This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 10:14:47 (UTC).

BEATRIZ VALDEZ ET AL VS DOES 1 TO 200

Case Summary

On 02/07/2017 BEATRIZ VALDEZ filed an Other - Environment lawsuit against DOES 1 TO 200. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9327

  • Filing Date:

    02/07/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Environment

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiffs and Petitioners

VALDEZ BEATRIZ

CHAVEZ JESSICA

CHAVEZ CECILIA

Defendants and Respondents

DOES 1 TO 100

CASTROL INDUSTRIAL NORTH AMERICA INC.

SUNNEN PRODUCTS COMPANY

ELANTAS PDG INC.

GARDNER DENVER THOMAS INC. A DELAWARE CORPORATION AND SUCCESSOR IN INTEREST TO WELCH RIETSCHLE THOMAS

CHEMETALL US INC.

SASOL NORTH AMERICA INC.

CHEM ARROW CORP.

ILLINOIS TOOL WORKS INC. A DELAWARE CORPORATION AND SUCCESSOR BY ACQUISITION TO BUEHLER LTD.

W.S. DODGE OIL CO. INC.

THYSSENKRUPP MATERIALS NA INC.

A.M. CASTLE & CO.

KENNAMETAL INC .

SUPERIOR GRAPHITE CO .

ILLINOIS TOOL WORKS INC . A DELAWARE CORPORATION AND SUCCESSOR BY ACQUISITION TO BUELER LTD .

Not Classified By Court

AEROFIT LLC

THYSSENKRUPP MATEIALS NA INC.

1 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

METZGER RAPHAEL ESQ.

Defendant Attorney

JOHNSON JERRI LYNN ESQ.

Not Classified By Court Attorney

REJCH BARTEK R

 

Court Documents

Proof of Personal Service

8/7/2019: Proof of Personal Service

Proof of Personal Service

8/7/2019: Proof of Personal Service

DEFENDANT A.M. CASTLE & CO.'S ANSWER TO PLAINTIFFS' COMPLAINT

5/22/2018: DEFENDANT A.M. CASTLE & CO.'S ANSWER TO PLAINTIFFS' COMPLAINT

NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

7/3/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

NOTICE OF CASE REASSIGNMENT

7/6/2018: NOTICE OF CASE REASSIGNMENT

CASE MANAGEMENT STATEMENT

7/30/2018: CASE MANAGEMENT STATEMENT

Case Management Statement

11/29/2018: Case Management Statement

Notice of Ruling

12/14/2018: Notice of Ruling

Motion for Protective Order

2/4/2019: Motion for Protective Order

Minute Order

2/8/2019: Minute Order

Brief

3/1/2019: Brief

Reply

3/5/2019: Reply

Minute Order

3/12/2019: Minute Order

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

3/12/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Amendment to Complaint (Fictitious/Incorrect Name)

5/7/2019: Amendment to Complaint (Fictitious/Incorrect Name)

COMPLAINT FOR WRONGFUL DEATH FROM TOXIC INJURIES ASSERTING CAUSES OF ACTION FOR: (1) NEGLIGENCE; ETC

2/7/2017: COMPLAINT FOR WRONGFUL DEATH FROM TOXIC INJURIES ASSERTING CAUSES OF ACTION FOR: (1) NEGLIGENCE; ETC

PLAINTIFFS' PEREMPTORY DISQUALIFICATION OF THE HONORABLE BARBARA A ? MEIERS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRIAN FOSTER

2/9/2017: PLAINTIFFS' PEREMPTORY DISQUALIFICATION OF THE HONORABLE BARBARA A ? MEIERS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRIAN FOSTER

NOTICE OF RULING AT CASE MANAGEMENT CONFERENCE AND ORDER TO SHOW CAUSE HELD DECEMBER 1, 2017

12/11/2017: NOTICE OF RULING AT CASE MANAGEMENT CONFERENCE AND ORDER TO SHOW CAUSE HELD DECEMBER 1, 2017

86 More Documents Available

 

Docket Entries

  • 09/12/2019
  • Hearingat 08:30 AM in Department 78 at 111 North Hill Street, Los Angeles, CA 90012; Case Management Conference

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  • 09/12/2019
  • Hearingat 08:30 AM in Department 78 at 111 North Hill Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 08/09/2019
  • DocketProof of Service by Substituted Service; Filed by Beatriz Valdez (Plaintiff)

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  • 08/07/2019
  • DocketProof of Personal Service; Filed by Beatriz Valdez (Plaintiff)

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  • 08/07/2019
  • DocketProof of Personal Service; Filed by Beatriz Valdez (Plaintiff)

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  • 08/07/2019
  • DocketProof of Personal Service; Filed by Beatriz Valdez (Plaintiff)

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  • 08/07/2019
  • DocketProof of Personal Service; Filed by Beatriz Valdez (Plaintiff)

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  • 08/07/2019
  • DocketProof of Personal Service; Filed by Beatriz Valdez (Plaintiff)

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  • 08/07/2019
  • DocketProof of Personal Service; Filed by Beatriz Valdez (Plaintiff)

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  • 08/07/2019
  • DocketProof of Personal Service; Filed by Beatriz Valdez (Plaintiff)

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139 More Docket Entries
  • 02/14/2017
  • Docketat 3:00 PM in Department 12; Unknown Event Type - Held - Motion Granted

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  • 02/14/2017
  • DocketMinute order entered: 2017-02-14 00:00:00; Filed by Clerk

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  • 02/14/2017
  • DocketMinute Order

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  • 02/09/2017
  • DocketChallenge To Judicial Officer - Peremptory (170.6); Filed by Cecilia Chavez (Plaintiff); Jessica Chavez (Plaintiff); Beatriz Valdez (Plaintiff)

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  • 02/09/2017
  • DocketPLAINTIFFS' PEREMPTORY DISQUALIFICATION OF THE HONORABLE BARBARA A MEIERS; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF BRIAN FOSTER

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  • 02/07/2017
  • DocketSUMMONS

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  • 02/07/2017
  • DocketCOMPLAINT FOR WRONGFUL DEATH FROM TOXIC INJURIES ASSERTING CAUSES OF ACTION FOR: (1) NEGLIGENCE; ETC

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  • 02/07/2017
  • DocketReceipt; Filed by Cecilia Chavez (Plaintiff); Jessica Chavez (Plaintiff); Beatriz Valdez (Plaintiff)

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  • 02/07/2017
  • DocketCIVIL DEPOSIT

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  • 02/07/2017
  • DocketComplaint; Filed by Cecilia Chavez (Plaintiff); Jessica Chavez (Plaintiff); Beatriz Valdez (Plaintiff)

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Tentative Rulings

Case Number: BC649327    Hearing Date: October 27, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

BEATRIZ VALDEZ, et al.,

Plaintiffs,

vs.

A.M. CASTLE & CO. et al. (formerly Does 1-100),

Defendants.

Case No.:

BC649327

Hearing Date:

October 27, 2020

[TENTATIVE] RULING RE:

DEFENDANT reliance steel & aluminum co.’s DEMURRER TO THE second AMENDED COMPLAINT AND MOTION TO STRIKE

DEFENDANT symmetry medical, inc.’s DEMURRER TO THE second AMENDED COMPLAINT AND MOTION TO STRIKE

Defendants Reliance Steel & Aluminum Co. and Symmetry Medical, Inc.’s. Demurrers to the Second Amended Complaint are OVERRULED.

Defendants Reliance Steel & Aluminum Co. and Symmetry Medical, Inc.’s Motions to Strike Portions of the Second Amended Complaint are DENIED.

FACTS OF THE CASE

This is a products liability case. The Second Amended Complaint (“SAC”) alleges as follows. Decedent Rodolfo Chavez (“Decedent”) worked with various products and machines as a Machinist that caused him to be exposed to toxins, fibrogens, or carcinogens during the course of his employment. (SAC ¶ 30.) The exposure to these substances caused toxic injury to Decedent, ultimately leading to his death. (SAC ¶ 30.) Defendants are suppliers, distributors, and/or manufacturers of the products and chemicals alleged to have caused injury to Decedent. (SAC ¶ 20.)

Plaintiffs Beatriz Valdez, Cecilia Chavez, and Jessica Chavez are respectively Rodolfo’s spouse and two children. (FAC ¶¶ 2-3.)

PROCEDURAL BACKGROUND

Plaintiffs filed the Complaint on February 7, 2017, and a FAC on December 24, 2019, alleging 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

  6. Loss of Consortium

On December 5, 2019, this Court sustained Defendant Sasol Chemicals (USA) LLC, successor-in-interest to Sasol North America Inc. (Doe 3) (“Sasol”)’s Demurrer to the Complaint.

On February 6, 2020, this Court sustained with leave to amend the demurrers to the FAC of Sasol Chemical and BP as to all causes of action, and Superior and Thyssenkrupp as to the Fourth Cause of Action; and overruled the demurrer of Sunnen.

On February 24, 2020, Plaintiffs filed the Second Amended Complaint (“SAC”), alleging the same six causes of action.

On May 1, 2020, Defendant Reliance Steel & Aluminum Co. (“Reliance”) filed the instant Demurrer and Motion to Strike.

On May 21, 2020, Defendant Symmetry Medical, Inc. (“Symmetry”) filed the instant Demurrer and Motion to Strike.

On August 7, 2020, this Court overruled the demurrers, and denied the motions to strike of, Defendants Sasol Chemical, BP Lubricants USA Inc., Thyssenkrupp Materials, NA, Inc., Superior Graphite Co., and Sunshine Metals, Inc.

On September 3, 2020, this Court overruled the demurrers for Defendants Rolled Alloys, Inc. and Kennametal, Inc., denied the motion to strike for Rolled Alloys, Inc., and granted the motion to strike as to the prayer for punitive damages and denied the remainder for Kennametal, Inc.

On September 9, 2020, this Court overruled the demurrers and denied the motions to strike for Defendants Designed Metal Connections, Inc. and Wyman Gordon. This court sustained with leave to amend as to the Fourth Cause of Action and overruled as to the remainder for Defendant Perryman Company’s demurrer; and granted Perryman Company’s Motion to Strike with leave to amend as to paragraphs 199-200 and denied as to the remainder.

On October 14, 2020, Plaintiffs filed Oppositions to the Motions.

On October 20, 2020, Reliance and Symmetry filed Replies.

DISCUSSION

  1. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Here, Reliance demurs to all six causes of action. Symmetry demurs to all six causes of action and to the “survival action.”

  1. Civil Procedure section 377.32

Symmetry argues that Plaintiffs failed to comply with the requirements of Civil Procedure section 377.32 to be a success-in-interest, and that the Court should according sustain the demurrer with leave to amend as to all causes of action. (Motion at pp. 12-13.)

Symmetry’s facts are incorrect. On April 6, 2018, Plaintiffs filed a motion to be appointed as success-in-interest, including the required declaration and information. On September 13, 2018, this Court granted the motion.

Accordingly, Symmetry’s argument is without merit. Symmetry’s Demurrer is OVERRULED as to this argument.

  1. Survival Action/Statute of Limitations

The SAC includes a survival action (which was added in the FAC), to the previous wrongful death-only action, pursuant to Code of Civil Procedure section 377.11, wherein Valdez brings the action in place of Decedent Rodolfo as successor-in-interest. (SAC ¶ 2.)

Here, Symmetry argues that the Survival Action is barred by the statute of limitations because the Survival Action expired before the Complaint was filed. (Motion at pp. 13-15.) Symmetry argues that the statute of limitations began running when the Decedent was diagnosed with lung cancer in February/March 2012 and expired two years later. (Motion at p. 15.)

A survival cause of action is not an independent cause of action, but an assertion of the rights of decedents by the decedent’s heir or successor-in-interest. (San Diego Gas & Elec. Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1553 [“unlike a wrongful death claim, the survival statutes do not create a cause of action but merely prevent the abatement of the decedent's cause of action and provide for its enforcement by the decedent's personal representative or successor in interest”].)

Symmetry is misconstruing a key element: this case is both a wrongful death and survival action, by definition and title. Wrongful death actions have a two-year statute of limitations that begins on the date of death. (Code Civ. Proc. § 335.1; Horwich v. Superior Court (1999) 21 Cal.4th 272, 283.) Here, Decedent died on February 28, 2015. (SAC ¶ 141.) Accordingly, even without any tolling, the statute of limitations would expire on February 28, 2017 but the Complaint was filed on February 7, 2017. Further, the SAC pleads numerous allegations as to fraudulent concealment of toxic hazards by the Defendants, which may serve to toll the statute of limitations. (SAC ¶¶ 110-119.) The SAC pleads that the earliest that Plaintiffs could have known about Defendants’ culpability was January 26, 2017. (SAC ¶ 119.)

The question of whether an amended complaint (the SAC, in this case) relates back to the original complaint, for purposes of avoiding the statute of limitations, is whether it: (1) rests on the same general set of facts as the original complaint and (2) refers to the same accident and the same injuries as the original complaint. (Id. at 1549 citing Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408–409.) The relation-back doctrine typically applies where an amendment “makes a mere technical change in the capacity in which the plaintiff sues on the same cause of action” or “substitutes a plaintiff with standing in place of a plaintiff who lacks standing.” (Id. at 1550.)

Here, the original Complaint was filed on February 7, 2017, alleging six causes of action (negligence, strict liability, strict liability, fraudulent concealment, breach of implied warranties, loss of consortium) by Beatriz Valdez, Cecelia Chavez and Jessica Chavez. The FAC was filed on December 24, 2019, alleging the same six causes of action by Beatriz Valdez (individually and as successor-in-interest to Decedent), Cecelia Chavez, and Jessica Chavez. The complaint rests on the same set of facts as the original complaint and refers to the same injuries, as both the original complaint and FAC are based on the same causes of action. The FAC did not seek to add a new party nor add a new cause of rather, rather the FAC sought to make a technical change whereby Beatriz Valdez’s capacity to sue includes both herself as an individual and herself as successor-in-interest the Decedent. Further, the SAC similarly asserts identical causes to the FAC and plainly relates-back to the FAC.

Therefore, the FAC (and accordingly, the instant SAC)’s survival claims (of Valdez as successor-in-interest) relate-back to the date that the original complaint was filed, February 7, 2017.

Symmetry’s Demurrer to the survival action on the grounds of statute of limitations is OVERRULED.

  1. All Causes of Action

Both Defendants Symmetry and Reliance demur to the entire SAC on the grounds that the SAC fails to state facts sufficient to meet the standards articulated in Bockrath v. Aldrich Chemical Co., Inc. (1999), 21 Cal. 4th 71. (Symmetry at pp. 10-12; Reliance at pp. 6-7.) They argue that the SAC does not allege “that any specific toxin attributable to any one [Symmetry or Reliance] product entered Decedent’s body[.]” (Symmetry at p. 12; Reliance at p. 7.) Both Defendants also argue that the SAC does not allege the causal causation between their products/toxins and the disease causes. (Reliance at p. 7; Symmetry at p. 11.) This Court has previously addressed near identical arguments made by Defendants Superior, Sunnen, Thyssenkrupp, BP, Sasol, Rolled, and Kennametal: this Court held that the demurrers were overruled as to these arguments. The Court holds the same, here.

“The Supreme Court decision in Bockrath [citation] established the causation pleading threshold for a complaint alleging harmful long-term exposure to multiple toxins under California law.” (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1194.) In Bockrath, the plaintiff contracted multiple myeloma while working for an aircraft company and sued at least 55 manufactures of various common chemical products, including WD-40 and rubber cement, and argued that his disease was caused by his exposure to the harmful substances in these products. (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 77.) “According to the second amended complaint, he and his fellow workers had used ‘most, and perhaps all, of the ... products’ and had inhaled and had direct skin contact with ‘most and perhaps all’ of them. (citation) Any products he had not been directly exposed to had been used or improperly stored somewhere at the plant, thereby causing him to have inhaled or had direct skin contact with all of the named chemicals, all of which produce ‘carcinogenic effects.’” (Jones v. ConocoPhillips Co., supra, 198 Cal.App.4th at 1194.) The Supreme Court reversed the trial court sustaining of the demurrer and “set forth explicit guidelines for plaintiffs attempting to allege injury resulting from exposure to toxic materials: A plaintiff must ‘allege that he was exposed to each of the toxic materials claimed to have caused a specific illness’; ‘identify each product that allegedly caused the injury’; allege ‘the toxins entered his body’ ‘as a result of the exposure’; 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’; and, finally, allege that ‘each toxin he absorbed was manufactured or supplied by a named defendant.’ (Id., citing Bockrath, supra, 21 Cal.4th at 77.)

The Bockrath court was specifically concerned about “prospecting plaintiffs who sue multiple defendants on speculation that their products may have caused harm over time through exposure to toxins in them, and who thereafter try to learn through discovery whether their speculation was well-founded.” (Bockrath, supra, 21 Cal.4th at 81.)

