Judge: Laura A. Seigle, Case: 22STCV15053, Date: 2022-08-02 Tentative Ruling

Case Number: 22STCV15053    Hearing Date: August 2, 2022    Dept: 15

[TENTATIVE] ORDER RE DEMURRER

            On May 5, 2022, Plaintiffs Safieh Farshadnia (individually and as successor-in-interest to Shahab Laal), Azal Laal, Shiveh Servat Laal and Dastan Namju Laal (collectively “Plaintiffs”) filed this action alleging causes of action for strict liability, negligence, false representation under Restatement of Torts section 402-B, and intentional torts under Civil Code sections 1708 through 1710.  In addition, Farshadnia alleged a cause of action for loss of consortium.  On July 5, 2022, Defendant Honeywell International, Inc. (“Defendant”) filed a demurrer to the third, fourth, and fifth causes of action for false representation, intentional torts, and loss of consortium.

A.                Third Cause of Action – False Representation

Defendant argues Plaintiffs did not adequately allege the third cause of action for false representation under section 402-B of the Restatement of Torts. 

Section 402-B establishes “liability for injuries caused by justifiable reliance on false advertising.”  (Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1750.)  Under this section “ ‘[o]ne engaged in the business of selling chattels who, by advertising, labels, or otherwise, makes to the public a misrepresentation of a material fact concerning the character or quality of a chattel sold by him is subject to liability for physical harm to a consumer of the chattel caused by justifiable reliance upon the misrepresentation, even though [¶] (a) it is not made fraudulently or negligently, and [¶] (b) the consumer has not bought the chattel from or entered into any contractual relation with the seller.’  [Citation.]”  (Id. at pp. 1750-1751.)  “The rule ‘is one of strict liability for physical harm to the consumer, resulting from a misrepresentation of the character or quality of the chattel sold, even though the misrepresentation is an innocent one, and not made fraudulently or negligently.’  [Citation.]”  (Hauter v. Zogarts (1975) 14 Cal.3d 104, 114.)

            Defendant contends the complaint does not allege facts showing Defendant made any express material misrepresentation.  (Demurrer at p. 5.)  The complaint alleges that when Defendant manufactured, labeled, packaged, advertised, distributed, and sold (among other actions) the allegedly unsafe product, it expressly represented to the general public, purchasers and users that the product was safe.  (Complaint, ¶ 35.)  When the cause of action “is based on advertisements and a published technical manual distributed to dealers,” pleading requirements of specificity do not apply.”  (Westlye, supra, 17 Cal.App.4th at p. 1751, n.25.)  According to the complaint, Defendant was involved in advertising the product as safe.  This is sufficient to allege an express material misrepresentation under section 402-B.

            Defendant next argues the complaint does not allege a factual representation as opposed to puffery or opinion.  (Demurrer at p. 6.)  “If defendants’ assertion of safety is merely a statement of opinion – mere ‘puffing’ – they cannot be held liable for its falsity.”  (Hauter, supra, 14 Cal.3d at p. 111.)  However a broad statement of safety “falls within the ambit of section 402B.”  (Id. at pp. 111-112.)  Promises that a product is “safe” is a representation of fact.  (Id. at p. 112 [citing cases].)  Thus, Defendant’s alleged statement that the product was safe is a statement of fact.

            Defendant goes on to argue the complaint does not allege justifiable reliance by the decedent.  (Demurrer at p. 7.)  “However ‘[t]he reliance need not necessarily be that of the consumer who is injured.  It may be that of the ultimate purchaser of the chattel . . . who because of such reliance passes it on to the consumer who is in fact injured, but is ignorant of the misrepresentation.’  [Citation.]”  (Westlye, supra, 17 Cal.App.4th at p. 1751.)  Thus, it is not necessary that Plaintiffs or the decedent relied on the representation of safety.  A purchaser’s reliance on the representation is sufficient.  Here, the complaint alleges the purchasers and users of the product, as well as the decedent’s employers, relied on the representations.  (Complaint, ¶ 36.)  This is enough at this stage in the litigation, especially because Plaintiffs do not need to allege that they or the decedent justifiably relied to state a cause of action under section 402-B.  A plaintiff cannot be expected to know at the beginning of the case exactly how others relied on the representations.  Discovery can develop further evidence of justifiable reliance.

B.                 Fourth Cause of Action – Intentional Tort

The fourth cause of action alleges torts under Civil Code sections 1708-1710.  Some of these sections are irrelevant to this case.  Section 1708 states generally that a person is to abstain from injuring another person.  That does not create a cause of action.  Sections 1708.5-1708.9 are about sexual battery, domestic violence, harassment, invasion of privacy, distribution of sexually explicit photos and video, and preventing entrance into a school or health facility.  No such act is alleged in the complaint, and these sections are completely irrelevant to this case.

