Judge: Gail Killefer, Case: 23STCV06368, Date: 2023-10-23 Tentative Ruling

Case Number: 23STCV06368    Hearing Date: March 20, 2024    Dept: 37

HEARING DATE:                 Wednesday, March 20, 2024

CASE NUMBER:                   23STCV06368

CASE NAME:                        Angel Gallego-Botello, et al v. Architectural Surfaces, Inc., et al

MOVING PARTY:                 Defendant Del-Tile International, Inc.

OPPOSING PARTY:             Plaintiffs Angel Gallegos-Botello and Araceli Mejia

TRIAL DATE:                        Not Set

PROOF OF SERVICE:           OK

PROCEEDING:                      Motion to Strike First Amended Complaint

OPPOSITION:                        20 February 2024

REPLY:                                  23 February 2024

TENTATIVE:                         Defendant Del-Tile’s motion to strike is denied as to Page 21, Line 19 and granted without leave to amend as to Paragraphs 421 and 422. Defendant to give notice.

Background

On March 22, 2023, Angel Gallegos-Botello and Araceli Mejia (collectively “Plaintiffs”) filed a Complaint against various Defendants alleging six causes of action: (1) negligence, (2) strict liability – warning defect, (3) strict liability - design defect, (4) fraudulent concealment, (5) breach of implied warranties, and (6) loss of consortium. This is a toxic torts action wherein Plaintiff Angel Gallegos-Botello alleges he developed silicosis and other injuries due to his work with stone products manufactured, distributed, and/or supplied by various named Defendants.  

On November 16, 2023, Plaintiffs filed the operative First Amended Complaint (“FAC”) alleging the same causes of action in the original Complaint. 

On December 19, 2023, Defendant Dal-Tile International, Inc. (“Dal-Tile”) filed a motion to strike the FAC. Plaintiff opposes the Motion. The matter is now before the court.

motion to strike the first amended complaint[1]

I.         Legal Standard

¿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); CRC, 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(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.)¿¿¿ 

II.        Discussion

Defendant Dal-Tile requests that the following be stricken from the FAC:

1) Page 21, Line 19:

• “[a]nd other crystalline-silica containing products to be identified in the course of discovery”

2) Pages 169-170, Paragraph 421

• “In 1991 the Texas Water Commission imposed a record $1 million fine against Dal-Tile for 12 years of illegally dumping hazardous waste into two gravel pits in southeastern Dallas County. It was the largest fine ever levied by a state agency for environmental violations. The company was required by law to send contaminated wastes from the manufacturing process to special landfills but, according to state investigators, dumped the material from 1975 to 1987 in pits that were not specially licensed. The commission also found that Dal-Tile used waste oils on farmland for dust control, failed to notify the state it had discharged industrial solid wastes into water, and failed to keep records of the waste and file annual reports.”

3) Page 170, Paragraph 422

• “In 1993, a federal grand jury indicted Robert Brittingham, Jr., and company president John Lomonaco on 17 criminal counts, including conspiracy to dump hazardous waste. Brittingham was found guilty in 1993, fined $4 million, and sentenced to five years' probation, which he began fulfilling with 15 hours a week in community service by financing and operating a $6 million lead- abatement program for Dallas. The total cost of the fines and dumpsite cleanup came to $16.5 million.”

In Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, the California Supreme Court considered what a plaintiff would have to allege in their revised complaint to meet the “substantial factor” test of proving that the defendant’s conduct contributed to the plaintiff’s injury. (Id. at p. 79.)

The California Supreme Court held that:

1) Plaintiff must allege that he was exposed to each of the toxic materials claimed to have caused a specific illness. An allegation that he was exposed to “most and perhaps all” of the substances listed is inadequate.

(2) He must identify each product that allegedly caused the injury. It is insufficient to allege that the toxins in defendants' products caused it.

(3) He must allege that as a result of the exposure, the toxins entered his body.

(4) He must allege that he suffers from a specific illness, and that each toxin that entered his body was a substantial factor in bringing about, prolonging, or aggravating that illness.

(5) Finally, except in a case (unlike this one) governed by the principle of liability based on market share for a uniform product that we outlined in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 612, 163 Cal.Rptr. 132, 607 P.2d 924, he must allege that each toxin he absorbed was manufactured or supplied by a named defendant.

(Id. at p. 80.)

Defendants maintain that the allegation in Page 21, Line 19 of the FAC is too conclusory and not in conformity with the pleading standard set out in Bockrath.

Plaintiffs argue their allegation is sufficient under Bockrath because the Supreme Court asserted that:

If the plaintiff does not believe the requisite evidence exists, but does actually believe that it is likely to be discovered later, ‘after a reasonable opportunity for further investigation or discovery’ (Code Civ. Proc., § 128.7, subd. (b)(3)), the complaint must so state (ibid.).

(Bockrath, supra, 21 Cal.4th at p. 82.) Plaintiffs therefore argue that the allegation on Page 21, line 19 is properly pled as discovery is likely to uncover facts as to the specific products sold by Dal-Tile. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

The court agrees that discovery procedures will clarify for Defendant Del-Tile what specific products it sold to Plaintiff’s employer and Plaintiffs’ basis for liability. Plaintiffs must then amend the pleadings  to encompass the newly discovered information or else the allegations will not be part of the record if Defendants move for summary judgment. (See Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [nn summary judgment the defendant need only negate the plaintiff’s theories as alleged in the complaint].)

Accordingly, the motion to strike Page 21, Line 19 is denied.

Defendant-Tile moves to strike Paragraphs 421 and 422 on the basis that the allegations are irrelevant and improper. (CCP § 436.) Plaintiffs fail to explain how Paragraphs 421 and 422 show that Defendant Del-Tile acted with malice, fraud, or oppression in this instant action. Nor does Plaintiff argue that Paragraphs 421 and 422 are relevant to show that Defendant Del-Tile had current knowledge about the toxicity posed by its silica-containing products.

As Plaintiff fails to show the relevance of Paragraphs 421 and 422, Defendant’s Motion to strike Paragraphs 421 and 422 is granted without leave to amend.

Conclusion

Defendant Del-Tile’s motion to strike is denied as to Page 21, Line 19 and granted without leave to amend as to Paragraphs 421 and 422. Defendant to give notice.