Judge: Gregory Keosian, Case: 23STCV00238, Date: 2023-11-02 Tentative Ruling

Case Number: 23STCV00238    Hearing Date: March 29, 2024    Dept: 61

Defendant Arizona Tile, LLC’s Motion to Strike Portions of the First Amended Complaint is GRANTED without leave to amend.

I.                   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 Arizona Tile, LLC (Defendant) moves to strike language from the First Amended Complaint (FAC) including among Defendant’s products alleged to have injured Plaintiffs Demetrio Luna-Reyes and Guillemina Valdez (Plaintiffs) “other stone products to be identified during the course of discovery.” (FAC at p. 7.)

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 FAC, Plaintiffs have effectively obviated any utility that such a requirement was meant to provide.

The motion to strike is therefore GRANTED as to the language regarding “other stone products to be identified during discovery.”