JERROLD MARTIN VS BRIGHTVIEW COMPANIES LLC ET AL

TENTATIVE RULING

Calendar: 10

Date: 9/18/20

Case No: BC 634392 Trial Date: None Set

Case Name: Martin v. Brightview Companies LLC, et al.

DEMURRER TO CROSS-COMPLAINT

[CCP §430.10 et. seq.]

Moving Party: Cross-Defendants Champion Crane and David Dollase

Responding Party: Cross-Complainant Brightview Landscape Development, Inc.

Meet and Confer? Ok

RELIEF REQUESTED:

Sustain demurrer to Cross-Complaint

CAUSES OF ACTION: from Cross-Complaint

1) Equitable Indemnity v. All Cross-Defendants

2) Equitable Apportionment v. All Cross-Defendants

3) Express Contractual Indemnity v. Champion Crane Rental

4) Breach of Written Contract v. Spuds Crane Service

5) Breach of Contractual Obligation to Insure v. Champion Crane Rental, Brenneke, Konle

6) Breach of Contractual Obligation to Insure v. Spuds Crane Service, Brenneke, Konle

7) Declaratory Relief v. All Cross-Defendants

8) Negligence v. All Cross-Defendants

9) Gross Negligence v. All Cross-Defendants

SUMMARY OF FACTS:

Plaintiff Jerrold Martin filed this action alleging that defendant Brightview Companies, LLC is the successor in interest to the business entity that contracted with defendant Champion Crane Rental, Inc. for crane operation and tree moving, installation or removal at premises in Universal City, owned by NBC Universal or Universal Studios Hollywood.

The FAC alleges that on one such job, Champion was contracted by Brightview-Valley Crest for crane services at the premises for erection of the attraction “Wizarding World of Harry Potter,” during which Brightview-Valley Crest conducted regular safety meetings and had safety personnel present at all times who monitored tree moving, and was the controlling entity with overall responsibility for the tree project. Plaintiff alleges that pursuant to the subcontract with Champion to remove a tree at the premises which had not survived transplanting, and replace it with another tree and install other trees in the vicinity, plaintiff and his fellow Champion employee David Dollase arrived at the location to start the subcontracted job. Defendant Brightview-Valley Crest instructed plaintiff, Champion and Dollase that one lane of northbound traffic on Universal Studios Boulevard had to remain open and set up traffic cones to allow traffic in lane number two, limiting the crane placement to lane number one, which was on an incline rise such that placement of the crane was directed in a position with the crane jacked-up upon flights of cribbing blocks at both rear corners of the crane in order reach a level and stable position to perform the tree removal operation. While plaintiff was installing cribbing blocks at the rear of the crane, and other Brightview employees were working in the vicinity, the crane operator at some point left the crane cab. The unattended crane cab began rotating toward plaintiff and others, and plaintiff, aware that an unintended uncontrolled cane house rotation movement could cause the crane to completely tip over onto plaintiff and the employees, immediately pushed two Brightview employees out of the area of danger, and then attempted to escape the area himself, when he fell, sustaining injuries, including a severely broken right ankle.

The FAC alleges that the incident was caused by defendants’ controlled events during the operation including the failure to maintain safety at the jobsite, the failure to not have safety meetings prior to the operation or safety personnel at the jobsite, and directing the crane to be placed in a location which increased the risk of crane instability and possible accidents. The FAC alleges causes of action for negligence, negligence per se, and breach of third party beneficiary contract.

On January 6, 2017, defendant Brightview Landscapes, LLC filed a cross-complaint for indemnity against Champion and Dollase.

On June 27, 2019, plaintiff filed an amendment to the FAC substituting the name of moving party Brightview Landscape Development, Inc. as Doe 4.

On August 12, 2019 defendant Brightview Landscape Development, Inc. filed a cross-complaint against cross-defendants Champion, Spud’s Crane Services, Inc., Dollase, Tia Brenneke, Robert Culen, Michael Konle and Keith McHenry, seeking equitable indemnity, equitable apportionment, express contractual indemnity, declaratory relief, breach of duty to insure, negligence and gross negligence, alleging that Spud’s Crane Service may also operate under the name Champion Crane Rental, and that cross-defendants Champion, Spuds, the general employers of plaintiff, and cross-defendants’ agents, the individual cross-defendants, were negligent in their actions causing the incidents complained of by plaintiffs. The cross-complaint alleges that cross-defendant Dollase failed to secure the swing brake of the subject crane before exiting the cab of the subject crane, causing the incident, and that the crane’s movement, because of the failure to secure the swing brake, also caused the crane to strike and damage a tree cross-complainant had installed on the premises.

