Judge: Stephen P. Pfahler, Case: 21STCV35574, Date: 2022-08-05 Tentative Ruling


Case Number: 21STCV35574    Hearing Date: August 5, 2022    Dept: F49

Dept. F-49

Date: 8-5-22

Case # 21STCV35574

Trial Date: Not Set

 

DEMURRER

 

MOVING PARTY: Defendant, Sam’s West, Inc. dba Sam’s Club and Walmart

RESPONDING PARTY: Plaintiff, Ana Melara

 

RELIEF REQUESTED:

Demurrer to the First Amended Complaint

·         1st Cause of Action: Concealment

·         2nd Cause of Acton: Aiding and Abetting

·         6th Cause of Action: Intentional Infliction of Emotional Distress

·         7th Cause of Action: Violations of Business and Professions Code section 17200

 

Motion to Strike

·         Allegations in support, and claim for, punitive damages

 

SUMMARY OF ACTION:

Plaintiff Ana Melara was an employee of Defendant Sam’s West, Inc. dba Sam’s Club and Walmart from 2006 to July 21, 2012. On October 4, 2011, Plaintiff was assigned to tasks involving food stored in a commercial grade walk in refrigerator. Plaintiff was apparently inside the refrigerator and became locked in for an unspecified duration of time. Plaintiff alleges Defendant both concealed the known inability to open the freezer from the inside, and improperly failed to report the incident to OSHA. Plaintiff subsequently applied for Workers’ Compensation benefits. Plaintiff alleges the statute of limitations tolled, due to the filing the Workers’ Compensation claim.

 

On September 27, 2021, Plaintiff filed a complaint for Concealment, Aiding and Abetting, Negligence Per Se, Premises Liability, Strict Products Liability – Failure to Warn, Strict Products Liability – Design Defect, Strict Products Liability – Manufacturing, and Intentional Infliction of Emotional Distress. On December 21, 2021, Plaintiff filed a first amended complaint for Concealment, Aiding and Abetting, Strict Products Liability – Failure to Warn, Strict Products Liability – Design Defect, Strict Products Liability – Manufacturing, Intentional Infliction of Emotional Distress, and Violations of Business and Professions Code section 17200.

 

The action was transferred from the Personal Injury court to Department 49 on March 28, 2022.

 

RULING

Request for Judicial Notice: Granted in Part/Denied in Part.

·         The court takes judicial notice of the pleadings, but not the content of the pleadings for the truth of the matter asserted.

·         The court denies judicial notice of the purported workers’ compensation claim.

 

Demurrer: Sustained with Leave to Amend/Overruled (Remainder).

Defendant Sam’s West, Inc. dba Sam’s Club and Walmart submits the subject demurrer to the first, second, sixth and seventh causes of action in the first amended complaint for Concealment, Aiding and Abetting, Intentional Infliction of Emotional Distress, and Violations of Business and Professions Code section 17200. Defendant brings the demurrer on multiple grounds, including Workers’ Compensation claim preclusion, the statute of limitations, and failure to state sufficient facts in support of the emotional distress and unfair business practices claims.

 

Plaintiff in opposition contends the case is not precluded by Workers’ Compensation law, as the subject conduct alleged the operative complaint falls beyond the “compensation bargain” governing the applicability of said rules. Plaintiff asserts the emotional distress and unfair business practices claims present sufficient facts. The opposition lacks any specific address of the statute of limitations argument.

 

Defendant in reply reiterate the Workers’ Compensation preclusion argument, and challenges the lack of sufficient fact establishing “managing agents” involved in any and all of the underlying claims. The reply also offers no follow-up to the lack of opposition on the statute of limitations.

 

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) 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 applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.  (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

“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.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

 

Injury claims are subject to the exclusive provisions of the Workers’ Compensation statutory provisions, where the injury to the employee occurs as a result of a “service growing out of and incidental” to employment, and the employee is “acting within the course” of employment. (Lab. Code, §§ 3600, subd. (a)(2), 3602; Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 813.) The injury must cause a disability and/or require medical attention. (Gomez v. Acquistapace (1996) 50 Cal.App.4th 740, 748.) Defendant maintains that Plaintiff’s use of the walk-in refrigerator and subsequent malfunction of the locking mechanism preventing egress constitutes an action within the scope of employment.

 

Plaintiff in opposition relies on the argument that the concealment of the alleged defects with the refrigerator door removes the action from the compensation bargain. “The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 708; Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.) The exclusive remedies may not apply where “the employer…stepped out of their proper roles.” (Shoemaker v. Myers, supra, 52 Cal.3d at p. 16.)

 

Plaintiff only offers only general argument, while Defendant seeks to characterize the concealment claim under Labor Code section 3602.

 

“An employee … may bring an action at law for damages against the employer, as if this division did not apply, in the following instances: … (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.”

 

(Lab. Code, § 3602, subd. (b)(2).)

 

“[A]n employee seeking to state a cause of action against an employer under section 3602(b)(2) must ‘in general terms’ plead facts that if found true by the trier of fact, establish the existence of three essential elements: (1) the employer knew that the plaintiff had suffered a work-related injury; (2) the employer concealed that knowledge from the plaintiff; and (3) the injury was aggravated as a result of such concealment.” (Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th 80, 89–90.) Defendant emphasizes the lack of any allegations regarding an aggravation of any injuries as a result of the concealment.

 

The court agrees with Defendant’s argument. The plain language of the operative complaint indicates that Plaintiff sustained the injury while performing job duties involving food handling and storage. Thus, the activity clearly falls within the scope of employment.

 

The alleged concealment of the defective locking mechanism in and of itself caused the alleged injury. Nothing in said allegations in any way articulates aggravation of injuries as a result of concealment. Plaintiff was apparently ultimately freed from the freezer at which time the detainment and exposure to the cooler temperatures stopped. Again, nothing alleges lingering effects independent of the locked time as a direct result of the concealed defective lock.

 

The demurrer is therefore sustained with leave to amend. The court declines to address the other arguments regarding the validity of the demurrer given the fundamental nature of the argument involving the propriety of the claims. The court acknowledges the arguments against leave to amend, but grants Plaintiff 30 days leave to amend since this is the first time the court has reviewed the action.  If Plaintiff elects to not file a second amended complaint and proceed with the remaining causes of action, Defendant is ordered to answer the complaint within 10 days of the lapse of the 30 day amendment period.

 

Motion to Strike: Moot.

 

Moving Defendant to give notice.