Judge: Laura A. Seigle, Case: 22STCV28136, Date: 2022-12-14 Tentative Ruling

Case Number: 22STCV28136    Hearing Date: December 14, 2022    Dept: 15

[TENTATIVE] ORDER RE DEFENDANT AMERON INTERNATIONAL CORPORATION’S DEMURRER 

On August 29, 2022, Plaintiffs Gloria Toledo, Juan Toledo, Elizabeth Toledo and Jose Toledo (“Plaintiffs”) filed this action for the wrongful death of Elio Toledo (“Decedent”) against Defendant Ameron International Corporation, Successor-in-Interest to Bondstrand (“Defendant”), among others.  

On September 30, 2022, Defendant filed a demurrer on the ground that Plaintiffs’ claims are preempted by the workers’ compensation exclusivity remedy rule.  Defendant failed to file a meet and confer declaration as required by Code of Civil Procedure section 430.41, subd. (a)(2).  Failure to file the required declaration in the future may result in the motion being placed off calendar.

Defendant filed a request for judicial notice.  Because the court did not rely on any of those documents, it does not rule on the request.

Plaintiffs allege the Decedent developed asbestos related mesothelioma as a result of exposure to asbestos while Decedent was employed by Defendant between 1974 to 1979.  (Complaint, ¶ 13.)  Specifically, Defendant argues that the workers’ compensation exclusivity remedy rule applies because the complaint alleges facts demonstrating Decedent’s exposure to asbestos occurred during the course and scope of his employment with Defendant.  (Demurrer, pp. 5-6.)  Subject to certain exceptions, workers’ compensation is the exclusive remedy available to injured employees and their dependents against an employer for injuries sustained “out of and in the course of employment.”  (Lab. Code §§ 3600-3602, 5300; see Shoemaker v. Myers (1990) 52 Cal.3d 1, 18.)  Workers’ compensation remains the employee’s exclusive remedy against his or her employer so long as (1) “a substantial contributing cause” of the employee’s injury (or illness) (2) arises out of the employment relationship.  (Melendrez v. Ameron International Corporation (2015) 240 Cal.App.4th 632, 639-640.)  This is so even though another, nonworkplace cause for which the employer might otherwise be liable in a civil suit also substantially contributed to the injury.  (Ibid.)  The exclusive remedy provisions apply only in cases of industrial personal injury or death.  (Shoemaker, supra, 52 Cal.3d at p. 16.)  

Plaintiffs do not dispute that the complaint alleges exposure during the course of Decedent’s employment with Defendant.  Rather they contend the “dual capacity” exception applies.  (Opposition at p. 2.)  The dual capacity exception applies where the injury stems from an employer-employee relationship that is distinct and invokes a different set of obligations than the employer’s usual duties to its employee.  (Cole v. Fair Oaks Fire Protection District (1987) 43 Cal.3d 148, 161-162.)  The dual capacity exception allows an employee to bring a product liability action against the employer where the injury was caused by an employer-manufactured product sold (or otherwise transferred) to an independent third person who then provided it for the employee’s use.  (Lab. Code. § 3602(b)(3).)  The dual capacity exception does not apply when the employer provides a third party’s product to the employer.  (Ashdown v. Ameron International Corp. (2000) 83 Cal.App.4th 868, 875-876.)  Dual capacity rule is an exception, which is strictly construed.  (Behrens v. Fayette Manufacturing Co., Inc. (1992) 4 Cal.App.4th 1567, 1574.) 

Plaintiffs argue Defendant supplied raw asbestos fiber to Gusmer Enterprises, Inc. (“Gusmer”), who produced mats and sold them to Defendant to be used for producing the Defendant’s product.  Defendant then provided the mats to Decedent for use in producing Defendant’s final product.  (Opposition at pp. 2-3.)  Because Decedent obtained the mats from Defendant in the course of his employment and not from “an independent third person,” the dual capacity exception does not apply.  ((Ashdown, supra, 83 Cal.App.4th at p. 876.)

Plaintiffs have the burden of showing how they can amend the complaint to resolve this defect.  (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)  Plaintiffs request leave to amend to allege Defendant sold asbestos to Gusmer, which made the mats sold to Defendant, which then supplied to Decedent.  Because these allegations would still fall within the workers’ compensation exclusive remedy, Plaintiffs have not shown they can amend the complaint to resolve the defect. 

The demurrer is SUSTAINED without leave to amend.

The moving party is ordered to give notice.