Judge: Christopher K. Lui, Case: 23STCV00357, Date: 2023-04-19 Tentative Ruling
Case Number: 23STCV00357 Hearing Date: April 19, 2023 Dept: 76
Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the demurrer and motion addressed herein. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue. Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.
Plaintiffs allege that Defendant’s employee negligently pumped a few hundred gallons of caustic into a peroxide tank at Plaintiff Tri-Star’s premises, which set off a chemical reaction that caused a fireball to erupt, followed by a geyser of caustic and peroxide mixture that damaged the premises.
Defendant Brenntag Pacific, Inc. demurs to the Complaint.
TENTATIVE RULING
Defendant Brenntag Pacific, Inc.’s demurrer to the Complaint is OVERRULED as to the first, second and fifth causes of action and SUSTAINED with leave to amend as to the third cause of action.
The motion to strike the punitive damage allegations at ¶ 31, Page 5:15-17 and Prayer, ¶ 3, Page 8;15 is GRANTED with leave to amend.
Plaintiff is given 30 days’ leave to amend.
ANALYSIS
Demurrer
Meet and Confer
The Declaration of Nicole Wentworth reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.
Discussion
Defendant Brenntag Pacific, Inc. demurs to the following causes of action in the Complaint.
1. First Cause of Action (Negligence).
Defendant argues that the failure to perform the terms of a contract is not a basis for an independent tort, and the “negligent” performance of a contract amounts to nothing more than a failure to perform the express terms of the contract.
Plaintiff cites North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774, for the proposition that negligent performance of a contract may be both a breach of contract and a tort. Plaintiff’s position is correct.
A contractual obligation may create a
legal duty the breach of which will support a tort action. (North American
Chemical Co. v. Superior Court (1997) 59 Cal. App. 4th 764, 773-776 [69 Cal. Rptr.
2d 466].) "Contract law exists to enforce the intentions of the parties to
an agreement while tort law is designed to vindicate social policy. (Foley v.
Interactive Data Corp. (1988) 47 Cal. 3d 654, 683 [254 Cal. Rptr. 211, 765 P.2d
373].) . . . [T]he same wrongful act may constitute both a breach of contract
and an invasion of an interest protected by the law of torts. (3 Witkin,
Cal. Procedure (4th ed. 1996) Actions, § 139, pp. 203-204.) [P] . . . A
contract to perform services gives rise to a duty of care which requires that
such services be performed in a competent and reasonable manner. A negligent
failure to do so may be [*688] both a breach of contract and a tort.
( Perry v. Robertson (1988) 201 Cal. App. 3d 333, 340 [247 Cal. Rptr. 74].) . .
. [P] . . . In general, it has been held that an action based on the negligent
performance of contractual duties, although involving elements of both contract
and tort, is regarded as a delictual action, since negligence is considered the
gravamen of the action. (Eads v. Marks [(1952)] 39 Cal. 2d [807,] 811-812 [249
P.2d 257]; see also Distefano v. Hall (1963) 218 Cal. App. 2d 657, 678 [32 Cal.
Rptr. 770].)" (Id., at pp. 774-775.)
(Michaelis v. Benavides (1997) 61 Cal.App.4th 681, 687-88 [bold emphasis added.)
As appears, the issue with which all of these
cases grapple is the type of damages that may be recovered under contract and
tort principles. Despite the fact that a negligent failure to
perform contractual obligations constitutes a tort, the injured party may
recover only contractual damages unless “the duty that gives rise to tort liability
is either completely independent of the contract or arises from conduct which
is both intentional and intended to harm.” (Erlich, supra, 21 Cal.4th at
p. 552; see Applied Equipment Corp. v. Litton Saudi Arabia Ltd., supra, 7 Cal.4th at
p. 515.) Stated differently, unless “ ‘the actions that constitute the
breach violate a social policy that merits the imposition of tort remedies.’
” (Erlich, supra, at p. 552.) The
restriction is grounded in the recognition that “the consequences of a
negligent act must be limited to avoid an intolerable burden on society.” (Ibid.)
(Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1059 [bold emphasis added].)
As such, the allegation that Defendant breached its contractual obligation to deliver the caustic soda by failing to use reasonable care in carrying out such performance by unloading hundreds of gallons of caustic to the wrong container, causing an explosion and fire at the premises, is sufficient to state a cause of action for negligence.
