Preview
FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017
NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/16/2019
EXHIBIT 34
FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017
NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/16/2019
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Heaitii Hazard
HETA 85-171-1710
HYalnation
'INTERNATIONAL BAKERS SERVICES, INC,
Heport SOUTH BEND, INDIANA
~D
CA 00099
FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017
NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/16/2019
PREFACE • ......
. # *
I
tance Branch of NIOSH conducts field
The Hazard Evaluations and Technical Assis
rds in 'the workplace. These
investigations of possible health haza
authority of Section 20(a)(6) of the
_ investigations ere conducted under the
, 29 U.S.C. 669(a)(6) which
• Occupational Safety and Real'th Act of 1970 n Services, following a written
Huna
. authorizes the Secretary of Health and
d representative of employees, to
request from any employer or authorize
found in the place of employment has
determine whether eny substance normally or found.
entrations as used
potentially toxic effects in such conc
upon
Assistance Branch also provides,
The Hazecd Evaluations and Technical l and cons ultat ive
l hygiene technica
request, medical, nursing, and industria
loee l agen cies; labo r; indu stry end
and
assistance (TAJ to Federal, state, to
rol occupational health hazards and
other groups or individuals to' cont
se.
. prevent related trauma and disea
J
'
titute endorsement by the
• 'tuanv :: »ncs «r products does not cons
".••»»: . and Health.
in .or 'ftcopationel Safety
K
CA 006100
FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017
NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/16/2019
.:•••*• —
KETA 85-171-1710
July 1986 NIOSH INVESTIGATORS
:
INTERNATIONAL BAKERS Rob S. HcConnell,
SERVICES, INC . M.D.
FOUTH BEND, INDIANA : Richard W. Hartlc, C.l.H.
I- SUMMARY
On February 7. 198
5, the National Institu
te
Cor Occupational Saf
Health (NIOSH) rece ety and
ived a request from
International Bakers
Inc.; South Bend,
Indiana Services,
, for a health haz
ard evaluation.
non- smoking, previou Two young,
sly healLhy employees
. in the "mixing room"
developed severe, fixe had
d obstructive lung dise
employment. ase within one year
The onset was insidio of
us, but one second
volume (FEV^) had forced expiratory
dec lined to 1.2' liters and 0.7 liters,
respectively, in these
two workers within
symptoms three months of ons
(eight months et of-
from starLing work
minimal response in the plant). There was
to bronchodilators
, and there was no
improvement after 1 significant,
and 1 1/2 years, res
plant. pectively, away from
Forced vita l capacity and
the
total lung capacity were
less affected,and diffusing capacit relatively
y initially was norm
pathoLogical conf irma al. Although
tion was not availab
more compatible with le, the clinical pic
ture was
3
bronch iolitis obliterans than with emphysema.
On Harch 12, 1985, the NLOSH investigators
the process visited the plant
and to interview the to review
affected workers.
a Large open room where The mixing room is
three employees
weigh and load a
of fragrances, flav large variety
orings, starch, and SO-
to 100- pound bags
into one of three of flour
mixers. The Loading and mixing
considerable dust, previou tasks generate
sly measured to be 20 mg/m
employees used a supplied-a.ir res
3. Although
pirator whi
le adding ingredie
the mixers, it was nts to
not always worn dur
ing some clean-up act
Review of chemicals ivities.
used in the plant
identified no subs Lanc
be associated with es known to
bronchiolitis obliter
ans or emphysema.
rafter and other set SampLes of
tled dust, of the
foam lining to the
used by the two affected respirator
employees, and of batches
affected of mixes made by one
employee in the wee
k prior to his firs
were collected and t noticing symptoms,
assayed for proteo
lytic activity and
levels. Immunologic evaluat for endotoxin
ion of Lhe two
affected employees
unremarkable concen revealed
trations of toLai and
IgE and total immuno specific (to various
globulin. antigens)
The sera of both case
non- exposed controls s and of two
precipitated non- spe
"Cinna Butter" and vari cif ical Ly wiLh extracts
ous dust samples. of
Although bakers are
known to develop asth
been shown "to have ma, and grain workers
an accelerated dec have
line in FEV^ and an
prevalence of chro increased
nic bronchitis in
previous reports cpid nmio logic studies,
(to our knowledge) there arc no
of similar catastrophic,
CA 000101
FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017
NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/16/2019
unexplained obstructive pulmonary disease in the bakery or bakery
} services industry.
Based on the results presented in this report, the investigators
conclude that it
is probable that some agent in the mixing- room at.
International Bakers Services produced severe, fixed obstructive lung .
disease in two employees. The specific etiology was not identified.
Recommendations for engineering and work practice changes to prevent
respiratory exposure. to dusts in. the mixing room are presented in
Section VIII and Appendix B of this report.
. Keywords: SIC 2099 (Food preparations, not elsewhere classified).
bakery supplies, bakers, grains, flour, amorphous silica, flavors,
fragrances, endotoxin, proteolytic enzymes, bronchiolitis obliterans
3
CA 000102
FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017
NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/16/2019
TABLE 2
IttGBEDIESTS CCCAS10SALLY USED IV BAXEHX MIXES, 1984
' IHTE8HATI0HAL BAXEBS SERVICES
. SOUTH BEBD, XHDIAKA
HSIA 85-171 '
Acetaldehyde Butyle Butyrate
Acetic Acid Butyl Butyrl Lactate
Acetyl Propionyl Butyric Acid
Aldehyde C-6 Carole Acid
Aldehyde C-8 Capryiic Acid
Aldehyde C-9 ' Caramel color
• Aldehyde C-10 , Caramel- Color 8100 .
