Case Number: BC534569    Hearing Date: September 04, 2014    Dept: A11

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

SUSAN MATIAS, )
) Case Number BC534569
Plaintiffs, )
) ORDER AFTER HEARING
V )
) Date of Hearing:
FIRST SOLAR, INC., et al., ) September 4, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The demurrer of Defendant, First Solar, Inc., to the First Amended Complaint came on for hearing on September 4, 2014. Plaintiff Susan Matias appeared through her counsel of record, ________________. Defendant First Solar, Inc. appeared through its counsel of record, ___________________________.

The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, hereby ORDERS:

The demurrer of Defendant First Solar, Inc. is OVERRULED. Defendant shall file and serve its Answer on or before September 26, 2014.

SO ORDERED this the _____ day of September, 2014.

______________________
RANDOLPH ROGERS,
JUDGE

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES – NORTH DISTRICT

SUSAN MATIAS, )
) Case Number BC534569
Plaintiffs, )
) STATEMENT OF DECISION
V )
) Date of Hearing:
FIRST SOLAR, INC., et al., ) September 4, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The Court bases the Order After Hearing of this date upon the following Statement of Decision:

1. The present case arises out of a workplace injury. On February 7, 2012, Plaintiff Susan Matias (“Plaintiff”) slipped and fell from stairs attached to the construction manager’s trailer, sustaining injuries. On January 30, 2014, Plaintiff filed her Complaint alleging a single cause of action for negligence.

2. On March 14, 2014, Defendant First Solar, Inc. (“Defendant”) filed a demurrer to the Complaint, contending that Plaintiff’s sole and exclusive remedy is under Worker’s Compensation. Plaintiff filed her opposition on May 7, 2014. Defendant filed its reply on May 21, 2014.

3. At the hearing on the demurrer held on June 2, 2014, the parties submitted to this Court’s tentative ruling and the Court sustained the demurrer with leave to amend. The First Amended Complaint (“FAC”) was filed on June 11, 2014.

4. Defendant filed its demurrer to the FAC on June 18, 2014. Plaintiff filed her Opposition on June 30, 2014. After hearing on July 17, 2014, the Court sustained Defendant’s demur to the FAC with leave to amend through July 28, 2014. The Second Amended Complaint (“SAC”) was filed on July 25, 2014.

5. The only difference between the FAC and the SAC is the addition of a new paragraph 4 in the SAC. This paragraph alleges that Plaintiff “was an employee of CLP Resources,” Complaint at ¶4, and cites numerous documents which support this allegation.

6. Defendant filed its demurrer on August 5, 2014, once again arguing that the SAC is defective because Plaintiff’s sole remedy is worker’s compensation. Plaintiff filed her Opposition on August 15, 2014, arguing that the SAC never alleges Plaintiff is an employee of Defendant, and that the Privette doctrine is inapplicable.

7. Standard for ruling on demurrer – The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. Cal. Code Civ. Proc. § 430.30(a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action – i.e., if the complaint pleads facts that would entitle the plaintiff to relief. Limandri v. Judkins (1997) 52 Cal.App.4th 326, 339.

8. A general demurrer admits the truth of all factual, material allegations properly pleaded in the challenged pleading, regardless of possible difficulties of proof. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709. A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.

9. An amended complaint that omits harmful factual allegations from a previous complaint, whether verified or unverified, without an adequate explanation for the discrepancy is regarded as a sham pleading. A court ruling on a demurrer may take judicial notice of facts alleged in a prior complaint that reveal a defect in an amended complaint, and may disregard any inconsistent allegations in the amended complaint. State ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 412; see Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-26.

10. Pursuant to Cal. Code Civ. Proc. §§ 430.10(e) and (f), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment. Schifando v. City of Los Angeles (2001) 31 Cal.4th 1074, 1082. The burden is on the plaintiff to demonstrate how the complaint can be amended to state a valid cause of action. Id.