The demurrer to the first cause of action is OVERRULED.
2. Second Cause of Action (Willful Misconduct).
Defendant argues that this cause of action fails because it is based on the same alleged duty as the negligence cause of action, but there is not duty in tort to perform a contract.
Defendant also argues that the Complaint does not plead facts that Defendant intended to harm Plaintiff.
Plaintiff argues that the willful and intentional conduct was the employee’s rush to leave the premises without a signature for his delivery, in reckless disregard of the consequence of his action.
Willful misconduct is not a separate tort from negligence, but rather “‘“‘an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care’ [citations].”’” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526 [61 Cal. Rptr. 3d 304].) In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also “‘“(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. [Citations.]”’ [Citation.]” (Id. at p. 528.) “‘[W]illful misconduct is not marked by a mere absence of care. Rather, it “‘“involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences.”’” [Citations.]’” (Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal.App.4th 927, 940 [93 Cal. Rptr. 3d 9], quoting Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 729 [80 Cal. Rptr. 2d 506, 968 P.2d 65], overruled on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19 [107 Cal. Rptr. 2d 841, 24 P.3d 493].)
(Doe v. United States Youth Soccer Ass'n, Inc. (2017) 8 Cal. App. 5th 1118, 1140 [bold
emphasis added].)
For purposes of demurrer, these allegations are sufficient to plead that the employee acted with a positive, active and absolute disregard of the consequences of the mixture of caustic with peroxide sitting without remediation. The employee’s state of mind in this regard, and Defendant Brenntag’s vicarious liability therefor, are issues of fact that may be explored through discovery.
The demurrer to the second cause of action is OVERRULED.
3. Third
Cause of Action (Strict Liability in Tort).
Defendant
argues that the delivery of caustic soda is not an ultrahazardous activity
because the dangers inherent in the delivery of caustic soda can be eliminated
by the exercise of reasonable care.
Plaintiff
argues that there are sufficient facts pled that the delivery of caustic soda
is an ultrahazardous activity.
The modern rule of strict liability without fault for injuries resulting from an
ultrahazardous activity was adopted in this state by the decision in Luthringer
v. Moore (1948) 31 Cal.2d 489 [190 P.2d 1]. Applying the standard set forth in
the Restatement of Torts, the Supreme Court stated: "'One who carries on
an ultra-hazardous activity is liable to another whose person, land or chattels
the actor should recognize [are] likely to be harmed by the unpreventable miscarriage of the activity
for harm resulting thereto from that which makes the activity ultra-hazardous, although the utmost care is exercised to
prevent the harm. . . . An activity is ultra-hazardous if it (a) necessarily involves a risk of serious harm
to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and
(b) is not a matter of common usage.
. . . An activity is a matter of common usage if it is customarily carried on
by the great mass of mankind or by many people in the community. . . .
(Garcia v. Estate of Norton (1986) 183 Cal.App.3d 413 [bold emphasis
added].)
It is established that whether an activity is an ultrahazardous activity is a question of law
for court decision. The trial court was therefore correct, after having
heard the evidence presented at trial on the subject, in issuing its ruling
determining the matter.
(Edwards v. Post Transp. Co.
(1991) 228 Cal. App. 3d 980 [bold emphasis added].)
Here,
Plaintiff alleges that:
33. Caustic soda is extremely
corrosive and causes severe skin burns and eye damage. Caustic soda is also
highly reactive, and reacts violently with many chemicals, including water, organic
acids, inorganic acids, oxidizing agents (e.g. peroxides), and metals. Due
to its reactive nature, caustic soda must be stored in an area that is cool,
dry, well-ventilated, separate from incompatible materials.
(Bold emphasis
added.)
Plaintiff
alleges that the exercise of utmost care, i.e., storing caustic soda in a cool,
well-ventilated area, separate from incompatible materials, will avoid the risk
of harm. (Complaint, ¶ 33.) Moreover, this would regularly be accomplished by
Defendant unloading the caustic soda into a specially-marked bulk tank located
at the premises (Id., ¶ 34.) The Complaint
thus appears to allege facts whereby the Court may find that the delivery of
caustic soda is not an ultrahazardous activity which justifies
the imposition of strict liability.
The
demurrer to the third cause of action is SUSTAINED with leave to amend.