Aldehyde C-14 Caramel Color (Williamson)
Aldehyde C-1S Cedrol Crystals
Aldehyde C-1B • Cherry Essence ISO Fold -
ALlyl Caproate Cherry Juice
Allyl Cyclohexylpropionate Chez-Tone
Allyl Keptoate / Chocolate (PAV)
Allyl Phenoxy Acetate ' Chocolate Extract (Star Kay White)
Almond (2X) Cinnamie Alcohol
&ayl Alcohol Cinnamie Aldehyde
Asqrl Butyrate ' Cinnamon (Micra Hilled)
Amyl Caproate. Cinaaj&yl Acetate .
Amyl iso Valerate . .Cltrai (natural)
&atyl propionate citric Acid
Anethol Citronellol
Anisic Aldehyde Cocoa
Anisyl Acetate Cocoa (Ambrosia)
Apo Caroteaal 20X Coconut oil (Hatural)
Apple Essence ' Delta Deeaiaetone
Apple Juice Concentrate Dextrose
Diacetyl
B U A
Balsam Peru (Besia)
Banana Essence
C Diaeetyl (Spray Dried)
Diethyl Halonate
3
Beatreoe 8743 Ethyl 2-Hethyl Butyrate
Seatrene 2422 Ethyl Acetate
Benzaldebyde Ethyl Aceto Acetate
Benzodihydropyroaa Ethyl Benzoate
Benzyl Acetate Ethyl Butyrate
Benzyl Propionate Ethyl Caprylate
Beta Carotene 301 Ethyl Formate
Butter (Level Valley) Ethyl Heptoate
Butter Derivatives Ethyl ISO Valerate
Butter Esters Ethyl Levullate
Buttermilk Ethyl Maltol
CA 000119
FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017
NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/16/2019
. TABLE 2 (continued) '
J
INGREDIENTS OCCASIONALLY USED 19 BAKERY MIKES » 1984
. IBTERtiATlONAL BAKERS SERVICES
SOUTH BEND, INDIANA
HGIA 85-171 .
Ethyl Oeaanthate Natural Linalyl Acetate
Ethyl Dxyhydrata Natural strawberry Extender 8111P
Ethyl Propionate Natural Terpealol (super)
Ethyl Vanillin Batoeg
2-Ethyl 5 & 6 Methyl Pyrazine Oetyl ISO Bubyrate -
EugenolFlavor Blend 0581-A Oil Anise "*
Flavor Blend 8602 Oil Balsam
Flour • Oil Bitter Almond '
Furfuraidehyde Oil Cinnamon Leaf *
Gamma Dodeca lactone Oil Clove •
Gamma Octa lactone Oil Cinnamon (Cassia)
GecanyL Acetate Oil Corn . '
Gum (Kanthan) (Herezan) ' Oil Davana .
Ham Flavor Oil Grapefruit '
Heliotrcpine Oil Cualaevood
(Trans-2) Hexenole Acid Oil Lemon
Hexyl Acetate Oil lima (
Honey* (2X) oil Mandarin *
Roni-Bahe 705 Oil Nutmeg
ISO Anyl Acetate Blend Oil Orange (lx) (Valencia)
J ISO Valeraldehyde Oil Orange. (5x) (Valencia)
ISO* Valerie-Acid Oil Rose 87275
' lonone Alpha . Oil Tangerine '
Jasmin Katoc Absolute ' Oil of sage
Lactic Acid Orange Solids
Leaf Alcohol Orange Terpenaa
Lemon Solids Ortho Bethoxy Cinnamie Aldehyde
Linalool Para Cresyl Phenyl Acetate
Linalyl Aeetate ' Para hydroxy Phenyl Butanone
Linalyl Butyrate Peach Essence 150 Fold
Linalyl ISO-Valerate Peach juice Coneetrate
tfaltol . - . Peanut Butter Flavor Base
Haple Syrup (Natural) Peanut Butter Flour
Hethyl 3 Methyl Thiopropionate Phenyl Acetic Acid
4-Hethyl-5 Hydroxy Ethyl Thiazole Phenyl Ethyl Aeetate
Hethyl Aayl Ketone Phenyl Ethyl Alcohol
Hethyl Anthanilate Phenyl Ethyl Phenyl Acetate
Methyl chavieol (Estragole) Phenyl Ethyl 2-oethyl Butyrate
Hethyl Cinnamate . Phenyl Propyl Aldehyde
6-Hsthyl Coumarin Pineapple Juiee Concentrate
* Hethyl Cuelopentanolone Propylene Glycol
Hethyl Keptenone Propenyl Guaethol •
Methyl- Hep tine Carbonate Propionic Acid
V
n
CAOCOBO
FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017
NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/16/2019
' " TABLE 2 (continued)
IKCHEDIEHT5 OCCASIONALLY USED IH BAKERY HIKES, 1984 /
IBTEBB&TIOHAL BAXEHS SERVICES
SOUTH BEHD, IHDIAHA
KEEA 85-171
Ilethyl Phenyl Acetate
Pure Honey (Kitchen) •
Slid (tfon-Fat Dry)
Raspberry Juiee Concentrate
Holasses Bose name Absolute
S-3utly Acetate • ' Bum (4X)
natural Linalool Bum Base
Salt Styralyi Acetate .
