Judge: Martha K. Gooding, Case: 2021-01194904, Date: 2022-10-31 Tentative Ruling
1. Demurrer to Amended Complaint
2. Motion to Strike Complaint
3. Case Management Conference
A. Demurrer to SAC
The Court sustains the Demurrer by Defendant Edelmann USA Inc. (“Edelman”) to the seventh cause of action for battery. The Demurrer is otherwise overruled.
1. Third Cause of Action for Intentional Infliction of Emotional Distress
“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’
A defendant's conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant's conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–1051; CACI 1600.)
Here, Edelmann argues that insufficient facts are pled; that Plaintiff’s allegations impermissibly lump it together with Defendant Hubergroup, the employer; and that Plaintiff’s allegations are conclusory. The Court disagrees on all accounts. Accepting all facts alleged as true, the Court finds a claim has properly been asserted.
Plaintiff alleges that Defendant owned, operated, and controlled the premises where Plaintiff worked. (SAC, ¶13.) Plaintiff alleges that Edelmann knew Plaintiff was being exposed to chemicals that contained carcinogens while Plaintiff worked on Defendant’s premises. (SAC, ¶¶24, 26.) Plaintiff alleges that Edelmann also knew that exposure to these chemicals caused injuries including cancer. (Id.) “Defendants concealed the causal relationship between Plaintiff’s chronic exposure to the carcinogenic chemicals and his reported health-related issues, such as coughing, headaches, stomach aches, and dizziness.” (SAC, ¶32.) Plaintiff alleges that Edelmann knew that the environment – with no ventilation – was causing Plaintiff’s ailments. (SAC, ¶16.) Plaintiff alleges that Defendants acted with reckless disregard. (SAC, ¶55.)
Plaintiff also alleges Edelmann was informed by Plaintiff of his intolerable workplace environment and health issues, including coughing, headaches, stomach aches and dizziness. (SAC ¶ 2, 21, 90.)
For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law). (Aubry v. Tri-City Hosp. Dist. (1992) 2 C4th 962, 966-967; Serrano v. Priest (1971) 5 C3d 584, 591; Travelers Indem. Co. of Conn. v. Navigators Specialty Ins. Co. (2021) 70 CA5th 341, 358-359.)
Here, the allegations of knowledge set forth in the SAC are facts, not legal conclusions, and their truth cannot be determined on demurrer. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 [in testing a complaint against a demurrer, “[w]e ... ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context’ ”].)
Accepting all of the allegations as true, Plaintiff has properly pled a claim.
Finally, Edelmann argues that, although the SAC specifically identifies the Hubergroup personnel that he communicated his complaints to, it fails to identify a single representative of Edelmann that talked to Plaintiff. But Edelman cites no case requiring this level of specificity for an IIED claim.
Thus, the Demurrer is overruled.
2. Fourth Cause of Action for Failure to Warn (I) Count One: Negligent Failure to Warn; (II) Count Two: Statutory Failure to Warn
Edelmann argues that Count I is duplicative of the negligence causes of action and that Count II fails for lack of a prelawsuit notice.
As to Count I, alternative legal theories are permitted. (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402; Tanforan v. Tanforan (1916) 173 Cal. 270, 273.)
As to Count II regarding California Proposition 65, Plaintiff was required to give notice of an alleged violation more than 60 days before filing, notifying Defendant Edelmann, the California Attorney General, and all other public enforcers, and also was required to include a certificate of merit executed by the private enforcer or its attorney. (Physicians Committee Responsible Medicine v. KFC Corp. (2014) 224 Cal.App.4th 166, 178-179.) Failure to comply with this notice requirement subjects the complaint to a demurrer without leave to amend. (Id. at 182.)
However, demurrer does not lie to only part of a cause of action. If there are sufficient allegations to entitle plaintiff to relief, other allegations cannot be challenged by general demurrer. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 CA4th 1150, 1167 (disapproved on other grounds by Sheen v. Wells Fargo Bank, N.A. (2022) 12 C5th 905, 948 & fn. 12).
Thus, the Demurrer to this cause of action is overruled.
3. Sixth Cause of Action for Fraudulent Concealment
“[T]he elements of an action for fraud and deceit based on a 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.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248; CACI 1901.)
