Document k9w92ekgmZ83KJ3YENBBVQrMO

1 LAW OFFICES OF JAMES H. DAVIS Attorneys at Law 2 2960 Wilshire Boulevard Los Angeles, California 90010 3 Telephone: (213) 487-7830 4 Attorneys for Plaintiff 5 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF LOS ANGELES 10 URL 08310 11 NIAOMI AMITON, etc., et al., 12 Plaintiffs, 13 -vs- 14 MACKLIN COMPANY, INC., etc., et al., 15 Defendants. 16 17 ) ) ) ) ) ) ) > ) ) ) NO. C 526841 ARGUMENT AND MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER TO THE COMPLAINT AND MOTION TO STRIKE BROUGHT BY DEFEN DENT EASTMAN CORPORATION. DATE: TIME: DEPT: August 12, 9:00 a.m. 82 1985 18 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: 19 Plaintiffs submit herewith their Argument and Memorandum of 20 Points and Authorities in Opposition to the Demurrer to the Com 21 plaint and Motion to Strike Brought by Defendant Eastman Corporation. 22 DATED: August ^ , 1985. 23 LAW OFFICES OF JAMES H. DAVIS 24 By: __________, . , 'timothy iy. Murphy 25 Attorneys for plaintiffs 26 27 28 URL 08311 1 argument and memorandum of points and authorities 2I 3 INTRODUCTION 4 The instant action is one both for wrongful death, brought 5 by the heirs of DONALD WILLIAM ACKERLEY, deceased, and a survival 6 action, brought by Barbara Ackerley, as special administratrix of 7 the estate of DONALD WILLIAM ACKERLEY. 8 Defendant EASTMAN CORPORATION seeks to remove by way of 9 Demurrer and Motion to Strike, allegations of the Complaint which 10 support punitive damages, and also seeks to strike that portion of 11 the prayer which seeks punitive damages based on the Fourth Cause of. 12 Action, which is a survival action for strict liability and negli 13 gence , 14 II 15 PUNITIVE DAMAGES MAY BE RECOVERED IN A SURVIVAL ACTION 16 Prob. Code Section 573 states: 17 "When a person having a cause of action dies before judgment, the damages recoverable by 18 his executor or administrator are limited to such loss or damage as the decedent sustained 19 or incurred prior to his death, including any penalties or punitive or exemplary damages that 20 the decedent would have been entitled to recover had he lived, and shall not include damages for 21 pain, suffering or disfigurement." 22 A statutory ground clearly exists under Section 573 for 23 decedent's estate to recover punitive damages which decedent could 24 have recovered if he had lived. 25 Courts in California have interpreted this statute liter 26 ally, and have readily awarded punitive damages. A leading case on 27 point is Dunwoody v. Trapnell (1975) 47 Cal.App.3d 368, where the 28 Court held that a claim for punitive damages can be prosecuted by 2 URL 08312 a personal representative after the death of an injured party, even if no action has been filed prior to death, as long as the injury was suffered prior to death. See also Grimshaw v. Ford Motor Com pany (1981) 119 Cal.App.3d 757, 830; Ford Motor v. Superior Court, 5 etc., Alameda City (1981), 120 Cal.App.3d 748, 753. 6 The facts in Dunwoody, where the executor of the estate did 7 recover punitive damages, are similiar to those in the instant case. 8 In this case, the estate of decedent DONALD WILLIAM ACKERLEY # seeks 9 punitive damages pursuant to pleadings set forth in the Fourth Cause 10 of Action of the Complaint. 11 Defendant EASTMAN CORPORATION claims that Plaintiffs may 12 not recover punitive damages because Code of Civil Procedure Sec. 13 377 does not authorize punitive damages for wrongful death. 14 This argument is specious. Defendant fails to recognize 15 that Plaintiffs' Complaint contains a cause of action both for 16 wrongful death, brought by the heirs of the decedent, and a survival 17 action, brought by the estate of the decedent. 18 Courts in California clearly allow a wrongful death action 19 and a survival action to be brought in the same lawsuit. This was 20 the case in Ford Motor v. Superior Court, etc., Alameda City, supra 21 at 752, for example, which held that, "The heirs of a injured 22 person who dies . . . may sue of their own behalf under the wrong 23 ful death act and on behalf of the decedent under the survival 24 statute." Furthermore, this court itself has previously permitted 25 in a case nearly identical to the one at bar, actions in wrongful 26 death and survival to be prosecuted in the same case. See, 27 Arellano v. Macklin Company, No. C 216 915 (L.A.S.C. Oct. 23, 1980) 28 (Order Overruling Demurrer and Denying Motion to Strike). 3 The present action properly pleads causes for wrongful death and survival in tandem and sets forth appropriate allegations supporting a punitive damage claim. For these reasons both defen dant's Demurrer and Motion to Strike should be denied. Ill PLAINTIFF'S COMPLAINT ALLEGES FACTS SUFFICIENT TO SUPPORT A CLAIM FOR PUNITIVE DAMAGES The Fourth Cause of Action of the Plaintiff's Complaint prays for damages and punitive damages in strict liability. it 11 incorporates various portions of other causes of action, noteably, 12 paragraphs 15 and 16 of the First Cause of Action, and paragraphs 13 21 through 23 of the Second Cause of Action. 