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
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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.
Background
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.
DEMURRER
TO SIXTH CAUSE OF ACTION
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:
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).)
Discussion
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.
Conclusion
Genan’s demurrer
is sustained. Plaintiff is granted 30 days leave to amend from this date. Defendants
are to give notice.
MOTION
TO STRIKE PORTIONS OF COMPLAINT
Having sustained the demurrer,
the court finds Genan’s motion to strike moot.