Judge: Gregory Keosian, Case: 23STCV002328, Date: 2023-10-23 Tentative Ruling
Case Number: 23STCV002328 Hearing Date: October 23, 2023 Dept: 61
Defendant Parsoda USA, Inc.’s Demurrer and
Motion to Strike Portions of the First Amended Complaint is OVERRULED as to the
fourth cause of action for fraudulent concealment, DENIED as to the prayer for
punitive damages, and GRANTED without leave to amend as to language regarding “other stone
products to be identified during discovery.”
I.
DEMURRER
A demurrer should be sustained only where the defects appear
on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§
430.30, et seq.) In particular, as is
relevant here, a court should sustain a demurrer if a complaint does not allege
facts that are legally sufficient to constitute a cause of action. (See
id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311:
“We treat the demurrer as admitting all material facts properly pleaded, but
not contentions, deductions or conclusions of fact or law. . . . Further, we
give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context.” (Id. at
p. 318; see also Hahn. v. Mirda
(2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed.
[Citation.]”)
“In determining whether the complaint is sufficient as
against the demurrer … if on consideration of all the facts stated it appears
the plaintiff is entitled to any relief at the hands of the court against the
defendants the complaint will be held good although the facts may not be
clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)
“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 Cal., Inc. (1993) 14 Cal.App.4th 612,
616.) Such demurrers “are disfavored,
and are granted only if the pleading is so incomprehensible that a defendant
cannot reasonably respond.” (Mahan v.
Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)
A demurrer should not be sustained without leave to amend if
the complaint, liberally construed, can state a cause of action under any
theory or if there is a reasonable possibility the defect can be cured by
amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p.
1081.) The demurrer also may be sustained without leave to amend where the
nature of the defects and previous unsuccessful attempts to plead render it
probable plaintiff cannot state a cause of action. (Krawitz v. Rusch
(1989) 209 Cal.App.3d 957, 967.)
Defendant Parsoda USA, Inc. (Defendant) demurrers to the
fourth cause of action for fraudulent concealment contained in the First
Amended Complaint (FAC) on the grounds that the allegations do not support the
existence of a duty to disclose, intent to conceal, or the corporate
representative responsible for making the alleged misrepresentations. (Demurrer
at pp. 5–8.)
The elements of
fraud are: (1) misrepresentation (false representation, concealment, or
nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or
induce reliance; (4) justifiable reliance; and (5) damages. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) It is
well-established that “[t]o withstand a demurrer, the facts constituting every
element of fraud must be alleged with particularity, and the claim cannot be
salvaged by references to the general policy favoring the liberal construction
of pleadings.” (Goldrich v. Natural Y
Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.) “This
particularity requirement necessitates pleading facts which show how,
when, where, to whom, and by what means the representations were tendered.” (Lazar, supra, 12 Cal.4th at p. 645 (internal quotation marks omitted).)
However, “it is harder to apply the requirement of
specificity to a case of simple nondisclosure. How does one show ‘how’ and ‘by
what means’ something didn't happen, or ‘when’ it never happened, or ‘where’ it
never happened?” (Jones v. ConocoPhilips
(2011) 198 Cal.App.4th 1187, 1199, internal quotation marks omitted.) Likewise,
“less specificity is required of a complaint when it appears from the nature of
the allegations that the defendant must necessarily possess full information
concerning the facts of the controversy; even under the strict rules of common
law pleading, one of the canons was that less particularity is required when
the facts lie more in the knowledge of the opposite party.” (Tenet Healthsystem Desert, Inc. v. Blue
Cross of California (2016) 245 Cal.App.4th 821, 838, internal quotation
marks, citations, and alterations omitted.)