14 Paragraph 15 of the First Cause of Action alleges 15 Defendants represented to Plaintiff's decedent, among others, that 16 Defendant's products were safe and could be used without harm. 17 Paragraph 16 contains allegations that Defendant s knew 18 or should have known that failure to properly manufacture, package, 19 design, test, inspect, analyze, merchandise, advertise, ship, 20 transport, distribute, and sell for consideration their products, 21 would be likely to cause severe harm, including death, to those, 22 including Plaintiff's decedent, who came in contact with said 23 products. 24 Paragraph 21 alleges that Defendants knew or should have 25 known if their products were not properly manufactured, compounded, 26 tested, inspected, fabricated, analyzed, merchandised, advertised, 27 promoted, labeled, warned of and sold, that they were likely to 28 cause injury to persons such as Plaintiff's decedent who were 4 URL 08313 1 exposed to such products.' 2 Paragraph 22 alleges that Defendants manufactured, sold, 3 etc., their products with the knowledge that these products were 4 defective, dangerous and unsafe. 5 Paragraph 23 concludes that "As a proximate result of the 6 defective, dangerous and unsafe condition" created by Defendants, 7 Plaintiff's decedent became ill and subsequently died. 8 In addition to the foregoing incorporated allegations, 9 Plaintiffs' Fourth Cause of Action contains the following charging 10 allegations: 11 "34. At all times herein mentioned, Defendants, 12 and each of them, were aware that the 13 above-mentioned products, if inhaled, 14 would produce illness, including carcinomas. 15 Defendants, and each of them, further were 16 aware that the above-mentioned products 17 would be used by the employees of R & G 18 Sloane Manufacturing Company, including 19 Plaintiff's decedent, in a manner directed 20 by the Defendants, and each of them. Not 21 withstanding such knowledge of the extre 22 mely toxic and dangerous nature of said 23 products. Defendants continued to manu 24 facture and sell R & G Sloane Manufacturing 25 Company said products without adequate and 26 necessary cautions, warnings, and safeguards. 27 28 Ill 5 URL 0 8 3 1 4 URL 08315 1 Defendants further failed to make proper 2 warnings with regard to said products and 3 to recall or ready to distribute products 4 to place warnings thereon." 5 "35. Plaintiff's decedent while employed by 6 R & G Sloane Manufacturing Company as a 7 machinist, was exposed to said chemicals 8 while relying upon the directions for safe 9 use prescribed by the Defendants and each 10 of them, and as a result of said exposure, 11 became ill with a condition known as 12 leiomyosarcoma, and subsequently died on 13 December 16, 1983. The Defendants, and 14 each of them, being conscious and aware of 15 the extreme dangers presented by the use of 16 said products, continued to manufacture, 17 failed to recall and failed to properly warn 18 of said products dangerous propensities. 19 Based on such willful and conscious dis 20 regard for the health, safety and general 21 welfare of the employees of R & G Sloane 22 Manufacturing Company, and specifically of 23 the Plaintiff's decedent. Plaintiffs are 24 entitled to punitive and exemplary damages 25 according to proof from the Defendants and 26 each of them." 27 Thus, in addition to allegations charging the Defendants 28 with knowledge that their product, if not properly manufactured, 6 1 tested, and labeled, etc., could be unreasonably dangerous, the 2 complaint charges further that the Defendants knowingly continued 3 to distribute and sell the product, despite its dangers, and that 4 their actions proximately resulted in the death of Plaintiff's 5 decedent. It is further charged in paragraph 35 that this "willful 6 and conscious disregard for the health, safety and general welfare 7 of (Plaintiff's decedent)" ent: les Plaintiffs to punitive damages 8 by way of punishment. 9 The imposition of punitive damages in tort actions is 10 authorized by California Civil Code, Sec. 32.94 , where the Defendant 11 has been guilty of "oppression, fraud or malice ..." 12 In the case of G. D. Searle and Company v. Superior Court 13 (1975) 49 Cal.App.3d 22, the court upheld a pleading seeking 14 punitive damages for injuries stemming from oral contraceptive 15 products manufactured by the Defendant. Although the Court of 16 Appeal ruled that the trial court erred in overruling a demurrer 17 brought by Searle, it had this to say as to the appropriate stan 18 dard for pleading punitive damages in product liability cases: 19 "If suits of the present variety call for a 20 restatement of the traditional concept, one 21 is at hand. The phrase conscious disregard 22 is sometimes used to describe the highly 23 culpable state of mind which justifys an 24 exemplary award. The majority opinion in 25 Silberg v. California Life Ins. Co., supra, 26 11 Cal.3d at page 462, 113 Cal.Rptr. at page 27 718, 521 P.2d at page 1110, declares: "In 28 order to justify an award for exemplary 7 URL 08316 'JRL 08317 1 damages, the defendant must be guilty of 2 oppression, fraud or malice. (Civ. Code, 3 Sec. 3294." He must act with the intent to 4 vex, injure, or annoy, or with a conscious 5 disregard of the plaintiff's rights." 