Electronically FILED by Superior Court of California, County of Los Angeles on 03/23/2022 12:14 PM Sherri R.

Carter, Executive Officer/Clerk of Court, by S. Lopez,Deputy Clerk

1 Kenneth G. Ruttenberg (SBN 167377)

THE RUTTENBERG LAW FIRM, P.C.
2 1901 Avenue of the Stars, Suite 1020
Los Angeles, CA 90067
3 Tel: (310) 979-7080
Fax: (310) 207-4033
4 Email: [email protected]
5 Attorneys for Defendants
CHRIS BROWN and BLACK PYRAMID, LLC
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF LOS ANGELES
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11 PATRICIA AVILA, an individual, ) Case No. 21STCV13947
)
12 Plaintiff, ) [Case filed on 04/13/21; assigned to Hon.
) Daniel M. Crowley, Dept. 28]
13 v. )
) NOTICE OF DEMURRER AND
14 CHRIS BROWN, an individual; BLACK ) DEMURRER TO FIRST AMENDED
PYRAMID, LLC (DOE 1), a Delaware limited ) COMPLAINT; MEMORANDUM OF
15 liability company; and DOES 2 through 50, ) POINTS AND AUTHORITIES IN
inclusive, ) SUPPORT OF DEMURRER
16 )
Defendants. ) Date: April 22, 2022
17 ) Time: 1:30 p.m.
) Dept.: 28
18 )
) CRS: 397972289310
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20 TO PLAINTIFF AND HER COUNSEL OF RECORD:
21 PLEASE TAKE NOTICE that, on April 22, 2022, at 1:30 p.m., in Dept. 28 of the above
22 Court, located at 312 N. Spring Street, Los Angeles, CA 90012, Defendants Chris Brown and
23 Black Pyramid, LLC (“Defendants”) will and do demur to the First Amended Complaint
24 (“FAC”) of Plaintiff Patricia Avila (“Plaintiff”).
25 Defendants demur on the basic grounds that (a) Plaintiff was at most a remote bystander,
26 so she has no claims for negligence in any form; and (b) if Plaintiff was injured as alleged, her
27 exclusive remedy for her alleged workplace injuries would be workers’ compensation.
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DEMURRER TO FIRST AMENDED COMPLAINT
 1 This Demurrer will be and is based on this Notice, Demurrer, and Memorandum; the
2 court file; and such further matters as Defendants may present to the Court.
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4 Dated: March 23, 2022 THE RUTTENBERG LAW FIRM, P.C.
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6 By: Kenneth G. Ruttenberg
Kenneth G. Ruttenberg
7 Attorneys for Defendants
CHRIS BROWN and BLACK PYRAMID, LLC
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DEMURRER TO FIRST AMENDED COMPLAINT
 1 DEMURRER
2 Defendants demur to the FAC as follows:
3 1. The First Cause of Action for Premises Liability in the FAC does not state facts
4 sufficient to constitute a cause of action against Defendants. CCP § 430.10(e). Plaintiff was at
5 most a remote bystander, so she has no claim for negligence in any form (including premises
6 liability). Plaintiff also is barred by the exclusivity provisions of workers’ compensation.
7 Claims based on her employers’ alleged dual capacity as property owners are likewise barred by
8 workers’ compensation.
9 2. The Second Cause of Action for Negligent Infliction of Emotional Distress in the
10 FAC does not state facts sufficient to constitute a cause of action against Defendants. CCP §
11 430.10(e). Plaintiff was not an immediate bystander to her sister’s alleged injury. Plaintiff also
12 is barred by the exclusivity provisions of workers’ compensation.
13 3. The Third Cause of Action for Negligence in the FAC does not state facts
14 sufficient to constitute a cause of action against Defendants. CCP § 430.10(e). Plaintiff was at
15 most a remote bystander, so she has no claim for negligence. Plaintiff also is barred by the
16 exclusivity provisions of workers’ compensation.
17 Defendants therefore ask the Court to sustain their Demurrer, without leave to amend the
18 FAC.
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Dated: March 23, 2022 THE RUTTENBERG LAW FIRM, P.C.
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By: Kenneth G. Ruttenberg
22 Kenneth G. Ruttenberg
Attorneys for Defendants
23 CHRIS BROWN and BLACK PYRAMID LLC
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DEMURRER TO FIRST AMENDED COMPLAINT
 1 MEMORANDUM OF POINTS AND AUTHORITIES
2 1. STATEMENT OF FACTS
3 Plaintiff alleges that Defendants own the property located at 19602 Citrus Ridge Drive,
4 Tarzana, CA 91356. See FAC at ¶¶ 2-3 & 8-10. Plaintiff alleges that, in November 2020, she
5 and her sister, Maria Soledad Avila (“Maria”), were hired by Defendants as housekeepers for the
