RAMOS v. BRENNTAG SPECIALTIES

Respondents, P-G Industries, Inc., and The Pryor-Giggey Company, Petition for Review

Cal.April 30, 2014

5218176 BS No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA FLAVIO RAMOS,etal., SUPREME COURT Plaintiffs and Appellants ia | i. E t) V. APR 30 2014 BRENNTAG SPECIALTIES,et al., "'ank A. McGuire Clerk Defendants and Respondents Deputy P-G INDUSTRIES, INC. AND THE PRYOR-GIGGEY ~ COMPANY’S PETITION FOR REVIEW After Decision By The Court ofAppeal, Second Appellate District, Division Four No. B248038 Los Angeles County Superior Court, No. BC449958 The Honorable Amy D. Hogue *W. Eric Blumhardt (SBN 109256) Kevin L. Place (SBN 170827) rblumhardt@archernorris.com kplace@archernorris.com - Tiffany J. Gates (Bar No. 279447) ARCHER NORRIS ARCHER NORRIS 333 S. Grand Ave., Suite 1700 2033 North Main Street, Suite 800 Los Angeles, CA 90071 Walnut Creek, CA 94596-3759 Telephone: (213) 437-4000 Telephone: 925.930.6600 Facsimile: (213) 437-4011 Facsimile: 925.930.6620 Attorneys for Petitioners P-G INDUSTRIES, INC. and THE PRYOR-GIGGEY COMPANY No. IN THE SUPREME COURT| OF THE STATE OF CALIFORNIA FLAVIO RAMOS,etal., Plaintiffs andAppellants V. BRENNTAG SPECIALTIES,et al., Defendants and Respondents P-G INDUSTRIES, INC. AND THE PRYOR-GIGGEY COMPANY’S PETITION FOR REVIEW After Decision By The Court of Appeal, Second Appellate District, Division Four No. B248038 Los Angeles County Superior Court, No. BC449958 The Honorable Amy D. Hogue *W. Eric Blumhardt (SBN 109256) Kevin L. Place (SBN 170827) rblumhardt@archermorris.com kplace@archernorris.com - Tiffany J. Gates (Bar No. 279447) ARCHER NORRIS ARCHER NORRIS 333 S. Grand Ave., Suite 1700 2033 North Main Street, Suite 800 . Los Angeles, CA 90071 Walnut Creek, CA 94596-3759 Telephone: (213) 437-4000 Telephone: 925.930.6600 Facsimile: (213) 437-4011 Facsimile: 925.930.6620 Attorneys for Petitioners P-G INDUSTRIES,INC. and THE PRYOR-GIGGEY COMPANY TABLE OF CONTENTS Page I. QUESTION PRESENTED 0... cecesseeeeeeeenenesensesesetseeeentaseseeeaees 1 I. - WHY REVIEW SHOULDBE GRANTED. ..sessssssenoeecece] Ill. BACKGROUND.............,deaseseceaceaeeateceeseseaseasessenssaossseesacesessvessateneees 2 ‘A. Underlying Facts as Alleged in the Pleadings................00 2 B. Ramosand His Wife File the Underlying Action.................. 2 C. The Operative Pleading ......... cc cesseseeseteeseeseeeseeeseereaaeeesens 4 D. Petitioners’ Demurrer and the Trial Court’s Ruling.............. 5 E. The Court of Appeal’s Decision .....0....cccesssceeessensceeseneeeneees 5 F, Petition for Rehearing.............sssssssssessessenscereesesseseessesseeseees 5 TV. LEGAL DISCUSSION...eeeeeeeeees saceueceeeseensoasonsessestonsadeasoonses 6 A. Review Is Necessary To Resolve an Intra-District Split . Regarding the Scope of the ComponentParts Doctrine........ 6 l. Maxton held that the componentparts doctrine precludes liability where componentparts are supplied to a manufacturer and the manufacturer’s employee sustains personal injury while using the componentpart to manufacture another product 00.0... eeessesssesseeeseneeees 7 2. The Court of Appeal here expressly disagreed with Maxton and, instead, held that the componentparts doctrine is applicable only whenthe alleged injury is caused by some “finished product” into which the supplier’s parts have been integrated 0.0.0... csessseseseereeeserens 8 V. CONCLUSION 2.0...eee eeeessesenesesssececeseeeeescnensaesseeesseeneseesenaeeenns 12 TABLE OF AUTHORITIES California Supreme Court Cases Johnson v. American Standard (2008) 43 Cal.4th 56.0... cccesscssssscseessesesssssessersnennsereeenes California Court of Appeal Cases Artiglio v. General Electric Co. Page sesseneeenensseeees 9 (1998) 61 Cal.App.4th 830 oceessesssscssseseseeseeesssseneeeneneneeees 1, passim Maxton v. Western States Metals (2012) 203 Cal.App.4th 81...essuussnsanssseeeeceusvesiennete 1, passim Springmeyer v. Ford Motor Co. (1998) 60 CalApp.4th 1541 oo. ceecsceseseeteeeteeeetreenneeses Taylor v. Elliot Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564 .....cccssssssssssssssseeeseeeeseen Webbv. Special Electric, Co. (2013) 214 Cal.App.4th 595 .......cesceseseseseernesneseeeseeeseeens United States Court of Appeal Cases Beale v. Hardy (4th Cir. 1985) 769 F.2d 213... ceseseeeenees . sesnesaeeseesneenees Ryntz v. Afrimet Indussa, Inc. Strong v. E. I. Du Pont de Nemours Co., Inc. (Sth Cir, 1981) 667 F.2d 682 ...cccssssssssssssssssssseeeeceeee United States District Court Cases In re Related Asbestos Cases (N.D.Cal. 1982) 543 F.Supp. 1142 ..sessssssssssseseeeeeen -ii- eenenscnaes 10, 11 sesecenseees 10, 11 seunseeseuianneee 9 seetesesessoanens 10 (6th Cir, 1989) 887 F.2d 1087 oo... ceeeeeeseeetseeeeeseneenecseesessssteneerseenees 10 seveaeeseeeneaeaeas 9 seseeseeeneeenseness 9 Smith v. Walter C. Best, Inc. (W.D.Penn. 1990) 756 F.Supp. 878 .......sccscsscssesseresetecteeeeeeeeteeees 10 California Rules of Court Rule 8.500(b)(1)...essceeeeeees scsucsusssecsucsucsuecauscescsuessesnuctecaessecsecersesssessseeseaseeassees 2 Rule 8.504(D)(4) sccccsssssssesesssssesssssssssssssssssssssssssssnssssssnanvessiseeseeseceereeenesnnnaensses 5 - iii - 1 QUESTION PRESENTED Does the componentparts doctrine shield componentpart suppliers from liability where the employee of a manufacturersustains personal injury while using the componentpart to manufacture another product? II. WHY REVIEW SHOULD BE GRANTED This case probes a matter of statewide importance: the scope of the componentparts doctrine. Underthat doctrine, componentpart suppliers are notliable to ultimate consumers whenthe products they supply are not inherently dangerous,are sold in bulk to a sophisticated buyer, are ~ substantially changed during the manufacturing process, and the supplier has a limited role in developing and designing the end product. (Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830, 839.) In Maxtonv. Western States Metals (2012) 203 Cal.App.4th 81, Division Threeofthe Second Appellate District held that, for purposes ofthe componentparts doctrine, the “consumer” to whom componentpart suppliers. cannot be held liable can be “an employee of a manufacturer using the . . . componentpart to make an end product.” (/d. at-p. 89, fn. 3.) In other words, under Maxton, the componentparts doctrine precludes liability where the employee of a manufacturer is injured while using the componentpart to manufacture another product. In the present case, the Court of Appeal expressly disagreed with Maxton on this point and held precisely the opposite—the componentparts doctrine does vot preclude liability where the alleged injury occurs during the manufacturing process; instead, according to the Court ofAppeal, the componentparts doctrine precludes liability only where the alleged injury was caused by some“finished product” into whichthe supplier’s product has been integrated. (See Opn.at pp. 20-26.) Thus, the Court of Appeal has created a conflict with Maxton, throwing the law regarding the scope of the componentparts doctrine into disarray and calling for this Court’s intervention to “secure uniformity of decision.” (See Cal. Rules of Court, rule 8.500(b)(1).) HI. BACKGROUND A. Underlying Facts as Alleged in the Pleadings From 1972 to 1978 and from 1981 to 2009, Flavio Ramos was an employee at Supreme Casting & Pattern, Inc. (“Supreme”) in Southern California. (AA 2280.) During the course of his employment with Supreme, Ramospoured, scooped, and swept plaster and sand products that were supplied by Petitioners P-G Industries, Inc. and the Pryor-Giggey Company(collectively, “petitioners”). (AA 2280-2281, 2296-2297, 2331- 2332.) According to Ramosandhis wife, these products comprised various inorganic toxins that Ramos inhaled while handling the products. (AA 2296-2297, 2331-2333.) This exposure allegedly caused Ramosto develop interstitial pulmonary fibrosis. (AA 2356-2357.) B. Ramosand His Wife File the Underlying Action In a complaintfiled on November 19, 2010, Ramosandhis wife alleged causesofaction for negligence, negligence perse, strict liability for failure to warn,strict liability for design defect, fraudulent