Judge: Mark A. Young, Case: SS027334, Date: 2022-07-28 Tentative Ruling
Case Number: SS027334 Hearing Date: July 28, 2022 Dept: M
CASE NAME: Mireles, et al., v. Axiall Corp., et al.
CASE NO.: SS027334
MOTION: Motion for Summary Judgment/Adjudication by Defendant A.L. Wilson
HEARING DATE: 7/28/2022
SUMMARY OF RULING
Defendant A.L. Wilson’s (ALW) motion for summary judgment is DENIED. ALW’s motion for summary adjudication is GRANTED as to both issues.
Legal Standard
A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., § 437c(a).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c(f)(1).) If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544.) “[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to” subdivision (t). (Code Civ. Proc., § 437c(t).)
To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c(c).) The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment…” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion “may not be denied on grounds of credibility,” except when a material fact is the witness’s state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (Code Civ. Proc., § 437c(e).)
Once the moving party has met their burden, the burden shifts to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)
“The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Ibid.)
EVIDENTIARY ISSUES
ALW’s request for judicial notice is GRANTED over Plaintiffs’ objection. (Evid. Code § 452(d).) As the California Supreme Court has recognized, “[w]hen judicial notice is taken of a document…the truthfulness and proper interpretation of the document are disputable.” (StorMedia Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn.9.)
Analysis
Statute of Limitations
ALW first asserts that all claims are barred by the operative two-year statute of limitations. ALW additionally argues that the doe amendment that brought ALW into this action does not relate back to the original complaint because Plaintiffs were not “genuinely ignorant” of ALW or ALW’s connection with Plaintiffs’ claims.
Code of Civil Procedure section 340.8(a) provides for a two-year statute of limitations in this action:
In any civil action for injury or illness based upon exposure to a hazardous material or toxic substance, the time for commencement of the action shall be no later than either two years from the date of injury, or two years after the plaintiff becomes aware of, or reasonably should have become aware of, (1) an injury, (2) the physical cause of the injury, and (3) sufficient facts to put a reasonable person on inquiry notice that the injury was caused or contributed to by the wrongful act of another, whichever occurs later.
Generally, “[a] plaintiff must bring a claim within the limitations period after accrual of the cause of action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.) “[A] cause of action accrues at ‘the time when the cause of action is complete with all of its elements.’ ” (Id.) “An important exception to the general rule of accrual is the ‘discovery rule,’ which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [¶] A plaintiff has reason to discover a cause of action when he or she ‘has reason at least to suspect a factual basis for its elements.’ ” (Id., at 807, citations omitted.) Plaintiffs are charged with presumptive knowledge of an injury if they have information of circumstances to put them on inquiry or if they have the opportunity to obtain knowledge from sources open to their investigation. (Id., footnote and quotations omitted.)
“A plaintiff need not be aware of the specific ‘facts’ necessary to establish the claim; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111.) That said, suspicion encompasses not just the suspicion that a defendant’s product caused harm; there must also be the suspicion that a defendant’s wrongdoing caused the injuries giving rise to the suit. (Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1059.) “Even when there is an appreciable manifestation of harm, that harm may not necessarily cause any suspicion of wrongdoing.” (Brewer v. Remington (2020) 46 Cal.App.5th 14, 26.) In other words, “unsatisfactory outcomes or naturally occurring side effects are not necessarily sufficient as a matter of law to place a person on inquiry notice of a defendant's wrongdoing.” (Id.)
For example, the plaintiff in Jolly was injured by a drug her mother took during pregnancy. At the time she filed suit, a one-year statute of limitations applied to her claims. The plaintiff testified that by 1978 she had an interest in obtaining more information about the drug that may have harmed her, and that by 1978 she felt the drug was defective and that she should be compensated. (Jolly, supra, 44 Cal.3d at 1112.) The court found this admission sufficient evidence that she suspected wrongful conduct by defendants over a year before she filed suit. (Id.) The court reasoned that had she investigated in 1978, it would have yielded facts showing wrongdoing by the drug manufacturer. (Id. at 1112-1113.) Plaintiff’s suspicion in 1978 was sufficient to begin the limitations period and render her suit, filed in 1981, untimely. (Id. at 1114.)
