Judge: Laura A. Seigle, Case: 22STCV15053, Date: 2022-08-24 Tentative Ruling

Case Number: 22STCV15053    Hearing Date: August 24, 2022    Dept: 15

[TENTATIVE] ORDER RE DEMURRERS AND MOTIONS TO STRIKE

I.          DEMURRERS

            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 22, 2022, Defendants CVS Pharmacy, Inc. (“CVS”), Safeway, Inc. (“Safeway”), and Walgreen co. (“Walgreen”) (collectively, “Defendants”) each filed a demurrer to the third and fourth causes of action for false representation and intentional torts.  Each also filed a motion to strike the request for punitive damages.  Because the three demurrers are almost identical and the three motions to strike are almost identical, the Court’s analysis and rulings below apply equally to CBS, Safeway, and Walgreen.

A.                Third Cause of Action – False Representation

Defendants argue Plaintiffs did not adequately allege the third cause of action for false representation under section 402-B of the Restatement of Torts because the complaint is not sufficiently specific. 

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.)

            Defendants contend the complaint does not allege specific facts establishing “the ‘how, when, where, to whom, and by what means the representations were tendered.’ ”  (Demurrer at p. 6.)  The complaint alleges that when Defendants manufactured, labeled, packaged, advertised, distributed, and sold (among other actions) the allegedly unsafe product, they 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, Defendants were each involved in advertising the product as safe.  (Complaint, ¶ 35.)  This is sufficient to allege an express material misrepresentation under section 402-B.

            Defendants next argue the complaint does not allege CVS, Safeway, and Walgreen each “was specifically aware that any of the numerous products at issue . . . which it also sold, were allegedly dangerous.”  (Demurrer at p. 6.)  Defendants did not cite legal authority that a defendant must be aware the product is dangerous under section 402-B of the Restatement of Torts. 

            Defendants argue “it is wholly ambiguous which product(s) Plaintiffs believe that Decedent was allegedly exposed to, which were also purchased or otherwise obtained from [Defendants], if any.”  (Demurrer at p. 6.)  The Preliminary Fact Sheet does not identify the Product at Issue for CVS, Safeway, and Walgreen.  Instead, in that column, Plaintiffs stated “Supplier.”  “Supplier” is not a product.  A complete Preliminary Fact Sheet is important because it provides the information about the types of products at issue.  The August 11, 2014 Case Management Order requires a plaintiff to file and serve the Preliminary Fact Sheet along with the filing of the complaint and to “fully respond to each question and provide all of the information available to the plaintiff that is sought by each question.”  If a plaintiff does not know the information sought by the question, “plaintiff should identify what part of the question plaintiff cannot answer.”  (Order at pp. 2-3.)  Plaintiffs did not comply with these requirements.

            Defendants then argue Plaintiffs do not allege Defendants “intended Decedent to rely on any representation” or “Decedent reasonably relied on any representation.”  (Demurrer at p. 7.)  These are not necessary elements under section 402-B of the Restatement of Torts.  The “‘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 Defendants intended the decedent to rely on any representation if the decedent was not the purchaser of the products.  It is not necessary that Plaintiffs or the decedent relied on a representation of safety.  A purchaser’s reliance on the representation is sufficient.  Here, the complaint alleges the purchasers of the product relied on representations of safety.  (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.

            The demurrer is overruled.  However, within ten days, Plaintiffs are to file and serve an amended Preliminary Fact Sheet identifying the product or products at issue supplied by CVS, Safeway, and Walgreen.  If Plaintiffs do not know, they are to state on the Preliminary Fact Sheet that they do not know.

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.

            Defendants contend the complaint fails to allege with specificity that Defendants intended to deceive Plaintiffs and acted intentionally to conceal facts from the decedent .  (Demurrer at pp. 7-8. )  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.)  Defendants, not Plaintiffs, have information about Defendants’ intent. 

            Defendants argue the complaint does not allege the decedent would have acted differently if the decedent had known of the concealed information.  (Demurrer at p. 8.)  The complaint alleges the decedent relied upon statements that the products were safe.  (Complaint, ¶ 36.)  More detail about what the decedent would have done if he had known the products allegedly contained asbestos and whether he would have used those products can be developed in discovery.

The demurrers are OVERRULED.  Within ten days, Plaintiffs are to file and serve an amended Preliminary Fact Sheet identifying the product or products at issue supplied by CVS, Safeway, and Walgreen.  If Plaintiffs do not know, they are to state on the Preliminary Fact Sheet that they do not know.

II.        MOTIONS TO STRIKE

Defendants move to strike the request for punitive damages on the grounds that Plaintiffs have not sufficiently alleged facts supporting an award of punitive damages, including because Plaintiffs do not identify the asbestos-containing products obtained from CVS, Safeway, and Walgreen.  As discussed above, Plaintiffs need to amend the Preliminary Fact Sheet to identify the product or products at issue supplied by CVS, Safeway, and Walgreen. 

Otherwise, as discussed above, Plaintiffs have adequately alleged fraud causes of action and more details can be developed in discovery.  If Plaintiffs are able to prove the fraud causes of action, they will have proven a basis for punitive damages.

The motions to strike are DENIED.  Within ten days, Plaintiffs are to file and serve an amended Preliminary Fact Sheet identifying the product or products at issue supplied by CVS, Safeway, and Walgreen.  If Plaintiffs do not know, they are to state on the Preliminary Fact Sheet that they do not know.

The moving party is to give notice.