employment agency Barrett Business Services, which contracted with Defendant to provide employees to clean the Thunder Valley Casino parking garage. Plaintiff alleges he was injured when Defendant’s pickup truck started rolling in reverse after it was put in park and knocked Plaintiff to the ground causing injuries. Plaintiff filed his Complaint on March 23, 2017, alleging a single cause of action for general negligence.

Defendant demurs to the first cause of action for negligence on the ground that it fails to state a cause of action. Defendant contends Plaintiff alleges he was an employee of Defendant and therefore his exclusive remedy is through the state’s workers’ compensation program.

A demurrer challenges the legal sufficiency of the complaint on the ground it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc. § 430.10(e); Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 42-43.) In reviewing a general demurrer, the facts pleaded are assumed to be true and the only issue is whether they are legally sufficient to state a cause of action. (Rope v. Auto-Chlor System of Wash., Inc. (2013) 220 Cal.App.4th 635 .) “[W]e are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’ Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (citations omitted).) A demurrer challenges only the legal sufficiency of a complaint, not the truth or the accuracy of its factual allegations or the plaintiff’s ability to prove those allegations. (Ball v. GTE Mobilnet of California (2000)

81 Cal.App.4th 529, 534-35.)

“Labor Code section 3602 expressly states that the right to recover workers’ compensation benefits is ‘the sole and exclusive remedy’ available to an injured employee against his employer. Moreover, the [WCAB] has exclusive jurisdiction over disputes regarding an employee’s right to compensation of the liability of an employer.” (Marsh & McLennan, Inc. v. Superior Court (1989) 49 Cal.3d 1, 5.)

As noted, the workers’ compensation system is generally the exclusive remedy for employees seeking to recover for injuries arising out of the course and scope of their employment. (Lab. Code § 3600 et. seq.) If the acts which lead to the injury are those

which are reasonably encompassed as a risk within the employment relationship, such claims are barred by the workers’ compensation exclusivity rule. The threshold prerequisite for the remedy of workers’ compensation is that the subject injury ‘aris[e] out of and in the course of the employment . . . .’ (§ 3600, subd. (a).)

“A “special employment” relationship arises when an employer lends an employee to another employer and relinquishes to the borrowing employer all right of control over the employee’s activities.” (Riley v. Southwest Marine, Inc. (1988) 203 Cal.App.3d 1242.) The borrowed employee is held to have two employers, a general employer and a special employer. (Jones v. Kaiser Industries Corp. (1987) 43 Cal.3d 552, Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168.)

Based on the allegations, it appears Plaintiff seeks recovery for injuries arising out of the course and scope of his employment with both the staffing agency and Defendant. Further, the Court construes Plaintiff’s failure to oppose the demurrer as a concession on the merits. Accordingly, Plaintiff’s exclusive remedy is through the workers’ compensation system.

Defendant’s demurrer is SUSTAINED. Nonetheless, as this demurrer is Defendant’s first challenge to the complaint, the Court grants Plaintiff leave to amend.

Plaintiff may file and serve a First Amended Complaint no later than April 16, 2018. (Although not required by statute or court rule, Plaintiff is directed to present the clerk a copy of this ruling at the time of filing the first amended complaint.)

Defendant may file and serve a response within 30 days of service of the First Amended Complaint, 35 days if served by mail.