Judge: Teresa A. Beaudet, Case: 22STCV19989, Date: 2023-03-22 Tentative Ruling

Case Number: 22STCV19989    Hearing Date: March 22, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Lynn Andrea Couch (“Plaintiff”) filed this action on June 20, 2022 against a number of defendants, including A.G. Layne, Inc. (“A.G. Layne”) and Fisher Scientific Company LLC (“Fisher”). Plaintiff’s “Complaint for Toxic Injuries” asserts causes of action for (1) negligence, (2) strict liability – failure to warn, (3) strict liability – design defect, (4) fraudulent concealment, and (5) breach of implied warranties.

On December 6, 2022, Plaintiff filed an amendment to the Complaint naming Brenntag Pacific, Inc. (“Brenntag Pacific”) in place of “Doe 1.”

A.G. Layne demurs to Plaintiff’s fourth cause of action. In addition, A.G. Layne moves to strike portions of the Complaint. Plaintiff opposes both.

Fisher demurs to Plaintiff’s fourth cause of action. In addition, Fisher moves to strike portions of the Complaint. Plaintiff opposes both.

Brenntag Pacific demurs to Plaintiff’s fourth cause of action. In addition, Brenntag Pacific moves to strike portions of the Complaint. No opposition to Brenntag Pacific’s demurrer or motion to strike was filed.

Request for Judicial Notice

The Court grants A.G. Layne’s request for judicial notice.

Brenntag Pacific’s Demurrer and Motion to Strike

As an initial matter, the Court notes that Brenntag Pacific’s counsel’s declarations filed in support of Brenntag Pacific’s demurrer and motion to strike indicate, inter alia, that “[i]n an effort to facilitate the informal resolution of the issues raised by this [demurrer and motion to strike] and pursuant to Code of Civil Procedure section 430.41, on January 18, 2023 Defendant met and conferred with Plaintiff in writing regarding the deficiencies in her Complaint.” (Mohamed Decls., ¶¶ 3, 4, Exs. C.) Accordingly, Brenntag Pacific’s counsel’s declaration does not demonstrate that the parties met and conferred by telephone or in person. 

Pursuant to Code of Civil Procedure section 430.41, subdivision (a), “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis added.) In addition, “[b]efore filing a motion to strike…the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a), emphasis added.) Such meeting and conferring must be done in good faith with an effort to try to resolve the issues subject to the demurrer and motion to strike. 

In light of the foregoing, the hearing on Brenntag Pacific’s demurrer and motion to strike is continued to April 14, 2023 at 2 p.m. in Dept. 50.¿ 

Brenntag Pacific is ordered to meet¿and confer¿with Plaintiff¿regarding its demurrer and motion to strike within 10 days of the date of this order.¿If the parties are unable to resolve the pleading issues¿or if the parties are otherwise unable to meet and confer in good faith, Brenntag Pacific is to¿thereafter¿file and serve¿a declaration setting forth the efforts to meet and confer in compliance with¿Code of Civil Procedure section 430.41, subdivision (a)(3) and Code of Civil Procedure section 435.5, subdivision (a)(3) within 15 days of this order.¿ ¿ 

A.G. Layne’s and Fisher’s Demurrers

A.    Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

B.    Allegations of the Complaint

In the Complaint, Plaintiff alleges that from about 2005 through 2022, Plaintiff worked for Chevron, Tosco, BP, Mobil, and ConocoPhillips. (Compl., ¶ 12.) Plaintiff alleges that during the course of her employment with Chevron, Tosco, BP, Mobil, and ConocoPhillips, she was exposed to certain chemical products which caused Plaintiff to suffer toxic injuries and occupational diseases. (Compl., ¶ 11.) Plaintiff’s Complaint lists the chemical products to which Plaintiff was allegedly exposed, with the names of different defendants above the products. (Compl., ¶ 11.) The chemical products listed below both A.G. Layne and Fisher are “toluene,” “xylene,” and “other products to be identified in the course of discovery.” (Compl., ¶ 11.) Plaintiff alleges that as a result of her exposure to the chemical products at issue, she suffers from Chronic Myeloid Leukemia. (Compl., ¶¶ 13-14.)

