RAMOS v. BRENNTAG SPECIALTIES

Respondent, Schorr Metals, Inc., Petition for Review

Cal.April 30, 2014

$218176 “PSB Case No. S In the APR SO 2014 Supreme Court of California ark 4mecuire clerk | Deputy—— FLAVIO RAMOSand MODESTA RAMOS, Plaintiffs and Appellants, V. BRENNTAG SPECIALTIES,INC., etal., Defendants and Respondents. From a Decision by the Court of Appeal, Second Appellate District, Div. 4, Case No. B248038 Reversing in part Judgmentofthe Los Angeles County Superior Court The Honorable Amy D. Hogue, Judge, Case No. BC 452512 PETITION FOR REVIEW aSCHORR METALS,INC.’S P. Gerhardt Zacher (SBN: 43184) Don Willenburg (SBN: 116377)* Matthew P. Nugent (SBN: 214844) GORDON & REES LLP GORDON & REES LLP 1111 Broadway, Suite 1700 101 W Broadway,Ste. 1600 Oakland, CA 94607 San Diego, California 92101 Tel: 510-463-8600 Tel: 619- 696-6700 Fax: 510-984-1721 Fax: 619- 696-7124 dwillenburg@gordonrees.com gzacher@gordonrees.com mnugent@gordonrees.com AttorneysforPetitioner, Defendant and Respondent SCHORR METALS,INC. Case No. S In the Supreme Court of California FLAVIO RAMOSand MODESTA RAMOS, Plaintiffs and Appellants, v. BRENNTAGSPECIALTIES,INC., et al., Defendants and Respondents. From a Decision by the Court of Appeal, Second Appellate District, Div. 4, Case No. B248038 Reversing in part Judgmentofthe Los Angeles County Superior Court The Honorable Amy D. Hogue, Judge, Case No. BC 452512 SCHORR METALS, INC.’S PETITION FOR REVIEW P. Gerhardt Zacher (SBN: 43184) Don Willenburg (SBN: 116377)* Matthew P. Nugent (SBN: 214844) GORDON & REES LLP GORDON & REES LLP 1111 Broadway, Suite 1700 101 W Broadway,Ste. 1600 Oakland, CA 94607 San Diego, California 92101 Tel: 510-463-8600 Tel: 619- 696-6700 Fax: 510-984-1721 Fax: 619- 696-7124 dwillenburg@gordonrees.com gzacher@gordonrees.com mnugent@gordonrees.com Attorneys for Petitioner, Defendant and Respondent SCHORR METALS,INC. CERTIFICATE OF INTERESTED ENTITIES (Rules of Court, rule 8.208) Nopersonor entity owns a 10% or greater share of Petitioner, Defendant and Respondent Schorr Metals, Inc., which knowsofno other person or entity, other than the parties themselves, with a financial interest _ in the outcomeofthis proceeding that the justices should considerin determining whether to disqualify themselves under canon 3E of the Code of Judicial Ethics. Dated: April 30, 2014 GORDON & REES LLP by: NoNude Don Willenburg TABLE OF CONTENTS Page No. CERTIFICATE OF INTERESTED ENTITIES.0.......cccessesseeeeesetnenseeseceseteesennees i I STATEMENTOF THE ISSUES PRESENTED FOR REVIEW.............4. 1 II WHY REVIEW SHOULD BE GRANTED. ........ceesesstesteeteeees sessesttusesee2 A. The decisionis expressly contrary to other Court of Appeal CeCISIONS. .......cecccccsecssecesseesseccsenseecesceseenceseeseeussnueenseeeseseeneseeeseeeneenes2 B. Each ofthe two issues presented is “an important question of LAW.”..ccccssecscccsccsseseescceeceeceseesescessenseeeessseesseeessnessaseeencereeeeseareeeeesesecs 3 1. The case presents an important question oftort liability AN GUEY. oceececescereeseeseetessetsssseseeseeesseesnenneseessesenerneneeeageetes 3 2. The case presents an important issue regarding sham Pleadings. 0... eessesesscessseeeeeseenesssteseeseesseecsceersecseetsersensees4 Ill STATEMENTOF THE CASE........cccccssesteseeescnseseneesacesseeeeeseaeeeeseeesaeeees 5 IV ARGUMENT........ccccceccscsgercesecteesesseceeseeseesneeeserseneeesseeseaceeseeeeeesessaeeasenes9 A. The Court of Appeal improperly expanded the duties of raw material suppliers......... cscs scsssesssseeeesseseeneenscenssnssesereeeeessseesenseesases9 B. The Court of Appealfailed to disregard conclusions in a complaint that were belied by other, more particularized allegations.........csccssssscsecssssssessssesesesenesessearsnseeesnseeceeeseeesensasrsneseeees 15 C. Alternatively, the Court should “grant and hold” pending WED, cecccccccsccsscescensessccsessecseuneseeeseceseseesscsesseeeseeeneesseseasnesneseeseaeeae® 19 Vv CONCLUSION.......cceccsssssecceececescesesscsesecsessseensenssaaseassnsenseceneeseeresseneererses20 WORD COUNT CERTIFICATION......eicssssssscssesssesseenseeenscsseneeseeeseeeesneseesenees21 il TABLE OF AUTHORITIES Page No. Cases Artiglio v. General Electric Co. (1998) 61 CalApp.4th 830 occccessccseeceseeeeeeeeeens 1, 2, 8,9, 10, 11, 12, 13, 14 Ashcroft v. Iqbal (2009) 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868.0... ceceeeeeeteeeeeeeeetens 5 Bell Atl. Corp. v. Twombly (2007) 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929........saeaneeceneeesseaeeasenee 4,5 Blank v. Kirwan (1985) 39 Cal.3d 311 wescsescesssssssssesseesseescsseessseeseeseeseeneseseesereenesseeoaees 4,15 C & HFoods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055 oo... ecccsssssssseeseseesstsesesseeesteseeseeneeecaseeesneeeseseseaes 16 Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 CalApp.4th 396 oo... ecscsseseseseeetereneeneeeeeeeteesseeeteneesaeeeeeatens 16,17 Daarv. Yellow Cab Co. (1967) 67 Cal.2d 695 wu. eeseccssesscssssssssssssssessessensssenseassessnssseserenesaceesssteeeeseseeets 16 Gray v. Badger Mining Corp. (Minn. 2004) 676 N.W.2d 268 oo... cccccceseseseesenseeeeesenessenenneeteeneesacaeeeeseenes 10, 11 Inre TMJImplants Prod. Liab. Litig. (8th Cir.1996) 97 F.3d 1050 vo.eccscessseessetsseeeeeseeestestensensceeraesenerseeeessseasenees 12 Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 CalApp.4th 990 occccesssesseesesessseesseseteeeeeasserseeseesseesecesassees 4,16 Maxton v. Western States Metals (2012) 203 Cal.App.4th 81 oo.eeceecsenees 1, 2, 3, 6, 7, 8, 9, 10, 11, 15, 17, 19 Moore v. Regents of University ofCalifornia (1990) 51 Cal.3d 120oeecsscsessssssseseseeseeneseeesessseseeeceeseeeesaseerereneneceessensenees 16 Privette v. Superior Court (Contreras) (1993) 5 Cal4th 689oeecscssssscsceasesseresseessessassessesceneceesesssesenerereesenees 14, 15 Rules California Rules of Court, rule 8.204..........cccscestecssseseeseeeeteoeesaseseceessseseaeusseessees 21 California Rules of Court, rule 8.208 .cscccssececcssseceecereese sevsssscessecsscsecseaceatecceseesseeeesaaes i California Rules of Court, rule 8.500...........ccccecseseeecessssessnsssensesseeesesceseeeeeeserenees 2 iii California Rules of Court, rule 8.504...........ccccccsssccssssccsseeeessesesseeeecssneessnneessseeeses 21 California Rules of Court, rule 8.512...........ccccccsccsecsecssesseneccnesecececsssessnesseeeeeeesnes 19 Other Authorities Canon 3E of the Code of Judicial Ethics .........cccccccccccccssscssesecscccceseceecenscsecasacensesesess i iv I STATEMENT OF THE ISSUES PRESENTED FOR REVIEW 1. Theissue in this case is whether the bulk supplier of a defect- free raw material is liable to a purchaser’s employee whois injured using raw material that has been altered during the purchaser’s manufacturing process, over which the raw material supplier has no control. Traditionally, liability may be imposed on a componentpart or raw material supplier only undercertain circumstances: when the raw materialis contaminated, when the supplier exercises substantial control over the manufacturing process, or whenthe raw material is inherently dangerous. (Maxton v. Western States Metals (2012) 203 Cal.App.4th 81, 85; Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830, 837.) The Court of Appealrejected these traditional contours, expressly rejected Maxton, effectively rejected Artiglio, and greatly expandedliability of bulk materials suppliers. 