Judge: Gail Killefer, Case: 19STCV22431, Date: 2023-01-13 Tentative Ruling
Case Number: 19STCV22431 Hearing Date: January 13, 2023 Dept: 37
HEARING DATE: January 13, 2023
CASE NUMBER: 19STCV22431
CASE NAME: Shawn Michael Dolmage v. Does 1 through 100
¿
TRIAL DATE: Not
set.
PROOF OF SERVICE: OK
MOTION: Defendants’
Demurrer to Plaintiff’s Third Amended Complaint; Defendants’ Motion to Strike
Portions of the Third Amended Complaint
MOVING PARTIES: Defendants,
Tarkett and FieldTurf USA (“Moving Defendants”)
OPPOSING PARTY: Plaintiff, Robin Dolmage, as Guardian ad litem of Dash
Dolmage, and Successor-in-Interest of Decedent Plaintiff
OPPOSITION: December
2, 2022
REPLY: December
8, 2022.
TENTATIVE: Moving Defendants’
demurrer is sustained, without leave to amend. Moving Defendants’ motion to
strike is also granted. Moving Defendants are to give notice.
Background
This
action arises out of the employment of Shawn Michael Dolmage (“Plaintiff”) 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 No. 9 Genan
Sales & Logistics, Inc. (“Genan”).
On June
3, 2022, Plaintiff filed the Second Amended Complaint (“SAC”) to include a
separate cause of action, the sixth cause of action for Fraudulent Concealment
against “Crumb Rubber Suppliers” Defendants.
On August
3, 2022, the court granted Genan’s demurrer to the SAC and granted Plaintiff
leave to amend.
On
September 30, 2022, Robin Dolmage, as Guardian ad litem of Dash Dolmage, and
Successor-in-Interest of Decedent Plaintiff filed the operative Third Amended
Complaint (“TAC”). The TAC alleges causes of action for: (1) Negligence—against
all Defendants; (2) strict liability – failure to warn against all Defendants;
(3) strict liability – design defect against all Defendants; (4) fraudulent
concealment against Defendants Tarkett, Fieldturf USA, Inc.; (5) fraudulent
concealment against Defendants P.W. Gillibrand Co., Pioneer Sands LLC, RW
Sidley, Romall Industries, Target Technologies, The Quikcrete Companies LLC,
and Thompson Building Materials; (6) fraudulent concealment against Defendants
BAS, CRM Co., CRM of America, Genan, Liberty Tire, and West Coast Rubber; and
(7) breach of implied warranties against all Defendants.
Defendants Tarkett and FieldTurf USA (“Moving
Defendants”) now demur to the fourth cause of action and moves to strike
portions of the TAC. Plaintiff opposes both motions.
DEMURRER
TO FOURTH CAUSE OF ACTION
Meet and Confer Efforts
Moving Defendants submit the declaration of their
counsel, Seoyoung Mia Ahn (“Ahn”), to demonstrate compliance with statutory
meet and confer requirements.
Ahn attests that on October 14, 2022, counsel for
Tarkett and Plaintiff corresponded through email regarding the issues raised in
this Demurrer, and Plaintiff’s counsel affirmed the TAC adequately stated the
causes of action against Tarkett. (Ahn Decl. ¶ 4.)
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.
Discussion
I.
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.)
II.
Analysis
A.
Fourth 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.)
Moving Defendants
contend that the fourth cause of action is insufficiently pled with specificity
with regards to the first and second elements of a claim for fraudulent
concealment. (Demurrer, 4-5.) Moving Defendants correctly contend the fourth
cause of action groups together the two separate entity Defendants,
“denying Defendants the ability to discern ‘what’
exactly Plaintiff is alleging against ‘who,’ and ‘how,’ or ‘when’ under what
circumstances Defendants took actions to conceal or suppress such
information... Plaintiff not only improperly groups Tarkett Sports Canada Inc.
and FieldTurf USA, Inc. under one general umbrella, but also fails to
distinguish the two from all other defendants in this suit, as all defendants
are alleged, in one way or another, to be ‘importers, producers, and
distributors of chemical products.’” (Id.)
Moving Defendants
also explain Defendant Tarkett is a Canadian entity and Defendant FieldTurf is
a Florida Corporation. Grouping these
two Defendants “under one general umbrella” “fails to distinguish” these two
Defendants “from all other defendants in this suit...” (Dem., 5.) Moving
Defendants thereafter contend the TAC fails to allege the circumstances wherein
Defendants had knowledge of the alleged concealed and material facts, how they
concealed such information from Plaintiff, and how Defendants had a duty to
disclose such information to Plaintiff. (Dem., 5-6; FAC ¶¶161-188.)
