Judge: Thomas D. Long, Case: 22STCV030507, Date: 2022-11-22 Tentative Ruling

Case Number: 22STCV030507    Hearing Date: November 22, 2022    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On January 28, 2022, Plaintiffs Spazz Inc., Slang East/West LLC, and Robert Trujillo (collectively, “Plaintiffs”) filed this action against Defendants Stacey Summers and Gursey Schneider LLP.

On July 8, 2022, Summers (“Cross-Complainant”) filed a cross-complaint against Gursey Schneider LLP (“Cross-Defendant”) for indemnification.

On August 30, 2022, Cross-Defendant filed a demurrer.

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, accepting the alleged facts as true.  (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)  “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.”  (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)

The cross-complaint’s sole cause of action is for indemnification under Labor Code section 2802.  “An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.”  (Lab. Code, § 2802, subd. (a).)  “The test for recovery under section 2802 is whether the conduct defended against was within the course and scope of employment.”  (Jacobus v. Krambo Corp. (2000) 78 Cal.App.4th 1096, 1101.)

Cross-Defendant argues that there are no specific factual allegations to show that the work Cross-Complainant performed for Plaintiffs was in the course and scope of her employment with Cross-Defendant.  (Motion at p. 8.)  Cross-Complainant alleges that she was employed by Cross-Defendant from December 1, 2006 through March 1, 2020 as a certified public accountant.  (Cross-Complaint ¶ 9.)  The accounting work that Cross-Complainant performed for Plaintiffs was “the same type of accounting work Cross-Complainant performed as part of her normal duties as an employee of Cross-Defendant.”  (Cross-Complaint ¶ 10.)  She met with Plaintiffs at Cross-Defendant’s place of business with Cross-Defendant’s knowledge, and she provided accounting services to Plaintiffs there as part of her duties as an accountant for Cross-Defendant.  (Cross-Complaint ¶ 11.)  This sufficiently alleges that Cross-Complainant was acting within the course and scope of her employment and that her potential liability to Plaintiffs was “in direct consequence of the discharge of his or her duties.”  Cross-Defendant’s reliance on Asplund v. Selected Investments in Financial Equities, Inc. (2000) 86 Cal.App.4th 26 (Demurrer at pp. 7-8) is unconvincing, as that case was decided at summary judgment with insufficient evidence to create a triable issue of material fact regarding the scope of employment.  Similarly, Inter Mountain Mortg., Inc. v. Sulimen (2000) 78 Cal.App.4th 1434 and PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384 (Demurrer at p. 8) were also decided at summary judgment, with consideration of evidence regarding scope of employment.  Accepting Cross-Complainant’s allegations as true at this demurrer stage, the alleged facts are sufficient.

Cross-Defendant also argues that the alleged facts are contradictory.  (Demurrer at p. 9.)  Cross-Defendant specifically notes that the allegation about an “agreement entered into by and between Plaintiffs and Cross-Complainant to have Cross-Complainant perform accounting work for Plaintiff” (Cross-Complaint ¶ 10) contradicts the more general allegation that Cross-Complainant was in the course and scope of her employment when she performed accounting work for Plaintiffs.  (Demurrer at p. 9.)  At this stage, the Court cannot conclude that these allegations are necessarily contradictory such that they negate all pleaded facts about Cross-Complainant’s employment.

The demurrer is OVERRULED.  Cross-Defendant is ordered to file an answer within 20 days.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

     Dated this 22nd day of November 2022