Judge: Richard S. Whitney, Case: 37-2022-00049654-CU-PO-CTL, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 30, 2023

09/01/2023  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2022-00049654-CU-PO-CTL ALVARADO VS GKN AEROSPACE CHEM TRONICS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT'S DEMURRER TO PLAINTIFFS' SECOND AMENDED COMPLAINT ('SAC') is SUSTAINED.

Defendant GKN AEROSPACE CHEM-TRONICS INC. ('Defendant') challenges Plaintiffs MOISES ALVARADO ('MOISES') and PAMELA ALVARADO's (collectively 'Plaintiffs') causes of action based on the workers' compensation exclusivity rule. Plaintiffs assert they have properly alleged the 'fraudulent concealment of injury' exception to workers' compensation exclusivity under Labor Code section 3602(b)(2).

First, Plaintiffs do not dispute that the negligence claims are barred by the workers' compensation exclusivity unless Plaintiffs properly allege the 'fraudulent concealment of injury' exception to workers' compensation exclusivity under Labor Code section 3602(b)(2). Plaintiffs attempt to plead the exception in the third cause of action for 'Fraudulent Concealment of Injury Labor Code § 3602(b)(2).' The first two causes of action are for negligence and negligence per se. These negligence claims are barred by the workers' compensation exclusivity rule.

Second, Plaintiffs do not dispute that the loss of consortium claim is derivative of the injury claim as to MOISES such that it is barred if the workers' compensation exclusivity rule. (LeFiell Manufacturing Co. v. Superior Court (2012) 55 Cal.4th 275, 284.) As discussed below, the workers' compensation exclusivity rule applies such that MOISES's claims, which are all based on the alleged workplace injury to MOISES, and the derivative loss of consortium claim are barred.

Last, as discussed below, the Court finds Plaintiffs have not properly alleged the exception under Labor Code section 3602(b)(2). Labor Code section 3602(b) provide, in relevant part, that: An employee...may bring an action at law for damages against the employer, as if this division did not apply, in the following instances: ...

(2) Where the employee's injury is aggravated by the employer's fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer's liability shall be limited to those damages proximately caused by the aggravation. The burden of proof respecting apportionment of damages between the injury and any subsequent aggravation thereof is upon the employer.

(Lab. Code, § 3602(b).) Calendar No.: Event ID:  TENTATIVE RULINGS

2978636  53 CASE NUMBER: CASE TITLE:  ALVARADO VS GKN AEROSPACE CHEM TRONICS INC [IMAGED]  37-2022-00049654-CU-PO-CTL The case of Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465 is similar, but different in a very important way. In Johns-Manville Products the plaintiff alleged the following: Defendant is engaged in mining, milling, manufacturing, and packaging asbestos. Plaintiff worked in its Pittsburg, California, plant for 29 years beginning in February 1946, and he was continuously exposed to asbestos during that period. As a result of the exposure, he developed pneumoconiosis, lung cancer, or other asbestos-related illnesses.

The defendant corporation has known since 1924 that long exposure to asbestos or the ingestion of that substance is dangerous to health, yet it concealed this knowledge from plaintiff, and advised him that it was safe to work in close proximity to asbestos. It failed to provide him with adequate protective devices and did not operate the plant in accordance with state and federal regulations governing dust levels.

In addition, the doctors retained by defendant to examine plaintiff were unqualified, and defendant did not provide them with adequate information regarding the risk of asbestos exposure. It failed to advise these doctors of the development of pulmonary disease in plaintiff or of the fact that the disease was the result of the working conditions at the plant, although it knew that his illness was caused by exposure to asbestos. Finally, defendant willfully failed to file a First Report of Occupational Injury or Illness with the State of California regarding plaintiff's injury, as required by law. Had this been done, and if the danger from asbestos had been revealed, plaintiff would have been protected. Each of these acts and omissions was done falsely and fraudulently by defendant, with intent to induce plaintiff to continue to work in a dangerous environment. Plaintiff was ignorant of the risks involved, and would not have continued to work in such an environment if he had known the facts.

(Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 469–470 [Emphasis added].) In Johns-Manville the plaintiff alleged defendant knew not only that the plaintiff had been exposed to asbestos, but that the defendant knew plaintiff developed pulmonary disease. The California Supreme Court noted, however, that 'if the complaint alleged only that plaintiff contracted the disease because defendant knew and concealed from him that his health was endangered by asbestos in the work environment, failed to supply adequate protective devices to avoid disease, and violated governmental regulations relating to dust levels at the plant, plaintiff's only remedy would be to prosecute his claim under the workers' compensation law.' (Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465, 474–475.) Alleging a defendant's knowledge of exposure is insufficient.