Plaintiffs Demetrio Luna-Reyes and Guillemina Valdez
(Plaintifs) direct the court’s attention to a case much like this one called Jones v. ConocoPhillips (2011) 198
Cal.App.4th 1187. (Opposition at pp. 9–12.) In that case, family members of a
deceased employee, Carlos, at certain tire and rubber companies brought suit
against 19 manufacturers of 34 chemical products, alleging that each had
contributed to the death of Carlos. (Id.
at p. 1191.) The complaint listed the defendants’ products to which Carlos had
been exposed, then explained:
[A]s
a result of Carlos's exposure to the foregoing toxic chemical products, toxins
within said toxic chemicals entered Carlos's body. Each of the foregoing toxic
chemical products contain organic solvents and cardiotoxic, hepatotoxic,
nephrotoxic and other toxic chemicals, which by and through their cardiotoxic,
hepatotoxic and nephrotoxic nature, caused Carlos's chemically induced
cirrhosis of the liver, chemically induced cardiomyopathy and chemically
induced kidney failure and other injuries. Each toxin that entered Carlos's
body was a substantial factor in bringing about, prolonging, and aggravating
Carlos's chemically induced cirrhosis of the liver, chemically induced
cardiomyopathy and chemically induced kidney failure and other injuries.
(Id. at p. 1192,
internal alterations omitted.) The court described the complaint as alleging
the following with regard to defendants’ knowledge of these toxic products and
their concealment:
[T]he
amended complaint alleges defendants were “aware of the toxic nature of their
products” and “owed a duty to disclose the toxic properties of their products
to [Carlos] because [they] alone had knowledge of material facts, to wit the
toxic properties of their products, which were not available to [Carlos].” It
also alleges defendants owed a duty to disclose because they “made
representations regarding their products, but failed to disclose additional
facts which materially qualify the facts disclosed, and/or which rendered the
disclosures made likely to mislead [Carlos].” These conclusory allegations are
supplemented with respect to the single compound, DMF. The Joneses cite studies
published as early as 1969 attesting to DMF's toxicity, several years before
Carlos began working at Goodyear where he was exposed to the Dow product
containing DMF.
(Id. at pp. 1199–1200.)
The trial court had sustained a
demurrer to the complaint for failing to plead fraudulent concealment with
specificity, but the court of appeal reversed. Taking note of the above
allegations, the court noted its general inquiry in assessing whether a complaint
had pleaded fraud with the requisite specificity was to determine “whether the .
. . complaint, considered as a whole, provides defendants with sufficient
notice of the particular claims against them.” (Id. at p. 1200.) The court concluded that, based on the allegations
in the complaint,
[E]ach
defendant has received notice of the particular product it made that was used
at the Goodyear and Upjohn plants at which Carlos worked. The pleading further
alleges these products “contained significant concentrations of organic
solvents ... and other toxic chemicals” and “[t]he toxicity of various organic
solvents to the liver and kidney has long been recognized.” Each defendant is
therefore on notice that it allegedly concealed or failed to disclose the toxic
properties of the product it sold to Goodyear and Upjohn during the course of
Carlos's employment. Although sparse, nothing more is required at this early
stage of the litigation.
(Id. at p. 1200.)
Plaintiffs’ allegations here are essentially similar.
Plaintiffs identify each manufacturer and the products that they allege caused
them harm. (FAC at pp. 6–26.) The FAC alleges that as a result of exposure to
these products, the toxins contained within them, “including silica, metals,
and other toxic substances,” entered Luna-Reyes’s body. (FAC ¶ 483.) It is
alleged that these toxic materials caused Luna-Reyes’s silicosis. (FAC ¶¶
484–485.) As with Jones, Plaintiffs allege that Defendants knew of the
toxic nature of their products, and had a duty to disclose this information
based on their superior knowledge, which was “not accessible to Plaintiff.”
(FAC ¶ 475.) Plaintiffs’ support their allegations of Defendants’ knowledge with
further allegations of the history of silicosis and the stone industry’s
knowledge of these hazards (FAC ¶¶ 47–71), as well as studies performed on the
particular types of products at issue here dating back to 1997. (FAC ¶¶ 85–96.)