Sections 1709 and 1710 state that a person may be liable for damage caused by willful deceit, defined as including “[t]he suggestion, as a fact, of that which is not true, by one who does not believe it to be true,” [t]he assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true,” “[t]he suppression of a fact, by one who is bound to disclose it, or who give information of other facts which are likely to mislead for want of communication of that fact,” and “[a] promise, made without any intention of performing it.”  These sections are applicable to the complaint.

            Defendant contends the complaint fails to allege actual reliance on a misrepresentation and a duty to disclose owed by Defendant to the decedent.  (Demurrer at p. 8, 10.)  Plaintiffs argue the cause of action is for concealment of the dangers of asbestos and lack of warnings.  (Demurrer at p. 9.) 

            In Committee On Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, the California Supreme Court explained, “Less specificity is required when ‘it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy . . . .”  (Id. at p. 217.)  Also, “considerations of practicality enter in” especially when multiple parties are involved.  (Ibid.; Alfaro v. Community Housing Improvement Sys. & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.)  A duty to disclose can arise “when the defendant had exclusive knowledge of material facts not known to the plaintiff,” when the defendant actively conceals a material fact from the plaintiff,” or “when the defendant makes partial misrepresentations but also suppresses some material facts.”  (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.)  When a complaint alleges the defendants were aware of the toxic nature of their particular products and owed a duty to disclose the toxic properties of their products to the plaintiff because they alone had knowledge of material facts which were not available to the plaintiff, the complaint adequately gives notice of the material facts the defendants allegedly concealed regarding the particular products at issue.  (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1200.) 

Here, Defendant knows better than Plaintiffs what information it had, what information it disclosed, and what information it withheld about the dangers of asbestos.  Therefore, less specificity is required.  The complaint alleges the toxic nature of the products – that they contained asbestos (Complaint, ¶¶ 3-8) – and identified the particular products.  (Preliminary Fact Sheet at p. 2.)  The complaint alleges the decedent relied upon the lack of warnings.  (Complaint, ¶ 27.)  “Although sparse, northing more is required at this early stage of the litigation.”  (Jones, supra, 198 Cal.App.4th at p. 1200.)

Defendant argues that for a legal duty of disclosure to exist, “there must be a ‘sufficient relationship or transaction between the parties.’”  (Demurrer at p. 10.)  In Jones, the sort of relationship that exists here – the plaintiff’s use of products made by the defendant – was enough of a foundation for a fraudulent concealment cause of action at the pleading stage.  (Jones, supra, 198 Cal.App.4th at pp. 1191, 1200.)  And, the preliminary fact sheet filed with the complaint states the decedent was exposed by Defendant’s brakes, thereby indicting some sort of transaction that supplied the decedent with the brakes.  This is sufficient at this point to give Defendant notice that it allegedly concealed and failed to disclose its brake products contained asbestos.  (Id. at p. 1200.)

C.                Fifth Cause of Action – Loss of Consortium

The fifth cause of action alleges loss of consortium by the decedent’s wife, Safieh Farshadnia.  Defendant argues the cause of action is barred by the one-year statute of limitations because Farshadnia alleges the decedent was unable to perform the duties as spouse when he was alive and he was diagnosed in October 2020, more than a year before the May 2022 complaint.  (Demurrer at p. 13.)  Farshadnia argues this is a wrongful death cause of action, the decedent died on May 8, 2021, and therefore the May 5, 2022 complaint is timely.  (Opposition at pp. 13-14.)

The complaint alleges, “Subsequent to the injuries” and “when he was alive,” the decedent “was unable to perform the necessary duties as a spouse.”  (Complaint, ¶ 47.)  It alleges Farshadnia “has been permanently deprived” of the consortium of her spouse.  (Ibid.)  The complaint does not state when after his injuries the decedent was unable to perform his duties as a spouse.  Defendant’s contention that the decedent was unable to perform spousal duties immediately upon being diagnosed in October 2020 is not necessarily true.  His failure to perform could have occurred later.  Therefore the complaint on its face does not show the cause of action is time-barred as a matter of law.

Defendant also refers to another lawsuit by Farshadnia for loss of consortium filed in February 2021.  (Demurrer at p. 13.)  If there is another lawsuit, related to this one, Farshadnia is to file a notice of related case within 10 days.

The demurrer is OVERRULED.

The moving party is to give notice.