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 a Other - Environment case was filed by MARGARITA BENITEZ against DOES 1 TO 250 in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5451

  • Filing Date:

    02/26/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Environment

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • 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 Yet Classified

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

BOTROS SAMANTHA

RAMSEY LARRY

Not Yet Classified 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

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.