2. This case also involves the question ofhow allegations lacking credibility, consistency, and factual bases mayyetstill survive demurrer, e.g. allegations that a raw material, safe when andas sold,is somehow notsubstantially altered whenit is heated to liquidity, melted and mixed with other materials. I WHY REVIEW SHOULD BE GRANTED Review is proper “[w]hen necessary to secure uniformity of decision or to settle an important question of law.” (Cal. Rules of Court, rule 8.500 (b)(1).) This case presents grounds for review under both parts of this Rule. A. Thedecision is expressly contrary to other Court of Appeal decisions. Review is “necessary to secure uniformity of decision” because the decision below is expressly inconsistent with Court of Appeal decisions that have considered the same question, including a 2012 decision that arose in factual circumstances indistinguishable from those in the present case. The decision is frank and express aboutits disagreement with prior reported decisions on point: Respondents demurrered [sic: demurred] to the claims on the groundthat they failed under the componentparts doctrine, as applied in Maxton v. Western States Metals (2012) 203 Cal.App.4th 81 (Maxton). Relying on Maxton, the trial court sustained respondents’ demurrer without leave to amend and thereafter entered a judgment of dismissal... [W]e respectfully disagree with the holding in Maxton. (Slip op. at 3.) “[T]o the extent Maxton can be read to conclude that the componentparts doctrine, as set forth in Artiglio[v. General Electric Co. (1998) 61 Cal.App.4th 830], is ordinarily applicable to the type of claim asserted in the [complaintin this case], we disagree with its rationale.” (Slip op. at 20.) The lack of “uniformity of decision” could hardly be clearer. The conflict between the Maxton ruling and the opinion of the Court of Appeal in this case affects far more than judges and attorneys. The disparate holdings leave raw material suppliers in this State with no understanding as to whatthe law is, nor any meansto predict whatthe law is — until any lawsuit is pursued to the appellate level. Two appellate panels (from the sameappellate district) dealing with essentially identical facts made completely opposite decisions. The law is notalwayscertain, but it should not consist of completely contrary holdings on essentially identical facts. B. Eachof the two issues presented is “an important question of law.” 1. The case presents an important questionof tort liability and duty. The substantive legal issue of raw material and bulk supplierliability affects virtually every supplier of a raw material to any manufacturer or processorin the State. Underthis ruling, suppliers are potentially liable for harm resulting from activities in which they have no involvement, and regarding which they cannot have exerted any control. Theyare at the mercy of their customers’ imaginations, and negligent or even more culpable behavior. Underthis ruling, suppliers have a duty to protect against, and pay compensation for, their customer’s acts. Worseyet, if the limits of duty can be so erodedin this context, then where next? Thereis no sensible reason, and none compelled by statute or prior decision, for such vicarious or substitute liability. 2. The case presents.an important issue regarding sham pleadings. Theissue of “sham”or inconsistent pleadings potentially affects an even broader universe: every lawsuit in the State. While “on demurrer, assumethetruth of facts alleged”is established law and a worthy precept, there should be somepoint at which allegations are so inconsistent or absurd that, like contentions, deductions or conclusions of fact or law (Blank v. Kirwan (1985) 39 Cal.3d 311, 318), they need not be considered in ruling on demurrer. That point is passed here, where the complaint alleges both that the raw material sold by Petitioners was heated to the point of becoming molten, and that the product wasnot “substantially altered.” “Where a conclusionis alleged and also the special facts from which the conclusion is drawn,if the special facts are inconsistent with and do not support the conclusion, the former control, and thesufficiency of the complaintis to be determined from the special facts pleaded.” (/verson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995.) In the federal courts, to survive a motion to dismiss a complaint must contain sufficient factual matter to “state a claim to reliefthat is plausible on its face.” (Bell Atl. Corp. v. Twombly (2007) 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929.) “A claim has facial plausibility when the plaintiff pleads factual contentthat allows the court to draw the reasonable inference that the defendantis liable for the misconductalleged.” (Ashcroft v. Iqbal (2009) 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L-Ed.2d 868.) “Threadbarerecitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” (/bid., citing Twombly, 550 U.S.at 554.) While this Court need not go so far as Twombly or Iqbal, neither should pure fancy or impossible allegations (such as that melting something does not affect or modify it) be credited enough to maintain a cause of action that depends ontheir truth. It STATEMENTOF THE CASE Mr. and Mrs. Ramos(“Plaintiffs”) sued numerous defendants in this action, alleging that Mr. Ramos developed a lung disease asthe result of occupational exposureto industrial dusts and fumes at Supreme Casting & Pattern and Acute Mold. {1 AA 1 & 16} Mr. Ramos worked as a “mold maker, machine operator, and laborer” at those companies, which he alleged each “manufactur[ed] metal