Judge William A. Crowfoot, Case Number: 24AHCV00148, Date: 2024-10-04 Tentative Ruling

Judge: William A. Crowfoot, Case: 24AHCV00148, Date: 2024-10-04 Tentative Ruling

On January 23, 2024, plaintiff Antonio Guachiac Carac (“Plaintiff”) filed this action against defendant Kenny Wan (“Defendant”), Consolidated Disposal Service, LLC dba Republic Waste Servies of Southern California, LLC (“Republic”), Doe Driver, Tang Lang Shue (“Trustee”) as trustee for the Tang Lang Shue Family Trust (“Trust”), Tse Realty and Management Servies (“Tse Management”), and Timothy Tse (“Tse”).

Plaintiff alleges that on January 11, 2023, he was injured during the course and scope of his employment with Trustee, Tse Management, Tse, and Defendant. (Compl. ¶. 17.) Plaintiff alleges he was hit by a vehicle owned by Republic and operated by Doe Driver, a Republic employee working in the course and scope of his employment. (Compl., ¶¶ 17-18.) Due to the collision, Plaintiff’s right foot was wounded when it became entangled inside the drain cleaning equipment that he was using. (Compl., ¶ 18.) The wound subsequently became infected and on January 15, 2023, Plaintiff’s right foot was amputated. (Compl., ¶ 18.)

Plaintiff asserts two causes of action for: (1) vehicular negligence (against Republic and Doe Driver), and (2) violation of Labor Code section 3706 (against Defendant, Trustee, Tse Management, and Tse) for failing to carry workers’ compensation insurance.

On June 11, 2024, Defendant filed this demurrer to the sole cause of action asserted against him for violation of Labor Code section 3706.

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “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”].)

A demurrer may also be brought on the grounds that it is uncertain. (Code Civ. Proc., § 430.10, subd. (f).) “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.) Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

As an initial matter, the Court addresses Plaintiff’s claim that Defendant’s demurrer is untimely. A proof of service of the summons and complaint shows that Defendant was served on April 13, 2024. Plaintiff argues that Defendant’s demurrer had to be filed by May 13, 2024, since a defendant may demur within the same period of time it has to answer the complaint—i.e., 30 days after service, unless extended by stipulation or court order. (Code Civ. Proc., § 430.40, subd. (a).) This demurrer was filed on June 11, 2024, along with a declaration by defense counsel, Frank Hwu. Defense counsel does not argue that Defendant is entitled to an automatic 30-day extension of the deadline to file a demurrer because he does not state that he made a good faith attempt to meet and confer at least 5 days before the demurrer was due, nor could he, since he was retained on May 17, 2024, four days after the deadline to file a responsive pleading. (Hwu Decl., ¶ 4.) Therefore, it does not appear that the demurrer is timely. Nevertheless, an untimely demurrer may be considered by the court in its discretion. (Jackson v. Doe (2011) 192 CA4th 742, 750). Here, the Court exercises its discretion to consider the demurrer and proceeds to analyze it on its merits.

Defendant demurs to Plaintiff’s second cause of action on the grounds that it fails to state sufficient facts. Defendant argues that Plaintiff cannot maintain this lawsuit due to the worker’s compensation exclusivity doctrine since Plaintiff alleged that he was injured “on the job.” (Demurrer, p. 4.) Defendant also argues that Plaintiff’s allegations that Defendant was an “employer” within the meaning of the Labor Code are deficient because there are no allegations describing the “scope and nature of the work Plaintiff was hired to do,” “when [Plaintiff] was hired,” or whether Defendant even compensated Plaintiff. (Demurrer, p. 4.) Defendant contends that although Plaintiff alleges that he did not carry worker’s compensation insurance, Plaintiff’s second cause of action would be defeated if Plaintiff was a licensed contractor or self-insured. (Demurrer, p. 4.)

Defendant’s demurrer on this ground is OVERRULED. Plaintiff’s allegations are sufficient because he details the circumstances of his employment and injury and pleads the ultimate facts necessary to state a cause of action under Labor Code section 3600. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550). Critically, Plaintiff alleges that he was employed by Defendant, Trustee, Tse, and Tse Management and that none of them carried worker’s compensation. (Compl., ¶¶ 27, 29.) Plaintiff alleges he was employed to clean out a drain using mechanized equipment when he was hit by a vehicle which resulted in his injuries. (Compl., ¶ 28.) Plaintiff further alleges that Defendant, along with Trustee, Tse, and Tse Management, were negligent in their supervision of him and negligently instructed him. (Compl., ¶ 31.) Plaintiff also alleges that he was not provided an adequate and safe work environment because he was working in the “zone of danger of vehicles” and was not given “a safe drain cleaning equipment/machine.” (Compl., ¶ 31.)

As for Defendant’s demurrer on the grounds of uncertainty, it is also OVERRULED. The Complaint is not vague and ambiguous and further, any uncertainty or ambiguities can be clarified through discovery. (See Khoury, supra, 14 Cal.App.4th at p. 616.)

Defendant’s demurrer is OVERRULED in its entirety. Defendant is to file an answer within 20 days of the date of this Order.

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.