Judge: Jon R. Takasugi, Case: 22STCV29577, Date: 2023-01-18 Tentative Ruling

Case Number: 22STCV29577    Hearing Date: January 18, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion to strike is GRANTED.

            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; and (3) strict liability—design defect

Now, Legacy Vulcan, LLC (Defendant) 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 Plaintiff’s allegation of “and other products to be determined during discovery” should be struck.

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 granted.

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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