parts through application of a foundry and fabrication process.” {1 AA 16} Plaintiffs eventually filed five complaints in search of a valid causeofaction. The original complaint and each amended complaintasserted six causes of action: negligence, negligenceperse,strict liability (failure to warn and design defect), fraudulent concealment, breach of implied warranty and loss of consortium. {1 AA 1-94} Plaintiffs alleged that the aluminum suppliers, including Petitioners, sold aluminum and aluminum alloys to his employers. {1 AA 181-183} The metal was in raw form (ingots, rods, etc.) when it arrived at the fabrication plants, and Plaintiffs alleged that the manufacturing process required the “melting, cutting, grinding, polishing, and machining”ofthe raw metals. {1 AA 187} The complaint allegedthat, during this process, Mr. Ramoswas exposedto “toxicologically significant amounts oftoxic metallic fumes and dusts.” {1 AA 188} Plaintiffs never asserted that the aluminum suppliers had any control over the manufacturing processthat producedthe allegedly hazardous dust and fumes. Defendant and Respondent Alcoa, Inc. (“Alcoa”), joined by Schorr, demurred to the original complaint under the componentparts doctrine. (For reasons not important on appeal, the demurrer was not ruled upon becausethetrial court struck that complaint.) Plaintiffs then filed a first amended complaint {1 AA 95-167} to which Alcoa, joined by Schorr, demurred again on the same ground,butthetrial court overruled the demurrer. Plaintiffs then filed a second amended complaint. After Maxton, supra, 203 Cal.App.4th 61, was decided, Alcoa, joined by Schorr, moved for judgment on the pleadings as to this second amended complaint, asserting that Maxton had established that cases like this must be dismissed on the pleadings under the componentparts doctrine. {1 AA 240-261} The trial court granted the motion, but allowed Plaintiffs 30 days leave to amend the complaint. {RT 3:17-24, 5:20-23} Plaintiffs filed a third amended complaint. Despite having pled that Mr. Ramos was exposed to fumes while aluminum was “melted as specifically designed and intended by Defendants in furnaces during foundry operations” {5 AA 1315:10-16}, this complaint alleged that the aluminum was“not substantially altered in any way.” {5 AA 1370:19— 26}Alcoa’s demurrer, brought on the same grounds as the earlier motion for judgment onthe pleadings and joined by Schorr, was sustained with leave to amend. {8 AA 2242-2257} Plaintiffs then filed a fourth amended complaint {9 AA 2261-2397, which alleged that the aluminum was“melted ... in furnaces during foundry operations” and was“therefore [] inherently dangerous.” {9 AA 2281} Plaintiffs alleged that the “melting of said metal products ... resulted in the generation and release of ... toxic ... fumes.” {9 AA 2281:24-27} Plaintiffs alleged that the aluminum products “were specialized metal alloys manufactured and sold by the foregoing Defendants for specialized applications, and were not merely bulk materials susceptible to myriad applications.” {9 AA 2282:4—9} Plaintiffs again concluded that raw aluminum was“inherently dangerous”by citing “hazardous” references in OSHAregulations and other California Labor Codes. {9 AA 2292:10— 2285:23} Alcoafiled a demurrer to the fourth amended complaint, joined by Schorr, arguing that Plaintiffs were again relying on unsupported and contradictory conclusions to circumvent Maxton and Artiglio. {9 AA 2450:3—15} These defendants arguedthat Plaintiffs had made contradictory allegations: asserting (on the one hand) that the raw aluminum consisted of “specialized metal alloys manufactured and sold . . . for specialized applications,” while (on the other hand)alleging the aluminum had not been designed to Supreme Casting’s exact specifications. {9 AA 2449:14— 25} Plaintiffs had further pled contradictory allegations that Mr. Ramos wasexposed to fumes when the aluminum was melted, and that the products were not substantially altered during the manufacturing process. {9AA2450:3-15} The aluminum suppliers also arguedthat the employer’s subjective knowledgeofthe risks wasirrelevant becauseits sophistication is judged by an objectivestandard. {9 AA 2452:19-2353:15} For the same reasonsas before, the trial court sustained the demurrer, except this time without leave to amend. {11 AA 2970:5} Plaintiffs appealed. The Court ofAppeal reversed as to all causes of action except negligence per se. Defendants and respondentsfiled a petition for rehearing, which was denied. This petition for review followed. Schorr is advised and believes that other defendants and respondents may be seeking review. IV ARGUMENT The Court should grant review, either to directly review this decision or as a “grant and hold” pendingits decision in Webb v. Special Electric Co., Inc., Case No. S209927 (see section C below, pp. 19-20). A. The Court of Appeal improperly expandedthe duties of raw material suppliers. The Court of Appeal erred in concluding that raw material suppliers are liable for injuries to employees ofthe purchasers oftheir products. Underthis ruling, suppliers are potentially liable for harm resulting from activities in which they have no involvement, and regarding which they cannot have exerted any control. They are at the mercy of their customer’s imaginations, and negligent or even more culpable behavior. Underthis ruling, suppliers have a duty to protect against, and pay compensationfor, their customer’s acts. The Court of Appeal’s conclusion notonly directly rejects Maxton, butit implicitly rejects Artiglio, by failing to evaluate the facts in the context of the related raw material supplier and bulk sales/sophisticated purchaser doctrines. Though the Court of Appeal recognizes that the componentparts doctrine “may be invoked when a worker suffers injury while engaged in employmentthat incorporates or uses a supplier’s componentpart” (Opinionat p. 21), it goes on to hold that the doctrine does not apply here because Ramoswasallegedly injured during a manufacturing process when the bulk aluminum was melted as “specifically intended.” In so doing,it rejects the California cases of Artiglio and Maxton andrelies instead on a non-California decision not cited by any ofthe parties, Gray v. Badger Mining Corp. (Minn. 2004) 676 N.W.2d 268 (“Gray”), which has never been cited by any other California court, and whichis based on materially different allegations. In Gray, a foundry worker brought claims against a supplier of sand that he used to