Judge: Laura A. Seigle, Case: 22STV24848, Date: 2023-11-15 Tentative Ruling

Case Number: 22STV24848    Hearing Date: November 15, 2023    Dept: 15

[TENTATIVE] ORDER RE DEMURRER AND MOTION TO STRIKE

            Plaintiff Olden Wallace filed this action against Defendant Inglewood Unified School District on August 2, 2002, alleging a wrongful death case based on his wife’s exposure to mold and asbestos while at work.  (See, e.g., Complaint at pp. 4-5.)  On March 22, 2023, Plaintiff filed a first amended complaint alleging causes of action based on the wife’s exposure to mold and asbestos at work resulting in cancer and her death.  (See, e.g., FAC at pp. 4-5.)

            Plaintiff served Defendant with the first amended complaint on July 5, 2023, and on August 8, 2023, Defendant filed a demurrer and motion to strike.  On August 31, 2023, Plaintiff filed an ex parte application to continue the hearing on the demurrer and motion for thirty days, which the court granted, continuing the hearing to October 10, 2023.  Plaintiff then did not file oppositions.  Instead, at the hearing on October 10, 2023, Plaintiff’s counsel stated he had mis-calendared the hearing and thought it was in November.  Therefore, the court continued the hearing on the demurrer and motion to strike to November 15, 2023.  On November 1, 2023, Plaintiff filed an opposition to the demurrer but not to the motion to strike.

            Defendant argues the claims that Plaintiff’s wife fell sick and died as a result of exposure to mold and asbestos at work are barred by workers’ compensation exclusivity.

            In his opposition, Plaintiff does not dispute that the claims of alleged exposure to asbestos resulting in his wife’s lung cancer and death are subject to worker’s compensation exclusivity.  (Opposition at p. 3.)  Indeed, Plaintiff acknowledges his wife “filed for workers’ compensation benefits against [Defendant] . . . alleging exposure to the job caused her cancer.”  (Id. at p. 4.)  However, Plaintiff argues he can plead a new cause of action that Defendant “engaged in concealment of the exposure to mold discovered in [his wife’s] classroom – which aggravated [his wife’s] lung cancer,” and that such a cause of action is viable under Labor Code section 3602, subdivision (b)(2).  (Id. at p. 3.) 

“Section 3602, subdivision (b)(2) provides a narrow exception to this exclusivity rule and allows a civil suit ‘[w]here the employee’s injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer’s liability shall be limited to those damages proximately caused by the aggravation . . . .’  This provision was enacted in 1982 and codifies the common law fraudulent concealment exception that was enunciated by our Supreme Court in Johns–Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465.”  (Jensen v. Amgen, Inc. (2003) 105 Cal. App. 4th 1322, 1326.)  “Three conditions are necessary for the fraudulent concealment exception to apply: (1) the employer must have concealed ‘the existence of the injury;’ (2) the employer must have concealed the connection between the injury and the employment; and (3) the injury must have been aggravated following the concealment.  [Citation.]  If any one of these conditions is lacking, the exception does not apply and the employer is entitled to judgment in its favor.”  (Jensen, supra, 105 Cal. App. 4th at 1325.) 

As the Jensen court explained, this exception is extremely narrow.  In almost all cases, an employee will be aware of the existence of the injury and the fact that the injury is connected to the employment.  The exception applies only in limited situations, such as where an employer is aware that toxic chemicals are causing employees to become sick and conceals the information from the employee.  In such a circumstance, an employer may know that an employee is injured before the employee does and the employee may not be aware that symptoms the employee is experiencing are related to workplace exposure.  (See Jensen, supra, 105 Cal. App. 4th at 1327.)

The first element requires that the defendant “actually knew of [the plaintiff’s] injury before she did.”  (Jensen, supra, 105 Cal.App.4th at p. 1326.)  Here, Plaintiff states his wife was diagnosed with lung cancer in November 2020.  (Wallace Decl., ¶6.)  Thus by November 2020, Plaintiff’s wife knew she had lung cancer.  Plaintiff does not state he can allege that Defendant knew that his wife had been injured before his wife learned about her injury in November 2020. 

The second element requires that the defendant “concealed the connection between [the plaintiff’s symptoms] and her employment.”  (Jensen, supra, 105 Cal.App.4th at p. 1327.)  In Jensen, the plaintiff informed her employer that she believed she was having reactions to her work environment and “was the first person to associate her symptoms with mold after she learned that it had been discovered” at her workplace, but she had no evidence that her employer connected her symptoms to exposure to mold.  (Ibid.)  Likewise, here Plaintiff’s wife made the connection between her workplace and her lung cancer.  After her diagnosis, she told her principal that she would need to miss some days to receive chemotherapy for her lung cancer.  (Wallace Decl., ¶ 9.)  In August 2021 and November 2021, Plaintiff’s wife told the principal that she “suspected that the hazardous work environment led or contributed to her health issue (lung cancer) and [his wife] referenced asbestos and toxic fumes that she was exposed to while [at work].”  (Id., ¶ 13.)  She “objected to being returned to the same work environment and was worried about her health.”  (Id., ¶ 14.)  Defendant did not respond to her concerns and did not remove her from that toxic environment.”  (Id., ¶ 17.)  While Plaintiff’s wife made these connections, Plaintiff does not contend that Defendant knew before his wife did that mold in her workplace was injuring her.

Thus, Plaintiff has not shown that he can allege facts supporting the first two elements of the proposed claim.  To the contrary, Plaintiff’s alleged facts establish that his wife knew about her lung cancer and suspected its connection to her workplace before Defendant did.  Therefore, the demurrer is SUSTAINED without leave to amend.  The motion to strike is MOOT.

Defendant is to file a proposed judgment of dismissal within five court days.

The moving party is to give notice.