This case was last updated from Los Angeles County Superior Courts on 12/02/2019 at 01:16:46 (UTC).

MARGARITA BENITEZ ET AL VS DOES 1 TO 250

Case Summary

On 02/26/2018 MARGARITA BENITEZ filed an Other - Environment lawsuit against DOES 1 TO 250. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is DAVID S. CUNNINGHAM III. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5451

  • Filing Date:

    02/26/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Environment

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DAVID S. CUNNINGHAM III

 

Party Details

Plaintiffs and Petitioners

BENITEZ MARGARITA INDIVIDUALLY AND AS

BENITEZ CARLA

BENITEZ RAUL GUADALUPE

Claimant

PRUDENTIAL OVERALL SUPPLY

Defendants and Respondents

DOES 1 TO 250

ECOLAB INC.

UNITED FABRICARE SUPPLY INC.

AXIALL CORPORATION

UNIVAR INC. FORMERLY KNOWN AS VAN WATERS & ROGERS INC .

Defendants and Not Classified By Court

UNITED FABRICARE SUPPLY INC.

ECOLAB INC. DOE NO. 2

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

METZGER RAPHAEL ESQ.

Claimant Attorney

ESTES DOUGLAS A

Defendant Attorneys

RAMSEY LARRY

BOTROS SAMANTHA

Not Classified By Court Attorneys

PARASCANDOLA ANTHONY

WILLIS VANESSA

MORENO-ACOSTA PALOMA L

 

Court Documents

Amendment to Complaint (Fictitious/Incorrect Name)

10/30/2019: Amendment to Complaint (Fictitious/Incorrect Name)

Substitution of Attorney

10/3/2019: Substitution of Attorney

Motion to Strike (not anti-SLAPP) - without Demurrer

8/2/2019: Motion to Strike (not anti-SLAPP) - without Demurrer

Amended Complaint - AMENDED COMPLAINT FIRST

7/1/2019: Amended Complaint - AMENDED COMPLAINT FIRST

Case Management Statement

5/24/2019: Case Management Statement

Reply - REPLY ECOLAB'S REPLY TO PLTFS' OPPOSITION TO MTS

5/24/2019: Reply - REPLY ECOLAB'S REPLY TO PLTFS' OPPOSITION TO MTS

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: FAILURE TO FILE PROOF OF SERVICE; CAS...)

5/30/2019: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: FAILURE TO FILE PROOF OF SERVICE; CAS...)

Proof of Personal Service

3/19/2019: Proof of Personal Service

Notice of Ruling

3/4/2019: Notice of Ruling

Answer

3/5/2019: Answer

Notice of Case Reassignment and Order for Plaintiff to Give Notice

1/22/2019: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Notice of Lien

11/8/2018: Notice of Lien

Minute Order -

6/8/2018: Minute Order -

CASE MANAGEMENT STATEMENT -

6/28/2018: CASE MANAGEMENT STATEMENT -

NOTICE OF RULING AT CASE MANAGEMENT CONFERENCE AND ORDER TO SHOW CAUSE HELD JULY 18, 2018

7/20/2018: NOTICE OF RULING AT CASE MANAGEMENT CONFERENCE AND ORDER TO SHOW CAUSE HELD JULY 18, 2018

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

3/14/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

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

2/26/2018: COMPLAINT FOR WRONGFUIP DEATH FROM TOXIC INJURIES ASSERTING CAUSES OF ACTION FOR: (1) NEGLIGENCE; ETC

PLAINTIFFS' INITIAL STATEMENT OF DAMAGES

2/26/2018: PLAINTIFFS' INITIAL STATEMENT OF DAMAGES

46 More Documents Available

 

Docket Entries

  • 11/10/2020
  • Hearing11/10/2020 at 10:00 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 11/03/2020
  • Hearing11/03/2020 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 01/13/2020
  • Hearing01/13/2020 at 08:30 AM in Department 37 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion - Other Motion to Strike Portions of Pltfs' FAC

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  • 11/21/2019
  • DocketProof of Personal Service; Filed by Benitez, Margarita, individually and as (Plaintiff)

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  • 11/06/2019
  • DocketNotice of Posting of Jury Fees; Filed by United Fabricare Supply, Inc. (Non-Party)

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  • 11/04/2019
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Benitez, Margarita, individually and as (Plaintiff)

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  • 10/30/2019
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Benitez, Margarita, individually and as (Plaintiff)

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  • 10/17/2019
  • DocketNotice ( of Additional Products Identified During Discovery); Filed by Benitez, Margarita, individually and as (Plaintiff)

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  • 10/03/2019
  • DocketSubstitution of Attorney; Filed by Ecolab Inc. (doe No. 2) (Non-Party)

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  • 08/05/2019
  • DocketAnswer; Filed by United Fabricare Supply, Inc. (Non-Party)

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67 More Docket Entries
  • 03/14/2018
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 03/14/2018
  • DocketNOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE

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  • 03/09/2018
  • DocketPLAINTIFFS' AND MOTION MARGARITA APPOINTED INTEREST GUADALUPE OF POINTS NOTICE OF MOTION OF PLAINTIFF BENITEZ TO BE AS SUCCESSOR-INTO DECEDENT, RAUL BENITEZ;ETC.

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  • 03/09/2018
  • DocketMotion; Filed by Plaintiff/Petitioner

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  • 02/26/2018
  • DocketSUMMONS

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  • 02/26/2018
  • DocketCOMPLAINT FOR WRONGFUIP DEATH FROM TOXIC INJURIES ASSERTING CAUSES OF ACTION FOR: (1) NEGLIGENCE; ETC

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  • 02/26/2018
  • DocketPLAINTIFFS' INITIAL STATEMENT OF DAMAGES

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  • 02/26/2018
  • DocketComplaint; Filed by Carla Benitez (Plaintiff); Benitez, Margarita, individually and as (Plaintiff); Raul Guadalupe Benitez (Plaintiff)

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  • 02/26/2018
  • DocketCIVIL DEPOSIT

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  • 02/26/2018
  • DocketPLAINTIFFS' NOTICE OF POSTING JURY FEES

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Tentative Rulings

b"

Case Number: BC695451 Hearing Date: July 27, 2021 Dept: 37

\r\n\r\n

HEARING DATE: July 27, 2021

\r\n\r\n

CASE NUMBER: BC695451

\r\n\r\n

CASE NAME: Margarita Benitez v. Does 1 through 250

\r\n\r\n

MOVING PARTIES: Defendants, Axiall Corporation and\r\nPPG Industries, Inc.

\r\n\r\n

OPPOSING PARTIES: Plaintiff Margarita Benitez,\r\nindividually and as Successor-In-Interest to Raul Guadalupe Benitez, Carla\r\nBenitez

\r\n\r\n

TRIAL DATE: September 21, 2021

\r\n\r\n

PROOF OF SERVICE: OK

\r\n\r\n

\r\n\r\n

MOTION: Defendants’ Motion to Dismiss

\r\n\r\n

OPPOSITION: July 14, 2021

\r\n\r\n

REPLY: July 19, 2021

\r\n\r\n

\r\n\r\n

TENTATIVE: Moving Defendants’ motion is denied. Plaintiffs are to give notice.

\r\n\r\n

\r\n\r\n

Background

\r\n\r\n

This is a toxic tort\r\naction arising out of decent, Raul Guadalupe Benitez’s (“decedent”) employment\r\nwith Prudential Cleanroom Service (“Prudential”). Plaintiffs Carla Benitez and\r\nMargarita Benitez, individually and as successor-in-interest to decedent\r\n(“Plaintiffs”), bring this action against various doe defendants alleging that\r\ndecedent’s exposure to toxic chemicals during the course of his employment\r\ncaused him to develop esophageal cancer, from which he eventually passed away.\r\nPlaintiffs allege that decedent worked as a clothes washer at Prudential from\r\n1990 through 2015 and was exposed to organic solvents and other toxic chemicals\r\nthroughout the course of his employment. Decedent alleged died of his injuries\r\nfrom this exposure on March 15, 2017.

\r\n\r\n

Plaintiffs’\r\ncomplaint alleges six causes of action for: (1) negligence, (2) strict\r\nliability – failure to warn, (3) strict liability – design defect, (4)\r\nfraudulent concealment, (5) breach of implied warranties, and (6) loss of\r\nconsortium.

\r\n\r\n

\r\n\r\n

On October 30, 2019,\r\nPlaintiffs filed a doe amendment identifying Axiall as doe 4. On February 11,\r\n2020, Plaintiffs filed a doe amendment identifying PPG as doe 5. The doe\r\namendment identifying PPG states that it is being sued as the “manufacturer\r\nand/or supplier” of “perchloroethylene” “perchloroethylene, all grades intended\r\nfor use in dry cleaning” and “other chemical products to be determined during\r\ndiscovery.”