make molds from which metal objects were cast. (Gray, supra, 676 N.W.2d at p. 271.) Theplaintiff provided evidence that the sand supplier, Badger Mining, knew of“special hazards”involved in using sand for foundry processes, becauseit knew that conventional disposable respirators were ineffective to protect workers against the inhalation of sub- micron sized sand particles created when the molds were removed from the casting. (/d.) In evaluating the componentparts defense,the court observed that “Badger specifically develops sand for foundry use and has concededthat it understands the manner in whichsilica is used in the foundry process.” (/d. at 281.) In contrast, in the instant matter, while Plaintiffs plead that Respondents’ aluminum products were “specialized metalalloys manufactured and sold . . . for specialized applications,” {9 AA 2282:4-9} 10 they notably do not identify just what those alleged specialized applications were. They conspicuously do notallege, unlike the plaintiff in Gray, that Respondentsspecifically designed their productsforfoundry use. Likewise, unlike in Gray, Plaintiffs did not plead that Respondents knew of any special hazards that would arise from some unique mannerofuse of their products at Supreme Casting. Further, Plaintiffs did not plead that Respondents were aware of, but failed to warn about, the ineffectiveness of certain personal protective equipment being used by Ramos. Most importantly, unlike in Gray, Ramosalleges that Respondents’ aluminum products causedhis injuries only after being melted to the point of becoming molten — a substantial alteration if ever there was one. In Gray, no such substantial alteration of the sand wasalleged. Accordingly, the factual allegations of Gray are markedly different from those in the present case. In contrast, Maxton was decided on virtually identical factual allegations. In relying on Gray to reject Maxton, the Court of Appeal effectively also rejected the raw material supplier and bulk sales/sophisticated purchaserdoctrines recognized and applied in Artiglio. The Court of Appeal concluded that because Ramosalleged injuries from the aluminum itself, rather than from a finished product into which it had been integrated, the componentparts doctrinedoes not apply. (Opinion at pp. 20-21.) But by focusing narrowly on whetherthe injury was allegedly caused by a 11 finished product as opposed to a product componentor raw material, the Court of Appeal steadfastly ignored the important policy rationale for the raw material supplier and bulk sales/sophisticated purchaser doctrines that compeltheir application here. As Artiglio recognized, [m]aking suppliers of inherently safe raw materials and componentparts pay for the mistakes of the finished product manufacturer would not only be unfair, but it also would impose an intolerable burden on the business world. . . Suppliers of versatile materials like chains, valves,sand gravel, etc., cannot be expected to become experts in the infinite numberoffinished products that might conceivably incorporate their multi-use raw materials or components. (Artiglio, supra, 61 Cal.App.4th at p. 837, citing Jn re T.MaImplants Prod. Liab. Litig. (8th Cir.1996) 97 F.3d 1050, 1057.) This rationale for the non-liability of raw material suppliers for the mistakes of the finished product manufacturer applies equally, if not more so, to injuries to employees of such a manufacturer. Thereis an “infinite number” of ways raw materials can be used in manufacturing operations. Metals can be cut, hammered,rolled, or subject to any numberof operationsin addition to the “melting”that occurred here. If raw material suppliers deserve protection from mistakes that are not their own,the doctrine’s application should not depend onthe identity of the person 12 injured by such a mistake, i.e., whether the injured party is an employee of that finished product manufacturer, or a consumerinjured by the finished productitself. Imposing a duty on the raw material supplier to prevent injury to the industrial worker would be just as unfair and onerous as requiring it to prevent injuries to consumers from a finished product into which the raw material hadbeen integrated. The Court of Appeal’s holding therefore greatly expandsthe existing tort duties of raw material suppliers with nobasis in California law for doing so. The Court of Appeal rejected Artiglio by crediting Plaintiffs’ allegation that Respondents’ aluminum was melted as specifically intended as being sufficient to state valid causes of action. In Artiglio, General Electric intendedthat its silicone product be used to makesilicone gel breast implants, as “implant manufacturers cameto it with particular specifications as to the physical properties they wantedin thesilicone they were purchasing and GE then produced products which met the manufacturers’ specifications.” (Artiglio, supra, 61 Cal.App.4th at p. 834.) Artiglio wenton to observethat, “knowledge ofhow a raw material will be used doesnot, by itself, create a duty to investigate the risks posed by the final product.” (d. at p. 838.) Thus, the Court of Appeal rejected Artiglio’s common-sense observation that knowing how a raw material may be used does not create a duty to investigate the risks posed by suchuse.In virtually all cases a raw 13 { material supplier will have some idea howits products are to be used. The Court of Appeal’s decision requires a raw material supplier to do precisely what Artiglio warned should not be required — to become an expert as to eachofits purchasers’ products and manufacturing processes, andstep in to ensure its purchasers make no mistakes that could cause injury to their employees. Such an expansionoftort liability is unwarranted andnot supported by any existing California authority. Indeed, the Court of Appeal’s decision creates a remedy for injured workers that is broader than the rights of injured members ofthe public, and ignoresthe fact that (unlike the public) injured workers already have a remedyin place for injuries suffered on the job. The workers compensation system provides a remedy without regard to fault, including injuries arising from the employee’s own misuse of the raw materials. By comparison one need only look to the since-overruled cases which arose under the peculiar risk doctrine, which wasjudicially extended to allow lawsuits by employees who wereinjured doing the specific work which created the peculiarrisk, before this Court eliminated such responsibility in Privette v. Superior