Moving Defendants
also allege that since they did not have any direct dealings with Plaintiff, as
Plaintiff was not an employee for either Defendant, Plaintiff fails to show the
specific circumstances under which a duty to disclose arose to Plaintiff. (Dem.,
8.)
“With respect to any relationship between Tarkett
Sports Canada Inc. and Decedent, on the one hand, and FieldTurf USA, Inc. and
Decedent on the other hand, Plaintiff alleges in conclusory fashion only that
“Defendants” had a transactional relationship with Beyond the Turf, Inc.,
Decedent’s employer.” (Id.; FAC ¶167.)
Absent such a
transactional or fiduciary relationship, Moving Defendants contend any
imposition of liability based upon an alleged knowledge of the toxic properties
of the products are not supported by precedent. (Dem., 9-10; citing Goodman
v. Kennedy (1976) 18 Cal.3d 335, 347; Shin v. Kong (2000) 80
Cal.App.4th 498, 500.)
Moving Defendants
argue that Plaintiff’s reliance on the Hazard Communication Standard (“HCS”) in
the TAC as the basis for Defendants’ duty to disclose fails, as the TAC fails
to allege sufficient facts to show how duties under HCS arise here: “the HCS
requires only those manufacturers and distributors disclose certain required
information to employers, who are then to forward the information to their
respective employees.” (Id.)
Moving Defendants
lastly contend that newly added allegations regarding their knowledge of the
hazardous effects of these products still do not satisfy the pleading
requirements at this demurrer stage, as the TAC still fails to show a duty to
disclose to Plaintiff. (Dem., 10-11.)
In opposition to the demurrer, Plaintiff cites to Jones
v. ConocoPhillips (2011) 198 Cal.App.4th 1187 to contend a duty to inform
arises when a defendant maintains exclusive control over facts not available to
plaintiff. (Opposition, 1, 13-14.) Plaintiff contends the TAC alleges several
methods of establishing a duty to disclose for Moving Defendants. (Opp., 7-8.)
First, Plaintiff points to the HCS as establishing a
regulatory/statutory duty to disclose, again contending there is a special duty
to disclose by the manufacturers of hazardous chemicals to “workers who use”
such hazardous chemicals. (Opp., 10; citing Jones, supra, at 1200.) 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.)
Second, Plaintiff again contends common law duty to
disclose exists here. (Opp., 10-11.) However, Plaintiff’s reliance on County of
Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292 is 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 cites Peterson
v. Lamb Lumber Co. (1960) 54 Cal.2d 339 to argue precedent has found
privity in dealing with an inherently dangerous product:
“an employee who in the course
of his employment is injured by defective products purchased by his employer,
is in privity with the manufacturers and suppliers of the products, such that a
‘transaction’ exists between the worker and the supplier of the defective
product causing the injury.” (Opp., 12.)
However, the cited section of
the Peterson holding referenced by Plaintiff makes clear that this
authority is unhelpful in supporting Plaintiff’s contentions. (Opp., 12-13.)
Specifically, the Peterson holding asks this inquiry of imposing
liability under warranty and negligence claims, not under a fraud cause of
action with its heightened pleading standard. (Peterson, supra, 54
Cal.2d at 347-349.) Thus, Plaintiff asks this court to use language from the Peterson
court’s analysis of a negligence claim to establish a central prong of one
element of a fraud cause of action—namely, to understand the imposition of
negligence and warranty liability as an implicit establishing of a
transactional relationship such that a duty to disclose can exist. Plaintiff
again 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. The court cannot
take such a tenuous position.
Fourth, Plaintiff relies on Jones
to impose a duty onto Moving Defendants based on their “exclusive knowledge.”
(Opp., 13-14.) Plaintiff relies on 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 paragraph 166 of the TAC alleges
“Defendants alone had knowledge of material facts, to wit, the toxic hazards of
their products, which were not accessible to Decedent” 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.
Thus, the court finds the fourth cause of action insufficiently
pled. Plaintiff’s cited paragraphs of the TAC 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,
Moving Defendants’ demurrer to the fourth cause of action is sustained.