\r\n\r\n

Plaintiffs filed the\r\noperative Second Amended Complaint on October 19, 2020. The SAC alleges the\r\nsame six causes of action. The SAC names the following defendants: United\r\nFabricare Supply, Inc, previously sued as Doe 1 (“United”), Ecolab, Inc.,\r\npreviously sued as Doe 2 (“Ecolab”), Univar Inc., formerly known as Van Waters\r\n& Rogers Inc., previously sued as Doe 3 (“Univar”), Axiall Corporation,\r\npreviously sued as Doe 4 (“Axiall”), PPG Industries, previously sued as doe 5\r\n(“PPG”), The Dow Chemical Company, previously sued as Doe 6 (“Dow”), Legacy\r\nVulcan, LLC, formerly known as Vulcan Materials Company (“Vulcan”), Ecolink,\r\nInc., previously sued as Doe 9 (“Ecolink”) and Occidental Chemical Corporation\r\n(“Occidental”).

\r\n\r\n

Axiall and PPG\r\n(“Moving Defendants”) now move for an order dismissing the action against PPG\r\n“based on a judgment on the pleadings” on the grounds that Plaintiffs’ claims\r\nagainst PPG are time-barred. Plaintiffs oppose the motion.

\r\n\r\n

Evidentiary\r\nObjections

\r\n\r\n

Plaintiffs object to\r\neach exhibit attached to the Declaration of Nicole Harrison in support of\r\nMoving Defendants’ motion on the grounds that each exhibit constitutes hearsay\r\nand that Moving Defendants should have properly introduced these documents by\r\nfiling a Request for Judicial Notice.

\r\n\r\n

Plaintiffs’\r\nobjection is overruled. Harrison attests that she is counsel for Moving\r\nDefendants and has personal knowledge of the facts contained in her\r\ndeclaration. Harrison then attests that each document is a true and correct\r\ncopy. This is sufficient and does not render the attached documents hearsay.

\r\n\r\n

Discussion

\r\n\r\n
  1. Meet\r\nand Confer Requirements

\r\n\r\n

As of January 1,\r\n2018, a party filing a MJOP must meet and confer in person or by telephone with\r\nthe party who filed the pleading that is subject to the motion, identifying all\r\nof the specific allegations that it believes are subject to be stricken and,\r\nwith legal support, the basis of the deficiencies. (Code Civ. Proc., §\r\n439, subd. (a)(1).) “The parties shall meet and confer at least\r\nfive days before the date a motion for judgment on the pleadings is\r\nfiled. If the parties are unable to meet and confer by that time,\r\nthe moving party shall be granted an automatic 30-day extension of time within\r\nwhich to file a motion for judgment on the pleadings, by filing and serving, on\r\nor before the date a motion for judgment on the pleadings must be\r\nfiled, a declaration stating under penalty of perjury that a good faith attempt\r\nto meet and confer was made and explaining the reasons why the parties could\r\nnot meet and confer.” (Code Civ. Proc., § 439, subd.\r\n(a)(2).)

\r\n\r\n

\r\n\r\n

In opposition,\r\nPlaintiffs contend that Moving Defendants’ motion must be denied because Moving\r\nDefendants did not establish compliance with Code of Civil Procedure section\r\n439’s meet and confer requirements. (Opposition, 3.)

\r\n\r\n

\r\n\r\n

In reply, Moving\r\nDefendants contend that they met and conferred prior to filing the instant\r\nmotion. Moving Defendants submit a declaration of their counsel, Jennifer\r\nBonneville (“Bonneville”) in support of their reply. Bonneville attests that on\r\nApril 26, 2021, she contacted Plaintiffs’ counsel to discuss the issues raised\r\nin Moving Defendants’ motion. (Bonneville Decl. ¶ 2.) Bonneville further\r\nattests that on May 5, 2021, she followed up with Plaintiffs’ counsel and was\r\ninformed that Plaintiffs’ counsel disagreed with her arguments. (Bonneville\r\nDecl. ¶ 3.)

\r\n\r\n

\r\n\r\n

Pursuant to Code\r\nof Civil Procedure section 439, subdivision (a)(3), the moving party on an MJOP\r\n“shall file and serve” a declaration with the motion demonstrating compliance\r\nwith the meet and confer requirements of this section. Thus, the Bonneville\r\nDeclaration in support of reply is insufficient to comply with this\r\nrequirement, as it was not filed and served in connection with the moving\r\npapers.

\r\n\r\n

\r\n\r\n

Nevertheless, the\r\ncourt finds the Bonneville Declaration to demonstrate compliance with Moving\r\nDefendants’ meet and confer requirements. The Bonneville Declaration\r\ndemonstrates that the parties met and conferred about the substance of Moving\r\nDefendants’ arguments but did not reach an agreement. This is sufficient.

\r\n\r\n

\r\n\r\n
  1. Legal Authority

\r\n\r\n

Pursuant to Code of Civil Procedure, section 436, “the court\r\nmay, upon a motion made pursuant to Section 435, or at any time in its discretion,\r\nand upon terms it deems proper: (a) Strike out any irrelevant, false, or\r\nimproper matter inserted in any pleading. (b) Strike out all or any part of any\r\npleading not drawn or filed in conformity with the laws of this state, a court\r\nrule, or an order of the court.” The grounds for a motion to strike must\r\n“appear on the face of the challenged pleading or from any matter of which the\r\ncourt is required to take judicial notice.” (Code Civ. Proc., § 437.)

\r\n\r\n

The addition of a Doe defendant is governed by Code of Civil\r\nProcedure section 474, which provides: When the plaintiff is ignorant of the\r\nname of a defendant, he must state that fact in the complaint, or the affidavit\r\nif the action is commenced by affidavit, and such defendant may be designated\r\nin any pleading or proceeding by any name, and when his true name is\r\ndiscovered, the pleading or proceeding must be amended accordingly.

\r\n\r\n

“When a defendant is properly named under section 474, the\r\namendment relates back to the filing date of the original complaint.” (McClatchy\r\nv. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.4th 368, 371.)\r\n“The fact that plaintiff had the means of knowledge is not necessarily a bar to\r\nthe application of section 474.” (Garrett v. Crown Coach Corp. (1968)\r\n259 Cal.App.2d 647, 650.) “[E]ven though the plaintiff may know of the\r\nexistence of a person, the plaintiff is ‘ignorant’ within the meaning of\r\nsection 474 if he lacks knowledge of that person's connection with the case.” (Id.)

\r\n\r\n
  1. Analysis

\r\n\r\n

Under the discovery rule, a claim accrues\r\nand the statute of limitations begins to run when the plaintiff suspects\r\nor should suspect that her injury was caused by wrongdoing. (Jolly v.\r\nEli Lilly & Co. (1988) 44 Cal.3d 1103, 1110 (Jolly).) \r\n“A plaintiff need not be aware of the specific ‘facts’ necessary to\r\nestablish the claim; that is a process contemplated by pretrial\r\ndiscovery. Once the plaintiff has a suspicion of wrongdoing, and\r\ntherefore an incentive to sue, she must decide whether to file suit or sit on\r\nher rights. So long as a suspicion exists, it is clear that the plaintiff must\r\ngo find the facts; she cannot wait for the facts to find her.” (Id. at\r\np. 1111.)

\r\n\r\n

\r\n\r\n

Moving Defendants contend that Plaintiffs’ claims against\r\nPPG are untimely because Plaintiffs claims against PPG were asserted more than\r\ntwo years after their claims accrued on March 15, 2017. (Motion, 5-7.)\r\nAdditionally, Moving Defendants contend that the relation back doctrine does\r\nnot apply because the original Complaint did not state any claims against any\r\ndefendants and thus does not comply with the pleading requirements of Bockrath\r\nv. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 78. (Bockrath)

\r\n\r\n

In Bockrath, an individual suffering\r\nfrom cancer brought an action for personal injuries against 55 defendants that\r\nmanufactured numerous different chemicals the individual alleges he was exposed\r\nto at the workplace. (Id. at 77.) Plaintiff’s complaint\r\ngenerally asserted that he was exposed to “harmful substances” and named various\r\namong the defendants manufacturers of various common products such as\r\nrubber cement. (Id.) Certain defendants demurred, contending that\r\nPlaintiff has not sufficiently alleged their conduct specifically caused or\r\ncontributed to his injury. (Id. at 78.) The Bockrath court\r\nheld that the a Plaintiff who alleged facts to support all of the following has\r\nsufficiently plead his complaint in toxic exposure matters: (1) Plaintiff was\r\nexposed to each toxic material claimed to cause a specific illness,\r\n(2) toxins entered Plaintiff’s body as a result of exposure to each\r\ndefendants’ product, (3) Plaintiff suffers from a specific illness, and that\r\neach toxin which entered his body was a substantial factor in bringing about or\r\naggravating the illness. (Id. at 79-80.) The Bockrath court\r\nfurther noted that Plaintiff may allege these facts in a conclusory fashion if\r\ntheir knowledge of the precise cause is limited and may plead doe\r\ndefendants if their knowledge of all defendants is limited. (Id. at\r\n80-81.)