4. Fifth
Cause of Action (Breach of Written Contract).
Defendant
argues that Plaintiff fails to identify an express contractual term that was
breached, nor does Plaintiff attach a copy of the contract or adequately plead its
legal effect.
The Complaint
alleges at ¶ 44 as follows:
44. On or around early May 2022,
Plaintiff Tri-Star entered into a contract with
Defendant Brenntag for the purchase
caustic soda (the “Contract”). The contract was memorialized in writing based
on the Invoices generated by Defendant Brenntag. Pursuant to the terms of the contract,
Brenntag agreed to deliver the caustic soda to Tri-Star’s premises, and unload
the caustic soda into the specifically designated storage container, for the
sum of $15,000
Under the circumstances
of this case, the allegation that Defendant agreed to unload the caustic soda
into the specifically designated storage container is a sufficient allegation
which pleads that contractual obligation according to legal effect. The exact
wording of such obligation can be ascertained through discovery,
Although older case law states that
“[i]f the action is based on an alleged breach of a written contract, the terms
must be set out verbatim in the body of the complaint or a copy of the written
instrument must be attached and incorporated by reference.” (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal. App. 3d 452,
458-459), the modern view is to permit a plaintiff to plead the legal effect of
a written contract rather than its precise language:
The Wise court stated, “where a written instrument is the foundation of
a cause of action, it may be pleaded in haec verba by attaching a copy as an
exhibit and incorporating it by proper reference.” (Wise, at p. 59.) It
is readily apparent that the Otworth court read more into that statement than
is actually there. The Wise court was simply stating one available method of
pleading the contract—it was not specifying the exclusive means of pleading a
contract. The correct rule is that “a plaintiff may plead the legal effect of
the contract rather than its precise language.” (Construction Protective
Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199 [126
Cal. Rptr. 2d 908, 57 P.3d 372].) Because it is apparent that the Otworth court
misread Wise , and because, in any event, we are bound by our Supreme
Court, we decline to follow Otworth. Accordingly, plaintiff's failure either to
attach or to set out verbatim the terms of the contract was not fatal to his
breach of contract cause of action.
(Miles v.
Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402.)
The
demurrer to the fifth cause of action is OVERRULED.
Motion To Strike
Meet and Confer
The Declaration
of Nicole Wentworth reflects that Defendant’s counsel satisfied the meet and
confer requirement set forth in Civ. Proc. Code, § 435.5.
Discussion
Defendant moves to strike the following portions from the Complaint:
1. Paragraph 31 of the Complaint (5:15-17): “The Employee’s actions herein mentioned were willful, wanton, and reckless, done in absolute disregard of the safety of the employees of Plaintiff Tri-Star. Based thereon, Tri-Star is entitled to recover punitive damages against Defendants.”
2. Paragraph 3 of the Prayer (8:15): “Punitive damages;”
Civil Code § 3294 permits the imposition of punitive damages for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (Bold emphasis added.)
Here, as discussed
above, Plaintiff alleges that the obligation to deliver caustic soda was
imposed by contract. As such, Plaintiff is not entitled to recover punitive damages
for the breach of this obligation. Moreover, Plaintiff has not pled that
Defendant acted with malice, oppression or fraud toward Plaintiff.
(c) As used in
this section, the following definitions shall apply:
(1) “Malice” means
conduct which is intended by the defendant to cause injury to the plaintiff or
despicable conduct which is carried on by the defendant with a willful and
conscious disregard of the rights or safety of others.
(2) “Oppression”
means despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person’s rights.
(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
(Civ. Code § 3294(c).)
" 'Despicable conduct' is
conduct which is so vile, base, contemptible, miserable, wretched or loathsome
that it would be looked down upon and despised by ordinary decent
people." (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App
4th 306, 331.)
However, the statute's reference to
"despicable" conduct seems to represent a new substantive limitation
on punitive damage awards. Used in its ordinary sense, the adjective
"despicable" is a powerful term that refers to circumstances that are
"base," "vile," or "contemptible." (4
(College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [bold emphasis and underlining added].)
As such, the motion to strike the punitive damage allegations at ¶ 31, Page 5:15-17 and Prayer, ¶ 3, Page 8;15 is GRANTED with leave to amend.
Plaintiff
is given 30 days’ leave to amend.