Judge: Serena R. Murillo, Case: 21STCV219691, Date: 2023-01-20 Tentative Ruling
Case Number: 21STCV219691 Hearing Date: January 20, 2023 Dept: 29
TENTATIVE
Defendant Simplified Labor Staffing Solutions, Inc.’s demurrer is OVERRULED.
Legal Standard
A demurrer for sufficiency tests whether the complaint states a
cause of action. (Hahn v. Mirda (2007) 147
Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations
liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and
Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the
demurrer as admitting all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th
518, 525).) In a demurrer proceeding, the defects must be apparent on the face
of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins.
Co. (2004) 116 Cal.App.4th 968, 994).) A demurrer tests the pleadings
alone and not the evidence or other extrinsic matters; therefore, it lies only
where the defects appear on the face of the pleading or are judicially noticed.
(Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer
hearing is whether the complaint, as it stands, unconnected with extraneous
matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at
747.)
Meet and Confer
Before filing a demurrer, the demurring party is required to
meet and confer with the party who filed the pleading demurred to for the
purposes of determining whether an agreement can be reached through a filing of
an amended pleading that would resolve the objections to be raised in the
demurrer. (CCP § 430.41(a).) The declaration of Kyle
Gallego satisfies the
meet and confer requirements.
Discussion
Defendant demurs to the complaint, first arguing that
Plaintiff failed to state facts showing Defendant owed plaintiff a duty of
care.
The elements for negligence
are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of
duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara
v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292,
318.) In California, negligence may be pleaded in general
terms. (Landeros v. Flood (1976) 17 Cal.3d 399, 407-408.)
“Ordinarily, negligence may be alleged in general terms, without
specific facts showing how the injury occurred, but there are ‘limits to the
generality with which a plaintiff is permitted to state his cause of action,
and . . . the plaintiff must indicate the acts or omissions which are said to
have been negligently performed. He may not recover upon the bare
statement that the defendant’s negligence has caused him injury.’
[Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)
The
complaint alleges that on or about
April 30, 2019, Plaintiff was contracted by Maersk SG as a
logistics coordinator by and through his employer, Simplified Labor Staffing
Solutions, Inc. Under the
terms of his employment, Plaintiff was charged with assisting in the movement
of cargo from docking platforms into freight containers at Maersk SG located at 5039 Firestone Place, Southgate, CA
90280. On the day of the accident, the standard machine used to maneuver and
align ramps weighing over two tons connecting loading platforms to freight
containers was not functioning properly. Defendant Maersk SG and DOE employees jerry-rigged a makeshift ramp
mover from sundry leavers and pullies located at the work site. At the time of
the accident, Plaintiff stood on a metal platform connected to a large shipping
container several feet away by a large metal loading ramp. Plaintiff was
charged with overseeing the loading of packages onto the ramp, to be conveyed
down into the awaiting containers. Plaintiff had expressed to Maersk employees his unease with the jerry-rigged system
they employed that day to move the 2-ton ramp because the ramp had been dropped
out of alignment twice before. Dismissing Plaintiff’s concerns, Maersk SG employees instructed him to remain on the platform
while they used their home-made jerry-rigged device to move and guide a ramp
weighing over 2 tons from the platform where Plaintiff stood onto the awaiting
freight crate. As Plaintiff stood on the adjoining dock, Defendant’s lost
control of the ramp, causing the ramp to crash down onto the metal dock where
Plaintiff stood. Upon impact, Plaintiff’s entire body absorbed the force of the
ramp crashing onto the dock, propelling him several feet into the air, causing
him to land on his legs and buttocks.
The Court finds
that Plaintiff has sufficiently stated facts showing that Defendant owed a duty
of care as Plaintiff’s employer, and the complaint further alleges that under
the contract, Plaintiff was charged with assisting in the movement of cargo from docking
platforms into freight containers at Maersk SG.
Defendant argues that Govt. Code §815(a) makes it
clear that “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.” However, it is not
clear how Government Code section 815 applies here, and there are no
allegations that Defendant is a public entity and Defendant has neither argued
it is, nor asked for judicial notice of some document showing it is a public
entity. Thus, this argument is disregarded.
The demurrer is OVERRULED on this ground.
Negligence
Per Se
Defendant argues this cause of action fails because negligence
per se is a rebuttable evidentiary presumption and not an independent cause of
action.
