I. BACKGROUND 

Plaintiffs Yeymi Alejandra Perez Ramirez, Gloria Leslie Reyes, and Saul Andres Reyes, by and through his guardian ad litem, Bertha Ramirez, (“Plaintiffs”), individually and as successors in interest to Lucas Obdulio Perez Vicente (“Decedent”), filed this action against defendants 1037 North Sycamore (Los Angeles) Owner, L.P. (“1037 North”), CIM Group, L.P. (“CIM Group”) and CIM Holdings, LLC (“CIM Holdings”) (collectively, “Defendants”) for wrongful death arising from work Decedent performed on Defendants’ property, in which unsecured lumber beams fell on Decedent. The operative complaint sets forth causes of action for (1) wrongful death (negligence) (2) wrongful death (premises liability), and (3) survival action against all defendants.   

On September 21, 2023, the Court sustained Defendants’ demurrer to Plaintiffs’ original complaint with leave to amend. 

On December 6, 2023, the Court sustained defendants’ demurrer to Plaintiffs’ First Amended Complaint (“FAC”) with leave to amend. 

Defendants now demur to the Second Amended Complaint (“SAC”). Plaintiffs oppose the motion, and Defendants filed a reply. 

II. REQUEST FOR JUDICIAL NOTICE 

Defendants request the Court take judicial notice of the two exhibits to the Declaration of Megan E. Klein (“Klein”), who is counsel for Plaintiffs. The exhibits are comprised of an inspection by Occupational Safety and Health Administration’s Inspection Detail, and correspondence denying Plaintiffs’ claim for workers compensation benefit. Plaintiffs object to the requests. 

Defendants contend that the Court may take judicial notice of Plaintiffs’ previously filed opposition briefs to demonstrate that the SAC’s allegations are false. Defendants cite Heston v. Farmers Ins. Group (1984) 160 Cal.App.3d 402, 413; Mai v. HKT Cal, Inc. (2021) 66 Cal.App.5th 504, 524; Hollister Park Inv. Co. v. Goleta County Water Dist. (1978) 82 Cal.App.3d 290, 292; and Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499.  

The cases are inapplicable to the issues here. Heston involved a contract, and contracts are judicially noticeable when a plaintiff refers to the agreement (and there is no objection) or attaches the contract to a complaint. (See Burnett v. Chimney Sweep (2004) 123 Cal. App. 4th 1057, 1064; Salvaty v. Falcon Cable TV (1985) 165 Cal. App. 3d 798, 800). Mai involved judicial notice of documents filed by the attorney in the underlying breach of contract action for purposes of providing evidence of attorneys’ fees incurred at the conclusion of a bench trial. The quote cited by Defendants from Hollister Park and Executive Landscape Corp. reasserts the legal principle that on a demurrer, all facts pleaded in the complaint are treated as true, and that the Court may only consider the allegations contained in the body of the complaint and documents incorporated by reference in it as controlling. 

Here, the dispute does not involve a contractual claim, nor were the exhibits provided in Plaintiffs’ counsel’s declaration incorporated into the complaint, FAC, or SAC. Judicial notice is improper to resolve the very dispute over the fact that occasioned the request for judicial notice. (Cruz v. County of Los Angeles (1985) 173 Cal. App. 3d 1131, 1134.) In other words, “‘The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff.’” (Johnson v. Honeywell Intern. Inc. (2009) 179 Cal.App.4th 549, 559-60.)  

Even if the Court were to consider the exhibits, the notice of denial of workers’ compensation benefit on behalf of only defendant CIM Holdings does not necessarily negate Plaintiffs’ allegation that Defendants failed to carry workers’ compensation insurance. The Court understands that there is a strong inference that CIM Holdings must have carried workers’ compensation insurance in order for it to be able to deny the claim, but that involves weighing of the evidence. At the pleading stage, even if true, the Court may not consider extrinsic evidence to defeat Plaintiffs’ allegations. Further, the letter pertaining to CIM Holdings does not necessarily relate to the remaining moving defendants, 1037 North and CIM Group.  

Accordingly, Defendants’ requests are DENIED. 

III. 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 Defendants fulfilled this requirement prior to filing the demurrer. (Hamby Decl. ¶¶ 2-3.) 

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.) 

Subject to exceptions, workers’ compensation is the¿only¿remedy¿available to injured employees¿and their dependents¿against the employer or against any fellow employee responsible for injuries “arising out of and in the course of employment.” (Lab. Code §§ 3600-3602, 5300; see¿Shoemaker v. Myers¿(1990) 52 Cal.3d 1, 18.) There are some situations in which the injured employee may maintain a civil action against his or her employer. These include statutory exceptions such as: 1) physical assault by the employer; 2) aggravation of injury by the employer’s fraudulent concealment; 3) products liability cases, 4) power press guards; and 5) the employer is uninsured.  (See Lab. Code §§ 3602, 3706, 4553.)   

Previously, the Court sustained Defendants’ demurrer to Plaintiffs’ FAC, noting that the FAC was a sham pleading by omitting material allegations that Decedent was working at the direction of Defendants. (Min. Order, Dec. 6, 2023.) The SAC now provides the allegations previously omitted. Here, the SAC provides in relevant part, that 1037 North was the owner of the property located 1037 North Sycamore, Los Angeles, California 90038 (SAC ¶ 2), CIM Group and CIM Holdings were the property developers for a construction project at the property (Id. at ¶¶ 4-5). Decedent Lucas Obdulio Perez Vicente (“Decedent”) is alleged to have been employed by an “unknown company within the State of California” and working on the construction site on July 13, 2021. (Id. at ¶ 10.) Decedent was directed by Defendants to perform work consisting of construction activities when unsecured lumbar beams fell on Decedent, causing injuries that resulted in death. (Id. at ¶ 13.) Decedent was an unlicensed building contractor, and Defendants employed Decedent as their own employee. (Id. at ¶¶ 18-19.) The SAC provides that Defendants did not obtain, maintain, or have worker’s compensation insurance at the time of the incident. (Id. at ¶ 22.) 

Thus, on its face, the SAC alleges a statutory exception to the workers’ compensation exclusivity rule by pleading that Defendants were uninsured. Defendants seek to prove they have workers’ compensation insurance by way of judicial notice of Plaintiffs’ prior opposition briefs, namely the letter denying Plaintiffs’ claim for worker’s compensation. However, as analyzed above, the Court may not take judicial notice of those documents, nor is the Court persuaded by the applicability of the authority cited by Defendants in support thereof. (Exec. Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal. App. 3d 496, 499 [“[I]f the pleading sufficiently states a cause of action the demurrer cannot be granted on the basis of a showing of extrinsic matters by inference from attached exhibits, affidavits or otherwise except those matters which are subject to judicial notice.”].) The SAC sufficiently states a cause of action against Defendants. For the purposes of this motion, the Court will not consider the merits of the allegations.  

IV. CONCLUSION 

Based on the foregoing, Defendants’ demurrer to the SAC is OVERRULED. 

Moving party is ordered to give notice.  

PLEASE TAKE NOTICE: