Judge: Stephen P. Pfahler, Case: 23STCV21188, Date: 2024-08-02 Tentative Ruling


Case Number: 23STCV21188    Hearing Date: August 2, 2024    Dept: 68

Dept. 68

Date: 8-2-24 c/f 7-23-24 a/f 9-23-24 (Ex Parte Order of 4-19-24)

Case # 23STCV21188

Trial Date: Not Set

 

DEMURRER/MOTION TO STRIKE

 

MOVING PARTY: Defendants, Airgas USA LLC, et al.

RESPONDING PARTY: Plaintiffs, Lorraine Guillen, et al.

 

RELIEF REQUESTED:

Demurrer to the First Amended Complaint

·         1st Cause of Action: Wrongful Death, Survival

·         2nd Cause of Acton: Negligence Per Se

·         3rd Cause of Acton: Breach of Fiduciary Duty

·         4th Cause of Acton: Intentional Infliction of Emotional Distress

·         5th Cause of Acton: Concealment

·         6th Cause of Action: Intentional Misrepresentation

·         7th Cause of Action: Discrimination, Harassment and Retaliation in Violation of FEHA

·         8th Cause of Acton: Unlawful Retaliation in Violation of Labor Code section 11102.5

·         9th Cause of Acton: Unlawful Retaliation in Violation of California Labor Code section 6300, et seq.

·         10th Cause of Acton: Violations of California Labor Code section 232.5, subd. (c)

 

Motion to Strike

·         Allegations in support, and claim for, punitive damages

 

SUMMARY OF ACTION:

Decedent Derrick Lute worked as a driver for Defendant Airgas USA, LLC delivering medical grade gasses and oxygen to certain medical facilities. Lute was exposed to Covid-19 during the course of employment, and subsequently passed away from the virus. Lute is survived by Lorraine Guillen, Jaiden Lute, a minor, Jada Lute, a minor, Devin Lute, a minor, and Katherine Lemond.

 

Plaintiffs allege individual Defendants Michelle Hernandez, Adrienne Johnson, Marjorie Chapman, and Charles Goodman, improperly designated Decedent as an “essential worker,” thereby risking exposure without sufficient safety protocols in place.

 

On September 1, 2023, Plaintiffs filed their form complaint for Negligence, Premises Liability, Intentional Tort, and Fraud. On December 18, 2023, the court sustained the demurrer to the entire complaint with leave to amend.

 

On February 7, 2024, Plaintiffs filed their first amended complaint for 1. Wrongful Death, Survival; 2.Negligence Per Se; 3. Breach of Fiduciary Duty; 4. Intentional Infliction of Emotional Distress; 5. Concealment; 6. Intentional Misrepresentation [Fraud]; 7. Discrimination, Harassment and Retaliation in Violation of FEHA; 8. Unlawful Retaliation in Violation of California Labor Code §1102.5; 9. Unlawful Retaliation in Violation of California Labor Code §6300, et seq.; and, 10. Violation of California Labor Code §232.5(c).

 

On April 11, 2024, the case was reassigned from Department 27 to Department One for transfer. On April 12, 2024, Plaintiffs filed a 170.6 challenge to Department 12, thereby leading to assignment to Department 68.

 

RECOMMENDED RULING

Demurrer: Sustained with Leave to Amend

Request for Judicial Notice: Granted

·         The court takes judicial notice of state agencies orders, but not any factual findings for the truth of the matter asserted. (Rea v. Blue Shield of California (2014) 226 Cal.App.4th 1209, 1223; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482; Kilroy v. State of California (2004) 119 Cal.App.4th 140, 147-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

·         The court takes judicial notice of the September 1, 2023, filed complaint only for the filin itself and not the truth of any matter asserted within the pleading.

 

Defendants Airgas USA LLC, Airgas Inc., Michelle Hernandez, Adrienne Johnson, Marjorie Chapman, and Charles Goodman submit the subject demurrer to the entire first amended complaint for 1. Wrongful Death, Survival; 2.Negligence Per Se; 3. Breach of Fiduciary Duty; 4. Intentional Infliction of Emotional Distress; 5. Concealment; 6. Intentional Misrepresentation [Fraud]; 7. Discrimination, Harassment and Retaliation in Violation of FEHA; 8. Unlawful Retaliation in Violation of California Labor Code §1102.5; 9. Unlawful Retaliation in Violation of California Labor Code §6300, et seq.; and, 10. Violation of California Labor Code §232.5(c). Defendants present numerous arguments, including: Workers Compensation Act preclusion, statute of limitations, lack of standing by Lorraine Guillen, failure to obtain leave to add the breach of fiduciary cause of action, and failure to plead the elements of certain claims. Plaintiffs in opposition challenge any Workers’ Compensation law preclusion on grounds of improper reliance on extrinsic evidence, the survivor claims are in no way barred by the workers compensation statutes, denial of any statute of limitations bar, claim of standing by Lorraine Guillen, and all properly pled claims. Defendant in reply deny any exception to workers compensation exclusivity, describe the opposition as containing “blatant misrepresentations,” the opposition exceeds the page limit, and the court should deny any leave to amend.

 

Plaintiffs also submitted a “supplemental opposition” after the case was fully briefed and without leave of court. The court declines to consider the supplemental arguments.

 

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.]

 

Workers’ Compensation Preclusion

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 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.)

 

Defendants specifically rely on the request for judicial notice Executive Order N-62-20, whereby the State of California proclaimed Covid-19 exposure constitutes a recoverable illness under the Workers’ Compensation statutes. Plaintiff counters that reliance on said order constitutes extrinsic consideration beyond the scope of the pleading. The court finds the order declaring Covid-19 a recoverable form of damages within the Workers’ Compensation laws allowable, and the operative complaint in fact specifically relies on Covid-19 exposure during delivery work as the cause of death for Derrick Lute. The plain language of the operative complaint indicates that Plaintiff sustained the injury (Covid-19 exposure) while performing job duties. Thus, the activity clearly falls within the scope of employment.

 

Nevertheless, Plaintiffs in opposition challenge statutory preclusion on the basis of the fraudulent concealment exception. “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.)

 

Plaintiffs cite to no specific sections of the operative complaint in in support of the fraudulent concealment exception. The court notes certain allegations of awareness and intentional concealment of Covid-19 risks as a result of deliveries to medical care facilities with Covid-19 patients. The incentive to suppress said known dangers was the result of company priorities on keeping their work force engaged in delivery work rather than adherence to safety protocols [First Amend. Comp., 18, 20, 22, 24, 35-40.] The court finds the subject allegations sufficient for purposes of the subject demurrer, and therefore an exception to workers compensation preclusion for purposes of ruling on the demurrer. (Foster v. Xerox Corp. (1985) 40 Cal.3d 306, 309-310.) The court therefore overrules the demurrer to the survivor causes of action only on this basis, and separately addresses the individual claims.

 

Individual Claims

As addressed in the standing section below, Plaintiffs bring the action as both a survival action and individually. While an employer owes no duty of care to prevent the spread of Covid-19 from an employee to family members, workers’ compensation preclusion in no way bar individuals from pursuing claims as well. (Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993, 1003.) The demurrer is therefore overruled as to the right to proceed on the claim without workers’ compensation preclusion as to the individual Plaintiffs. The court declines to address the sufficiency of any individual claims under the relied upon standard, as the arguments are not specifically and separately articulated in the demurrer. The court overrules the demurrer to all claims relying on workers’ compensation exclusivity, including the “negligence” cause of action, breach of fiduciary duty, and intentional infliction of emotional distress, as to the survival action.

 

Statute of Limitations

Defendant contends the complaint was filed more than two years after the death of Derrick Lute. Plaintiffs maintain their September 1, 2023, form complaint for Negligence, Premises Liability, Intentional Tort, and Fraud “relate back” to the original complaint. Defendant in reply challenges relation back doctrine on grounds that the first amended complaint addition of the breach of fiduciary cause of action somehow changed the basis of the cause of action, thereby preventing any finding of a timely complaint.

 

“An amended complaint relates back to the original complaint, and thus avoids the statute of limitations as a bar against named parties substituted for fictitious defendants, if it: (1) rests on the same general set of facts as the original complaint; and (2) refers to the same accident and same injuries as the original complaint.” (Barrington v. A. H. Robins Co. (1985) 39 Cal.3d 146, 151.) The original complaint alleges the exposure of Derrick Lute to Covid-19 as a result of workplace operations. The form complaint alleges a date of September 3, 2021. The complaint both alleges a common core of facts, and was filed within two years of the date of death. The argument regarding the breach of fiduciary as tangential, insufficiently establishes a bar on the basis of the statute of limitations for the entire action as stated in the demurrer. The court declines to consider the single breach of fiduciary claim under the limited argument presented on relation back doctrine. The court overrules the demurrer on the statute of limitations argument.