C.    A.G. Layne’s Demurrer

A.G. Layne asserts that Plaintiff fails to state facts sufficient to constitute a cause of action for fraudulent concealment.

“The 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.” (Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 96 [internal quotations omitted].)

A.G. Layne asserts that the Complaint does not contain any specific factual allegations identifying the material facts that each Defendant purportedly failed to disclose; or facts demonstrating that each Defendant had knowledge of the material facts that it allegedly failed to disclose.[1] But Plaintiff alleges that “[n]otwithstanding their knowledge of the toxic properties of their chemical products, at all material times hereto, Defendants concealed said toxic hazards from [Plaintiff], so that Plaintiff…would use Defendants’ chemical products.” (Compl., ¶ 86.) Plaintiff alleges that “Defendants chemical products to which Plaintiff was exposed are toxic” and that “Defendants were aware of the toxic nature of their products.” (Compl., ¶¶ 80-81.) In addition, Plaintiff counters that less specificity is required here because the specific information of Defendants’ concealment must necessarily lie more within the knowledge of Defendants. Plaintiff cites to Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1199, where the Court of Appeal noted that “it is harder to apply [the requirement of specificity] to a case of simple nondisclosure. ‘How does one show ‘how’ and ‘by what means’ something didn’t happen, or ‘when’ it never happened, or ‘where’ it never happened?’”

A.G. Layne also asserts that the Complaint fails to identify any individuals for A.G. Layne who allegedly committed the fraud, noting that “[t]he requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.) A.G. Layne contends that Plaintiff also failed to state what misrepresentations were made by A.G. Layne, Inc., along with the “how, when, where, to whom, and by what means” they were made. (Citing to Lazar v. Superior Court (1996) 12 Cal.4th 631, 645, “[the] particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” [emphasis omitted].) But as Plaintiff notes, the fourth cause of action is for fraudulent concealment, not fraudulent misrepresentation.

In addition, A.G. Layne asserts that Plaintiff cannot establish the existence of any duty to disclose. In support of the fourth cause of action, Plaintiff alleges that “[p]ursuant to the Hazard Communication Standard and California common law, Defendants were under a legal duty to fully disclose the toxic properties of their products to Plaintiff…” (Compl., ¶ 82.) A.G. Layne asserts that the Federal Hazard Communication Standard requires only that manufacturers and distributors disclose certain required information to employers, citing to 29 C.F.R.                       § 1910.1200(b)(1), which provides, “[t]his section requires chemical manufacturers or importers to classify the hazards of chemicals which they produce or import, and all employers to provide information to their employees about the hazardous chemicals to which they are exposed, by means of a hazard communication program, labels and other forms of warning, safety data sheets, and information and training. In addition, this section requires distributors to transmit the required information to employers.”[2] A.G. Layne notes that Plaintiff does not allege that she purchased any chemical products from A.G. Layne. Plaintiff counters that “[t]he purpose of [Section 1910.1200] is to ensure that the hazards of all chemicals produced or imported are classified, and that information concerning the classified hazards is transmitted to employers and employees.” (29 C.F.R. § 1910.1200(a)(1).) 

