Cross-Defendants’ Demurrer to Cross-Complaint
Rodrigo Alvarado v. Carmel Building & Design, Inc. (and Related Cross-Action)
Cross-Defendants’ Demurrer to Cross-Complaint
Hearing Date: May 1, 2026
The demurrer of cross-defendants Anna Asnis and Ilya Asnis (collectively, “Asnis”) to the Cross-Complaint of Carmel Building & Design, Inc. (“Carmel Building”) on sufficiency grounds [Code Civ. Proc. § 430.10, subd. (e)] is OVERRULED. Each party’s judicial-notice request is GRANTED IN PART AND DENIED IN PART. Asnis must file and serve their answer to the Cross-Complaint within 10 days after notice of the Court’s order. [Cal. Rules of Ct., rule 3.1320, subd. (j).] Carmel Building shall prepare the Proposed Order.
Background.
On March 8, 2024, Plaintiff Rodrigo Alvarado, a professional painter, was working on a jobsite with exterior scaffolding when, suddenly and without warning, it collapsed, causing him to fall approximately 20 feet to the ground. He allegedly sustained severe and lasting injuries. [Complaint at ¶¶ 14-15, 17-18.]
After the accident, Mr. Alvarado filed a negligence lawsuit against the general contractor of the project, Carmel Building, claiming it had exclusive care and custody of the premises where the incident occurred. [Complaint at ¶¶ 8, 19-30; Cross-Complaint at ¶ 6.] He also asserted that Carmel Building was responsible for the erection, inspection, and maintenance of the scaffolding on which he was working. [Complaint at ¶ 16.] Carmel Building answered and denied Mr. Alvarado’s allegations. [Answer, passim.]
Carmel Building also filed a Cross-Complaint for indemnity, contribution, declaratory relief, and breach of contract against Asnis, claiming they owned the property where Mr. Alvarado’s accident occurred. [Cross-Complaint at ¶¶ 6-7, 16-51.] As part of the project, Asnis and Carmel Building entered into the Cost-Plus-Percentage-Fee Agreement Home Improvement Contract (“Agreement”). [Id. at ¶ 7.] This Agreement included an indemnity clause in which Asnis agreed to indemnify, defend, and hold Carmel Building harmless against any “loss, liabilities, claims, demands, and damages of all kinds. . .arising out of or related to” Asnis’s choices concerning “design, construction, materials, and/or colors.” [Id. at ¶ 28 and attached Exh.
A at § Y.] In the relevant part, the indemnity applies to personal-injury claims, “(including those of [Asnis], its agents, suppliers, and/or third parties).” [Ibid.]
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Asnis, in their demurrer, claims that the Cross-Complaint fails to state facts sufficient to constitute causes of action. [Notice of Demurrer at 2:8-28.] Specifically, Asnis argues that the First, Second, Fourth, and Fifth Causes of Action “are subject to demurrer due to the workers’ compensation exclusive remedy rule...” [Id. at 2:8-20.] The Third Cause of Action is also subject to demurrer because it “merely seeks a declaration of [Asnis]’s responsibility for comparative indemnity.” [Id. at 2:20-28.]
Legal Standard.
A demurrer for sufficiency assesses whether the complaint properly states a cause of action. [Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.] When courts evaluate demurrers, they interpret the allegations broadly and in context. [Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.] In a demurrer, defects must be visible on the face of the pleading or by proper judicial notice. [Code Civ. Proc. § 430.30, subd. (a).] A demurrer examines only the pleadings, not the evidence, counsel’s arguments, or external facts. [SKF Farms v.
Superior Court (1984) 153 Cal.App.3d 902, 905; Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.] “It is well settled that a general demurrer admits the truth of all material factual allegations in the complaint and that the question of plaintiffs’ ability to prove these allegations, or the possible difficulty in making such proof, does not concern the reviewing court.” [Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604.]
Discussion.
1. Meet-and-Confer Requirement.
The declaration of Asnis’s counsel, Christopher Long, reflects that the meet-and-confer requirement was satisfied. [Long Decl. at ¶¶ 3-5 and attached Exh. A; Code Civ. Proc. § 430.41.]
