C.J.L. Construction, Inc. v. Universal Plumbing

Decision Date27 August 1993
Docket NumberNo. B072527,B072527
Citation22 Cal.Rptr.2d 360,18 Cal.App.4th 376
CourtCalifornia Court of Appeals Court of Appeals
PartiesC.J.L. CONSTRUCTION, INC., Cross-Complainant and Appellant, v. UNIVERSAL PLUMBING, Cross-Defendant and Respondent.

Thomas & Price, Christian E. Sanne, Glendale, for cross-complainant and appellant.

Newman, Aaronson & Vanaman and Joel S. Aaronson, Sherman Oaks, for cross-defendant and respondent.

TURNER, Presiding Justice.

I. INTRODUCTION

This case presents the question whether a third party defendant which, pursuant to Witt v. Jackson (1961) 57 Cal.2d 57, 72, 17 Cal.Rptr. 369, 366 P.2d 641, seeks to reduce any judgment against it by the amount of workers' compensation benefits paid to an injured employee, may compel the employer's participation as a cross-defendant in the employee's lawsuit. The right to a Witt v. Jackson offset arises when the employee's injuries were caused by the concurrent negligence of the employer or its agent and the third party. (Ibid.) Given the facts alleged in the amended cross-complaint, we conclude as a matter of law the answer is no. Therefore, in the published portion of this opinion, we affirm the judgment of dismissal and the underlying orders granting the employer's motion for judgment on the pleadings without leave to amend 1 as to the fourth cause of action. 2 In the unpublished portion of the opinion we reverse the order imposing sanctions on the third party defendant and cross-complainant.

II. PLEADINGS

Philip Navarette (plaintiff) filed an action against Universal Plumbing (UP), C.J.L. Construction, Inc. (CJL), and Louisville Ladder. Plaintiff alleged he was injured while using a ladder which had been defectively designed or manufactured by Louisville Ladder. The complaint alleged in a conclusory fashion that: all defendants were liable for negligence and breach of implied and express warranties; UP and CJL were liable under a premises liability theory; and UP was liable under a peculiar risk theory. In its answer to plaintiff's complaint, CJL alleged its codefendants negligently caused or contributed to plaintiff's injuries. Additionally, the seventh affirmative defense alleged: "That the injuries or damages, if any, sustained by plaintiff were proximately contributed to or caused by other defendants, whether served or not served, and/or by other persons or companies not parties to this action, and it is necessary that the proportionate degree of negligence or fault of each of said other persons or companies, whether made parties to this action or not, be determined and prorationed, and that any judgment that might be rendered against this answering defendant be reduced not only by that degree of contributory negligence and/or assumption of risk and/or product alteration found to exist as to plaintiff, but also as to the total of that degree of negligence and/or fault found to exist as to said other persons or companies." On May 3, 1991, CJL filed a first amended cross-complaint against UP. The only cause of action pertinent to this appeal was entitled: "FOURTH CAUSE OF ACTION [p] FOR WITT v. JACKSON OFFSET." The first amended cross-complaint alleged UP, which was plaintiff's employer, had negligently caused or contributed to plaintiff's injuries. CJL sought indemnification and contribution. Specifically, paragraph 17 of the first amended cross-complaint states: "Cross-defendant UNIVERSAL PLUMBING was at all pertinent times doing business in the County of Los Angeles, State of California, and were [sic ] the employers of [p]laintiff ..." Paragraph 24 of the fourth cause of action alleged the nature of the actual controversy between CJL as cross-complainant and UP as cross-defendant and plaintiff's employer, as follows: "There presently exists a controversy between Cross-complainant[ ] on one hand and Cross-defendants, and each of them, on the other hand, in that Cross-complainant[ ] contend[s] that, if Plaintiff was injured during the course and scope of his employment and is entitled to recover against Cross-complainant[ ], then said negligence of said employers, as aforesaid, acts as full or partial credit or offset inuring to the benefit of Cross-complainant against any possible judgment hereafter obtained against Cross-complainant[ ], by Plaintiff; whereas Cross-defendants dispute and deny the contentions of Cross-complainant[ ]." The prayer for relief in the first amended cross-complaint alleged that CJL was entitled to an offset in the amount of workers' compensation benefits paid by the workers' compensation insurer of UP, as plaintiff's employer, to plaintiff.

