Case Number: 19STCV05970 Hearing Date: January 21, 2020 Dept: 24

Defendants Axiall Corporation and PPG Industries Inc.’s demurrers are SUSTAINED with leave to amend as to the fourth cause of action. Defendants’ motions to strike are MOOT as to punitive damages. Defendants’ motion to strike specific language concerning the chemicals at issue in the case are DENIED.

On February 21, 2019, Plaintiffs Marvin and Laurie Tarnol (“Plaintiffs”) initiated the instant toxic tort suit. The operative First Amended Complaint (“FAC”) states 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. The FAC was initially brought against Defendant United Fabricare Supply Inc. Several doe amendments were made during the course of litigation, including against Defendants Axiall Corporation (“Axiall”) as doe 2 and PPG Industries Inc. (“PPG”) as doe 3.

The FAC alleges that Marvin worked at dry cleaning facilities from 1950 through 1980. Plaintiff was diagnosed with bladder cancer in 2017. In the course of his work, he was exposed to various chemicals, including Perchloroethylene, that led to bladder cancer and other serious injuries. Defendants are the importers, producers, or distributors of the toxic chemicals.

On October 7, 2019, PPG and Axiall (“Defendants”) filed identical demurrers and motions to strike. On January 3, 2020, Plaintiff filed joint oppositions. On January 8, 2020, Defendants filed joint replies.

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [internal citations omitted].)

A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

Meet and Confer

Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP §§ 430.41, 435.5.) Counsel’s declaration satisfies the meet and confer requirement. (O’Brien Decl. ¶¶ 2-6.)

Extrinsic Evidence

Defendants object to Plaintiff’s inclusion of extrinsic evidence in their opposition. The Court agrees that Plaintiff’s declaration includes only extrinsic evidence, not subject to judicial notice. Accordingly, the Court will not consider the exhibits for the merits of the motions, beyond a potential offer of proof for amendment.

Demurrer: Fourth Cause of Action for Concealment

Defendants demur to the fourth cause of action for fraudulent concealment on the grounds that the elements are not specifically plead.

“‘[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.’ [Citations.]” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 868.)

Defendants argue that the generic allegations fail to state any specific duty or conduct involving them. As doe defendants, they were incorporated into the FAC and are included in the definition of Defendants. (FAC ¶ 3.) The does are identified as manufacturers, suppliers, distributors, retailers, trademark owners, and other entities in the chain of distribution of the chemicals that caused Plaintiff’s cancer. (FAC ¶¶ 5, 70.) The FAC generally states that Defendants fraudulently concealed the carcinogenic nature of the chemicals. (See FAC ¶¶ 12-16.)

Although the general rule states that a fraud claim must be specifically pleaded, less specificity as to fraud claims is required if it appears from the nature of allegations that defendant must necessarily possess full information, or if the facts lie more in the knowledge of opposing parties. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384-1385 [“it does not appear necessary to require each of the 38 plaintiffs to allege each occasion on which an agent of either defendant could have disclosed …. Surely defendants have records of their dealings with the plaintiffs”] accord Bushell v. JPMorgan Chase Bank, N.A. (2013) 220 Cal.App.4th 915, 931 [“plaintiffs did not have to specify the … personnel who prepared these documents because that information is uniquely within … [defendant’s] knowledge”].) “‘[T]he courts should not … seek to absolve the defendant from liability on highly technical requirements of form in pleading. Pleading facts in ordinary and concise language is as permissible in fraud cases as in any others, and liberal construction of the pleading is as much a duty of the court in these as in other cases.’” (Appollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 242.) Additionally, the rule of specificity of pleading is intended to apply only to affirmative representations and not to fraud by concealment. (See Alfaro, supra, 171 Cal.App.4th at 1384.) As the Alfaro court observed: “it is harder to apply [the requirement of specificity] to a case of simple nondisclosure. ‘How does one show “how” and “by what means” something didn’t happen, or “when” it never happened, or “where” it never happened?’ ” (Ibid.)

A failure to disclose a material fact can constitute actionable fraud. (Collins v. eMachines, Inc. (2011) 202 Cal.App.4th 249, 255, 259 [finding plaintiffs sufficiently pled common law fraud in connection with defendant’s failure to disclose a material fact].) A duty to disclose material facts arises in several discrete circumstances: (1) when the defendant is in a fiduciary relationship with the plaintiff (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. (LiMandri v. Judikins (1997) 52 Cal. App. 4th 326, 336; see Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294 [a duty to disclose may arise when “the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff.”]; see also Jones, supra, 198 Cal.App.4th 1187, 1198-99 [stating that the general rule that “ ‘manufacturers have a duty to warn consumers about the hazards inherent in their products’ ” is “equally pertinent to the scope of the defendants’ duty to disclose”].)