Silicon Dioxide (Syloid 244) sugar (Granulated)
Sodium Benzoate Terpeniol (Super)
Sodium Citrate Terpinyl Acetate
Solid Extract Coffee 2,3.5 Triuetfayl Pyrazine
Solid Extract Foeirugreek Turmeric (T-050)
Solid Extract Lovage Vanilla Concentrate. 0065
Solid Extract St. John's Bread Vanilla Extract (IX) (Petran)
Soy Sauce Vanillin '
Starch (Corn) . . Vertraldehyde '
Starch (Tapioca) Worcestershire sauce
Strawberry Juiee Yellow 05 (F.D.C) *
Strawberry Juice Concentrate Yellow 06 (F.D.C.)
r
•y
~d
T
CA 000121
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***
Defendant brings the instant motion to compel arbitration on the basis of the RISC. Defendant
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61 Cal.4th 898 found that arbitration clauses in an automobile sales contract are not
unconscionable. Defendant thus asks the Court to compel Plaintiff to arbitrate this action before
the American Arbitration Association (“AAA”) and to stay this action pending completion of
arbitration.
In opposition, Plaintiff argues that the motion should be denied, because under McGill v. Citibank,
N.A. (2017) 2 Cal.5th 945, his claim for “public injunctive relief” under the CLRA to enjoin
Defendant’s illegal and deceptive practices is a matter of public policy not subject to arbitration.
In reply, Defendant argues that all of Plaintiff’s claims are subject to arbitration, and that Plaintiff
seeks “private” injunctive relief for the benefit of the public, not public injunctive relief. In the event
the Court finds that such claim is not arbitrable, Defendant asks the Court to sever and stay
Plaintiff’s claim for injunctive relief pending arbitration.
Analysis
Under the Federal Arbitration Act (“FAA”), the moving party on a motion to compel arbitration
must demonstrate the existence of an arbitration agreement between the parties that covers the
controversy or claims at issue. (Roes v. SFBSC Mgmt., LLC (9th Cir. 2016) 656 F. App’x. 828,
829; Knutson v. Sirius XM Radio Inc. (9th Cir. 2014) 771 F.3d 559, 565.) In determining the validity
or “the rights of parties to enforce an arbitration agreement within the FAA’s scope, courts apply
state contract law while giving due regard to the federal policy favoring arbitration.” (Pinnacle
Museum Tower Assn. v. Pinnacle Market Development, LLC (2012) 55 Cal.4th 223, 236.) “The
party seeking arbitration bears the burden of proving the existence of an arbitration agreement,
and the party opposing arbitration bears the burden of proving any defense, such as
unconscionability.” (Id.)
Plaintiff does not dispute that the FAA applies in this case, or that he entered into a written
arbitration agreement that covers the instant dispute. (See Hazrat Decl. ¶ 2, Ex. 1.) Instead,
Plaintiff opposes the instant motion solely on the basis that the arbitration agreement is invalid
based on the California Supreme Court’s ruling in McGill v. Citibank, N.A. (2017) 2 Cal.5th 945
and Mejia v. DACM Inc. (2020) 54 Cal.App.5th 691.
Plaintiff argues that he is seeking a public injunction under the CLRA to enjoin Defendant “from
continuing to make false and misleading statements to consumers regarding the sale of motor
vehicles.” (Compl. ¶ 71.) Plaintiff relies upon McGill and Mejia to argue that because California
law prohibits arbitration of claims for public injunctive relief, the arbitration provision in this case
is invalid and unenforceable. However, neither McGill nor Mejia stand for the proposition that an
arbitration provision is invalid simply because it requires arbitration of claims for which a public
injunction is a remedy or because it does not allow an arbitrator to issue a public injunction.
Rather, the arbitration provision is invalid only if it precludes the parties from seeking a public
injunction altogether, “in any forum.” (See McGill, supra, 2 Cal.5th at 961 [“Thus, insofar as the
arbitration provision here purports to waive McGill’s right to request in any forum such public
injunctive relief, it is invalid and unenforceable under California law.”] [emphasis added]; Mejia,
supra, 54 Cal.App.5th at 704 [“We concur with the trial court’s interpretation of the arbitration
clause as barring Mejia from seeking public injunctive relief ‘in any forum,’ thereby rendering the
arbitration clause unenforceable under McGill.”] [emphasis added].)
For instance, the McGill Court acknowledged that the parties had “elected in the Arbitration
Agreement to exclude public injunctive relief requests from arbitration” but noted that the case
could still go to arbitration on some of the claims asserted by the plaintiff. (McGill, supra, 2 Cal.5th
at 966.) “Moreover, case law establishes that a stay of proceedings as to any inarbitrable claims
is appropriate until arbitration of any arbitrable claims is concluded. [Citation]) Thus, arbitration of
claims the parties have agreed to arbitrate may proceed pursuant to whatever procedures the
arbitration agreement specifies, unaffected by any subsequent proceedings made necessary by
invalidation of the waiver regarding the public injunctive relief claims the parties did not agree to
arbitrate. According to the high court, “‘piecemeal’ litigation” of claims the parties have agreed to
arbitrate and claims they have not agreed to arbitrate is consistent with the FAA.” (Id.) Thus, some
of Plaintiff’s claims and requests for relief may be arbitrated and others may be tried in this Court
after arbitration is completed.