The Court in Bockrath, and subsequent cases interpreting Bockrath, have explicitly renounced the arguments espoused by Symmetry and Reliance, here: namely, that a Plaintiff needs to plead the details of how a plaintiff was exposed. “In so holding, the court rejected the argument advanced here by defendants that a complaint is unacceptably speculative if a plaintiff has not specifically identified which toxin contained in a particular product caused the alleged injury or has sued the manufacturers of multiple products, alleging all of them contained toxins that were substantial factors in causing his injury.” (Jones, supra, 198 Cal.App.4th at 1195.)

Both Symmetry and Reliance, citing Bockrath, focus their arguments on the SAC’s alleged failure to identify a specific toxin in their products that caused the alleged death/disease, and failed to allege how the decedent was exposed to this toxin. (See, Symmetry at pp. 11-12; Reliance at p. 7.) However, California courts have held that this argument, based in Bockrath, is incorrect: “Once the product had been identified, the plaintiff could allege that ‘the toxin’ in the product entered his body and were ‘a substantial factor in bringing about, prolonging, or aggravating [his] illness.’ (citations.) As we read the opinion, the Supreme Court was referring to ‘toxins’ in a general sense. It was not expressing a requirement that the plaintiff identify specific chemical compounds before he or she can assert a claim.’” (Jones, supra, 198 Cal.App.4th at 1195.)

The Court finds that the SAC corrects the deficiencies that were present in the FAC. The SAC alleges suspected products produced by each moving defendant, here: 7 products made by Symmetry (392Tl06AL4VTITAFORGING; 392T206AL4V TITA FORGING; 392T226AL4V TITA FORGING; 921663-04 6AL4V TITANIUM; 921713-06 6AL4V TITANIUM; 921273-08 6AL4V TITANIUM; 921273-12 6AL4V TITANIUM); and 26 products made by Reliance (11/16" HEX 2024T4 ALUM BAR; 9/16" DIA 2024T6 ALUM BAR; 7/16" DIA 2024T6 ALUM BAR; 11/16" DIA 2024T6 ALUM BAR; l" DIA 2024T851 ALUM BAR; 3/8" DIA 2024T6 ALUM BAR; 1/2" DIA 2024T851 ALUM; 1-1/4" HEX 2024T851 ALUM; 1-3/4" DIA 2024T851 ALUM; 3/4" DIA 2024T851 ALUM; 1-3/4" DIA 2024T851 ALUM; 9/16" HEX 2024T851 ALUM; 1-3/8" HEX 2024T851 ALUM; 9/16" HEX 2024T851 ALUM; 13/16" HEX 2024T851 ALUM; 1-1/2" DIA 6061T651 ALUM BAR; 1" DIA 7075T7351 ALUMBAR; l"HEX7075T7351 ALUMBAR;2-1/4"DIA 7075T7351 ALUM;2-1/2"DIA 7075T7351 ALUM;2-1/8"DIA 7075T7351 ALUM; l-1/8"HEX7075T7351 ALUM;2-1/4" DIA 7075T7351 ALUM; 13/16" HEX 7075T7351 ALUM; 1-3/4" DIA 7075T73 ALUM; 2X3" RECT 7075T7351 ALUM). (SAC ¶ 30.)

The SAC further addresses these products specifically. In a change from the FAC, adds a large section with allegations regarding individual toxins, the risks of the toxins, and misrepresentations by each the defendants related to the risks of these toxins. (SAC ¶¶ 31-101.) These allegations include sections specifically on titanium (SAC ¶¶ 79-81) and aluminum (SAC ¶¶ 48-52), among numerous other toxins. The SAC specifically alleges that various studies of the effect of aluminum dust on workers, which found that the aluminum dust causes “lung changes,” pulmonary fibrosis,” and various other lung complications. (SAC ¶¶ 48-52.) The SAC further alleges that other studies have found that titanium dust causes “massive depositions in the lungs and subsequent injuries,” and a “scarring of the lung tissue.” (SAC ¶¶ 79-81.)

Lastly, the SAC alleges that Decedent’s exposure these products/toxins caused his injuries and death. (SAC ¶¶ 102-109). The SAC alleges that by using the products/toxins/machines as intended, the Decedent “was thereby exposed to and inhaled toxicologically significant amounts of the toxins of which said metals, metal products, metal alloys, metal working fluids, aerosols, abrasive products, solvents, thinners, lubricants, as well as other toxic chemical products, were composed, and which were released as toxic airborne fumes, dusts, vapors, and aerosols. (SAC ¶ 107.) The SAC lastly alleges that exposure of these toxins causes serious injuries to Decedents including to his lungs, resulting in lung disease, lung cancer, and his death. (SAC ¶ 109.)

Concerns over sufficient causation pleading, as raised by the moving defendants in these demurrers, do not “warrant judgment entered against a plaintiff based on his or her inability to identify in the complaint a specific causative agent for a chemically induced injury.” (Jones, supra, 198 Cal.App.4th at 1197.) From a scientific standpoint, there is a fundamental uncertainty as to what causes cancer, especially given long latency periods. As to a related health issue, asbestos: “Plaintiffs cannot be expected to prove the scientifically unknown details of carcinogenesis, or trace the unknowable path of a given asbestos fiber […] plaintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff's exposure to defendant's asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant's particular product were the ones, or among the ones, that actually produced the malignant growth.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 976–977, as modified on denial of reh'g (Oct. 22, 1997).)

The Court finds that the SAC pleads sufficient facts that each of the toxins that Decedent was exposed to, “was a substantial factor in bringing about, prolonging, and aggravating Decedent, Rodolfo Chavez’ lung disease, lung cancer, ultimately causing his death. (SAC ¶ 140.)

Accordingly, the Demurrers of Reliance and Symmetry are OVERRULED on these grounds.

  1. Fourth Cause of Action – Fraudulent Concealment

The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages.  (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) It is well-established that “[t]o withstand a demurrer, the facts constituting every element of 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

An essential element of the causes of action for fraudulent concealment is duty. To state a cause of action for fraudulent concealment, the defendant must have been under a duty to disclose some fact to the plaintiff. (Hahn v. Mirda

Fraud causes of action must be pleaded with particularity, meaning that the plaintiff must allege “how, when, where, to whom, and by what means the representations were tendered.” (Lazar, supra, 12 Cal.4th at 645.) Fraud must be pleaded with particularity to give notice to a defendant so that the defendant may meet the charges. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

Symmetry and Reliance demur specifically to the Fourth Cause of Action – Fraudulent Concealment. Symmetry argues that the SAC fails to “allege specific facts” to support the alleged fact that “all defendants knew their products contained toxic chemicals and concealed this information from Decedent.” (Motion at pp. 15-16.) Further, Reliance argues that the SAC does not allege any specific misrepresentations made by Reliance.” (Reliance Motion at p. 8.)

The Court disagrees. The SAC pleads all elements of fraudulent concealment. (See Lazar, supra, 12 Cal.4th at 638.) The SAC makes myriad allegations about each product/toxin produced by each defendant and the health risks of each product/toxin. Further, as to Reliance’s argument: this cause of action is for fraudulent concealment, not misrepresentation. Allegations of concealment are sufficient. Accordingly, these arguments are without merit.

In the case of Symmetry, the SAC alleges that studies on titanium, the material/toxin in Symmetry’s products, going back to 1977 have described the dangers and negative effects on the lungs and pulmonary functions. (SAC ¶¶ 79-82.) Further, in the case of Reliance, the SAC alleges studies on aluminum going back to 1943 that expose the dangers for workers exposed to inhalation of aluminum dust. (SAC ¶¶ 48-52.) Accordingly, the SAC alleges that that the Defendants, including Symmetry and Reliance, concealed material facts concerning the toxic nature of their products. (See, SAC ¶¶ 114-118.) The allegations about Symmetry and its titanium-based products in the SAC, as well as Reliance and its aluminum-based products, are sufficient to give Symmetry and Reliance notice of the “particular claims against them.” (Jones, supra, 198 Cal.App.4th at 1200.)

Symmetry further argues that the SAC does not allege a special relationship between Symmetry and the Decedent that would create a duty to disclose any concealed information. (Motion at p. 16.)

The element of “duty to disclose” may be satisfied based on various circumstances and relationships between the parties: “(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. [Citation.]’ ” (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 859, as modified (Dec. 26, 2007 citing LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.)

The Court disagrees with Symmetry. The SAC explicitly alleges in numerous sections the duty to disclose owed by the Defendants, which includes Symmetry. (SAC ¶¶ 121, 126-129, 182-187.) The SAC plainly alleges a duty based on concealment and exclusive knowledge. The SAC alleges that Defendants “owed a duty to disclose the toxic properties of their products, as well as the toxic fumes, vapors, aerosols and dusts released and generated during the use of their machines to Decedent, Rodolfo Chavez, because Defendants alone had knowledge of material facts, to wit the toxic properties of their products and machines, which were not accessible to Decedent, Rodolfo Chavez.” (SAC ¶ 183.) Further, the SAC alleges that Defendants owed a duty “[p]ursuant to the Hazard Communication Standard and California common law” to disclose the toxic properties of their products. (SAC ¶ 182.) Accordingly, the Court finds that the SAC satisfies the element of “duty.”

Accordingly, the Demurrers to the Fourth Cause of Action are OVERRULED.

  1. Fifth Cause of Action – Breach of Implied Warranties

Symmetry argues that “Plaintiffs have failed to establish how implied warranties are applicable in this matter.” (Motion at p. 18.) They contend that “The SAC does not allege that Decedent intended to use a Symmetry product for a particular purpose, that Decedent relied on the skill or judgment of Symmetry to select or furnish any particular product for a particular purpose, or that Symmetry had reason to know that Decedent was relying on such skill and judgment.” (Motion at p. 19.)

Implied warranties are based on implied representations rather than on promises and may be created by statute or case law. (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1200–1201.)The doctrine of implied warranty in a sales contract is based on the actual and presumed knowledge of the seller, reliance on the seller's skill or judgment, and the ordinary expectations of the parties.” (Id.)

“Every sale of consumer goods that are sold at retail in this state by a manufacturer who has reason to know at the time of the retail sale that the goods are required for a particular purpose and that the buyer is relying on the manufacturer's skill or judgment to select or furnish suitable goods shall be accompanied by such manufacturer's implied warranty of fitness.” (Civ. Code, § 1792.1.) “The California Uniform Commercial Code also implies a warranty of fitness for a particular purpose. (Cal.U.Com.Code, § 2315.)” (Arnold v. Dow Chemical Co. (2001) 91 Cal.App.4th 698, 719.)

The Court finds Symmetry’s argument unavailing. The SAC alleges that Defendants’ products were used in the intended and foreseeable manner during Decedent’s course of work as a machinist. (SAC ¶¶ 103-105, 133, 162.) The SAC alleges that the products were defective because they did not perform as safely as an ordinary user would expect when using them in their intended or reasonably foreseeable manner. (SAC ¶¶ 162, 204.) Further, it alleges that that the products/toxins were not reasonably fit for their intended uses because they caused serious injuries to Decedent which caused his death. (SAC ¶ 205.) This is sufficient for demurrer.

Accordingly, Symmetry’s Demurrer to the Fifth Cause of Action is OVERRULED.

  1. Conspiracy

Symmetry raises an argument against conspiracy/agency/alter-ego liability. (Motion at p. 19.) However, conspiracy is not mentioned in the SAC, and none of the causes of action depend on the existence of a conspiracy and/or agency or alter-ego liability. Accordingly, this argument is without merit.

  1. Sixth Cause of Action – Loss of Consortium

Symmetry argues that because the “underlying causes of action fail,” this cause of action fails because it is derivative. (Motion at pp. 20-21.) However, the first through fifth causes of action survive demurrer. Accordingly, this argument is without merit.

  1. MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court, Rule 3.1322).

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any 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. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Reliance moves to strike the references to punitive damages. (Reliance at p. 2.) Symmetry moves to strike pg. 12, line 4 and paragraphs 158, 159, 175, 176, 199, 200, and the prayer for relief. (Symmetry at p. 1.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ.¿Code § 3294.) The terms are defined as:¿

1. “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.¿

  1. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.¿

  1. “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.¿

    Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court¿(1979) 24 Cal.3d 890, 894.)¿Proof¿of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian)¿(1980) 111 Cal.App.3d 82, 88–89.)¿Punitive damages may be recovered in a personal injury action if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc.¿(2013) 220 Cal.App.4th 1270, 1299.)¿When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court¿(1994) 8 Cal.4th 794, 713.)¿

    Because Plaintiffs’ fraud claim survives demurrer it provides a basis for seeking punitive damages. (See Civ. Code § 3294, subd. (c)(3).) Accordingly, Reliance’s Motion is denied. Further Symmetry’s requests to strike paragraphs 158, 159, 175, 176, 199, 200, and the prayer for relief, which are claims for punitive damages, are denied.

    Further, Symmetry seeks to strike page 12, line 4, which states: “and other metal products to be determined during discovery.” (SAC ¶ 30.) Symmetry contends that this phrase does not meet the pleading standard in Bockrath. (Symmetry at p. 8.) “The Bockrath court recognized that the plaintiffs may genuinely lack information about the specific cause of their injury and should not be barred from pursuing their claims.” (Jones, supra, 198 Cal.App.4th at 1196.)We presume that plaintiff here was aware of his duty to pursue his suit in good faith, and, in the absence of contrary evidence, that he did so.” (Bockrath, supra, 21 Cal.4th at 83.) The warnings in Bockrath were regarding plaintiffs who sue many defendants entirely on speculation about their products and who are hoping to learn in discovery whether their speculations were well-founded. (Id. at 81.) This is not the same case, here, where the SAC does make specific allegations about specific products and toxins, and where the Plaintiffs may truly learn more information about the specific cause of injury during discovery. Accordingly, this argument is denied.

    Accordingly, Reliance and Symmetry’s Motions to Strike are DENIED.

DATED: October 27, 2020

______________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC649327    Hearing Date: September 09, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

BEATRIZ VALDEZ, et al.,

Plaintiffs,

vs.

A.M. CASTLE & CO. et al. (formerly Does 1-100),

Defendants.

Case No.:

BC649327

Hearing Date:

September 9, 2020

[TENTATIVE] RULING RE:

DEFENDANT designed metal connections, inc. (Doe 16)’s DEMURRER TO THE second AMENDED COMPLAINT AND MOTION TO STRIKE

DEFENDANT Wyman gordon (Doe 23)’s DEMURRER TO THE second AMENDED COMPLAINT AND MOTION TO STRIKE

DEFENDANT the perryman company’s DEMURRER TO THE second AMENDED COMPLAINT AND MOTION TO STRIKE

Defendant The Perryman Company’s Motion to Strike is SUSTAINED with leave to amend as the Fourth Cause of Action; and OVERRULED as to the remainder.

Defendants Designed Metal Connections, Inc. and Wyman Gordon’s Demurrers to the Second Amended Complaint are OVERRULED.

Defendant The Perryman Company’s Motion to Strike is GRANTED with leave to amend as to paragraphs 199-200; and DENIED as to the remainder.

Defendants Designed Metal Connections, Inc. and Wyman Gordon’s Motions to Strike are DENIED.

FACTS OF THE CASE

This is a products liability case. The Second Amended Complaint (“SAC”) alleges as follows. Decedent Rodolfo Chavez (“Decedent”) worked with various products and machines as a Machinist that caused him to be exposed to toxins, fibrogens, or carcinogens during the course of his employment. (SAC ¶ 30.) The exposure to these substances caused toxic injury to Decedent, ultimately leading to his death. (SAC ¶ 30.) Defendants are suppliers, distributors, and/or manufacturers of the products and chemicals alleged to have caused injury to Decedent. (SAC ¶ 20.)

Plaintiffs Beatriz Valdez, Cecilia Chavez, and Jessica Chavez are respectively Rodolfo’s spouse and two children. (FAC ¶¶ 2-3.)

PROCEDURAL BACKGROUND

Plaintiffs filed the Complaint on February 7, 2017, and a FAC on December 24, 2019, alleging 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

  6. Loss of Consortium

On December 5, 2019, this Court sustained Defendant Sasol Chemicals (USA) LLC, successor-in-interest to Sasol North America Inc. (Doe 3) (“Sasol”)’s Demurrer to the Complaint.

On February 6, 2020, this Court sustained with leave to amend the demurrers to the FAC of Sasol Chemical and BP as to all causes of action, and Superior and Thyssenkrupp as to the Fourth Cause of Action; and overruled the demurrer of Sunnen.

On February 24, 2020, Plaintiffs filed the Second Amended Complaint (“SAC”), alleging the same six causes of action.

On April 17, 2020, The Perryman Company (“Perryman”) filed the instant Demurrer and Motion to Strike to the SAC.