Such rules would tend to apply in cases of toxic torts, where a plaintiff would not necessarily know who in a corporation made what decisions regarding concealing the toxic nature of chemicals produced. This was discussed by the court in Jones v. ConocoPhillips (2011) 198 Cal.App.4th 1187. There, in the context of a toxic tort, the Second District held that concealment is sufficiently pled when the complaint as a whole provides sufficient notice of the claims against defendants. (Id. at 1200.) The court discussed the above case law, and applying it to the case at hand, found that the plaintiff stated a claim for concealment. The court discussed that the principals apply to allegations concerning a manufacturer’s duty to disclose. Jones found the following allegations were sufficient:

Here, the amended complaint alleges defendants were “aware of the toxic nature of their products” and “owed a duty to disclose the toxic properties of their products to [Carlos] because [they] alone had knowledge of material facts, to wit the toxic properties of their products, which were not available to [Carlos].” It also alleges defendants owed a duty to disclose because they “made representations regarding their products, but failed to disclose additional facts which materially qualify the facts disclosed, and/or which rendered the disclosures made likely to mislead [Carlos].” These conclusory allegations are supplemented with respect to the single compound, DMF. The Joneses cite studies published as early as 1969 attesting to DMF’s toxicity, several years before Carlos began working at Goodyear where he was exposed to the Dow product containing DMF.

At a minimum, the amended complaint states a viable claim for fraudulent concealment against Dow Chemical, the manufacturer of the product Polymide 2080–D/DHV, which allegedly contained DMF. The Joneses have alleged DMF was known to be hazardous as early as 1969, and Dow Chemical concealed the toxic properties of their product, which Carlos would not have used had he been fully advised of its toxicity.

(Ibid.)

The court then elaborated that the allegations were sufficient against other named defendants (aside from Dow):

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

(Ibid.) Thus, the Jones court, applying a lessened pleading standard, found the allegations sufficient where there was a factual basis alleged for the Defendants’ knowledge of the danger posed by their products.

Plaintiffs assert that they have pled sufficient facts to establish a duty against Defendants, under either statutory or common law duties. The Court agrees that a duty could be stated on these bases, but the current factual allegations are insufficient. The FAC does not establish facts that these particular Defendants had sufficient knowledge to support this duty. The FAC provides a generic allegation that Defendants were aware of the carcinogenic nature of their products. (FAC ¶ 72.) Plaintiff alleges that he was exposed to the chemicals from the 1950s to the 1980s. (FAC ¶ 6.) Unlike Jones, there are no specific factual support that any defendant, let alone these Defendants, knew that the chemicals at issue were carcinogenic or otherwise dangerous during the relevant time period. (See e.g. FAC ¶¶ 72-76.) While the pleading standards are relaxed, Plaintiffs have not alleged facts to justify their conclusory allegations regarding Defendants’ knowledge. This, in part, is due to the nature of doe amendments and allegations concerning the does. It is natural that only generic allegations would exist as to doe defendants. Therefore, the Court finds that amendment would be proper here.

Accordingly, Defendants’ demurrers are SUSTAINED with leave to amend.

Motion to Strike: Punitive Damages

The motion to strike is moot per the ruling on demurrer.

Motion to Strike: Specific Allegations Concerning the Toxic Chemicals

Defendants both move to strike language concerning Percloroethylene and other chemical products to be determined during discovery. (See e.g. FAC ¶ 7.) Defendants argue that the generic product allegations do not meet the toxic tort pleading requirements set forth in Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71. Under Bockrath, to state causation in a toxic tort suit, a plaintiff must allege (1) exposure to each toxic material claimed to have caused a specific illness; (2) injury caused by a specific product and the toxin(s) it contains; (3) exposure resulting in the introduction of toxins into the body; and (4) each toxin that entered the body was a substantial factor in bringing about, prolonging, or aggravating a specific illness. (Id. at 80.) Relevant here, the plaintiff “must identify each product that allegedly caused the injury. It is insufficient to allege that the toxins in defendants’ products caused it.” (Ibid.)

The above authority does authorize the Court to strike relevant facts concerning the toxins which caused Plaintiffs’ injuries. The allegations concerning the chemicals are not irrelevant, improper, or false. Bockrath does not hold that a plaintiff cannot allege specific chemicals/toxins caused their injuries. This would not make sense, since Bockrath instructs plaintiffs to specifically plead the toxins that entered the body and caused damage, i.e., the very allegations that Defendants seek to strike here. Essentially, Defendants are moving to strike allegations on the grounds the allegations are relevant, but insufficient to state a claim. Whether Plaintiffs’ claims are well-stated, which was the issue in Bockrath, is a separate issue from whether a plaintiff may make the factual allegations that Defendants target here. This would be the realm of a demurrer against the cause of action, not a motion to strike particular language that helps form the basis of the claim.

Bockrath also does not instruct that a generic allegation concerning the chemicals or toxins would be irrelevant, false or improper. Rather, Bockrath states that generic allegations would be insufficient to establish causation, an element of negligence.

Accordingly, Defendants’ motions to strike are DENIED as to this language.

Moving party is ordered to give notice.