\r\n\r\n

\r\n\r\n

In opposition, Plaintiffs contend that the doe\r\namendment for PPG properly relates back to the original Complaint because the\r\noriginal Complaint states that there were other toxic solvents to be identified\r\nand Moving Defendants cited to no authority which stands for the proposition\r\nthat all toxic chemicals must be identified at the onset. (Opposition, 4-5.)\r\nAdditionally, Plaintiffs contend that there is no unreasonable delay because\r\ntrial is not scheduled until February 2022 and Plaintiffs have been prompt in\r\nidentifying doe amendments. (Opposition, 5-6.) Lastly, Plaintiffs contend that\r\nthe Complaint properly invokes the delayed discovery rule pursuant to Code of\r\nCivil Procedure section 340.8. (Opposition, 6-8.)

\r\n\r\n

\r\n\r\n

Pursuant to Code of Civil Procedure section 340.8,\r\nsubdivision (a) “[i]n any civil action for injury or illness based upon\r\nexposure to a hazardous material or toxic substance, the time for commencement\r\nof the action shall be no later than either two years from the date of injury,\r\nor two years after the plaintiff becomes aware of, or reasonably should have\r\nbecome aware of, (1) an injury, (2) the physical cause of the injury, and (3)\r\nsufficient facts to put a reasonable person on inquiry notice that the injury\r\nwas caused or contributed to by the wrongful act of another, whichever occurs\r\nlater.”

\r\n\r\n

\r\n\r\n

In reply, Moving Defendants now contend that\r\nPlaintiffs claims against PPG are untimely regardless of whether Plaintiffs’\r\nclaims are accrued in March 2016 or March 2017, as PPG was not served with the\r\ndoe amendments until more than two years after 2016 or 2017. (Reply, 3-4)\r\nAdditionally, Moving Defendants contend that the relation back doctrine cannot\r\napply because the original Complaint fails to comply with Bockrath.\r\n(Reply, 4-5.)

\r\n\r\n

\r\n\r\n

Here, the original Complaint alleges that decedent\r\nwas first diagnosed with esophageal cancer in or about December 2015 and that\r\nprior to this time, Plaintiffs “could not reasonably have discovered” that\r\ndecedent was suffering from esophageal cancer or its cause. (Complaint, ¶ 12.)\r\nDecedent died March 2017. (Complaint ¶\r\n13.) Plaintiffs allegedly first suspected that decedent’s esophageal cancer\r\nmight be occupationally caused in March 2016. (Complaint ¶ 14.) Nevertheless, Plaintiffs “personally\r\nremain ignorant of the identity of hazardous substances” to which decedent may\r\nhave been exposed. (Complaint ¶ 15.)

\r\n\r\n

\r\n\r\n

The court finds that Plaintiffs’ claims against PPG\r\nare not untimely because the relation-back doctrine applies. Specifically, the\r\ncourt finds that the original Complaint complies with the pleading requirements\r\nof Bockrath. Bockrath does not stand for the proposition that\r\nPlaintiffs in a toxic tort action have to plead every chemical at issue from\r\nthe onset. Instead, Bockrath stands for the proposition that Plaintiffs\r\nmust allege facts as succinctly as they know how and that it is permissible for\r\nPlaintiffs to allege certain facts in a conclusory fashion if Plaintiffs do not\r\nhave sufficient knowledge. Here, the Complaint pleads that Plaintiffs were\r\n“ignorant” of the identity of hazardous substances which caused decedent’s\r\ncancer. The doe amendments then naming each doe defendant then allege which\r\nchemical or chemicals each doe defendant allegedly manufactured. This is\r\nsufficient under Bockrath.

\r\n\r\n

\r\n\r\n

Because Plaintiffs’ claims against PPG are not\r\nuntimely, Moving Defendants’ motion is denied.

\r\n\r\n

\r\n\r\n

Conclusion

\r\n\r\n

\r\n\r\n

Moving Defendants’ motion is denied. Plaintiffs are\r\nto give notice.

\r\n\r\n"

Case Number: BC695451    Hearing Date: September 17, 2020    Dept: 37

HEARING DATE: September 17, 2020

CASE NUMBER: BC695451

CASE NAME: Margarita Benitez v. Does 1 through 250

MOVING PARTY: Defendant, Ecolink, Inc.

OPPOSING PARTIES: Plaintiff Margarita Benitez, individually and as Successor-In-Interest to Raul Guadalupe Benitez, Carla Benitez

TRIAL DATE: September 21, 2021

PROOF OF SERVICE: OK

MOTION: Defendant’s Demurrer to the First Amended Complaint; Defendant’s Motion to Strike Portions of First Amended Complaint

OPPOSITION: untimely filed, September 15, 2020

REPLY: September 11, 2020

TENTATIVE: Ecolink’s demurrer to the first amended complaint is sustained with 30 days leave to amend. Ecolink’s motion to strike is granted with 30 days leave to amend. Ecolink to give notice.

Background

This is a toxic tort action arising out of decent, Raul Guadalupe Benitez’s (“decedent”) employment with Prudential Cleanroom Service (“Prudential”). Plaintiffs Carla Benitez and Margarita Benitez, individually and as successor-in-interest to decedent (“Plaintiffs”), bring this action against various doe defendants alleging that decedent’s exposure to toxic chemicals during the course of his employment caused him to develop esophageal cancer, from which he eventually passed away. Plaintiffs allege that decedent worked as a clothes washer at Prudential from 1990 through 2015 and was exposed to organic solvents and other toxic chemicals throughout the course of his employment. Decedent alleged died of his injuries from this exposure on March 15, 2017.

Plaintiffs’ complaint alleges six causes of action for: (1) negligence, (2) strict liability – failure to warn, (3) strict liability – design defect, (4) fraudulent concealment, (5) breach of implied warranties, and (6) loss of consortium.

On June 3, 2019, the court granted Defendant Ecolab’s motion to strike punitive damages from the Complaint. Plaintiffs filed a first amended complaint (“FAC”) on July 1, 2019.

On April 7, 2020, Plaintiff filed a doe amendment to the FAC naming Defendant, Ecolink, Inc. (“Ecolink”) as Doe 9. Further, the doe amendment indicated that Ecolink was being sued as the manufacturer of “Vortex” and “other products to be determined during discovery.”

Ecolink now demurrers to the FAC’s cause of action for fraudulent concealment. Ecolink also moves to strike punitive damages from the FAC and the phrase “other products to be determined during discovery” from the doe amendment. Plaintiff opposes both motions.

DEMURRER

 

  1. Meet and Confer Efforts

     

    Ecolink submits the declaration of its attorney, Nadine A. Hughes (“Hughes”) to demonstrate that it has fulfilled its statutory meet and confer obligations prior to filing the instant demurrer and motion to strike. Hughes attests that on June 29, 2020, she sent Plaintiff’s counsel a meet and confer letter outlining the grounds for Ecolink’s demurrer and motion to strike. (Hughes Decl. ¶ 3, Exhibit A.) Further, Hughes attests that the although the June 29, 2020 meet and confer letter invited Plaintiff to meet and confer telephonically, she has not heard from Plaintiff’s counsel as of the filing of this motion “despite my attempts to reach counsel via telephone and email on July 2, 2020.” (Id.)

    The court is unable to determine based on the Hughes Declaration that the parties ever met and conferred telephonically as required by Code of Civil Procedure, sections 430.41 and 435.5. Plaintiff does not argue that either motion should be denied based on the parties’ failure to meet and confer. Thus, because failure to meet and confer is not grounds for the court to deny a demurrer or a motion to strike.

     

  2. Untimely Opposition

    Plaintiffs’ opposition was seriously late-filed. The court does not consider it, and on the arguments made in the demurrer sustains the demurrer with 30 days leave to amend. Ecolink to give notice.

MOTION TO STRIKE

Plaintiffs’ opposition was seriously late-file and will not be considered. For the reasons stated in the moving papers, Defendant’s motion is granted with 30 days leave to amend. Ecolink to give notice.