On April 28, 2020, Designed Metal Connections, Inc. (“Designed”) and Wyman Gordon (“Wyman”) each filed the instant Demurrer and Motion to Strike to the SAC.

On August 26, 2020, Plaintiffs filed consolidated Oppositions to the Motions of Perryman, Designed, and Wyman.

On August 7, 2020, this Court overruled the demurrers, and denied the motions to strike of, Defendants Sasol Chemical, BP Lubricants USA Inc., Thyssenkrupp Materials, NA, Inc., Superior Graphite Co., and Sunshine Metals, Inc.

On September 1, 2020, Designed, Wyman, and Perryman each filed Replies.

On September 3, 2020, this Court overruled the demurrers of Rolled Alloys, Inc. and Kennametal, Inc. This Court also denied Rolley Alloys, Inc.’s Motion to Strike, and denied Kennametal, Inc.’s Motion to Strike.

DISCUSSION

  1. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Here, Perryman, Wynn, and Designed all demur to all six causes of action. Perryman also specifically demurs to the Fourth Cause of Action.

  1. All Causes of Action

All moving Defendants, Perryman, Wynn, and Designed Metal (the “Moving Defendants”) demur to the entire SAC on a single ground: that the SAC fails to state facts sufficient to meet the standards articulated in Bockrath v. Aldrich Chemical Co., Inc. (1999), 21 Cal. 4th 71. (Perryman at p. 8; Designed at p. 8; Wynn at p. 8.) They argue that “The allegations in [the SAC] are generic” and “there are no specific facts plead[ed] sufficient to constitute any cause of action against [Moving Defendants].” (Designed at p. 8.) They contend that the SAC does not allege facts showing that the Decedent was exposed to any of their products and does not identify each toxin in Moving Defendants’ products that Decedent’s body absorbed. (Wyman at pp. 9-10; Designed at pp. 9-10 at pp. 7-9.) They also argue that the SAC does not allege the causal causation between their products/toxins and the disease causes. (Perryman at p. 9.) On February 6, 2020, this Court addressed identical arguments made by Defendants Superior, Sunnen, Thyssenkrupp, BP, and Sasol; and against on September 3, 2020 by Rolled and Kennametal: this Court held that the demurrers were overruled as to these arguments. The Court holds the same, here.

“The Supreme Court decision in Bockrath [citation] established the causation pleading threshold for a complaint alleging harmful long-term exposure to multiple toxins under California law.” (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1194.) In Bockrath, the plaintiff contracted multiple myeloma while working for an aircraft company and sued at least 55 manufactures of various common chemical products, including WD-40 and rubber cement, and argued that his disease was caused by his exposure to the harmful substances in these products. (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 77.) “According to the second amended complaint, he and his fellow workers had used ‘most, and perhaps all, of the ... products’ and had inhaled and had direct skin contact with ‘most and perhaps all’ of them. (citation) Any products he had not been directly exposed to had been used or improperly stored somewhere at the plant, thereby causing him to have inhaled or had direct skin contact with all of the named chemicals, all of which produce ‘carcinogenic effects.’” (Jones v. ConocoPhillips Co., supra, 198 Cal.App.4th at 1194.) The Supreme Court reversed the trial court sustaining of the demurrer and “set forth explicit guidelines for plaintiffs attempting to allege injury resulting from exposure to toxic materials: A plaintiff must ‘allege that he was exposed to each of the toxic materials claimed to have caused a specific illness’; ‘identify each product that allegedly caused the injury’; allege ‘the toxins entered his body’ ‘as a result of the exposure’; 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’; and, finally, allege that ‘each toxin he absorbed was manufactured or supplied by a named defendant.’ (Id., citing Bockrath, supra, 21 Cal.4th at 77.)

The Bockrath court was specifically concerned about “prospecting plaintiffs who sue multiple defendants on speculation that their products may have caused harm over time through exposure to toxins in them, and who thereafter try to learn through discovery whether their speculation was well-founded.” (Bockrath, supra, 21 Cal.4th at 81.)

The Court in Bockrath, and subsequent cases interpreting Bockrath, have explicitly renounced the arguments espoused by the Moving Defendants, here: namely, that a Plaintiff needs to plead the details of how a plaintiff was exposed. “In so holding, the court rejected the argument advanced here by defendants that a complaint is unacceptably speculative if a plaintiff has not specifically identified which toxin contained in a particular product caused the alleged injury or has sued the manufacturers of multiple products, alleging all of them contained toxins that were substantial factors in causing his injury.” (Jones, supra, 198 Cal.App.4th at 1195.)

The Moving Defendants, citing Bockrath, focus their arguments on the SAC’s alleged failure to identify a specific toxin in their products that caused the alleged death/disease, and failed to allege how the decedent was exposed to this toxin. However, California courts have held that this argument, based in Bockrath, is incorrect: “Once the product had been identified, the plaintiff could allege that ‘the toxin’ in the product entered his body and were ‘a substantial factor in bringing about, prolonging, or aggravating [his] illness.’ (citations.) As we read the opinion, the Supreme Court was referring to ‘toxins’ in a general sense. It was not expressing a requirement that the plaintiff identify specific chemical compounds before he or she can assert a claim.’” (Jones, supra, 198 Cal.App.4th at 1195.)

The Court finds that the SAC corrects the deficiencies that were present in the FAC. The SAC alleges suspected products produced by each moving defendant, here: 18 products made by Designed, all aluminum/alum-based; 5 products made by Perryman, all titanium-based; and 4 products made by Wyman, all titanium-based. (SAC ¶ 30.)

The SAC further addresses these products specifically. In a change from the FAC, adds a large section with allegations regarding individual toxins, the risks of the toxins, and misrepresentations by each the defendants related to the risks of these toxins. (SAC ¶¶ 31-101.) These allegations include sections specifically on titanium (SAC ¶¶ 79-81) and aluminum (SAC ¶¶ 48-52), among numerous other toxins. These sections allege that exposure to, and inhalation of, aluminum causes “lung changes” and “pulmonary fibrosis (aluminosis) and pneumoconiosis.” (SAC ¶¶ 48-52.) Further, they allege that exposure to titanium causes “pulmonary disease,” “massive deposits in the lungs and subsequent injuries.” (SAC ¶¶ 79-81.)

Lastly, the SAC alleges that Decedent’s exposure these products/toxins caused his injuries and death. (SAC ¶¶ 102-109). The SAC alleges that by using the products/toxins/machines as intended, the Decedent “was thereby exposed to and inhaled toxicologically significant amounts of the toxins of which said metals, metal products, metal alloys, metal working fluids, aerosols, abrasive products, solvents, thinners, lubricants, as well as other toxic chemical products, were composed, and which were released as toxic airborne fumes, dusts, vapors, and aerosols. (SAC ¶ 107.) The SAC lastly alleges that exposure of these toxins causes serious injuries to Decedents including to his lungs, resulting in lung disease, lung cancer, and his death. (SAC ¶ 109.)

Concerns over sufficient causation pleading, as raised by the moving defendants in these demurrers, do not “warrant judgment entered against a plaintiff based on his or her inability to identify in the complaint a specific causative agent for a chemically induced injury.” (Jones, supra, 198 Cal.App.4th at 1197.) From a scientific standpoint, there is a fundamental uncertainty as to what causes cancer, especially given long latency periods. As to a related health issue, asbestos: “Plaintiffs cannot be expected to prove the scientifically unknown details of carcinogenesis, or trace the unknowable path of a given asbestos fiber […] plaintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff's exposure to defendant's asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant's particular product were the ones, or among the ones, that actually produced the malignant growth.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 976–977, as modified on denial of reh'g (Oct. 22, 1997).)

The Court finds that the SAC pleads sufficient facts that each of the toxins that Decedent was exposed to, “was a substantial factor in bringing about, prolonging, and aggravating Decedent, Rodolfo Chavez’ lung disease, lung cancer, ultimately causing his death. (SAC ¶ 140.)

Accordingly, the Demurrers of Perryman, Wyman, and Designed are OVERRULED on these grounds.

  1. Fourth Cause of Action – Fraudulent Concealment

Perryman demurs specifically to the Fourth Cause of Action. (Perryman at p. 10.) Perryman argues that while the SAC includes allegations of misrepresentations by other Defendants, it does not allege any misrepresentations made by Perryman. (Perryman at p. 10.)

The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages.  (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) It is well-established that “[t]o withstand a demurrer, the facts constituting every element of 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

An essential element of the causes of action for fraudulent concealment is duty. To state a cause of action for fraudulent concealment, the defendant must have been under a duty to disclose some fact to the plaintiff. (Hahn v. Mirda

Fraud causes of action must be pleaded with particularity, meaning that the plaintiff must allege “how, when, where, to whom, and by what means the representations were tendered.” (Lazar, supra, 12 Cal.4th at 645.) Fraud must be pleaded with particularity to give notice to a defendant so that the defendant may meet the charges. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

The SAC corrects many of the deficiencies of the FAC and adds numerous allegations regarding the toxins, their dangers, and alleged misrepresentations by the producers of these products. However, while the SAC pleads allegations of misrepresentations made by various Defendants, the SAC does not made any allegations about misrepresentations made by Perryman specifically. Fraud must be pleaded with particularity, thus, allegations regarding the conduct of other Defendants or “Defendants” collectively are not sufficient. The SAC must plead allegations of misrepresentations made by Perryman to survive demurrer on this cause of action. In Opposition, Plaintiffs cite to sections in the SAC regarding misrepresentations alleged to have been made by other Defendants or “Defendants” collectively. (Oppo. at p. 11; SAC ¶ 99, 116, 132.)

Accordingly, Perryman’s Demurrer to the Fourth Cause of Action is SUSTAINED with leave to amend.

  1. MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court, Rule 3.1322).

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any 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. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Designed, Wyman, and Perryman move to strike the references to punitive damages, paragraphs 158-159, 175-176, and 199-200 related to punitive damages, and page 9, line 11/page 12, line 13 “and other metal products to be determined during discovery.” (Designed at p. 2; Wyman at p. 2; Perryman at p. 2.)

Punitive Damages

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ.¿Code § 3294.) The terms are defined as:¿

1. “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.¿

  1. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.¿

  1. “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.¿

    Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court¿(1979) 24 Cal.3d 890, 894.)¿Proof¿of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian)¿(1980) 111 Cal.App.3d 82, 88–89.)¿Punitive damages may be recovered in a personal injury action if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc.¿(2013) 220 Cal.App.4th 1270, 1299.)¿When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court¿(1994) 8 Cal.4th 794, 713.)¿

    Because Plaintiffs’ fraud claim survives demurrer for Wyman and Designed, it provides a basis for seeking punitive damages. (See Civ. Code § 3294, subd. (c)(3).) However, because Plaintiffs’ fraud claim does not survive demurrer for Perryman, it may not provide a basis for seeking punitive damages against Perryman. Accordingly, references in paragraphs 199-200 regarding punitive damages in the Fourth Cause of Action may not be maintained against Perryman.

    In Opposition, Plaintiffs argue that her punitive damages allegations survive because punitive damages are recoverable in toxic injury cases where the complaint alleges that Defendants manufactured, distributed, sold, or transported toxins “with knowledge of or in callous, conscious and/or reckless disregard of the fact that [the product/toxin] is toxic and dangerous to humans.” (Oppo. at pp. 6-8.)

    Punitive damages have been upheld in products liability/toxic tort cases, including those involved asbestos and cigarette toxins causing terminal lung diseases. (Izell v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, 985.) The award of punitive damages in these cases is based on the “reprehensibility” of defendant’s conduct based on whether: “(1) the harm caused was physical as opposed to economic; (2) the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; (3) the target of the conduct had financial vulnerability; (4) the conduct involved repeated actions or was an isolated incident; and (5) the harm was the result of intentional malice, trickery, or deceit, or mere accident. (Id.) Here, the SAC alleges sufficient facts of reprehensible conduct causing Decedent’s death to support punitive damages as to the Moving Defendants. Non-fraud claims are not required to be pleaded with specificity, Wyman and Designed did not demur specifically to the Fourth Cause of Action, and the SAC survives demurrer. Accordingly, the Court will not strike the references to punitive damages.

    “Other metal products”

    As to the “other metal products” reference, the Moving Defendants contend that this phrase does not meet the pleading standard in Bockrath because it is speculative, irrelevant, false, or improper. (Designed at pp. 8-9; Wyman and pp. 8-9; Perryman at p. 8.)

    “The Bockrath court recognized that the plaintiffs may genuinely lack information about the specific cause of their injury and should not be barred from pursuing their claims.” (Jones, supra, 198 Cal.App.4th at 1196.)We presume that plaintiff here was aware of his duty to pursue his suit in good faith, and, in the absence of contrary evidence, that he did so.” (Bockrath, supra, 21 Cal.4th at 83.) The warnings in Bockrath were regarding plaintiffs who sue many defendants entirely on speculation about their products and who are hoping to learn in discovery whether their speculations were well-founded. (Id. at 81.) This is not the same case, here, where the SAC does make specific allegations about specific products and toxins, and where the Plaintiffs may truly learn more information about the specific cause of injury during discovery.

    Accordingly, Perryman’s Motion to Strike is GRANTED with leave to amend as to paragraphs 199-200; and DENIED as to the remainder. Designed and Wyman’s Motions to Strike are DENIED.

DATED: September 9, 2020

______________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC649327    Hearing Date: September 03, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

BEATRIZ VALDEZ, et al.,

Plaintiffs,

vs.

A.M. CASTLE & CO. et al. (formerly Does 1-100),

Defendants.

Case No.:

BC649327

Hearing Date:

September 3, 2020

[TENTATIVE] RULING RE:

DEFENDANT rolleD alloys, inc.’s DEMURRER TO THE second AMENDED COMPLAINT AND MOTION TO STRIKE

DEFENDANT kennametal, inc. (Doe 12)’s DEMURRER TO THE second AMENDED COMPLAINT AND MOTION TO STRIKE

Defendants Rolled Alloys, Inc. and Kennametal, Inc.’s Demurrers to the Second Amended Complaint are OVERRULED.

Defendant Rolled Alloys, Inc.’s Motion to Strike Portions of the Second Amended Complaint is DENIED.

Defendant Kennametal, Inc.’s Motion to Strike Portions of the Second Amended Complaint is DENIED.

FACTS OF THE CASE

This is a products liability case. The Second Amended Complaint (“SAC”) alleges as follows. Decedent Rodolfo Chavez (“Decedent”) worked with various products and machines as a Machinist that caused him to be exposed to toxins, fibrogens, or carcinogens during the course of his employment. (SAC ¶ 30.) The exposure to these substances caused toxic injury to Decedent, ultimately leading to his death. (SAC ¶ 30.) Defendants are suppliers, distributors, and/or manufacturers of the products and chemicals alleged to have caused injury to Decedent. (SAC ¶ 20.)

Plaintiffs Beatriz Valdez, Cecilia Chavez, and Jessica Chavez are respectively Rodolfo’s spouse and two children. (FAC ¶¶ 2-3.)

PROCEDURAL BACKGROUND

Plaintiffs filed the Complaint on February 7, 2017, and a FAC on December 24, 2019, alleging 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

  6. Loss of Consortium

On December 5, 2019, this Court sustained Defendant Sasol Chemicals (USA) LLC, successor-in-interest to Sasol North America Inc. (Doe 3) (“Sasol”)’s Demurrer to the Complaint.

On February 6, 2020, this Court sustained with leave to amend the demurrers to the FAC of Sasol Chemical and BP as to all causes of action, and Superior and Thyssenkrupp as to the Fourth Cause of Action; and overruled the demurrer of Sunnen.

On February 24, 2020, Plaintiffs filed the Second Amended Complaint (“SAC”), alleging the same six causes of action.

On March 27, 2020, Kennametal, Inc. (“Kennametal”) filed the instant Demurrer and Motion to Strike to the SAC.

On April 15, 2020, Rolled Alloys, Inc. (“Rolled”) filed the instant Demurrer and Motion to Strike to the SAC.

On July 20, 2020, Plaintiffs filed oppositions to the motions of Defendants Sunshine, Symmetry, Thyssenkrupp, and Kennametal.

On August 7, 2020, this Court overruled the demurrers, and denied the motions to strike of, Defendants Sasol Chemical, BP Lubricants USA Inc., Thyssenkrupp Materials, NA, Inc., Superior Graphite Co., and Sunshine Metals, Inc.

On August 21, 2020, Plaintiffs filed oppositions to Rolled’s motions.

On August 27, 2020, Rolled filed a Reply.

Kennametal has not filed a Reply.

DISCUSSION

  1. REQUEST FOR JUDICIAL NOTICE

The court may take judicial notice of “(c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States[…] [f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452.)

