Judge: Melvin D. Sandvig, Case: 21CHCV00794, Date: 2023-09-26 Tentative Ruling

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Case Number: 21CHCV00794    Hearing Date: September 26, 2023    Dept: F47

Dept. F47

Date: 9/26/23

Case #21CHCV00794

 

DEMURRER & MOTION TO STRIKE

TO THE

FIRST AMENDED COMPLAINT

 

Demurrer & Motion to Strike filed on 8/7/23.

 

MOVING PARTY: Defendant Miles Chemical Company, Inc.

RESPONDING PARTY: Plaintiff Estate of Rosa Pleitez, by and through her husband, Rigoberto Pleitez

NOTICE: ok

 

Demurrer is to the 2nd cause of action:

            1.  Wrongful Death

            2.  Survival Action

 

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking portions of the First Amended Complaint regarding punitive damages and attorney’s fees (¶¶51, 57, Prayer ¶3 and Prayer (second) ¶3).

 

RULING: The demurrer is overruled.  The motion to strike is granted without leave to amend as to the prayer for attorney fees.  The motion to strike is granted as to the allegations regarding and prayer for punitive damages – whether leave to amend is granted as to the punitive damage allegations and prayer will be determined at the hearing.  (See “Conclusion” below).    

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of Plaintiff Estate of Rosa Pleitez, by and through her husband, Rigoberto Pleitez’s (Plaintiff) claim that from 10/13/19 through at least 9/21/20, Decedent Rosa Pleitez (Decedent) was exposed to chemicals and caustic products produced, manufactured, distributed and/or sold by Defendant Miles Chemical Company, Inc. (Miles Chemical) and others while employed as a janitor for Carbonite Industries in Riverside, California.  (FAC ¶¶ 1, 2).  It is alleged that Decedent developed catastrophic interstitial lung disease with major injury and disability that affected her ability to work and support herself and her family and ultimately, was a substantial factor in her death on or about 3/26/22.  (FAC ¶2).  The First Amended Complaint alleges that the substances Decedent was exposed to were scientifically known to cause and/or contribute to the development of interstitial lung disease and directly caused or contributed to Decedent's death.  (FAC ¶3).  Plaintiff alleges that Decedent did not receive adequate warning regarding the potential for injury and development of injury and development of lung injury or interstitial lung disease from Defendant.  (FAC ¶4).  Plaintiff also alleges that Defendants engaged in the business of testing, developing, designing, manufacturing, selling, distributing, and promoting their chemical products which are defective and unreasonably dangerous to consumers, including Decedent.  (FAC ¶19).  Additionally, Plaintiff alleges that Defendants knew or had reason to know that the products which they produced, manufactured, distributed and/or sold to Decedent's employer were defective and were inherently dangerous and unsafe when used in the manner instructed and provided by Defendants.  (FAC ¶¶ 25, 42).  Further, Plaintiff alleges that Defendants wrongfully concealed information concerning the dangerous nature of their chemicals and made false and/or misleading statements concerning the safety of Defendants’ products.  (FAC ¶¶ 34, 38, 47).  Plaintiff alleges that Defendants breached their duty of reasonable care and failed to exercise ordinary care in the design, research, development, manufacturing, testing, marketing, supply, promotion, advertisement, packaging, sale and distribution of their chemical products.  (FAC ¶¶ 46, 48, 55).  Plaintiff also alleges that    Defendants’ reckless, wanton and conscious disregard of the known defects in their products and associated health risks known to be caused or contributed by their chemical products, amounts to willful, malicious misconduct that supports an award of punitive damages against Defendants. (FAC ¶¶ 51, 57).   

 

On 10/8/21, Plaintiffs Rosa Pleitez and Rigoberto Pleitez filed the original complaint in this action asserting causes of action for: (1) Strict Liability – Design Defect, (2) Strict Liability – Failure to Warn, (3) Negligence, (4) Breach of Implied Warranty and (5) Loss of Consortium.  Thereafter, Plaintiff Rosa Pleitez died.  On 5/24/23, Plaintiff Estate of Rosa Pleitez, by and through her husband, Rigoberto Pleitez filed a First Amended Complaint asserting causes of action for: (1) Wrongful Death and (2) Survival Action.  After meet and confer efforts failed to resolve the issues Defendant Miles Chemical had with the First Amended Complaint, on 8/7/23, Miles Chemical filed and served the instant demurrer to the 2nd cause of action in the First Amended Complaint.  Additionally, Miles Chemical filed and served the instant motion to strike which seeks to strike portions of the First Amended Complaint relating to punitive damages and attorney’s fees (FAC ¶¶51, 57, Prayer ¶3 and Prayer (second) ¶3).  Plaintiff has opposed the demurrer and motion to strike and Miles Chemical has filed replies to the oppositions. 

 

ANALYSIS

  

Demurrer

 

The demurrer is based on the ground that Plaintiff’s 2nd cause of action, survival action, is uncertain.  CCP 430.10(f).

