Delgadillo v. Zeme CA1/3

Filed 9/30/15 Delgadillo v. Zeme CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

ELENA DELGADILLO et al., Plaintiffs and Appellants, A140989 v. SUSAN ZEME, (Alameda County Super. Ct. No. RG13681605) Defendant and Respondent.

Plaintiffs Elena Delgadillo and Jesus Cortez appeal from a judgment after the court sustained defendant Susan Zeme’s demurrer to their first amended complaint. We agree with the trial court’s conclusion that plaintiffs cannot allege the causation element necessary for their causes of action against Zeme. Accordingly, we affirm. BACKGROUND Zeme, an attorney, defended plaintiffs during the early stages of a personal injury action brought by former employee Sacramento Lopez, who allegedly was injured in a fall while employed by them. During the relevant period plaintiffs owned and operated La Nopalera market, through which they had obtained workers’ compensation insurance. They also had a homeowners’ policy covering their residence. However, Lopez’s injury did not occur at the market or plaintiffs’ home, but while doing construction work on a house plaintiffs were building on Star Ridge Road. Zeme answered Lopez’s complaint and prepared written discovery responses denying that plaintiffs were his employer or possessed any insurance coverage for his injuries. Plaintiffs subsequently replaced Zeme with new counsel who tendered Lopez’s

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claims to Farmers Insurance (Farmers), which had issued the workers’ compensation policy for La Nopalera and the homeowners’ policy for plaintiffs’ residence. Farmers denied the claims, and plaintiffs sued for breach of contract and related claims. In that lawsuit (the insurance action), unlike the underlying personal injury case, plaintiffs alleged that Lopez was in fact their employee and that they did have coverage under their homeowners’ policy for their residence or their workers’ compensation policy for their market. In the insurance action, Farmers obtained a ruling on summary judgment that the homeowners’ policy did not provide coverage for Lopez’s claims. “The Patricia Court homeowner’s policy provided workers’ compensation coverage and employer’s liability coverage, but only for ‘residence employees,’ defined as an employee of an insured whose duties pertain to the ownership, maintenance, or use of the residence premises. This includes the performance of household domestic services or the performance of similar pursuits elsewhere which do not pertain to the business pursuits of an insured. ‘Residence premises’ is defined as the dwelling, structures and grounds where the insured resides. It is undisputed that Plaintiffs lived at 24606 Patricia Court, and they did not live at 3590 Star Ridge Road. Thus, the house being constructed on Star Ridge Road was not the ‘residence premises’ and Fire’s policy did not provide workers’ compensation coverage or employer’s liability coverage for the personal injury suffered by Lopez in the course of construction work at the Star Ridge Road property.” Meanwhile, the court in Lopez’s personal injury action ruled on a “motion in limine to dismiss complaint re: jurisdiction” holding that the workers’ compensation policy for plaintiffs’ market did not shield them from civil liability for Lopez’s claims. The court identified three independent bases for its ruling. “Defendants waived the worker’s compensation exclusivity rule by failing to plead it as an affirmative defense. In addition, Defendants admitted in their respective responses to Form Interrogatory No. 4.1 that there was no policy of insurance in effect at the time of the accident. Finally, the worker’s compensation policy purchased for the La Nopalera Supermarket cannot reasonably be interpreted to provide coverage for individuals working on construction of