In Mejia, the trial court found that the arbitration agreement prevented plaintiff from seeking and
obtaining a public injunction in arbitration and made arbitration the only forum available to the
plaintiff. (Mejia, supra, 54 Cal.App.5th at 704.) The Court of Appeal noted that the trial court “might
have ‘saved’ the arbitration clause by ‘sever[ing] the prohibition on public injunctive relief from the
Arbitration Provision’” but could not do so due to a “poison pill” provision that restricted the right
to sever.” (Id.)
In this case, the arbitration agreement does not include any provision that prevents Plaintiff from
seeking public injunctive relief in arbitration. (See Hazrat Decl. ¶ 2, Ex. 1.) The arbitration
agreement simply states that “[a]ny award by the arbitrator shall be in writing and will be final and
binding on all parties, subject to any limited right to appeal under the Federal Arbitration act.” (Id.)
Moreover, the arbitration agreement prohibits claims, not brought on an individual basis, but as a
“consolidated, representative, class, collective, injunctive or private attorney general action.” (Id.)
It further states:
Neither you nor we waive the right to arbitrate any related or unrelated claims by filing
any action in small claims, court, or by using self-help remedies, such as repossession, or
by filing an action to recover the vehicle, to recover a deficiency balance, or for individual
or statutory public injunctive relief.
(Id. [emphasis added].) Based on the above language, the arbitration agreement only seeks to
limit the class action capacity in which an individual can bring a claim against Defendant. In other
words, the only limitation as to a public injunctive relief claim is in a class representative capacity.
This is important, because claims under the CLRA other consumer protection statutes may be
asserted as individual claims seeking public injunctive relief. (McGill, supra, 2 Cal.5th at 959;
Dicarlo v. Moneylion, Inc. (C.D. Cal. Dec. 20, 2019) 2019 U.S. Dist. LEXIS 228268, at *8 [provision
that preserved the plaintiff’s right to obtain in arbitration “all remedies available in an individual
lawsuit” did not bar public injunctive relief and was valid under McGill]; Gonzalez-Torres v.
Zumper, Inc. (N.D. Cal. Dec. 2, 2019) 2019 U.S. Dist. LEXIS 207390, at *24 [concluding that an
arbitration agreement that empowered the arbitrator to “issue any and all remedies authorized by
law” did not run afoul of McGill because “[a]lthough a plaintiff may not assert claims on behalf of
a class in arbitration, the Agreement does not prohibit plaintiff from being awarded public
injunctive relief as a remedy for his individually-asserted claims in arbitration”].) Thus, based on
the above, Plaintiff has failed to demonstrate that the arbitration agreement at issue is
unenforceable under McGill or Mejia.
In any event, the issue of which claims or disputes should be arbitrated must be decided by the
arbitrator and not this Court. In Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, the
arbitration agreement delegated “the determination of the scope or applicability of the arbitration
provision” to the arbitrator. (Id. at 891.) Under those circumstances, the Court of Appeal concluded
that “it is the arbitrator who will consider the conscionability of the agreement and the scope of
the arbitration clause, including whether the class arbitration is available under the arbitration
provision, and whether the provision purports to waive the Aanderuds’ right to seek public
injunctive relief in all forum and, if so, what impact this has on the enforceability of the arbitration
provision as a whole.” (Id. at 897; see also Henry Schein Inc. v. Archer & White Sales, Inc. (2019)
139 S.Ct. 524, 530.)
Here, the arbitration agreement delegates questions of arbitrability to the arbitrator. (Hazrat Decl.
¶ 2, Ex. 1 [“Any claim or dispute, whether in contract, tort, statute or otherwise (including the
interpretation and scope of this Arbitration Provision . . . and the arbitrability of the claim
or dispute) . . . shall, at your or our election, be resolved by neutral, binding arbitration and not
by court action.”] [emphasis added].) Thus, Plaintiff has agreed to submit to arbitration questions
of the interpretation and scope of the arbitration provision and the arbitrability of specific claims.
Accordingly, the Court grants Defendant’s motion to compel arbitration to allow the arbitrator to
determine the threshold question of which claims and disputes are to be arbitrated and then, to
arbitrate any claims or disputes the arbitrator finds to be arbitrable. All proceedings in this action
are stayed pending completion of the arbitration proceedings.
Ruling
FCS058678 - ALL BAY BUILDERS V WELTER, IAN, ET AL (DMS)
Jul 26, 2024 |
FCS058678
FCS058678
Defendants/cross-complainants’ motions to deem matters admitted and for sanctions
TENTATIVE RULING
Defendants/Cross-Complainants Ian Welter and Jennifer Welter bring 3 motions to
deem matters admitted as follows:
1) Motion to Deem Requests for Admission, Set One, Admitted as to Charles Littlefield
individually and dba All Bay Builder [sic];
2) Motion to Deem Requests for Admission, Set One, Admitted against Plaintiffs/Cross-
Defendants All Bay Builders, Inc. and
3) Motion to Deem Requests for Admission, Set Two, Admitted against Plaintiffs/Cross-
Defendants All Bay Builders, Inc.