 

Standing

Defendant next challenges the standing of Lorraine Guillen, who is neither a descendent nor surviving spouse of Derrick Lute. Lorraine Guillen brings the action in the capacity as a “domestic partner.”

 

A successor-in-interest must file a declaration with specified elements and a death certificate (Code Civ. Proc., § 377.32). The operative complaint in no way identifies the status of Lorraine Guillen as a party. Plaintiffs brings this action individually and/or as the surviving heirs and/or dependents of Decedent, pursuant to CCP § 377.60 (Wrongful Death) and/or as successors in interest of Decedent pursuant to CCP § 377.30 (Survival Action). [First Amend. Comp., ¶¶ 1-2.] While the original complaint in fact contains a declaration from Lorrain Guillen declaring a domestic partnership with the decedent, as well as the required death certificate, the operative first amended complaint lacks compliance with either statutory requirement. The court declines to rely on the previously incorporated documents of the now inoperative original form complaint. Plaintiffs must file a complete claim within the operative pleading in order to allege a claim. The demurrer is therefore SUSTAINED, due to the lack of the required elements in the operative complaint. (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130.)

 

3rd Cause of Acton: Breach of Fiduciary Duty

On the breach of fiduciary duty claim, Plaintiffs in fact improperly added new causes of action without any apparent leave of court. The court therefore sustains the demurrer to the subject cause of action WITH LEAVE TO AMEND to add the claim in the second amended complaint.

 

5th Cause of Acton: Concealment

6th Cause of Action: Intentional Misrepresentation

Both parties present single paragraph arguments in support and opposition to the subject claims. The court declines to make the arguments for the parties. “‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” The operative complaint lacks facts indicating a direct misrepresentation or concealment to the individual, surviving plaintiffs. Again, the court declines to consider unmade arguments. The court SUSTAINS the demurrer on this basis

 

7th Cause of Action: Discrimination, Harassment and Retaliation in Violation of FEHA

8th Cause of Acton: Unlawful Retaliation in Violation of Labor Code section 11102.5

9th Cause of Acton: Unlawful Retaliation in Violation of California Labor Code section 6300, et seq.

10th Cause of Acton: Violations of California Labor Code section 232.5, subd. (c)

On the remaining individual seventh, eighth, ninth and tenth causes of action addressing the sufficiency of the employment claims, the court overrules the demurrer on grounds of workers’ compensation preclusion. On the individual challenges, the actual causes of action only presents a series of conclusions regarding standing and presumption of damages without any effort towards factual distinction as to any and all of the individual causes of action. [First Amend. Comp., ¶¶ 133-157.] Plaintiffs cite to precursor paragraphs 14-28 for the eighth, ninth and tenth causes of action, again, without any specific distinction between the varying claims.

 

The cited paragraphs only appear to address the concealment allegations with a single reference to alleged use of “derogatory” racially discriminatory language in paragraph 26. The two sentences insufficiently articulate any and all of the individual claims. Again, the court declines to make the arguments for Plainiff The demurrer is SUSTAINED on this basis as well.

 

The motion to strike punitive damages is MOOT.

 

In summary, the demurrer is overruled as to the statute of limitations and workers’ compensation preclusion, and sustained with leave to amend, due to the failure to properly allege the requirements for standing, adding a new cause of action without leave of court, and failure to state sufficient facts in support of the fraud and individual employment claims. Plaintiff is given leave to amend as to ONLY the claims presented, including leave to amend to add in the breach of fiduciary duty cause of action. Plaintiffs may NOT add any new causes of action and later seek to label as split off from an existing prior claim, without clear and explicit leave of court. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) People By and Through Dept. of Public Works v. Clausen (1967) 248 Cal.App.2d 770, 785.) Any new causes of action added without leave will be subject to a motion to strike.

 

Defendant may raise substantive challenges to the breach of fiduciary claim, if applicable in any new challenge to the next iteration of the complaint. Arguments otherwise remain limited only to previously raised challenges. (Code Civ. Proc., § 430.41, subd. (b).)

 

“In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.” (Code Civ. Proc., § 430.41, subd. (e)(1).) While the subject motion constitutes the first review of the subject action, the court cites to the standard upon the potential for a future challenge to the second amended complaint.

 

Motion to Strike: Moot.

 

Plaintiffs shall file any new amended pleading within 30 days of this order.

 

Moving Defendants to give notice.