2. Requests for Judicial Notice.
The Court GRANTS Carmel Building’s request to judicially notice the Complaint and Cross-Complaint. [Evid. Code §§ 452, subd. (d), and 453.] The Court also GRANTS Asnis’s request to judicially notice the court records attached as Exhibits A and B to their Request for Judicial Notice. [Ibid.] However, the Court DENIES each party’s request to judicially notice another court’s summary-judgment order in Cavero v. George Chiala Farms, Santa Clara County Superior Court, Case No 20CV368367. [Asnis’s Request for Judicial Notice at 2:21-3:6 and attached Exh.
C; Carmel Building’s Request for Judicial Notice at 2:3-5 and attached Exh. A.] The Cavero order is irrelevant to the Court’s resolution of the issues raised in Asnis’s demurrer. [See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 (“[a]lthough a court may judicially notice a variety of matters (Evid. Code § 450 et seq.), only relevant material may be noticed.”) (original italics).]
3. Demurrer.
Asnis’s demurrer challenges the sufficiency of all causes of action in the Cross- Complaint. [Code Civ. Proc. § 430.10, subd. (e).] Asnis contends that Mr. Alvarado cannot sue
Carmel Building for his injuries due to the “workers’ compensation exclusive remedy rule, as confirmed by the decisions in Redfeather v. Chevron USA, Inc. (1997) 57 Cal.App.4th 702, Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, and Privette v. Superior Court (1993) 5 Cal.4th 689.” [Notice of Demurrer at 2-3.] In essence, Asnis argues that the only conclusions which can be drawn from the Complaint, Cross-Complaint, and judicially noticeable matters are that (1) Mr. Alvarado is a professional painter [Complaint at ¶¶ 14-15], (2) his employer, Cardoza and Robinson Painting, maintains workers’ compensation insurance [see Asnis’s Request for Judicial Notice at Exhs.
A-B], (3) Mr. Alvarado has a pending workers’ compensation claim against his employer [ibid.], and (4) generally, California law prevents an injured employee of an independent contractor, such as Mr. Alvarado, from filing suit against a general contractor like Carmel Building [Privette, 5 Cal.4th at 698-699]. Therefore, as a matter of law, Asnis argues that contribution from them is not possible because Carmel Building, as a covered employer under Privette, is not liable in tort for Mr. Alvarado’s injuries [Chick v.
Superior Court (1962) 209 Cal.App.2d 201, 204; Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 811].
However, the Privette doctrine is an affirmative defense that affects the burden of production. Once a defendant proves that they hired the plaintiff’s employer and the plaintiff was injured at the worksite, the plaintiff must then prove an exception to this doctrine. [See Horne v. Ahern Rentals, Inc. (2020) 50 Cal.App.5th 192, 201 (citing SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 600, and Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 642).] For instance, “the Privette doctrine allows for liability when the hirer of the independent contractor retained control over safety conditions at the worksite and negligently exercised that retained control in a manner which affirmatively contributed to the employee’s injuries.” [Johnson v.
The Raytheon Co., Inc. (2019) 33 Cal.App.5th 617, 624 (citing Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, 202).] A substantive discussion of potential exceptions to the Privette doctrine would venture far from the face of the pleadings and matters that are judicially noticeable. Therefore, the demurrer is OVERRULED because whether any Privette exceptions apply is a factual issue that cannot be resolved at the pleading stage.
Conclusion.
The general demurrer is OVERRULED and Asnis has 10 days to file and serve their answer to the Cross-Complaint. As detailed above, each party’s request for judicial notice is GRANTED IN PART AND DENIED IN PART. Carmel Building shall prepare the Proposed Order consistent with this Tentative Ruling.
NOTE RE TENTATIVE RULING This tentative ruling becomes the court’s order, and no hearing shall be held unless one of the parties contests it by following Rule 3.1308 of the California Rules of Court and Monterey County Local Rule 7.9. Those parties wishing to present an oral argument must notify all other parties and the Court no later than 4:00 p.m. on the court day before the hearing; otherwise, NO ORAL ARGUMENT WILL BE PERMITTED, AND THE TENTATIVE RULING WILL BECOME THE ORDER OF THE COURT AND THE HEARING VACATED. You must notify the court by email or by calling the Calendar Department at 831-647-5800, extension 3040, before 4:00 p.m. on the court day before the hearing.
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