Judge: Michael E. Whitaker, Case: 22STCV14648, Date: 2023-01-03 Tentative Ruling

Case Number: 22STCV14648    Hearing Date: January 3, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Benjamin Pastrano by and through his Guardian ad Litem Gabriela Mendez (Plaintiff) sued Defendants Employbridge LLC and Real Time Staffing Services, LLC dba Select Staffing (collectively, Defendants) based on an industrial accident at the premises of Pro-A-Motors.  Defendants demur to Plaintiff’s first amended complaint (FAC).  Defendants also moves to strike portions of the FAC.  Plaintiff opposes the motion and demurrer. Defendants reply.

REQUEST FOR JUDICIAL NOTICE

The Court grants Defendants’ request for judicial notice of the following pursuant to Evidence Code section 452 and 453:

1. Plaintiff’s initial Complaint filed with the Court on May 3, 2022

2. Plaintiff’s FAC filed with the Court on October 3, 2022

ANALYSIS

1. DEMURRER

    

   “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 ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (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.) 

    

   Here, Defendants demur to the first cause of action for premises liability and the second cause of action for general negligence for failure to alleges facts sufficient to constitute causes of action against Defendants.  “The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 834 [cleaned up].) 

    

   The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Therefore, to state a claim for premises liability, Plaintiff must allege: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.)

    

1. Sham Pleading Doctrine

    

               Defendants first argue that Plaintiff’s FAC is a sham pleading based on its contradictory allegations regarding whether there is an employer-employee relationship between Defendants and Plaintiff.  Defendants point to Plaintiff’s initial Complaint which clearly alleges “Plaintiff was an employee of [Defendants]”, and contrasts it to Plaintiff’s FAC which omits any direct reference to an employee-employer relationship between Defendants and Plaintiff, and instead alleges “that at all times mentioned herein, that Plaintiff had some sort of business relationship with [Defendants].”  (Complaint ¶ 13; FAC ¶ 13.) 

    

               “Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.”  (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.)  “‘Generally, after an amended pleading has been filed, courts will disregard the original pleading. However, an exception to this rule is found ... where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. The court may examine the prior complaint to ascertain whether the amended complaint is merely a sham.’ Moreover, any inconsistencies with prior pleadings must be explained; if the pleader fails to do so, the court may disregard the inconsistent allegations. [Citation.] Accordingly, a court is ‘not bound to accept as true allegations contrary to factual allegations in former pleading in the same case.’ [Citation.]”  (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343; quoting Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946.)¿¿ 

    

               In opposition, Plaintiff provides the following explanation for the discrepancy in description of the relationship between Defendants and Plaintiff in the initial Complaint and the FAC:

    

• Due to Plaintiff’s medical incapacitation, the entire facts concerning subject incident were unknown to Plaintiff’s counsel at the time of the filing of the Complaint. 
• The instant case was filed on May 3, 2022 against Defendants.  At that time, based on initial investigation, Plaintiff’s counsel believed in good-faith that Defendants EMPLOYBRIDGE LLC and/or REAL TIME STAFFING SERVICES, LLC dba SELECT STAFFING were most likely the legal employers of Plaintiff, and alleged as such in the initial Complaint. 
• After speaking with the defense counsel for Defendant Pro-A-Motors, Inc who was also claiming to be the legal employer of Plaintiff, Plaintiff’s Counsel conducted further legal research into the doctrine of “general employer” under the workers’ compensation exclusivity rule. Since the identity of the general employer hinges on the “control” factor, at this early stage in the litigation, it is impossible to ascertain which Defendant(s) controlled the aspects of Plaintiff’s work as to be considered the “general employer” subject to workers’ compensation exclusivity. As such, discovery is needed on this issue. 
• Based on this new information Plaintiff filed the FAC altering the conclusive allegations of the existence an employee-employer relationship between Plaintiff and Defendants to a more inclusive statement stating that more discovery was needed on the issue. 

(See Declaration of Adam C. Rapaport, ¶¶ 3-7.)