Kennametal requests judicial notice of: (1) Kennametal’s Material Safety Data Sheet, revised 12/22/2011; (2) the Complaint filed in this action; and (3) the Court Order as to Plaintiffs’ Motion for Leave to File a First Amended Complaint. The Court GRANTS the requests to Nos. 2 and 3, and DENIES the request to No. 1 as not judicially noticeable.

  1. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Here, Rolled demurs to all six causes of action. Kennametal demurs to all six causes of action, the Fourth Cause of Action specifically, and to the “survival action.”

  1. Survival Action/Statute of Limitations

The SAC includes a survival action (which was added in the FAC), to the previous wrongful death-only action, pursuant to Code of Civil Procedure section 377.11, wherein Valdez brings the action in place of Decedent Rodolfo as successor-in-interest. (SAC ¶ 2.)

Here, Kennemetal argues that the Survival Action is barred by the statute of limitations because the Survival Action expired before the SAC was filed. (Motion at p. 17.) Kennametal contends that the survival action was not added until the FAC was filed on December 24, 2019, “well over two years after the statute of limitations expired.” (Motion at p. 17.)

On February 6, 2020, this Court addressed identical arguments made by Defendants Superior, Sunnen, Thyssenkrupp, BP, and Sasol: this Court overruled the demurrers based on statute of limitations. The Court holds the same, here.

A survival cause of action is not an independent cause of action, but an assertion of the rights of decedents by the decedent’s heir or successor-in-interest. (San Diego Gas & Elec. Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1553 [“unlike a wrongful death claim, the survival statutes do not create a cause of action but merely prevent the abatement of the decedent's cause of action and provide for its enforcement by the decedent's personal representative or successor in interest”].)

The question of whether an amended complaint relates back to the original complaint, for purposes of avoiding the statute of limitations, is whether it: (1) rests on the same general set of facts as the original complaint and (2) refers to the same accident and the same injuries as the original complaint. (Id. at 1549 citing Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408–409.) The relation-back doctrine typically applies where an amendment “makes a mere technical change in the capacity in which the plaintiff sues on the same cause of action” or “substitutes a plaintiff with standing in place of a plaintiff who lacks standing.” (Id. at 1550.)

Here, the original Complaint was filed on February 7, 2017, alleging six causes of action (negligence, strict liability, strict liability, fraudulent concealment, breach of implied warranties, loss of consortium) by Beatriz Valdez, Cecelia Chavez and Jessica Chavez. The FAC was filed on December 24, 2019, alleging the same six causes of action by Beatriz Valdez (individually and as successor-in-interest to Decedent), Cecelia Chavez, and Jessica Chavez. The complaint rests on the same set of facts as the original complaint and refers to the same injuries, as both the original complaint and FAC are based on the same causes of action. The FAC did not seek to add a new party nor add a new cause of rather, rather the FAC sought to make a technical change whereby Beatriz Valdez’s capacity to sue includes both herself as an individual and herself as successor-in-interest the Decedent. Further, the SAC similarly asserts identical causes to the FAC and plainly relates-back to the FAC.

Therefore, the FAC (and accordingly, the instant SAC)’s survival claims (of Valdez as successor-in-interest) relate-back to the date that the original complaint was filed, February 7, 2017, long before the deadlines asserted by Kennametal and the previous moving defendants.

Kennametal’s Demurrer to the survival action on the grounds of statute of limitations is OVERRULED.

  1. All Causes of Action

Both Defendants Kennametal and Rolled demur to the entire SAC on a single ground: that the SAC fails to state facts sufficient to meet the standards articulated in Bockrath v. Aldrich Chemical Co., Inc. (1999), 21 Cal. 4th 71. (Kennametal at p. 8; Rolled at p. 7.) They argue that the SAC does not allege facts showing that the Decedent was exposed to any of their products and does not “identify each toxin in [Defendants’] products that Decedent’s body absorbed.” (Rolled at pp. 7-9; Kennametal at p. 10.) Both Defendants also argue that the SAC does not allege the causal causation between their products/toxins and the disease causes. (Rolled at p. 9; Kennametal at p. 10.) On February 6, 2020, this Court addressed identical arguments made by Defendants Superior, Sunnen, Thyssenkrupp, BP, and Sasol: this Court held that the demurrers were overruled as to these arguments. The Court holds the same, here.

“The Supreme Court decision in Bockrath [citation] established the causation pleading threshold for a complaint alleging harmful long-term exposure to multiple toxins under California law.” (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1194.) In Bockrath, the plaintiff contracted multiple myeloma while working for an aircraft company and sued at least 55 manufactures of various common chemical products, including WD-40 and rubber cement, and argued that his disease was caused by his exposure to the harmful substances in these products. (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 77.) “According to the second amended complaint, he and his fellow workers had used ‘most, and perhaps all, of the ... products’ and had inhaled and had direct skin contact with ‘most and perhaps all’ of them. (citation) Any products he had not been directly exposed to had been used or improperly stored somewhere at the plant, thereby causing him to have inhaled or had direct skin contact with all of the named chemicals, all of which produce ‘carcinogenic effects.’” (Jones v. ConocoPhillips Co., supra, 198 Cal.App.4th at 1194.) The Supreme Court reversed the trial court sustaining of the demurrer and “set forth explicit guidelines for plaintiffs attempting to allege injury resulting from exposure to toxic materials: A plaintiff must ‘allege that he was exposed to each of the toxic materials claimed to have caused a specific illness’; ‘identify each product that allegedly caused the injury’; allege ‘the toxins entered his body’ ‘as a result of the exposure’; 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’; and, finally, allege that ‘each toxin he absorbed was manufactured or supplied by a named defendant.’ (Id., citing Bockrath, supra, 21 Cal.4th at 77.)

The Bockrath court was specifically concerned about “prospecting plaintiffs who sue multiple defendants on speculation that their products may have caused harm over time through exposure to toxins in them, and who thereafter try to learn through discovery whether their speculation was well-founded.” (Bockrath, supra, 21 Cal.4th at 81.)

The Court in Bockrath, and subsequent cases interpreting Bockrath, have explicitly renounced the arguments espoused by Kennametal and Rolled, here: namely, that a Plaintiff needs to plead the details of how a plaintiff was exposed. “In so holding, the court rejected the argument advanced here by defendants that a complaint is unacceptably speculative if a plaintiff has not specifically identified which toxin contained in a particular product caused the alleged injury or has sued the manufacturers of multiple products, alleging all of them contained toxins that were substantial factors in causing his injury.” (Jones, supra, 198 Cal.App.4th at 1195.)

Both Rolled and Kennametal, citing Bockrath, focus their arguments on the SAC’s alleged failure to identify a specific toxin in their products that caused the alleged death/disease, and failed to allege how the decedent was exposed to this toxin. (See, Rolled at p. 8.) However, California courts have held that this argument, based in Bockrath, is incorrect: “Once the product had been identified, the plaintiff could allege that ‘the toxin’ in the product entered his body and were ‘a substantial factor in bringing about, prolonging, or aggravating [his] illness.’ (citations.) As we read the opinion, the Supreme Court was referring to ‘toxins’ in a general sense. It was not expressing a requirement that the plaintiff identify specific chemical compounds before he or she can assert a claim.’” (Jones, supra, 198 Cal.App.4th at 1195.)

The Court finds that the SAC corrects the deficiencies that were present in the FAC. The SAC alleges suspected products produced by each moving defendant, here: 1 product made by Kennamental (K-0963-003, or Tungsten Carbide product with Cobalt Binder K-0983-001, or Tungsten Carbide product with Cobalt Binder), and 8 products made by Rolled (11/16" DIA 6AL4V TITA BAR; 13/16" DIA 6AL4V TITA BAR; 1" DIA 6AL4V TITANIUM BAR; 1-3/16" DIA 6AL4V TITA; 1-3/81111 DI 6AL4V TITA BAR; 1-1/2" DIA 6AL4V TITA BAR; 1-7/8" DIA 6AL4V TITA BAR; 1-1/4" DIA 6AL4V TITA. (SAC ¶ 30.)

The SAC further addresses these products specifically. In a change from the FAC, adds a large section with allegations regarding individual toxins, the risks of the toxins, and misrepresentations by each the defendants related to the risks of these toxins. (SAC ¶¶ 31-101.) These allegations include sections specifically on titanium (SAC ¶¶ 79-81) and carbon (SAC ¶¶ 64-71), among numerous other toxins. For Kennametal’s Cobalt Binder or Tungsten Carbide product with Cobalt Binder, the SAC specifically alleges that recent epidemiology studies have “reported an association between exposure to hard metals [such as these] and lung cancer.” (SAC ¶ 94.) For purposes of demurrer, these allegations defeat Kennemetal’s argument that their product, as a “tool product some kind,” doesn’t support the causes of action. (See, Kennametal at p. 13.)

Lastly, the SAC alleges that Decedent’s exposure these products/toxins caused his injuries and death. (SAC ¶¶ 102-109). The SAC alleges that by using the products/toxins/machines as intended, the Decedent “was thereby exposed to and inhaled toxicologically significant amounts of the toxins of which said metals, metal products, metal alloys, metal working fluids, aerosols, abrasive products, solvents, thinners, lubricants, as well as other toxic chemical products, were composed, and which were released as toxic airborne fumes, dusts, vapors, and aerosols. (SAC ¶ 107.) The SAC lastly alleges that exposure of these toxins causes serious injuries to Decedents including to his lungs, resulting in lung disease, lung cancer, and his death. (SAC ¶ 109.)

Concerns over sufficient causation pleading, as raised by the moving defendants in these demurrers, do not “warrant judgment entered against a plaintiff based on his or her inability to identify in the complaint a specific causative agent for a chemically induced injury.” (Jones, supra, 198 Cal.App.4th at 1197.) From a scientific standpoint, there is a fundamental uncertainty as to what causes cancer, especially given long latency periods. As to a related health issue, asbestos: “Plaintiffs cannot be expected to prove the scientifically unknown details of carcinogenesis, or trace the unknowable path of a given asbestos fiber […] plaintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff's exposure to defendant's asbestos-containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant's particular product were the ones, or among the ones, that actually produced the malignant growth.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 976–977, as modified on denial of reh'g (Oct. 22, 1997).)

The Court finds that the SAC pleads sufficient facts that each of the toxins that Decedent was exposed to, “was a substantial factor in bringing about, prolonging, and aggravating Decedent, Rodolfo Chavez’ lung disease, lung cancer, ultimately causing his death. (SAC ¶ 140.)

Accordingly, the Demurrers of Kennametal and Rolled are OVERRULED on these grounds.

  1. Fourth Cause of Action – Fraudulent Concealment

The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages.  (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) It is well-established that “[t]o withstand a demurrer, the facts constituting every element of 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

An essential element of the causes of action for fraudulent concealment is duty. To state a cause of action for fraudulent concealment, the defendant must have been under a duty to disclose some fact to the plaintiff. (Hahn v. Mirda

Fraud causes of action must be pleaded with particularity, meaning that the plaintiff must allege “how, when, where, to whom, and by what means the representations were tendered.” (Lazar, supra, 12 Cal.4th at 645.) Fraud must be pleaded with particularity to give notice to a defendant so that the defendant may meet the charges. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

The SAC corrects the deficiencies of the FAC and adds numerous allegations regarding the toxins, their dangers, and alleged misrepresentations by the producers of these products. The SAC alleges that Kennamental’s Material Safety Data Sheet (“MSDS”) for Tungsten Carbide Product with Cobalt Binder,” the only product alleged at issue for Kennametal (SAC ¶ 30), dated January 1. 2006, did not indicate a risk of lung cancer and did not list any preventative measures for a user to take. (SAC ¶ 94.)

Kennametal demurs to the Fourth Cause of Action – Fraudulent Concealment. Kennametal argues that the SAC fails to allege with specificity “any particular statement or other conduct which she believes Kennametal, or any defendant for that matter, engaged in a “fraudulent concealment.” (Kennametal at p. 15.)

The Court disagrees. The SAC pleads all elements of fraudulent concealment: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See Lazar, supra, 12 Cal.4th at 638.) Kennametal contends that the SAC contained only “lengthy, rambling, repetitive, and conclusory statements” about the “defendants at large[.]” (Kennametal at p. 15.) While it was true that FAC grouped the allegations about the Defendants together, the SAC makes myriad allegations about each product/toxin produced by each defendant, the health risks of each product/toxin, and the misrepresentations made by each individual defendant related to their specific product/toxin. Accordingly, this argument is entirely without merit.

Further, the SAC alleges that Kennametal, specifically, made misrepresentations in its MSDS by making no mention of lung cancer risks despite epidemiology studies showing a relationship between hard metals and lung cancer. (SAC ¶ 94.) Thus, the allegations about Kennametal and its products in the SAC are sufficient to give Kennametal notice of the “particular claims against them.” (Jones, supra, 198 Cal.App.4th at 1200.)

Accordingly, Kennametal’s Demurrer to the Fourth Cause of Action is OVERRULED.

  1. MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court, Rule 3.1322).

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any 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. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Kennametal moves to strike the references to punitive damages, attorneys’ fees, page 9, line 10 “and other chemical products to be determined during discovery,” and the references to successor-in-interest. (Kennametal at p. 2.) Rolled moves to strike the references to punitive damages. (Rolled a p. 2.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ.¿Code § 3294.) The terms are defined as:¿

1. “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.¿

  1. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.¿

  1. “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.¿

    Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court¿(1979) 24 Cal.3d 890, 894.)¿Proof¿of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian)¿(1980) 111 Cal.App.3d 82, 88–89.)¿Punitive damages may be recovered in a personal injury action if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc.¿(2013) 220 Cal.App.4th 1270, 1299.)¿When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court¿(1994) 8 Cal.4th 794, 713.)¿

    Because Plaintiffs’ fraud claim survives demurrer it provides a basis for seeking punitive damages. (See Civ. Code § 3294, subd. (c)(3).) Kennametal’s demurrer to the Fourth Cause of Action was overruled, and Rolled did not specifically challenge the Fourth Cause of Action but the demurrer to all causes of action was overruled.

    As to the “other products” reference, Kennametal contends that this phrase does not meet the pleading standard in Bockrath because the SAC “fails to identify specific products associates with Kennametal Inc. that allegedly caused Decedent’s injuries.” (Kennametal at p. 8.) “The Bockrath court recognized that the plaintiffs may genuinely lack information about the specific cause of their injury and should not be barred from pursuing their claims.” (Jones, supra, 198 Cal.App.4th at 1196.)We presume that plaintiff here was aware of his duty to pursue his suit in good faith, and, in the absence of contrary evidence, that he did so.” (Bockrath, supra, 21 Cal.4th at 83.) The warnings in Bockrath were regarding plaintiffs who sue many defendants entirely on speculation about their products and who are hoping to learn in discovery whether their speculations were well-founded. (Id. at 81.) This is not the same case, here, where the SAC does make specific allegations about specific products and toxins, and where the Plaintiffs may truly learn more information about the specific cause of injury during discovery.

    Accordingly, Kennamental’s Motion to Strike is DENIED. Rolled’s Motion to Strike is DENIED.

DATED: September 3, 2020

______________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC649327    Hearing Date: August 07, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

BEATRIZ VALDEZ, et al.,

Plaintiffs,

vs.

A.M. CASTLE & CO. et al. (formerly Does 1-100),

Defendants.

Case No.:

BC649327

Hearing Date:

August 7, 2020

[TENTATIVE] RULING RE:

DEFENDANT SUPERIOR GRAPHITE CO. (DOE 13)’S DEMURRER TO THE second AMENDED COMPLAINT AND MOTION TO STRIKE

DEFENDANT BP LUBRICANTS USA INC. FORMERLY KNOWN AS CASTROL INDUSTRIAL NORTH AMERICA, INC. (DOE 6)’S DEMURRER TO THE second AMENDED COMPLAINT AND MOTION TO STRIKE

DEFENDANT THYSSENKRUPP MATERIALS, NA, INC. (dOE 2)’S DEMURRER TO the second AMENDED COMPLAINT AND MOTION TO STRIKE

DEFENDANT sunshine metals, inc. (DOE 20)’S DEMURRER TO THE second AMENDED COMPLAINT AND MOTION TO STRIKE

DEFENDANT SASOL CHEMICALS (usa) llc (DOE 3)’S DEMURRER TO THE second AMENDED COMPLAINT AND MOTION TO STRIKE

Defendants Sasol Chemical, BP Lubricants USA Inc., Thyssenkrupp Materials, NA, Inc., Superior Graphite Co., and Sunshine Metals, Inc.’s Demurrers to the Second Amended Complaint are OVERRULED.

Defendants Sasol Chemical, BP Lubricants USA Inc., Thyssenkrupp Materials, NA, Inc., Superior Graphite Co., and Sunshine Metals, Inc.’s Motions to Strike the Second Amended Complaint are DENIED.