Court (Contreras) (1993) 5 Cal.4th 689. The Privette court noted the error inthe analysis of earlier courts, and also highlighted the remedy available to the injured worker. “[I]n the case of on-the-job injury to an employee of an independent contractor, the workers' compensation system of recovery regardless of fault achieves the identical purposes that underlie 14 recovery under the doctrine of peculiarrisk. It ensures compensation for injury by providing swift and sure compensation to employees for any workplaceinjury; it spreads the risk created by the performance of dangerous work to those whocontract for and thus benefit from such work, by including the cost of workers' compensation insurancein the price for the contracted work; and it encourages industrial safety.” (5 Cal.4th at p. 701.) Just as in Privette, the plaintiff in this action has a remedy for his injury, an injury that arises directly from the manner in which he andhis employer choose to use raw materials. Public policy supports the Maxton decision, not the unwarranted extension ofliability imposed by the Court of Appealhere. B. The Court of Appealfailed to disregard conclusions in a complaint that were belied by other, more particularized allegations. While “on demurrer, assumethe truth of facts alleged” is established law and a worthy precept, there should be somepoint at whichallegations are so inconsistent or absurd that, like contentions, deductions or conclusionsof fact or law (Blank v. Kirwan (1985) 39 Cal.3d 311, 318), they need not be considered in ruling on demurrer. That point is passed here, where the complaint alleges both that the raw materials sold by Respondents were heated to the point of becoming molten, and that the product wasnot “substantially altered.” {9 AA 2351:13-18} “Where a 15 conclusion is alleged andalso the special facts from which the conclusionis drawn, if the special facts are inconsistent with and do not support the conclusion, the former control, and the sufficiency of the complaintis to be determined from the special facts pleaded.” (/verson, Yoakum, Papiano & Hatch v. Berwald (1999) 76 Cal.App.4th 990, 995.) California has long recognized that contentions and conclusions _ should not be accepted as true in ruling on a demurrer. “A demurrer... does not admit contentions, deductions or conclusions offact or law alleged therein.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, citations omitted; accord, Moore v. Regents ofUniversity ofCalifornia (1990) 51 Cal.3d 120, 125 [““We do not . . .assumethe truth of contentions, deductions, or conclusions of fact or law”]; C & HFoods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1063 [disregarding theplaintiff's conclusions about insurance policy provisions that were inconsistent with the actual wording ofthe policies attached to the complaint].) Applyingthis principle, the court in Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396 disregarded the complaint’s conclusion that the defendant hospital acted with deliberate indifference and conscious disregard for the health, safety and well-being of the decedent, because the complaint also specifically alleged that the hospital “actually treated (or at least attempted totreat) decedent by diagnosing pneumonia,sepsis, pressure ulcers and malnutrition; by infusing 16 fluids; and by searching for the size of endotracheal tube neededto save his life.” Ud. at p. 412.) Thetrial court in the present case applied this principle, but the Court of Appeal eschewedit, instead observing that Plaintiffs pled that raw aluminum was“melted as specifically designed and intended by {the metal suppliers] in furnaces during foundry operations.” (Opinion at p. 17, fn. 12.) The Court of Appeal placed great emphasis on that allegation in rejecting Maxton, determining that the componentparts doctrine did not apply because, “the FAC alleges that Ramos suffered injuries not from a defective ‘integrated product’ that incorporated respondents’ products,but from those products themselves, which he used as respondents intended in the course of Supreme’s manufacturing process.” (Opinionat p. 23.) But the Court of Appeal did not take into account three key specific pleading inconsistencies that should have led it to disregard that conclusory statement: (1) that the aluminum was “not designed to the exact specifications of Supreme Casting & Pattern, Inc.;” {9 AA 2344:26-2345:1} (2) that no fewer than seven different defendants were alleged to have provided the same raw aluminum product to Supreme Casting {9 AA 2275: 1-6, 14-16; 2276:1-6, 11-16; 21-26; 2277:1-3; 2278:8-16; 2279:8-12}; and 17 (3) that the aluminum was “not substantially altered in any way prior to or during the period that Plaintiff, Flavio Ramos, used and wasthereby exposed”to the products during the manufacturing processes at Supreme Casting. {9 AA 2351:13-20} The allegation that the aluminum wasnot designedto the exact specifications of Supreme Casting is important becauseit contradicts the allegation that Respondents’ aluminum products were “melted as specifically designed and intended by Defendants in furnaces during foundry operations throughoutPlaintiff's employment at Supreme Casting & Pattern, Inc.” Either Respondents designed their products for a specific intended use at Supreme Casting, or they did not. Both statements cannot be true. Thefalsity of the allegation of specific design for Supreme Casting is amply demonstrated by Ramos’s allegations that Supreme Casting boughtthe same raw aluminum product from seven different suppliers, which is more consistent with the fact that the aluminum was simply a commodity that Supreme Casting bought from the supplier with the lowest currentprice. ~ Perhaps the most glaring inconsistency in Ramos’s allegationsis that betweenthe statements that the aluminum was melted as specifically designed and intended by Respondents, and thatit was “not substantially altered in any way.” Ignoring this inconsistency was central to the Court of Appeal’s ruling, for only by accepting as true both ofthe inconsistent 18 allegations that the aluminum was melted as specifically designed and intended and that the aluminum “wasnotsubstantially altered in any way” could the Court of Appeal reach its conclusion that Respondent wasliable. These contrary pleading allegations, taken collectively, belie the allegation that any of the Respondents specifically designed or had any intent whatsoever with respect to Supreme Casting’s use of their products. Rather, those