Judge: Jon R. Takasugi, Case: 22STCV29577, Date: 2023-02-22 Tentative Ruling

Case Number: 22STCV29577    Hearing Date: February 22, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s demurrer is SUSTAINED, WITH 15 DAYS LEAVE TO AMEND.

On 9/12/2022, Plaintiff Thomas D. Perez and Delia Lopez De Perez initiated tis suit against 31 Defendants, alleging: (1) negligence; (2) strict liability—failure to warn; (3) strict liability—design defect; (4) fraudulent concealment; (5) breach of implied warranties; and (6) loss of consortium.

Now, the Clorox Company (Defendant) demurs to Plaintiffs’ Complaint.

Discussion

            Defendant argues that Plaintiffs have not alleged sufficient facts to meet the causation pleading threshold set forth in Bockrath v. Aldrich Chemical Company (1999) 21 Cal. 4th 71, 79.

 More specifically, Defendant argues that: (1) Plaintiffs have failed to allege what, if any, toxic chemicals in Regular or Performance Bleach caused Mr. Perez’s pancreatic cancer as required by Bockrath; (2) even if Plaintiffs did assert any such allegations (e.g., that sodium hypochlorite caused his cancer), it would still fail under Bockrath because it is a judicially noticeable scientific fact that it does not cause cancer; and (3) Plaintiffs’ fraudulent concealment claim fails for the separate, independent reason that they did not plead the elements of that claim with any remote level of specificity.

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.)

Here, Plaintiffs do not identify the “toxin” in Clorox Regular or Performance Bleach to which Mr. Perez was exposed. (See generally Pls.’ Compl.) As a result, they have not alleged facts which could show that a toxin from Clorox Regular or Performance Bleach entered his body, was a substantial factor in bringing about his pancreatic cancer, or that Clorox manufactured or supplied this unidentified toxin. (Id.)

            As such, the Court agrees that Plaintiffs have not alleged sufficient facts under Bockrath. However, the Court stops short of determining that Plaintiffs could not, as a matter of law, satisfy Bockrath because “it is a judicially noticeable scientific fact that sodium hypochlorite does not cause cancer” as contended by Defendant. (Motion, 7: 20-21.) As noted, Plaintiffs do not allege what toxin allegedly caused Mr. Perez’s cancer, and thus the Court cannot yet determine whether or not a claim could be supported based on sodium hypochlorite as the alleged toxin.

            The Court also agrees that Plaintiffs’ fraudulent concealment claim fails to state sufficient facts. Given that’s Plaintiffs fail to identify any “toxic chemicals” in Clorox’s Regular and Performance Bleach, they have necessary failed to allege facts which could show that Clorox “concealed or suppressed” regarding these products.

            Based on the foregoing, Defendant’s demurrer is sustained, with 15 days leave to amend.

It is so ordered.

Dated:  February    , 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. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s demurrer is OVERRULED.

Accordingly, Defendant’s motion to strike is DENIED.

On 9/12/2022, Plaintiff Thomas D. Perez and Delia Lopez De Perez (collectively, Plaintiffs) initiated tis suit against 31 Defendants, alleging: (1) negligence; (2) strict liability—failure to warn; (3) strict liability—design defect; (4) fraudulent concealment; (5) breach of implied warranties; and (6) loss of consortium.

Now, the Fabricare Supply, Inc. (Defendant) demurs to Plaintiffs’ fourth cause of action for fraudulent concealment. Defendant also moves to strike Plaintiffs’ prayer for punitive damages 

Discussion

            Defendant argues that Plaintiffs have failed to allege fraudulent concealment with the requisite specificity.

            The Court disagrees.

The elements of a cause of action for fraud based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage. (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-11 (Citing Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850).)

The particularity requirement necessitates pleading facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Sup.Ct. (Rykoff-Sexton, Inc.) (1996) 12 Cal.4th 631, 645.)

Here, Plaintiffs allege that:

(1)  Defendant concealed or suppressed a material fact when it failed to disclose the carcinogenic properties of its products in its material safety data sheets, product labels, and warning labels, as well as when it failed to disclose the signs and symptoms of exposure, medical conditions generally recognized as being aggravated by exposure to the substance, and adequate safe use instructions. (Complaint ¶¶ 114-115, 130.)

(2)  Defendant, as the manufacturer of a product containing hazardous chemicals, was under a duty to disclose these facts to employers and employees such as Plaintiff Tomas Perez under Labor Code section 6390.5, 8 C.C.R. section 5194 and Jones v. ConocoPhillips Co. (2011) 198 Cal. App. 4th 1187.

(3)  Plaintiff would not have used Defendants’ products had he been warned of their hazards and that he relied on Defendants’ misrepresentations to use their products until he was diagnosed with pancreatic cancer.

While Defendant argues that Plaintiff has not alleged facts which could show Defendant knew of the product’s danger and intentionally concealed this information,  at the pleading stage plaintiffs do not have to allege facts which are solely known from the defendant and which plaintiffs can only discover during discovery. (See Bockrath v. Aldrich Chem. Co. (1999) 21 Cal. 4th 71.)

Based on the foregoing, Defendant’s demurrer is overruled.

Motion to Strike

            Defendant argues that Plaintiff’s punitive damages prayer should be struck from the Complaint. However, as set forth above, the Court overruled Defendant’s demurrer to the fraud cause of action. As such, Plaintiff has necessarily alleged facts which could show Defendant engaged in malicious, oppressive, or fraudulent conduct. (Civ. Code, § 3294, subd. (a).)  

It is so ordered.

Dated:  February    , 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. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.