Judge: Monica Bachner, Case: 20STCV20443, Date: 2022-10-27 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 20STCV20443    Hearing Date: October 27, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendant Southwest Drilling, Inc.’s demurrer to complaint of Plaintiffs Craig Steven Roberts and Carla Roxanna Roberts, is overruled as to the 2nd, 3rd, and 4th causes of action.

Defendant Southwest Drilling, Inc.’s motion to strike is denied.

Requests for Judicial Notice

Defendant’s April 13, 2022, Requests for Judicial Notice are granted.

A.   Demurrer

          Defendant Southwest Drilling, Inc. (“Southwest”) (“Defendant”) demurs to the 2nd (strict liability—failure to warn), 3rd (strict liability—design defect), and 4th (fraudulent concealment) causes of action in the complaint of Plaintiffs Craig Steven Roberts (“Craig”) and Carla Roxanna Roberts (“Carla”) (collectively, “Plaintiffs”). Defendant demurs on the grounds that the second through fourth causes of action fail to allege sufficient facts to constitute the causes of action and are uncertain.  (Notice of Demurrer, pg. 2; C.C.P. §§430.10(e), (f).)

This action arises out of Craig’s injuries sustained in the course of his employment at the Los Angeles County Sheriff’s Department from about 2006 through 2018 as a K-9 Bomb Unit trainer.  (Complaint ¶4.)  Plaintiffs allege Craig worked with and was exposed to lead, mercury, organic peroxides, oxidizing agents, explosives, solvents, and other chemical products at toxicologically significant levels.  (Complaint ¶¶5, 7.)  Plaintiffs allege as a direct and proximate result of Craig’s exposure to the toxic chemical products, Craig sustained serious injuries to his internal organs, including Multiple Sclerosis and other related and consequential injuries, for which Craig has been hospitalized and undergone other medically necessary treatments.  (Complaint ¶¶8, 9.)  Craig was first diagnosed with Multiple Sclerosis on or about November 6, 2018, and was not aware that he sustained any appreciable injury until this date, and was not told by a physician what the cause of his Multiple Sclerosis was or that his Multiple Sclerosis even had a cause.  (Complaint ¶¶10, 11.)  Plaintiffs allege Craig first suspected his Multiple Sclerosis might be occupationally related on or about February 2019.  (Complaint ¶12.)

Plaintiffs allege Doe Defendants fraudulently concealed from Craig material facts concerning the nature of the chemicals to which Craig was exposed, the toxic hazards of their chemical products, the hazards of conditions Craig was exposed to said chemical products, and the cause of Craig’s injuries and occupational disease, and that their products were toxins, contained toxic ingredients, or contained toxic contaminants as a result of manufacturing processes.  (Complaint ¶¶14, 15, 16.)  Plaintiffs allege Doe Defendants failed to disclose to Craig toxic hazards of their products, which they were required to disclose by law pursuant to the Hazard Communication Standard and California common law.  (Complaint ¶17.)

On May 28, 2020, Plaintiffs filed their complaint against Doe Defendants 1 through 250, inclusive for six causes of action: (1) negligence; (2) strict liability—failure to warn; (3) strict liability—design defect; (4) fraudulent concealment; (5) breach of implied warranties; and (6) loss of consortium.  On February 14, 2022, Plaintiffs filed an amendment to their complaint designating Doe Defendant No. 1 as Southwest Drilling, Inc., dba Southwest Explosives. On April 13, 2022, Defendant filed the instant demurrer and accompanying motion to strike. Plaintiffs filed their oppositions to the demurrer and motion to strike on October 14, 2022.  Defendant filed their replies on October 20, 2022.

Request for Judicial Notice

Defendant request for judicial notice as to the documents in the instant case file is denied, as there is no need to take judicial notice because the Court can always review the file for the case at hand.   

Summary of Demurrer

          In support of its demurrer to Plaintiffs’ second, third, and fourth causes of action, Defendant argues Plaintiffs’ willful misconduct, oppression, malice, and punitive damage claims fail to state facts sufficient to constitute causes of action and are uncertain.  (Memorandum, pgs. 3-4.)

Legal Standard

Willful Misconduct and Punitive Damages (2nd, 3rd, and 4th COAs)

“[A] demurrer tests the sufficiency of the factual allegations of the complaint rather than the relief suggested in the prayer of the complaint.” (Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1562; see also Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [“[A] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.”].)

A claim for punitive damages is not an independent cause of action.  (See Coleman v. Gulf Insurance Group (1986) 41 Cal.3d 782, 789 n.2 [“Of course, there is no separate or independent cause of action for punitive damages.”]; see also McLaughlin v. National Union Fire Insurance Co. (1994) 23 Cal.App.4th 1132, 1163 [“In California there is no separate cause of action for punitive damages.”].)

Defendant’s demurrer argues the complaint is unverified and makes conclusory allegations of Defendant’s “willful” and “malicious” conduct and includes an insufficient, unverified prayer for punitive damages in conclusory terms that is highly prejudicial to Defendant.  (Grieves v. Superior Court (1984) 157 Cal.App.3d 159.)  Defendant’s demurrer is overruled on the grounds that a motion to strike, not a demurrer is the procedure to attack an improper claim for punitive damages; a demand for improper relief does not vitiate otherwise valid causes of action.  (Caliber Bodyworks,Inc. v. Superior Court (2005) 134 Cal. App. 4^th 365, 385.)

