Judge: Laura A. Seigle, Case: 23STCV09956, Date: 2023-09-27 Tentative Ruling

Case Number: 23STCV09956    Hearing Date: January 24, 2024    Dept: 15

[TENTATIVE] ORDER RE DEMURRER

            Plaintiffs Jennifer Mager and John Mandracchia filed this case on May 3, 2023 alleging Defendant Revlon Consumer Products Corporation exposed Jennifer Mager to asbestos-containing products.  On December 28, 2023, Defendant filed a demurrer contending the claims against it are barred by the bankruptcy court’s confirmation of Defendant’s plan of reorganization entered on April 3, 2023.  Plaintiffs contend they did not have adequate notice of the bankruptcy to be barred.

            The court grants the request for judicial notice of the bankruptcy court orders attached to Defendant’s Request for Judicial Notice.

            For a Chapter 11 corporate debtor, the confirmation of a plan discharges the debtor from any debt that arose before the date of such confirmation even if no claim was filed.  (11 U.S.C. § 1141(d)(1)(A).)  “If potential future tort claimants have not filed claims because they are unaware of their injuries, they might challenge the effectiveness of any purported notice of the claims bar date.  Discharge of such claims without providing adequate notice raises questions under the Fourteenth Amendment.”  (In Re Grossman’s Inc. (3rd Cir. 2010) 607 F.3d 114, 122.)  “Any application of the test to be applied cannot be divorced from fundamental principles of due process.  Notice is ‘[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality.  . . .’  [Citation.]”  (Id. at pp. 125-126.)  “Inadequate notice therefore ‘precludes discharge of a claim in bankruptcy.’  [Citation.]”  (Id. at p. 126.)  Among other factors to consider in determining whether an asbestos plaintiff’s claims have been discharged by a plan of reorganization are “the circumstances of the initial exposure to asbestos, whether and/or when the claimants were aware of their vulnerability to asbestos, whether the notice of the claims bar date came to their attention, whether the claimants were known or unknown creditors, whether the claimants had a colorable claim at the time of the bar date, and other circumstances specific to the parties, including whether it was reasonable or possible for the debtor to establish a trust for future claimants as provided by § 524(g).”  (Id. at pp. 127-128.)

            Defendant contends that Plaintiffs received adequate notice because Defendant was not aware of their existence and their identities were not reasonably ascertainable by Defendant.  (Demurrer at p. 7.)  To support this assertion, Defendant cites a Declaration of Erich Gleber.  Defendant does not explain how the court can consider the contents of the declaration on a demurrer.  The contents of the declaration are not part of the complaint and are not judicially noticeable.  Defendant also attaches numerous other documents to the declaration of Anatolii Trembach that are not part of the complaint and the contents of which are not judicially noticeable.

            The demurrer is OVERRULED because it is based on matters outside the complaint.  The parties are ordered to meet and confer in person or by videoconference about how they plan to resolve this threshold issue of whether the order confirming the plan bars the claims against Defendant. 

            The moving party is to give notice.