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.