Judge: Laura A. Seigle, Case: 21STCV02839, Date: 2022-09-20 Tentative Ruling

Case Number: 21STCV02839    Hearing Date: September 20, 2022    Dept: 15

[TENTATIVE] ORDER RE DEMURRER

            Plaintiffs Judith Karmon, Michael Karmon, Galit Rubin, Adina Kraus, and Eran Karmon filed this action on January 22, 2021 alleging Daniel Karmon died from asbestosis.  Plaintiffs never filed proofs of service showing service of the summons and complaint on defendants including Metalclad Insulation LLC (“Metalclad”).  Nor did Metalclad file an answer.

            At some point Plaintiff Judith Karmon died, and on July 19, 2022 Plaintiffs Michael Karmon, Galit Rubin, and Adina Kraus filed a First Amended Complaint (“FAC”) alleging Daniel Karmon died from asbestosis.  The FAC was not substantively different from the original complaint except (a) the FAC removed one defendant, (b) the FAC was brought by Michael Karmon (rather than Judith Karmon) as the successor-in-interest to Daniel Karmon, (c) Michael Karmon alleged he was the successor-in-interest to Judith Karmon, and (d) the FAC limited the third cause of action to one defendant.  On August 19, 2022, Metalclad filed an answer, and on August 19, 2022, it filed a demurrer to the FAC on statute of limitations grounds. 

            Defendant also filed a request for judicial notice of two scientific articles.  The request is denied as the articles are matters outside the complaint.

            “ ‘A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred.  [Citation]  In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.  [Citation.]’  [Citation.]”  (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.)  An action for wrongful death based on exposure to asbestos is one year from the date of the death or one year from the date the plaintiff first knew or through the exercise of reasonable diligence should have known that the death was caused or contributed by such exposure.  (Civ. Code, § 340.2, subd. (c).) 

            Defendant argues Plaintiffs’ complaint is too late because they filed it more than three years after Daniel Karmon died in January 2017.  (Demurrer at p. 7.)  Defendant contends the FAC does not allege specific facts showing Plaintiffs’ inability to have discovered the cause of the death earlier despite reasonable diligence.  (Demurrer at p. 13.)  According to Defendant, the death certificate lists cardiopulmonary arrest and idiopathic pulmonary fibrosis as the cause of death, medical researchers knew that idiopathic pulmonary fibrosis is identical to asbestosis, and therefore Plaintiffs could have discovered earlier that the asbestos exposure caused the death.  (Demurrer at pp. 7, 15.)

            The FAC alleges Daniel Karmon “died from what is now believed to be asbestosis” on or about January 2017.”  (FAC, ¶ 17.)  In February 2020, his wife, Judith Karmon, was diagnosed with mesothelioma.  (FAC, ¶ 17.)  In April 2020, Plaintiffs contacted attorneys about Judith Karmon’s diagnosis.  (Ibid.)  Before that date, Plaintiffs did not know that Daniel Karmon had contracted asbestosis as a result of exposure to asbestos.  (Ibid.)  Plaintiffs argue that before Judith Karmon’s diagnosis, no doctor informed Daniel Karmon that he suffered from an asbestos-related disease and there is no mention of asbestos exposure in his medical records.  (Opposition at p. 3.)  It was Judith Karmon’s diagnosis that caused Plaintiffs to believe Daniel Karmon may have been exposed to asbestos.  (Id. at p. 3.)

            The FAC does not show on its face that it is clearly and affirmatively time-barred.  Rather the allegation that Plaintiffs learned about Daniel Karmon’s asbestos exposure after Judith Karmon’s mesothelioma diagnosis shows that the complaint may not be time-barred.  Defendant’s articles about the state of scientific knowledge in 2017 are matters outside the complaint and not properly considered on a demurrer.  Whether Plaintiffs should have known in 2017 that idiopathic pulmonary fibrosis is the same as asbestosis and therefore should have discovered the alleged exposure much earlier, as Defendant argues, is an issue for summary judgment or trial.

            The demurrer is OVERRULED.

            The moving party is to give notice.