Judge: David Sotelo, Case: 22STCV19207, Date: 2022-12-08 Tentative Ruling
Case Number: 22STCV19207 Hearing Date: December 8, 2022 Dept: 40
MOVING PARTY: Defendant Rush
Resources, LLC [Doe 81].
Plaintiff Gresham Lombard sues, among others, Defendant Rush
Resources, LLC (Doe 81), pursuant to claims of (1) Negligence, (2) Strict
Liability – Failure to Warn, (3) Strict Liability – Design Defect, (4)
Fraudulent Concealment, and (5) Breach of Implied Warranties on the alleged
grounds that, from about 1990 through the early 2000s, Plaintiff Lombard worked
at oil refineries and chemical plants in California doing shutdowns and
turnarounds, painting, maintenance, construction, and other work, with his exposure
to crude oil, fuels, and petroleum hydrocarbon solvents therethrough—all containing
significant concentrations of benzene—causing serious injuries to Lombard’s
internal organs, including myelodysplastic syndrome, necessitating
hospitalization, surgeries, chemotherapy, and other treatments to Lombard, with
a bone marrow transplantation now being medically necessary as lifesaving
treatment.
The Complaint alleges only two claims against Rush Resources:
(2) Negligence and (5) Fraudulent Concealment. (Rush was named as Doe 81 on
June 16, 2022.)
Rush Resources’ now Demurrers to Plaintiff’s Complaint for
Toxic Injuries.
Per Defendant Rush Resources’ request, the Court TAKES
Judicial Notice of (A) Rush Resources’ Certificate of Formation, filed with the
Office of the Secretary of State of Texas, Corporations Section, on October 22,
2013, (B) Application to Register a Foreign Limited Liability Company (LLC),
filed with the Secretary of State, State of California, on April 26, 2021, and
(C) Texas Franchise Tax Public Information Report for Rush Resources, LLC,
first filed with the Comptroller’s Office for the State of Texas on May 10,
2016. (Demurrer, RJN, Exs. A-C; Evid. Code §§ 452, subds. (c), (g), 453.)
Second and Fifth Causes of Action, Negligence and Fraudulent
Concealment [Rush Resources Only]: SUSTAINED, With Leave.
In relevant part, Rush Resources demurs to Plaintiffs Second
and Fifth causes of action for Negligence and Fraudulent Concealment alleged
against it on the grounds that Rush Resources was formed subsequent to the allegations
made in the Complaint, for which reason Rush cannot be liable for the alleged
harms to Plaintiff. (Demurrer, 5:7-24.)
Rush Resources points to its creation in Texas in 2013 and initial
registration to do business in California in 2016. (Demurrer, 5:16-17;
Demurrer, RJN, Ex. A [formation documents showing Rush Resources was not
established before October 22, 2013 in Texas], Ex. B [Application to Register
as Foreign LLC in California dated April 26, 2021].) Rush Resources then points
to paragraph 22 of the Complaint, which qualifies Plaintiff Lombard’s injuries as
occurring during his employment with the relevant Defendants “[f]rom about 1990
through the early 2000s.” (Demurrer, 5:8-12; Complaint, ¶ 22.)
Rush Resources argues that because it “did not exist at the
time Plaintiff alleges he worked at the refineries where his alleged exposure
to benzene-containing petrochemicals occurred,” “the Court must sustain Rush
Resources’s demurrer to Plaintiff’s complaint against it … [given that] Rusch
[sic] cannot be liable for any purported tortious conduct that took place
before the company came into existence.” (Demurrer, 5:17-22.)
Defendant Rush Resources, LLC’s Demurrer to Plaintiff’s
Complaint for Toxic Injuries is SUSTAINED as to the Second and Fifth causes of
action.