Judge Gail Killefer, Case Number: 19STCV22431, Date: 2023-08-14 Tentative Ruling

TENTATIVE: Defendant P.W. Gillibrand Co. Inc.’s Motion to Strike is granted in part. Defendant’s P.W. Gillibrand Co. Inc.’s request to strike Paragraphs 94, 113, and 345 and Paragraph 7 in the Prayer for Relief is denied and granted as Paragraphs 76, 92, 111, 343, 427, and Paragraph 1 in the Prayer for Relief.

This action arises out of the employment of Shawn Michael Dolmage’s (“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. The Complaint alleges that throughout his employment with Beyond, Plaintiff 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.¿

The 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.; 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.

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 Sales & Logistics, Inc.’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 a 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.

On January 13, 2023, Defendants Trakett Sports Cadan Inc. (“Trakket”) and Defendant FieldTurf Inc. (“FieldTruf”) demurrer to the fourth cause of action in the TAC was sustained with leave to amend.

On March 1, 2023, Robin Dolmage, as Guardian ad litem of Dash Dolmage, and Successor-in-Interest of Decedent Plaintiff filed the operative Fourth Amended Complaint (“4AC”). The 4AC alleges eight causes of action for:

5) Fraudulent Concealment against Defendant Tarkett Sports Canada Inc. (formerly known as FieldTurf Inc.)

6) Fraudulent Concealment against P.W. Gillibrand Co., Pioneer Sands LLC, RW Sidley, Romall Industries, Target Technologies, The Quikcrete Companies LLC, and Thompson Building Materials;

7) Fraudulent Concealment against Defendants BAS, Recycling, Inc.; CRM Co. LLC; CRM of America, LLC; Genan Sales & Logistics, Inc.; Liberty Tire Recycling LLC; and West Coast Rubber Recycling; and

On July 12, 2023, Defendant P.W. Gillibrand Co. Inc. (“PWG”) filed a demurrer with a motion to strike the 4AC. On October 24, 2023, the court allowed Plaintiff to submit a supplemental briefing in opposition to Defendant PWG’s Motion to Strike.

The Court may take judicial notice of records of any court of record of the United States. (Evid. Code, § 452(d)(2).) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

1) A true and correct copy of Plaintiffs’ FOURTH AMENDED COMPLAINT FOR TOXIC INJURIES attached hereto as Exhibit 1.

Defendant PWG makes a supplemental request for judicial notice of the following:

1) A true and correct copy of the Notice of Rulings Made by the Court on August 14, 2023, Re Defendants Demurrers and Motions to Strike is attached as Exhibit 1; and

2) A true and correct copy of the Court’s tentative ruling on HSB Holdings, Inc.’s Motions to Strike is attached as Exhibit 2.

Discussion

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 thereof. (CCP, § 435(b)(1); Cal. Rules of Court, rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP, § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿

Defendant PWG requests that the court strike Plaintiff’s claims for punitive damages and any references to Pain, Suffering, and Disfigurement.

To state a claim for punitive damages under Civ. Code § 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Id.) When the defendant is a¿corporation, “the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the¿corporation.” (Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 164; see Civ. Code § 3294(b).)

“Malice” is defined in Civ. Code § 3294 (c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294(c)(2).) The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 891.) 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).)

The court has overruled PWG’s demurrer to the sixth cause of action and Plaintiff’s negligence and strict liability claims remain viable. According, Plaintiff is entitled to seek punitive damages.

The 4AC sufficiently alleges that the failure of Defendants, including PWG, to warn about the hazardous chemical in their sand and failure to provide adequate instructions for its safe handling caused the Decedent to suffer “hypersensitivity pneumonitis, pulmonary fibrosis, silicosis, and interstitial lung disease, as well as other related and consequential injuries, from which he died on July 8, 2022.” (4AC ¶¶ 66, 94.) Defendant PWG’s concealment was “despicable, malicious, oppressive, and perpetrated in conscious disregard of the rights and safety of Decedent” and was ratified by PWG’s corporate office and managers. (4AC ¶¶ 344, 345.)

A claim for punitive damages may be supported by allegations that the conduct “constitutes conscious disregard of the rights or safety of others” or is malicious because “a party intentionally performs an act from which he knows, or should know, it is highly probable harm will result.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 907.) The 4AC sufficiently alleges that the Hazard Communication Standard and Labor Code § 6390.5 imposed a duty on all Defendants, including PWG, to warn about the hazardous chemicals in their products and Defendants breached this duty. (4AC ¶ 55.) Therefore, the 4AC sufficiently states that PWG acted with conscious disregard for the safety of the Decedent in failing to provide a warning and that said conduct was ratified by PWG’s corporate officers. (4AC ¶¶ 344, 345.)

This is sufficient to sustain a claim for punitive damages against PWG. At the pleading stage, the court does not consider whether Plaintiff will be able to prove her claim for punitive damages, only that the pleading alleges sufficient facts to show malice, oppression, or fraud by Defendants’ managing agent or officers and directors.

Defendant PWG’s request to strike Plaintiff’s Prayer for punitive damages and references to punitive damages in Paragraphs 94, 113, and 345 is denied.

(a) In an action or proceeding by a decedent's personal representative or successor in interest on the decedent's cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.

(b) Notwithstanding subdivision (a), in an action or proceeding by a decedent's personal representative or successor in interest on the decedent's cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.