allegations support much morereadily that Respondents’ products were raw materials, i.e., commodity metals, and that Respondents had nospecific intent or knowledge as to how Supreme Casting would use them. Thus, had the Court of Appeal properly disregardedthe false conclusory statementthat the metals were melted as specifically designed and intended by Respondents, as did the court in Maxton, the component parts or raw material supplier doctrine would have applied, andthetrial court’s judgment in favor of Respondents would have been affirmed. C. Alternatively, the Court should “grant and hold” pending Webb. The Court mayalso grant review and “hold” the case (Rules of Court, rule 8.5 12, subd. (d)(2)) pending its determination of another case presently before the Court: Webb v. Special Electric Co., Inc., Case No. $209927. This Court’s website summary ofthe issues states: “This case presents the following issues: (1) Should a defendantthat supplied raw 19 asbestos to a manufacturer of products be found liable to [those who | worked with the manufacturer’s products] on a failure to warn theory?” While there are certainly differences between the present case and Webb, they both involvethe sale of a raw material to someoneelse, over whomtheseller has no control. This Court’s decision in Webb could well determine, and would all but certainly shape, the proper result in the present case. Vv CONCLUSION The Court ofAppeal’s decision is directly contraryto another decision on the same point; expandsliability for suppliers of raw materials; threatens to erode accepted boundaries of tort duty in other areas as well; and indulges fanciful inconsistencies in the operative complaint. For these reasons, and because review is necessary to ensure uniformity of decision, Respondents respectfully request that this Court grant this petition for review. Respectfully submitted, Dated: April 30, 2014 GORDON & REES LLP By: \a\Wiuelne P. Gerhardt Zacher Don Willenburg Matthew P. Nugent: Attorneys for Petitioner, Defendant and Respondent SCHORR METALS,INC. Att: Court of Appeal decision 20 WORD COUNT CERTIFICATION I certify pursuant to Rules of Court, rules 8.204(c) and 8.504(d)(1) that the word countofthe foregoing petition is 4450 words exclusive of portions not countedbyrule, as calculated by the word processing program used to producethepetition. April 30, 2014 \wWheelie Don Willenburg 21 CERTIFICATE OF SERVICE I am a residentof the State of California, over the age of eighteen years, and nota party to the within action. My business address is: Gordon & Rees LLP, 275 Battery Street, Suite 2000, San Francisco, California 94111. On the date below, I served the within document(s): SCHORR METALS,INC.’s PETITION FOR REVIEW by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in United States mail in the State of California addressed as set forth below: SEE ATTACHED SERVICE LIST I am readily familiar with the firm’s practice of collection and processing correspondencefor mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motionofthe party served, service is presumedinvalid if postal cancellation date or postage meter date is more than onedayafter the date of deposit for mailingin affidavit. I declare under penalty of perjury under the lawsof the State of California that the aboveis true and correct. Executed on April 30, 2014, at San Francisco, California. Eileen Spiers 22 19033172y.1 SERVICE LIST ATTORNEY PARTY Raphael Metzger Plaintiff/Appellant FLAVIO Ken Holdren RAMOS; LAW OFFICES OF RAPHAEL MODESTA RAMOS METZGER 401 E. Ocean Blvd, Suite 800 Long Beach, CA 90802-4966 Brian P. Barrow SIMON GREENSTONE PANATIER BARTLETT 301 E. Ocean Blvd., Suite 1950 Long Beach, CA 90802 Plaintiff/Appellant FLAVIO RAMOS Robert Kum Defendant/Respondent Mathew R.Groseclose BRENNTAGSPECIALTIES, SEDGWICK LLP INC.; 801 S. Figueroa St., 18th FI. Defendant/Respondent Los Angeles, CA 90017-5556 BRENNTAG NORTH AMERICA Alison Anderson Williams-Andre SEDGWICK DETERT MORAN & ARNOLD 801 S. Figueroa St., 19th FI. Los Angeles, CA 90017 Eugene C.Blackard Jr., Esq. Attorneys for Di Mario Corp., ARCHER NORRIS Inc. 2033 N. Main St., Ste 800 Walnut Creek, CA 94596-3759 T: (925) 930-6600; F: (925) 930-6620 Ruth Segal Rosemary H. Do LYNBERG & WATKINS 888 S. Figueroa St., 16th FI. Los Angeles, CA 90017-5449 Defendant/Respondent PORTER WARNERINDUSTRIES, LLC Kevin Lee Place Archer Norris 333 S. Grand Avenue, Suite 3680 Los Angeles, CA 90071 Defendant/respondent THE PRYOR-GIGGEY COMPANY Thomas C. HurrellErica BiancoHURRELL & CANTRALL, LLP700 S. FlowerSt., Suite 900Los Angeles, CA 90017 Defendant/Respondent UNITEDSTATES GYPSUMCOMPANY;Defendant/RespondentWESTSIDE BUILDINGMATERIALS CORPORATION 23 PARTYATTORNEY Jill A. Franklin Defendant/Respondent SCOTT | SCHAFFER, LAX, MCNAUGHTON SALES COMPANY & CHEN 515 S. Figueroa Street, Suite 1400 Los Angeles, CA 90017 David L. Winter Defendant/Respondent BATES WINTER & CAMERON, SOUTHWIRE COMPANY LLP 925 Highland Pointe Drive, Ste 380 Roseville, CA 95678 Diane Flannery MCGUIREWOODS LLP One James Center 901 East Cary Street Richmond, VA 23219-4030 804.775.1015 (Direct Line) 804.698.2047 (Direct FAX) Defendant/Respondent CENTURY KENTUCKY,INC. Douglas W. Beck LAW OFFICERS OF DOUGLASW. BECK 21250 Hawthorne Blvd., Suite 500 Torrance, CA 90503 Defendant/Respondent SCHORR METALS,INC. Susan Lauren Caldwell KOLETSKY MANCINI, ET CL. 3460 Wilshire Blvd., 8th Floor Los Angeles, CA 90010 Defendant/Respondent TST, INC. Stephen C. Snider Defendant/Respondent J.R. SNIDER, DIEHL & RASMUSSEN SIMPLOT COMPANY P.O. Box 650 1111 W. Tokay Street Lodi, CA 95241 Stephen C. Chuck Defendant/Respondent Victoria Jane Tsoong RESOURCE BUILDING CHUCK BIRKETT TSOONG MATERIALS 790 E. Colorado Blvd., Suite 793 Pasadena, CA 91101 Clerk for the Hon. Amy D. HogueLOS ANGELES SUPERIOR COURT111 N. Hill Street, Dept. 34Los Angeles, California 90012-3014 24 ATTORNEY PARTY California Court of Appeal Second Appellate District, Div. 4 Ronald Reagan State Building 300 S. Spring Street 2nd Floor, North Tower Los Angeles, CA 90013 25 Filed 3/21/14 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR FLAVIO RAMOSetal., B248038 (Los Angeles County Plaintiffs and Appellants, Super. Ct. No. BC449958) Vv. BRENNTAGSPECIALTIES,INC.,et al., Defendants and Respondents. APPEAL from a judgmentofthe Superior Court of Los Angeles County, AmyD. Hogue,Judge. Affirmedin part, reversed in part, and remanded with directions. Metzger Law Group, Raphael Metzger and Kenneth A. Holdren; Simon Greenstone Panatier