6 property. Id. at ¶ 8, p. 3, ll. 16-18. Plaintiff and Maria “would work at the property twice a week
7 at a rate of $600.00 per day.” Id. at ll. 19-20. Plaintiff concludes, without any factual support,
8 that she and her sister “were independent contractors that offered housekeeping services.” Id. at
9 l. 20.
10 On December 12, 2020, Plaintiff and Maria “were working at the property performing
11 their routine housekeeping services.” Id. at ¶ 11, p. 3, ll. 27-28. According to Plaintiff,
12 “Plaintiff was aware that a very big dog was in the backyard . . . .” Id. at p. 4, ll. 3-4. Plaintiff
13 claims that she “could observe that Maria Avila was vacuuming, that the vacuum eventually
14 became full, and that [Maria] was going to enter the backyard to empty the vacuum.” Id. at ¶ 12,
15 p. 4, ll. 5-7. Plaintiff alleges that, once Maria entered the backyard, Plaintiff could hear a dog
16 barking [italics added].” Id. at l. 7. Plaintiff then alleges, “The dog at the property proceeded to
17 viciously attack Maria.” Id. at ll. 7-8.
18 Plaintiff does not allege that she observed the attack. Rather, at Paragraph 13 of the FAC,
19 she alleges:
20 At the time of the vicious attack by the dog, Plaintiff had been
21 working inside of the house but could hear her sister’s screams
22 coming from outside as well as the dog violently growling and
23 barking. Plaintiff fully recognized that the screams were coming
24 from her own sister, knew that her sister went outside to empty the
25 vacuum, and could hear that a dog was violently attacking her
26 sister. The screams were so bad that it caused Plaintiff to
27 immediately run outside, where she found her sister covered in
28 blood while she was screaming and crying for help.
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DEMURRER TO FIRST AMENDED COMPLAINT
 1 Id. at ¶ 13, p. 4, ll. 10-16.
2 Plaintiff alleges that, while in the backyard, she “could observe that the dog had viciously
3 attacked Maria’s face around the eye, there was about 3 to 4 inches of skin missing from Maria’s
4 left arm, and that the dog had violently bitten into Maria’s leg.” Id. at ll. 18-20. Plaintiff claims
5 that she thought her sister was going to die that day because of the amount of blood loss. Id. at ll.
6 20-22. According to Plaintiff, “Ever since the incident, Plaintiff has suffered emotional distress,
7 including but not limited to, post-traumatic stress disorder, insomnia, weight loss, loss of
8 appetite, intentional complications, severe anxiety, depressions, fear, extreme sadness for her
9 sister, and panic attacks.” Id. at ll. 25-28. She also claims that she “was reluctant to leave her
10 home and could not stop re-living the pain that she experienced as she watched her sister suffer
11 through that horrendous attack that day.” Id. at p. 4, l. 28 - p. 5, l. 2.
12 Based on these allegations, the FAC then alleges three claims that sound in negligence:
13 (1) Premises Liability; (2) Negligent Infliction of Emotional Distress (NIED); and (3)
14 Negligence. All three negligence claims allege, essentially verbatim, the same facts.
15 2. IN RULING ON DEFENDANTS’ DEMURRER, THE COURT SHOULD
16 NOT ACCEPT AS TRUE THE MERE CONCLUSIONS ALLEGED IN
17 THE FAC.
18 A court should treat a demurrer as admitting all material facts that are properly pled, but
19 need not accept conclusions, contentions, or deductions of law or fact. Blank v. Kirwan (1985)
20 39 Cal.3d 311, 318; Maystruk v. Infinity Ins. Co. (2009) 175 Cal.App.4th 881, 888 (“the
21 complaint alleges conclusions but no facts to support [them] . . . . This factual omission is fatal to
22 the complaint”).
23 Here, the FAC concludes that Plaintiff and her sister were independent contractors. 1 FAC
24 at ¶ 8. That conclusion is belied by the fact that Defendants hired Plaintiff and her sister as
25 housekeepers and paid them $600 per day twice each week. Id. at ¶¶ 8 & 11. Plaintiff therefore
26 was an employee whose remedies are limited to workers’ compensation. See Lab. C. §§ 3600(a)
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28 Plaintiff newly added this conclusion to her FAC; it was not alleged in her
original Complaint. Cf. 4/13/21 Complaint at p. 3, ¶ 6.
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DEMURRER TO FIRST AMENDED COMPLAINT
 1 & 3602(a).
2 3. PLAINTIFF CANNOT PROPERLY ALLEGE ANY BYSTANDER TORT
3 PREMISED ON NEGLIGENCE.
4 All three of Plaintiff’s claims sound in negligence. See, e.g., Kesner v. Superior Court