III. PROCEDURAL HISTORY

On April 27, 1992, UP brought a motion for judgment on the pleadings as to plaintiff's complaint. UP argued the complaint failed to allege: any relationship between plaintiff and UP; any wrongdoing by UP; any connection between UP and the allegedly defective ladder; and any responsibility on the part of UP for the premises at which the accident occurred. On May 15, 1992, Superior Court Judge Coleman A. Swart granted UP's motion for judgment on the pleadings as to plaintiff's complaint with leave to amend. Plaintiff failed to amend his complaint within the time allowed. Therefore, on June 3, 1992, Judge Swart entered a dismissal with prejudice of plaintiff's action as against UP.

On August 11, 1992, having secured a dismissal of plaintiff's complaint, UP turned its attention to the first amended cross-complaint of CJL previously filed on May 3, 1991. On August 11, 1992, UP brought a motion for judgment on the pleadings as to CJL's first amended cross-complaint. UP argued the amended cross-complaint was "derivative from [p]laintiff's [c]omplaint" and was without merit in that the court "ha[d] already indicated, when it dismissed the underlying action, that [p]laintiff could not and would not be able to state a claim against [UP]." UP reasoned that the amended cross-complaint was "dependent entirely upon the underlying action" and therefore CJL "cannot and will not be able to assert any viable claim against [UP]." In addition, UP sought an award of sanctions against CJL pursuant to Code of Civil Procedure section 128.5. CJL opposed the motion arguing it had stated a viable cause of action for an offset pursuant to Witt v. Jackson, supra, 57 Cal.2d at p. 73, 17 Cal.Rptr. 369, 366 P.2d 641. On September 8, 1992, Superior Court Judge Richard Montes granted the judgment on the pleadings motion brought by UP "for the reasons set forth in the moving papers." Judge Montes imposed sanctions in the amount of $1,250 against CJL. The court's written order filed September 16, 1992, states: "[CJL] continued to litigate and pursue its derivative and frivolous Cross-Complaint against [UP], knowing that this Court has already determined that Plaintiff's action against [UP] lacked merit." On September 16, 1992, Judge Montes signed the judgment.

IV. DISCUSSION
A. Standard of review

The standard of review on appeal from the granting of a judgment on the pleadings is the same as that on appeal from the sustaining of a demurrer. (Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 275, 239 P.2d 630; Lumbermens Mut. Cas. Co. v. Vaughn (1988) 199 Cal.App.3d 171, 178, 244 Cal.Rptr. 567.) The properly pleaded material allegations in the declaratory relief cause of action in the amended cross-complaint must be accepted as true. (Kimmel v. Goland (1990) 51 Cal.3d 202, 205, 271 Cal.Rptr. 191, 793 [18 Cal.App.4th 383] P.2d 524; Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.) In addition, the Supreme Court has held: " '[T]he allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties.' [Citations.]" (Glaire v. La Lanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918, 117 Cal.Rptr. 541, 528 P.2d 357; Beverly Way Associates v. Barham (1990) 226 Cal.App.3d 49, 51-52, 276 Cal.Rptr. 240.) Applying this standard, we must accept as true the allegations of CJL that UP was plaintiff's employer and it negligently caused or contributed to his injury. In appeals from a demurrer dismissal of a declaratory relief action, appellate courts normally apply the abuse of discretion standard. (Hannula v. Hacienda Homes (1949) 34 Cal.2d 442, 448, 211 P.2d 302; California Ins. Guarantee Assn. v. Liemsakul (1987) 193 Cal.App.3d 433, 438, 238 Cal.Rptr. 346.) However, if the facts are not in dispute, an appellate court can determine as a matter of law whether declaratory relief is a proper remedy. (Bach v. McNelis (1989) 207 Cal.App.3d 852, 872-873, 255 Cal.Rptr. 232.)

B. There has been no ruling on the merits as to UP's alleged negligence

UP repeatedly asserts Judge Swart ruled on May 15, 1992, in connection with its motion for judgment on the pleadings as to plaintiff's complaint, that it was not negligent. However, there has been no ruling on the merits of the issue of the alleged negligence of UP. In addition, the complaint never alleged UP was plaintiff's employer. That issue was likewise not resolved when the complaint was dismissed for failure to file an amended complaint as to UP. The only issue adjudicated in connection with UP's motion was that the facts as alleged in plaintiff's complaint did not state a cause of action against UP. (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 789, 176 Cal.Rptr. 104, 632 P.2d 217.)

C. The Witt v. Jackson rule

Workers' compensation is an injured employee's exclusive remedy against her or his employer. (Lab.Code, §§ 3600, 3601 3; Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 467-468, 165 Cal.Rptr. 858, 612 P.2d 948.) However, the employee may sue a third party whose negligence caused or contributed to the employee's injuries. (§ 3852.) The employer also has a cause of action against the third party for reimbursement of workers' compensation benefits paid to the employee. (§ 3852...

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