Judge Richard L. Fruin, Case Number: 24STCV22677, Date: 2025-04-25 Tentative Ruling

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OLEGARIO TORRES OROZCO, et al. v. ANTOLINI LUIGI C. S.P.A., et al. [24STCV22677]

MEET AND CONFER: [OK] Counsel met and conferred telephonically on March 13, 2025. (Trembach Decl., ¶ 3.)

Circa 2005–2023: Plaintiff Olegario Torres Orozco (“Orozco”) works as a stone fabricator creating artificial stone countertops for homes. (Compl., ¶ 83.) Orozco was exposed to silica dust through his work with Defendants’ stone products. (Id., ¶ 84.) As a result of Orozco’s silica exposure, he developed silicosis and other lung problems. (Id., ¶ 85-86.)

9/4/2024: Orozco and his wife, Plaintiff Mayra Ojeda Cazares (collectively “Plaintiffs”) file the Complaint, alleging causes of action for:

3/20/2025: Lowe’s Homes Centers, LLC (“LHC”) files this Demurrer, followed by Plaintiff’s Opposition (4/11/2025) and LHC’s Reply (4/17/2025). [LHC filed a Motion to Stay pending review of the petition for coordination of silicosis actions on 4/17/2025.]

TENTATIVE RULING: DEMURRER OF DEFENDANT LOWE’S HOME CENTERS, LLC is SUSTAINED with LEAVE TO AEND.

LHC demurs to the entire Complaint on the grounds of uncertainty and failure to allege facts sufficient to state the causes of action. LHC’s primary argument is that Plaintiffs’ allegations are contradictory and insufficient to demonstrate that LHC sold the products which allegedly harmed Orozco. Specifically, LHC argues it is a retailer of finished countertops, whereas Orozco was allegedly injured by exposure to unfinished natural and artificial stone materials (“stone products”) before they were fabricated into finished countertops.

First, Plaintiffs’ draw an explicit distinction between “stone products” and “countertops.” (Compl., ¶¶ 60, 71.) Plaintiffs expressly allege Orozco fabricated artificial natural stone products to become countertops in kitchens and bathrooms. (Id., ¶ 83.) Plaintiffs repeatedly identify that it is the process of fabricating stone products that produces RCS dust, which stone fabrication workers then inhale, typically causing silicosis. (Id., ¶ 66.) Plaintiffs allege fabrication workers who cut, grind, drill, chip, edge, and/or polish artificial stone products are exposed to high concentrations of RCS and other toxic substances from the stone products. (Id., ¶¶ 67-70.) Plaintiffs allege all “stone products” contain “crystalline silica in varying concentrations…” (Id., ¶ 64.) As a result, these “stone products” are the allegedly defective products at issue. (Id., ¶ 1270; See ¶ 60 (“[T]he industrial stone products, including all definitions and synonyms thereof… are all products that caused” Orozco’s injuries.)) By contrast, LHC argues these defective “stone products” do not (and cannot) include the finished “countertops” made by fabricators like Plaintiff. The Complaint expressly defines “industrial stone products” (including “stone products,” “stone slabs,” “stone block,” “artificial stone,” “natural stone,” “silica-containing stone,” and “treated natural stone”) as those products “which after being fabricated and installed in consumers’ homes and businesses would become ‘kitchen countertops,’ ‘bathroom countertops,’ and/or ‘stone countertops,’” for use by consumers. (Id., ¶ 71; See ¶ 60.) Plaintiffs allege “stone slabs” a.k.a. “stone products (in slabs or block)” are mineral products made from natural and/or artificial stone. (Id., ¶¶ 61-63.) Plaintiffs further allege, “[s]tone slabs or blocks are commercial products that require fabrication prior to installation for a consumer.” (Id., ¶ 65.) Even further, Plaintiffs explicitly disclaims that the named Defendants (in general) “are not manufacturers of stone countertops which are the finished consumer products that are produced by the fabrication of industrial stone products.” (Id., ¶ 60, emphasis in original.)

Second, Plaintiffs allege that Defendants (in general) were the “manufacturers, distributors, suppliers, sellers, importers, brokers, and/or contractors of industrial stone products.” (Id., ¶ 71, emphasis added.) Plaintiffs later allege Defendants (in general) were “manufacturers, importers, distributors, suppliers, brokers, designers, testers and/or contractors of stone slab, block and tile products.” (Id., ¶ 1235, emphasis added.) Notwithstanding, Plaintiffs repeatedly identify LHC as a “home improvement retail store” which sells quartz countertops. (Id., ¶ 853; See ¶¶ 917-918 (Plaintiffs allege LHC is “one of the largest home improvement retailers in the world,” which operates a chain of retail stores in the United States.)) The Complaint suggests that after fabricators (like Plaintiff) convert stone products into completed countertops, LHC then offers those finished countertops for sale on its website. (Id., ¶¶ 71, 922.) Plaintiffs expressly allege LHC “offers Silestone and Caesarstone Quartz Countertops on its website.” (Ibid., emphasis added.) The Complaint even includes an internet link to the “Kitchen Countertops” section of LHC’s website (Ibid.) Given that Plaintiffs themselves identify LHC as a retailer of countertops, LHC argues it does not fall into the general category of manufacturers, distributors, suppliers, sellers, importers, (etc.) of stone products, as the Defendants are generally identified.[1]