5 (2016) 1 Cal.5th 1132, 1158-59 (premises liability is just a form of negligence); Molien v. Kaiser
6 Found. Hosps. (1980) 27 Cal.3d 916, 928 (NIED is just a form of negligence). Each claim is
7 premised on Plaintiff’s alleged status as a bystander; she was not directly injured in the alleged
8 dog attack. But Plaintiff was a remote bystander who was not present when her sister was
9 allegedly injured. Since Plaintiff has no standing to sue as a bystander, all three of her claims for
10 negligence fail.
11 While the tort of NIED is not separate from ordinary negligence (Molien v. Kaiser,
12 supra), a crucial element of NIED is that the plaintiff have contemporaneously perceived the
13 occurrence of the injury. Perception even a few moments later will not count. See CACI 1621.
14 As the court held in Ra v. Superior Court, infra: “Someone who hears an accident but does not
15 then know it is causing injury to a relative does not have a viable bystander claim for NIED, even
16 if the missing knowledge is acquired moments later.” 154 Cal.App.4th at 149.
17 In Ra v. Superior Court (2nd Dist. 2007) 154 Cal.App.4th 142, 144-45, the appellate court
18 found no evidence to support a claim of NIED, because the plaintiff Ra was not a percipient
19 witness to, and did not have contemporaneous awareness of, the injury to her husband. Ra was
20 shopping in the women’s section of a retail store approximately 10 to 15 feet from where her
21 husband was looking at a men’s sweater display. Id. at 145. Ra had her back to her husband
22 when she heard a loud crash that caused her to fear for their safety. Ra believed it was more
23 likely than not that he had been injured. Id. at 144-45. An overhead sign had fallen, hitting him
24 in the head. After hearing the crash, Ra turned and saw her husband holding his head, bent at the
25 knees and in pain. Ibid. She did not notice the sign on the ground.
26 The Ra court found that the plaintiff had not contemporaneously perceived the injury
27 inflicted on her husband and did not know with reasonable certainty that her husband had been
28 hurt until she turned and saw him immediately afterward. Ibid. “[A]lthough aware by virtue of
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DEMURRER TO FIRST AMENDED COMPLAINT
 1 the loud bang that some traumatic event had occurred, [Ra] did not clearly and distinctly perceive
2 the injurious impact of the overhead sign falling until she looked in her husband’s direction after
3 the sign was already on the ground.” Id. at 151. “In sum, Ra’s fear for her husband’s safety at
4 the time she heard the loud bang emanating from the part of the store where she knew he was
5 shopping and her belief the possibility of his injury was more likely than not are insufficient as a
6 matter of law to establish contemporaneous awareness of her husband’s injuries at the time of the
7 injury-producing accident within the meaning of Thing, supra, 48 Cal.3d at pages 667 to 668 and
8 Bird v. Saenz, supra, 28 Cal.4th at pages 915 to 916.” Id. at 152-53.
9 California courts read the requirement “that a plaintiff be ‘present at the scene of the
10 injury-producing event at the time it occurs and is then aware that it is causing injury to the
11 victim’ in light of the court’s admonition that recovery for NIED must be limited to ‘plaintiffs
12 who personally and contemporaneously perceive the injury-producing event and its traumatic
13 consequences.’” Ko v. Maxim Healthcare Services, Inc. (2020) 58 Cal. App.5th 1144, 1156
14 (quoting Thing, 48 Cal.3d at 666, 669).
15 “The Thing Court expressly disapproved suggestions in prior cases that a negligent actor
16 is liable to all those ‘who may have suffered emotional distress on viewing or learning about the
17 injurious consequences of his conduct,’ rather than on viewing the injury-producing event itself.”
18 Ra, supra, 154 Cal.App.4th at 148 (quoting Thing, 48 Cal.3d at 668).
19 Here, Plaintiff was working inside the house and was not present when her sister
20 allegedly was injured in the backyard. She only heard the dog barking and her sister screaming.
21 She then ran outside to perceive her injured sister. FAC at ¶¶ 13. Since Plaintiff was not present
22 and did not see the dog alleged attack and injure her sister, Plaintiff has no claim for NIED.
23 All three of Plaintiff’s claims depend on her status as a bystander. In fact, all three claims