FACTS OF THE CASE

This is a products liability case. The Second Amended Complaint (“SAC”) alleges as follows. Decedent Rodolfo Chavez (“Decedent”) worked with various products and machines as a Machinist that caused him to be exposed to toxins, fibrogens, or carcinogens during the course of his employment. (SAC ¶ 30.) The exposure to these substances caused toxic injury to Decedent, ultimately leading to his death. (SAC ¶ 30.) Defendants are suppliers, distributors, and/or manufacturers of the products and chemicals alleged to have caused injury to Decedent. (SAC ¶ 20.)

Plaintiffs Beatriz Valdez, Cecilia Chavez, and Jessica Chavez are respectively Rodolfo’s spouse and two children. (FAC ¶¶ 2-3.)

PROCEDURAL BACKGROUND

Plaintiffs filed the Complaint on February 7, 2017, and a FAC on December 24, 2019, alleging 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

  6. Loss of Consortium

On December 5, 2019, this Court sustained Defendant Sasol Chemicals (USA) LLC, successor-in-interest to Sasol North America Inc. (Doe 3) (“Sasol”)’s Demurrer to the Complaint.

On February 6, 2020, this Court sustained with leave to amend the demurrers to the FAC of Sasol Chemical and BP as to all causes of action, and Superior and Thyssenkrupp as to the Fourth Cause of Action; and overruled the demurrer of Sunnen.

On February 24, 2020, Plaintiffs filed the Second Amended Complaint (“SAC”), alleging the same six causes of action.

On March 5, 2020, Defendant Superior Graphite (“Superior”) filed the instant Demurrer to the SAC and Motion to Strike.

On March 17, 2020, Defendant BP Lubricants USA Inc., formerly known as Castrol Industrial North America, Inc. (“BP”) filed the instant Demurrer to the SAC and Motion to Strike.

On March 18, 2020, Sasol filed the instant Demurrer to the SAC and Motion to Strike.

Also on March 18, 2020, Defendant Sunshine Metals, Inc. (“Sunshine”) filed the instant Demurrer to the SAC and Motion to Strike.

On March 25, 2020, Defendant Thyssenkrupp Materials, NA, Inc. (“Thyssenkrupp”) filed the instant Demurrer to the SAC and Motion to Strike.

On April 17, 2020, Plaintiffs filed a Joint Opposition to BP and Sasol’s Demurrers and Motions to Strike.

On April 22, 2020, Sasol filed a Reply.

On July 20, 2020, Plaintiffs filed a Joint Opposition to Sunshine, Thyssenkrupp, and (not part of this ruling, Symmetry Medical, Inc.)’s Demurrers and Motions to Strike.

On July 23, 2020, Sunshine filed a Reply.

On July 24, 2020, Thyssenkrupp filed a Reply.

On July 30, 2020, BP filed a Reply.

Superior has not yet filed a Reply.

DISCUSSION

  1. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Here, the instant Demurrers argue as follows: BP, Thyssenkrupp, Sunshine, and Sasol demur to all causes of action. Superior demurs to only the Fourth Cause of Action.

  1. All Causes of Action

Defendant BP, Thyssenkrupp, Sunshine, and Sasol demur to the entire SAC on a single ground: that the SAC fails to state facts sufficient to meet the standards articulated in Bockrath v. Aldrich Chemical Co., Inc. (1999), 21 Cal. 4th 71. (BP Motion at pp. 7-8; Sasol Motion at pp. 7-9; Sunshine Motion at pp. 6-9; Thyssenkrupp Motion at pp. 7-10.) They contend that the “naming of a specific product and its use a prerequisite for the necessary cause and effect factual recitations mandated by Bockrath,” that Plaintiffs cannot show causation without this information, and that they “cannot prepare to defend this case” with causation. (Thyssenkrupp at pp. 9-10.) They also contend that the SAC does “not state any specific facts that allege how, when, or where Decedent was exposed to chemicals connected to Sunshine Metals” and lacks supporting facts as to how the particular toxin from Sunshine’s products entered Decedent’s body.” (Sunshine and Sasol Motions at pp. 8-9.)

“The Supreme Court decision in Bockrath [citation] established the causation pleading threshold for a complaint alleging harmful long-term exposure to multiple toxins under California law.” (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1194.) In Bockrath, the plaintiff contracted multiple myeloma while working for an aircraft company and sued at least 55 manufactures of various common chemical products, including WD-40 and rubber cement, and argued that his disease was caused by his exposure to the harmful substances in these products. (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 77.) “According to the second amended complaint, he and his fellow workers had used ‘most, and perhaps all, of the ... products’ and had inhaled and had direct skin contact with ‘most and perhaps all’ of them. (citation) Any products he had not been directly exposed to had been used or improperly stored somewhere at the plant, thereby causing him to have inhaled or had direct skin contact with all of the named chemicals, all of which produce ‘carcinogenic effects.’” (Jones v. ConocoPhillips Co., supra, 198 Cal.App.4th at 1194.) The Supreme Court reversed the trial court sustaining of the demurrer and “set forth explicit guidelines for plaintiffs attempting to allege injury resulting from exposure to toxic materials: A plaintiff must ‘allege that he was exposed to each of the toxic materials claimed to have caused a specific illness’; ‘identify each product that allegedly caused the injury’; allege ‘the toxins entered his body’ ‘as a result of the exposure’; 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’; and, finally, allege that ‘each toxin he absorbed was manufactured or supplied by a named defendant.’ (Id., citing Bockrath, supra, 21 Cal.4th at 77.)

The Bockrath court was specifically concerned about “prospecting plaintiffs who sue multiple defendants on speculation that their products may have caused harm over time through exposure to toxins in them, and who thereafter try to learn through discovery whether their speculation was well-founded.” (Bockrath, supra, 21 Cal.4th at 81.)

The Court in Bockrath, and subsequent cases interpreting Bockrath, have explicitly renounced the arguments espoused by BP, Thyssenkrupp, Sunshine, and Sasol, here: namely, that a Plaintiff needs to plead the details of how a plaintiff was exposed. “In so holding, the court rejected the argument advanced here by defendants that a complaint is unacceptably speculative if a plaintiff has not specifically identified which toxin contained in a particular product caused the alleged injury or has sued the manufacturers of multiple products, alleging all of them contained toxins that were substantial factors in causing his injury.” (Jones, supra, 198 Cal.App.4th at 1195.)

Sasol and Sunshine identically argue that “Plaintiffs must not only allege sufficient facts as to Decedent’s exposure to [Sunshine Metals] [Sasol] products, they must also identify each toxin in Sunshine Metals products that Decedent’s body absorbed” and that “Plaintiffs fail on both counts.” (Sunshine at p. 8; Sasol at p. 8.) However, this interpretation of the holding in Bockrath is incorrect: “Once the product had been identified, the plaintiff could allege that ‘the toxin’ in the product entered his body and were ‘a substantial factor in bringing about, prolonging, or aggravating [his] illness.’ (citations.) As we read the opinion, the Supreme Court was referring to ‘toxins’ in a general sense. It was not expressing a requirement that the plaintiff identify specific chemical compounds before he or she can assert a claim.’” (Jones, supra, 198 Cal.App.4th at 1195.)

Relatedly, BP and Thyssenkrupp argue that the SAC does not allege sufficient information regarding identifying a particular product produced by the defendant and its causation “to any particular illness of decedent, much less his death.” (BP at p. 7; Thyssenkrupp at p. 9.)

The Court finds that the SAC corrects the deficiencies that were present in the FAC. The SAC identifies suspected products produced by each moving defendant, here: 4 categories of products made by Thyssenkrupp, 1 product made by Sasol, one product made by BP, and 5 products made by Sunshine. (SAC ¶ 30.)

For Thyssenkrupp specifically, the SAC identifies various products/categories of products produced by Thyssenkrupp including: titanium and titanium alloys, aluminum alloys and aluminum alloys with beryllium, coper alloys and copper alloys with beryllium, and beryllium containing alloys. (SAC ¶ 30.) For BP, the SAC identifies a product produced/supplied by BP: Honilo 710. (SAC ¶ 30.)

The SAC further addresses these products specifically. In a change from the FAC, adds a large section with allegations regarding individual toxins, the risks of the toxins, and misrepresentations by each the defendants related to the risks of these toxins. (SAC ¶¶ 31-101.) These allegations include sections specifically on titanium (SAC ¶¶ 79-81); aluminum (SAC ¶¶ 48-52); beryllium (SAC ¶¶ 54-58); copper (SAC ¶¶ 60-62); and Honilo 710 (SAC ¶¶ 88; 31-32 [refined petroleum distillates]). Lastly, the SAC alleges that Decedent’s exposure these products/toxins caused his injuries and death. (SAC ¶¶ 102-109). The SAC alleges that by using the products/toxins/machines as intended, the Decedent “was thereby exposed to and inhaled toxicologically significant amounts of the toxins of which said metals, metal products, metal alloys, metal working fluids, aerosols, abrasive products, solvents, thinners, lubricants, as well as other toxic chemical products, were composed, and which were released as toxic airborne fumes, dusts, vapors, and aerosols. (SAC ¶ 107.) The SAC lastly alleges that exposure of these toxins caused serious injuries to Decedents including to his lungs, resulting in lung disease, lung cancer, and his death. (SAC ¶ 109.)

Concerns over sufficient causation pleading, as raised by the moving defendants in these demurrers, do not “warrant judgment entered against a plaintiff based on his or her inability to identify in the complaint a specific causative agent for a chemically induced injury.” (Jones, supra, 198 Cal.App.4th at 1197.) From a scientific standpoint, there is a fundamental uncertainty as to what causes cancer, especially given long latency periods. As to a related health issue, asbestos: “Plaintiffs cannot be expected to prove the scientifically unknown details of carcinogenesis, or trace the unknowable path of a given asbestos fiber […] plaintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff's exposure to defendant's asbestos-containing product to a reasonable degree of medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant's particular product were the ones, or among the ones, that actually produced the malignant growth.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 976–977, as modified on denial of reh'g (Oct. 22, 1997).)

The Court finds that the SAC sufficiently plead that each of the toxins that Decedent was exposed to, “was a substantial factor in bringing about, prolonging, and aggravating Decedent, Rodolfo Chavez’ lung disease, lung cancer, ultimately causing his death. (SAC ¶ 140.)

  1. Fourth Cause of Action – Fraudulent Concealment

Thyssenkrupp and Superior both demur to the Fourth Cause of Action – Fraudulent Concealment. The elements of fraudulent concealment are: 1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages.  (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) It is well-established that “[t]o withstand a demurrer, the facts constituting every element of 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

An essential element of the causes of action for fraudulent concealment is duty. To state a cause of action for fraudulent concealment, the defendant must have been under a duty to disclose some fact to the plaintiff. (Hahn v. Mirda

Fraud causes of action must be pleaded with particularity, meaning that the plaintiff must allege “how, when, where, to whom, and by what means the representations were tendered.” (Lazar, supra, 12 Cal.4th at 645.) Fraud must be pleaded with particularity to give notice to a defendant so that the defendant may meet the charges. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

The SAC corrects the deficiencies of the FAC and adds numerous allegations regarding the toxins, their dangers, and alleged misrepresentations by the producers of these products. The SAC alleges that Superior’s Material Safety Data Sheet (“MSDS”) for SLIP Plate No. 1, the only product alleged at issue for Superior (SAC ¶ 30), dated January 9, 2014, did not indicate a risk of lung cancer (“Health Hazards (acute and chronic): Chronic: None expected when good hygiene practices are employed”) and did not issue any safety warnings other than to avoid breathing the vapors. (SAC ¶¶ 97-98.) For Thyssenkrupp, the SAC alleges that the MSDSs for aluminum alloys and titanium alloys from December 4, 2014 did not mention any risk of lung cancer and only recommend the use of personal protective equipment. (SAC ¶¶ 99-100.)

Superior argues that the SAC fails to allege any facts “let alone with particularity, to support Plaintiffs’ cause of action for fraudulent concealment.” (Superior at p. 6.) Thyssenkrupp argues similarly that the SAC does not satisfy the pleading requirements because it does not allege sufficient facts that to show that Thyssenkrupp owed a duty to disclose facts to the Decedent. (Thyssenkrupp at p. 10.)

The Court disagrees. The SAC pleads all elements of fraudulent concealment: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See Lazar, supra, 12 Cal.4th at 638.) Superior contends that the SAC does “not differentiate between any of the nineteen (19) defendants.” (Superior at p. 7.) While this was true of the FAC, the SAC makes myriad allegations about each product/toxin produced by each defendant, the health risks of each product/toxin, and the misrepresentations made by each individual defendant related to their specific product/toxin. Accordingly, this argument is entirely without merit.

As to the argument regarding duty, in the context of toxic tort cases such as this: “Although, typically, a duty to disclose arises when a defendant owes a fiduciary duty to a plaintiff [citation], a duty to disclose may also arise when a defendant possesses or exerts control over material facts not readily available to the plaintiff.” (Jones, supra, 198 Cal.App.4th at 1199.) Where a complaint alleges that defendants were aware of the toxic nature of their products and owed a duty to disclose the toxic duty because they made representations regarding their product but failed to disclose additional, material facts, these allegations are sufficient. (Id. at 1200.)

Here, the SAC alleges that both Superior and Thyssenkrupp, specifically, were aware of the dangers of their products due to the health warning issues by the scientific community (SAC ¶¶ 97, 99) and that all defendants were aware of the “toxic, fibrogenic, and carcinogenic nature of their products” and that they were under a legal duty to disclosure under the Hazard Communication Standard and California law, but that they concealed the toxic hazards. (SAC ¶¶ 181-185.) These allegations are sufficient to give the defendants notice of the “particular claims against them.” (Jones, supra, 198 Cal.App.4th at 1200.)

Accordingly, Superior and Thyssenkrupp’s Demurrers to the Fourth Cause of Action are OVERRULED.

  1. MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court, Rule 3.1322).

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any 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. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

BP, Thyssenkrupp, Sunshine, Superior, and Sasol all move to strike the references to punitive damages. (Superior at p. 2; Sunshine at p. 2; Sasol at p. 2; BP at p. 2; Thyssenkrupp at p. 2.) Superior also moves to strike p. 9, line 19 “and other chemical products to be determined during discovery.” (Superior at p. 2.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ.¿Code § 3294.) The terms are defined as:¿

1. “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.¿

  1. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.¿

  1. “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.¿

    Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court¿(1979) 24 Cal.3d 890, 894.)¿Proof¿of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian)¿(1980) 111 Cal.App.3d 82, 88–89.)¿Punitive damages may be recovered in a personal injury action if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc.¿(2013) 220 Cal.App.4th 1270, 1299.)¿When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court¿(1994) 8 Cal.4th 794, 713.)¿

    Because Plaintiffs’ fraud claim survives demurrer, it provides a basis for seeking punitive damages. (See Civ. Code § 3294, subd. (c)(3).)

    As to the “other products” reference, Superior contends that this phrase does not meet the pleading standard in Bockrath because the complaint must “identify each product that allegedly causes the injury.” (Superior at p. 4.) “The Bockrath court recognized that the plaintiffs may genuinely lack information about the specific cause of their injury and should not be barred from pursuing their claims.” (Jones, supra, 198 Cal.App.4th at 1196.)We presume that plaintiff here was aware of his duty to pursue his suit in good faith, and, in the absence of contrary evidence, that he did so.” (Bockrath, supra, 21 Cal.4th at 83.) The warnings in Bockrath were regarding plaintiffs who sue many defendants entirely on speculation about their products and who are hoping to learn in discovery whether their speculations were well-founded. (Id. at 81.) This is not the same case, here, where the SAC does make specific allegations about specific products and toxins, and where the Plaintiffs may truly learn more information about the specific cause of injury during discovery.

ACCORDINGLY, Defendants Sasol Chemical, BP Lubricants USA Inc., Thyssenkrupp Materials, NA, Inc., Superior Graphite Co., and Sunshine Metals, Inc.’s Demurrers to the Second Amended Complaint are OVERRULED.

Defendants Sasol Chemical, BP Lubricants USA Inc., Thyssenkrupp Materials, NA, Inc., Superior Graphite Co., and Sunshine Metals, Inc.’s Motions to Strike the Second Amended Complaint are DENIED.

DATED: August 7, 2020

______________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC649327    Hearing Date: August 04, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

BEATRIZ VALDEZ, et al.,

Plaintiffs,

vs.

A.M. CASTLE & CO. et al. (formerly Does 1-100),

Defendants.

