Judge Peter A. Hernandez, Case Number: 23STCV02556, Date: 2023-12-14 Tentative Ruling

Defendants Quemetco, Inc., Quemetco West, LLC, Ecobat Resources California, Inc., Bruce Davis, Michael Buckantz and Craig Clark’s Demurrer to Plaintiff’s First Amended Complaint is SUSTAINED without leave to amend.

Plaintiff Jacqueline Brady, individually and as successor-in-interest to the Estate of Eric Smith (“Plaintiff”) alleges as follows:

Plaintiff and her husband, Eric Smith (“Smith”) lived near a battery recycling plant (“Plant”) located in the City of Industry, California. Smith contracted terminal cancer due to toxic emissions from Plant and died by suicide on February 5, 2021.

On February 6, 2023, Plaintiff filed a Complaint against Michael Emo, Sean Emo, Qu[e]metco Inc[.] and City of Hope. On February 24, 2023, the case was ordered reassigned from Department 11 to the instant department.

On August 16, 2023, Plaintiff filed five “Amendment[s] to Complaint,” wherein Quemetco West, LLC (“Quemetco West”) was named in lieu of Doe 1, Ecobat Resources California, Inc. (“Ecobat”) was named in lieu of Doe 2, Bruce Davis (“Davis”) was named in lieu of Doe 3, Michael Buckantz (“Buckantz”) was named in lieu of Doe 4 and Craig Clark (“Clark”) was named in lieu of Doe 5.

On August 22, 2023, Plaintiff filed a First Amended Complaint, asserting causes of action therein against Quemetco, Inc. (“Quemetco”), Quemetco West, Ecobat, Davis, Buckantz, Clark (collectively, “Defendants”) and Does 6-100 for:

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Defendants demur, pursuant to Code of Civil Procedure § 430.10, to Plaintiff’s FAC on the basis that they each fail to state facts sufficient to constitute a cause of action.

Defendants argue that all of Plaintiff’s claims in the FAC—whether styled as a survival or wrongful death action—are time-barred because they accrued more than two years before the FAC was filed on August 22, 2023.

“Where the complaint discloses on its face that the statute of limitations has run on the causes of action stated in the complaint, it fails to state facts sufficient to constitute a cause of action.” (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 833.) “If a demurrer demonstrates that a pleading is untimely on its face, it becomes the plaintiff's burden ‘even at the pleading stage’ to establish an exception to the limitations period.” (Fuller v. First Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 962).

The parties agree that the statute of limitations for wrongful death from exposure to toxic chemicals is “two years from the date of the death of the plaintiff’s decedent.” (Code Civ. Proc., § 340.8, subd. (b).) Further, the statute of limitations for “any civil action for injury or illness based upon exposure to a hazardous material or toxic substance” is “two years from the date of injury.” (Code Civ. Proc., § 340.8, subd. (a).)[1] “The toxic exposure statute embraces ‘any’ civil action,” which would include Plaintiff’s claims for nuisance and trespass. (Lopez v. Sony Electronica, Inc. (2018) 5 Cal.5th 627, 635, citing § 340.8, subd. (a).)

Plaintiff does not dispute that she has not pled the discovery rule[2] or the doctrine of fraudulent concealment[3] to toll her claims. Plaintiff, however, asserts that the relation-back doctrine permits her to associate the FAC with the original complaint (filed February 6, 2023).

The relation-back doctrine “holds that if a new cause of action added by amendment ‘relates back’ to the claims of the initial complaint, the new cause of action will be deemed, for purposes of the statute of limitations, to have been filed on the date of filing of the initial complaint.” (Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th 312, 319; see also Curtis Engineering Corp. v. Superior Court (2017) 16 Cal.App.5th 542, 548 [“Where the statute of limitations has expired before the filing of an amended complaint, unless an amended complaint relates back to a timely filed original complaint, the amended complaint will be time-barred”].) “Under the relation-back doctrine, to avoid the statute of limitations bar, the amended complaint must allege the same general set of facts, refer to the same accident, same injuries, and refer to the same instrumentality as alleged in the original complaint.” (Id. [emphasis added]).

Defendants argue that Plaintiff’s complaint and FAC are not based on the same general set of facts “given the total lack of factual allegations in the Complaint” (Dem., 16:26-27). The court agrees.

Code of Civil Procedure § 425.10 states that a complaint must contain “[a] statement of the facts constituting the cause of action, in ordinary and concise language.” “The relation-back doctrine requires [the court] to compare the factual allegations in the original and amended complaints.” (Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, 598). “In determining whether the amended complaint alleges facts that are sufficiently similar to those alleged in the original complaint, [the court] considers whether the defendant had adequate notice of the claim based on the original pleading.” (Id. at 599). “Just as a plaintiff who changes the essential facts upon which recovery is sought is not entitled to the benefits of the relation-back doctrine, so too a plaintiff who files a complaint containing no operative facts at all cannot subsequently amend the pleading to allege facts and a theory of recovery for the first time and claim the amended complaint should be deemed filed as of the date of the original, wholly defective complaint: Going from nothing to something is as much at odds with the rationale for allowing an amended pleading to relate back to the filing of the original documents as changing from one set of facts to a different set.” (Id. at 598 [quotations and citation omitted].)

