Judge William A. Crowfoot, Case Number: 23AHCV02471, Date: 2024-06-07 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV02471, Date: 2024-06-07 Tentative Ruling

On October 24, 2023, plaintiff Francisco Teletor Sente filed this action against Anthony Felix (“Felix”) as well as Diana Griego (“Griego”), individually and as trustee for the Diana Griego Trust.

On January 31, 2024, Plaintiff filed the operative First Amended Complaint (“FAC”).

On February 27, 2024, Felix and Griego (collectively, “Defendants”) filed this demurrer. Defendants also filed a request for judicial notice.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)

Defendants request the Court take judicial notice of Plaintiff’s workers’ compensation claim filed on March 30, 2022, which lists Defendants as his employers and identifies an injury sustained on November 11, 2021. The Court takes judicial notice of the existence of this claim but not for the truth of any matters stated within it.

Defendants also request the Court take judicial notice of a letter from Defendants’ insurance carrier which accepted Plaintiff’s workers’ compensation claim. The request for judicial notice is DENIED with respect to the letter from a claims administrator from The Travelers Indemnity Company because it does not fall into any of the categories listed in Evidence Code section 452.

Defendants demur to the FAC in its entirety on the grounds that Plaintiff’s action is barred by the exclusive remedy of workers compensation. The Court agrees.

Compensation under the Workers Compensation Act is an employee’s exclusive remedy against an employer for injuries sustained out of and in the course of employment. (See Cal. Const., art. XIV, section 4; Labor Code, §§ 3201, 3600, subd. (a), 3602, subd. (a); Charles J. Vacanti, M.D., Inc. v. State Compensation Insurance Fund (2001) 24 Cal.4th 800, 810.) Labor Code section¿3706 allows an injured employee to bring an action for damages if the employer "fails to secure the payment of compensation". (Lab. Code, § 3706.) “In a statutory action under section 3706, it is the 'plaintiff's obligation to plead and prove violation of section 3700 by [the defendant employer's] failure to carry workers' compensation insurance.”' (Campos Food Fair v. Superior Court (1987) 193 Cal.App.3d 965, 968.)

Here, Plaintiff alleges that he was hired by Defendants to perform remodeling work on Defendants’ premises (“Premises”) and became injured while using an electrical table saw to cut wood. (FAC, ¶¶ 12-14.) Plaintiff does not allege that Defendants failed to secure workers compensation insurance. To the contrary, Plaintiff only alleges in the FAC that Rene Cardona (“Cardona”), an unlicensed contractor (who was not included as a defendant in the initial complaint and has not been added as a Doe) did not have insurance. (Id., ¶¶ 23, 26.)

Although Plaintiff argues that his claims against Defendants fall outside the scope of the WCA because he was only employed by Cardona, this argument fails because Plaintiff alleges that neither he nor Cardona held licenses and that Defendants hired them to perform home improvement work which required a license. Therefore, Defendants are Plaintiff’s statutory employers according to Labor Code section 2750.5. (See Zellers v. Playa Pacifica, Ltd. (1998) 61 Cal.App.4th 129, 132.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.) Plaintiff seeks leave to amend but does not show how amendment is possible. The Court observes that Plaintiff previously alleged in his initial complaint that Defendants did not carry workers’ compensation but omitted this allegation from the FAC. (See Compl., ¶ 15.) Also, based on the judicially noticeable workers’ compensation claim that Plaintiff filed, it is unclear how he can truthfully amend the complaint to state that Defendants did not have workers’ compensation insurance.

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.