Case Name: Spalding, et al. v. Certainteed Corporation, et al.
Case No.: 1-14-CV-269443
Plaintiffs Alan and Linda Spalding (“Plaintiffs”) allege that numerous defendants contributed to Mr. Spalding’s exposure to asbestos-containing products, causing him to develop an asbestos-related illness. Plaintiffs assert the following causes of action in their complaint: (1) negligence; (2) products liability; (3) negligence; (4) aiding and abetting battery; (5) concert of action; (6) fraud and deceit/concealment; (7) fraud and deceit/intentional misrepresentation; and (8) loss of consortium.
Currently at issue are the demurrer of defendant Taylor Morrison Services, Inc. (“Taylor Morrison”) to the third and eighth causes of action and the motion to strike of defendant FDCC California, Inc. (“FDCC”).
- Taylor Morrison’s Demurrer
Taylor Morrison demurs to the third cause of action for negligence on the grounds that it fails to state a claim and is uncertain (Code Civ. Proc., § 430.10, subds. (e) and (f)) and to the eighth cause of action for loss of consortium on the ground that it fails to state a claim (Code Civ. Proc., § 430.10, subd. (e)).
In support of their claims against Taylor Morrison, Plaintiffs allege that Taylor Morrison owned, leased, maintained, managed, and/or controlled premises at “[v]arious housing tracts in Santa Clara County, CA, including: Shallow Brook Tract, Almaden Valley, San Jose, CA” where Mr. Spalding and/or his father, Henry Spalding, were present. (Complaint, ¶ 40.) In an exhibit to their complaint, Plaintiffs state more specifically that Mr. Spalding was at the Shallow Brook Tract in connection with his work as a plumber for an entity known as “Devrell.” (See Complaint, Ex. A, p. 61.) Taylor Morrison and other defendants caused asbestos- and silica-containing insulation and other products to be used by workers in a fashion that caused the release of dangerous quantities of toxic asbestos fibers and other toxic substances into the air, exposing Mr. Spalding and others present at the premises to a hazardous and unsafe condition. (Complaint, ¶ 42.) The defendants’ actions violated a property owner, contractor, or other person’s duty of ordinary care to manage premises in a fashion that provides for a safe work environment and avoids exposing persons to an unreasonable risk of harm. (Complaint, ¶¶ 41, 50.) Mr. Spalding developed an asbestos-related illness as a result of this conduct. (Complaint, ¶ 64.)
Taylor Morrison contends that these allegations demonstrate that Plaintiffs’ claims are barred by workers’ compensation exclusivity, because Devrell was an independent contractor and Taylor Morrison is a residential home developer that hired Devrell rather than employing Mr. Spalding directly. As an initial matter, these asserted facts are not set forth in the complaint, which does not allege the details of Mr. Spalding’s employment relationship to Taylor Morrison or Devrell or address Taylor Morrison’s and Devrell’s contractual relationship with one another. Further, the authority cited by Taylor Morrison does not support the conclusion that a claim by an independent contractor’s employee against an entity that hired the contractor is always barred by workers’ compensation exclusivity. (See McCarty v. Department of Transportation (2008) 164 Cal.App.4th 955, 973 [while Privette v. Super. Ct. (Contreras) (1993) 5 Cal.4th 689 bars employees of a hired contractor from seeking recovery against the hiring person pursuant to the “peculiar risk” doctrine, a person who hires an independent contractor may be liable to the contractor’s employees under the “retained control” doctrine].) Accordingly, Taylor Morrison’s argument that the demurrer should be sustained based on workers’ compensation exclusivity lacks merit.
Taylor Morrison also contends Plaintiffs fail to state facts adequate to support each of the elements of a claim for negligence. However, as discussed above, Plaintiffs allege that Taylor Morrison owed them a duty associated with its ownership or control of premises at which Mr. Spalding was exposed to asbestos, that it breached this duty, and that Mr. Spalding became ill as a result.[1] (See Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 363, 367 [a person is liable for injuries caused by his or her want of ordinary care in the management of his or her property]; Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682 [recognizing that a worker exposed to asbestos on a job site may bring a premises liability action against the property owner]; Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117 [premises liability plaintiff may generally allege “defendant’s negligent management and maintenance of his property”].) Plaintiffs thus state a claim for negligence.
