Case Name: Huitron, et al. v. Greenwaste Recovery, Inc., et al.
Case No.: 1-13-CV-255813
According to the allegations of the first amended complaint (“FAC”), on November 16, 2011, plaintiff Miguel Huitron (“Miguel”) was injured while in the course and scope of employment for defendant Greenwaste Recovery, Inc. (“Greenwaste”). (See FAC, ¶ 11.) While in the course and scope of his duties for Greenwaste, Miguel was hit by a Caterpillar 928G front wheel loader going in reverse that had a nonfunctioning backup warning system. (See FAC, ¶ 12.) Three months prior to the incident, drivers of the loader had requisitioned a repair of the backup warning device and informed Greenwaste of the issue. (See FAC, ¶¶ 13-14.) Greenwaste violated its duty to ensure a safe workplace by failing to rectify the dangerous condition presented by the lack of the backup warning on the loader, and this failure was the actual and proximate cause of injury. (See FAC, ¶ 16.) On January 13, 2014, plaintiffs Miguel and Ziva Huitron (collectively, “Plaintiffs”) filed the FAC, asserting causes of action for: negligence; negligence per se; battery; willful misconduct; negligent/intentional infliction of emotional distress; products liability; and, loss of consortium. The Court sustained Greenwaste’s demurrer to the FAC, stating
In opposition to the demurrer, Plaintiff argues that workers’ compensation exclusivity does not apply to the instant situation, citing to Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995. Plaintiff argues that “Plaintiff did not provoke the act of being hit in the back by a front loader and this unprovoked conduct conveyed an actual, present and apparent threat of bodily injury” and that “both the employer and employee demonstrated an ‘intent to injure’ by knowingly operating a front loader that was not equipped with the proper warning device.” (Pls.’ opposition to demurrer to FAC (“Opposition”), p.6:17-23.) Plaintiff also asserts that “the actions of Defendant and Defendant’s employee constitute a willful and intentional physical assault on Plaintiff pursuant to Labor Code §§ 3601 and 3602 because Defendant and Defendant’s employee had actual or constructive knowledge that injury was a probable [sic] and that Defendant exhibited a conscious failure to act to avoid the peril….” (Opposition, p.9:2-7.)
However, Plaintiff misreads Torres and misunderstands what “aggression” is. The California Supreme Court in Torres plainly stated a “‘willful and unprovoked physical act of aggression’ [as defined by Labor Code section 3601, subdivision (a)(1)] includes an intent to injure requirement.” (Torres, supra, 26 Cal.4th at p.1006.) In order to allege a civil claim for assault, there must be “an unlawful intent by one person to inflict immediate injury on the person of another then present.” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1604.) Here, there are no such allegations. (See Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850 (stating that, on demurrer, “[t]he court does not… assume the truth of contentions, deductions or conclusions of law”).) Accordingly, Greenwaste’s demurrer to the FAC is SUSTAINED with 10 days leave to amend.
(February 20, 2014 order re: demurrer to FAC, pp.2:11-28, 3:1-3.)
On February 28, 2014, Plaintiffs filed a second amended complaint (“SAC”), asserting the same causes of action. Greenwaste again demurs to each of the claims of the SAC against it, again asserting that the claims are barred by workers’ compensation exclusivity.
Greenwaste’s request for judicial notice of Plaintiffs’ opposition to the demurrer to the FAC is GRANTED. (See Evid. Code § 452, subd. (d).)
Greenwaste’s demurrer is timely.
As a preliminary matter, Plaintiffs assert that Greenwaste’s demurrer is untimely pursuant to Rule of Court 3.1320, subdivision (j). (See Pls.’ opposition to demurrer to SAC (“Opposition”), p.5:6-22.) However, Plaintiffs misread or misunderstand the rule. Rule of Court 3.1320 defines the time for a defendant to answer the complaint after a ruling on a demurrer. On February 28, 2014, Plaintiffs filed their SAC. Pursuant to Code of Civil Procedure section 430.40, subdivision (a), Greenwaste’s demurrer, filed twelve days later on March 12, 2014, is timely.
To the extent that the SAC is premised on the “intentional operation of an unsafe vehicle,” it does not come within the exception to workers compensation exclusivity provided by Labor Code section 3601, subdivision (a)(1).
In opposition, Plaintiffs point to only paragraph 15 as their basis for overcoming the demurrer to the SAC. (See Opposition, pp.2:17-20 (stating that Defendant and employee Artemio “enacted a willful physical assault on Plaintiff… [when] Artemio intentionally, willfully, and with knowledge that serious injury to the Plaintiff was a probable result, intentionally operated an unsafe vehicle and intentionally hit Plaintiff in the back, knocking him to the ground”, citing to the SAC, ¶ 15); 7:22-28, 8:1-3 (stating same, again citing to paragraph 15, reiterating that “[t]he conduct described above constitutes a willful and physical act of aggression against Plaintiff”).) The allegation that Artemio “intentionally operated an unsafe vehicle” is not sufficient to constitute “an intent to injure.”
The fourth cause of action is premised on Greenwaste’s “conscious failure to act to avoid the peril attendant to” the fact that the front wheel loader lacked an audible backup warning alarm and a policy requiring employees to wear ear protection. (See SAC, ¶¶ 48-51.) This cause of action is thus premised on the intentional allowance of the operation of an allegedly unsafe vehicle and does not constitute an intent to injure to allow it to fall within Labor Code § 3601, subdivision (a)(1), pursuant to Torres. Accordingly, Greenwaste’s demurrer to the fourth cause of action is SUSTAINED without leave to amend.
The negligence causes of action are without merit because the allegations of an intentional assault on Miguel are inconsistent with the negligence theory of liability alleged.
The SAC also alleges that Artemio “intentionally hit Plaintiff in the back.” This allegation is inconsistent with the negligence theory of liability alleged in the first and second causes of action. Greenwaste’s demurrer is SUSTAINED without leave to amend as to the first and second causes of action.
Moreover, to the extent that the fifth cause of action for “intentional/negligent infliction of emotional distress” is premised on a negligence theory of liability, Greenwaste’s demurrer is also SUSTAINED without leave to amend.
The demurrer to the third cause of action for assault and the fifth cause of action, to the extent that it is a claim for intentional infliction of emotional distress, is OVERRULED.
The SAC alleges that Artemio “intentionally hit Plaintiff in the back.” This allegation is sufficient to constitute an intent to injure such that it falls within Labor Code § 3601, subdivision (a)(1), pursuant to Torres. Greenwaste’s demurrer to the third cause of action for assault is OVERRULED.
Similarly, to the extent that fifth cause of action is a claim for intentional infliction of emotional distress based on the assault by Artemio, Greenwaste’s demurrer is OVERRULED.
The demurrer to the seventh cause of action is SUSTAINED with leave to amend.
The seventh cause of action is premised solely on the alleged negligent conduct and the intentional allowance of the operation of the front wheel loader without a backup warning alarm. As previously stated, these allegations are insufficient to constitute an intent to injure to allow the claim to fall within Labor Code § 3601, subdivision (a)(1), pursuant to Torres, and are in fact irrelevant to the claim. (See Code Civ. Proc. § 436, subd. (a) (any irrelevant matter may be stricken).) Greenwaste’s demurrer to the seventh cause of action for loss of consortium is SUSTAINED with 10 days leave to amend.
The Court will prepare the order.
Link to this page