Case No.:

BC649327

Hearing Date:

August 7, 2020

[TENTATIVE] RULING RE:

DEFENDANT SUPERIOR GRAPHITE CO. (DOE 13)’S DEMURRER TO THE second AMENDED COMPLAINT AND MOTION TO STRIKE

DEFENDANT BP LUBRICANTS USA INC. FORMERLY KNOWN AS CASTROL INDUSTRIAL NORTH AMERICA, INC. (DOE 6)’S DEMURRER TO THE second AMENDED COMPLAINT AND MOTION TO STRIKE

DEFENDANT THYSSENKRUPP MATERIALS, NA, INC. (dOE 2)’S DEMURRER TO the second AMENDED COMPLAINT AND MOTION TO STRIKE

DEFENDANT sunshine metals, inc. (DOE 20)’S DEMURRER TO THE second AMENDED COMPLAINT AND MOTION TO STRIKE

DEFENDANT SASOL CHEMICALS (usa) llc (DOE 3)’S DEMURRER TO THE second AMENDED COMPLAINT AND MOTION TO STRIKE

Defendants Sasol Chemical, BP Lubricants USA Inc., Thyssenkrupp Materials, NA, Inc., Superior Graphite Co., and Sunshine Metals, Inc.’s Demurrers to the Second Amended Complaint are OVERRULED.

Defendants Sasol Chemical, BP Lubricants USA Inc., Thyssenkrupp Materials, NA, Inc., Superior Graphite Co., and Sunshine Metals, Inc.’s Motions to Strike the Second Amended Complaint are DENIED.

FACTS OF THE CASE

This is a products liability case. The Second Amended Complaint (“SAC”) alleges as follows. Decedent Rodolfo Chavez (“Decedent”) worked with various products and machines as a Machinist that caused him to be exposed to toxins, fibrogens, or carcinogens during the course of his employment. (SAC ¶ 30.) The exposure to these substances caused toxic injury to Decedent, ultimately leading to his death. (SAC ¶ 30.) Defendants are suppliers, distributors, and/or manufacturers of the products and chemicals alleged to have caused injury to Decedent. (SAC ¶ 20.)

Plaintiffs Beatriz Valdez, Cecilia Chavez, and Jessica Chavez are respectively Rodolfo’s spouse and two children. (FAC ¶¶ 2-3.)

PROCEDURAL BACKGROUND

Plaintiffs filed the Complaint on February 7, 2017, and a FAC on December 24, 2019, alleging 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

  6. Loss of Consortium

On December 5, 2019, this Court sustained Defendant Sasol Chemicals (USA) LLC, successor-in-interest to Sasol North America Inc. (Doe 3) (“Sasol”)’s Demurrer to the Complaint.

On February 6, 2020, this Court sustained with leave to amend the demurrers to the FAC of Sasol Chemical and BP as to all causes of action, and Superior and Thyssenkrupp as to the Fourth Cause of Action; and overruled the demurrer of Sunnen.

On February 24, 2020, Plaintiffs filed the Second Amended Complaint (“SAC”), alleging the same six causes of action.

On March 5, 2020, Defendant Superior Graphite (“Superior”) filed the instant Demurrer to the SAC and Motion to Strike.

On March 17, 2020, Defendant BP Lubricants USA Inc., formerly known as Castrol Industrial North America, Inc. (“BP”) filed the instant Demurrer to the SAC and Motion to Strike.

On March 18, 2020, Sasol filed the instant Demurrer to the SAC and Motion to Strike.

Also on March 18, 2020, Defendant Sunshine Metals, Inc. (“Sunshine”) filed the instant Demurrer to the SAC and Motion to Strike.

On March 25, 2020, Defendant Thyssenkrupp Materials, NA, Inc. (“Thyssenkrupp”) filed the instant Demurrer to the SAC and Motion to Strike.

On April 17, 2020, Plaintiffs filed a Joint Opposition to BP and Sasol’s Demurrers and Motions to Strike.

On April 22, 2020, Sasol filed a Reply.

On July 20, 2020, Plaintiffs filed a Joint Opposition to Sunshine, Thyssenkrupp, and (not part of this ruling, Symmetry Medical, Inc.)’s Demurrers and Motions to Strike.

On July 23, 2020, Sunshine filed a Reply.

On July 24, 2020, Thyssenkrupp filed a Reply.

On July 30, 2020, BP filed a Reply.

Superior has not yet filed a Reply.

DISCUSSION

  1. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Here, the instant Demurrers argue as follows: BP, Thyssenkrupp, Sunshine, and Sasol demur to all causes of action. Superior demurs to only the Fourth Cause of Action.

  1. All Causes of Action

Defendant BP, Thyssenkrupp, Sunshine, and Sasol demur to the entire SAC on a single ground: that the SAC fails to state facts sufficient to meet the standards articulated in Bockrath v. Aldrich Chemical Co., Inc. (1999), 21 Cal. 4th 71. (BP Motion at pp. 7-8; Sasol Motion at pp. 7-9; Sunshine Motion at pp. 6-9; Thyssenkrupp Motion at pp. 7-10.) They contend that the “naming of a specific product and its use a prerequisite for the necessary cause and effect factual recitations mandated by Bockrath,” that Plaintiffs cannot show causation without this information, and that they “cannot prepare to defend this case” with causation. (Thyssenkrupp at pp. 9-10.) They also contend that the SAC does “not state any specific facts that allege how, when, or where Decedent was exposed to chemicals connected to Sunshine Metals” and lacks supporting facts as to how the particular toxin from Sunshine’s products entered Decedent’s body.” (Sunshine and Sasol Motions at pp. 8-9.)

“The Supreme Court decision in Bockrath [citation] established the causation pleading threshold for a complaint alleging harmful long-term exposure to multiple toxins under California law.” (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1194.) In Bockrath, the plaintiff contracted multiple myeloma while working for an aircraft company and sued at least 55 manufactures of various common chemical products, including WD-40 and rubber cement, and argued that his disease was caused by his exposure to the harmful substances in these products. (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 77.) “According to the second amended complaint, he and his fellow workers had used ‘most, and perhaps all, of the ... products’ and had inhaled and had direct skin contact with ‘most and perhaps all’ of them. (citation) Any products he had not been directly exposed to had been used or improperly stored somewhere at the plant, thereby causing him to have inhaled or had direct skin contact with all of the named chemicals, all of which produce ‘carcinogenic effects.’” (Jones v. ConocoPhillips Co., supra, 198 Cal.App.4th at 1194.) The Supreme Court reversed the trial court sustaining of the demurrer and “set forth explicit guidelines for plaintiffs attempting to allege injury resulting from exposure to toxic materials: A plaintiff must ‘allege that he was exposed to each of the toxic materials claimed to have caused a specific illness’; ‘identify each product that allegedly caused the injury’; allege ‘the toxins entered his body’ ‘as a result of the exposure’; 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’; and, finally, allege that ‘each toxin he absorbed was manufactured or supplied by a named defendant.’ (Id., citing Bockrath, supra, 21 Cal.4th at 77.)

The Bockrath court was specifically concerned about “prospecting plaintiffs who sue multiple defendants on speculation that their products may have caused harm over time through exposure to toxins in them, and who thereafter try to learn through discovery whether their speculation was well-founded.” (Bockrath, supra, 21 Cal.4th at 81.)

The Court in Bockrath, and subsequent cases interpreting Bockrath, have explicitly renounced the arguments espoused by BP, Thyssenkrupp, Sunshine, and Sasol, here: namely, that a Plaintiff needs to plead the details of how a plaintiff was exposed. “In so holding, the court rejected the argument advanced here by defendants that a complaint is unacceptably speculative if a plaintiff has not specifically identified which toxin contained in a particular product caused the alleged injury or has sued the manufacturers of multiple products, alleging all of them contained toxins that were substantial factors in causing his injury.” (Jones, supra, 198 Cal.App.4th at 1195.)

Sasol and Sunshine identically argue that “Plaintiffs must not only allege sufficient facts as to Decedent’s exposure to [Sunshine Metals] [Sasol] products, they must also identify each toxin in Sunshine Metals products that Decedent’s body absorbed” and that “Plaintiffs fail on both counts.” (Sunshine at p. 8; Sasol at p. 8.) However, this interpretation of the holding in Bockrath is incorrect: “Once the product had been identified, the plaintiff could allege that ‘the toxin’ in the product entered his body and were ‘a substantial factor in bringing about, prolonging, or aggravating [his] illness.’ (citations.) As we read the opinion, the Supreme Court was referring to ‘toxins’ in a general sense. It was not expressing a requirement that the plaintiff identify specific chemical compounds before he or she can assert a claim.’” (Jones, supra, 198 Cal.App.4th at 1195.)

Relatedly, BP and Thyssenkrupp argue that the SAC does not allege sufficient information regarding identifying a particular product produced by the defendant and its causation “to any particular illness of decedent, much less his death.” (BP at p. 7; Thyssenkrupp at p. 9.)

The Court finds that the SAC corrects the deficiencies that were present in the FAC. The SAC identifies suspected products produced by each moving defendant, here: 4 categories of products made by Thyssenkrupp, 1 product made by Sasol, one product made by BP, and 5 products made by Sunshine. (SAC ¶ 30.)

For Thyssenkrupp specifically, the SAC identifies various products/categories of products produced by Thyssenkrupp including: titanium and titanium alloys, aluminum alloys and aluminum alloys with beryllium, coper alloys and copper alloys with beryllium, and beryllium containing alloys. (SAC ¶ 30.) For BP, the SAC identifies a product produced/supplied by BP: Honilo 710. (SAC ¶ 30.)

The SAC further addresses these products specifically. In a change from the FAC, adds a large section with allegations regarding individual toxins, the risks of the toxins, and misrepresentations by each the defendants related to the risks of these toxins. (SAC ¶¶ 31-101.) These allegations include sections specifically on titanium (SAC ¶¶ 79-81); aluminum (SAC ¶¶ 48-52); beryllium (SAC ¶¶ 54-58); copper (SAC ¶¶ 60-62); and Honilo 710 (SAC ¶¶ 88; 31-32 [refined petroleum distillates]). Lastly, the SAC alleges that Decedent’s exposure these products/toxins caused his injuries and death. (SAC ¶¶ 102-109). The SAC alleges that by using the products/toxins/machines as intended, the Decedent “was thereby exposed to and inhaled toxicologically significant amounts of the toxins of which said metals, metal products, metal alloys, metal working fluids, aerosols, abrasive products, solvents, thinners, lubricants, as well as other toxic chemical products, were composed, and which were released as toxic airborne fumes, dusts, vapors, and aerosols. (SAC ¶ 107.) The SAC lastly alleges that exposure of these toxins caused serious injuries to Decedents including to his lungs, resulting in lung disease, lung cancer, and his death. (SAC ¶ 109.)

Concerns over sufficient causation pleading, as raised by the moving defendants in these demurrers, do not “warrant judgment entered against a plaintiff based on his or her inability to identify in the complaint a specific causative agent for a chemically induced injury.” (Jones, supra, 198 Cal.App.4th at 1197.) From a scientific standpoint, there is a fundamental uncertainty as to what causes cancer, especially given long latency periods. As to a related health issue, asbestos: “Plaintiffs cannot be expected to prove the scientifically unknown details of carcinogenesis, or trace the unknowable path of a given asbestos fiber […] plaintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff's exposure to defendant's asbestos-containing product to a reasonable degree of medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant's particular product were the ones, or among the ones, that actually produced the malignant growth.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 976–977, as modified on denial of reh'g (Oct. 22, 1997).)

The Court finds that the SAC sufficiently plead that each of the toxins that Decedent was exposed to, “was a substantial factor in bringing about, prolonging, and aggravating Decedent, Rodolfo Chavez’ lung disease, lung cancer, ultimately causing his death. (SAC ¶ 140.)

  1. Fourth Cause of Action – Fraudulent Concealment

Thyssenkrupp and Superior both demur to the Fourth Cause of Action – Fraudulent Concealment. The elements of fraudulent concealment are: 1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages.  (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) It is well-established that “[t]o withstand a demurrer, the facts constituting every element of 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

An essential element of the causes of action for fraudulent concealment is duty. To state a cause of action for fraudulent concealment, the defendant must have been under a duty to disclose some fact to the plaintiff. (Hahn v. Mirda

Fraud causes of action must be pleaded with particularity, meaning that the plaintiff must allege “how, when, where, to whom, and by what means the representations were tendered.” (Lazar, supra, 12 Cal.4th at 645.) Fraud must be pleaded with particularity to give notice to a defendant so that the defendant may meet the charges. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

The SAC corrects the deficiencies of the FAC and adds numerous allegations regarding the toxins, their dangers, and alleged misrepresentations by the producers of these products. The SAC alleges that Superior’s Material Safety Data Sheet (“MSDS”) for SLIP Plate No. 1, the only product alleged at issue for Superior (SAC ¶ 30), dated January 9, 2014, did not indicate a risk of lung cancer (“Health Hazards (acute and chronic): Chronic: None expected when good hygiene practices are employed”) and did not issue any safety warnings other than to avoid breathing the vapors. (SAC ¶¶ 97-98.) For Thyssenkrupp, the SAC alleges that the MSDSs for aluminum alloys and titanium alloys from December 4, 2014 did not mention any risk of lung cancer and only recommend the use of personal protective equipment. (SAC ¶¶ 99-100.)

Superior argues that the SAC fails to allege any facts “let alone with particularity, to support Plaintiffs’ cause of action for fraudulent concealment.” (Superior at p. 6.) Thyssenkrupp argues similarly that the SAC does not satisfy the pleading requirements because it does not allege sufficient facts that to show that Thyssenkrupp owed a duty to disclose facts to the Decedent. (Thyssenkrupp at p. 10.)

The Court disagrees. The SAC pleads all elements of fraudulent concealment: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See Lazar, supra, 12 Cal.4th at 638.) Superior contends that the SAC does “not differentiate between any of the nineteen (19) defendants.” (Superior at p. 7.) While this was true of the FAC, the SAC makes myriad allegations about each product/toxin produced by each defendant, the health risks of each product/toxin, and the misrepresentations made by each individual defendant related to their specific product/toxin. Accordingly, this argument is entirely without merit.

As to the argument regarding duty, in the context of toxic tort cases such as this: “Although, typically, a duty to disclose arises when a defendant owes a fiduciary duty to a plaintiff [citation], a duty to disclose may also arise when a defendant possesses or exerts control over material facts not readily available to the plaintiff.” (Jones, supra, 198 Cal.App.4th at 1199.) Where a complaint alleges that defendants were aware of the toxic nature of their products and owed a duty to disclose the toxic duty because they made representations regarding their product but failed to disclose additional, material facts, these allegations are sufficient. (Id. at 1200.)

Here, the SAC alleges that both Superior and Thyssenkrupp, specifically, were aware of the dangers of their products due to the health warning issues by the scientific community (SAC ¶¶ 97, 99) and that all defendants were aware of the “toxic, fibrogenic, and carcinogenic nature of their products” and that they were under a legal duty to disclosure under the Hazard Communication Standard and California law, but that they concealed the toxic hazards. (SAC ¶¶ 181-185.) These allegations are sufficient to give the defendants notice of the “particular claims against them.” (Jones, supra, 198 Cal.App.4th at 1200.)

Accordingly, Superior and Thyssenkrupp’s Demurrers to the Fourth Cause of Action are OVERRULED.

  1. MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court, Rule 3.1322).

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any 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. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

BP, Thyssenkrupp, Sunshine, Superior, and Sasol all move to strike the references to punitive damages. (Superior at p. 2; Sunshine at p. 2; Sasol at p. 2; BP at p. 2; Thyssenkrupp at p. 2.) Superior also moves to strike p. 9, line 19 “and other chemical products to be determined during discovery.” (Superior at p. 2.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ.¿Code § 3294.) The terms are defined as:¿

1. “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.¿

  1. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.¿

  1. “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.¿

    Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court¿(1979) 24 Cal.3d 890, 894.)¿Proof¿of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian)¿(1980) 111 Cal.App.3d 82, 88–89.)¿Punitive damages may be recovered in a personal injury action if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc.¿(2013) 220 Cal.App.4th 1270, 1299.)¿When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court¿(1994) 8 Cal.4th 794, 713.)¿

    Because Plaintiffs’ fraud claim survives demurrer, it provides a basis for seeking punitive damages. (See Civ. Code § 3294, subd. (c)(3).)

    As to the “other products” reference, Superior contends that this phrase does not meet the pleading standard in Bockrath because the complaint must “identify each product that allegedly causes the injury.” (Superior at p. 4.) “The Bockrath court recognized that the plaintiffs may genuinely lack information about the specific cause of their injury and should not be barred from pursuing their claims.” (Jones, supra, 198 Cal.App.4th at 1196.)We presume that plaintiff here was aware of his duty to pursue his suit in good faith, and, in the absence of contrary evidence, that he did so.” (Bockrath, supra, 21 Cal.4th at 83.) The warnings in Bockrath were regarding plaintiffs who sue many defendants entirely on speculation about their products and who are hoping to learn in discovery whether their speculations were well-founded. (Id. at 81.) This is not the same case, here, where the SAC does make specific allegations about specific products and toxins, and where the Plaintiffs may truly learn more information about the specific cause of injury during discovery.

