Judge: Daniel S. Murphy, Case: 24STCV20969, Date: 2024-11-04 Tentative Ruling

Case Number: 24STCV20969    Hearing Date: November 4, 2024    Dept: 32

BACKGROUND

            On August 19, 2024, Plaintiff Julio Gomez Carrero filed this action against various defendants, asserting (1) negligence, (2) products liability – failure to warn, (3) products liability – design defect, (4) fraudulent concealment, and (5) breach of implied warranties.     

According to the complaint, from 2007 to 2024, Plaintiff worked as a cutter, fabricator and/or installer of Defendants’ stone products. (FAC ¶¶ 63-72.) As a result of this work, Plaintiff came into contact with “inherently hazardous stone products manufactured, imported, supplied, distributed, contracted, and/or brokered, by the named Defendants and Does 1-100.” (Id., ¶ 73.) Specifically, Plaintiff was “exposed to and inhaled stone dust containing silica and other toxins and carcinogens.” (Ibid.) Plaintiff allegedly developed lung disease and is at increased risk of developing other silica-related diseases. (Id., ¶ 74.) Plaintiff alleges that he “has had to receive substantial medical treatment, including hospitalizations and surgeries, including a lung biopsy and a possible future lung transplantation.” (Id., ¶ 75.)

            On October 8, 2024, Defendant S&E Stone, Inc. filed the instant demurrer to the fourth cause of action and motion to strike punitive damages.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading. (Code Civ. Proc., § 435, subd. (b).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike (1) any irrelevant, false, or improper matter inserted in any pleading and (2) all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (See Lewis Decl.)

DISCUSSION

I. Demurrer

            a. Elements of Fraud

            “The elements of fraud that will give rise to a tort action for deceit are: ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974, quoting Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) A fraudulent concealment claim is actionable in toxic exposure cases. (See Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1198-1200.)

            Here, the complaint alleges that “Defendants fraudulently concealed from Plaintiff, JULIO GOMEZ CARRERO, that their stone products were toxic and that they contained silica, metals and other toxins that cause fibrotic lung disease upon inhalation.” (Compl. ¶ 85.) Plaintiff alleges that due to this concealment, he unknowingly inhaled toxic particles through the course of his work, leading to lung disease. (Id., ¶ 84.) Plaintiff alleges that “Defendants were aware of the toxic and fibrogenic nature of their stone products and that exposure to them causes silicosis.” (Id., ¶ 1301.) Defendants allegedly concealed these hazards “so that [Plaintiff] would use Defendants' stone products in his work.” (Id., ¶ 1307.) Plaintiff alleges that he “purchased and/or received toxic stone products from Defendants.” (Id., ¶ 1306.)

            These are allegations of ultimate fact which facially satisfy the elements of fraudulent concealment.   

b. Specificity

Defendant argues that Plaintiff has failed to plead fraud with the requisite specificity. However, the rule of specificity “is intended to apply to affirmative misrepresentations.” (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) “[I]t is harder to apply this rule to a case of simple nondisclosure. How does one show ‘how’ and ‘by what means’ something didn't happen, or ‘when’ it never happened, or ‘where’ it never happened?” (Ibid.) Plaintiff cannot provide specific details on nonexistent statements. For pleading purposes, Plaintiff has sufficiently alleged that Defendant failed to disclose the hazardous nature of its stone products, thereby inducing Plaintiff to purchase or use Defendants’ products, leading to his injuries. (Compl. ¶¶ 1297-1329.)

Plaintiff is entitled to attribute the same fraudulent conduct to every defendant. The fourth cause of action is asserted against all defendants, which clearly includes moving defendant S&E Stone, Inc. Although S&E is not expressly named in each allegation, it has been sufficiently notified of the nature of the claims against it. Therefore, the fraud claim does not fail for lack of specificity.  

c. Duty to Disclose

“There are four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 311, internal citations omitted.) In the absence of a fiduciary relationship, the latter three circumstances still “presuppose the existence of some other relationship between the plaintiff and defendant.” (Ibid.) “[S]uch a relationship can only come into being as a result of some sort of transaction between the parties . . . from direct dealings between the plaintiff and the defendant; it cannot arise between the defendant and the public at large.” (Id. at pp. 311-312.)    

Defendant argues that Plaintiff has failed to allege the requisite special relationship giving rise to a duty to disclose. The court in Bigler-Engler acknowledged that a duty to disclose may arise in relationships such as “seller and buyer.” (Bigler-Engler, supra, 7 Cal.App.5th at p. 311.) Here, Plaintiff alleges that he “purchased and/or received toxic stone products from Defendants.” (Compl. ¶ 1306.) For pleading purposes, this supports a transactional relationship between Plaintiff and Defendant. (See also Arnold v. Dow Chemical Co. (2001) 91 Cal.App.4th 698, 720-21 [privity may exist between the seller of a hazardous product and the intended ultimate user, even if that user did not directly purchase the product].) Plaintiff is not merely a member of the general public. Rather, Plaintiff was exposed to silica as a result of his occupation, which specifically involved the purchase or usage of silica-contaminated stone from Defendant. Therefore, the complaint sufficiently alleges a transactional relationship giving rise to a duty to disclose.

II. Motion to Strike

            “In an action 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.” (Civ. Code, § 3294, subd. (a).) “‘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.” (Id., subd. (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id., subd. (c)(2).) Fraud is “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.” (Id., subd. (c)(3).)

            As discussed above, Plaintiff has adequately pled fraudulent concealment. Fraud is an independent basis for punitive damages. Additionally, even if the conduct did not constitute fraud, knowingly selling toxic products without disclosing their hazards may be considered a conscious disregard of Plaintiff’s rights and safety, as well as imposing unjust hardship. Again, Plaintiff is entitled to attribute the same conduct to each defendant. Moving defendant S&E has been sufficiently placed on notice of the claims against it. Therefore, the complaint sufficiently pleads a basis for punitive damages.       

CONCLUSION

            Defendant S&E Stone, Inc.’s demurrer is OVERRULED. Defendant’s motion to strike is DENIED.