Judge: Laura A. Seigle, Case: 22STCV32540, Date: 2022-12-08 Tentative Ruling

Case Number: 22STCV32540    Hearing Date: December 8, 2022    Dept: 15

[TENTATIVE] ORDER RE DEMURRERS AND MOTIONS TO STRIKE

I.          DEMURRERS

            On May 5, 2022, Plaintiffs Elaine Adelia Hickey Herman and Jacob Russell Herman, Sr. (collectively “Plaintiffs”) filed this action alleging causes of action for negligence, strict liability, premises liability, false representation under Restatement of Torts section 402-B, intentional torts under Civil Code sections 1708 through 1710, conspiracy, and loss of consortium.    

Defendants American Honda Motor Co., Inc. and Toyota Motor Sales, U.S.A., Inc. (collectively, “Defendants”) each filed a demurrer to the fourth and fifth causes of action for false representation and intentional torts.  Each also filed a motion to strike the request for punitive damages.  Because the two demurrers and motions to strike are almost identical, the court’s analysis and rulings below apply equally to Honda and Toyota.

As an initial matter, the court notes Plaintiffs named 48 defendants.  If each defendant filed a demurrer and motion to strike, the court would have 96 pleading challenges to decide in this case alone.  Unless a demurrer disposes of all claims against a particular defendant, multiple demurrers and motions to strike targeting only portions of claims are not feasible in the asbestos court.  With hundreds of cases involving dozens of defendants coordinated in this court, multiple demurrers and motions to strike with the attendant multiple rounds of amended pleadings would place unnecessary burdens on the court, would delay resolution and increase costs, and would not contribute to effective decision-making.  The case management orders are designed to allow form pleadings with preliminary fact sheets that provide details specific to the plaintiff and defendants in a particular case.

A.                Fourth Cause of Action – False Representation

Defendants argue Plaintiffs did not adequately allege the fourth 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 Defendants made an affirmative misrepresentation upon which Plaintiffs relied.  (Demurrer at pp. 3-4.)  As expressed in Westlye, a direct statement to the end use of the product is not necessary; a public misrepresentation is enough.  Here, 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, ¶ 46.)  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, ¶ 46.)  This is sufficient to allege an express material misrepresentation under section 402-B.

            Defendants also argue the complaint does not allege specific facts establishing that Defendants were in the chain of distribution or manufactured any particular product.  (Demurrer at pp. 3-4.)  The preliminary fact sheet does not identify the Product at Issue for Defendants.  Instead, in that column, Plaintiffs stated “Friction products” for Honda and “Automotive parts” for Toyota.  These identifications are vague.  A complete preliminary fact sheet is important because it provides the information about the 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 in listing the Product at Issue.

            Defendants then argue Plaintiffs do not specifically allege Plaintiffs reasonably relied on any representation or that if the omitted information had been disclosed, Plaintiffs would have acted differently.  (Demurrer at p. 4.)  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 Plaintiffs to rely on any representation if Plaintiffs were not the purchaser of the products.  It is not necessary that Plaintiffs 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, ¶ 47.)  This is enough at this stage in the litigation, especially because Plaintiffs do not need to allege that they  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 specific product or products at issue manufactured, sold or distributed by Defendants.  If Plaintiffs do not know, they are to state on the preliminary fact sheet that they do not know.

B.                 Fifth Cause of Action – Intentional Tort

The fifth cause of action alleges torts under Civil Code sections 1708, 1709, and 1710.   Section 1708 states generally that a person is to abstain from injuring another person.  That does not create a cause of action.  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.” 

            Defendants argue the complaint does not allege reliance or that Plaintiffs would have acted differently if they had known of the concealed information.  (Demurrer at pp. 5-6.)  The complaint alleges Plaintiffs or others relied upon statements that the products were safe.  (Complaint, ¶ 47.)  More detail about what Plaintiffs or others would have done if they had known the products allegedly contained asbestos and whether they would have used those products can be developed in discovery.

Defendants contend the complaint fails to allege with specificity that Defendants intended to deceive Plaintiffs and acted intentionally to conceal facts from Plaintiffs .  (Demurrer at p. 6.)  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. 

The demurrers are OVERRULED.  Within ten days, Plaintiffs are to file and serve an amended preliminary fact sheet identifying the specific product or products at issue manufactured, sold or distributed by Defendants.  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 Defendants.  As discussed above, Plaintiffs need to amend the preliminary fact sheet to identify the specific product or products at issue manufactured, sold or distributed by Defendants. 

Otherwise, more details can be developed in discovery.  If Plaintiffs are able to prove the fraud or strict liability causes of action, they have a basis for punitive damages.  And Defendants can challenge the claims for punitive damages in motions for summary adjudication.

The motions to strike are DENIED.  Within ten days, Plaintiffs are to file and serve an amended preliminary fact sheet identifying the specific product or products at issue manufactured, sold or distributed by Defendants.  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.