 

In a survival action, the damages recoverable by a decedent’s representative or successor in interest on the decedent’s cause of action are limited to the loss or damage that the decedent sustained or incurred before death.  CCP 377.34.

 

Miles Chemical contends that Plaintiff’s survival cause of action is uncertain because the original complaint brought by Decedent, while she was alive, included causes of action for strict liability – design defect, strict liability – failure to warn, negligence, and breach of implied warranty and it is unclear which of those claims are being asserted on behalf of Decedent in the second cause of action in the First Amended Complaint.

 

The First Amended Complaint supersedes the original complaint which ceases to have any effect as a pleading or as a basis for judgment.  See State Compensation Insurance Fund (2010) 184 CA4th 1124, 1130-1131 (internal citations omitted).  The First Amended Complaint adequately alleges the bases for the survival action claim and the claim is not so uncertain that Miles Chemical cannot respond.  (See FAC ¶¶52-57).  Any further clarification needed by Miles Chemical can be obtained through discovery.   

 

Motion to Strike

 

A motion to strike may be used to challenge a request for improper damages.  Caliber Bodyworks, Inc. 134 CA4th 365, 384-385; Grieves (1984) 157 CA3d 159, 166-168; CCP 436(a).

 

Attorney’s fees are only recoverable when authorized by contract, statute or law.  CCP 1033.5(a)(10).  The First Amended Complaint does not allege any of the foregoing bases to support the prayer for attorney’s fees nor does Plaintiff address Miles Chemical’s request to strike the prayer for attorney’s fees in the opposition to the motion to strike other than to conclude that it is adequately pled.  (See Opposition to Motion to Strike, p.3:11-13). 

 

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.  Civil Code 3294(a).  As used in Civil Code 3294 “‘[m]alice’ 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;” “‘[o]ppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights;” and “‘[f]raud’ 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.”  Civil Code 3294(c).

 

"'Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens should not have to tolerate.' [Citation.]"  Lackner (2006) 135 CA4th 1188, 1210; See also Tomaselli (1994) 25 CA4th 1269, 1287; Mock (1992) 4 CA4th 306, 331.  Mere negligence, carelessness or recklessness, alone, is insufficient to support a claim for punitive damages.  Bell (1989) 212 CA3d 1034, 1044; Hughes (1989) 215 CA3d 832, 847.

 

In order to support a claim for punitive damages, a complaint must allege “ultimate facts of the defendant’s oppression, fraud, or malice.”  Cyrus (1976) 65 CA3d 306, 316-317; Blegen (1981) 125 CA3d 959, 963.  Additionally, a claim for punitive damages must be pled with particularity.  Brosseau (1977) 73 CA3d 864, 872.  Further, with regard to a corporate defendant such as Miles Chemical, Plaintiff has failed to plead facts showing the requisite intent on the part of a corporate leader or that the conduct of an employee which would support a claim for punitive damages was authorized or ratified by an officer, director or managing agent.  See Cruz (2000) 83 CA4th 160, 167; White (1999) 21 C4th 563, 572; Civil Code 3294(b).     

 

Here, the First Amended Complaint does not plead sufficient specific facts to support a claim for punitive damages against Miles Chemical.  Plaintiff has not alleged facts showing the type of intentionally tortious conduct on the part of Miles Chemical which is necessary to support a claim for punitive damages.  Allegations that Miles Chemical knew or should have known its products posed a grave risk are insufficient to meet the requisite pleading standard for punitive damages.  (See FAC ¶¶26.f, 33, 34, 37, 43, 44, 48.i, 51, 57).  The opposition essentially concedes that Plaintiff does not currently have sufficient facts to support a claim for punitive damages by arguing that “Plaintiff has not yet conducted discovery and depositions in this matter and believe that Defendant MILES had knowledge of their products and failed to warn and allow the safety of the consumers to be at risk so that Defendant MILES would not have to modify or alter the product or packaging or warnings all due to the financial cost.”  (See Opposition to Motion to Strike, p.5:20-24).   

 

CONCLUSION

 

The demurrer is overruled. 

 

The motion to strike is granted without leave to amend as to the prayer for attorney fees (Prayer, (second) ¶3, p.23:5).

 

The motion to strike is granted as to the allegations regarding and prayer for punitive damages.  The Court would normally grant leave to amend based on the liberal policy of allowing amendments and since this is only the First Amended Complaint.  However, it is not clear how Plaintiff will obtain the facts to support the claim in 30 days, which is the amount of time the Court usually allows for amendment after a motion to strike is granted.  Therefore, Plaintiff has the option of having the motion to strike as to the allegations regarding and prayer for punitive damages granted with 30 days leave to amend.  Or, having the motion to strike as to the allegations regarding and the prayer for punitive damages granted without leave to amend, but without prejudice to Plaintiff making a later motion to amend to add a claim for punitive damages, if facts to support such a damage claim are discovered. 

 

If Plaintiff chooses the second option, Miles Chemical’s answer will be due within 30 days.