In Rivas, the court upheld a grant of summary judgment based on a one-year statute of limitations where the plaintiff suffered kidney injuries because he used a particular solvent at work. (Rivas v. Safety Kleen Corp. (2002) 98 Cal.App.4th 218.) Seven years before filing suit, one of the plaintiffs saw a doctor who diagnosed his kidney disease, asked him about the chemicals he used at work and told him to stay away from the solvent. (Id. at 223.) His kidneys deteriorated until he required a kidney transplant in November 1995. (Id.) In April 1996, Rivas learned from his mother that he might be entitled to workers’ compensation, and sought legal advice. He eventually filed a workers’ comp claim, which included injuries to his kidney. Rivas did not file his complaint until April 1998, but pled he was ignorant of the toxic cause of his disease until March 1998. The appellate court concluded that even if the doctor's advice to keep away from the solvent could be seen as ambiguous and insufficient to arouse a reasonable person's suspicion, the plaintiff's workers' compensation claim “is definitive proof that he had a suspicion that ‘someone ha[d] done something wrong to [him]’ long before his civil complaint was filed....” (Id. at 229.)
In Clark, a plaintiff, a nurse, sued a manufacturer of latex gloves after she experienced symptoms such as skin rashes and breathing problems in 1992, which she suspected were caused by an allergic reaction to latex gloves. (Clark, supra, 83 Cal.App.4th at 1052.) In 1994, plaintiff consulted doctors and concluded her symptoms were attributable to her latex allergy. (Id.) In May 1995, she had an anaphylactic attack when her gynecologist touched her while wearing latex gloves. However, the plaintiff claimed she did not suspect any of her problems were caused by any wrongdoing until receiving an article in late 1995 about latex allergies litigation. (Id.) In January 1996, the plaintiff filed a complaint against the manufacturer, alleging extended exposure to toxic substances contained in the gloves caused severe injuries. (Id. at 1053.) The manufacturer moved for summary judgment, arguing that plaintiff was aware of her injuries, attributed those injuries to latex gloves, and should have suspected that there was something wrong with the gloves. (Id.) The court held it was not clear as a matter of law the plaintiff was on notice of the manufacturer’s wrongdoing based on symptoms the plaintiff assumed were part of her latex allergy. (Id. at 1059–1060.) The court found triable issues of fact regarding her knowledge or awareness of wrongdoing, because “there is evidence in the record to support a reasonable inference that [plaintiff's] latex allergies did not perforce lead her to suspect that the latex gloves might have been defectively manufactured in some respect.” (Id., at 1059–1060.) A fact finder could reasonably infer plaintiff “did not become aware of a potential wrongfulness component of her cause of action until more information than the existence of her allergies placed her on inquiry notice....” (Id. at 1060.) Thus, while she had known about the connection between the gloves and her allergies since 1994, she believed her problems were simply caused by her own naturally occurring allergic reaction and not from any wrongdoing on the part of the manufacturer.
In this case, summary judgment should only be granted where the evidence demonstrates that only one legitimate inference may be drawn regarding the amount of notice or information of circumstances that would put a reasonable layperson on inquiry about potential wrongdoing that harmed them. (Jolly, supra, 44 Cal.3d at 1110-1112; see NBC Universal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 1231; Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1390 [courts uphold summary judgment on statute of limitations grounds involving facts supporting only one legitimate inference].)