ACCORDINGLY, Defendants Sasol Chemical, BP Lubricants USA Inc., Thyssenkrupp Materials, NA, Inc., Superior Graphite Co., and Sunshine Metals, Inc.’s Demurrers to the Second Amended Complaint are OVERRULED.

Defendants Sasol Chemical, BP Lubricants USA Inc., Thyssenkrupp Materials, NA, Inc., Superior Graphite Co., and Sunshine Metals, Inc.’s Motions to Strike the Second Amended Complaint are DENIED.

DATED: August 7, 2020

______________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC649327    Hearing Date: February 06, 2020    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

BEATRIZ VALDEZ, et al.,

Plaintiffs,

vs.

A.M. CASTLE & CO. et al. (formerly Does 1-100),

Defendants.

Case No.:

BC649327

Hearing Date:

February 6, 2020

[TENTATIVE] RULING RE:

DEFENDANT SUPERIOR GRAPHITE CO. (DOE 13)’S DEMURRER TO THE FIRST AMENDED COMPLAINT AND MOTION TO STRIKE

DEFENDANT BP LUBRICANTS USA INC. FORMERLY KNOWN AS CASTROL INDUSTRIAL NORTH AMERICA, INC. (DOE 6)’S DEMURRER TO THE FIRST AMENDED COMPLAINT AND MOTION TO STRIKE

DEFENDANT THYSSENKRUPP MATERIALS, NA, INC. (dOE 2)’S DEMURRER TO the FIRST AMENDED COMPLAINT AND MOTION TO STRIKE

DEFENDANT SUNNEN PRODUCTS COMPANY (DOE 5)’S DEMURRER TO THE FIRST AMENDED COMPLAINT AND MOTION TO STRIKE

DEFENDANT SASOL CHEMICALS (usa) llc (DOE 3)’S DEMURRER TO THE FIRST AMENDED COMPLAINT AND MOTION TO STRIKE

Defendants Sasol Chemical and BP Lubricants USA Inc.’s Demurrers to the FAC are SUSTAINED with leave to amend as to the pleading of the First through Sixth Causes of Action. Defendants Superior Graphite Co. and Thyssenkrupp Materials, NA, Inc.’s Demurrers to the FAC are SUSTAINED with leave to amend as to the Fourth Cause of Action. Defendant Sunnen Products Company’s Demurrer to the FAC, and the remainder, are OVERRULED. The Motions to Strike is DENIED as moot.

FACTS OF THE CASE

This is a products liability case. The First Amended Complaint (“FAC”) alleges as follows. Decedent Rodolfo Chavez (“Decedent”) worked with various metal products as a Machinist. (FAC ¶ 21.) While working Decedent was exposed long-term to various chemicals that caused injury to Decedent’s lungs, ultimately leading to lung cancer and death. (FAC ¶¶ 20-28.) Defendants are suppliers, distributors, and/or manufacturers of the products and chemicals alleged to have caused injury to Decedent. (FAC ¶ 20.)

Plaintiffs Beatriz Valdez, Cecilia Chavez, and Jessica Chavez are respectively Rodolfo’s spouse and two children. (FAC ¶¶ 2-3.)

PROCEDURAL BACKGROUND

Plaintiffs filed the Complaint on February 7, 2017, and a FAC on December 24, 2029, alleging 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

  6. Loss of Consortium

On December 5, 2019, this Court sustained Defendant Sasol Chemicals (USA) LLC, successor-in-interest to Sasol North America Inc. (Doe 3) (“Sasol”)’s Demurrer to the Complaint.

On January 8, 2020, Defendant Superior Graphite (“Superior”) filed the instant Demurrer to the FAC and Motion to Strike.

On January 9, 2020, Defendant BP Lubricants USA Inc., formerly known as Castrol Industrial North America, Inc. (“BP”) filed the instant Demurrer to the FAC and Motion to Strike.

On January 14, 2020, Defendant Thyssenkrupp Materials, NA, Inc. (“Thyssenkrupp”) filed the instant Demurrer to the FAC and Motion to Strike.

Also on January 14, 2020, Defendant Sunnen Products Company filed the instant Demurrer to the FAC and Motion to Strike.

On January 17, 2020, Sasol filed the instant Demurrer to the FAC and Motion to Strike.

On January 24, 2020, Plaintiffs filed a Joint Opposition to all of the Demurrers and a Joint Opposition to the Motions to Strike.

On January 30, 2020, Sunnen, Sasol, BP, and Thyssenkrupp each filed a Reply both Oppositions.

Superior has not yet filed a Reply.

DISCUSSION

  1. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Here, the instant parties filing the Demurrers argue as follows: Sasol and BP demur to all six causes of action, Superior and Thyssenkrupp demur to the survival action and fourth cause of action, and Sunnen demurrers to the survival action and the statute of limitations.

  1. Survival Action/Statute of Limitations

The FAC adds a survival action, to the previous wrongful death-only action, pursuant to Code of Civil Procedure section 377.11, wherein Valdez brings the action in place of Decedent Rodolfo as successor-in-interest. (FAC ¶ 2.)

Superior, Sunnen, Thyssenkrupp, BP, and Sasol make nearly identical arguments regarding the survival action, as follows. Superior argues that the Survival Action is barred by the statute of limitations because the Survival Action was not added to the complaint until the FAC was filed on December 24, 2019, and that the Survival Action must have been filed by February 7, 2019 at the latest. (Superior Motion at p. 7.) Sunnen makes a similar argument that the survival action is barred by the statute of limitations. (Sunnen Motion at pp. 6-7.) Sunnen contends that for the survival action to be timely it should have been brought by January 26, 2019. (Sunnen Motion at p. 8.) Further, Thyssenkrupp similarly argues that the statute of limitations expired two years after the original complaint was filed. (Thyssenkrupp Motion at p. 5.)

A survival cause of action is not an independent cause of action, but an assertion of the rights of decedents by the decedent’s heir or successor-in-interest. (San Diego Gas & Elec. Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1553 [“unlike a wrongful death claim, the survival statutes do not create a cause of action but merely prevent the abatement of the decedent's cause of action and provide for its enforcement by the decedent's personal representative or successor in interest”].)

The question of whether an amended complaint relates back to the original complaint, for purposes of avoiding the statute of limitations, is whether it: (1) rests on the same general set of facts as the original complaint and (2) refers to the same accident and the same injuries as the original complaint. (Id. at 1549 citing Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 408–409.) The relation-back doctrine typically applies where an amendment “makes a mere technical change in the capacity in which the plaintiff sues on the same cause of action” or “substitutes a plaintiff with standing in place of a plaintiff who lacks standing.” (Id. at 1550.)

Here, the original Complaint was filed on February 7, 2017, alleging six causes of action (negligence, strict liability, strict liability, fraudulent concealment, breach of implied warranties, loss of consortium) by Beatriz Valdez, Cecelia Chavez and Jessica Chavez. The FAC was filed on December 24, 2019, alleging the same six causes of action by Beatriz Valdez (individually and as successor-in-interest to Decedent), Cecelia Chavez, and Jessica Chavez. The complaint rests on the same set of facts as the original complaint and refers to the same injuries, as both the original complaint and FAC are based on the same causes of action. The FAC is not seeking to add a new party nor add a new cause of rather, rather the FAC is seeking to make a technical change whereby Beatriz Valdez’s capacity to sue now includes both herself as an individual and herself as successor-in-interest the Decedent.

Accordingly, the FAC’s survival claims (of Valdez as successor-in-interest) relate-back to the date that the original complaint was filed, February 7, 2017, long before the deadlines asserted by Sunnen, Superior, and Thyssenkrupp.

The Demurrers to the survival action on the grounds of statute of limitations are OVERRULED.

  1. Amended Complaint

Sunnen argues that the FAC was filed in violation of the Court’s order. (Sunnen Motion at p. 9.)

While the Court denied Plaintiffs’ Motion for Leave to File an Amended Complaint on procedural grounds, the Court expressly granted Plaintiffs 20 days to file a First Amended Complaint. A trial court has broad discretion in allowing the amendment of any pleading as a matter of policy, such matters will be upheld unless a manifest or gross abuse of discretion is shown. (Record v. Reason (1999) 73 Cal.App.4th 472, 486.) The Court does not consider this filing of the FAC to be an abuse of discretion, especially given the numerous Doe Amendments that are now reflected in the FAC and that fact that Valdez had already been substituted as successor-in-interest to Decedent.

Accordingly, the Demurrers on these grounds are OVERRULED.

  1. All Causes of Action

Defendant BP demurrers to the entire FAC on a single ground: arguing that the FAC fails to state facts sufficient to meet the standards articulated in Bockrath v. Aldrich Chemical Co., Inc. (1999), 21 Cal. 4th 71. (BP Motion at p. 6.) BP contends that the FAC fails to allege the “specific products at issue and facts showing exposure to that product.” (BP Motion at p. 7.) BP argues that “[t]o meet Bockrath’s basic pleading requirements, Plaintiffs must connect [BP] with specific toxic chemical-containing products that caused injury,” must identify each allegedly toxic product, and must allege that the toxin was manufactured/supplied by BP. (BP Motion at pp. 6-8.)

Defendant Sasol demurrers on similar grounds. Sasol argues that that FAC does not satisfy Bockrath’s product identification requirements. (Sasol Motion at p. 7.) Sasol contends that while the FAC alleges that Sasol manufactured and/or supplied “LPA-142 Solvent,” the FAC fails to allege facts showing Decedent’s exposure to LPA-142 Solvent or when Sasol allegedly supplied LPA-142 to which Decedent was allegedly exposed. (Sasol Motion at p. 8.)

The FAC expressly lists the chemicals which it alleges the Decedent was exposed to and which allegedly causes his death. (FAC ¶ 20.) The FAC alleges that Sasol supplied and/or manufactured “LPA-142 Solvent” and that BP supplied “Honilo 710,” both along with “other chemical products to be determined during discovery.” (FAC ¶ 20.) The FAC further alleges that Decedent used “metals, metal products, metal alloys, metal working fluids, aerosols, abrasive products, solvents, thinners, lubricants, as well as other toxic chemical products,” to which Decedent was exposed or which caused him to be exposed to “toxic metallic and inorganic fumes, vapors, aerosols, and dusts during the course of the Decedent’s employment, and which caused Decedent’s toxic injuries[.]” (FAC ¶ 22.) The FAC alleges that these toxins were “manufactured, distributed and/or supplied by Defendants[.]” (FAC ¶ 22.)

In Bockrath, a plaintiff who contracted multiple myeloma while working at an aircraft company sued 55 manufacturers of various chemical products and alleged that his disease resulted from his exposure to harmful substances, including common substances such as WD-40. (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 77.) The complaint alleged that all of the chemicals that he alleged caused his disease were used or stored at the aircraft plant and that “he inhaled or had skin contact with ‘all’ of them.” (Id.) In determining whether the complaint was properly plead, the Supreme Court held that the plaintiff need to prove that the defective products supplied by the defendants were a “substantial factor” in bringing about his injuries. (Id. at 79.) The Court found that the complaint did not sufficiently allege that each chemical product was a substantial factor in causing the plaintiff’s multiple myeloma. (Id. at 80.) The Court held, in five-item list, what was required to properly plead: (1) the plaintiff must allege that he was exposed to each of the toxic materials claimed to cause a specific illness, and an allegation that one has been “exposed to ‘most and perhaps all’” is not sufficient; (2) the plaintiff must identify each product that allegedly caused the injury; (3) the plaintiff must allege that toxins entered his body as a result of the exposure; (4) the plaintiff must allege that the toxins entering his body were a substantial factor in bringing about or aggravating a specific illness; and (5) the plaintiff must allege that each toxic absorbed was manufactured or supplied by a named defendant. (Id.)

The Bockrath court was specifically concerned about “prospecting plaintiffs who sue multiple defendants on speculation that their products may have caused harm over time through exposure to toxins in them, and who thereafter try to learn through discovery whether their speculation was well-founded.” (Id. at 81.)

Both BP and Sasol argue on the first element from Bockrath, that the FAC, here, does not allege that Decedent was exposed to the product/chemical that they allegedly supplied or manufactured. The Court agrees with both BP and Sasol. While the FAC alleges specific products, which satisfies the second element of Bockrath, the FAC does not allege when, how, or that Decedent was exposed to those particular chemicals, only that he “was exposed[.]” (FAC ¶ 20.) The FAC, here, makes the kind of broad allegation that Bockrath was addressing, which is a blanket allegation against a swath of products at once, rather than identifying specific products/toxins that the Decedent was exposed to at a certain time. Alleging that Decedent was exposed to an entire “list of those products and machines […] to which [Decedent] was exposed” (FAC ¶ 20) is more or less the same as the example cited in Bockrath of a plaintiff having been “exposed to ‘most and perhaps all’” listed products.

As the FAC is currently pled, it is impossible for this Court and the Defendants to determine when or how Decedent was alleged to have been exposed to each substance/product/toxin, essential information for assessing causation of the injury.

Accordingly, the Demurrer of BP and Sasol are SUSTAINED with leave to amend as to the pleading of the First through Sixth Causes of Action.

  1. Fourth Cause of Action – Fraudulent Concealment

The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages.  (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) It is well-established that “[t]o withstand a demurrer, the facts constituting every element of 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

An essential element of the causes of action for fraudulent concealment is duty. To state a cause of action for fraudulent concealment, the defendant must have been under a duty to disclose some fact to the plaintiff. (Hahn v. Mirda

Thyssenkrupp and Superior both demur to the Fourth Cause of Action – Fraudulent Concealment. Thyssenkrupp argues that the FAC fails to allege sufficient facts under the heightened pleading standard for fraud and that the FAC fails to allege even a single fact against Thyssenkrupp. (Thyssenkrupp Motion at pp. 6-7.) Superior makes the ssme arguemnt, contending that the FAC “fails to allege any facts, let alone with particularity, to support Plaintiffs’ cause of action for fraudulent concealment.” (Superior Motion at p. 8.) Superior further argues as to the duty to disclose a material fact, that a relationship must arise from direct dealings between the plaintiff and defendant; it cannot arise between the defendant and the public at large. (Superior Motion at p. 8.)

In Opposition, Plaintiffs do not specifically address Superior and Thyssenkrupp’s arguments. Plaintiffs argue that the FAC sufficiently pleads this cause of action, that Defendants were under a duty to disclose to employers and employees, and that the FAC alleges that Defendants concealed or suppressed a material fact when they failed to disclose carcinogens. (Oppo. at pp. 11-12.)

The while the FAC, while it does allege that “Defendants concealed said toxic hazards from Decedent” (FAC ¶ 104) and that “Defendants had a duty to disclose the health hazards of their products, metals, metal alloys, metal cutting fluids, and machines to the Decedent’s employer” (FAC ¶ 106), it does not allege any specific allegations as to Thyssenkrupp or Superior individually.

Fraud causes of action must be pleaded with particularity, meaning that the plaintiff must allege “how, when, where, to whom, and by what means the representations were tendered.” (Lazar, supra, 12 Cal.4th at 645.) Fraud must be pleaded with particularity to give notice to a defendant so that the defendant may meet the charges. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)

Here, however, the allegations against all fourteen named Defendants and Does 15-200 are grouped together. It is not possible for each individual Defendant to determine the allegations that are being claimed against it. A party asserting a cause of action for fraud must allege the how, when, where, to whom, and by what means. However, the FAC fails to allege which party, and in what way, each party acted or failed to act. Further, this cause of action is predicated on a duty allegedly owed between all Defendants and Decedent’s employer, however the FAC does not allege why such duty exists, only that it does.

In Opposition, Plaintiffs argue that the duty arises as to all Defendants under 29 C.F.R.§ 1910.1200 and under California statutes at 8 C.C.R. § 5194 and Labor Code§ 6390.5. (Oppo. at p. 15.) However, this allegation is not made in the FAC, nor does the FAC allege why this duty arises as to each individual Defendant. the FAC also does not allege how each individual Defendant failed to meet this duty. If, assuming arguendo, all Defendants are obligated under the law to affix warning labels to their products, the plaintiffs must allege which products by which Defendants are missing warning labels. A blanket allegation that all “Defendants made representations regarding their products, but failed to disclose additional facts with which materially qualify the facts disclosed” is not a sufficient pleading under a heightened pleading standard for the Court or the Defendants to determine which duty was breached, by which Defendants, for which products, and in what way.

Accordingly, Superior and Thyssenkrupp’s Demurrers to the Fourth Cause of Action are SUSTAINED with leave to amend.