 

Case Number: BC695451    Hearing Date: September 08, 2020    Dept: 37

HEARING DATE: September 8, 2020

CASE NUMBER: BC695451

CASE NAME: Margarita Benitez, et al. v. Does 1 through 250

MOVING PARTY: Defendant, Legacy Vulcan, LLC, f/n/a Vulcan Materials Company

OPPOSING PARTIES: Plaintiff Margarita Benitez, individually and as Successor-In-Interest to Raul Guadalupe Benitez, Carla Benitez

TRIAL DATE: September 21, 2021

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion to Strike Portions of First Amended Complaint

OPPOSITION: August 18, 2020

REPLY: August 24, 2020

TENTATIVE: Vulcan’s motion to strike is denied. Vulcan is to give notice.

Background

This is a toxic tort action arising out of decent, Raul Guadalupe Benitez’s (“decedent”) employment with Prudential Cleanroom Service (“Prudential”). Plaintiffs Carla Benitez and Margarita Benitez, individually and as successor-in-interest to decedent (“Plaintiffs”), bring this action against various doe defendants alleging that decedent’s exposure to toxic chemicals during the course of his employment caused him to develop esophageal cancer, from which he eventually passed away. Plaintiffs allege that decedent worked as a clothes washer at Prudential from 1990 through 2015 and was exposed to organic solvents and other toxic chemicals throughout the course of his employment. Decedent alleged died of his injuries from this exposure on March 15, 2017.

Plaintiffs’ complaint alleges six causes of action for: (1) negligence, (2) strict liability – failure to warn, (3) strict liability – design defect, (4) fraudulent concealment, (5) breach of implied warranties, and (6) loss of consortium.

On June 3, 2019, the court granted Defendant Ecolab’s motion to strike punitive damages from the Complaint. Plaintiffs filed a first amended complaint (“FAC”) on July 1, 2019.

On February 4, 2020, Plaintiff filed an amendment to the FAC indicating that Defendant, Legacy Vulcan, LLC, formerly known as Vulcan Materials Company (“Vulcan”) was named as Doe 7 on January 31, 2020(the “Doe Amendment”). Further, page 2 of the Doe Amendment indicated that Vulcan was being sued as the manufacturer and/or supplier of all of the following: “Perchloroethylene, all grades, Perchloroethylene - Trichloroethylene Metal Degreasing Grade, Trichloroethylene, and other chemical products to be determined during discovery.”

On February 6, 2020, Plaintiff filed a proof of service of the FAC as to Vulcan indicating that Vulcan was served with the FAC on March 24, 2020 by substituted service.

Vulcan now moves to strike “and other chemical products to be determined during discovery” from page 2 of the Doe Amendment. Plaintiff opposes the motion.

Discussion[1]

  1. Legal Standard

Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].) Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

  1. Analysis

Vulcan contends that “and other chemical products to be determined during discovery” alleged on the Doe Amendment is improper and must be stricken pursuant to Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71. (Bockrath) (Motion, 4-5.)

In opposition, Plaintiffs contend that Vulcan’s interpretation of Bockrath is incorrect and that Bockrath did not require Plaintiffs in a toxic tort action to possess perfect knowledge of each and every chemical that each defendant allegedly manufactured or distributed prior to naming the defendant. (Opposition, 1-5.) The court agrees.

In Bockrath, an individual suffering from cancer brought an action for personal injuries against 55 defendant that manufactured numerous different chemicals the individual alleged he was exposed to at the workplace. (Id. at 77.) Plaintiff’s complaint generally asserted that he was exposed to “harmful substances” and named numerous defendants, including manufacturers of various common products such as rubber cement. (Id.) Certain defendants demurred, contending that Plaintiff has not sufficiently alleged their conduct specifically caused or contributed to his injury. (Id. at 78.) The Bockrath court held that the a Plaintiff who alleged facts to support all of the following has sufficiently plead his complaint in toxic exposure matters: (1) Plaintiff was exposed to each toxic material claimed to cause a specific illness, (2) toxins entered Plaintiff’s body as a result of exposure to each defendants’ product, (3) Plaintiff suffers from a specific illness, and that each toxin which entered his body was a substantial factor in bringing about or aggravating the illness. (Id. at 79-80.) The Bockrath court further noted that Plaintiff may allege these facts in a conclusory fashion if their knowledge of the precise cause is limited and may plead doe defendants if their knowledge of all defendants is limited. (Id. at 80-81.)

Accordingly, it does not follow from Bockrath that the phrase “and other chemical products to be determined during discovery” must be stricken from the Doe Amendment. Instead, Bockrath stands for the proposition that Plaintiff must allege facts as succinctly as he knows how at inception, and that alleging facts in a conclusory fashion by, for example, not specifying all alleged toxic products, is permissible. Here, Plaintiffs have done exactly this by alleging that Vulcan produced or distributed three different, specific chemicals. The fact that Plaintiff’s Doe Amendment also includes “and other chemical products to be determined during discovery” is not improper under Bockrath because the Bockrath court specifically permitted Plaintiff in a similar toxic tort action to allege certain facts in a conclusory fashion if their knowledge of the those facts is limited.

For these reasons, Vulcan’s motion to strike is denied.

Conclusion

Vulcan’s motion to strike is denied. Vulcan is to give notice.


[1] Vulcan submits the declaration of its attorney, Henry Joseph Drapalski III (“Drapalski”) to demonstrate that it has met its meet and confer obligations pursuant to Code of Civil Procedure, section 435.5 prior to bringing the instant motion. Drapalski attests that he telephoned Plaintiff’s counsel, Metzger Law Group on May 4 and May 6, 2020 and was told that Plaintiff’s counsel of record, Senami Craft, was not available to take his call on each occasion. (Drapalski Decl. ¶ 3.) Thereafter, Drapalski attests that he sent a meet and confer letter outlining Vulcan’s arguments on May 6, 2020 and followed up after his letter in a continued attempt to meet and confer telephonically. (Drapalski Decl. ¶¶ 4-5.) Finally, Drapalski attests that on May 8, Plaintiffs stated in response to other co-defendants’ request for meet and confer that Ms. Craft was on maternity leave. (Drapalski Decl. ¶ 6.) Although the court ordinarily expects the parties to meet and confer telephonically, the court finds that in this instance, the Drapalski Declaration is sufficient for purposes of Code of Civil Procedure, section 435.5.

Case Number: BC695451    Hearing Date: August 12, 2020    Dept: 37

HEARING DATE: August 12, 2020

CASE NUMBER: BC695451

CASE NAME: Margarita Benitez, et al v. Does 1 through 250

TRIAL DATE: September 21, 2021

PROOF OF SERVICE: OK

MOTION: Plaintiffs’ Motion to Compel Further Responses to Request for Production

MOVING PARTIES: Plaintiffs Margarita Benitez, individually and as Successor-In-Interest to Raul Guadalupe Benitez, Carla Benitez

OPPOSING PARTY: Defendant, Ecolab, Inc.

OPPOSITION: July 30, 2020

REPLY: none as of August 10, 2020

TENTATIVE: Ecolab is ordered to produce verifications or other verified supplemental responses. Also, Requests 10-12 have not been supplemented. Ecolab is ordered to provide supplemental responses to Requests 10-12 within 30 days and to produce responsive documents within a reasonable period of time given its office closures. Plaintiffs’ requests for sanctions are denied. Ecolab is to give notice.

MOTION: Plaintiff’s Motion to Compel Further Responses to Request for Production

MOVING PARTIES: Plaintiffs Margarita Benitez, individually and as Successor-In-Interest to Raul Guadalupe Benitez, Carla Benitez

OPPOSING PARTY: United Fabricare Supply, Inc.

OPPOSITION: July 30, 2020

REPLY: none as of August 10, 2020

TENTATIVE: Fabricare is ordered to serve signed supplemental responses and verification within 30 days. Plaintiffs’ and Fabricare’s requests for sanctions are denied. Fabricare is to give notice.

Background

This is a toxic tort action arising out of decent, Raul Guadalupe Benitez (“decedent”)’s employment with Prudential Cleanroom Service (“Prudential”). Plaintiffs Carla Benitez and Margarita Benitez, individually and as successor-in-interest to decedent (“Plaintiffs”), bring this action against various doe defendants alleging that decedent’s exposure to toxic chemicals during the course of his employment caused him to develop esophageal cancer, from which he eventually passed away. Plaintiffs allege that decedent worked as a clothes washer at Prudential from 1990 through 2015 and was exposed to organic solvents and other toxic chemicals throughout the course of his employment. Decedent alleged died of his injuries from this exposure on March 15, 2017.

Plaintiffs’ complaint alleges six causes of action for: (1) negligence, (2) strict liability – failure to warn, (3) strict liability – design defect, (4) fraudulent concealment, (5) breach of implied warranties, and (6) loss of consortium.