The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. A recognized exception to the general rule is the substitution of a doe defendant under Civil Procedure section 474 and the relation back doctrine. An amended complaint will “relate back” to, and be deemed filed as of the date of, the original complaint if: (1) the original complaint stated a valid cause of action against the now-identified Doe defendant; (2) plaintiff was “genuinely ignorant” of the defendant’s identity; and (3) the amended complaint is based on the same general set of facts as the original. (Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 600-601.) The requirement of good faith ignorance of the true name of a fictitiously designated defendant is designed to promote the policies supporting the statute of limitations. (McGee Street Productions v. Workers’ Comp. Appeals Bd. (2003) 108 Cal.App.4th 717.) To defeat the amendment, the burden is on defendant to prove plaintiff's earlier awareness of defendant’s identity and facts creating its liability. (Breceda v. Gamsby¿(1968) 267 Cal.App.2d 167, 179.)
Mr. Mireles worked at dry cleaning facilities in Los Angeles, California from around 1991 until 2014. Mr. Mireles was injured during his employment because of exposure to toxic chemicals. (UMF 7.) On June 20, 2018, Plaintiffs filed their original complaint alleging that each defendant was a supplier and/or manufacturer of chemical products which caused Mr. Mireles’s cancer. (UMF 1.) Plaintiffs also alleged that “[t]he true names and capacities of Defendants Does 1 through 200 are unknown to the Plaintiffs, who therefore sue said defendants by such fictitious names.” (UMF 3.) On August 12, 2019, Plaintiffs filed a Doe Amendment amending the original complaint by naming A.L. Wilson as "Doe 1." (UMF 6.)
Here, Plaintiffs argue that while Mr. Mireles was first diagnosed with kidney cancer in 2009, he was “blamelessly ignorant of its cause” because “no physician ever told Plaintiff, Jose Mireles, what the cause of Plaintiff’s kidney cancer was or that Plaintiff’s kidney cancer even had a cause.” (UMF 2.) Mireles was able to recall using ALW branded products, and the products RustGo, YellowGo, InkGo, and TarGo. (UMF 18-23.) The first time Mr. Mireles suspected his kidney cancer might be occupationally related was in October of 2016. (UMF 4.) In October 2016, the owner of Carriage Regal Cleaners and Regal Cleaners, Steven Green, began to suspect that his bladder cancer was caused by his exposure to dry cleaning solvents after he received a letter from attorney Metzger. (UMF 9.) Green subsequently informed Mr. Mireles of the fact that Mireles’ kidney cancer could also have been caused by his exposure to dry cleaning solvents, although the first amended complaint does not state when this occurred. (Id.) Plaintiffs position is that it was only after Mr. Mireles first met with his attorneys of record in December 2017, that Plaintiffs were able to identify the chemical products which caused Mr. Mireles's kidney cancer. (UMF 5, 10.)
Notably, on May 1, 2017, Plaintiffs’ counsel, the Metzger Law Group, filed a doe amendment naming A.L. Wilson as "Doe 1" in a different lawsuit, Habib v. Axiall, BC646594. (UMF 11-12.) Thus, ALW contends that Plaintiff’s attorney, Mr. Metzger, knew of ALW’s identity prior to the December 2017 meeting with Plaintiffs and that their products could cause unspecified occupational disease. (UMF 13.) In November 2017, Green had told Mr. Mireles that he was represented by Metzger and that they were finding out that the dry-cleaning chemicals "that we used caused cancer." (UMF 15-16.) Following that conversation, Mireles contacted Metzger. (UMF 17.) Presumably, this led to the December 2017 meeting between Mr. Mireles and Metzger.
Strictly construed, the evidence fails to support ALW’s position that Plaintiffs had actual or constructive knowledge through their counsel. Moreover, this evidence fails to establish that Plaintiffs were not ignorant of the facts creating ALW’s liability. ALW’s argument is based on speculation that Metzger informed Mireles of ALW’s identity and their connection to this case in December 2017, despite there being no evidence establishing such facts. ALW reasons that since Metzger knew of ALW’s role in Habib’s injuries, Metzger also must have known of ALW’s role in Mireles’s kidney cancer. ALW thus concludes that the Doe Amendment filed in this action on August 12, 2019, was “patently false.” ALW, however, fails to demonstrate that this would be the only legitimate inference from the above facts. Strictly construed, the Court does not have to conclude that Metzger specifically communicated the connection between Mr. Mireles’s kidney cancer and ALW’s products. While the evidence generically suggests that some products were discussed, this does not establish ALW’s products were discussed. The evidence does not even establish that Metzger knew of the connection between Mr. Mireles’s kidney cancer and ALW’s products. Thus, the Court cannot infer with certainty that Metzger could convey this information to Plaintiffs. Thus, on this record, the Court cannot conclude that Mr. Mireles discovered ALW’s connection to this case in December 2017.