Bartlett and Brian P. Barrow for Plaintiffs and Appellants. Lynberg & Watkins, Ruth Segal and Rosemary Do for Defendant and Respondent Porter WarnerIndustries. W.Eric Blumhardt, Tiffany J. Gates and Archer Norris; Kevin L. Place for Defendants and Respondents P-GIndustries, Inc. and The Pryor-Giggey Company. | Snider, Diehl & Rasmussen, Stephen C. Snider and Trenton M.Diehl for Defendant and Respondent J.R. Simplot Company. Gordon & Rees, Roger Mansukhani and Brandon D. Saxon for Defendant and Respondent Laguna Clay Company. Schaffer, Lax, McNaughton & Chen,Jill A. Franklin and YaronF. Dunkel for Defendant and RespondentScott Sales Co. | Chuck Birkett Tsoong, Stephen S. Chuck, Tiffany M. Birkett and VictoriaJ. Tsoong for Defendant and Respondent Resource Building Materials. Gordon & Rees, P. Gerhardt Zacher and Matthew P. Nugent for Defendants and Respondents Alcoa Inc. and Schorr Metals, Inc. Bates Winter & Cameron, David L. Winter and Christopher R. Robyn for Defendant and Respondent Southwire Company. | K & L Gates and Michele Barnes for Defendant and Respondent AlcoaInc. McGuire Woods and Diane Flannery for Defendant and Respondent Century Kentucky,Inc. Koletsky, Mancini, Feldman & Morrow andSusanL. Caldwell for Defendant and RespondentTST,Inc. Hurrell Cantrall, Thomas C. Hurrell and Melinda Cantrall for Defendants and Respondents, United States Gypsum Co. and Westside Building Material Corp. In the underlying action, appellants Flavio Ramosandhis wife asserted claims against respondents for negligence, negligence perse,strict liability, and loss of consortium, alleging that Ramos’s exposureto their products during his employmentat a metal foundry caused his pulmonary fibrosis.! Respondents demurrered to the claims on the groundthat they failed under the componentparts doctrine, as applied in Maxton v. Western States Metals (2012) 203 Cal.App.4th 81 (Maxton). Relying on Maxton,thetrial court sustained respondents’ demurrer without leave to amend andthereafter entered a judgmentof dismissal. With the exception of appellants’ claim for negligence per se, we conclude that the complaint states viable claims, and we respectfully disagree with the holding in Maxton. As we explain, the componentparts doctrine doesnot shield a product supplier from liability when a party alleges that he suffered direct injury from using the supplier’s product as the supplier specifically intended. We therefore affirm in part, reverse in part, and remand with directions to thetrial court to enter a new order overruling respondents’ demurrers to appellants’ claims, with the exception of the claim for negligence perse. RELEVANT PROCEDURAL BACKGROUND On November 19, 2010, appellants initiated the underlying action. Their second amended complaint (SAC) contained claims against respondents for _ negligence, negligence perse,strict liability based on a failure to warn and design defects, fraudulent concealment, breach of implied warranties, and loss of consortium. | __ The SACalleged that from 1972 to 1978 and from 1981 to 2009, Ramos worked as a mold maker, machine operator, and laborer for Supreme Casting & Pattern, Inc. (Supreme), which manufactured metalparts through “a foundry and 1. Although both Flavio Ramosand his wife are appellants in this action, our references to Ramosrefer to Flavio. fabrication process.”2 While employed by Supreme, Ramos worked “with and around”metals, plaster and minerals that respondents supplied to Supreme. Respondents AlcoaInc., Schorr Metals, Inc., Southwire Company, Century Kentucky,Inc. and TST,Inc. (metal suppliers) provided metal products, which were melted in furnaces to form metal castings. The casting process used molds created from plaster, sand, limestone and marble supplied by the remaining respondents, United States Gypsum Co., Westside Building Material Co., Porter WarnerIndustries, LLC., Resource Building Materials, P-G Industries, Inc., The Pryor-Giggey Company,J.R. Simplot Company, Laguna Clay Company,and Scott Sales Co. (mold material suppliers).3 According to the SAC, Ramos developed interstitial pulmonary fibrosis as the result of his exposureto,inter alia, fumes from the molten metal and dust from theplaster, sand, limestone and marble. Respondents sought judgmenton the pleadings regarding the SAC, contending that appellants’ claims failed under Maxton, which addressed similar claims under circumstances resembling those alleged in the SAC.4 There, the plaintiff asserted claims for negligence, negligenceperse,strict liability, fraudulent concealment, and breach of implied warranties against several defendants who had supplied metal products to his employer. (Maxton, supra, 203 2 The SACalso alleged that from 1979 to 1980, Ramos performedsimilar duties while employed by a different metal parts manufacturer. 3 The SACalleges that those respondents provided the following materials: United States Gypsum Co.(plaster), Westside Building Material Co. (plaster), Porter Warner Industries, LLC. (plaster and zircon sand), P-G Industries, Inc. (plaster and zircon sand), The Pryor-Giggey Company(plaster and zircon sand), J.R. Simplot Company(silica sand), Laguna Clay Company,(limestone), Scott Sales Co.(limestone), Brenntag _ Specialties, Inc. (limestone), and Resource Building Materials (limestone and marble). 4 After Alcoa Inc.filed the motion for judgment on the pleadings based on Maxton, several ofthe other respondents joined in the motion. . Cal.App.4th at pp. 85-86.) The operative complaintallegedthat the plaintiff, while employedas a laborer, “‘worked with and around’” those metal products, which were cut, ground, sandblasted, welded, and brazed during his employer’s manufacturing process. (Id. at p. 86.) The complaintfurther alleged that the suppliers failed to disclose the hazardsoftheir products to the plaintiff, who developed interstitial pulmonary fibrosis due to his exposure to metallic fumes and dust from the products. (/bid.) The suppliers filed demurrers and a motion for judgmenton thepleadings, asserting that the plaintiffs’ claims failed under the so-called “componentparts doctrine.” (Maxton, supra, 203 Cal.App.4th at p. 88.) The trial court agreed, and ruled in the suppliers’ favor without affording the plaintiff leave to amendhis complaint. (/d. at p. 95.) In affirming the judgmentofdismissal, the appellate court placed special emphasis on the discussion of the componentparts doctrine in Artiglio v. General Electric. Co. (1998) 61 Cal.App.4th 830, 838-839 (Artiglio). The appellate