On October 21, 2019, cross-complainant filed a Request for Dismissal of the cross-complaint without prejudice against moving cross-defendant Dollasse, as well as the individual cross-defendants Brenneke, Cullen, Konle and McHenrty, which dismissal was entered as requested on October 28, 2019.

This demurrer was originally scheduled to be heard on December 5, 2019, in Department 4A, the Honorable Theresa M. Traber presiding. The matter was not called for hearing, and counsel for moving party submitted to the court’s tentative ruling by telephone. There were no other appearances. The court’s tentative ruling became the order of the court which was to continue the motion, on the court’s own motion, on the ground demurring parties had failed to file a code-compliant meet and confer declaration, as the declaration stated that counsel had sent an email seeking to meet and confer, but that CCP section 430.41 (a) makes clear that only meet and confer efforts made in person or by telephone satisfy the prerequisite to filing a demurrer, and there was no declaration showing the parties had met and conferred in person or by telephone. The minute order states, “Demurring parties are ordered to file and serve a code-compliant meet and confer declaration before 11:59 p.m. on January 15, 2020.” The hearing was continued to January 22, 2020, and has since been continued to this date.

On December 17, 2019, counsel for moving parties filed a declaration indicating that the parties met and conferred in person on December 12, 2019, and set forth the reasons for the demurrer, but that, “Since the matters were already briefed, attorneys for BLD indicated that they were not willing to reconsider their positions on any matters set forth in their Opposition to Cross-Complainant’s Demurrer.” [Pritchard Decl., paras. 9, 10].

ANALYSIS:

Procedural

Moot

As noted above, and as conceded in the reply, moving cross-defendant David Dollase has been dismissed from the cross-complaint without prejudice, so the motion as to that cross-defendant is moot.

Meet and Confer

It appears that the meet and confer did not fulfill the directions of the prior order, which was that the parties would conduct a discussion to attempt to resolve the issues raised, not to simply rest on the briefs because they had already been filed.

CCP § 430.41 (a) requires that in meet and confer the parties both have a responsibility to address the merits of the issues:

“ (1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.

The court will expect in the future that the parties meet and confer in good faith on all matters in which a meet and confer is required.

Leave to File Amended Pleading

The demurrer initially argues that the cross-complaint is improper because the cross-complaining party failed to obtain leave to amend its cross-complaint prior to filing it.

This appears to be an argument that since a previously named Brightview entity had filed a cross-complaint, any later named Brightview entity was bound by that pleading, and required to seek leave to file an amended pleading prior to filing a cross-complaint.

Here, the party which filed the cross-complaint, Brightview Landscape Development, Inc., was not a party to this action until it was substituted for the fictitious name of Doe 4, and served with summons and complaint under the true name. The file shows that in response to this service, defendant and cross-complainant filed its Answer to the FAC, and its Cross-Complaint together on August 12, 2019. This is appropriate, and no advance leave was required. See CCP § 428.50: (“(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint.”). The demurrer on this ground accordingly is overruled.

Substantive

First Cause of Action—Equitable Indemnity, Second Cause of Action—Equitable Apportionment, Eighth Cause of Action—Negligence and Ninth Cause of Action—Gross Negligence

Cross-Defendant Champion argues that the cross-complaint here identifies that plaintiff was an employee of cross-defendant Champion on the date of the incident, so that any causes of action seeking to impose liability on the employer is barred by workers’ compensation exclusivity.

The cross-complaint here alleges that “Cross-Defendant CHAMPION, and/or Cross-Defendant, SPUDS, was at the time of the Subject Incident and at all times herein mentioned the general employer of Plaintiff JERROLD MARTIN and Cross-Defendant DAVID DOLLASE.” [Cross-complaint, para. 9].

With a few specific exceptions, Labor Code § 3601(a) provides that the right to recover workers’ compensation for a compensable injury shall be the exclusive remedy for such injury. See Gutierrez v. Petoseed Co. (1980) 103 Cal.App.3d 766, 768.

The demurrer relies on Labor Code § 3602(a), which provides:

“(a) Where the conditions of compensation set forth in Section 3600 concur, the right to recover compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer. The fact that either the employee or the employer also occupied another or dual capacity prior to, or at the time of, the employee's industrial injury shall not permit the employee or his or her dependents to bring an action at law for damages against the employer.”