On February 15, 2019, Plaintiff named Ecolab, Inc. (“Ecolab”) as a doe defendant. Attachment A to the amendment indicates that Ecolab was being sued as the “manufacturer/supplier” of all of the following: Stain Blaster Multi-Purpose, Stain Blaster Grease Remover, Stain Blaster S and “Stain Blaster Starter Kit, which includes Stain Blaster Multi-Purpose, Stain Blaster Specialty and Stain Blaster Destainer and other chemical products to be determined during discovery.”

On June 3, 2019, the court granted Defendant Ecolab’s motion to strike punitive damages from the Complaint. Plaintiffs filed a first amended complaint (“FAC”) on July 1, 2019. On October 30, 2019, Axiall Corporation (“Axiall”) was named as a doe defendant to the FAC.

On October 17, 2019, Plaintiff filed a “Notice of Additional Products Identified During Discovery,” contending that Plaintiff had additionally discovered that Ecolab manufactured and/or supplied “Effluent Care 6789A, Effluent Care 6984C, First Impression Orchard Fields Micro Aerosol Starter Kit, First Impression Cucumber Melon Micro Aerosol Starter Kit Medalliion, and Terposol Ultra.”

On January 13, 2020, Ecolab’s motion to strike portions of the FAC was denied.

Plaintiff now moves to compel Ecolab to provide further responses to Requests for Production, Sets One and Two. Plaintiff additionally moves to compel Defendant United Fabricare, Inc. (“Fabricare”) to provide further responses to Requests for Production, Set One. Ecolab and Fabricare oppose the motions against them.

Procedural History

Plaintiff served Ecolab with Requests for Production, Set One on September 6, 2019. (Declaration of Senami Craft in Support of Motion (“Craft Decl.”), ¶ 4, Exhibit A.) Plaintiff served Ecolab with Requests for Production, Set Two on October 17, 2019. (Craft Decl. ¶ 5, Exhibit B.) Ecolab received an extension until November 21, 2019 to respond to both sets of discovery. (Craft Decl. ¶ 6, Exhibit C.) Ecolab served its responses to both sets of requests on November 21, 2019. (Craft Decl. ¶¶ 7-8, Exhibits D-E.) Ecolab served its verifications to both sets of discovery on December 10, 2019. (Craft Decl. ¶ 9, Exhibit F.) The verifications were dated December 6, 2019. (Id.)

On September 11, 2019, Plaintiff served Fabricare with Requests for Production, Set One. (Craft Decl. in Support of Motion to Compel Further Responses from Fabricare (“Craft Fabricare Decl.”), ¶ 4, Exhibit A.) Fabricare served its responses on October 11, 2019. (Craft Fabricare Decl. ¶ 5, Exhibit B.)

On July 30, 2020, Ecolab served unverified supplemental responses to each request at issue in Plaintiff’s motion. (Declaration of Paloma Moreno-Acosta (“Moreno-Acosta”) in Support of Opposition, ¶ 12, Exhibit 3.) Ecolab’s attorney, Paloma Moreno-Acosta, attests that the supplemental responses indicate that Ecolab has produced all responsive documents and that no documents exist regarding carcinogenic studies. (Id.)

Fabricare has not served supplemental responses to date.

The Parties’ Meet and Confer Efforts

Based on the below discussion, the court finds that Plaintiff’s meet and confer efforts prior to filing the instant motions were sufficient as to both Fabricare and Ecolab.

On November 25, 2019, Plaintiff’s counsel emailed Fabricare’s counsel to meet and confer regarding Fabricare’s responses to Request for Production, Set One, number 17. (Craft Fabricare Decl. ¶6, Exhibit C.) Plaintiff’s counsel’s letter indicated that based on her prior experience with Fabricare in other matters, Fabricare retained records longer than the five year period it indicated in its responses and that Fabricare was thus required to provide a supplemental response and produce documents. (Id.) Thereafter, Plaintiff’s counsel met and conferred with Fabricare’s counsel by telephone regarding the time period of Fabricare’s responsive documents. (Craft Fabricare Decl. ¶ 7, Exhibit D.) Plaintiff’s counsel did not reach an agreement with Fabricare’s counsel regarding supplemental responses. (Id.)

On December 23, 2019, Plaintiff’s counsel emailed Ecolab’s counsel to meet and confer regarding Ecolab’s responses. (Craft Decl. ¶ 10, Exhibit G.) Plaintiff’s counsel and Ecolab’s counsel subsequently met and conferred by telephone, after which Ecolab’s counsel produced additional responsive documents. (Id.) On January 22, 2020, Plaintiff’s counsel again contacted Ecolab’s counsel to request that Ecolab produce the remaining documents it contends was confidential. (Craft Decl. ¶ 11, Exhibit H.)

Discussion

  1. Timeliness of Motions

Pursuant to Code of Civil Procedure section 2031.310, subdivision (c), a motion to compel further responses to inspection demands must be filed within 45 days of service of the verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, with additional time allowed for the manner of service. (Code Civ. Proc., §§ 1013, subd. (a); 2031.310, subd. (c).) The 45-day requirement of Code of Civil Procedure, section 2031.310, subdivision (c) is mandatory and jurisdictional in the sense that it renders the court without authority to rule on a motion to compel further responses to discovery other than to deny the motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (Sexton).)

Ecolab served its unverified responses to Plaintiff’s requests on November 21, 2019 but served verifications on December 10, 2019. As such, the deadline to compel further responses from Ecolab was January 27, 2020. Fabricare served its responses on October 11, 2019. As such, the deadline to compel further responses from Fabricare was December 2, 2019.

Plaintiff’s motion to compel further responses as to Ecolab was filed January 27, 2020. Plaintiff’s motion to compel further responses as to Fabricare was filed December 2, 2019. As such, both motions are timely.

  1. Analysis

Plaintiff moves for an order compelling Ecolab to provide further responses to each request in Requests for Production, Sets One and Two and compelling Ecolab to produce documents. Plaintiff also moves for an order compelling Fabricare to further respond to Requests for Production, Set One, number 17 and produce documents.

  1. Requests for Production, Sets One and Two as to Ecolab

Plaintiff contends that a further response to each of Requests for Production, Sets One and Two to Ecolab is warranted because Ecolab is still allegedly withholding responsive documents despite representations that they would provide supplemental responses and documents. (Motion, 3-4.)

Moreno-Acosta attests that after Ecolab’s December 2019 document production, Ecolab made another supplemental document production on January 22, 2020. (Moreno-Acosta Decl. ¶ 9.) Further, Moreno-Acosta counsel attests that she received Plaintiff’s motion to compel, she attempted to further meet and confer with Plaintiff’s counsel to request that Plaintiff’s request for marketing materials be narrowed to the materials decedent actually viewed but that Plaintiff’s counsel declined to narrow the requests. (Moreno-Acosta Decl ¶ 11, Exhibit 1.) Finally, Moreno-Acosta attests that shortly after this meet and confer exchange, Ecolab’s offices were shut down due to COVID-19 and continue to be shut down through at least September 2020, making any further production of documents difficult. (Moreno-Acosta Decl. ¶ 12.) Nevertheless, Moreno-Acosta attests that on July 30, 2020, Ecolab served supplemental responses to Requests 1-9 and 13-14 as to both Requests for Production, Sets One and Two. (Moreno-Acosta Decl. ¶ 12, Exhibit 3.)

As such, Ecolab has demonstrated that it has made multiple supplemental productions of documents and that it has provided supplemental responses to at least some of the requests at issue. However, the supplemental responses served July 30, 2020 are not verified. Ecolab is ordered to produce verifications or other verified supplemental responses. Also, Requests 10-12 have not been supplemented. Ecolab is ordered to provide supplemental responses to Requests 10-12 within 30 days and to produce responsive documents within a reasonable period of time given its office closures.

  1. Requests for Production, Set One as to Fabricare

Plaintiff moves for an order compelling Fabricare to provide further responses to Request for Production, Set One, number 17. Request number 17 provides as follows:

“If YOU are not the manufacturer of YOUR PRODUCTS, all WRITINGS which evidence YOUR supply of YOUR PRODUCTS (including, but not limited to, invoices, customer shipping logs, bills of lading, purchase orders, computer printouts) to Prudential Overall Services dba/aka Prudential Cleanroom Services, 6948 Bandini Blvd, Commerce, California, from 1985 through 2017.

(Note: To save time and expense of copying, if YOU have or can generate a computer printout that reflects the dates and quantities of YOUR PRODUCTS supplied to Prudential Overall Services dba/aka Prudential Cleanroom Services, plaintiffs will agree to accept such a computer-generated report in lieu of invoices and purchase orders.)”