concealment, breach of implied warranties, and loss of consortium against manufacturers and suppliers of various metal, mineral, and plaster materials. (AA 1-94.) Thereafter, Ramos and his wife amended their complaint twice, removing some defendants and replacing some Doe defendants with newly-identified named defendants, including petitioners. (Compare AA 3-6 with AA 97- 101; see also AA 173.) The substanceoftheir allegations, however, remained the same. On February 1, 2012—after Ramosandhis wife filed their second amended complaint—Division Three of the Second Appellate District decided Maxton. Maxton held that under the componentparts doctrine, suppliers of componentparts to manufacturers cannotbe liable to the manufacturers’ employees whosustain personal injuries as a result of using the componentparts to manufacture another product. (203 Cal.App.4th at p. 85.) Only in extraordinary circumstances—such as when the component parts are inherently dangerous, the buyer is not sophisticated, the componentparts remain substantially unchanged during the manufacturing process, or the supplier exercises substantial control over the manufacturing process—cansuppliers be held liable. (See ibid.; see also id. at pp. 88-89, citing Artiglio, supra, 61 Cal.App.4th atp. 839.) Relying on Maxton, Alcoa,Inc. (“Alcoa”), another named defendant in the underlying action, filed a motion for judgment on the pleadings on May20, 2012. (AA 240-261.) Petitioners joined Alcoa’s motion. (AA 594-602.) Thetrial court granted Alcoa’s motion for judgment on the pleadings and petitioners’ motion to join, but permitted Ramosandhis wife to amendtheir pleading, instructing them to “plead around Artiglio.” (AA - 1287-1290.) On July 27, 2012, Ramosandhis wife filed a third amended complaint. (AA 1295-1417.) The third amended complaint included allegations that presumably were intended to “plead around Artiglio.” Amongthe newallegationsin the third amended complaintwasthat the plaster and sand products supplied by petitioners were “inherently hazardous” because they contained toxicologically significant amounts of substances that are categorized as “hazardous” within the meaning of various regulations. (AA 1374, 1378, 1389, 1395, 1400-1401; see also AA -3- 1326-1333, 1355-1363 [discussing specific regulations].) Ramos and his wife further alleged that Supreme wasnota sophisticated buyer because none of the owners, managers, or employees responsible for the health and safety ofworkers were aware that exposure by inhalation to the substances in the plaster and sand products supplied by:petitioners could lead to disease. (AA 1363, 1365-1366.) Finally, Ramos and his wife alleged that the plaster and sand products werenotsubstantially altered prior to Ramos’s exposure to them;instead, he handled these productsin essentially their raw form. (AA 1366-1370.) ‘Petitioners demurred to the third amended complaint—again, citing Maxton and arguing that the componentparts doctrine precludedliability. (AA 1799-1815, 1880-1881.) On September 27, 2012, the trial court sustained petitioners’ demurrer with leave to amend,finding that Ramos and his wife had failed to “plead around several of the Artiglio factors,” as required by its previous order. (AA 2241-2242.) C. The Operative Pleading In a final attemptto cure the defects in their pleadings, Ramos and his wife filed a fourth amended complaint—the operative pleading—on October 16, 2012. (AA 2261-2394.) Most notably, the term “inherently dangerous”appeared in the fourth amended complaint where the term — “inherently hazardous” had previously appearedin the third amended complaint. (Compare AA 1326, 1355 with AA 2298, 2333.) Ramos and his wife also included an additional allegation that Supreme wasnot a sophisticated buyer because it had “a relatively small numberof employees,” none of those employees were “industrial hygienists, toxicologists, [or] safety engineers,” and none of them had “knowledge or training in using sand[andplaster] products safely ....” (AA 2343, 2346.) D. Petitioners’ Demurrerand the