The exclusivity rule is based on the “presumed compensation bargain” where an employer assumes liability for personal injury without regard to fault in exchange for limitations on the amount of the liability. Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 708. Accordingly, courts have held that the purpose of section 3601 is to make workers’ compensation the exclusive remedy of an injured worker against his employer. Appl v. Lee Swett Livestock Co. (1987) 192 Cal.App. 3d 466, 470-472.

As to the causes of action for equitable indemnity, it is held that to establish a claim for equitable indemnity, a cross-complainant must establish that the cross-defendant is liable to the third-party claimant in whole or in part for the injuries suffered. Li v. Yellow Cab Co. (1979) 13 Cal.3d 804, 813-814, 829. The argument here seems to be that since Champion as employer cannot be liable to plaintiff for the alleged incident, as workers’ compensation exclusivity applies, cross-complainant will be unable to establish a claim for equitable indemnity against Champion.

Cross-defendant Champion relies on Labor Code section 3864, which provides:

“If an action as provided in this chapter prosecuted by the employee, the employer, or both jointly against the third person results in judgment against such third person, or settlement by such third person, the employer shall have no liability to reimburse or hold such third person harmless on such judgment or settlement in absence of a written agreement so to do executed prior to the injury.”

This statute is held to eliminate the liability of the employer for equitable or implied indemnity theories when an employee is injured during the course and scope of employment due to the negligence of a third party. City of Oakland v. Delcon Associates (1985) 168 Cal.App.3d 1126. In City of Oakland, the court of appeal noted, with respect to Labor Code section 3864:

“The purpose of the statute is to eliminate an employer's liability under an equitable or implied indemnity theory when its employee is injured during the course and scope of employment due to the negligence or partial negligence of a third party. Section 3864 restricts the employer's responsibilities to those imposed by the workers' compensation laws and insulates it from indemnity claims unless they are based on an express contract of indemnity executed by the employer prior to the injury. (See Pacific Gas & Elec. Co. v. Morse  [86 Cal.Rptr. 7].)”

City of Oakland, at 1128-1129.

The opposition does not argue that claims for equitable and implied indemnity would be barred against the employer by claimants such as cross-complainant in situations where workers’ compensation exclusivity applies.

The opposition instead argues that it has not yet been determined that cross-defendant was an employer of plaintiff, or that plaintiff was working within the course and scope of his employment, which are generally questions requiring a factual resolution.

However, the pleading here affirmatively alleges that Champion was the general employer of plaintiff. Moreover, it is generally held that in such situations, the party claiming an exception to exclusivity must plead facts showing some exception to the defense.

In Columbo v. State of California (1991) 3 Cal.App.4th 594, the court of appeal affirmed the sustaining of a general demurrer without leave to amend, holding that “Where a complaint affirmatively alleges facts indicating coverage by the worker’s compensation laws, if it fails to state additional facts negating application of the exclusive remedy provision, no civil action will lie and the complaint is subject to a general demurrer.” Columbo, at 599, quoting Roberts v. Pup ‘N’ Taco Driveup (1984, 2^nd Dist.) 160 Cal.App.3d 278, 284.

The opposition argues that the pleading does not show on its face that an exception might not apply, such as the exception under Labor Code section 3602 (b) (3) which provides:

“An employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer, as if this division did not apply, in the following instances:

… (3) Where the employee’s injury or death is proximately caused by a defective product manufactured by the employer and sold, leased, or otherwise transferred for valuable consideration to an independent third person, and that product is thereafter provided for the employee’s use by a third person.”

Cross-complainant also points to Labor Code § 3706, which provides:

“If any employer fails to secure the payment of compensation, any injured employee or his dependents may bring an action at law against such employer for damages, as if this division did not apply.”

However, as noted above, the pleading fails to plead facts which would establish these exceptions, as generally required. See Columbo, supra. In fact, with respect to failure to secure the payment of compensation, it is expressly held that the burden is on the party claiming such an exception to establish it. In Rymer v. Hagler (1989) 211 Cal.App.3d 1171, it was noted:

“Jurisdiction of the superior court to try claims of an employee against his employer for damages under section 3706 arises only when payment of compensation is not secured….

Because the complaint in the instant action seeks recovery against an employer for work-related injuries, the exclusivity rule will bar appellant’s superior court action unless he can establish that [his employer] failed to ‘secure the payment of compensation’ as required under the Act. It is appellant’s burden to show there was no coverage.”