Plaintiff also alleges that Defendants “owed a duty to disclose the toxic properties of their products to Plaintiff…because Defendants alone had knowledge of material facts, to wit the toxic properties of their products, which were not accessible to Plaintiff…” (Compl., ¶ 83.) A.G. Layne asserts that this allegation of a duty to disclose is insufficient, because “there are no allegations that Plaintiff personally purchased any chemical products as part of her employment and there is nothing in Plaintiff’s allegations to indicate that any transaction took place between A.G. Layne and Plaintiff.” (A.G. Layne’s Demurrer at p. 6:16-19.) A.G. Layne cites to LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336, where the Court of Appeal noted that “[t]here are four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.” (Internal quotations omitted.) The LiMandri Court noted that other than a fiduciary relationship, “[e]ach of the other three circumstances in which nondisclosure may be actionable presupposes the existence of some other relationship between the plaintiff and defendant in which a duty to disclose can arise.” (Id. at pp. 336-337.) “[S]uch a relationship can only come into being as a result of some sort of transaction between the parties. Thus, a duty to disclose may arise from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement. All of these relationships are created by transactions between parties from which a duty to disclose facts material to the transaction arises under certain circumstances.” (Id. at p. 337 [internal citations and emphasis omitted.])

Plaintiff contends that she has properly alleged the existence of a transaction between Plaintiff and defendants, because “an employee who in the course of his employment is injured by defective products purchased by his employer, is in privity with the manufacturers and suppliers of the products…” (Opp’n at p. 10:21-22.) Plaintiff cites to Arnold v. Dow Chemical Co. (2001) 91 Cal.App.4th 698, 721, where the Court of Appeal found that “[a]nother approach which extends the privity doctrine to include a person other than the direct buyer occurs when an inherently dangerous instrumentality causes harm to a buyer’s employee, the employee is considered to be in privity with his employer. Thus, in Peterson v. Lamb Rubber Co., supra, 54 Cal. 2d at page 347, the court held that privity, which denotes mutual or successive relationship to the same thing or right of property, should not bar an action where an employee had the successive right to the use of a grinding wheel purchased by his employer. In the same fashion, appellants were the ultimate users of the pesticide sprays applied by the pest control operators.”

Plaintiff also cites to Jones v. ConocoPhillips Co., supra, 198 Cal.App.4th at page 1191, where “[i]n 2009 the Joneses sued 19 manufacturers of 34 chemical products, alleging each product identified in the complaint contained toxins that were a substantial factor in causing [Carlos Jones’s] illness and death.” In Jones, “Carlos Jones died…from diseases of the heart, liver and kidneys that his wife, Ofelia Jones, and surviving children (the Joneses) attribute to his exposure to multiple chemical products with which Carlos worked during his employment by The Goodyear Tire and Rubber Company (Goodyear) and The Upjohn Company (Upjohn).” (Ibid. .)

The Court of Appeal found that the plaintiffs adequately alleged a cause of action for fraudulent concealment. (Id. at p. 1198.) The Jones Court noted that “[a]lthough, typically, a duty to disclose arises when a defendant owes a fiduciary duty to a plaintiff, a duty to disclose may also arise when a defendant possesses or exerts control over material facts not readily available to the plaintiff.” (Ibid. 1199 [internal citations omitted].) In Jones, “the amended complaint allege[d] defendants were ‘aware of the toxic nature of their products’ and ‘owed a duty to disclose the toxic properties of their products to [Carlos] because [they] alone had knowledge of material facts, to wit the toxic properties of their products, which were not available to [Carlos].’” (Id. at pp. 1199-1200.) The Court of Appeal concluded that “the amended complaint states a viable claim for fraudulent concealment against Dow Chemical, the manufacturer of the product Polymide 2080-D/DHV, which allegedly contained DMF. The Joneses have alleged DMF was known to be hazardous as early as 1969, and Dow Chemical concealed the toxic properties of their product, which Carlos would not have used had he been fully advised of its toxicity.” (Id. at p. 1200.) The Jones Court also concluded that “the amended complaint does provide adequate notice to the remaining defendants of the material facts they allegedly concealed from Carlos. Based upon the existing allegations, each defendant has received notice of the particular product it made that was used at the Goodyear and Upjohn plants at which Carlos worked. The pleading further alleges these products ‘contained significant concentrations of organic solvents … and other toxic chemicals’ and ‘[t]he toxicity of various organic solvents to the liver and kidney has long been recognized.’ Each defendant is therefore on notice that it allegedly concealed or failed to disclose the toxic properties of the product it sold to Goodyear and Upjohn during the course of Carlos’s employment. Although sparse, nothing more is required at this early stage of the litigation.” (Ibid. .)