In Scholes, self-represented plaintiff filed his original complaint against Lambirth Trucking Company (“Lambirth”) and its insurer and stated it was for a “dispute compensation on insurance claim.” The original complaint further alleged “[d]efendants have accepted liability, dispute amount of damages from fire” and sought “compensation for property loss.” Nothing else was listed in or attached to the original complaint. Plaintiff subsequently filed a Third Amended Complaint (“TAC”) for negligent trespass, intentional trespass, and strict liability (trespass through unnatural activity). Lambirth demurred to the TAC, arguing it was barred by the statute of limitations and failed to state a viable claim for intentional trespass or strict liability. The trial court sustained the demurrer without leave to amend and the court of appeal affirmed, determining that the original complaint failed to meet section 425.10, subdivision (a)’s minimal fact pleading requirement: “[t]he original complaint does not identify the property at issue or specify the damages suffered . . . fails to specify the date, origin, or scope of the fire. . . does not set forth the relationship between the parties or any duties owed to [plaintiff] by Lambirth. . . [and fails to] specify any causes of action except for checking the box for ‘Property Damage’.” (Id. at 598).

In Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, two plaintiffs filed identically worded complaints against State Farm for breach of contract and bad faith for alleged damage to their properties caused by the Northridge earthquake. The complaints mentioned the parties by name in the caption only and set forth “numerous, generic allegations” against “Defendants” based on State Farm’s purported failure to pay policy benefits for Northridge earthquake damage. The complaints did not provide the addresses for plaintiffs’ respective properties, failed to provide any information about the respective policies (stating only that they consisted of “a written contract as orally amended”) and contained no allegations as to any particular dispute between either plaintiff and State Farm. The trial court subsequently sustained State Farm’s demurrers to plaintiffs’ respective First Amended Complaints (“FAC”) without leave to amend, finding that, since the original complaints were factually devoid, the FACs did not relate back to the filing of the original complaints and were thus time-barred and not revived by Code of Civil Procedure § 340.9. The court of appeal affirmed, finding that “the original complaints [were] so devoid of factual allegations they fail[ed] to meet section 425.10, subdivision (a)’s minimal fact-pleading requirement and [were] the functional equivalent of no complaint at all.” (Id. at 417).

Here, Plaintiff filed her 3-page original complaint on the Judicial Council form for personal injury, property damage, and wrongful death actions (PLD-P1-001). Plaintiff listed herself as the sole plaintiff and identified four defendants (including “Quemetco Inc.”) and Does 1-10 in the caption. Plaintiff did not allege her relationship to any decedent or even allege that there was a decedent. PLD-P1-001 permits plaintiffs to either describe the action as related to a “MOTOR VEHICLE” or “OTHER,” with an italicized instruction to “specify” the nature of the action if the “OTHER” box is checked. Plaintiff checked the box for “OTHER” and wrote, “Self inflicted gun shot.”

Under that, Plaintiff also checked boxes for “Property Damage,” Wrongful Death” and “Other Damages,” which she specified with the word, “Consortium.” Paragraph 10 of PLD-P1-001 requires a plaintiff to specify “causes of action” that “are attached” and provides, in italics, that “each complaint must have one of more causes of action attached.” Plaintiff checked boxes the boxes for “General Negligence” and “Other,” which she specified as “Intimidation and breech [sic] of duty.” No causes of action, however, were attached to the complaint. In Paragraph 11, Plaintiff alleged that she suffered “wage loss,” “general damage[s],” “property damage[s],” “loss of earning capacity” and “[l]oss of consortium, pain and suffering.” In Paragraph 12, Plaintiff identified “[t]he damages claimed for wrongful death and the relationships of plaintiff to the deceased” as follows: (1) “Michael and Sean Emo failed to secure the firearm”, (2) “Qumetco is a toxic facility, know [sic] to fail safety air quality” and (3) “City of hope failed to provide proper care, and support.” No other substantive allegations against any defendant or Doe defendants were made.

Plaintiff thereafter obtained representation and filed the 25-page FAC on August 22, 2023. Plaintiff’s FAC asserts causes of action against Quemetco, Inc., Quemetco West, LLC, Ecobat Resources California, Inc., Bruce Davis, Michael Buckantz, Craig Clark[4] and Does 6-100 for Negligence, Negligence Per Se, Strict Liability for Ultra-hazardous Activity, Misrepresentation and Fraudulent Concealment, Nuisance and Trespass. The caption indicates that it is a “Wrongful Death/Survival Action.” Plaintiff’s FAC makes no reference to the “failure to secure a firearm” or a “[s]elf-inflicted gun shot.” Plaintiff identifies her husband, Eric Smith (“Smith”), as the decedent and alleges that “[a]s a result” of emissions from Defendants’ plant, Smith contracted terminal cancer and died by suicide on February 5, 2021. (FAC, ¶ 28).

