Judge: Gail Killefer, Case: 19STCV22431, Date: 2022-08-03 Tentative Ruling

Case Number: 19STCV22431    Hearing Date: August 3, 2022    Dept: 37

HEARING DATE:                 August 3, 2022   

CASE NUMBER:                  19STCV22431 

CASE NAME:                        Shawn Michael Dolmage v. Does 1 through 100 ¿

MOTION:                               Defendant’s Demurrer to Plaintiff’s Second Amended Complaint; Defendant’s Motion to Strike Portions of the Second Amended Complaint

MOVING PARTIES:             Defendant, Genan Sales & Logistics, Inc.

OPPOSING PARTY:             Plaintiff, Shawn Michael Dolmage    

OPPOSITION:                       June 21, 2022


TENTATIVE:                         Genan’s demurrer is sustained. Having sustained Defendant’s demurrer in its entirety, Defendant’s motion is moot.  Plaintiff is granted 30 days leave to amend from this date. Genan is to give notice.




This action arises out of Shawn Michael Dolmage’s (“Plaintiff”) employment as a synthetic turf installer for Beyond the Turf, Inc. (“Beyond”). According to the Complaint, Plaintiff worked installing synthetic turf fields throughout Los Angeles County, including at the University of California. Plaintiff alleges that throughout his employment with Beyond, he worked with and was exposed to chemicals that were manufactured and distributed by Doe Defendants 1-100, including silica sand, crumb rubber, butadiene rubber and other chemicals. As a result of this exposure, Plaintiff allegedly sustained injuries, including hypersensitivity pneumonitis in January 2018. 


Plaintiff’s Complaint alleges the following causes of action against Does 1 through 100: (1) negligence, (2) strict liability – failure to warn, (3) strict liability – design defect, (4) fraudulent concealment, (5) breach of implied warranties. 


On May 7, 2021, Plaintiff filed his First Amended Complaint. (“FAC”) The FAC alleges the same five causes of action. The FAC names the following as Defendants: (1) Tarkett Sports Canada, Inc., a Canadian entity, formerly known as FieldTurf Inc. (“Tarkett”); FieldTurf USA, Inc.; P.W. Gillibrand Co., Inc.; Thompson Building Materials, Inc.; CRM Co, LLC.  


On January 13, 2022, Plaintiff amended his FAC to add Doe Defendant who demurs today: Doe Defendant No. 9 Genan Sales & Logistics, Inc. (“Genan”).  


On June 3, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”) to include a separate cause of action, the sixth cause of action for Fraudulent Concealment against “Crumb Rubber Suppliers,” including Genan.


On June 10, 2022, Plaintiff submitted a Proof of Service of his SAC and corresponding papers affirming that Genan had been served through substitute service on June 10, 2022.


Defendant Genan now demurs to the sixth cause of action and moves to strike portions of the Complaint. Plaintiff opposes both motions.


Meet and Confer Efforts

Defendant Genan submits the declaration of their counsel, Rudolf Petrosyan (“Petrosyan”), to demonstrate compliance with statutory meet and confer requirements.

Petrosyan attests that on June 21, 2022, he “met and conferred over the phone” with Plaintiff’s counsel regarding the issues raised in this Demurrer. (Petrosyan Decl. ¶ 3.) Petrosyan further attests that the parties were “unable to reach an agreement” regarding the issues at hand in this present action. (Id.)

The court finds that Defendants’ meet and confer efforts prior to filing the instant demurrer and motion to strike are sufficient as required by CCP § 430.41.

Request for Judicial Notice

Defendant requests judicial notice of the following in support of their demurrer:

  1. Exhibit 1: Plaintiff’s Second Amended Complaint, filed in this matter on June 3, 2022.

Defendant’s request is granted. The existence and legal significance of these documents are proper matters for judicial notice. (Evidence Code § 452(c), (d), (h).)


I.                   Timing

A defendant may demur to a complaint “within 30 days after service of the complaint.” 