24 repeat, essentially verbatim, the exact same facts in support of each of the claims. Plaintiff was
25 not directly injured in the dog attack. Therefore, because Plaintiff was not an immediate
26 bystander to the alleged attack on her sister, all three of Plaintiff’s negligence claims fail.
27 ///
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DEMURRER TO FIRST AMENDED COMPLAINT
 1 4. PLAINTIFF HAS NOT ALLEGED OR SHOWN THAT SHE PURSUED
2 AND EXHAUSTED HER EXCLUSIVE REMEDIES UNDER WORKERS’
3 COMPENSATION.
4 Plaintiff’s work as a housekeeper for Defendants made her a statutory “employee” for
5 workers’ compensation purposes. See Lab. C. § 3351(d), which includes nearly all domestic
6 workers in the definition of “employee”:
7 Except as provided in paragraph (8) of subdivision (a) of Section 3352 [not
8 applicable], any person employed by the owner or occupant of a residential
9 dwelling whose duties are incidental to the ownership, maintenance, or use of the
10 dwelling, including the care and supervision of children, or whose duties are
11 personal and not in the course of the trade, business, profession, or occupation of
12 the owner or occupant.
13 Defendants are in the music business, not the housekeeping business. Plaintiff and her
14 sister therefore were statutory “employees” under Lab. C. § 3351(d).
15 See also Lab. C. § 3357, which creates a presumption that anyone rendering services to
16 another is an employee.
17 Because Plaintiff was an alleged bystander to the dog’s attack on her sister, Plaintiff
18 alleges primarily emotional distress resulting from the attack. See, e.g., FAC at ¶¶ 15, 30 & 45.
19 At the same time, Plaintiff alleges physical injuries or effects, including insomnia, weight loss,
20 and loss of appetite. Ibid.
21 However, emotional distress injuries alone are subject to workers’ compensation
22 exclusivity, as long as they arise as a normal part of the employment relationship. See, e.g.,
23 Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 749-52. Plaintiff knew that Defendants kept
24 dogs on the property, where she could hear them barking, but she claims they were usually caged.
25 See FAC at ¶ 11. Morever, Plaintiff doesn’t claim that the dogs injured her–only that she
26 suffered emotional distress after a dog injured her sister.
27 While a defendant generally has the duty to plead and prove its affirmative defense based
28 on workers’ compensation exclusivity, a court may sustain a demurrer on that ground when the
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DEMURRER TO FIRST AMENDED COMPLAINT
 1 complaint shows that exclusivity bars the complaint. See Doney v. Tambouratgis (1979) 23
2 Cal.3d 91, 96-97; Arriaga v. County of Alameda (1995) 9 Cal.4th 1055, 1060 (“when a
3 complaint affirmatively alleges facts indicating that the [Workers’ Compensation] Act applies,
4 no civil action will lie, and the complaint is subject to a general demurrer unless it states
5 additional facts that negate application of the exclusive remedy rule”).
6 Courts are instructed to construe workers’ compensation liberally, so that claims fall
7 within the workers’ compensation framework. See Mitchell v. Scott Wetzel Services, Inc. (1991)
8 227 Cal.App.3d 1474, 1480 (“In adjudicating whether a claim falls within the workers’
9 compensation system, all doubt should be resolved in favor of finding jurisdiction within the
10 workers’ compensation system”).
11 Plaintiff’s FAC shows that, while working as an employee for Defendants, she allegedly
12 suffered emotional distress arising as a normal part of the employment relationship. The FAC
13 does not allege that Plaintiff has exhausted her remedies under workers’ compensation or that she
14 is somehow exempt from workers’ compensation. Plaintiff’s exclusive remedies against
15 Defendants therefore lie in workers’ compensation.
16 5. BECAUSE PLAINTIFF’S EMPLOYERS OWNED THE PROPERTY,
17 PLAINTIFF’S CLAIM FOR PREMISES LIABILITY IS ALSO BARRED
18 BY WORKERS’ COMPENSATION EXCLUSIVITY.
19 A plaintiff cannot avoid the exclusivity of workers’ compensation by alleging that her
20 employer is liable for premises liability. Despite the employer and property owner’s dual
21 capacity, the employee’s claim for injury is still barred by workers’ compensation exclusivity.
22 See, e.g., Miller v. King (2nd Dist. 1993) 19 Cal.App.4th 1732, 1735; Lab. C. § 3602(a).