(Separate Statement in Support of Fabricare Motion, 2.) In response, Fabricare objected that the request was overbroad, burdensome, not calculated to lead to the discovery of admissible evidence as well as vague and ambiguous. (Separate Statement in Support of Fabricare Motion, 3.) Fabricare stated, subject to these objections, as follows:

“UNITED FABRlCARE's document retention policy requires it to maintain hard copy business records it generates for the current semester plus five years. After a diligent search and reasonable inquiry, UNITED FABRlCARE was unable to locate any documents responsive to this Request for the time period governed by UNITED FABRlCARE's document retention policy. Discovery is ongoing and the UNITED FABRlCARE reserves the right to supplement or amend this response.”

Plaintiff contends that a further response to Request 17 is warranted from Fabricare because Fabricare’s response is not compliant with Code of Civil Procedure, section 2031.230’s language requiring that Fabricare state why it is unable to comply with the request as drafted. (Separate Statement in Support of Fabricare Motion, 3-4.) Moreover, Plaintiff contends that a further response from Fabricare is warranted because Fabricare’s contention about being unable to comply due to its document retention policy is false given that it was able to comply in another toxic chemical case also filed in Los Angeles Superior Court. (Id.)

In opposition, Fabricare contends that it is unable to comply with Plaintiff’s request as it cannot generate Sales Analysis Reports from 1985 to 2017. (Opposition, 4-6.) Fabricare submits the Declaration of William Weimer (“Weimer”) in support of this contention. Weimer attests that he has worked from 1983 to 2012 for Fabricare and still works as a consultant. (Weimer Decl. ¶ ¶ 1-3.) Weimer attests that prior to his retirement, he held the title of Executive Vice President was responsible for multiple areas of Fabricare’s business. (Weimer Decl. ¶ 5.) According to Weimer, Fabricare’s electronically stored information only goes back to November 2005. (Weimer Decl. ¶ 5.) Further, Weimer attests that Sales Analysis Reports are not generated in the ordinary course of Fabricare’ business as Fabricare has thousands of customers. (Weimer Decl. ¶ 6.)

Further, Fabricare submits the declaration of its attorney, Cecilia Hong (“Hong”) in support of its opposition. Hong attests that on July 28, 2020, Fabricare served amended responses to Requests for Production, Set One, including request number 17. (Hong Decl. ¶ 3, Exhibit B.) However, the court notes that the amended responses and verification attached to the Hong Declaration are unsigned and undated. Fabricare is ordered to serve signed supplemental responses and verification within 30 days.

Monetary Sanctions

Plaintiff requests an award of monetary sanctions of $2,400 against each of Ecolab and Fabricare in connection with the instant motions. Additionally, Fabricare requests an award of monetary sanctions against Plaintiff in the amount of $1,512 for Plaintiff’s alleged failure to meet and confer in good faith.

The court now denies all requests for sanctions as the parties acted with substantial justification and to award sanctions would be inequitable in the circumstances.

Case Number: BC695451    Hearing Date: January 13, 2020    Dept: 37

HEARING DATE: January 13, 2020

CASE NUMBER: BC695451

CASE NAME: Margarita Benitez v. Does 1 through 250

MOVING PARTY: Defendant, Ecolab, Inc. (Doe 2)

OPPOSING PARTY: Plaintiff Margarita Benitez, individually and as Successor-In-Interest to Raul Guadalupe Benitez, Carla Benitez

TRIAL DATE: November 10, 2020

PROOF OF SERVICE: OK

MOTION: Defendant’s Motion to Strike Portions of First Amended Complaint

OPPOSITION: December 20, 2019

REPLY: January 6, 2020

TENTATIVE: Ecolab’s motion to strike is denied. Plaintiffs are to provide notice.

BACKGROUND

This is a toxic tort action arising out of decent, Raul Guadalupe Benitez (“decedent”)’s employment with Prudential Cleanroom Service (“Prudential”). Plaintiffs Carla Benitez and Margarita Benitez, individually and as successor-in-interest to decedent (“Plaintiffs”), bring this action against various doe defendants alleging that decedent’s exposure to toxic chemicals during the course of his employment caused him to develop esophageal cancer, from which he eventually passed away. Plaintiffs allege that decedent worked as a clothes washer at Prudential from 1990 through 2015 and was exposed to organic solvents and other toxic chemicals throughout the course of his employment. Decedent alleged died of his injuries from this exposure on March 15, 2017.

Plaintiffs’ complaint alleges six causes of action for: (1) negligence, (2) strict liability – failure to warn, (3) strict liability – design defect, (4) fraudulent concealment, (5) breach of implied warranties, and (6) loss of consortium.

On February 15, 2019, Plaintiff named Ecolab, Inc. (“Ecolab”) as a doe defendant. Attachment A to the amendment indicates that Ecolab was being sued as the “manufacturer/supplier” of all of the following: Stain Blaster Multi-Purpose, Stain Blaster Grease Remover, Stain Blaster S and “Stain Blaster Starter Kit, which includes Stain Blaster Multi-Purpose, Stain Blaster Specialty and Stain Blaster Destainer and other chemical products to be determined during discovery.”

On June 3, 2019, the court granted Defendant Ecolab’s motion to strike punitive damages from the Complaint. Plaintiffs filed a first amended complaint (“FAC”) on July 1, 2019..

On August 2, 2019, Ecolab filed the instant motion to strike punitive damages from the FAC.

On October 17, 2019, Plaintiff filed a “Notice of Additional Products Identified During Discovery,” contending that Plaintiff had additionally discovered that Ecolab manufactured and/or supplied “Effluent Care 6789A, Effluent Care 6984C, First Impression Orchard Fields Micro Aerosol Starter Kit, First Impression Cucumber Melon Micro Aerosol Starter Kit Medalliion, and Terposol Ultra.”

MOTION TO STRIKE

Ecolab moves to strike all of the following paragraphs of Plaintiffs’ FAC: 59, 76, 97-99 and 1 in the prayer on the grounds that each paragraph contains a prayer for punitive damages which fails to sufficiently plead specific facts regarding Ecolab’s malice, oppression, fraud, despicable or willful conduct required to maintain such a claim.

Plaintiffs oppose the motion.

  1. Meet and Confer

Effective January 1, 2018, a party filing a motion to strike must meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion and identify all of the specific allegations that it believes are subject to be stricken and identify with legal support the basis of the deficiencies. (Code Civ. Proc., § 435.5, subd. (a).)

Ecolab submits the declaration of its attorney, Anthony J. Parascandola (“Parascandola”) to demonstrate that it has met its statutory meet and confer obligations prior to bringing the insant motion. Parascandola declares that on July 24, 2019, he wrote a meet and confer letter to Plaintiff’s counsel which outlined Ecolab’s position on why the FAC remained deficient with respect to punitive damages. (Parascandola Decl. ¶ 3, Exhibit B.) Parascandola further declares that despite good faith efforts on both sides, the parties were not able to come to an agreement regarding the contents of this letter. (Id., ¶ 4.)

Plaintiffs do not appear to contend that Ecolab’s meet and confer efforts were insufficient. Although the court expects that the parties will meet and confer in person or by telephone, the court finds that in this instance, Ecolab’s meet and confer efforts are sufficient for purposes of Code of Civil Procedure section 435.5.

  1. Legal Standard

Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].) Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

  1. Punitive Damages

Ecolab contends that the FAC’s prayer for punitive damages must all be stricken because (1) Plaintiffs have not alleged facts that Ecolab acted with malice, oppression, or fraud, and (2) Plaintiffs have not pled facts sufficient to demonstrate that an officer or managing agent at Ecolab ratified the allegedly malicious, oppressive or fraudulent conduct.

  1. Oppression, Fraud or Malice

First, Ecolab contends that the FAC is insufficiently pled because it is pled generally as to all doe defendants and, as such, fails to specify what actions Ecolab took that were malicious, oppressive or fraudulent. (Motion, 7-9.)

“Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294 subd. (c)(1).) “Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code, § 3294 subd. (c)(2).) “Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).) A plaintiff’s “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied, within the meaning of section 3294.” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.)

Here, the FAC alleges that: in exposing Decedent to the toxic chemicals, Does 1-250:

1) failed to warn Decedent of known dangers, consciously disregarded Decedent’s safety despite knowledge of the probable dangerous consequences of its chemicals, and willfully and deliberately failed to avoid such dangerous consequences befalling Decedent (FAC, ¶ 58, 59, 75, 76, 97, 98);

2) was aware of, or culpably indifferent to, unnecessary risks of injury to Decedent, and failed and refused to take steps to eliminate or adequately reduce the risk of said dangerous consequences to Decedent (ibid.);

3) concealed known toxic hazards of its chemicals from Decedent, specifically by failing to warn Decedent of adverse toxic effects of its chemicals, and such hazards were known by and such concealment was ratified by the corporate officers and managers of Does 1-250 (ibid.)