(CCP § 430.40(a).)  The SAC was served on Defendant Genan on June 10, 2022.


Defendant Genan did not file a demurrer until July 26, 2022, which was clearly untimely.  That would be a sufficient ground to overrule the demurrer (unlike the failure to properly meet and confer).  However, defendants could file a motion for judgment on the pleadings (which would also require a proper meet and confer), raising the same issues; therefore, the court will address the substantive arguments.

II.                Legal Authority


A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.  (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.”  (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)  The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .”  (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).)  “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”  (CCP § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.)  “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.”  (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.) 

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts.  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.”  (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)  “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.”  (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.)  In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) 

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.”  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

III.             Analysis


A.     Sixth Cause of Action: Fraudulent Concealment


The elements of a fraud cause of action are: (1) misrepresentation (false representation, concealment, or omission); (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Davis v. Southern California Edison Co. (2015) 236 Cal.App.4th 619.) Fraud must be pled in the complaint specifically. General and conclusory allegations are not sufficient. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 74; Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268.) Unlike most causes of action where the “the policy of liberal construction of the pleadings,” fraud requires particularity, that is, “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield, supra, 220 Cal.App.3d at 73; Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Every element of a fraud cause of action must be alleged both factually and specifically. (Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904; Cooper v. Equity General Insurance (1990) 219 Cal.App.3d 1252, 1262.) 


“[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612–613.)


Genan contends that the sixth cause of action is insufficiently pled with specific regards to the first and second elements of a claim for fraudulent concealment. (Demurrer, 4-5.) Genan points out that Plaintiff has failed to allege sufficient facts to show how Genan, as a supplier of “crumb rubber” owed Plaintiff a duty to disclose the alleged facts. (Id.) Genan further correctly point out that the SAC only makes general allegations against all Defendants and “does not contain any specific factual allegations demonstrating that each Defendant had knowledge of the material facts that it allegedly failed to disclose.” (Id.)


Genan, similar to previously demurring Defendants, further alleges that since it did not have any direct dealings with Plaintiff, as Plaintiff was not an employee for Genan.  Plaintiff fails to show the specific circumstances under which a duty to disclose arose to Plaintiff. (Id.) Specifically, Genan again point out that Plaintiff cites to the Hazard Communication Standard (“HCS”) in the SAC again as the basis for Defendants’ duty to disclose, but fails to allege sufficient facts to show how duties under HCS arise here, as “the HCS requires only those manufacturers and distributors disclose certain required information to employers.” (Id.)


Genan further contends that “there are no allegations that [Plaintiff] personally purchased any chemical products as part of his employment and there is nothing... to indicate that any transaction took place between Genan and [Plaintiff].” (Demurrer, 6-7.) Genan lastly contends that the SAC “merely contains broad allegations levied at all the defendants in this case, all of which were unnamed at the time the action was filed.” (Demurrer, 8.) Genan contends that Plaintiff “simply recharacterizes their failure to warn and design defect allegations as ‘concealment,’ and then concludes that such conduct was done fraudulently,” to suggest Plaintiff seeks to create a strict product-liability regime within the sixth cause of action. (Demurrer, 8-9.)


In opposition to the demurrer, Plaintiff again cites to Jones v. ConocoPhillips (2011) 198 Cal.App.4th 1187 to contend that specificity requirements of fraud claims have been eased in concealment cases. (Opposition, 1.) Plaintiff again fails to point to any supporting authority for his incredibly broad contention that “the heightened pleading requirements for fraud do not apply to fraudulent concealment.” (Id.) The court notes Plaintiff’s failure to explain or elaborate this contention any further, and instead understands Plaintiff to ask this court to sift through precedent to determine whether the circumstances here are analogous to those in Jones.