Even if he did discover such a connection in December 2017, ALW does not explain why this would require judgment in their favor. On such facts, the earliest discovery occurred would be November 2017, when Mr. Green put Mr. Mireles on inquiry notice regarding his occupational cancer. On such facts, Mr. Mireles would have until November 2019 to file his doe amendment. The doe amendment was filed in August 2019, which is less than two years from this discovery. Therefore, Plaintiffs would not have to rely on the relation back doctrine.
Accordingly, the motion for summary judgment is DENIED.
Fraud
“‘[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.’ [Citations.]” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868; see Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 844 [“the elements of fraud and deceit based on concealment are the same as for intentional fraud, with the additional requirement that… the defendant was under a duty to disclose that material fact”].) As an action for fraud based on concealment requires that a person intentionally conceal a fact with the intent to defraud, mere negligent concealment does not suffice.¿(Id.; see Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 [element of scienter requires knowledge of falsity, or acting with reckless disregard of a statement’s truth or falsity]; see also Diediker v. Peelle Fin'l Corp. (1997) 60 Cal.App.4th 288, 297-298 [negligent misrepresentation requires a positive assertion, not merely an omission or implied representation].)
A moving party may meet their initial burden on summary adjudication by showing the opposing party does not possess, and cannot reasonably obtain, needed evidence.¿(Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.)¿The moving party must present evidence in the form of discovery admissions and/or factually devoid “all facts” discovery responses.¿(Ganoe v. Metalclad Insulation (2014) 227 Cal.App.4th 157; Andrews v. Foster Wheeler (2006) 138 Cal.App.4th 96.)
ALW meets its initial burden to show that Plaintiffs have no evidence, and cannot reasonably obtain necessary evidence, that ALW acted with the intent to defraud and with knowledge of falsity. (UMF 24-41.) Plaintiffs’ discovery responses contain no substantive facts regarding ALW’s concealment or suppression of a material fact on which Plaintiffs relied. (UMF 24-31; Ex. H [see, e.g., SIs nos. 81-86], Ex. J [responses thereto].) Mr. Mireles testified that he has never spoken or met with anyone from ALW and has no information or knowledge that ALW ever made any misrepresentations or misled him in any way. (UMF 39-41.)
Accordingly, ALW’s motion for summary adjudication is GRANTED as to this issue.
Punitive Damages
ALW also moves to adjudicate the issue of punitive damages. “A claim for punitive damages is one of the substantive areas which is a proper subject of a motion for summary adjudication.”¿ (Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 92.)¿ To support a claim of punitive damages, a plaintiff must prove by “clear and convincing evidence” that defendant engaged in “oppression, fraud or malice” in the commission of a tort.¿(Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121.) Civ. Code section 3294(c) provides the following definitions for oppression, fraud and malice:
“Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
“Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
Code of Civil Procedure section 3294(b) requires the managing agents or officers of a corporation have “actual knowledge of the conduct and its outrageous nature.” (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 726.)
The above-discussed discovery responses cited no evidence that any officer, director, or managing agent of ALW had actual knowledge of any conduct alleged to give rise to punitive damages. (UMF 43-52.) The responses showed that Plaintiffs had no evidence and are not reasonably able to obtain such evidence. The proffered presumed knowledge on the part of unknown actors is insufficient.
Accordingly, ALW’s motion for adjudication is GRANTED as to this issue.