Judge: Laura A. Seigle, Case: 23STCV23517, Date: 2024-01-04 Tentative Ruling

Case Number: 23STCV23517    Hearing Date: February 20, 2024    Dept: 15

[TENTATIVE] ORDER RE DEMURRER, MOTION TO STRIKE

DEMURRER

            Defendant Chattem, Inc. filed a demurrer to the third cause of action in the First Amended Complaint.  The third cause of action alleges all of the defendants made representations that “were false and untrue and constitute[] an actionable misrepresentation under Restatement Second, Torst section 402-B.”

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.) 

            Defendant argues that the third cause of action does not “identify what affirmative statement or representation Chattem ever made to Plaintiff Jody Kay Meade with the knowledge such representation was false and intending to induce Mrs. Meade’s reliance.”  (Demurrer at p. 7.)  That is not the test.  Under section 402-B, the plaintiff does not need to have relied on a misrepresentation.  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.) 

            Defendant also argues that Plaintiffs “fail to state what this express representation was by Chattem or any defendant.”  (Demurrer at p. 8.)  That is not correct.  The third cause of action alleges Defendant represented that “asbestos and asbestiform-minerals, including asbestos-contaminated talc and/or asbestos-contaminated talc products, were of merchantable quality, asbestos free, and safe for the use for which they were intended.”  (FAC, ¶ 48.)

            In the reply Defendant argues that Plaintiffs cannot claim punitive damages without a cause of action alleging oppression, malice, or fraud.  While Defendant may be correct that a cause of action under section 402 B is not a basis for punitive damages because such a cause of action does not require proof of intent to deceive, that is not reason to dismiss the section 402B cause of action.

            Defendant argues the complaint does not list the products at issue.  The preliminary fact sheet states that Defendant is responsible for personal talcum powder products.

            The demurrer is OVERRULED.

MOTION TO STRIKE

            On January 18, 2024, Defendant Chattem, Inc. filed papers in support of a motion to strike punitive damages but never filed a notice of motion and motion to strike.  Defendant argues that the notice of motion was part of the demurrer.  However, the notice of demurrer and demurrer does not mention a motion to strike punitive damages or even mention punitive damages generally.  Because Defendant failed to file a notice of motion and motion, the motion to strike is denied.

            Because Defendant did not file a notice of motion, it did not comply with California Rules of Court, rule 3.1322, which requires the notice of motion to quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph cause of action, count, or defense.  Defendant does not identify the specific language of the First Amended Complaint to be stricken.

            In addition, Defendant contends that Plaintiffs make allegations against it under Civil Code sections 1708-1710.  (Memorandum of Points and Authorities at p. 1.)  That is not correct.  The First Amended Complaint expressly states that Defendant is excluded from the fourth cause of action under sections 1708 through 1710.  (FAC at p. 21.)

            The motion is DENIED.

            The moving party is to give notice.