Accordingly, Defendant’s demurrer to the 2nd, 3rd, and 4th causes of action is overruled.

B.   Motion to Strike

Defendant moves to strike portions of the complaint.  Defendant moves to strike the following paragraphs from of the complaint on the grounds they assert factually unsupported, conclusory requests for punitive damages and fail to allege facts for allegations of oppression, fraud, or malice: (1) ¶¶ 52 and 53; (2) ¶¶ 69 and 70; (3) ¶¶ 91 and 92; and (4) Prayer ¶7.  (Notice of MTS, pg. 2; C.C.P. §§435, 436, 437.)

Meet and Confer

Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet and confer efforts.  (C.C.P. §435.5(a).)

Pursuant to C.C.P. §435.5, parties met and conferred by telephone on March 25, 2022, regarding Defendant’s intention to file the instant motion to strike and did not reach an agreement.  (Decl. of Cahill ¶6.)

Legal Standard

C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading” and/or “strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” A motion to strike should be applied cautiously and sparingly because it is used to strike substantive defects.  (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683.)  The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice. (C.C.P. §437.)  Conclusory allegations will not be stricken where they are supported by other, factual allegations in the complaint. (See Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6 [“The distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree.” (Citations.)].)

Punitive Damages

Civil Code §3294(a), governing punitive damages, provides: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

Malice is defined as “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.” (Civ. Code §3294(c)(1).) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Id., §3294(c)(2).) “Fraud” is “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.” (Id., §3294(c)(3).)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255; accord Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-17.)  Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

Plaintiffs’ allegations for punitive damages state, “the conduct of Defendants in exposing Plaintiff to said toxic chemicals without adequate warnings of their toxic hazards and without adequate instructions for safe handling and use was despicable, malicious, oppressive, and perpetrated in conscious disregard of the rights and safety of Plaintiffs, entitling Plaintiffs to punitive and exemplary damages.” (Complaint ¶¶53, 70, 92.)  Plaintiffs allege that Defendant “negligently and carelessly imported, produced, and distributed the foregoing chemical products to Plaintiff’s places of employment, where Plaintiff, Craig Steven Roberts, was exposed to said toxic chemical products” and Defendant “failed to adequately warn Plaintiff . . . and Plaintiff’s employers[] of the hazards of said toxic chemical products and failed to provide adequate instructions to Plaintiff . . . and . . . Plaintiff’s employers for the safe handling and use of said toxic chemical products.”  (Complaint ¶¶21, 22.)  Plaintiffs allege,

In exposing Plaintiff to said toxic chemicals, Defendants failed to warn Plaintiff of known dangers, consciously disregarded Plaintiff’s safety despite knowledge of the probable dangerous consequences of their chemicals, and willfully and deliberately failed to avoid said dangerous consequences befalling Plaintiff. Defendants were either aware of, or culpably indifferent to, unnecessary risks of injury to Plaintiff and failed and refused to take steps to eliminate or adequately reduce the risk of said dangerous consequences to Plaintiff. Defendants concealed known toxic hazards of their chemicals from Plaintiff, specifically by failing to warn Plaintiff of adverse toxic effects of their chemicals, and such hazards were known by and such concealment was ratified by the corporate officers and managers of each of the defendants. Defendants consciously decided to market their chemicals with knowledge of their harmful effects and without remedying the toxic effects of their chemicals, and such marketing despite knowledge of the foregoing toxic hazards of Defendants’ products was ratified by the corporate officers and managers of each of the defendants. Defendants also misrepresented the nature of their chemical products, by withholding information from Plaintiff regarding toxic chemicals, released from their products during their anticipated or reasonably foreseeable uses, and such misrepresentation and withholding of information was ratified by the corporate officers and managers of each of the defendants.

(Complaint ¶¶52, 69, 91.)

Defendant argues Plaintiffs’ request for punitive damages in their prayer section and claims throughout their complaint alleging Defendant’s conduct was despicable, malicious, and oppressive should be stricken because they are factually unsupported.  (Complaint ¶¶52, 53, 69, 70, 91, 92, and Prayer ¶7.)  Defendant argues Plaintiffs’ allegations that Defendant was “aware” of a defective condition on rented premises that could cause injury to tenants and “refused” to repair the same do not support the conclusion that Defendant either intended to injure Plaintiffs or acted in reckless disregard for their safety, and at the most show negligence.  (Memorandum MTS pg. 5, citing Cohen v. Groman Mortuary, Inc. (1964) 231 Cal.App.2d 1, 8.)

Defendant is not entitled to a motion to strike Plaintiffs’ requests for punitive damages because Plaintiffs have pleaded the ultimate facts showing an entitlement to such relief.  Plaintiffs allege Defendant “negligently and carelessly imported, produced, and distributed the foregoing chemical products” without adequate warnings of their toxic hazards and without adequate instructions for safe handling and use, despite Defendant’s knowledge that such chemicals would cause injury.  (Complaint ¶¶52, 69, 91; see SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 906-907.)  Plaintiffs’ allegations that Defendant “consciously disregarded Plaintiff’s safety despite knowledge of the probable dangerous consequences of their products” are adequate to allege punitive damages against Defendant.  (Complaint ¶¶52, 69, 91; Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 395.)

Accordingly, Defendant’s motion to strike is denied.

Dated:  October ____, 2022

Hon. Monica Bachner

Judge of the Superior Court