The Complaint in this matter was filed on August 22, 2022. On February 3, 2023,
Defendants filed their Answer and Cross-Complaint. A Notice of Acknowledgment and
Receipt was executed by Plaintiff Charles Littlefield individually and dba All Bay Builder
counsel on March 27, 2023. No Proof of Service or Notice of Acknowledgment and
Receipt is contained in the court file as to Plaintiff All Bay Builders, Inc.
On May 8, 2023 a Substitution of Attorneys was filed as to plaintiff/cross-defendant “All
Bay Builders”. Plaintiff’s counsel Elizabeth Lawley substituted out of the case and All
Bay Builders was named the successor legal representative. No new attorney has
substituted into the case on behalf of any of the plaintiffs/cross-defendants. One of the
cross-defendants is a corporation and must be represented by an attorney.
On June 21, 2023, counsel for Defendants/Cross-Complainants requested the entry of
default as to All Bay Builders, Inc. and Charles Littlefield, individually and dba All Bay
Builder [sic]. The defaults were entered as to Plaintiffs/Cross-Defendants.
Page 2 of 3
On December 8, 2023 Defendants/Cross-Complainants served Requests for Admission,
Set One on All Bay Builders, Inc. On February 6, 2024 Defendants/Cross-
Complainants served Requests for Admission, Set Two on All Bay Builders, Inc. On
February 6, 2024 Defendants/Cross-Complainants served Requests for Admission, Set
One on Charles Littlefield individually and dba “All Bay Builder” on February 6, 2024.
No responses have been received to any of the requests for admission.
On June 12, 2024 the instant motions were filed.
Counsel for the moving parties has not provided any authority upon which she relies for
the principle that a defaulted party can be compelled to respond to discovery served
more than 5 months after his or their defaults were taken. Once the clerk enters a
default in the court record, that defendant is no longer able to file a response or
otherwise participate in the case. It is unclear why discovery was not served on
defendants while they were still represented or before their defaults were taken. It is
equally unclear why defendants, after losing their rights to file pleadings or defend their
position, should be forced to respond to discovery.
All three motions are denied. Sanctions are denied.
Page 3 of 3
Ruling
ARAUJO vs GENERAL MOTORS, LLC
Jul 24, 2024 |
CVPS2305503
Demurrer on 1st Amended Complaint for
ARAUJO vs GENERAL
CVPS2305503 Breach of Contract/Warranty by GENERAL
MOTORS, LLC
MOTORS, LLC
Tentative Ruling: Overruled
Defendant to file their answer within 20 days of this order becoming final.
Plaintiff to provide notice pursuant to CCP 1019.5.
This is a lemon law case. On 3/27/2024, Plaintiffs filed their operative First Amended Complaint (“FAC”)
against GM, alleging (1) violation of Civ. Code § 1793.2(d), (2) violation of Civ. Code § 1793.2(b), (3)
violation of Civ. Code § 1793.2(a)(3), (4) breach of the implied warranty of merchantability, and (5)
fraudulent inducement – concealment.
GM now demurs to the fifth cause of action for fraudulent inducement – concealment on the grounds
that it fails to state facts relevant to the elements of the claim and fails to allege a transactional
relationship giving rise to a duty to disclose. It concurrently moves to strike the demand for punitive
damages from the FAC.
In opposition, Plaintiffs argue that their FAC contains all essential elements of fraudulent inducement
– concealment cause of action, and that a “transactional relationship” is not required under California
law for the manufacturer to have a duty to disclose. With respect to punitive damages, Plaintiffs argue
that they have sufficiently alleged GM’s oppression, fraud, and malice to support punitive damages,
which are available under the Song-Beverly Act.
In reply, GM reemphasizes that it had no duty to disclose to Plaintiffs and that Plaintiffs’ allegations in
the FAC fail to establish a fraud cause of action. With respect to punitive damages. GM argues that
Plaintiffs have failed to state a viable cause of action for fraud because their fraud cause of action fails.
Demurrer
A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of action.
(CCP § 430.10(e).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation
by reading it as a whole and all of its parts in their context. (Moore v. Regents of Univ. of Cal. (1990) 51
Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly pleaded
and of facts which may be inferred from those expressly pleaded. (Crowley v. Katleman (1994) 8 Cal.4th
666, 672.) A demurrer, however, does not admit contentions, deductions, or conclusions of fact or law.
(Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) If the complaint fails to state a cause of action, the
court must grant the plaintiff leave to amend if there is a reasonable possibility that the defects can be
cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
5th Cause of Action – Fraudulent Inducement
The elements of fraudulent 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.” (Marketing West, Inc. v. Sanyo Fisher (USA)
Corp. (1992) 6 Cal.App.4th 603, 612–13.)
As concealment is a species of fraud, it must also be pled with specificity. (Blickman Turkus, LP v. MF
Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878.) Less specificity is required where the
defendant necessarily possesses the information. (Committee on Children’s Television, Inc. v. General
Foods Corp. (1983) 35 Cal.3d 197, 216.) As noted by one court, it is not practical to allege facts showing
how, when and by what means something did not happen. (Alfaro v. Community Housing Improvement
Sys. Planning Assn. (2009) 171 Cal.App.4th 1356, 1384.) However, if the concealment is based on
providing false or incomplete statements, the pleading must at least set forth the substance of the
statements at issue. (Id.)