Rymer, at 1177-1178.

The demurrer will accordingly be sustained with leave to amend to allege facts in these causes of action showing that one or more exceptions exist to workers’ compensation exclusivity, if possible.

The court notes that moving party has submitted with the reply a request for judicial notice of Case detail information from the Workers’ Compensation Electronic Adjudication Management System, purportedly concerning a plaintiff and cross-defendant Champion. The court is not inclined to consider this new material submitted for the first time with the reply papers. Such new material may accompany a reply only in the exceptional case, and the opposing party is ordinarily entitled to notice and an opportunity to respond to the new material. Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362. This procedure will not be necessary here in light of the sustaining of the demurrer with leave to amend.

Third Cause of Action—Express Contractual Indemnity and Fourth Cause of Action—Express Contractual Indemnity

As an initial matter, it would appear that the demurrer to the fourth cause of action, which seeks express contractual indemnity against Spud’s Crane Service, should be overruled on the ground the cause of action is not asserted against moving cross-defendant Champion, with no mention of Spud’s Crane Service being a party asserting the demurrer, so it would appear that Champion has no standing to challenge the sufficiency of that claim against another party. The demurrer to the cause of action accordingly is overruled.

As to the third cause of action for express contractual indemnity, such a cause of action requires that the complaint allege:

1) A contract between the parties under which one party undertakes to hold the other party harmless against claims or damages arising out of the occurrence of specified circumstances.

2) Third party claim against the indemnitee on account of one of the circumstances specified in the contract

3) Breach of indemnitor; and

4) Damages to indemnitee.

Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628.

All of these elements are alleged here. [Cross-complaint, paras. 26-30].

The demurrer argues that the pleading is uncertain because it refers to a Subcontract Purchase Order, but attaches as Exhibit A two Subcontract Purchase Orders, so it is not clear which one is being relied upon. This is not ideal, but does not render the pleading so uncertain that cross-defendant cannot respond to it, as the demurrer itself argues that it appears that only one of the subcontract purchase orders appears to apply here, and is able to make argument based on that conclusion. Permitting demurrer for uncertainty is based on the policy which favors parties having notice of the liability alleged, and the pleading must be sufficiently certain to apprise the defendant of the basis upon which the plaintiff is seeking relief. Perkins v. Superior Court (1981, 2^nd Dist.) 117 Cal.App.3d 1, 6. Sufficient notice is provided here.

The opposition argues that the pleading is not rendered fatally ambiguous by this circumstance, and points out that both of the subcontract purchase orders appear to include the same indemnification language, so would give rise to the relief sought under the cause of action. The demurrer on this ground is overruled.

The demurrer then argues that the subcontract purchase order which appears to apply here, subcontract purchase order No. 4171847 is not signed, so it cannot have any effect. As noted above, Labor Code section 3864 expressly permits an action for express indemnity (as opposed to equitable or implied indemnity) despite workers’ compensation exclusivity, providing:

“If an action as provided in this chapter prosecuted by the employee, the employer, or both jointly against the third person results in judgment against such third person, or settlement by such third person, the employer shall have no liability to reimburse or hold such third person harmless on such judgment or settlement in absence of a written agreement so to do executed prior to the injury.”

(Emphasis added).

The argument is that the statute, and case authority, requires that any express indemnity be supported by a written, executed, agreement, and here the subcontract purchase order which applies here is attached to the pleading and shows on its face that it is not executed.

The cross-complaint very clearly alleges here that the subcontract purchase order applicable to the work done on the project which led to the incident was signed on behalf of Spud’s Crane Services, Inc. and/or Champion Crane Rental, Inc. by TIA BRENNEKE.” [Cross-complaint, para. 26].

These allegations must be accepted as true for purposes of demurrer. See Serrano v. Priest (1971) 5 Cal.3d 584, 591; Del E. Webb Corp. v. Structural Materials Co. (1981, 2^nd Dist.) 123 Cal.App.3d 593, 604 (“As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be.”)

The attachment of an unsigned version of one document (the other document appears to have been executed) when it is alleged the document was in fact signed, does not negate or contradict the allegation that the document was actually signed.

The moving papers also seek to have the court judicially notice the First Amended Complaint in this matter, which identifies the subcontract purchase order No. 4171847 as applying to this matter, and also attaches as Exhibit 1 an unsigned document. [RFJN, Ex. A].