As demurrers have been sustained against all causes of action in the FAC, the Motions to Strike are DENIED as moot.

DATED: February 6, 2020

______________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC649327    Hearing Date: December 05, 2019    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

BEATRIZ VALDEZ, et al.,

Plaintiffs,

vs.

Does 1 through 200, inclusive.,

Defendants.

Case No.:

BC649327

Hearing Date:

December 5, 2019

[TENTATIVE] RULING RE:

PLAINTIFFS’ MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT

DEFENDANT SASOL CHEMICALS (usa) llc’S DEMURRER TO pLAINTIFFS’ COMPLAINT AND MOTION TO STRIKE

Defendant Sasol Chemical’s Demurrer to the Complaint is SUSTAINED with leave to amend. The Motion to Strike is DENIED as moot.

FACTS OF THE CASE

This is a products liability case. The Complaint alleges as follows. Decedent Rodolfo Chavez (“Rodolfo”) worked with various metal products as a Machinist. (Complaint ¶ 7.) These various products, used as intended by Rodolfo, caused him toxic injuries and occupational diseases via the release of toxic airborne vapors and aerosols (Complaint ¶¶ 8–9.) These materials ultimately caused injury to Rodolfo’s lungs, leading to lung cancer and death. (Complaint ¶ 12.)

Plaintiffs Beatriz Valdez, Cecilia Chavez, and Jessica Chavez are respectively Rodolfo’s spouse and two children. (Complaint ¶ 2.)

PROCEDURAL BACKGROUND

Plaintiffs filed the Complaint on February 7, 2017, alleging 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

  6. Loss of Consortium

August 19, 2019, Defendant Sasol Chemicals (USA) LLC, successor-in-interest to Sasol North America Inc. (Doe 3) (“Sasol”) filed a Demurrer to the Complaint.

On October 10, 2019, Plaintiffs filed a Motion for Leave to File a First Amended Complaint.

On October 31, 2019, Plaintiffs filed an Opposition to the Demurrer, and corrected Opposition was filed on November 1, 2019.

On November 6, 2019, Sasol filed a Reply to Plaintiffs’ Opposition to the Demurrer.

On November 25, 2019, Plaintiffs filed a Reply to Defendants’ Opposition to the Motion for Leave to Amend.

DISCUSSION

  1. MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT

Code Civ. Proc. section 473 subd. (a)(1) states that: 

The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.

“The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court's denial of leave to amend are rare.” (Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642.) 

“Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [Citations], this policy should be applied only ‘[w]here no prejudice is shown to the adverse party . . .’ [Citation.] A different result is indicated ‘[w]here inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation.]” (Magpali (1996) 48 Cal.App.4th 471, 487.) 

Pursuant to California Rule of Court Rule 3.1324, “[a] motion to amend a pleading before trial must: (1)Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3)State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.”

Such a motion must include a supporting declaration stating, “(1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.” (CRC Rule 3.1324, subd. (b).)

Here, Plaintiffs ask for leave to amend their Complaint to: (1) change the title of the complaint from “Complaint for Toxic Injuries” to “First Amended Complaint for Wrongful Death and Survival Asserting Causes of Action for Toxic Injuries; (2) change Plaintiff Beatriz Valdez to be plaintiff both individually and as successor-in-interest to Decedent Rodolfo Chavez; (3) add additional corresponding damages; (4) add additional paragraphs regarding the tolling of the statute of limitations; and (5) to replace the Doe Defendants with their now-named parties to the action, as well as to add the products manufactured and supplied by each Defendant. (Motion at p. 3.)

However, Plaintiffs failed to file with the Court a copy of the proposed First Amended Complaint pursuant to Rule 3.1324, subdivision (1). Accordingly, the Court cannot assess Plaintiffs’ sought amendments.

Plaintiffs’ Motion for Leave to Amend is DENIED without prejudice.

  1. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Here, Defendant Sasol demurrers to all six causes of action.

  1. Pleading Standard

“Ordinarily, negligence may be pleaded in general terms and the plaintiff need not specify the precise act or omission alleged to constitute the breach of duty.” (Lopez v. S. Cal. Rapid Transit Dist. (1985) 40 Cal. 3d 780, 795. Accord Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; Crouse v. Brobeck (1998) 67 Cal. App. 4th 1509, 1532 (to allege negligence claims, complainants need only state what occurred, and generally that the acts were negligently done, but “need not state the specific act or omission constituting negligent conduct.”); But see Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527 (general allegations must set forth acts or omissions which are said to have been negligent). As to negligence claims, causation may be alleged “succinctly and generally,” unless the pled facts “do not naturally give rise to an inference of causation….” (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 78.)

Sasol argues that the Complaint does not plead sufficient facts under the standard for toxic tort product liability cases articulated in Bockrath v. Aldrich Chemical Co., Inc. supra, 21 Cal.4th 71. (Motion at p. 2.)

In Bockrath, the Court held that in cases of negligence, the “plaintiff must plead specific facts affording an inference that one caused the others.” (Bockrath v. Aldrich Chemical Co., Inc. supra, 21 Cal.4th at 78.) The plaintiff in Bockrath claimed that defendant’s produce caused his multiple myeloma, and the Court found that plaintiff’s pleadings needed to do the following: “(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 […] he must allege that each toxin he absorbed was manufactured or supplied by a named defendant.” (Id. at 80.)

Here, the Complaint at present does not sufficiently plead in accordance with the above requirement. The Complaint was prepared before Plaintiffs knew the identities of the Doe Defendant companies or their products. The Complaint merely alleges that the “products and machines thus far identified to which Decedent, Rodolfo Chavez, was exposed, or which caused [Decedent] to be exposed to toxins, fibrogens, or carcinogens” include, for example: “presently unknown metals, metal products, metal alloys, metal working fluids, aerosols, abrasive products, solvents, thinners, lubricants, as well as other toxic chemical products[.]” (Compl. ¶ 5.) This description, which is repeated in several locations throughout the Complaint (Compl. ¶¶ 21, 25), does not identify which material was produced by which company. In this case, there are numerous defendants and the Complaint does not identify the product or by-product produced by each company alleged to have cause the decedent’s death. The Complaint accordingly does not identify the products that alleged causes the decedent’s death with sufficient detail.

  1. Statute of Limitations

Sasol further argues that the Complaint fails to plead sufficient facts to satisfy the statute of limitations. (Motion at p. 5.) Sasol argues that the statute of limitations for a toxic tort action is two years, but that the Complaint fails to allege with specificity the date of the decedent’s injury as well as when Plaintiffs first became aware of Decedent’s injury and when a “reasonable person” would have been on notice. (Motion at pp. 5-7.)

In Opposition, Plaintiffs argue that the Complaint alleges the date of February 28, 2015 as the date of the decedent’s death, and that Plaintiffs were only able to identify the chemical products that cause the decedent’s lung cancer in January 2017 after meeting with attorneys. (Opposition at p. 20.) Plaintiffs further argue that the statute of limitations for the fraudulent concealment cause of action is three years. (Opposition at p. 20.)

Personal injury actions in California are generally subject to a two-year statute of limitations. (Code Civ. Proc., § 335.1.) However, under the discovery rule, a plaintiff's cause of action does not accrue until he or she has discovered, or should have discovered, the injury. (Rivas v. Safety-Kleen Corp. (2002) 98 Cal.App.4th 218, 224.)

The Complaint alleges that Plaintiffs and the decedent “did not know, nor in the exercise of reasonable case could have known earlier than February 28, 2015 of Defendants’ culpability, that Decedent, Rodolfo Chavez, had sustained toxic injuries[.]” (Compl. ¶ 19.) The Complaint later alleged that February 28, 2015 was the date of the decedent’s death. (Compl. ¶ 40.) However, the Complaint did not allege the January 2017 date as to when Plaintiffs were able to identify what allegedly caused the decedent’s death. The Complaint did not identify specific dates applicable to the discovery rule, nor any explanations for tolling the statute of limitation.

Accordingly, for the reasons stated above, the Defendant Sasol’s Demurrer is SUSTAINED with leave to amend.

Because the Demurrer has been sustained with leave to amend as to the entire Complaint, Sasol’s concurrently filed Motion to Strike is effectively moot, and is therefore DENIED.

DATED: December 5, 2019

______________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC649327    Hearing Date: December 04, 2019    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

BEATRIZ VALDEZ, et al.,

Plaintiffs,

vs.

Does 1 through 200, inclusive.,

Defendants.

Case No.:

BC649327

Hearing Date:

December 4, 2019

[TENTATIVE] RULING RE:

Defendant KENNAMETAL INC.’s MOTION FOR PRO HAC VICE ADMISSION OF NICHOLAS J. ZIDIK

Defendant Kennametal Inc.’s Motion for Pro Hac Vice Admission of Nicholas J. Zikik is DENIED without prejudice.

FACTS OF THE CASE

This is a products liability case. The Complaint alleges as follows. Decedent Rodolfo Chavez (“Rodolfo”) worked with various metal products as a Machinist. (Complaint ¶ 7.) These various products, used as intended by Rodolfo, caused him toxic injuries and occupational diseases via the release of toxic airborne vapors and aerosols (Complaint ¶¶ 8–9.) These materials ultimately caused injury to Rodolfo’s lungs, leading to lung cancer and death. (Complaint ¶ 12.)

Plaintiffs Beatriz Valdez, Cecilia Chavez, and Jessica Chavez are respectively Rodolfo’s spouse and two children. (Complaint ¶ 2.)

PROCEDURAL BACKGROUND

Plaintiffs filed the Complaint on February 7, 2017, alleging 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

  6. Loss of Consortium

Defendant Kennametal Inc. (“Kennametal”) was added as Doe defendant 12 on July 23, 2019.

Kennametal filed the present Motion for Nicholas J. Zidik to be admitted pro hac vice on October 31, 2019. No opposition has been filed.

Kennametal filed a Reply and Notice of No Opposition on November 22, 2019.

DISCUSSION

  1. APPLICATION FOR ADMISSION PRO HAC VICE

    “A person who is not a member of the State Bar of California but who is a member in good standing of and eligible to practice before the bar of any United States court or the highest court in any state . . . and who has been retained to appear in a particular cause pending in a court of this state, may in the discretion of such court be permitted upon written application to appear as counsel pro hac vice, provided that an active member of the State Bar of California is associated as attorney of record.” (Cal. Rules of Court (“CRC”) Rule 9.40(a).) An applicant may not be a resident of the State of California, regularly employed in the State of California, or regularly engaged in substantial business, professional, or other activities in the State of California. (CRC 9.40(a)(1–3.)

    “A person desiring to appear as counsel pro hac vice in a superior court must file with the court a verified application together with proof of service by mail in accordance with Code of Civil Procedure section 1013a of a copy of the application and of the notice of hearing of the application on all parties who have appeared in the cause and on the State Bar of California at its San Francisco office.” (CRC 9.40(c)(1).) Notice must be given sixteen days before the hearing.

    “The application must state: (1) The applicant's residence and office address; (2) The courts to which the applicant has been admitted to practice and the dates of admission; (3) That the applicant is a member in good standing in those courts; (4) That the applicant is not currently suspended or disbarred in any court; (5) The title of court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and (6) The name, address, and telephone number of the active member of the State Bar of California who is attorney of record.” (CRC 9.40(d)(1–6.) Additionally, $50 must be paid to the California Bar. (CRC 9.40(e).)

    This is a Motion for Nicholas J. Zidik (“Zidik”) to be admitted as counsel pro hac vice for Defendant Kennametal.

    While the Motion indicates that an application pursuant to California Rules of Court Rule 9.40, subdivision (a) has been “filed and served concurrently herewith,” such application has not been filed with the Court. (Motion at p. 2.) Furthermore, the information required to be provided to the Court by Rule 9.40, subdivision (d) has not otherwise been provided completely in the instant Motion (the applicant’s residence and office address are outstanding, as well as the address and telephone number of the attorney(s) of record). Accordingly, the Court may not confirm that the requirements of Rule 9.40 have been satisfied.

    The Motion for Pro Hac Vice Admission is DENIED without prejudice.

    Defendant to give notice.

DATED: December 4, 2019

______________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC649327    Hearing Date: December 03, 2019    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

BEATRIZ VALDEZ, et al.,

Plaintiffs,

vs.

Does 1 through 200, inclusive.,

Defendants.

Case No.:

BC649327

Hearing Date:

December 3, 2019

[TENTATIVE] RULING RE:

Defendant KENNAMETAL INC.’s MOTION FOR PRO HAC VICE ADMISSION OF L. JOHN ARGENTo

Defendant Kennametal Inc.’s Motion for Pro Hac Vice Admission of L. John Argento is DENIED without prejudice.

FACTS OF THE CASE

This is a products liability case. The Complaint alleges as follows. Decedent Rodolfo Chavez (“Rodolfo”) worked with various metal products as a Machinist. (Complaint ¶ 7.) These various products, used as intended by Rodolfo, caused him toxic injuries and occupational diseases via the release of toxic airborne vapors and aerosols (Complaint ¶¶ 8–9.) These materials ultimately caused injury to Rodolfo’s lungs, leading to lung cancer and death. (Complaint ¶ 12.)

Plaintiffs Beatriz Valdez, Cecilia Chavez, and Jessica Chavez are respectively Rodolfo’s spouse and two children. (Complaint ¶ 2.)

PROCEDURAL BACKGROUND

Plaintiffs filed the Complaint on February 7, 2017, alleging 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

  6. Loss of Consortium

Defendant Kennametal Inc. (“Kennametal”) was added as Doe defendant 12 on July 23, 2019.

Kennametal filed the present Motion for L. John Argento to be admitted pro hac vice on October 31, 2019. No opposition has been filed.

Kennametal filed a Reply and Notice of No Opposition on November 22, 2019.

DISCUSSION

  1. APPLICATION FOR ADMISSION PRO HAC VICE

    “A person who is not a member of the State Bar of California but who is a member in good standing of and eligible to practice before the bar of any United States court or the highest court in any state . . . and who has been retained to appear in a particular cause pending in a court of this state, may in the discretion of such court be permitted upon written application to appear as counsel pro hac vice, provided that an active member of the State Bar of California is associated as attorney of record.” (Cal. Rules of Court (“CRC”) Rule 9.40(a).) An applicant may not be a resident of the State of California, regularly employed in the State of California, or regularly engaged in substantial business, professional, or other activities in the State of California. (CRC 9.40(a)(1–3.)

    “A person desiring to appear as counsel pro hac vice in a superior court must file with the court a verified application together with proof of service by mail in accordance with Code of Civil Procedure section 1013a of a copy of the application and of the notice of hearing of the application on all parties who have appeared in the cause and on the State Bar of California at its San Francisco office.” (CRC 9.40(c)(1).) Notice must be given sixteen days before the hearing.

    “The application must state: (1) The applicant's residence and office address; (2) The courts to which the applicant has been admitted to practice and the dates of admission; (3) That the applicant is a member in good standing in those courts; (4) That the applicant is not currently suspended or disbarred in any court; (5) The title of court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and (6) The name, address, and telephone number of the active member of the State Bar of California who is attorney of record.” (CRC 9.40(d)(1–6.) Additionally, $50 must be paid to the California Bar. (CRC 9.40(e).)

    This is a Motion for L. John Argento (“Argento”) to be admitted as counsel pro hac vice for Defendant Kennametal.

    While the Motion indicates that an application pursuant to California Rules of Court Rule 9.40, subdivision (a) has been “filed and served concurrently herewith,” such application has not been filed with the Court. (Motion at p. 2.) Furthermore, the information required to be provided to the Court by Rule 9.40, subdivision (d) has not otherwise been provided completely in the instant Motion (the applicant’s residence and office address are outstanding, as well as the address and telephone number of the attorney(s) of record). Accordingly, the Court may not confirm that the requirements of Rule 9.40 have been satisfied.

    The Motion for Pro Hac Vice Admission is DENIED without prejudice.

    Defendant to give notice.

DATED: December 3, 2019

______________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: BC649327    Hearing Date: November 14, 2019    Dept: 78

Superior Court of California

County of Los Angeles

Department 78

BEATRIZ VALDEZ, et al.,

Plaintiffs,

vs.

Does 1 through 200, inclusive.,

Defendants.

Case No.:

BC649327

Hearing Date:

November 14, 2019

ORDER RE DEMURRER AND MOTION TO STRIKE

The Demurrer and Motion to Strike filed by Sasol Chemicals (USA) LLC set for hearing today addresses Plaintiffs’ original complaint. Plaintiffs, however, have filed a motion for leave to file a First Amended Complaint. This motion is set for hearing on December 5, 2019. In the interest of judicial economy hearings set for today are continued to December 5, 2019.

Plaintiff to give notice.

DATED: November 14, 2019

________________________________

Hon. Robert S. Draper

Judge of the Superior Court