Case Number: BC534569 Hearing Date: June 02, 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., ) June 2, 2014
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)

The demurrer of Defendant First Solar, Inc. to the Complaint came on for hearing on June 2, 2014. Plaintiff Sustan 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 SUSTAINED with leave to amend through June 23, 2014.

SO ORDERED this the _____ day of June, 2014.

______________________
RANDOLPH ROGERS,
JUDGE

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., ) June 2, 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. 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.

4. 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.

5. 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.

6. Worker’s Compensation – Our statutory scheme of Workers’ Compensation provides that the exclusive remedy of an employee against an employer for any liability arising out of services performed by the employee growing out of and incidental to her employment and within the course of her employment, and where the injury is proximately caused by the employment, either with or without negligence. Cal. Lab. Code §§3600 (a)(2) and (3) and §3602(a). Normally, Workers’ Compensation is an affirmative defense to which the Defendant must plead. Arriaga v. County of Alameda (1995) 9 Cal.4th 1055, 1060. However, if “a complaint affirmatively alleges facts indicating that the Act applies, no civil action will lie, and the complaint is subject to a general demurrer unless it states additional facts that negate application of the exclusive remedy rule.” Id.

7. Defendant’s demurrer turns specifically on language in paragraph 3 of the Complaint. In its entirety, the paragraph states:

“That on or about February 7, 2012, while plaintiff SUSAN MATIAS was working at the above-described premises, defendants, and each of them, so carelessly and negligently owned, controlled, maintained, inspected and cleaned the stairs attached to construction manager’s trailer so as to them (sic) to become slippery, causing plaintiff to slip on them while descending those stairs.”

8. Defendant asserts, correctly, that the Complaint as alleged facially establishes that the injury “took place within the course and scope of her employment.” Motion at 4:24-25. However, for Worker’s Compensation to apply, the claim must be against “an employer for any injury sustained by his or her employees arising out of and in the course of the employment.” Cal. Lab. Code §3600(a). An employee is “every person in the service of an employer under any appointment or contract of hire.” Id. at §3351.

9. As a preliminary matter, the Complaint, as pled, leads most logically to the conclusion that Plaintiff was employed by Defendant, and while performing work for the Defendant, became injured because of the alleged negligence. Alternatively, the facts as pled might, less convincingly, support an inference that Plaintiff, as the employee of an independent contractor, sustained injuries on Defendant’s premises in the course of her work as an employee of such contractor. The Complaint does not make any mention of what the nature of her work is, nor does it make clear who her employer is.

10. As already noted, under the first interpretation, the Complaint falls squarely within Workers’ Compensation and it is Plaintiff’s burden to allege facts showing why it is outside the realm of Workers’ Compensation’s exclusive remedy.

11. Under the second interpretation, however, the question turns on whether the hirer of the independent contract has “affirmatively contributed to the injuries of the contractor’s employee.” Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 211-12. Contrary to Defendant’s assertion that “the hirer of an independent contract (sic) . . . cannot be held liable for injury to the contractor’s employee,” Reply at 3:15-17, such immunity is appropriate where liability of the hirer is “in essence ‘vicarious’ or derivative’ in the sense that it derives from the ‘act or omission’ of the hired contractor.” Hooker, supra at 212. Thus, when the allegations are that defendant’s exercise of retained control affirmatively contributed to the employee’s injuries, Workers’ Compensation does not preempt a suit by the plaintiff. Id. However, where the employee of the contractor was hired to do dangerous work, liability against the hirer is precluded. See Privette v. Superior Court (1993) 5 Cal.4th 689, 692 and 702.

12. The Complaint on its face is ambiguous as to what Plaintiff’s actual situation is. Indeed, absent Plaintiff’s introduction of additional facts in the Opposition, a casual reading of the Complaint would not have yielded the conclusion that Plaintiff was not employed by Defendant. Further, even with the additional facts in the Opposition, there are still facts indicating Workers’ Compensation applies, and simultaneously, that Plaintiff is not excluded.

13. Accordingly, Defendants’ demurrer is SUSTAINED with leave to amend through June 23, 2014.

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

_____________________________
RANDOLPH A. ROGERS, JUDGE