JERROLD MARTIN VS BRIGHTVIEW COMPANIES LLC ET AL

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.