23 Injuries caused by allegedly unsafe working conditions are compensable solely under the
24 Workers’ Compensation Act, even if an employer recklessly or deliberately failed to correct
25 known safety issues. Vuillemainroy v. Am. Rock & Asphalt (1999) 70 Cal.App.4th 1280, 1286.
26 Thus the FAC’s allegation that Defendants both hired Plaintiff and owned the property
27 where she supposedly was injured does not remove Plaintiff from the rule that her exclusive
28 remedy lies with workers’ compensation. See FAC at ¶¶ 2-3 & 8-10.
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DEMURRER TO FIRST AMENDED COMPLAINT
 1 6. CONCLUSION
2 Plaintiff has no claim for premises liability, NIED, or ordinary negligence because she
3 wasn’t a bystander to her sister’s alleged injury. Plaintiff’s claims also are barred by workers’
4 compensation exclusivity. Defendants therefore urge the Court to sustain this Demurrer, without
5 leave to amend the FAC.
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7 Dated: March 23, 2022 THE RUTTENBERG LAW FIRM, P.C.
8
9 By: Kenneth G. Ruttenberg
Kenneth G. Ruttenberg
10 Attorneys for Defendants
CHRIS BROWN and BLACK PYRAMID, LLC
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DEMURRER TO FIRST AMENDED COMPLAINT
 1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 I am employed in the COUNTY of LOS ANGELES, STATE of CALIFORNIA. I am
over the age of 18 and not a party to the within action; my business address is 1901 Avenue of
4 the Stars, Suite 1020, Los Angeles, California 90067.
5 On March 23, 2022, I served the foregoing document(s) described as NOTICE OF
DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT;
6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER in
this action as follows:
7
Michael C. Murphy, Esq.
8 Michael C. Murphy, Jr., Esq.
Law Offices of Michael C. Murphy
9 2625 Townsgate Road, Suite 330
Westlake Village, CA 91361
10 Voice: (818) 558-3718
Facsimile: (805) 367-4506
11 Email: [email protected]
Email: [email protected]
12
Attorneys for Plaintiff Patricia Avila
13
14 [] BY MAIL: I am readily familiar with my firm’s or other business’s practice for
the collection and processing of correspondence for mailing with the United
15 States Postal Service. In the ordinary course of business, correspondence would
be deposited with the United States Postal Service that same day. I placed true
16 copies of the above-entitled document in envelopes addressed as shown above
and sealed and placed them for collection and mailing on the date stated above,
17 following ordinary business practices.
18 [x] BY ELECTRONIC MAIL: I caused said document(s) to be transmitted by
electronic mail to the addressee(s) above.
19
[] BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or
20 package provided by an overnight delivery carrier and addressed to the persons at
the addresses above. I placed the envelope or package for collection and
21 overnight delivery at an office or a regularly utilized drop box of the overnight
delivery carrier.
22
[] BY FACSIMILE: In addition to the above service by mail, hand delivery, or
23 Federal Express, I caused said document(s) to be transmitted by facsimile to the
addressee(s) above.
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[x] (State) I declare under penalty of perjury under the laws of the State of California
25 that the above is true and correct.
26
Executed on March 23, 2022, at Los Angeles, California.
27
Celeste Diaz
28 Celeste Diaz
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PATRICIA AVILA vs CHRIS BROWN
Case Number: 21STCV13947     Case Type: Civil Unlimited     Category: Other Personal Injury/Property
Damage/Wrongful Death    
Date Filed: 2021-04-13   Location: Spring Street Courthouse - Department 28

Reservation
Case Name: Case Number:
PATRICIA AVILA vs CHRIS BROWN 21STCV13947
Type: Status:
Demurrer - without Motion to Strike RESERVED
Filing Party: Location:
Chris Brown (Defendant) Spring Street Courthouse - Department 28
Date/Time: Number of Motions:
04/22/2022 1:30 PM 1
Reservation ID: Confirmation Code:
397972289310 CR-YE336IN2TFB5HBBAN

Fees
Description
Description Fee
Fee Qty
Qty Amount
Amount

Demurrer - without Motion to Strike 60.00 1 60.00

Credit Card Percentage Fee (2.75%) 1.65 1 1.65

TOTAL $61.65
$61.65

Payment
Amount: Type:
$61.65 MasterCard
Account Number: Authorization:
XXXX4967 01270Z

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