Taylor Morrison argues that under Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71 (hereinafter, “Bockrath”), Plaintiffs must identify the specific product or activity that exposed Mr. Spalding to asbestos and plead Taylor Morrison’s direct association with that product or activity. Bockrath, however, is a products liability case and is not directly applicable to this action, where Taylor Morrison’s control over specified premises rather than its production of a particular product is at issue. (See id. at pp. 79-80 [noting that the particular standard it discussed was developed in the products liability context]; Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, 102 [as a products liability case, Bockrath was inapplicable to a negligent misrepresentation claim against the author and disseminator of information regarding a product].) Bockrath applied the principle that where the facts pleaded do not naturally give rise to an inference of causation, “the plaintiff must allege facts, albeit as succinctly as possible, explaining how the conduct caused or contributed to the injury.” (Id. at p. 78.) It recognized, however, that plaintiffs may allege such facts “in a conclusory fashion if their knowledge of the precise cause of injury is limited.” (Id. at p. 80.) Here, Plaintiffs have adequately tied Taylor Morrison to Mr. Spalding’s injuries by alleging that he was exposed to asbestos while working on property it controlled. Bockrath “rejected the argument … that a complaint is unacceptably speculative if a plaintiff has not specifically identified which toxin contained in a particular product caused the alleged injury or has sued the manufacturers of multiple products,” finding that a plaintiff may allege that a number of products “contained toxins that were substantial factors in causing his injury.” (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1195.) The complaint here takes a comparable approach by alleging that a number of asbestos exposures contributed to Mr. Spalding’s injuries. Along the same lines, Taylor Morrison’s complaint that the third cause of action includes a number of other defendants does not establish that Plaintiffs have failed to state a claim. (See Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1196 [“The Bockrath court recognized that the plaintiffs may genuinely lack information about the specific cause of their injury and should not be barred from pursuing their claims. [Citation.] The court instructed courts and litigants that the remedy for improperly speculative pleading [against numerous defendants] is provided by subdivision (b) of section 128.7, which imposes an obligation on an attorney or unrepresented party to ensure factual allegations are made in good faith and have, or are likely to have, ‘evidentiary support after a reasonable opportunity for further investigation or discovery.’ ([Code Civ. Proc.] § 128.7, subd. (b)(3).)”].)
In light of the above, the demurrer to the third cause of action is OVERRULED.
Taylor Morrison contends that the eighth cause of action for loss of consortium fails because it is derivative of the third cause of action, but does not otherwise challenge the former claim. For the reasons already discussed, the demurrer to the eighth cause of action is OVERRULED.
Finally, the demurrer on the ground of uncertainty is OVERRULED. Uncertainty is a disfavored ground for demurrer and a demurrer on this ground is typically sustained only where the pleading is so unintelligible that the defendant cannot reasonably respond. (See Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616 [“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”].) Here, Plaintiffs’ third cause of action is alleged clearly enough to enable a response, as demonstrated by the discussion above.
- FDCC’s Motion to Strike
FDCC moves to strike certain references to punitive and exemplary damages from the complaint. (Code Civ. Proc., § 436.)
FDCC’s request for judicial notice of the complaint and of its California Secretary of State “Business Entity Detail” listing is GRANTED. (See Evid. Code, § 452, subds. (c), (d), and (h); Pedus Building Services, Inc. v. Allen (2002) 96 Cal.App.4th 152, 156 [granting request for judicial notice of the official records of the California Secretary of State]; Scott v. JP Morgan Chase Bank (2013) 214 Cal.App.4th 743, 753 [taking judicial notice of agreement posted on a government agency’s website].)
FDCC correctly contends that the omissions alleged by Plaintiff do not rise to the level of malice, oppression, or fraud. (See Civ. Code, § 3294, subd. (c) [malice or oppression supporting a claim for punitive damages require intent to injure or despicable conduct carried out in conscious disregard of a person’s rights or safety]; Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 [specific factual allegations are required to support a punitive damage claim]; Grieves v. Super. Ct. (Fox, et al.) (1984) 157 Cal. App. 3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.”]; Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64 [underlying facts associated with gender discrimination claim alleging that employer failed to take actions to alleviate a hostile work environment did not rise to the level of malice, oppression, or fraud].) In addition, Plaintiffs fail to allege that an officer, director, or managing agent of FDCC authorized, directed, or ratified the conduct at issue as required to state a claim for punitive damages against a corporation. (See Civ. Code, § 3294, subd. (b).) Accordingly, FDCC’s motion to strike is GRANTED WITH 10 DAYS’ LEAVE TO AMEND.
The following language is hereby struck from the complaint:
-“Accordingly, plaintiff is entitled to recover punitive damages from FDCC.” (Complaint, p. 18, ¶ 39, l. 25.)
-“FDCC CALIFORNIA, INC.” (Complaint, Prayer for Relief, p. 57, ¶ 6, ll. 24-25.)
[1] Plaintiffs also plead alternative theories of liability in support of their third cause of action. However, the Court need not address each theory given that Plaintiffs’ claim survives demurrer on their premises liability theory. (See PH II, Inc. v. Super. Ct. (Ibershof, et al.) (1995) 33 Cal.App.4th 1680, 1682 [“A demurrer does not lie to a portion of a cause of action.”].)
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