Case Number: KC066671    Hearing Date: July 29, 2014    Dept: J

Re: Xue Wu Liu v. State Compensation Insurance Fund, et al. (KC066671)

(1) DEMURRER TO COMPLAINT; (2) MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

Moving Parties: (1) Defendant State Compensation Insurance Fund; (2) Plaintiff Xue Wu Liu

Respondents: No opposition filed to either motion

POS: (1) Moving OK; (2) Moving papers filed just 7 court days prior to the hearing in violation of CCP § 1005(b) and unaccompanied by a proof of service

The Complaint herein, filed 2/20/14 by Plaintiff in propria persona, asserts causes of action for:

1. Fraud
2. Fraudulent concealment
3. Fraudulent promise
4. Constructive fraud
5. Fraudulent and reckless spoliation of evidence
6. Willful misconduct
7. Negligence
8. Medical battery and abuse
9. Forgery
10. Labor law violations
11. Personal injury

The Case Management Conference is set for 7/29/14.

(1) DEMURRER TO COMPLAINT:

JUDICIAL NOTICE:

The court takes judicial notice of the records from Plaintiff’s workers’ compensation cases, attached to Defendant’s request as Exhibits A-B. (Ev § 452(d).)

Defendant State Compensation Insurance Fund (“State Fund”) demurs to the all eleven causes of action in the Complaint on the grounds that: (1) the causes of action alleged in the Complaint on the grounds that the court lacks subject matter jurisdiction because of the application of the doctrine of exclusive jurisdiction of the Workers’ Compensation Appeals Board pursuant to Labor Code §§ 3201, 3602, 4600 and 5300; (2) it does not state facts sufficient to constitute a cause of action; and (3) it is uncertain.

EXCLUSIVE JURISDICTION OF THE WCAB:

The Workers Compensation Appeals Board (“WCAB”) has exclusive jurisdiction over the recovery of workers’ compensation benefits “or concerning any right or liability arising out of or incidental thereto.” (Lab.C. § 5300(a).) The effect is that all injuries collateral to or derivative of an injury compensable under the Act are within the WCAB’s exclusive jurisdiction. (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 815.) It is the sole and exclusive remedy against workers’ compensation insurers for claims based on their alleged mishandling of workers’ compensation claims (Ibid.)

Plaintiff’s essential allegations against State Fund arise out of the its alleged mishandling of Plaintiff’s workers compensation claims arising from May 10, 2002 and June 6, 2002 incidents in its capacity as a workers’ compensation insurance company. (Complaint ¶¶ 2, 23, 31, 33.) The judicially-noticed documents also demonstrate that Plaintiff has filed two workers compensation claims for the injuries he suffered on May 10, 2002 and June 6, 2002. (RJN, Exhs. A-B.) As such, Plaintiff’s grievances against State Fund are within the exclusive jurisdiction of the WCAB. Thus, the demurrer to the Complaint based on workers’ compensation exclusivity is sustained.

FRAUD CAUSES OF ACTIONS:

Specific facts of the alleged fraud or concealment must be alleged. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) Allegations of fraud against a corporate entity requires the plaintiff to allege “the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614).

Plaintiff fails to meet the pleading requirements for fraud. Thus, the demurrer to fraud causes of action is sustained.

STATUTE OF LIMITATIONS:

The statute of limitations for fraud is three years under CCP §338(d). The statute for personal injury is two years under CCP §335.1. Under CCP §340.5, the statute of limitations for medical negligence is one year

The Complaint alleges that Plaintiff suffered a work place injury on May 10, 2002, and that he received negligent medical treatment on June 6, 2002. Plaintiff, however, did not bring this action until February 20, 2014, long after the statute of limitations lapsed. Thus, the demurrer based on statute of limitations is sustained.

REQUEST FOR LEAVE TO AMEND:

While Plaintiff did not oppose the demurrer, Plaintiff filed a separate motion seeking leave to file a first amended complaint. The motion, however, does not explain how Plaintiff can overcome the deficiencies noted in the demurrer.

Thus, the demurrer is sustained without leave to amend and the action is dismissed with prejudice as to Defendant State Compensation Insurance Fund.

(2) MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT:

Plaintiff Xue Wu Liu’s motion to file a first amended complaint is denied as the moving papers are filed only 7 court days before the hearing in violation of CCP § 1005(b). Moreover, the motion is not accompanied by a proof of service demonstrating that the service was in compliance with CCP § 1005.