I. BACKGROUND 

Plaintiff Santos Hernandez (“Plaintiff”) filed this action against defendants Housing Authority of The City of Los Angeles and Does 1 to 50 for damages arising from a workplace injury. Plaintiff alleges he was employed to perform soldering work on an elevator in Building 2 of the Jordan Downs Housing Project. While the elevator was positioned at the 6th floor, Plaintiff fell six stories in free fall when the elevator suddenly fell and crashed to the 1st floor due to broken cables and other malfunctions. 

Plaintiff’s initial complaint asserted six causes of action for: (1) liability for employee under California Gov. Code §815.2, (2) liability for independent contractor under California Gov. Code §815.4, (3) liability for non-delegable duty §815.6, (4) liability for dangerous condition of property under §835, (5) negligence as a common carrier under California Civil Code §2100, and (6) strict liability under California Civil Code §2101. On December 8, 2023, the Court sustained The City of Los Angeles’ (“HACLA”) demurrer to the complaint with leave to amend. (Min. Order, Dec. 8, 2023.) 

On December 28, 2023, Plaintiff filed his First Amended Complaint (“FAC”). The FAC sets forth seven causes of action for: (1) negligence – liability for employee, (2) negligence – liability for independent contractor, (3) premises liability, (4) liability for non-delegable duty, (5) liability for dangerous condition on the property, (6) negligence as a common carrier under CA Civil Code §2100, and (5) strict liability under CA Civil Code §2101.  

HACLA now demurs to all seven causes of action of the FAC, arguing Plaintiff has not pleaded with requisite particularity and that the causes of action are uncertain.  

Plaintiff opposes the motion, and HACLA filed a reply.  

II. DEMURRER 

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (CCP § 430.41(a).)   

The Court finds HACLA has fulfilled this requirement prior to filing the demurrer.  (Mot. Barker Decl. ¶¶ 5-8.) 

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). (CCP §§ 422.10, 589; 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 the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.) 

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 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, 971-72.)  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.) 

HACLA argues the FAC is barred by the Tort Claims Act, the exclusivity rule of the Worker’s Compensation Act (“WCA”) and the Privette Doctrine, and that the FAC has not pled sufficient facts to support that HACLA owed a duty to Plaintiff. The Court will address these contentions in the order raised.  

Except as otherwise provided by statute, “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”¿ (Gov. Code § 815(a).)¿ “[T]his section ‘abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable’ [Citation.]”¿ (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.)¿ Consequently, “public entities may be liable only if a statute declares them to be liable.”¿ (Tuthill v. City of San Buenaventura (2014) 223 Cal.App.4th 1081, 1088 (emphasis in the original).  

Here, the FAC alleges HACLA is liable for injury proximately caused by an act or omission of an employee within the scope of his/her employment pursuant to Gov. Code § 815.2 in the first cause of action for negligence – liability for employee (FAC at ¶ 19), Gov. Code § 815.4 in the second cause of action for negligence – liability for contractor (Id. at ¶ 28), re-alleges the allegations contained in paragraphs 1 through 30 in the third cause of action for premises liability, Gov. Code § 815.6 in the fourth cause of action for non-delegable duty (Id. at ¶ 47), Gov. Code §§ 835 and 835.2 in the fifth cause of action for dangerous condition of public property (Id. at ¶ 56), re-alleges the allegations contained in paragraphs 1 through 58 in addition to California Civil Code § 2100 under the sixth cause of action for negligence as a common carrier (Id. at ¶¶ 59-60), and re-alleges the allegations in paragraphs 1 through 62 in addition to California Civil Code § 2101 under the seventh cause of action for strict liability (Id. at ¶¶63-64.) 

It has been established that there is no liability for California governmental entities in the absence of an express statute or constitutional provision creating or accepting liability. (Tolan v. State of California (1979) 100 Cal.App.3rd 980, 986.)¿At the pleading stage, Plaintiff has sufficiently provided a statutory basis for each cause of action.  