In reply, Defendants argue that Defendant Pro-A-Motors, Inc.’s claim that it is also an employer of Plaintiff should not confuse the already established nature of Plaintiff’s employer-employee relationship with Defendants.  Further, Defendant attests that Plaintiff’s discovery that he may have had additional employers exercising control over the work he was doing while he was injured, does not affect the analysis of the worker compensation exclusivity doctrine seeing as Plaintiff is barred from maintaining an action for damages against dual employers for purposes of the worker’s compensation exclusive remedy doctrine.  (See Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174.)

            However, the Court finds that Plaintiff has advanced sufficient explanation as to the inconsistency regarding the classification of the relationship between Plaintiff and Defendants in the initial Complaint and FAC.  Based on Plaintiff’s current incapacitation as well as Defendant Pro-A-Motors, Inc.’s newly discovered claim of employer status, Plaintiff has sufficiently stated his reasoning as to why he now alleges that the nature of the relationship between Plaintiff and Defendants is necessarily subject to further discovery and cannot be more conclusively classified in the FAC.  As such, the Court finds that the sham pleading doctrine is inapplicable to Plaintiff’s FAC.

1. Workers Compensation Exclusivity Doctrine

    

               Defendants, based on Plaintiff’s allegation of an employee-employer relationship between Defendants and Plaintiff in his initial Complaint, claim Plaintiff’s causes of action against Defendants are barred by the exclusive remedy rule under Labor Code section 3600, et seq.  “A general demurrer will lie where the complaint has included allegations that clearly disclose some defense or bar to recovery.” (Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145, 1152, emphasis in original [cleaned up].)  The workers’ compensation statutes are to be “liberally construed by the courts with the purpose of extending their benefits for the protections of persons injured in the course of their employment.”  (Lab. Code, § 3202.)

    

   Under Labor Code section 3602, “[w]here the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer.”  (Labor Code, § 3602, subd. (a).)  Section 3602, subdivisions (b) and (c) set forth the exceptions to the exclusive remedy provision of subdivision (a) as follows:

    

1. An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances:

    

1. Where the employee's injury or death is proximately caused by a willful physical assault by the employer.

2. Where the employee's injury is aggravated by the employer's fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer's liability shall be limited to those damages proximately caused by the aggravation. The burden of proof respecting apportionment of damages between the injury and any subsequent aggravation thereof is upon the employer.

3. Where the employee's injury or death is proximately caused by a defective product manufactured by the employer and sold, leased, or otherwise transferred for valuable consideration to an independent third person, and that product is thereafter provided for the employee's use by a third person.

    

1. In all cases where the conditions of compensation set forth in Section 3600 do not concur, the liability of the employer shall be the same as if this division had not been enacted.

    

   (Lab. Code, § 3602, subds. (b)-(c).)  Additionally, the exclusive remedy provision of Section 3602, subdivision (a) does not apply where an employer fails to secure the payment of compensation or where the employee’s injury or death is proximately caused by the employer's knowing removal of, or knowing failure to install, a point of operation guard on a power press.  (See Lab. Code, §§ 3607, 4558.)

    

               Section 3600 provides, in pertinent part, the conditions of compensation are as follows:

    

1. Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person except as otherwise specifically provided in Sections 3602, 3706, and 4558, 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 those cases where the following conditions of compensation concur:

    

1. Where, at the time of the injury, both the employer and the employee are subject to the compensation provisions of this division.

2. Where, 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.

3. Where the injury is proximately caused by the employment, either with or without negligence.

4. Where the injury is not caused by the intoxication, by alcohol or the unlawful use of a controlled substance, of the injured employee. As used in this paragraph, “controlled substance” shall have the same meaning as prescribed in Section 11007 of the Health and Safety Code.

5. Where the injury is not intentionally self-inflicted.

6. Where the employee has not willfully and deliberately caused his or her own death.

7. Where the injury does not arise out of an altercation in which the injured employee is the initial physical aggressor.

8. Where the injury is not caused by the commission of a felony, or a crime which is punishable as specified in subdivision (b) of Section 17 of the Penal Code, by the injured employee, for which he or she has been convicted.