Conclusion
Moving Defendants’
demurrer is sustained, without leave to amend. Defendants are to give notice.
MOTION
TO STRIKE PORTIONS OF COMPLAINT
Moving
Defendants move to strike the following from the TAC:
Having
sustained Moving Defendants’ demurrer to the Fourth Cause of Action, requests 4
and 5 are moot. Therefore, the court will now address requests 1 through 3.
Discussion
CCP § 436
provides: “the court may, upon a motion made pursuant to Section 435, or at any
time in its discretion, and upon terms it deems proper: (a) Strike out any
irrelevant, false, or improper matter inserted in any pleading. (b) Strike out
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.”¿ The grounds for a
motion to strike must “appear on the face of the challenged pleading or from
any matter of which the court is required to take judicial notice.”¿ (CCP §
437.)¿¿¿
Motions
to strike are used to challenge defects in the pleadings not subject to
demurrer.¿ (Ferraro v.¿Camarlinghi¿(2008) 161 Cal.App.4th 509, 529
[recognizing that an objection that the complaint failed to state facts
sufficient to constitute a cause of action is ground for a general demurrer,
not a motion to strike.].)¿ Any party may move to strike the whole or any part
of a pleading within the time allotted to respond to the pleading.¿ (CCP § 435(b)(1).)¿
The allegations of a complaint “must be liberally construed, with a view to
substantial justice between the parties.”¿ (CCP § 452.)¿ The court “read[s]
allegations of a pleading subject to a motion to strike as a whole, all parts
in their context, and assume[s] their truth.”¿ (Clauson v. Sup. Ct.¿(1998)
67 Cal.App.4th 1253, 1255.)
Plaintiff
may recover damages “in an action from breach “not arising from contract” if
Plaintiff proves by clear and convincing evidence that Defendant acted with
malice, oppression, or fraud. (Civ. Code § 3294(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.”¿ (Civ. Code § 3294(c)(1).)¿
“Oppression’ means despicable conduct that subjects a person to cruel and unjust
hardship in conscious disregard of that person's rights.”¿ (Civ. Code § 3294(c)(2).)¿
“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)(3).)¿¿A¿plaintiff’s
“conclusory characterization of defendant’s conduct as intentional, willful and
fraudulent is a patently insufficient statement of ‘oppression, fraud,¿or
malice, express or implied,¿within the meaning of section 3294.”¿ (Brousseau
v. Jarrett¿(1977) 73 Cal.App.3d 864.)¿
Moving
Defendants contend that the TAC’s punitive damages allegations must be stricken
because the Plaintiff is unable to state a fraud cause of action or otherwise
allege oppression, fraud or malice sufficient to support a claim for punitive
damages under Civil Code § 3294. (Motion, 4-5.) According to Moving Defendants,
the allegations do not include specific factual claims to establish malice or
oppression, are conclusory, and do not show that Defendants acted with any
oppression and/or malice. (Motion, 6.) Moving Defendants contend the fraud
allegations underpinning Plaintiff’s claims for punitive damages are
insufficient, and therefore Plaintiff cannot show a claim for punitive damages.
(Id.)
In
opposition, Plaintiff contends the allegations of the TAC are adequate in
supporting a claim for punitive damages at the demurrer stage. (Opp., 5-8.) Plaintiff
argues they are not required to prove entitlement to such damages at this
stage; rather, as California allows the award of punitive damages “even if
there are no allegations or prayer for punitive damages in the complaint,” the
prayer for punitive damages should therefore not be stricken unnecessarily.
(Opp., 10; citing Forte v. Nolfi (1972) 25 Cal.App.3d 656, 687; Oakes
v. McCarthy Co. (1968) 267 Cal.App.2d 231.)
Liberally
construing the allegations of the TAC in favor of Plaintiff, the court finds
that the TAC does not plead sufficient allegations to support a claim for
punitive damages. As discussed above with regard to the demurrer, the TAC does
not point to specific factual allegations to plead a claim for a fraud cause of
action against Moving Defendants. As defined in Brousseau, mere
conclusory claims regarding malicious and/or oppressive conduct is not
sufficient to support a claim for punitive damages. Therefore, this court finds
the allegations to be insufficiently pled for the same reasoning as the court
found the fourth cause of action to be insufficiently pled earlier.
For these
reasons, Moving Defendants’ motion is granted.
Conclusion
Moving Defendants’
motion is granted. Moving Defendants are to give notice.