Case Number: BC534569    Hearing Date: July 17, 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., ) July 17, 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 June 2, 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 SUSTAINED with leave to amend through July 28, 2014.

SO ORDERED this the _____ day of July, 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., ) July 17, 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. In relevant part, the FAC makes the following changes:

5. In ¶2 of the FAC, the Plaintiff added “attached to the construction manager’s trailer.” In ¶3 of the FAC, Plaintiff removed the word “working” from that paragraph. Plaintiff also added ¶4, which states “That prior to February 7, 2012, another incident involving those same stairs occurred, a fact that defendants, and each of them, were aware of an (sic) made no effort to correct.”

6. Defendant filed its demurrer to the FAC on June 18, 2014. Plaintiff filed her Opposition on June 30, 2014.

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. Defendant argues that the FAC is a sham pleading; that all Plaintiff has done in response to the Court’s ruling was omit the word “working” from ¶3 to avoid the implications of that allegation, as was noted in the Court’s Statement of Decision dated June 2, 2014. The argument is well taken. As stated above, a sham pleading is one which omits harmful factual allegations from a previous complaint without adequate explanation for the discrepancy.

12. The FAC omits the problematic allegation from the Complaint, but neither explains nor alleges further facts to resolve the concerns of the Court in sustaining the demurrer to the Complaint. Instead, in Opposition, Plaintiff argues that she was “a contract worker for CLP Resources who was performing work” at Defendant’s facility. Opposition at 1:21-23. She further argues that “[n]owhere in the Complaint was it alleged that plaintiff was employed by [Defendant] at the time of the incident.” Id. at 2:18-19. In responding to the arguments of the Demur, Plaintiff argues that the omission “more accurately states the actual facts in this matter.” Id. at 4:6-7.

13. It is irrelevant whether or not Defendant was surprised by the “new allegation.” Id. at 4:20-21. Plaintiff raises a multitude of factual allegations in her Opposition which attempt to explain why Plaintiff’s suit is not barred by worker’s compensation considerations, yet these factual allegations appear nowhere in the FAC. Indeed, it is not possible to infer the facts Plaintiff allege in Opposition from either the Complaint or the FAC, taken jointly or separately. As such, the FAC does nothing to cure the defects inherent in the Complaint except that it appears to ignore a problematic fact without explanation.

14. The mere fact that Plaintiff’s arguments on Opposition hold water only with reference to facts extrinsic to the FAC is a clear indication that, as pled, the FAC continues to suffer a facial defect. Assuming, arguendo, that Plaintiff’s arguments are meritorious, the Opposition makes a far stronger case that the FAC needs to be amended, rather than that it can survive a demurrer as pled.

15. Accordingly, Defendants’ demurrer is SUSTAINED with leave to amend through July 28, 2014.

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

_____________________________
RANDOLPH A. ROGERS, JUDGE