Similarly here, Plaintiff alleges that “Defendants were aware of the toxic nature of their products,” and that “Defendants…owed a duty to disclose the toxic properties of their products to Plaintiff…because Defendants alone had knowledge of material facts, to wit the toxic

properties of their products, which were not accessible to Plaintiff…” (Compl., ¶¶ 81, 83.) Plaintiff alleges the chemical products that Plaintiff was allegedly exposed to (below specific defendants), which allegedly caused Plaintiff’s injuries. (Compl., ¶ 11.) Plaintiff alleges that “[t]he chemical products which Plaintiff worked with and was exposed to contained significant concentrations of Benzene and other toxic chemicals.” (Compl., ¶ 13.)

            Based on the foregoing, the Court overrules A.G. Layne’s demurrer to the fourth cause of action.

D.    Fisher’s Demurrer

Fisher asserts that Plaintiff’s fourth cause of action fails to set forth the requisite particularity to plead a claim for fraudulent concealment.

Fisher notes that “[f]raud must be pleaded with specificity, to provide the defendants with the fullest possible details of the charge so they are able to prepare a defense to this serious attack. To withstand a demurrer, the facts constituting every element of the fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782 (emphasis omitted).)

Fisher asserts that “[h]ere, as in Goldrich, the Complaint fails to set forth any facts in support of the elements of Plaintiff’s fraudulent concealment count.” (Fisher’s Demurrer at        p. 4:19-21, emphasis omitted.) But Fisher fails to provide any further analysis in support of this assertion or explain what further facts it contends are necessary.[3]

Based on the foregoing, the Court overrules Fisher’s demurrer to the fourth cause of action.

A.G. Layne’s and Fisher’s Motions to Strike

A.    Legal Standard

A court may strike any “irrelevant, false, or improper matter inserted in any pleading” or all or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

B.    A.G. Layne’s Motion to Strike

In the Complaint, Plaintiff alleges that she was exposed to certain chemical products, and as to A.G. Layne, alleges the following:

“A.G. Layne, Inc.

toluene

xylenes

and other products to be identified in the course of discovery.” (Compl., ¶ 11.) 

A.G. Layne moves to strike the allegations “and other products to be identified in the course of discovery” as vague, ambiguous, and speculative.

A.G. Layne cites to Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 78, where the California Supreme Court noted that “when…the pleaded facts of negligence and injury do not naturally give rise to an inference of causation…the plaintiff must plead specific facts affording an inference the one caused the others.” The Bockrath Court found that “(1) Plaintiff must allege that he was exposed to each of the toxic materials claimed to have caused a specific illness. An allegation that he was exposed to most and perhaps all of the substances listed is inadequate. (2) He must identify each product that allegedly caused the injury. It is insufficient to allege that the toxins in defendants’ products caused it. (3) He must allege that as a result of the exposure, the toxins entered his body. (4) He must allege that he suffers from a specific illness, and that each toxin that entered his body was a substantial factor in bringing about, prolonging, or aggravating that illness. (5) Finally, except in a case (unlike this one) governed by the principle of liability based on market share for a uniform product that we outlined in Sindell v. Abbott Laboratories (1980) 26 Cal. 3d 588, 612…he must allege that each toxin he absorbed was manufactured or supplied by a named defendant.” (Id. at p. 80 [internal quotations omitted; emphasis added].) A.G. Layne asserts that Plaintiff has failed to meet the second element set forth above because she has included a vague reference to “and other products to be identified during the course of discovery.” (Compl., ¶ 11.)