Under CCP § 430.30(a), an objection to a pleading may be taken by a demurrer "[w]hen any ground for objection to a complaint...appears on the face thereof, or from any matter of which the court is required to or may take judicial notice."

Under Evidence Code § 452, judicial notice may be taken of “(d) Records of (1) any court of this state….”

With respect to judicial notice of court records, it is held,

“A court cannot take judicial notice of hearsay allegations as being true, just because they are part of a court record or file. A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.”

Demurrer without Motion to Strike

Having considered the demurring, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On September 20, 2016, Plaintiff Jerrold Martin (“Plaintiff”) filed a complaint against Defendants Brightview Companies, LLC and Brightview Landscapes, LLC alleging negligence, negligence per se, and breach of a third-party beneficiary contract in relation to a trip-and-fall that occurred on February 11, 2016.

On December 8, 2016, Plaintiff filed a first amended complaint.

On January 6, 2017, Defendant/Cross-Complainant Brightview Landscapes, LLC filed a cross-complaint against Cross-Defendants Champion Crane Rental Inc. and David Dollase seeking equitable indemnity, equitable apportionment, declaratory relief, and express contractual indemnity.

On March 18, 2019, Plaintiff filed an amendment to the first amended complaint to name Defendant Brightview Holdings, Inc. as Doe 1 and Brightview Acquisition Holding, Inc. as Doe 2.

On March 19, 2019, Plaintiff filed an amendment to the first amended complaint naming Defendant Valleycrest Holding Co. as Doe 3.

On June 27, 2019, Plaintiff filed an amendment to the first amended complaint naming Defendant Brightview Landscape Development, Inc. as Doe 4.

On July 23, 2019, the Court entered default against Defendant Brightview Holdings, Inc. and Valleycrest Holding Co.

On August 12, 2019, Defendant/Cross-Complainant Brightview Landscape Development, Inc. filed a cross-complaint against Cross-Defendants Champion Crane Rental Inc., Spud’s Crane Services, Inc., David Dollase, Tia Brenneke, Robert Cullen, Michael Konle, and Keith McHenry seeking equitable indemnity, equitable apportionment, express contractual indemnity, declaratory relief and alleging breach of contract, negligence, and gross negligence.

On October 16, 2019, Cross-Defendants Champion Crane Rental Inc. and David Dollase filed a demurrer to the Cross-complaint of Brightview Landscape Development, Inc., pursuant to California Code of Civil Procedure 430.10.

On October 28, 2019, the Court dismissed Cross-Defendants David Dollase, Tia Brenneke, Robert Cullen, Michael Konle, and Keith McHenry from Defendant/Cross-Complainant Brightview Landscape Development, Inc.’s cross-complaint.

Trial is set for June 11, 2020.

PARTIES’ REQUEST

Cross-Defendants Champion Crane Rental Inc. and David Dollase (“Demurring Parties”) ask the Court to sustain their demurrer to Defendant/Cross-Complainant Brightview Landscape Development, Inc.’s (“Brightview”) cross-complaint for four reasons.  First, Brightview did not seek leave to amend prior to filing the cross-complaint.  Second, Brightview’s exclusive remedy is workers’ compensation.  Third, it is uncertain what document is the basis for the contractually based causes of action and the declaratory relief cause of action.  Fourth, a document relied on for the contractually based causes of action and the declaratory relief cause of action is unsigned and contains a merger clause.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, 147 Cal.App.4th at p. 747.)

Before filing a demurrer, the demurring party is required to meet and confer in person or by telephone with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code of Civ. Proc. § 430.41, subd. (a).)

DISCUSSION

Meet and Confer

Demurring Parties have failed to file a code-compliant meet and confer declaration.  Peter K. Pritchard declared that he sent an email to Brightview’s counsel seeking to meet and confer regarding the issues in the demurrer.  This is a good starting point to frame the issues to be discussed.  But California Code of Civil Procedure section 430.41, subdivision (a) makes clear that only meet and confer efforts made in person or by telephone satisfy this threshold prerequisite to filing a demurrer.  Demurring Parties have not submitted a declaration showing they have met and conferred with Opposing Party in person or by telephone.

The hearing on Demurring Parties demurrer is CONTINUED to January 22, 2020 at 1:30 p.m. in Department 4A of Spring Street Courthouse located at 312 North Spring Street, Los Angeles, California 90012.

Demurring Parties are ordered to file and serve a code-compliant meet and confer declaration before 11:59 p.m. on January 15, 2020.

Demurring Parties are ordered to give notice of this ruling.