6 In a personal injury action, the notion of 7 conscious disregard of the safety of others 8 logically may be substituted for that of 9 disregard of the rights of others. We sug 10 gest conscious disregard of safety as an 11 appropriate description of the animus malus 12 which may justify an exemplary damage award 13 when nondeliberate injury is alleged." 14 The court went on to state that the complaint in Searle 15 did not charge the defendant with knowledge of the dangerous 16 potential of its products. By contrast in the instant case, 17 Plaintiffs have precisely made such an allegation in their com 18 plaint . 19 Further, the court in Searle found fault with plaintiff 20 for not pleading that the defendant knew that its representations 21 as to the safety of its product were false, and for failing to 22 plead that the company marketed the product with the intent to 23 injure the consumers or act in conscious disregard of their safety. 24 (Searle, supra, at 32). 25 In Plaintiff's Complaint at paragraph 34 specifically 26 alleges that the Defendants, having knowledge of the dangerous 27 propensities of their product, continued to manufacture the product 28 without necessary cautions, warnings, or safeguards. 8 1 The complaint specifically alleges that defendants were 2 conscious and aware of the dangers presented by their product and 3 continued to market it in an unsafe manner in disregard thereof. 4 It further alleges that a proximate result of the "willful and 5 conscious disregard for the health/ safety and general welfare" of 6 the employees such as plaintiff's decedent, was Mr. Ackerley's 7 suffered injury. 8 Since Plaintiffs have specifically alleged "willful and 9 conscious disregard" of decedent's safety at page 11, lines 1-6, 10 precisely within the guidelines of Searle, supra, they respectfully 11 submit that Defendant EASTMAN CORPORATION'S Demurrer and Motion 12 to Strike herein should be denied. 13 One of the more recent cases dealing with the sufficiency 14 of pleading and punitive damages situations is Taylor v. Superior 15 Court, (1979) 24 Cal.App.3d 890. In that case, the court stated 16 at page 895, that: 17 "We concur with the Searle observation that 18 a conscious disregard of the safety of others 19 may constitute malice in the meaning of 20 Sec. 3294 of the California Civil Code." 21 The defense relies upon decisional authorities for the 22 general propostion that factual allegations must be specifically 23 pled in order to support a claim for punitive damages, citing, at 24 page 7 of the Memorandum of Points and Authorities, the cases of 25 Blegen v, Superior Court (1981) 125 Cal.App.3d 959, 963, and 26 Cyrus v. Havson (1976) 65 Cal.App.3d 306. 27 The Blegen case states that as long as actual allegations 28 are made, "absence of the labels 'willful', 'fraudulent'. 9 URL 08318 1 'malicious' and 'oppressive' from the complaint, does not defeat 2 the claim from punitive damages." The court in Cyrus held that, 3 because the plaintiffs complaint madeno general or specific alle 4 gations of wrongful motive, intent, or purpose, the complaint did 5 not state a cause of action for punitive damages. 6 While defendant's contention that factual allegations 7 must be pled in order to support a claim for punitive damages may 8 be a valid general proposition, the implication that plaintiff's 9 complaint in the instant case does not contain sufficient factual 10 allegations is ocmpletely meritless. 11 It is clear that the complaint herein contains facts and 12 allegations amounting to malice, within the parameters of the 13 Blegen, Cyrus, Searle, and Taylor cases. In essence, the complaint 14 alleges that: 15 1. Defendants were in the business of manufacturing the 16 subject products? 17 2. Based on their expertise, persons such as Plaintiff's 18 decedent relied on their care, skill and judgment? 19 3. That the Defendants knew that their products, if not 20 properly compounded, manufactured, tested, sold, labeled, etc., 21 would be extremely dangerous to persons such as Plaintiff's 22 decedent; 23 4. The Defendants in fact produced a chemical which was 24 negligently and defectively manufactured, sold, packaged, etc., 25 and in fact failed to adequately warn or label the product as to 26 its dangers? 