Judge: Michael Shultz, Case: 23CMCV01821, Date: 2024-03-07 Tentative Ruling
Case Number: 23CMCV01821 Hearing Date: March 7, 2024 Dept: A
23CMCV01821
Jailyn Robateau v. Nationwide Guard Services, SEKO Worldwide, LLC
[TENTATIVE] ORDER SUSTAINING
DEMURRER FILED BY DEFENDANT, NATIONWIDE GUARD SERVICES WITHOUT LEAVE TO AMEND
[TENTATIVE ORDER] OVERRULING
DEMURRER BY JOINDER FILED BY DEFENDANT, SEKO WORLDWIDE LLC
I.
BACKGROUND
The complaint
filed on November 13, 2023, alleges a claim for negligence arising from the
conditions of Plaintiff’s work environment. Plaintiff alleges that Defendant,
Nationwide Guard Services (“NGS”), did not address her complaints about the
working conditions. Plaintiff alleges that Defendant, SEKO Worldwide, LLC
(“SEKO”), the “work site/client owner,” was allegedly aware that the work
environment was unsanitary. SEKO allegedly did not provide a new guard shack or
remodel the original guard shack. Plaintiff alleges one cause of action for
general negligence.
The
Court related this matter to 23CMCV01574 Robateau v. Nationwide Guard Services,
which arises from the same facts alleged in this action. (“Lead Case”.)
NGS argues
Plaintiff’s claim is barred by the exclusivity provisions of the Worker’s
Compensation Act. The Court sustained NGS’s demurrer in the lead case for that
reason. This action is based on the same facts. Defendant SEKO joins in the
demurrer on the same grounds.
II. LEGAL STANDARDS
A demurrer tests the sufficiency of a
complaint as a matter of law and raises only questions of law. (Schmidt
v. Foundation Health (1995) 35
Cal.App.4th 1702, 1706.) In testing the complaint’s sufficiency, the court must
assume the truth of the properly pleaded factual allegations as well as facts
that can be reasonably inferred from those expressly pleaded facts. The court
may also consider matters properly subject to judicial notice. (Blank
v. Kirwan (1985) 39 Cal.3d
311, 318.)
The court may not consider contentions,
deductions, or conclusions of fact or law. (Moore
v. Conliffe (1994) 7 Cal.4th
634, 638.) Plaintiff is required to allege facts sufficient to establish every
element of each cause of action. (Rakestraw
v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts
sufficient to constitute a cause of action, courts should sustain the demurrer.
Code Civ. Proc., § 430.10(e); (Zelig
v. County of Los Angeles
(2002) 27 Cal.4th 1112, 1126.)
III. DISCUSSION
The
Court grants NGS’s request to take judicial notice of the records filed in this
action and the first amended complaint filed (“FAC”) in the lead case. (Evid.
Code, § 452 subd. (d).) The Court also grants the request for judicial notice
of Plaintiff’s application to the Worker’s Compensation Appeals Board for
adjudication of her claim. (Evid. Code, § 452 subd. (c).)
As in
the lead case, Plaintiff alleges here that she sustained injuries while in her
“work environment”. (Complaint, page 4.) The FAC in the lead case alleges
Plaintiff suffered while she was actively working, “on the clock” and
completing her work shift for the company, NGS.
(FAC, 2:14-16). The FAC also includes a letter Plaintiff sent to NGS
stating that she completed two full months of employment with NGS who allegedly
did not address the unsanitary work environment. (FAC, .pdf page 5.)
Plaintiff’s
claims against NGS are barred by the exclusivity provisions of the Worker’s
Compensation Act, which is her sole and exclusive remedy for recovering damages
for injuries sustained while in the course and scope of employment. (Lab.
Code, § 3600; Pichon
v. Pacific Gas & Electric Co. (1989) 212 Cal.App.3d 488, 500.)
Defendant
SEKO joins for the same reasons. SEKO filed and served its joinder on February
27, 2024, which is defective because SEKO did not give Plaintiff sufficient
notice of its joinder. (Code Civ. Proc., § 1005 subd. (b) [requiring 16 court
days of motion increased by five calendar days for service by mail.) The
joinder should have been filed and served by February 8, 2024.
On the
substantive merits, worker’s compensation exclusivity does not apply to SEKO
since Plaintiff does not allege that she was employed by SEKO. The Court
considers the factual allegations to determine the basis for the alleged claim
under any legal theory, regardless of the title of the claim. (Quelimane
Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) The
alleged basis for liability against SEKO arises from SEKO’s duties as a
landowner in failing to provide a guard shack free from unsanitary conditions.
(Complaint, p. 3.) Premises liability is a form of negligence which imposes a
duty on a premises owner to exercise ordinary care in the management of the
premises to avoid exposing others to an unreasonable risk of harm. (Brooks
v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)
IV. CONCLUSION
Accordingly,
demurrer filed by NGS is SUSTAINED without leave to amend. SEKO’s demurrer by
joinder is OVERRULED. SEKO is ordered to file its answer within 10 days.