In this case, Plaintiffs have sufficiently alleged all the elements of a fraudulent inducement –
concealment cause of action in the FAC. The FAC alleges that Plaintiffs entered into a warranty contract
with GM on 6/4/2021 (¶¶ 6–7); that GM knew of the defects posed by the subject vehicle prior to
Plaintiffs’ purchase and withheld from Plaintiffs (¶¶ 63–64, 67–70, 72); that GM had exclusive/superior
knowledge of the defects (¶¶ 65–70, 73a–73b); that the defects presented a safety hazard (¶¶ 25, 64);
that Plaintiffs would not have purchased the subject vehicle had they known about the defects (¶¶ 66,
70, 75, 78); and that Plaintiffs suffered damages (¶ 78). These allegations are sufficient, at the pleading
stage, to assert a cause of action for fraudulent inducement – concealment.
GM nonetheless argues that Plaintiffs failed to allege a duty to disclose. This argument is not
persuasive. A duty to disclose arises under four circumstances in which nondisclosure or concealment
may constitute actionable fraud: “(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.” (Bigler-Engler v. Breg, Inc. (2017) 7
Cal.App.5th 276, 311 [citation & internal quotation marks omitted].) The last three require an evidence
of some transaction, i.e. direct dealings between the plaintiff and the defendant. (Id. at 311–12.)
Here, the allegations in the FAC are sufficient for pleading purposes to demonstrate that GM and its
agents owed a duty to disclose known defects but that they purposely withheld such disclosures from
consumers, including Plaintiffs. (See FAC ¶¶ 63–74.) Plaintiffs are not required at the pleading stage to
prove the agency relationship between GM and its dealership, and there is no question that GM
communicates to consumers, at least in part, through its authorized dealers. (See, e.g., Daniel v. Ford
Motor Co. (9th Cir. 2015) 806 F.3d 1217, 1226–27.)
Moreover, in Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828 (review granted 2/1/2023,
S277568), the court addressed the sufficiency for concealment for pleading purposes in fraud in a lemon
law case. The Dhital court found that plaintiffs alleged a transmission defect in numerous vehicles,
including the plaintiff’s, the defendant knew of the defect and the hazard they posed, defendant had
exclusive knowledge of the defect and failed to disclose that information, defendant intended to deceive
plaintiffs by concealing known defects, the plaintiffs would not have purchased the vehicle if they had
known of the defects, and they suffered damages on the sum paid to purchase the vehicle.
Here, Plaintiffs’ allegations largely mirror the allegations as discussed above. (See FAC ¶¶ 25, 63–70,
72, 75, 78.) Accordingly, the Court must overrule the demurrer on this ground.
Ruling
United Business Bank vs. Lynne Bui
Jul 22, 2024 |
C23-02049
C23-02049
CASE NAME: UNITED BUSINESS BANK VS. LYNNE BUI
*HEARING ON MOTION FOR DISCOVERY COMPELLING DEFTKHLORIS BIOSCIENCES TO PROVIDE
FURTHER RESPONSE, PRODUCE ALL RESPONSIVE DOCS, PROVIDE PRIVILEGE LOG FILED BY
PLAINTIFF
FILED BY:
*TENTATIVE RULING:*
Pursuant to a prior notice of stay of proceedings filed by plaintiff, a stay was filed in this lawsuit on
November 30, 2023. The court is aware of no further action concerning this stay. As a result,
plaintiff’s motion is off calendar.
Ruling
ENRIQUEZ, HECTOR vs SPRUELL, JAMIKA
Jul 28, 2024 |
CV-24-003735
CV-24-003735 – ENRIQUEZ, HECTOR vs SPRUELL, JAMIKA – Defendant’s Motion for leave to File-Cross-Complaint - GRANTED, and unopposed.
The Court GRANTS Defendant’s unopposed motion for leave to file her cross-complaint. Defendant is ordered to file a copy of the proposed cross-complaint (attached as Exhibit 1 to the 6/27/24 Declaration of Megan D. Johnson) within five court days. The cross-complaint shall be served by August 30, 2024. Defendant is further ordered to submit a proposed order that comports with this ruling within five court days.
Due to the interruption of telephone service as a result of an outage, any party requesting a hearing must make the request via email to the court clerk. If V-Court is not available and an in-person appearance is not possible, appearance must be via Zoom. Sign-up information for Zoom will be available on the court’s website.