11. Exclusive Remedy – Defendant argues that worker’s compensation is Plaintiff’s exclusive remedy because she has noted clearly in the SAC that she was injured while working. However, worker’s compensation laws deal specifically with an employee’s claims against an employer for injuries arising from or relating to her work and employment. “This recovery is the employee’s exclusive remedy as against the employer . . . but does not preclude suit by the employee against a negligent third party.” O’Dell v. Freightliner Corp. (1992) 10 Cal.App.4th 645, 653 (emphasis added). See also Cal. Lab. Code §3852 (“The claim of an employee . . . does not affect his or her claim or right of action for all damages proximately . . . against any person other than the employer”).

12. In light of this, Defendant would be entirely correct if Plaintiff were suing her alleged employer, CLP Resources. Under worker’s compensation laws, Plaintiff’s exclusive remedy would be worker’s compensation. However, the SAC does not allege any cause of action against CLP. CLP is not alleged to be the owner, operator, or maintainer of the property. Indeed, CLP does not appear, from the face of the SAC, to be related to the claim at all, or to Defendant. The SAC alleges a cause of action sounding in premises liability and negligence against Defendant, a third-party to the employment contract between CLP and Plaintiff. Pursuant to the pronouncement in O’Dell, nothing in worker’s compensation laws precludes Plaintiff from recovery against Defendant.

13. Defendant has noted the Court’s characterization of the present case as a “workplace injury.” Demurrer at 6:18-20. It appears clear from the pleadings that Plaintiff was working when she was injured, as such, it is a fair characterization. However, it does not flow naturally that the result of this characterization is to bar Plaintiff’s claim against an alleged third-party. As already noted above, worker’s compensation deals with the relationship between an employer and employee; it does not preclude liability of a third-party for its negligence.

14. In light of the forgoing, Defendant turns to Privette v. Superior Court (1993) 5 Cal.4th 689, for the proposition that the hirer of a contractor is not liable to the contractor’s employee for workplace injuries. The first, most obvious problem with Defendant’s argument, is that nowhere in the SAC is it alleged that CLP was hired by Defendant. Moreover, even if such were the case, Privette does not operate to bar Plaintiff’s suit.

15. As noted by the Court in Hooker v. Department of Transportation (2002) 27 Cal.4th 198, “the imposition of tort liability on a hirer should depend on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor’s employee.” Id. at 210. Thus, as the Court explains in Kinney v. CSB Construction, Inc. (2001) 87 Cal.App.4th 28, Privette and its progeny Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 (holding that employee of a hired contractor may not recover against hiring person for injuries sustained by contractor’s negligence under peculiar risk doctrine) apply where “the sole factual basis for the claim is that the hirer failed to exercise a general supervisory power . . . [and] there is no evidence that the hirer’s conduct contributed in any way to the contractor’s negligent performance.” Kinney, supra, 87 Cal.App.4th at 36. Logically, then, Privette and Toland should not apply if the basis for the claim is the hirer’s affirmative negligence which contributes directly to a plaintiff’s injury. See SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 601 (characterizing Hooker as allowing “actions in tort against an independent contractor’s hirer if the hirer retained control over the work and exercised that control negligently, thereby affirmatively contributing to the worker’s injury”).

16. The SAC alleges that it is Defendant, not CLP, who “carelessly and negligently owned, controlled, maintained, inspected and cleaned” the accident site, allowing them “to become slippery” and ultimately endangering and causing Plaintiff’s injury. SAC at ¶3. This would suggest that, even had CLP been a contractor of Defendant and Plaintiff an employee of CLP, she has still stated a cause of action sounding in Defendant’s negligence under which Privette would not apply. As such, the SAC has successfully alleged a cause of action against Defendant.

17. Accordingly, Defendant’s demurrer is OVERRULED.

SO ORDERED AND ADJUDGED this the ______ day of September, 2014.

_____________________________
RANDOLPH A. ROGERS, JUDGE