In other words, upon the decedent’s death, the personal representative or successor in interest may not recover damages for the decedent’s pain, suffering, or disfigurement unless “the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.” (CCP, § 377.34; see also 4 Witkin, Summary of California Law (11th ed. 2022), Wills §560 [“In an action by the personal representative or successor in interest on the decedent's cause of action, recoverable damages are limited to loss or damage that the decedent sustained or incurred before death, including penalties or punitive or exemplary damages the decedent would have been entitled to recover had the decedent lived. Recoverable damages do not include damages for pain, suffering, or disfigurement.”] When the Legislature enacted CPP § 377.34, “[t]he Legislature left intact the ban against an estate's recovery of damages for the deceased plaintiff's ‘pain, suffering, or disfigurement.’” (See County of Los Angeles v. Superior Court (1999) 21 Cal.4th 292, 296.)

In 2021, Senate Bill 447, amended CCP § 377.34 by adding subdivisions (b) through (f). Here, Plaintiff fails to show that this action falls within an exception outlined in subdivision (b) of CCP § 377.34, such that the Decedent’s survivor in interest can recover damages for the Decedent’s pain, suffering, or disfigurement. Therefore, the court agrees that because this action was filed in 2019 and not on or after January 01, 2022, Plaintiff cannot recover for the Decedent’s pain, suffering, and disfigurement. (See CCP § 377.34.)

In its supplemental brief[2], Plaintiff alleges that while this action was originally filed on June 27, 2019, by the Decedent, when the complaint was amended after January 1, 2022, to add the successor in interest, it constituted the filing of an action or proceeding under CCP § 377.34(b). In other words, CCP § 377.34(b) does not require the filing of a “new” action or proceeding, merely the filing of “an action” or “proceeding” such that Plaintiff being substituted as a successor in interest, constitutes an action or proceeding that was filed “on or after January 1, 2022.” (CCP, § 377.34(b).)

“A survivor claim is also a statutory cause of action; however, unlike a wrongful death claim, the survival statutes do not create a cause of action but merely prevent the abatement of the decedent's cause of action and provide for its enforcement by the decedent's personal representative or successor in interest.” (San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1553 [italics original]; see CCP §§ 377.20, 377.30.) “Section 377.11 provides that a successor in interest is a person who succeeds to a particular cause of action....’ Section 377.30 provides that where a ‘cause of action ... passes to the decedent's successor in interest,’ under certain circumstances, the successor in interest may commence the cause of action. Thus, a ‘successor in interest’ has the authority to act with respect to the particular cause or causes of action to which he succeeds, rather than the entirety of the decedent's estate.” (Exarhos v. Exarhos (2008) 159 Cal.App.4th 898, 908–909.)

Based on the above, Plaintiff did not file a new action pursuant to CCP § 22[3] when she was substituted as the Decedent’s successor in interest but instead asserted a statutory cause of action that prevented the abatement of the Decedent’s claims. Pursuant to CCP § 583.10(a), the definition of “Action” “includes an action commenced by cross-complaint or other pleading that asserts a cause of action or claim for relief.” “Generally an action is defined as a proceeding wherein one asserts a right or seeks redress for a wrong. (§ 22.) An action is usually deemed to commence upon the filing of a complaint (§§ 350 & 411.10) and remains pending until the judgment is final. (§ 1049.) An action is not limited to the complaint but refers to the entire judicial proceeding at least through judgment and is generally considered synonymous with ‘suit.’ [Citation.] Action is not the same as cause of action. While ‘action’ refers to the judicial remedy to enforce an obligation, ‘cause of action’ refers to the obligation itself. [Citation.]” (Nassif v. Municipal Court (1989) 214 Cal.App.3d 1294, 1298.)

Accordingly, when Plaintiff was substituted as the Decedent’s successor in interest, Plaintiff did not file an “action or proceeding” as required by CCP § 377.34 but was instead asserting a “cause of action” rather than filing an “action or proceeding.” Plaintiff fails to cite case law that shows that amending a complaint to add a successor in interest commences an action and is not the continuation of the Decedent’s original action.

“If there is no ambiguity in the statutory language, its plain meaning controls; we presume the Legislature meant what it said. [Citation.] ‘However, if the statutory language permits more than one reasonable interpretation, courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute.’ [Citations.]’” (People v. Yartz (2005) 37 Cal.4th 529, 538.) Because the court finds that Plaintiff has failed to show that the words “action or proceeding” as used in CCP § 377.34 are ambiguous, the court may rely on the plain meaning of the statute and need not consider the Law Revision Commission Comments for Code of Civil Procedure § 377.30.

Moreover, Plaintiff fails to show how the Law Revision Commission Comments for Code of Civil Procedure § 377.30 shows that the legislature intended to the words “action or proceeding” to include “cause of action.” In fact, CCP § 377.34 makes references to both “the decedent’s cause of action” and “action or proceeding” in the same sentences and does not interchangeably use both. Consequently, the court is persuaded that had the Legislature intended to CCP § 377.34 to apply to amended complaints, it would have stated so as it did in Prob. Code § 1543 which states in the relevant part: “If the petition as filed or as amended states that an adoption petition has been filed . . .(italics added).

Consequently, because Plaintiff did not file an action or proceeding when she was substituted as the successor in interest for the Decedent, Plaintiff has failed to show she is entitled to recover damages for pain, suffering, or disfigurement under CCP § 377.34(b). Therefore, the court agrees that the following should be stricken from the 4AC without leave to amend:

[1] Pursuant to CCP § 435.5, the meet and confer requirement has been met. (Strunk Decl. ¶ 2.)

[2] Defendant PWG objects to this hearing and supplemental brief on the basis that Plaintiff failed to raise the point in her opposition and thus waived the issue. However, the point was raised at the original hearing and Defendant did have notice that Plaintiff could file a supplemental brief and afforded Defendant PWG the opportunity to respond. As PWG was given the opportunity to submit a supplemental reply and did in fact reply. As no prejudice is shown by Defendant PWG, the court considers the supplemental briefs on the merits.

[3] CCP § 22 states: “An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.”