In McDonald v. Superior Court (1986) 180 Cal.App.3d 297, the plaintiff alleged his employer, Flintkote, knew: there was a high risk of injury or death resulting from exposure to asbestos or asbestos products, including, but not limited to, lung cancer and other forms of cancer, and asbestosis,' Flintkote 'concealed this knowledge from Plaintiff, and advised him that it was safe to work in close proximity to asbestos.' Further, Flintkote 'did not provide the medical doctors retained by [Flintkote] to examine Plaintiff with adequate information regarding the risk of asbestos exposure. [Flintkote] failed to advise these doctors of the risk of the development of pulmonary disease in the Plaintiff.' Also, Flintkote 'wilfully failed to file a First Report of Occupational Injury or Illness with the State of California regarding Plaintiff's injuries ... as required by law. Had this been done, and if the danger from asbestos had been revealed, Plaintiff would have been protected. Each of these acts and omissions were done falsely and fraudulently by [Flintkote], with intent to induce Plaintiff to continue to work in a dangerous environment.

Plaintiff was ignorant of the risks involved and would not have continued to work in such an environment if he had known the true facts.

(McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 300 [Quotes omitted].) The court noted the 'Supreme Court recently pointed out in Foster v. Xerox Corp., supra., 40 Cal.3d 306, Calendar No.: Event ID:  TENTATIVE RULINGS

2978636  53 CASE NUMBER: CASE TITLE:  ALVARADO VS GKN AEROSPACE CHEM TRONICS INC [IMAGED]  37-2022-00049654-CU-PO-CTL in construing section 3602, subdivision (b)(2): 'The subdivision was enacted in 1982 (Stats. 1982, ch.

922, § 6) as a codification of [the] decision in [ Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465 (165 Cal.Rptr. 858, 612 P.2d 948, 9 A.L.R.4th 758)]. It is appropriate, therefore, to consider its rationale and holding in determining the meaning of the statute.'' (McDonald, supra, 180 Cal.App.3d at 301.) The court went on to conclude the demurrer to plaintiff's allegations was proper because plaintiff 'did not allege that Flintkote knew and concealed that plaintiff was suffering from the disease, thereby aggravating that injury by its fraud.' (Id. at 303.) Here, Plaintiffs allege Defendant 'knew that MOISES had been exposed/infected by COVID-19 at his workplace in December 2020. As a result of this concealment, MOISES was unaware of his exposure and suffered an aggravated, life-threatening, life-altering case of COVID-19. In addition, GKN failed to take adequate and necessary precautions to protect MOISES from exposure/infection to COVID-19 and failed to follow state regulations, including reporting mandates.' (SAC, ¶ 8.) Defendant 'fraudulently concealed that MOISES had been exposed / infected multiples times with COVID-19 at the workplace in December 2020.' (SAC, ¶ 25.) Plaintiffs also allege reasons Defendant knew MOISES was exposed to COVID-19 – Defendant knew there were six positive COVID-19 cases in the building in which MOISES worked but concealed it from MOISES. (SAC, ¶¶ 10, 26, 28-31.) The Court agrees Plaintiffs are 'conflating knowledge of exposure with knowledge of injury, which is insufficient to support a § 3602(b)(2) claim as a matter of law.' (Rodriguez v. United Airlines, Inc. (N.D.

Cal. 2013) 5 F.Supp.3d 1131, 1138–1139.) While Plaintiffs allege, at times, that Defendant 'knew that MOISES had been exposed/infected by COVID-19 at his workplace,' Defendant creates uncertainty by alleging MOISES was 'exposed/infected.' Plaintiffs do not address this confusion in their opposition.

Plaintiffs cannot allege MOISES was 'exposed/infected' when exposure and infection are different.

Plaintiffs cannot allege both simultaneously without creating confusion. If Defendant knew of Plaintiff's exposure, but not infection, then Defendant cannot be liable under Labor Code section 3602(b)(2).

Plaintiff does not allege which it is. In the absence of clear allegations that Defendant knew Plaintiff had been infected and concealed it, the demurrer must be sustained.

Plaintiffs have the burden of proving a reasonable possibility of amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiffs have not met this burden. While Plaintiffs stated they 'currently have discovery that is outstanding,' Plaintiffs do not explain whether the discovery has the possibility of revealing Defendant knew of MOISES's infection prior to MOISES reporting it to Defendant on December 23, 2020. (SAC, ¶ 32.) It appears Plaintiffs will not be able to allege Defendant had knowledge of MOISES's infection because after alleging the confusing combination 'exposed/infected' Plaintiffs allege '[a]s a result of this concealment, MOISES was unaware of his exposure and suffered an aggravated, life-threatening, life-altering case of COVID-19.' (SAC, ¶ 8.) If Plaintiffs could honestly allege Defendant knew of MOISES' infection before December 23, 2020, then Plaintiffs could have alleged it in paragraph eight, rather than stating the concealment caused a lack of awareness of exposure. The demurrer is sustained without leave to amend.

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