“A duty to speak may arise in four ways: it may be directly imposed by statute or other prescriptive law; it may be voluntarily assumed by contractual undertaking; it may arise as an incident of a relationship between the defendant and the plaintiff; and it may arise as a result of other conduct by the defendant that makes it wrongful for him to remain silent.” (SCC Acquisitions, Inc. v. Central Pacific Bank (2012) 207 Cal.App.4th 859, 860.)
Edelmann argues it owed no duty to disclose anything to Plaintiff and that there is no indication of what was concealed, how it was concealed, or who concealed it.
As to duty, all persons are responsible for injuries caused by their lack of ordinary care in managing their property. [Civ. C. § 1714(a); Kinsman v. Unocal Corp. (2005) 37 C4th 659, 672]
A landowner may have an affirmative duty to prevent harm as a result of ownership and control of land or as a result of a special relationship (e.g., landlord-tenant, business-customer, adult-child). [Sprecher v. Adamson Cos. (1981) 30 C3d 358, 368.]
Control is the most important element and may be enough on its own to impose a duty. (Alcaraz v. Vece (1997) 14 C4th 1149, 1162; Salinas v. Martin (2008) 166 CA4th 404, 414; Soto v. Union Pac. R.R. Co. (2020) 45 CA5th 168, 178-179.)
Here, Plaintiff alleges that Edelmann controlled the premises, knew about the chemical exposure, and knew those chemicals caused cancer. (SAC, ¶¶13, 16, 24, 26, 32.)
Plaintiff alleges “Defendants concealed from its employees, including Plaintiff WHITE, the identity and hazardous nature of the chemical compounds known by Defendants to contain carcinogens that Plaintiff was forced to work with on a daily basis.” (SAC, ¶28.)
Plaintiff alleges he repeatedly asked the Edelmann maintenance staff and management for their help with inadequate ventilation in the room where he worked, and no help was provided. (SAC, ¶21.) It was not until late 2018 that Edelmann added a tiny vent. (SAC, ¶22.)
Further, Edelmann cites no case supporting its assertion that Plaintiff must plead how Edelmann found out about the chemicals being used or how it obtained its knowledge that those chemicals cause injuries, including cancer. This is left to discovery.
Thus, accepting all facts pled as true, the Court finds a claim is properly alleged.
The Demurrer to this cause of action is overruled.
4. Seventh Cause of Action for Battery (Toxic Trespass)
Civil battery requires that defendant intentionally do an act that resulted in a harmful or offensive contact with the plaintiff. (Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 497; Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495.)
Plaintiff alleges that Hubergroup and Edelmann intentionally caused Plaintiff to introduce hazardous substances into his system. (SAC ¶ 105.) Plaintiff alleges Edelmann knew of the chemical carcinogens in its facility and intended harmful and offensive contact with the hazardous substances. (SAC ¶ 106.) Plaintiff further alleges that he did not consent to this contact and was injured as a result of Defendant’s actions and omissions. (SAC ¶¶ 107-111.)
But there is no specific act alleged by Edelmann. Rather, Plaintiff’s claims in the SAC are based on inaction by the property owner. Plaintiff alleges that the employer assigned him to work at the ink-plant. (SAC, ¶13.) There is no allegation that Edelmann was Plaintiff’s employer or provided the chemical substances. There also is no allegation of physical touching by force or violence.
The Court finds insufficient facts are pled. Plaintiff is ordered to come to the hearing prepared to discuss what additional facts he could allege to support the battery claim.
B. Motion to Strike Punitive Damages
Edelmann’s motion to strike punitive damages is DENIED.
Defendant takes issue with the request for punitive damages in the causes of action addressed above and in the strict liability claim. The Court is constrained to accept as true all factual allegations in the SAC.
Finally, Edelmann argues Plaintiff has not alleged required facts to plead punitive damages against a corporate defendant.
If the employer (principal) sought to be reached for punitive damages is a corporation (or other large organization), the advance knowledge and conscious disregard, authorization or ratification, or act of oppression, fraud or malice must be shown to have been on the part of an officer, director or managing agent acting in a corporate or employment capacity. (Civ. C. § 3294(b); College Hosp., Inc. v. Sup.Ct. (Crowell) (1994) 8 C4th 704, 723-724 & fn. 11.)
In Opposition, Plaintiff argues that the SAC clearly identifies that management employees at Edelman were informed by Plaintiff of his intolerable workplace environment and health issues, including coughing, headaches, stomach aches and dizziness. (SAC ¶ 2, 21, 90.) The Court finds this sufficient.
The Motion is therefore denied.
Edelmann is ordered to give notice of this Order.