Plaintiff’s original complaint is, as in Davaloo, “so devoid of factual allegations [it] fail[s] to meet section 425.10, subdivision (a)’s minimal fact-pleading requirement and [is] the functional equivalent of no complaint at all.” (Davaloo, supra, 135 Cal.App.4th at 417.)

Next, Defendants argue that the complaint and FAC do not allege common injuries; again, the court agrees. Plaintiff’s injuries in the FAC flow from Defendants’ alleged emission of cancer-causing toxins, which Plaintiff asserts resulted in Smither’s terminal cancer. “Cancer,” however, is not even mentioned in the complaint; instead, the only identified injury set forth therein is a “[s]elf-inflicted gun shot.” It is not clear who was injured by the gunshot, nor that this individual died.

Defendants argue that the complaint and FAC do not share common instrumentalities; again, the court agrees. The principal allegations of harm in Plaintiff’s complaint relate to a gun, whereas the FAC focuses on alleged cancer-causing emissions from Plant. It appears, from the scant allegations in the complaint, that Plaintiff attributes whatever injury the unidentified individual sustained from the “[s]elf inflicted gun shot” from “Michael and Sean Emo[‘s] fail[ure] to secure the firearm.”

The court also agrees with Defendants’ position that Plaintiff’s survival claims in the FAC fail to relate back to the original complaint, inasmuch as Plaintiff did not allege any claims as a successor-in-interest, did not identify a decedent, did not allege any facts regarding any loss or damage sustained or incurred by a decedent before death, and did not otherwise style the complaint as a survival action. (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1278 [“Here, we readily conclude. . .that the survivor cause of action pleaded a different injury than the initial complaint. We also conclude that the two claims in the amended pleading were asserted by different plaintiffs, Maria G. Quiroz acting in two separate capacities with respect to each, and that the addition of fresh allegations concerning her representative capacity in pursuit of the new survivor claim was not just the mere technical substitution of the proper party plaintiff on a previously existing claim. This survivor claim, which plaintiff pursued as the decedent's successor in interest, pleaded injury to the decedent, Gilbert Quiroz. In contrast, the earlier-filed wrongful death claim pleaded only injury to plaintiff, acting for herself, as the decedent's heir. As a matter of law, these distinct claims are technically asserted by different plaintiffs and they seek compensation for different injuries”] .)

As an aside, the fact that Plaintiff filed the original complaint in pro per is of no particular significance here; indeed, the plaintiff in Scholes and the plaintiffs in Quiroz (initially) were also self-represented. As noted in Scholes, supra, 10 Cal.App.5th at 595: “A party may choose to act as his or her own attorney. We treat such a party like any other party, and he or she is entitled to the same, but no greater consideration than other litigants and attorneys.”

Defendants’ demurrer to the entire FAC is sustained on the basis of the statute of limitations.

Defendants additionally demur to Plaintiff’s fourth cause of action, for Fraudulent Concealment, on the basis that it fails to state facts sufficient to constitute a cause of action. The court agrees. “[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.” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613).

“Fraud allegations must be pled with more detail than other causes of action. The facts constituting the fraud, including every element of the cause of action, must be alleged factually and specifically.” (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 239 [internal quotations and citation omitted]). “[T]he requirement that ‘[f]raud must be pleaded with specificity’ applies equally to a cause of action for fraud and deceit based on concealment.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1472 [citation omitted].) “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 [internal quotations and citation omitted].)

Plaintiff has failed to allege the fourth cause of action with specificity; as such, Defendants’ demurrer thereto is also sustained on this basis.

[1] Code of Civil Procedure § 340.8 reads, in relevant part, as follows: (a) 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. (b) In an action for the wrongful death of any plaintiff's decedent, based upon exposure to a hazardous material or toxic substance, the time for commencement of an action shall be no later than either (1) two years from the date of the death of the plaintiff's decedent, or (2) two years from the first date on which the plaintiff is aware of, or reasonably should have become aware of, the physical cause of the death and sufficient facts to put a reasonable person on inquiry notice that the death was caused or contributed to by the wrongful act of another, whichever occurs later.”

[2] The discovery rule “postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) “In order to rely on the discovery rule for delayed accrual of a cause of action, a plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 [internal quotations and citation omitted; italics in original].)

[3] “[T]he doctrine of fraudulent concealment. . . tolls the statute of limitations if a defendant’s deceptive conduct has caused a claim to grow stale. In support of th[e] doctrine [of fraudulent concealment], a plaintiff must allege the supporting facts—i.e., the date of discovery, the manner of discovery, and the justification for the failure to discover the fraud earlier—with the same particularity as with a cause of action for fraud.” (Fuller v. First Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 962 [internal quotations and citations omitted].).

[4] Quemetco West, LLC, Ecobat Resources California, Inc., Bruce Davis, Michael Buckantz and Craig Clark were formerly named as Does 1-5, respectively.