Preview
FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/16/2019 EXHIBIT 34 FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/16/2019 !« , '13 • r 1 1 13 ^5 • : si 1 - 5 II 3 1 IJ j y zl o g •u i 6 6 i t=t si TT 111' lftl is B i »ks U il rn~mi \n7\<» _ iffia MFj 5S5 s~l \ II 1 a Heaitii Hazard HETA 85-171-1710 HYalnation 'INTERNATIONAL BAKERS SERVICES, INC, Heport SOUTH BEND, INDIANA ~D CA 00099 FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/16/2019 PREFACE • ...... . # * I tance Branch of NIOSH conducts field The Hazard Evaluations and Technical Assis rds in 'the workplace. These investigations of possible health haza authority of Section 20(a)(6) of the _ investigations ere conducted under the , 29 U.S.C. 669(a)(6) which • Occupational Safety and Real'th Act of 1970 n Services, following a written Huna . authorizes the Secretary of Health and d representative of employees, to request from any employer or authorize found in the place of employment has determine whether eny substance normally or found. entrations as used potentially toxic effects in such conc upon Assistance Branch also provides, The Hazecd Evaluations and Technical l and cons ultat ive l hygiene technica request, medical, nursing, and industria loee l agen cies; labo r; indu stry end and assistance (TAJ to Federal, state, to rol occupational health hazards and other groups or individuals to' cont se. . prevent related trauma and disea J ' titute endorsement by the • 'tuanv :: »ncs «r products does not cons ".••»»: . and Health. in .or 'ftcopationel Safety K CA 006100 FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/16/2019 .:•••*• — KETA 85-171-1710 July 1986 NIOSH INVESTIGATORS : INTERNATIONAL BAKERS Rob S. HcConnell, SERVICES, INC . M.D. FOUTH BEND, INDIANA : Richard W. Hartlc, C.l.H. I- SUMMARY On February 7. 198 5, the National Institu te Cor Occupational Saf Health (NIOSH) rece ety and ived a request from International Bakers Inc.; South Bend, Indiana Services, , for a health haz ard evaluation. non- smoking, previou Two young, sly healLhy employees . in the "mixing room" developed severe, fixe had d obstructive lung dise employment. ase within one year The onset was insidio of us, but one second volume (FEV^) had forced expiratory dec lined to 1.2' liters and 0.7 liters, respectively, in these two workers within symptoms three months of ons (eight months et of- from starLing work minimal response in the plant). There was to bronchodilators , and there was no improvement after 1 significant, and 1 1/2 years, res plant. pectively, away from Forced vita l capacity and the total lung capacity were less affected,and diffusing capacit relatively y initially was norm pathoLogical conf irma al. Although tion was not availab more compatible with le, the clinical pic ture was 3 bronch iolitis obliterans than with emphysema. On Harch 12, 1985, the NLOSH investigators the process visited the plant and to interview the to review affected workers. a Large open room where The mixing room is three employees weigh and load a of fragrances, flav large variety orings, starch, and SO- to 100- pound bags into one of three of flour mixers. The Loading and mixing considerable dust, previou tasks generate sly measured to be 20 mg/m employees used a supplied-a.ir res 3. Although pirator whi le adding ingredie the mixers, it was nts to not always worn dur ing some clean-up act Review of chemicals ivities. used in the plant identified no subs Lanc be associated with es known to bronchiolitis obliter ans or emphysema. rafter and other set SampLes of tled dust, of the foam lining to the used by the two affected respirator employees, and of batches affected of mixes made by one employee in the wee k prior to his firs were collected and t noticing symptoms, assayed for proteo lytic activity and levels. Immunologic evaluat for endotoxin ion of Lhe two affected employees unremarkable concen revealed trations of toLai and IgE and total immuno specific (to various globulin. antigens) The sera of both case non- exposed controls s and of two precipitated non- spe "Cinna Butter" and vari cif ical Ly wiLh extracts ous dust samples. of Although bakers are known to develop asth been shown "to have ma, and grain workers an accelerated dec have line in FEV^ and an prevalence of chro increased nic bronchitis in previous reports cpid nmio logic studies, (to our knowledge) there arc no of similar catastrophic, CA 000101 FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/16/2019 unexplained obstructive pulmonary disease in the bakery or bakery } services industry. Based on the results presented in this report, the investigators conclude that it is probable that some agent in the mixing- room at. International Bakers Services produced severe, fixed obstructive lung . disease in two