Judge: Jon R. Takasugi, Case: 22STCV29577, Date: 2023-01-04 Tentative Ruling

Case Number: 22STCV29577    Hearing Date: January 4, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion to strike is DENIED IN PART, GRANTED IN PART. Defendant’s motion is denied, without prejudice, as to the punitive damages prayer. Defendant’s motion is granted as to the “and other products to be determined during discovery” allegation.

            On 9/12/2022, Plaintiff Thomas D. Perez and Delia Lopez De Perez initiated tis suit against 32 Defendants, alleging: (1) negligence; (2) strict liability—failure to warn; (3) strict liability—design defect.

            Now, Defendant Interstate Chemical Company, Inc., individually and as successor-by-merger to Coleman Chemical, Inc., (Interstate) moves to strike portions of Plaintiff’s Complaint.

Legal Standard

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See Code Civ Proc., §§ 435-437.)  A motion to strike can be made to strike irrelevant, false or improper matter inserted in any pleading or to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of the court.  (CCP § 436.) 

Discussion

            Defendant argues that: (1) Plaintiff’s allegation of “and other products to be determined during discovery” should be struck; (2) Plaintiff’s references to fraudulent conduct should be struck; and (3) Plaintiff’s punitive damages prayer should be struck.

            While a motion to strike is proper to challenge the sufficiency of a punitive damages prayer, it is not properly utilized to challenge the sufficiency of the pleadings themselves. Here, Defendant has not demurred to Plaintiff’s Complaint, and Plaintiff has active claims for strict liability and fraudulent concealment. Thus, here, the question is whether or not Plaintiff’s claims—as asserted—could support a prayer of punitive damages. Because Plaintiff maintains active claims for fraud and strict liability, the Court can readily conclude that she has alleged facts which, at the pleading stage, could show malice, oppression, or fraud. (Civ. Code, § 3294, subd. (c)(1)-(c)(3).)  However, if Plaintiff’s claims were found to be deficient through a demurrer, the Court could then evaluate whether or not Plaintiff had alleged sufficient facts to support a prayer for punitive damages. 

            In light of this, the Court limits its analysis to the Defendant’s first contention, i.e., that Plaintiff’s allegations of “and other products to be determined during discovery” should be struck for “failing to satisfy the pleading requirements in product liability cases….” (Motion, 4: 14.) While Defendant’s challenge speaks to the sufficiency of the pleadings, the Court finds a motion to strike to be appropriate for this challenge. This is because Defendant does not argue that Plaintiff’s entire cause of action is deficient. Rather, Defendant just argues that this specific allegation is improper. Plaintiff could argue that it was able to be remedied through leave to amend. However, if it could not be remedied, the Court would have to order it stricken, because a demurrer cannot be properly sustained without leave to amend as to a single allegation. Rather, it is only appropriately directed at an entire cause of action.

The Court agrees with Defendant that the allegation here is improper under California law. (See Bockrath v. Aldrich Chemical Company (1999) 21 Cal. 4th 71, 79.) Under Brockrath, “[a] plaintiff must allege facts albeit as succinctly as possible, explaining how the conduct caused or contributed to the injury.” (Id. at p. 78.) Specifically, a plaintiff must plead the following in his or her toxic tort complaint: 1) That he or she was exposed to each of the toxic materials claimed to have caused a specific illness; 2) Each product that allegedly caused the injury; 3) That as a result of the exposure, the toxins entered his body; 4) 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; and 5) That each toxin he absorbed was manufactured or supplied by a named defendant. (Id. at p. 80.)

As such, a reference to undetermined products is improper: “[t]he law cannot tolerate lawsuits by prospecting plaintiffs who sue multiple defendants on speculation that their products may have caused harm over time through exposure to toxins in them, and who thereafter try to learn through discovery whether their speculation was well-founded.” (Id. at p. 81.)

            Based on the foregoing, Defendant’s motion to strike is denied in part, granted in part. Defendant’s motion is denied, without prejudice, as to the punitive damages prayer. Defendant’s motion is granted as to the “and other products to be determined during discovery” allegation.

It is so ordered.

Dated:  January    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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