Fagerstedt v. Continental Insurance. Co.

HERNDON, J. Plaintiffs appeal from the judgment of dismissal entered following the sustaining of defendants’ demurrers to their first amended complaint for declaratory relief without leave to amend.

In substance, appellants’ complaint alleges that appellant Eagerstedt is a licensed contractor and that appellant Keeler is his employee. On or about August 15, 1966, respondent Elliott entered into an oral agreement with Eagerstedt whereby the latter was to provide men and equipment to Elliott and to conduct certain grading operations upon land located in Santa Barbara County that was being developed by Elliott. At Elliott’s request respondents L. D. Van Over Construction, Inc. and L. D. Van Over (hereinafter referred to collectively as Van Over) provided Eagerstedt with a water truck and driver, Antonio Villa, who was to be Eagerstedt’s special employee. Villa, however, remained in the general employ of Van Over and was carried on its payroll.

It is further alleged that Villa met his death as the result of an industrial accident that occurred during the course and scope of both his general and special employment. Also named as defendants in appellants’ complaint are the heirs-at-law of Villa and Industrial Indemnity Insurance Company, State Fund Insurance Company and Continental Insurance Company, the workmen’s compensation insurance carriers of Van Over, Elliott and Eagerstedt, respectively.

In an attempt to establish the existence of a justiciable controversy, appellants alleged that they and Van Over and its insurance carrier contend that Villa was the special employee of Eagerstedt, Keeler1 and/or Elliott. On the other hand, it is alleged that Elliott, his insurance carrier, and [372]Fagerstedt’s insurance carrier contend that Villa was not such a special employee. Appellants pray that the rights and duties of all the parties he determined and that Villa be declared to be their special employee.

Relevant facts in addition to those alleged in appellants’ complaint are subject to judicial notice. The rule has long been established in California “that in the consideration, of a pleading the courts must read the same as if it contained a statement of all matters of which they are 'required to take judicial notice, even when the pleading contains an express allegation to the contrary.” (Chavez v. Times-Mirror Co., 185 Cal. 20, 23 [195 P. 666]. Also Flores v. Arroyo, 56 Cal.2d 492, 496-497 [15 Cal.Rptr. 87, 364 P.2d 263]; Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., 58 Cal.2d 601 [25 Cal.Rptr. 559, 375 P.2d439].)