2018-00230238-CU-NP

Keirra Smith vs. Ulta Salon, Cosmetic & Fragrance, Inc.

Nature of Proceeding: Hearing on Demurrer to Plaintiffs’ First Amended Complaint

Filed By: Schick, Malcolm D.

Defendant Watson Companies, Inc.’s (“WCI”) demurrer to the First Amended Complaint (“1AC”) is SUSTAINED with leave to amend, as follows.

The notice of demurrer does not provide the correct address for Dept. 53/54.

Plaintiffs’ counsel failed to comply with CRC Rule 3.1110(b)(3).

The court did not consider the Moua Declaration filed in opposition to this demurer since such extrinsic evidence is beyond the permissible scope of a demurrer, where the court’s consideration is limited to those facts alleged in the challenged pleading and those for which judicial notice is both requested and granted.

Factual Background

This action arises out of a commercial construction site injury whereby a worker fell through the roof and died. Plaintiffs are the decedent’s spouse and family members. The 1AC asserts a single cause of action for general negligence against a variety of defendants alleged to be involved in the subject construction project. Notably the 1AC on Page 6 describes defendant WCI as a “roofing subcontractor of [defendant] Clayco, Inc.,” the general contractor, and further admits, “Decedent was employed with [WCI] at the time of the fall.”

WCI now demurs to the 1AC on the ground that the sole negligence cause of action is barred by Labor Code §3602(a), which provides that the sole and exclusive remedy of an employee or his dependents is limited to workers’ compensation.

Plaintiffs oppose, arguing that this case falls within an exception to the exclusive remedy rule. Specifically, the (amended) opposition relies on Labor Code §3602(b)(2) (although it is (again) incorrectly cited as §3600(b)(2)) as the basis for liability against WCI, claiming that the latter concealed the hazardous roof condition which contributed to the injury. Plaintiff also argues that WCI’s conduct violated Labor Code §6400 and was against public policy.

Analysis

The court finds that plaintiffs’ reliance on the exception found in Labor Code §3602(b)

(2) to be misplaced and will therefore sustain WCI’s demurrer. Labor Code §3602 provides in pertinent part:

(a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer. The fact that either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee’s industrial injury shall not permit the employee or his or her dependents to bring an action at law for damages against the employer.

(b) An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances:

(1) Where the employee’s injury or death is proximately caused by a willful physical assault by the employer.

(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. …

(Underline added for emphasis.)

As noted above, the opposition relies on the “concealment” exception found in §3602 (b)(2) based on plaintiffs’ claim that WCI concealed the hazardous roof condition which contributed to the injury. However, this argument fails for at least two reasons.

First, none of the “facts” asserted in the opposition relating to WCI’s alleged concealment of the hazardous condition is actually alleged in the 1AC and thus, they need not be considered in ruling on the sufficiency of the current allegations against WCI. In fact, the only allegation this court can find in the current 1AC is found on Page 6 and, as cited above, merely describes WCI as a “roofing subcontractor” of the general contractor and decedent’s employer “at the time of the fall.”

Second, the opposition misreads the nature of the exception found in §3602(b)(2). This exception is, by its own terms, not premised on an employer’s concealment of a hazardous condition but rather on an employer’s “fraudulent concealment of the existence of the injury and its connection with the employment.” (Underline added for emphasis.) Particularly since the injury giving rise to this lawsuit was death and it is readily apparent from the 1AC’s assertions this injury occurred in the course of the decedent’s alleged employment, it is impossible for this court to conclude that §3602 (b)(2) has any application to the present case. Reinforcing this conclusion is the additional language in §3602(b)(2) which clarifies that this “fraudulent concealment of injury” exception is limited to those circumstances where an employee’s injury is “aggravated by” the concealment, a condition which not appear to be satisfied based on the current allegations against WCI.

The court need not here consider plaintiff’s argument based on WCI’s alleged violation of Labor Code §6400 since the 1AC presently includes no allegation that any defendant violated any provision of the Labor Code, much less §6400, and since the 1AC also fails to specifically allege any facts necessary to establish a violation of this statute. Instead, as noted above, the 1AC merely asserts a single cause of action for “general negligence” against a variety of defendants. Regardless, Labor Code §6400 does not on its face alter the general rule that an employee’s exclusive remedy against his/her own employer is found in the worker compensation forum (see, Labor Code §3602(a)) and §6400, by its own terms, primarily addresses the question of who may be cited by Cal-OSHA, an issue not otherwise implicated by the current allegations of the 1AC.

Finally, plaintiff’s reliance on the Arrendell decision is misplaced since Arrendell discussed in pertinent part “intentional employer conduct” and since there is no allegation of any “intentional employer conduct” in the 1AC. As already noted, the 1AC asserts only a cause of action for “general negligence,” the antithesis of “intentional” conduct.

Conclusion

Since 1AC fails to plead facts which are sufficient to establish the applicability of the exception found in Labor Code §3602(b)(2) and since the opposition itself appears to misconstrue the application of this exception and since the 1AC includes no facts to demonstrate any violation of Labor Code §6400, the court must sustain WCI’s demurrer.

Because this is the first challenge to plaintiffs’ pleading, leave to amend is granted.

Plaintiffs may file and serve a second amended complaint no later than 11/21/2018.

Although not required by court rule or statute, plaintiffs are directed to present a copy of this order when the amended complaint is presented for filing.

Defendant WCI to respond within 30 days if the second amended complaint is personally served, 35 days if served by mail.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)