4) consciously decided to market its chemicals with knowledge of their harmful effects, and without remedying the toxic effects of its chemicals, and such marketing despite knowledge of the foregoing toxic hazards of their products was ratified by the corporate officers and managers of Does 1-250 (ibid.);

5) misrepresented the nature of its chemical products, by withholding information from Decedent regarding toxic chemicals released from its products during their anticipated or reasonably foreseeable uses and such misrepresentation and withholding of information was ratified by the corporate officers and managers of Does 1-250 (ibid.); and

6) its conduct in exposing Decedent to said toxic chemicals without adequate warnings of their toxic hazards and without adequate instructions for safe handling and use was despicable, malicious, oppressive, and perpetrated in conscious disregard of the rights and safety of Does 1- 250. (ibid.)

Plaintiffs contend that general allegations labeling Defendants’ conduct as malicious, oppressive and/or fraudulent coupled with “supporting factual allegations” are sufficient to support a request for punitive damages. (Opposition, 3-7.) Plaintiffs rely on Unruh v. Truck Insurance Exchange (1973) 7 Cal.3d 616 (Unruh) and Perkins v. Superior Court (1981) 117 Cal.App.3d 1 (Perkins) in support of this contention.

In Unruh, Plaintiff sustained injuries while working for an employer which carried workmen’s compensation insurance. (Unruh, supra, 7 Cal.3d 616, 620.) Plaintiff eventually brought an action against various individuals and entities involved in providing workmen’s compensation insurance, alleging that they placed her under surveillance, photographing her with knowledge, and exhibited those photographs at a hearing, causing her emotional distress. (Id. at 620-621.) Plaintiff’s complaint alleged causes of action for assault, conspiracy and intentional infliction of emotional distress, as well as a fifth cause of action incorporating each of these causes of action by reference and requesting punitive damages. (Id. at 621.) In finding that Plaintiff’s fifth cause of action was properly alleged, the Court of Appeal found that it properly incorporated the second and fourth causes of action for assault and intentional infliction of emotional distress and, as such, the facts underlying these causes of action were sufficient to sustain a claim for punitive damages. (Id. at 632.)

In Perkins, Plaintiff sued a telephone company for invasion of privacy and interference with business, alleging that the telephone company erroneously persisted in listing his law firm as an automobile supply store. (Perkins, supra, 117 Cal.App.3d at p. 4.) Defendant’s motion to strike the phrases “oppression, fraud and malice” from the FAC as well as all prayers for “exemplary damages” was granted on the grounds that the complaint failed to state a cause of action for such damages or “conclusions of law and evidentiary facts.” (Id. at 5.) In reversing the trial court order granting the motion to strike, the Court of Appeal found that Plaintiff’s allegations, including the statement that Defendant’s actions constituted “oppression, fraud and malice” was not objectionable because they constituted “the language of the statute” authorizing punitive damages. (Id. at 6.) Further, the Court of Appeal found that the complaint “provided notice to real party and the other defendants of petitioner’s precise claims against them.” (Id. at 7.)

The court finds these allegations sufficient at this point to support a claim for punitive damages, as Plaintiffs allege misrepresentation and concealment of known hazards.

This is similar to Unruh where the court found that the complaint adequately alleged a claim for intentional infliction of emotional distress, which therefore supported a claim for punitive damages.

Accordingly, the motion to strike is DENIED.

CONCLUSION

Ecolab’s motion to strike is denied. Plaintiffs are to provide notice.

Case Number: BC695451    Hearing Date: January 08, 2020    Dept: 37

HEARING DATE: January 8, 2020

CASE NUMBER: BC695451

CASE NAME: Margarita Benitez v. Does 1 through 250

MOVING PARTY: Defendant, Axiall Corporation (Doe 4)

OPPOSING PARTY: Plaintiff Margarita Benitez, individually and as Successor-In-Interest to Raul Guadalupe Benitez, Carla Benitez

TRIAL DATE: November 10, 2020

PROOF OF SERVICE: OK

MOTION: Defendant’s Demurrer to the First Amended Complaint; Defendant’s Motion to Strike Portions of First Amended Complaint

OPPOSITION: December 20, 2019[1]

REPLY: December 31, 2019

TENTATIVE: Axiall’s demurrer is OVERRULED. Axiall’s motion to strike is DENIED. Axiall is to provide notice.

BACKGROUND

This is a toxic tort action arising out of decent, Raul Guadalupe Benitez (“decedent”)’s employment with Prudential Cleanroom Service (“Prudential”). Plaintiffs Carla Benitez and Margarita Benitez, individually and as successor-in-interest to decedent (“Plaintiffs”), bring this action against various doe defendants alleging that decedent’s exposure to toxic chemicals during the course of his employment caused him to develop esophageal cancer, from which he eventually passed away. Plaintiffs allege that decedent worked as a clothes washer at Prudential from 1990 through 2015 and was exposed to organic solvents and other toxic chemicals throughout the course of his employment. Decedent alleged died on March 15, 2017 from his injuries caused this exposure.

Plaintiffs’ complaint alleges six causes of action for: (1) negligence, (2) strict liability – failure to warn, (3) strict liability – design defect, (4) fraudulent concealment, (5) breach of implied warranties, and (6) loss of consortium.

On June 3, 2019, the court granted Defendant Ecolab’s motion to strike punitive damages from the Complaint. Plaintiffs filed a first amended complaint (“FAC”) on July 1, 2019. On October 30, 2019, Axiall Corporation (“Axiall”) was named as a Doe defendant to the FAC. Attachment A to the Doe Amendment indicates that Axiall was being sued as the “manufacturer and/or supplier” of PER208-Perchloroethylene Dry Cleaning.

Axiall now demurrers to the fourth cause of action for fraudulent concealment in Plaintiff’s FAC on the grounds that it fails to state a cause of action against Axiall. Axiall also moves to strike punitive damages from the FAC. Plaintiff opposes both motions.

DEMURRER[2]

  1. Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525 (Berkley).) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452; see also Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 (Mahan), citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty “because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers do not lie as to only parts of causes of action where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

  1. Analysis

The elements of a fraud cause of action are: (1) misrepresentation (false representation, concealment, or omission); (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Davis v. Southern California Edison Co. (2015) 236 Cal.App.4th 619.) Fraud must be pled in the complaint specifically. General and conclusory allegations are not sufficient. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 74; Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268.) Unlike most causes of action where the “the policy of liberal construction of the pleadings,” fraud requires particularity, that is, “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield, supra, 220 Cal.App.3d at 73; Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Every element of a fraud cause of action must be alleged both factually and specifically. (Hall v. Department of Adoptions (1975) 47 Cal.App.3d 898, 904; Cooper v. Equity General Insurance (1990) 219 Cal.App.3d 1252, 1262.)

“ ‘[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of he fact, the plaintiff must have sustained damage.’” (Boschma v. Home Loan Center (2011) 198 Cal.App.4th 230, 248 [quoting Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748.])

Axiall contends that Plaintiffs’ fourth cause of action for fraudulent concealment is insufficiently pled against it because Plaintiffs have not pled any fraudulent action or concealment by Axiall with particularity. (Motion, 4-6.) Specifically, Axiall contends that the only allegation specifically pled against it is that it was a seller or manufacturer of “PER208-Perchloroethylene Dry Cleaning,” and that such an allegation is insufficient to sustain a cause of action for fraudulent concealment because it does not specify how decedent was exposed to that chemical or how Plaintiffs relied on Axiall’s alleged fraudulent conduct. (Id.)

Plaintiffs contend that the fourth cause of action is sufficiently pled because Plaintiffs have alleged facts sufficient to support that Axiall, and all Doe defendants, had various duties to disclose that the chemicals they sold or manufactured were dangerous. (Opposition, 2-16.) Plaintiffs rely on Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187 (Jones) for the proposition that their FAC sufficiently pleads fraudulent concealment.

In Jones, family members brought a toxic tort action against nineteen manufacturers of chemicals, alleging that their family member died from exposure to multiple chemicals in the course of his employment by a tire company. (Id. at 1191.) The family members appealed the trial court sustaining certain defendants’ demurrers to the FAC. (Id.) In finding that Plaintiffs had sufficiently alleged a fraudulent concealment claim as part of an action for injuries from long-term exposure to toxic chemicals, the Jones court found that a duty to disclose may arise when defendant “possesses or exerts control over material facts not readily available to the plaintiff.” (Id. at 1199.) Accordingly, the Jones court found that allegations indicating that defendants were “aware of the toxic nature of their products” and that defendants “made representations regarding their products but failed to disclose additional facts which materially qualify the facts disclosed . . .” was sufficient to support a cause of action for fraudulent concealment. (Id. at 1199-1200.) Further, the Jones court noted that the allegations that one of the manufacturer’s products contained a component that was shown to be toxic by a study published as early as 1969 attesting to the chemicals’ toxicity. (Id. at 1200.)