HACLA argues that Plaintiff has not met his burden rebutting the presumption of non-liability against the hirer of a contractor, citing to Privette. As restated by the California Supreme Court, when a contractor’s own employee is injured by negligently contracted work, the injury is already compensable under the workers’ compensation scheme, and therefore there is no tort remedy for those same injuries against the person who hired the independent contractor. (Privette v. Superior Ct. (1993) 5 Cal. 4th 689, 696.) In other words, “The Privette doctrine holds that a hirer generally delegates to an independent contractor all responsibility for workplace safety and is not liable for injuries sustained by the contractor or its workers while on the job.” (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 40.)   

Here, there is no dispute that Plaintiff was an independent contractor at the time of the incident. The FAC alleges HACLA hired a general construction company, which in turn hired Steel Craft Fabrication, Inc. (“Steel Craft”) as a sub-contractor. (FAC at ¶ 4.) Plaintiff was employed with Steel Craft to perform soldering work on a steel beam within the elevator. (Id. at ¶ 3.) While Plaintiff was working on the top of the elevator positioned at the 6th floor, the elevator fell, causing Plaintiff to fall six stories. (Id. at ¶ 8.) Thus, Plaintiff is barred from asserting a claim against the hirer of the contractor, HACLA, by the Privette doctrine unless Plaintiff can adequately plead an exception to the general rule. The Court previously sustained HACLA’s demurrer with leave to amend in order to provide Plaintiff an opportunity to sufficiently plead an exception. 

There are two exceptions to the Privette doctrine: the retained control exception and concealed hazard exception.  

The first exception was recognized in Hooker, supra, 115 Cal.Rptr.2d 853, 38 P.3d 1081 and is usually referred to as the retained control exception. It applies if: (1) the hirer retains control over the manner in which the contractor performs the work; (2) the hirer actually exercises its retained control by involving itself in the work such that the contractor is not entirely free to do the work in its own manner; and (3) the hirer’s exercise of retained control affirmatively contributes to the worker's injury. (Sandoval, at pp. 276-277, 283 Cal.Rptr.3d 519, 494 P.3d 487.) Under this exception, the hirer's delegation of tort duties to the independent contractor can be seen as “incomplete” or “only partial[ ]” because it retains control over some aspect of the work and actually exercises that retained control.  

The second exception was recognized in Kinsman, supra, 37 Cal.4th 659, 36 Cal.Rptr.3d 495, 123 P.3d 931 and is usually referred to as the concealed hazard exception. It applies if the hirer is also an owner or possessor of land, and if “the landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition.” (Id. at p. 664, 36 Cal.Rptr.3d 495, 123 P.3d 931, fn.omitted.) Under this exception, the hirer’s delegation of tort duties can be seen as “ineffective” because the independent contractor cannot protect its workers against a hazard it does not know about and could not reasonably discover. (Sandoval, supra, 12 Cal.5th at p. 271, 283 Cal.Rptr.3d 519, 494 P.3d 487.) 

(Miller v. Roseville Lodge No. 1293 (2022) 83 Cal. App. 5th 825, 833–34.) 

The FAC alleges “Defendants” are HACLA and all fictitiously named defendants. (FAC at ¶ 2.) It alleges in pertinent part: “Defendants and/or its general contractor and/or agent elevator company retained exclusive control of the elevator floor access, requiring Plaintiff and other team members to specifically request for assistance to have the elevator move either up or down floors in order to complete their assignments”. (Id. at ¶ 5.) “Defendants set up a temporary platform within the elevator for material transport but advised Plaintiff he could safely walk across the temporary platform without fear of its collapse. Following Defendants’ instruction, Plaintiff walked across the temporary platform to access the top of the elevator so he could perform soldering work on the steel beam.” (Id. at ¶ 7.) While performing soldering work at the top of the elevator on the sixth floor, the elevator suddenly fell due to one or more cables breaking, causing Plaintiff and the temporary platform to fall six stories. (Id. at ¶¶ 8-9.) Plaintiff re-alleges these facts into each cause of action. Aside from the elevator, it is further alleged that the temporary elevator platform was an unsafe condition, because the temporary elevator platform was not suited for human transport at the time Defendants directed Plaintiff to utilize it in order for Plaintiff to complete his soldering work. (Id. at ¶ 35.) 