On the other hand, Plaintiffs simultaneously do allege LHC has long sold, brokered, and/or supplied “various stone and other silica-containing products that contained warnings of the hazard of silicosis from crystalline silica.” (Id., ¶¶ 924-926, 923.) Plaintiffs allege the “brands of artificial stone” offered for sale on LHC’s website include “Allen + Roth, Caesarstone, Dekton, SenSa, and Silestone,” and allege LHC sold “allen + roth, Costentino, Sage Surfaces, Silestone” brand stone. (Id., ¶¶ 76, 923.) Plaintiffs further allege LHC either subcontracted work by countertop fabrication workers, or sold “artificial stone slabs” to contractors. (Id., ¶ 927.) Beyond these allegations, however, Plaintiffs rely significantly on generalized allegations regarding the Defendants collectively. For example, that Defendants “manufactured, designed, imported, produced, sold, tested, failed to test, supplied, contracted, brokered and/or distributed the stone slab and block products to which [Orozco] was exposed in his work as a countertop fabricator and installer.” (Id., ¶ 1237.) Nevertheless, “California courts have adopted the principle that specific allegations in a complaint control over an inconsistent general allegation.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1235–1236.) “Under this principle, it is possible that specific allegations will render a complaint defective when the general allegations, standing alone, might have been sufficient. [Citations.]” (Ibid.)

In the Court’s view, the issue with the Complaint is that the inconsistent and contradictory allegations as to what products were sold by LHC makes the Complaint uncertain. Are Plaintiffs alleging that LHC sold unfinished stone products, finished countertops, or both? Plaintiff’s Opposition essentially ignores this question and fails to provide any explanation regarding the above inconsistencies. If the countertops sold by LHC contain crystalline silica, such an allegation would be immaterial, as Plaintiffs are not alleging that Orozco was exposed to RCS dust from finished (fabricated) countertops. Rather, Orozco was allegedly exposed to RCS dust produced via inhalation during his fabricating work on unfinished stone products. (Id., ¶ 95.) LHC cannot be held liable for selling finished products that happen to be made of the same raw materials that allegedly caused injury to Orozco if Orozco was not exposed to those products in their finished form. Additional factual detail and clarification is necessary to resolve the Complaint’s internal contradictions and to demonstrate that LHC, specifically, played a role in the chain of commerce for the unfinished stone products which Orozco fabricated, and which created the RCS dust that caused Orozco’s injuries.

Given that the Complaint is uncertain as to whether LHC participated in selling unfinished stone products, Plaintiffs have not sufficiently alleged facts to support the following inferences: (1) that LHC owed a general duty of care, a duty to warn, or a duty to disclose the hazards of the stone products to which Orozco was exposed, (2) that LHC products proximately caused Orozco’s injuries, and/or (3) that LHC fraudulently concealed any information about the stone products which caused Orozco’s injuries. Therefore, LHC’s Demurrer to each cause of action in the Complaint is SUSTAINED with LEAVE TO AMEND.

LHC also moves to strike various allegations from the Complaint, related to, for example, LHC’s role in the chain of commerce of stone products that allegedly caused Orozco’s injuries, Plaintiffs’ punitive damages request, LHC’s alleged duty to disclose, and Plaintiff’s rights to further discovery. Given the above ruling granting leave to amend each cause of action, however, LHC’s Motion to Strike is DENIED as MOOT.

LHC seeks judicial notice of the following court records pursuant to Evid. Code § 452(d): (1) the Court Order and Minute Order (each dated 8/14/2024) in Evelin Liseth Gonzalez Rodriguez, et al. vs Architectural Surfaces Group, LLC, et al. (LASC Case No. 23STCV29755) (RJN, Exhs. A-B), and (2) the Court Order and Minute Order (each dated 12/20/2024) in Ernesto Figueroa, et al. vs Architectural Surface Group, LLC., et al. (LASC Case No. 24STCV01658) (RJN, Exhs. C-D.) “While a court will take judicial notice of its own records in the same action… this does not mean that it takes judicial notice of and accepts as true and genuine every paper that appears in the file.” (Kaplan v. Hacker (1952) 113 Cal. App. 2d 571, 574.) Likewise, while the Court cannot take judicial notice of hearsay statements asserted in the records of other courts, it may take judicial notice of the existence of such documents. (Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 768; Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7.) Accordingly, judicial notice of the existence of these court records is proper pursuant to Evid. Code § 452(d). Therefore, this Court takes judicial notice of the court records underlying Requests No. 1-3, but not the truth of the matters asserted therein.

Defendant Lowe’s Home Centers, LLC to serve notice of ruling. This tentative ruling (“TR”) shall be the order of the Court unless changed at the hearing and shall by this reference be incorporated into the Minute Order.

[1] To the extent that LHC is seeking to avoid liability for the negligence and strict liability claims, the Court is not persuaded that LHC’s status as a “retailer” alone enables it to avoid the statutory duties to provide warning information for the hazardous products it sells, if any. “A consumer injured by a defective product ‘may now sue ‘any business entity in the chain of production and marketing, from the original manufacturer down through the distributor and wholesaler to the retailer; liability of all such defendants is joint and several.’’ [Citation.] The purpose for this approach ‘is to extend liability to all those engaged in the overall producing and marketing enterprise who should bear the social cost of the marketing of defective products.’” (Loomis v. Amazon.com LLC (2021) 63 Cal.App.5th 466, 477, emphasis added.)