While the court stated it was a “closer question” as to the other defendants whether there was adequate notice to support causes of action for fraudulent concealment. The court concluded:

“On balance, we conclude the amended complaint does provide adequate notice to the remaining defendants of the material facts they allegedly concealed from [Plaintiff]. Based upon the existing allegations, each defendant has received notice of the particular product it made that was used at the . . . plants at which [Plaintiff] worked. The pleading further alleges these products “contained significant concentrations of organic solvents ... and other toxic chemicals” and “[t]he toxicity of various organic solvents to the liver and kidney has long been recognized.” Each defendant is therefore on notice that it allegedly concealed or failed to disclose the toxic properties of the product it sold to [Plaintiff’s employers] during the course of [Plaintiff’s]employment. Although sparse, nothing more is required at this early stage of the litigation.” (Id.)

Here, the FAC alleges defendants, including Axiall, was allegedly required to follow California Labor Code section 6390.5 and the Hazard Communication Standard, both of which allegedly required chemical manufacturers such as Axiall to appropriately identify toxic chemicals before they are sold for public use to individuals such as decedent. (FAC, ¶¶ 32-33.) The FAC also alleges that Axiall and other Doe defendants supplied chemical products as identified in each Doe amendment, and that these defendants were required to provide warnings about the cancer risks of their products but did not. (FAC, ¶ 59.) The FAC also specifically alleges that defendants’ various dry-cleaning chemicals had a close association to esophageal cancer and cite studies published well in advance of Plaintiff’s exposure to support this proposition. (Id.)

Moreover, the FAC alleges that Axiall and other chemical manufacturers had a duty to disclose the “toxic properties of their products” because they alone had knowledge of the various products’ toxic properties, information which was not allegedly available to decedent. (FAC, ¶ 82.) The FAC alleges that Axiall and other defendants concealed the toxic nature of their chemical products from decedent such that decedent would use these products. (FAC, ¶¶ 84-85.) Finally, the FAC alleges that Axiall and other defendants failed to fulfill their duty to disclose because Axiall and other defendants’ warning labels failed to warn users of the cancer risks of each product and failed to provide adequate safety instructions. (FAC, ¶ 98.)

The foregoing allegations satisfy the standard articulated in Jones.

Accordingly, Axiall’s demurrer is overruled.

MOTION TO STRIKE

Axiall moves to strike all of the following portions of Plaintiffs’ FAC:

  1. Attachment A to the amendment to the Complaint for Axiall

  2. Paragraphs 59, 76 and 98 of the FAC;

  3. Prayer for Relief, page 34, line 11;

Axiall’s motion seeks an order striking Plaintiffs’ request for punitive damages against Axiall and to strike reference to “other chemical products to be determined during discovery” throughout the FAC. Plaintiffs oppose the motion.

  1. Legal Standard

Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) 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.” The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing that an objection that the complaint failed to state facts sufficient to constitute a cause of action is ground for a general demurrer, not a motion to strike.].) Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

  1. Punitive Damages

Axiall contends that Plaintiffs’ request for punitive damages must be stricken because: (1) Plaintiffs have are unable to prove “cause-in-fact” against Axiall and (2) Plaintiffs have not alleged facts that Axiall acted with malice, oppression, or fraud.

First, Axiall relies on Magallanes v. Superior Court (1985) 167 Cal.App.3d 878 (Magallanes) for the proposition that Plaintiffs were required to allege the identity of the specific defendant who provided the allegedly defective product and that this defendant acted with malice or oppression. In Magallenes, Plaintiff appealed an order granting defendants’ motion to strike punitive damages from her complaint alleging injury from long-term chemical exposure. (Id. at 880-881.) In finding that punitive damages may not be imposed in a market share liability case such as the one Plaintiff was appealing, the Magallenes court found that the following policy considerations weighed in favor of not imposing punitive damages unless Plaintiff alleged each defendant’s actions with specificity: (1) preservation of the rights of future claimants to compensatory damages, (2) potential for overkill, (3) punitive effect of numerous and substantial awards to presents and future claimants, (4) the attenuated deterrent effect of long belated awards, (5) the inherent unfairness of punitive damages in the market share scheme. (Id. at 889-890.)

Plaintiff relies on Potter v. Firestone Tire & Rubber, Inc. (1993) 6 Cal.4th 965 for the proposition that a toxic tort plaintiff may plead punitive damages even if his only alleged damages are the fear of developing cancer. However, Plaintiff’s reliance on Potter is misplaced for purposes of this motion. In Potter, the California Supreme court found with respect to punitive damages that there was sufficient evidence that Defendant acted reprehensibly. (Id. at 1004.) However, the California Supreme Court noted that the trial court’s award of punitive damages was based on a finding that Defendant was liable for intentional infliction of emotional distress, and that this finding would be reversed on other grounds. (Id.) As such, the California Supreme Court did not analyze other challenges to the propriety of awarding punitive damages in a toxic tort action. (Id.)

“Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294 subd. (c)(1).) “Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code, § 3294 subd. (c)(2).) “Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).) Having ruled on the demurrer that the complaint states a cause of action for fraudulent concealment, the pleading of fraud at this early stage is satisfied.

  1. Reference to “Other Chemical Products”

Axiall further contends that any references to “other chemical products to be determined during discovery” is improper and must be stricken pursuant to Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71. (Bockrath). For the below reasons, the court disagrees. Bockrath establishes a standard for pleading a negligence cause of action in the toxic tort context but does not stand for the proposition that an allegation of “other chemical products” is therefore improper.

In Bockrath, an individual suffering from cancer brought an action for personal injuries against 55 defendant that manufactured numerous different chemicals the individual alleges he was exposed to at the workplace. (Id. at 77.) Plaintiff’s complaint generally asserted that he was exposed to “harmful substances” and named various among the defendants manufacturers of various common products such as rubber cement. (Id.) Certain defendants demurred, contending that Plaintiff has not sufficiently alleged their conduct specifically caused or contributed to his injury. (Id. at 78.) The Bockrath court held that the a Plaintiff who alleged facts to support all of the following has sufficiently plead his complaint in toxic exposure matters: (1) Plaintiff was exposed to each toxic material claimed to cause a specific illness, (2) toxins entered Plaintiff’s body as a result of exposure to each defendants’ product, (3) Plaintiff suffers from a specific illness, and that each toxin which entered his body was a substantial factor in bringing about or aggravating the illness. (Id. at 79-80.) The Bockrath court further noted that Plaintiff may allege these facts in a conclusory fashion if their knowledge of the precise cause is limited and may plead doe defendants if their knowledge of all defendants is limited. (Id. at 80-81.)

Accordingly, it does not follow from Bockrath that the phrase “other chemicals to be determined during discovery” must be stricken from the FAC. Instead, Bockrath, taken as a whole, appears to stand for the proposition that Plaintiff must allege facts as succinctly as he knows how at inception, and that alleging facts in a conclusory fashion by, for example, not specifying all alleged toxic products, is permissible. Here, Plaintiffs have done exactly this by alleging that each Doe defendant’s alleged toxic product would be identified on the doe amendment that names each doe defendant. Further, Plaintiffs’ doe amendment as to Axiall does specifically name the product Axiall allegedly manufactured and which was allegedly toxic for Plaintiff.

Accordingly, the motion to strike is denied with respect to the phrase “other chemicals to be determined during discovery.”

CONCLUSION

Axiall’s demurrer is OVERRULED. Axiall’s motion to strike is DENIED. Axiall is to provide notice.


[1] Defendant objects to the opposition as it exceeds the page limit for an opposition memorandum without leave of court. The court will exercise its discretion this time and consider the opposition. Counsel are cautioned that they are to observe the page limits and they should not count on the court considering oversized briefs in the future.

[2] Axiall submits the declaration of its attorney Matthew S. O’Brien to demonstrate that it has sufficiently met and conferred prior to bringing the instant motion pursuant to Code of Civil Procedure section 430.41. O’Brien attests that he met and conferred with Plaintiff’s counsel, Senami Craft by telephone on November 27, 2019 regarding the issues in Axiall’s proposed demurrer and did not come to an agreement. (O’Brien Decl., ¶¶ 3-4.) Accordingly, O’Brien’s declaration is sufficient under Code of Civil Procedure section 430.41.

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