HACLA argues that it is not plausible for it, it’s general contractor, and/or an agent elevator company to retain “exclusive control” over the elevator, and that the pleading is nonsensical. Although the Court agrees that the FAC’s allegations are inconsistent in terms of which entity retained control over the elevator, especially when HACLA is alleged to have hired a general contractor for the project which then hired the subcontracting company employing Plaintiff, the Court must accept as true the factual allegations on a demurrer, no matter how improbable. (Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229. [“No matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer.”]; Crowley v. Katleman (1994) 8 Cal. 4th 666, 690 [Generally, complainants may plead, in the alternative, inconsistent facts or theories.].) HACLA contends that Plaintiff simply lumps HACLA’s conduct with that of the general contractor, every other contractor, agent, and employee on the project. In opposition, Plaintiff argues that he is still determining who, among the identified and not yet identified defendants, retained exclusive control of the elevator floor access. The Court finds that, for the purposes of a demurrer, it is sufficient to allege that all defendants were responsible for directing Plaintiff in his work, and that all defendants retained control over Plaintiff’s work environment via exclusive control of the elevator floor access and the allegedly unsafe temporary elevator platform at the pleading stage. (Dillard v. County of Kern (1943) 23 Cal. 2d 271, 279 [A demurrer should not be sustained on the ground of uncertainty regarding which defendant committed the alleged conduct, where the pleading alleged that all defendants were responsible.].) The Court need not reach whether Plaintiff has sufficiently pled the concealed hazard exception, when it is sufficient for Plaintiff to plead the retained control exception such that Plaintiff is not barred by Privette at the pleading litigation. The FAC sufficiently apprises HACLA of the factual contentions against it.  

HACLA’s Notice of the motion asserts that each cause of action is uncertain. A party may object to a pleading by demurrer if: “The pleading is uncertain.” Uncertain includes ambiguous and unintelligible. (CCP §430.10(f).) However, uncertainty is a disfavored basis for demurrer and only applies when the demurrer is sufficiently unintelligible that a responding party would have no idea how to direct their litigation efforts.  (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Ludgate Insurance Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.)  “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.) As provided above, the FAC asserts in detail the factual basis for liability, and describes the dangerous condition alleged, with sufficient particularity to provide notice to HACLA.  

HACLA also contends the FAC has not sufficiently pled that HACLA owed Plaintiff a duty of care, because HACLA does not have an obligation to maintain a safe work environment for work Plaintiff performed for Steel Craft. Part of HACLA’s argument that it does not owe a duty is because a public entity is not liable for common law torts, and that the claim is barred by Privette. However, as provided above, at this stage Plaintiff has pled around Privette, and Plaintiff has also alleged statutory bases for liability pursuant to Gov. Code §§ 815.2, 815.4, § 815.6, 835 and 835.2, and California Civil Code §§ 2100 and § 2101. The statutes state the applicable standard of care against a public entity. HACLA also argues that the FAC is devoid of specific facts that the alleged dangerous condition created a reasonably foreseeable risk of injury to Plaintiff. However, when considering demurrers, courts read the allegations liberally, reasonably and in context. (MKB Management, Inc. v. Melikian (2010) 184 Cal.App.4th 796, 802.) In ruling upon demurrers, courts treat as being true “not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12; Accord, Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal. App. 4th 949, 953.) A party can infer, based on the material factual allegations taken as a whole, that there was a foreseeable risk of injury to a person performing work on the elevator if the elevator was so poorly maintained that the cables broke, causing the elevator to plummet. Whether Plaintiff, ultimately, can maintain his claim against HACLA after discovery is a different matter altogether, and entirely outside the scope of this demurrer. 

III. CONCLUSION 

Based on the foregoing, HACLA’s demurrer to Plaintiff’s FAC is overruled.  

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 12th day of March 2024