In Jones, the court considered that the amended complaint did provide “adequate notice” to the non-production defendants and that “[e]ach defendant is therefore on notice that it allegedly concealed or failed to disclose the toxic properties of the product it sold to [employer] during the course of [Plaintiff’s] employment.” (Jones, supra, 198 Cal.App.4th at 1200-1.) While Plaintiff continues to suggest that the heightened pleading requirement has been “relaxed,” this court remains unconvinced in light of Plaintiff’s failure to point to language in supporting authority. (Opp., 2-3.)

Plaintiff further alleges that the SAC has “alleged each and every element for fraudulent concealment.” (Opp., 2.) Plaintiff cites to ¶¶ 247-251 and ¶ 263 of the SAC to show Plaintiff has alleged Defendants’ awareness of the alleged material facts and Defendants’ concealment. (Opp., 3-4.) Namely, Plaintiff points to paragraphs alleging Defendants could have printed warning and safe use notices on the bags holding the product, but failed to do so, as the “concealment” at issue. (Opp., 4.)

Plaintiff then contends that the SAC has alleged sufficient facts to show Defendants were obligated to disclose the alleged information under: (1) a regulatory duty under the HCS, (2) several common law duties to disclose, and (3) a duty to disclose based on Defendant’s role in supplying “dangerous products.” (Opp., 5-12.) These arguments are not persuasive.

First, Plaintiff’s arguments regarding a regulatory duty under the HCS are unpersuasive as the HVS mandates disclosure to employers and the producer’s employees. Plaintiff has not shown how he was owed a duty under the HCS.

Second, Plaintiff also fails to show how a common law duty to disclose exists here.  His reliance on County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292 is also misplaced as the court there specifically found nuisance liability for lead paint manufacturers as a result of their “intentional promotion of the use of lead paint on the interiors of buildings with knowledge of the public health hazard that this use would create.” (County of Santa Clara, supra, 137 Cal.App.4th at 310.)

Third, Plaintiff again relies on Jones to infer a duty onto Genan, and other Defendants, due to their “superior knowledge.” (Opp., 7-8.) Plaintiff points to Jones in support of his contention that Defendants’ “exclusive knowledge of the hazards of their products” thus created a duty to disclose. (Id.) However, Jones found liability “where the defendant alone has knowledge of the material facts which are not accessible to the plaintiff.” (Id.; citing Jones, supra, 198 Cal.App.4th at 1199-1200.) While Plaintiff in ¶ 262 of the SAC has alleged “Defendants alone had knowledge of material facts, to wit, the toxic hazards of their products, which were not known by Plaintiff or readily accessible by Plaintiff,” a “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].) As such, the conclusory language regarding the defendants’ collective language cannot be accepted and deemed sufficiently pled. Here, Plaintiff has failed to point out how each Defendant had exclusive knowledge, outside of Plaintiff’s actual employer.

Fourth, Plaintiff then seeks to infer a duty by alleging that Defendant made partial disclosures, where a duty to disclose arose thereafter. (Opp., 8-9.) However, the paragraphs cited by Plaintiff make no mention of Genan or any of Genan’s alleged partial disclosures.

Lastly, Plaintiff seeks to create a duty by alleging that a “special relationship” exists between Defendant and himself. (Opp., 9-10.) Plaintiff seeks to manufacture such a special relationship by pointing to case law finding privity in breach of implied warranty matters, which is not the relevant inquiry here. (Id.) As such, the court disagrees with Plaintiff’s contentions.

Thus, the court finds the sixth cause of action insufficiently pled. Plaintiff’s cited paragraphs of the SAC only contain conclusory language regarding the knowledge of Defendants generally, the general conduct of all Defendants, and further conclude by imposing obligations on all Defendants generally based on alternate theories of duty, without sufficient support for these contentions.

For these reasons, Genan’s demurrer to the sixth cause of action is sustained.




Genan’s demurrer is sustained. Plaintiff is granted 30 days leave to amend from this date. Defendants are to give notice.



Having sustained the demurrer, the court finds Genan’s motion to strike moot.