court concluded that the doctrine, as set forth in Artiglio, shielded the suppliers from liability to the plaintiff arising from the use oftheir metal products in the manufacturing process. (Maxton, supra, at pp. 88-95 & fn. 3.) | In the instantaction,the trial court granted judgment on the pleadings regarding the SAC with leave to amend,and advised appellants that to state causes of action, they must “plead around . . . Artiglio,” as interpreted in Maxton. After appellants filed their third amended complaint, respondents asserted demurrers based on Maxton, which the court sustained with leave to amend. When appellants filed their fourth amended complaint (FAC), respondents again demurred on the basis ofMaxton. The court sustained the demurrers without leave to amend,and entered a joint judgmentof dismissal in favor of respondents. This appeal followed. DISCUSSION Appellants maintain the trial court erred in sustaining the demurrers to the FAC. Their principal contentionis that the injuries alleged in the FAC fall outside the componentparts doctrine. They assert that the doctrine, when applicable, relieves a supplier of componentparts from liability for injuries arising from an end product into which the supplier’s parts have been integrated. Because the FACalleges that Ramos’s injuries resulted from the direct and intended use of respondents’ products, and not from injuries resulting from the use of any end product, appellants argue the componentparts doctrine does not shield respondents from liability. We agree.5 A. Standards ofReview “Because a demurrer bothtests the legal sufficiency of the complaint and involvesthetrial court’s discretion, an appellate court employs two separate standards of review on appeal. [Citation.]... Appellate courts first review the complaint de novo to determine whether. . . the complaint alleges facts sufficient to state a cause of action underany legal theory, [citation], or in other words, to 5 Appellants raise two other contentions: (1) that the componentparts doctrine is an affirmative defense; and (2) that the FAC successfully ““plead[ed] around”the specific elements of the defense, as stated in Artiglio. Generally, a demurrer predicated on an affirmative defense is properly sustained only when “the face of the complaint discloses that the action is necessarily barred by the defense.” (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183.) As explained below (see pt. C.4 & C.5., post), we conclude that underthefacts alleged in the FAC, the componentparts doctrine is inapplicable to the types of claims asserted in the FAC, and thus does not shield respondents from liability for Ramos’s injuries. Accordingly, it is unnecessary to resolve whetherthe doctrine constitutes an affirmative defense. For similar reasons, it is unnecessary to determine whether the FAC adequately pleaded aroundthe doctrine, as set forth in Artiglio. determine whether. . . the trial court erroneously sustained the demurrer as a matter of law. [Citation.]” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th. 857, 879, fn. deleted (Cantu).) “Second, if a trial court sustains a demurrer without leave to amend, appellate courts determine whether. . . the plaintiff could amend the complaintto state a cause of action. [Citation.]” (/d. at p. 879,fn. 9.) Underthefirst standard of review, “we examine the complaint’s factual allegations to determine whether they state a cause ofaction on anyavailable legal theory. [Citation.] Wetreat the demurrer as admitting all material facts which were properly pleaded. [Citation.] However, we will not assumethe truth of contentions, deductions, or conclusions of fact or law [citation], and we may disregard any allegationsthat are contrary to the law or to a fact of which judicial notice may be taken. [Citation.]” (Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 947.) In reviewing an order sustaining a demurrer, we will affirm the order on any groundraised in the demurrer, regardless of whetherthetrial court relied on it; moreover, we will consider new theories offered on appeal to support the ruling. (B & P Development Corp. v. City ofSaratoga (1986) 185 Cal.App.3d 949, 959.) Under the secondstandard of review, the burden falls upon theplaintiff to show whatfacts he or she could plead to cure the existing defects in the complaint. (Cantu, supra, 4 Cal.App.4th at p. 890.) “To meet this burden, a plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action.” (bid.) Here, appellants neither offer nor suggest factual amendments to the FAC. Ourinquiry is thus focused primarily on a question of law, namely, whether the facts as alleged in the FAC necessarily invoke the application of the component parts doctrine. B. Governing Principles Webegin by discussing the principles governing tort claims involving defective products, giving special attention to their application when a worker alleges injuries from products supplied to his or her employer for use by the employer’s workers. 1. Liability For Product Defects Generally, a plaintiff may seek recovery in a “products liability” case either on a theory ofstrict liability or on a theory of negligence. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 478.) Undereither theory,the plaintiff must prove that a defect in the product caused injury. (/bid.) In addition, to establish a negligence theory, a plaintiff must prove that the defect in the product was dueto the defendant’s negligence. (/bid.) Generally, recovery is permitted for three kinds of defects: manufacturing defects, design defects, and warning defects, thatis, inadequate warningsor failures to warn. (Andersonv. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995; Merrill v. Navegar, Inc., supra, 26 Cal.4th at p. 479; Powell v. Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 363- 364.) Here, the FAC containsstrict liability claims for warning and design defects. The “defective warning” claim alleges that respondents failed to warn Ramosof“scientifically known and knowable” hazardsrelated to his use of their products. “Generally speaking, manufacturers have a duty to warn consumers about the hazardsinherentin their products. [Citation.] The requirement’s purpose is to inform consumersabout a product’s hazards and faults of which they _ are unaware, so that they can refrain from using the product altogether or evade the dangerby careful use.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.) A productthat is otherwise flawless in its design and manufacture “