As with Jones, Plaintiffs’ FAC gives notice to Defendant of the
particular products that he used at the particular locations, and alleges that
they contained certain types of long-recognized toxic chemicals. Defendant is
on notice of the allegations against it.
As to Defendant’s argument that it is a corporation and that
Plaintiffs must therefore “allege the names of the persons who made the
allegedly fraudulent representations, their authority to speak, to whom they
spoke, what they said or wrote, and when it was said or written” (Tenet
Health System Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th
821, 838), this argument has little persuasive application to a fraudulent
concealment claim, as the nature of the allegation is that no corporate
representative disclosed the information to Plaintiff. The question of which
corporate officer was responsible for the alleged concealment, or ought to have
been responsible for disclosure, is a fact which “lie[s] more in the knowledge”
of Defendants, and thus need not be pleaded with specificity. (Id. at p. 838.)
The demurrer is therefore OVERRULED.
II.
MOTION TO
STRIKE
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. (Code Civ. Proc., §
435(b)(1)). The notice of motion to strike a portion of a pleading shall quote
in full the portions sought to be stricken except where the motion is to strike
an entire paragraph, cause of action, count or defense. (California Rules of
Court Rule 3.1322.)
The grounds for a motion to strike shall appear on the face
of the challenged pleading or form any matter of which the court is required to
take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike
out any irrelevant, false, or improper matter inserted in any pleading and
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. (Code Civ.
Proc., § 436.) When the defect which justifies striking a complaint is capable
of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)
Defendant moves to strike Plaintiffs’ request for punitive
damages and related allegations. (Motion at pp. 6–8.)
Punitive damages are allowed in non-contract cases when a
defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294,
subd. (a).) The terms are defined as:
1. “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.
2. “Oppression”
means despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person's rights.
3.
“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, subd. (c).)
Something more than the mere commission of a
tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of
negligence, gross negligence, or recklessness is insufficient to warrant an
award of punitive damages. (Dawes v.
Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be
recovered in an action for negligence or other nonintentional torts if the
plaintiff pleads and proves that the defendant acted with the state of mind
described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220
Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious
disregard of Plaintiff’s rights, the conduct must be both despicable and
willful. (College Hospital v. Superior
Court (1994) 8 Cal.4th 794, 713 (“College
Hospital”).)
“Fraud” is among the permissible bases that
may support an award of exemplary damages. As noted in relation to Defendant’s
demurrer to Plaintiffs’ cause of action for fraudulent concealment, the
allegations here are sufficient to maintain a fraud claim. They are likewise
sufficient to support a claim for punitive damages. The motion to strike is
therefore DENIED as to the prayer for punitive damages.
However, Defendant also moves to strike
allegations related to the products that allegedly contributed to Plaintiffs’
injuries. Those products are listed, for Defendant Parsoda USA, Inc., to be
metroquartz, vicostone, “And other stone products to be identified during the
course of discovery.” (FAC at pp. 20–21.)Defendant argues that this “other products” language is
improper because the California Supreme Court in Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, prescribed,
among the essential pleaded elements for a toxic products liability tort the
requirement that the plaintiff “must identify each product that allegedly
caused the injury. It is insufficient to allege that the toxins in defendants'
products caused it.” (Id. at p. 80.) Defendant thus argues that language
leaving open the products at issue to “further discovery” is improper.
Defendant’s argument is persuasive. Bockrath specifically forbade plaintiffs
from prosecuting toxic torts by generally alleging that “the toxins in
defendants’ products” caused injury. This language was directed to prevent
claims from “plaintiffs who lack any real notion of the identity of the product
which was a substantial factor in causing their injury.” (Rivas v. Safety-Kleen Corp. (2002) 98 Cal.App.4th 218, 241.) But by
including this “other products” language in the present Complaint, Plaintiffs
have effectively obviated any utility that such a requirement was meant to
provide. Plaintiffs in opposition do not submit any argument on this point.
The motion to strike is therefore GRANTED as
to the language regarding “other stone products to be identified during
discovery.”