9. Where the injury does not arise out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee's work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment. The administrative director shall promulgate reasonable rules and regulations requiring employers to post and keep posted in a conspicuous place or places a notice advising employees of the provisions of this subdivision. Failure of the employer to post the notice shall not constitute an expression of intent to waive the provisions of this subdivision.

    

   (Lab. Code, § 3600, subd. (a).)  Finally, section 5300, subdivision (a), states that proceedings “[f]or the recovery of compensation, or concerning any right or liability arising out of or incidental thereto” “shall be instituted before the [Workers’ Compensation Appeals Board] and not elsewhere, except as otherwise provided in Division 4….”  (Lab. Code, § 5300, subd. (a).)

    

               However as was discussed previously, Plaintiff’s FAC no longer conclusively alleges an employer-employee relationship between Plaintiff and Defendants, thus Plaintiff argues the exclusive remedy provision of workers’ compensation law does not apply here.  The Court agrees.  Plaintiff does not allege in the FAC that he was Defendants’ employee at the time of the underlying incident.  Accordingly, the Court cannot reach the issue of the workers’ compensation exclusivity rule at the pleading stage. 

    

1. Premises Liability Cause of Action

    

               Defendants demur to Plaintiff’s second cause of action for premises liability, first arguing that Plaintiff has failed to allege that Defendants had possession, ownership or control of the subject property and/or were responsible for managing the subject premises, thereby making Defendants responsible for the alleged dangerous condition on the subject property.  Plaintiff alleges in pertinent part the following:

    

• Plaintiff is informed and believes, and upon such information and belief alleges, that, at all times relevant to this action, the Defendants, PRO-A MOTORS, EMPLOYBRIDGE, REAL TIME STAFFING SERVICES, and WASHINGTON BUILDING, and DOES 1 to 20, inclusive, and each of them, owned, operated, managed, designed, planned, engineered, maintained, installed and/or inspected the INCIDENT LOCATION.
• Plaintiff is informed and believes, and upon such information and belief alleges, that, at all times relevant to this action, the Defendants, PRO-A MOTORS, EMPLOYBRIDGE, REAL TIME STAFFING SERVICES, and WASHINGTON BUILDING, and DOES 1 to 20, inclusive, and each of them, had exclusive jurisdiction over the INCIDENT LOCATION.

(FAC, ¶¶ 25-26.)

The Court first finds Plaintiff has alleged sufficient ultimate facts alleging Defendants in some capacity operated, managed, or controlled the incident location. Ultimate facts are those “constituting the cause of action” or those upon which liability depends. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “[T]he complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form a part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 [at pleading stage, plaintiff need not specify which of defendant’s employees committed negligent acts or omissions].) “Ordinarily, negligence may be alleged in general terms, without stating the acts constituting negligence or detailing the particular manner in which plaintiff’s injury occurred. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 6:129 (hereafter Weil & Brown.)

1. MOTION TO STRIKE

    

   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, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

    

               As the Court has already addressed Defendants’ arguments regarding the allegedly sham pleadings within the FAC, the Court shall disregard these arguments as they related to Defendants’ motion to strike.

    

   Next, Defendants argue Plaintiff’s premises liability cause of action’s reliance on Civil Code section 846 is flawed.  The Court notes that in Plaintiff’s opposition to Defendants’ motion to strike he concedes to removal of reference to Civil Code Section 846.  As such the Court shall strike the references to Section 846.

    

               Defendants next move to strike Plaintiff’s prayer for attorneys’ fees.  As Plaintiff has conceded to remove the prayer for attorneys’ fees in their opposition, the Court shall strike Plaintiff’s prayer for attorneys’ fees.

    

   CONCLUSION AND ORDER

    

   Therefore, the Court overrules Defendants’ demurrer to the FAC.  Further, the Court grants in part Defendants’ motion to strike and orders stricken from the FAC references to Civil Code 846 and the prayer for attorneys’ fees.

    

   Defendants shall provide notice of the Court’s rulings and file a proof of service of such.