27 5. The Defendants, having knowledge that the products, 28 manufactured in such a defective manner and defectively labeled, 10 URL 08320 1 could cause injury, consciously disregarded safety and welfare of 2 the public, and continued to sell and market the product despite 3 this awareness? 4 6. That this course of conduct amounts to malice and 5 justifies the imposition of punitive damages. 6 As stated in Nolin v. National Convenience Stores, 7 (1979) 95 Cal.App.3d, 279, at page 286: 8 "Malice is found in the intention to perform 9 an act which the actor knows or should know 10 will very probably cause harm." (emphasis 11 added). 12 Indeed, plaintiffs have pled that defendants knew the 13 product was dangerous but continued to market the same despite this 14 awareness. Plaintiffs have pled that this conduct amounts to 15 malice justifying the imposition of punitive damages. . For this 16 reason, it is submitted that sufficient facts and allegations are 17 contained in the complaint to support this allegation and justify 18 a finding of malice and the imposition of punitive damages. For 19 this reason it is submitted that the Demurrer and Motion to Strike 20 should be overruled. 21 22 IV 23 CONCLUSION 24 Based on the foregoing Arguments and Points and 25 Authorities, it is respectfully submitted that a claim for punitive 26 damages is properly included in Plaintiffs Complaint. For this 27 III 28 III 11 1 reason both the Demurrer and Motion to Strike should be denied. 2 DATED: August 1985. 3 4 LAW OFFICES OF JAMES H. DAVIS 5 6 bY : TIMOTHY D J MURPHY 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 URL 08321 12 VERIFICATION STATE OF CALIFORNIA, COUNTY OF 1 have read ihe foregoing______ _______ and know its contents (8 CHECK APPLICABLE PARAGRAPH 1 am a party to this action. The matters stated in it are true of my own knowledge except as to those matters which are slated on information and belief, and as to those matters I believe them to be true. I am 0 an Officer 0 a partner0 aof_____________________________________________ a party to this action, and am authorized to make this verification for and on its behalf, and I make this verification for that reason I have read the foregoing document arid know its contents. The matters staled in it are true of my own knowledge except as to those matters which are stated on information and belief, and as to those matters I believe them to be true. I am one of the attorneys for.,,______________________________________________ _ a party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices, and I make this verification for and on behalf of that party for that reason. I have read the foregoing document and know its contents. I am informed and believe and on that ground allege that the matters slated in it arc true. Executed on____________________ , 19___ . at______________________ ______________________ California I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. ACKNOWLEDGMENT OF RECEIPT OF DOCUMENT (other than summons and complaint) Signature Received copy of document described as on. 19. PROOF OF SERVICE BY MAIL Signature STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the county nf LOS Angeles________________________ 1 am over the age of IS and not a party to the within action; my business address isc Los Angeles, California________________________________________ pn August 5, 19_85 , scrved lhe forcgoing document described ** ARGIKENT AND MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEMURRER TO THE COMPLAINT AND MOTION TO STRIKE BROUGHT BY DEFENDANT EASTMAN CORPORATION An the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid in the United States mail *i Los Angeles, California__ addressed as follows: (SEE ATTACHED PROOF OF SERVICE LIST) pa a (BY MAIL) I caused such envelope with postage thereon fully prepaid to be placed in the United States mail Los Angeles,California. (BY PERSONAL SERVICE) 1 caused such envelope to be delivered by hand to the offices of the addressee Executed on Auqus t 5 19. 85 at. Los Angeles, California (Slate) I declare under penalty of perjury under the laws of the State of California that the above is irue and correct, (federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Reliable 120P M4, " Ct-iC'"'* $IAW i -/ , ,, ' Signature Judy Yv/Garcia PROOF OF SERVICE LIST ROPER & FOLINO 3255 Wilsbire Boulevard Suite 1700 Los Angeles, California 90010-1420 SHIELD & SMITH 5 1200 Wilshire Boulevard Suite 400 6 Los Angeles, California 90017 7 LEWIS, D'AMATO, BRISBOIS & BISGAARD Five Park - Suite 300 8 261 South Figueroa Street Los Angeles, California 90012 9 CHASE, ROTCHFORD, DRUKKER & BOGUST 10 Fifth Floor 700 South Flower Street 11 Los Angeles, California 90017 12 McCLINTOCK, KIRWAN, BENSHOOF, ROCHEFORT & WESTON 13 611 West Sixth Street, Suite 2100 Los Angeles, California 90017 14 HILL, GENSON, EVEN, CRANDALL & WADE 15 505 Shatto Place Los Angeles, California 90020 16 URL 08323 17 18 19 20 21 22 23 24 25 26 27