 4711 Berryman, LLC