Plaintiff does not address the foregoing point in her opposition. Based on the foregoing, the Court grants A.G. Layne’s motion to strike the allegation “and other products to be identified in the course of discovery.” (Compl., p. 2:25.)

A.G Layne also moves to strike Plaintiff’s request for punitive damages. Plaintiff seeks punitive damages in connection with her second cause of action for strict liability – warning defect (Compl., ¶ 60); third cause of action for strict liability – design defect (Compl., ¶ 77); fourth cause of action for fraudulent concealment (Compl., ¶ 100); and in connection with the prayer for relief (Compl., p. 25:4).

A motion to strike may lie where the facts alleged do not rise to the level of “malice, oppression or fraud” required to support a punitive damages award. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.) “‘Malice’ 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.” (Civ. Code, § 3294, subd. (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code., § 329, subd. (c)(2).) “‘Fraud’ 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.” (Civ. Code, § 3294, subd. (c)(3).) 

A.G. Layne asserts that “Plaintiff has included nothing more than broad, boilerplate allegations against ‘Defendants’ as a whole, without making any specific allegations against each Defendant. Such allegations are insufficient to support a claim for punitive damages, because they are not individualized and do not provide each Defendant with adequate notice of the conduct that is specifically charged against it…” (A.G. Layne’s Motion to Strike at p. 7:24-28.)

In the opposition, Plaintiff asserts that the allegations of the Complaint which set forth facts supporting Plaintiffs’ claim for punitive damages are found in paragraphs 59-60, 76-77, and 99-100 of the Complaint. Paragraphs 59, 76, and 99 of the Complaint allege as follows:

“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.” (Compl., ¶¶ 59, 76, 99.)

The Court finds that these allegations establish “malice,” “oppression,” and “fraud” for purposes of Plaintiff’s request for punitive damages. However, Plaintiff does not appear to respond to A.G. Layne’s point that Plaintiff alleges wrongdoing by “Defendants” as a whole. (See Compl., ¶¶ 59, 76, 99 above.) A.G. Layne cites to Magallanes v. Superior Court (1985) 167 Cal.App.3d 878, 887-888, where the Court of Appeal noted that “[p]punitive damages are an individualized punishment and deterrent imposed upon a particular and identified defendant whose malicious or oppressive acts are the proximate cause of the injury sustained by the plaintiff. They are intended to punish wrongdoers for acting with malice or oppression…The measure of that malice or oppression requires the determination of the state of mind of the particular defendant while committing the alleged wrongful act.” Plaintiff does not identify any particular defendants in paragraphs 59-60, 76-77, and 99-100 of the Complaint.  

Based on the foregoing, the Court grants A.G. Layne’s motion to strike. 

C.    Fisher’s Motion to Strike

Fisher also moves to strike Plaintiff’s request for punitive damages. Fisher argues that the following punitive damages allegation in the Complaint is conclusory: “Defendants’ conduct 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 Plaintiff…” (Compl., ¶ 60) Fisher asserts that the Complaint fails to set forth any factual base on which Plaintiff’s claim for punitive damages against Fisher Scientific could stand.

As discussed above in connection with A.G. Layne’s motion to strike, Plaintiff’s punitive damages allegations do not identify particular defendants. Accordingly, the Court grants Fisher’s motion to strike.

Conclusion

Based on the foregoing, A.G. Layne’s demurrer to the fourth cause of action is overruled.  A.G. Layne’s motion to strike is granted, with leave to amend.

Fisher’s demurrer to the fourth cause of action is overruled. Fisher’s motion to strike is granted, with leave to amend.

The hearing on Brenntag Pacific’s demurrer and motion to strike is continued, as set forth above.

The Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this Order. If no amended complaint is filed within 20 days of this Order, A.G. Layne and Fisher are ordered to file and serve their answers within 30 days of the date of this Order.¿ 

Plaintiff is ordered to give notice of this Order.¿ 

DATED:  March 22, 2023                              ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court