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Ofelia Jones et al v. Conocophillips Etc

August 30, 2011

OFELIA JONES ET AL., PLAINTIFFS AND APPELLANTS,
v.
CONOCOPHILLIPS ETC., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Los Angeles County, Zaven V. Sinanian, Judge. (Los Angeles County Super. Ct. No. BC421474)

The opinion of the court was delivered by: Perluss, P. J.

CERTIFIED FOR PUBLICATION

Reversed.

Carlos Jones died in 2008 from diseases of the heart, liver and kidneys that his wife, Ofelia Jones, and surviving children (the Joneses) attribute to his exposure to multiple chemical products with which Carlos*fn1 worked during his employment by The Goodyear Tire and Rubber Company (Goodyear) and The Upjohn Company (Upjohn). In 2009 the Joneses sued 19 manufacturers*fn2 of 34 chemical products alleging each product identified in the complaint contained toxins that were a substantial factor in causing Carlos's illness and death. This appeal arises from the judgment of dismissal entered after the trial court sustained certain of the defendants' demurrers to the first amended complaint,*fn3 which were principally grounded on the contention the Joneses had failed to plead causation of Carlos's injuries with the specificity required by the Supreme Court in Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71 (Bockrath). Contrary to the contention of the defendants and the ruling of the trial court, at the pleading stage the Joneses need not identify the specific toxin contained in each hazardous product to which Carlos was exposed that was a substantial factor in causing his illness to state a viable products liability claim. Accordingly, we reverse.

factual and procedural background

On September 10, 2009 the Joneses filed a complaint alleging causes of action for negligence, strict liability failure to warn, strict liability design defect, fraudulent concealment, breach of implied warranties and loss of consortium. Two defendants demurred to the complaint on the ground it failed to comply with the requirements of Bockrath. They contended that, by suing the makers of every chemical Carlos had worked with during his employment by Goodyear and Upjohn and claiming all the products had caused his illnesses, the complaint failed to allege specific facts with respect to any one product and was thus defective. The court sustained the demurrers with leave to amend.

The Joneses filed a first amended complaint on February 5, 2010 naming the identical defendants and products and asserting the same causes of action. With respect to causation, the amended complaint alleges,*fn4 Carlos "worked with and was exposed to [these] products," which "contained significant concentrations of organic solvents and other cardiotoxic, hepatotoxic, nephrotoxic and other toxic chemicals." During the course of his employment, Carlos "was exposed to toxicologically significant levels of these chemicals. As a direct and proximate result of said exposure to said toxic chemical products, [Carlos] sustained serious injuries to his internal organs, including chemically induced cirrhosis of the liver, chemically induced cardiomyopathy and chemically induced kidney failure. . . . [Carlos] died of his injuries on April 1, 2008."

Additionally, "[a]s a result of [Carlos's] exposure to the foregoing toxic chemical products, toxins within said toxic chemicals entered [Carlos's] body. [¶] . . . [¶] Each of the foregoing toxic chemical products contain organic solvents and cardiotoxic, hepatotoxic, nephrotoxic and other toxic chemicals, which by and through their cardiotoxic, hepatotoxic and nephrotoxic nature, caused [Carlos's] chemically induced cirrhosis of the liver, chemically induced cardiomyopathy and chemically induced kidney failure and other injuries. Each toxin that entered [Carlos's] body was a substantial factor in bringing about, prolonging, and aggravating [Carlos's] chemically induced cirrhosis of the liver, chemically induced cardiomyopathy and chemically induced kidney failure and other injuries."

To illustrate the toxic effects of one chemical to which Carlos was exposed, dimethylformamide (DMF), contained in a Dow Chemical product marketed under the name of Polymide 2080-D/DHV, the amended complaint cites pathology studies identifying the hepatotoxic, nephrotoxic and cardiotoxic effects of DMF. The amended complaint does not specifically address the purported toxic effects of any other chemical and alleges only that "the toxicity of various organic solvents to the liver and kidney has long been recognized."

Several of the defendants demurred to the amended complaint. At a hearing on April 26, 2010 the trial court sustained the demurrers without leave to amend on three grounds: (1) the cause of action for fraudulent concealment failed because none of the defendants owed Carlos a fiduciary duty giving rise to a duty of disclosure, and the amended complaint failed to allege the circumstances of the alleged concealment with adequate specificity; (2) the amended complaint failed to establish privity between the Joneses and defendants sufficient to support a breach of implied warranty cause of action; and (3) the amended complaint was not sufficiently specific to apprise defendants of the particular toxins and products that allegedly caused Carlos's illnesses. A judgment of dismissal was entered in favor of the demurring defendants on May 21, 2010.

contentions

The Joneses contend the amended complaint alleges sufficiently specific facts to establish causation for all their causes of action against defendants and properly pleaded the concealed facts and duty of disclosure necessary to support their cause of action for fraudulent concealment. In addition, they contend Carlos was in privity with his employers Goodyear and Upjohn and they are therefore entitled to bring a claim for breach of implied warranties.

discussion 1. Standard of Review

On appeal from an order dismissing an action after the sustaining of a demurrer, we independently review the pleading to determine whether the facts alleged state a cause of action under any possible legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) We give the complaint a reasonable interpretation, "treat[ing] the demurrer as admitting all material facts properly pleaded," but do not "assume the truth of contentions, deductions or conclusions of law." (Aubry, at p. 967; accord, Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) We liberally ...


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