employees. The specific etiology was not identified. Recommendations for engineering and work practice changes to prevent respiratory exposure. to dusts in. the mixing room are presented in Section VIII and Appendix B of this report. . Keywords: SIC 2099 (Food preparations, not elsewhere classified). bakery supplies, bakers, grains, flour, amorphous silica, flavors, fragrances, endotoxin, proteolytic enzymes, bronchiolitis obliterans 3 CA 000102 FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/16/2019 TABLE 2 IttGBEDIESTS CCCAS10SALLY USED IV BAXEHX MIXES, 1984 ' IHTE8HATI0HAL BAXEBS SERVICES . SOUTH BEBD, XHDIAKA HSIA 85-171 ' Acetaldehyde Butyle Butyrate Acetic Acid Butyl Butyrl Lactate Acetyl Propionyl Butyric Acid Aldehyde C-6 Carole Acid Aldehyde C-8 Capryiic Acid Aldehyde C-9 ' Caramel color • Aldehyde C-10 , Caramel- Color 8100 . Aldehyde C-14 Caramel Color (Williamson) Aldehyde C-1S Cedrol Crystals Aldehyde C-1B • Cherry Essence ISO Fold - ALlyl Caproate Cherry Juice Allyl Cyclohexylpropionate Chez-Tone Allyl Keptoate / Chocolate (PAV) Allyl Phenoxy Acetate ' Chocolate Extract (Star Kay White) Almond (2X) Cinnamie Alcohol &ayl Alcohol Cinnamie Aldehyde Asqrl Butyrate ' Cinnamon (Micra Hilled) Amyl Caproate. Cinaaj&yl Acetate . Amyl iso Valerate . .Cltrai (natural) &atyl propionate citric Acid Anethol Citronellol Anisic Aldehyde Cocoa Anisyl Acetate Cocoa (Ambrosia) Apo Caroteaal 20X Coconut oil (Hatural) Apple Essence ' Delta Deeaiaetone Apple Juice Concentrate Dextrose Diacetyl B U A Balsam Peru (Besia) Banana Essence C Diaeetyl (Spray Dried) Diethyl Halonate 3 Beatreoe 8743 Ethyl 2-Hethyl Butyrate Seatrene 2422 Ethyl Acetate Benzaldebyde Ethyl Aceto Acetate Benzodihydropyroaa Ethyl Benzoate Benzyl Acetate Ethyl Butyrate Benzyl Propionate Ethyl Caprylate Beta Carotene 301 Ethyl Formate Butter (Level Valley) Ethyl Heptoate Butter Derivatives Ethyl ISO Valerate Butter Esters Ethyl Levullate Buttermilk Ethyl Maltol CA 000119 FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/16/2019 . TABLE 2 (continued) ' J INGREDIENTS OCCASIONALLY USED 19 BAKERY MIKES » 1984 . IBTERtiATlONAL BAKERS SERVICES SOUTH BEND, INDIANA HGIA 85-171 . Ethyl Oeaanthate Natural Linalyl Acetate Ethyl Dxyhydrata Natural strawberry Extender 8111P Ethyl Propionate Natural Terpealol (super) Ethyl Vanillin Batoeg 2-Ethyl 5 & 6 Methyl Pyrazine Oetyl ISO Bubyrate - EugenolFlavor Blend 0581-A Oil Anise "* Flavor Blend 8602 Oil Balsam Flour • Oil Bitter Almond ' Furfuraidehyde Oil Cinnamon Leaf * Gamma Dodeca lactone Oil Clove • Gamma Octa lactone Oil Cinnamon (Cassia) GecanyL Acetate Oil Corn . ' Gum (Kanthan) (Herezan) ' Oil Davana . Ham Flavor Oil Grapefruit ' Heliotrcpine Oil Cualaevood (Trans-2) Hexenole Acid Oil Lemon Hexyl Acetate Oil lima ( Honey* (2X) oil Mandarin * Roni-Bahe 705 Oil Nutmeg ISO Anyl Acetate Blend Oil Orange (lx) (Valencia) J ISO Valeraldehyde Oil Orange. (5x) (Valencia) ISO* Valerie-Acid Oil Rose 87275 ' lonone Alpha . Oil Tangerine ' Jasmin Katoc Absolute ' Oil of sage Lactic Acid Orange Solids Leaf Alcohol Orange Terpenaa Lemon Solids Ortho Bethoxy Cinnamie Aldehyde Linalool Para Cresyl Phenyl Acetate Linalyl Aeetate ' Para hydroxy Phenyl Butanone Linalyl Butyrate Peach Essence 150 Fold Linalyl ISO-Valerate Peach juice Coneetrate tfaltol . - . Peanut Butter Flavor Base Haple Syrup (Natural) Peanut Butter Flour Hethyl 3 Methyl Thiopropionate Phenyl Acetic Acid 4-Hethyl-5 Hydroxy Ethyl Thiazole Phenyl Ethyl Aeetate Hethyl Aayl Ketone Phenyl Ethyl Alcohol Hethyl Anthanilate Phenyl Ethyl Phenyl Acetate Methyl chavieol (Estragole) Phenyl Ethyl 2-oethyl Butyrate Hethyl Cinnamate . Phenyl Propyl Aldehyde 6-Hsthyl Coumarin Pineapple Juiee Concentrate * Hethyl Cuelopentanolone Propylene Glycol Hethyl Keptenone Propenyl Guaethol • Methyl- Hep tine Carbonate Propionic Acid V n CAOCOBO FILED: NASSAU COUNTY CLERK 12/16/2019 06:07 PM INDEX NO. 000532/2017 NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 12/16/2019 ' " TABLE 2 (continued) IKCHEDIEHT5 OCCASIONALLY USED IH BAKERY HIKES, 1984 / IBTEBB&TIOHAL BAXEHS SERVICES SOUTH BEHD, IHDIAHA KEEA 85-171 Ilethyl Phenyl Acetate Pure Honey (Kitchen) • Slid (tfon-Fat Dry) Raspberry Juiee Concentrate Holasses Bose name Absolute S-3utly Acetate • ' Bum (4X) natural Linalool Bum Base Salt Styralyi Acetate . Silicon Dioxide (Syloid 244) sugar (Granulated) Sodium Benzoate Terpeniol (Super) Sodium Citrate Terpinyl Acetate Solid Extract Coffee 2,3.5 Triuetfayl Pyrazine Solid Extract Foeirugreek Turmeric (T-050) Solid Extract Lovage Vanilla Concentrate. 0065 Solid Extract St. John's Bread Vanilla Extract (IX) (Petran) Soy Sauce Vanillin ' Starch (Corn) . . Vertraldehyde ' Starch (Tapioca) Worcestershire sauce Strawberry Juiee Yellow 05 (F.D.C) * Strawberry Juice Concentrate Yellow 06 (F.D.C.) r •y ~d T CA 000121