“’Negligence per se’ is an
evidentiary doctrine codified at Evidence Code section 669. Under subdivision
(a) of this section, the doctrine creates a presumption of negligence if four
elements are established: (1) the defendant violated a statute, ordinance, or
regulation of a public entity; (2) the violation proximately caused death or
injury to person or. property; (3) the death or injury resulted from an
occurrence the nature of which the statute, ordinance, or regulation was
designed to prevent; and (4) the person suffering the death or the injury to
his person or property was one of the class of persons for whose protection the
statute, ordinance, or regulation was adopted. These latter two elements are
determined by the court as a matter of law.” (Quiroz v. Seventh Ave. Center
(2006) 140 Cal.App.4th 1256, 1285, internal citations omitted.) “Thus,
the doctrine of negligence per se does not establish tort liability.
Rather, it merely codifies the rule that a presumption of negligence arises
from the violation of a statute which was enacted to protect a class of persons
of which the plaintiff is a member against the type of harm that the plaintiff
suffered as a result of the violation. Even if the four requirements of
Evidence Code section 669, subdivision (a), are satisfied, this alone does not
entitle a plaintiff to a presumption of negligence in the absence of an
underlying negligence action.” (Ibid., internal citations omitted,
emphasis in original.) “Accordingly, to apply negligence per se is not to
state an independent cause of action. The doctrine does not provide a private
right of action for violation of a statute. Instead, it operates to
establish a presumption of negligence for which the statute serves the
subsidiary function of providing evidence of an element of a preexisting common
law cause of action.” (Id. at 1285-86, internal citations
omitted.)
“ ‘The presumption of
negligence created by Evidence Code section 669 concerns the standard of
care, rather than the duty of care.’ In order for the presumption to be
available, ‘either the courts or the Legislature must have created a duty of
care.’ ‘[A]n underlying claim of ordinary negligence must be viable
before the presumption of negligence of Evidence Code section 669 can be
employed.... “[I]t is the tort of negligence, and not the violation of the
statute itself, which entitles a plaintiff to recover civil damages.” ’ ” (Millard
v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353, citations omitted,
original italics.)
Notwithstanding, a party can
still allege a negligence per se cause of action. In Landeros v. Flood
(1976) 17 Cal.3d 399, the California Supreme Court noted that, while the
plaintiff's allegations of violations of statutes did not state a separate
cause of action in the sense that they did not allege a different violation of
a primary right, i.e. the right to be free from bodily harm, they could still
be alleged either together in a single count, or as separate counts. (Id.
at 413.) Likewise, in Millard, the Court of Appeal found that, although
negligence per se was not a true independent cause of action, plaintiff
nevertheless needed to plead allegations that supported the negligence per se
theory in order to rely on that theory in opposition to summary judgment. Since
plaintiff had failed to make any such allegations in the complaint, he could
not rely on a negligence per se theory to defeat summary judgment. (Millard,
supra, 156 Cal.App.4th at 1353.)
Although Defendant
is correct that negligence per se is not a separate “cause of action” in the
sense of alleging a different violation of a primary right, Plaintiff
nevertheless can allege negligence per se as a separate count of
negligence.
Accordingly, the demurrer to the cause of action for
negligence per se is OVERRULED.
Worker’s Compensation
Exclusivity Rule
California Labor Code section 3602 states “[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 37036 and 4558, the sole and exclusive remedy of the employee or his
or her dependents against the employer.” California Labor Code section
3600 states “[l]iability for the compensation provided by this division, in
lieu of any other liability whatsoever to any person except as otherwise
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 . . . where the following
[three of ten] conditions of compensation occur:
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.
1.
Where
the injury is proximately caused by the employment, either with or without
negligence.”
Workers’ compensation provides
the exclusive remedy against an employer for an injury sustained by an employee
in the course of employment and compensable under the workers’ compensation
law. (Labor Code, §§ 3600, subd. (a), 3602, subd. (a); Charles J.
Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800,
812-813.)
Here, while Plaintiff alleges in
the complaint that Plaintiff was Defendant’s employee, there is no allegation that Plaintiff was
injured while in the course and scope of Plaintiff’s employment with
Defendant. This essential element is not satisfied for the Court to
sustain the demurrer on the ground that Plaintiff’s exclusive remedy is
workers’ compensation.
Conclusion
Based on the foregoing, Defendant’s demurrer is OVERRULED.
Moving party is
ordered to give notice.