Trial Court’s Ruling On November15, 2012, petitioners demurred to the fourth amended complaint—once again, citing Maxton and arguing that the component parts doctrine precluded liability. (AA 2499-2516.) Following a hearing on December13, 2012, the trial court sustained petitioners’ demurrer without leave to amend, agreeing that the componentparts doctrine precluded liability. (AA 2969-2970, citing Artiglio and Maxton.) Judgmentofdismissalas to petitioners was entered on February 19, 2013. (AA 3002-3003.) Notice ofEntry of Judgment wasserved on February 21, 2013. (AA 2999-3008.) Ramosandhis wife timely appealed. (AA 3009.) E. The Court of Appeal’s Decision On March 21, 2014, the Court ofAppeal reversed the superior court’s decision in a published opinion.’ The Court ofAppeal expressly disagreed with Maxton and held that the componentparts doctrine does not ‘shield a componentpart supplier from liability where a manufacturer’s employee is allegedly injured while using the supplier’s product to manufacture a different product; instead, according to the Court ofAppeal, the componentparts doctrine precludesliability only where the alleged injury wascaused by some“finished product” into which the supplier’s producthas been integrated. (See Opn.at p. 3; see also Opn.at pp. 20-26.) In so holding, the Court of Appealhas created a decisional conflict regarding the scope of the componentparts doctrine. F. Petition for Rehearing Alcoa and Schorr Metals, Inc. (another named defendant in the underlyingaction)filed a petition for rehearing with the Court of Appeal, ' A copy ofthe Court of Appeal’s opinionis attached hereto, pursuant to California Rules of Court, rule 8.504(b)(4). -5- whichpetitioners joined. On April 15, 2014, the Court of Appeal denied the petition. IV. LEGAL DISCUSSION A. Review Is Necessary To Resolve an Intra-District Split Regarding the Scope of the ComponentParts Doctrine The componentparts doctrine is a four-factor test, articulated by the court in Artiglio, which limits the liability of componentpart suppliers. Specifically, the doctrine provides that “component and raw material suppliersare not liable to ultimate consumers when [1] the goods or material they supply are not inherently dangerous, [2] they sell goods or material in bulk to a sophisticated buyer, [3] the material is substantially changed during the manufacturing process and [4] the supplier hasa limited role in developing and designing the end product.” (Artiglio, supra, 61 Cal.App.4th at p. 839, bracketed numbers added.) “Whenthese factors exist, the social cost of imposing a duty to the ultimate consumersfar exceeds any additional protection provided to consumers.” (Jbid.) Recently, two separate divisions of the Second Appellate District have confronted the issue of whetherthis doctrine precludes liability where componentparts are supplied to a manufacturer and the manufacturer’s employee sustains personal injury while using the componentpart to _ manufacture another product. One division—Division Three—heldthat the componentparts doctrine shields the supplier from liability in that situation. (See Maxton, supra, 203 Cal.App.4th at p. 85.) But the other division— Division Four—held that it does not. (See Opn.at pp. 20-26.) Thus, the scope of the component parts doctrine is now unclear, and this Court’s intervention is necessary to resolve this now-unsettled area ofthe law. 1, Maxton held that the componentparts doctrine precludes liability where componentparts are suppliedto a manufacturer and the manufacturer’s employee sustains personal injury while using the componentpartto manufacture another product. In Maxton, Division Three of the Second Appellate District held that the component parts doctrine precludesliability where the employee of a manufacturer is injured while using the component part to manufacture another product. (203 Cal.App.4th at pp. 88-89 & fn. 3.) The material allegations in Maxton were as follows: from 1975 to 2007,the plaintiff (Maxton) workedas a laborer for LeFiell Manufacturing. (Jd. at p. 86.) Throughout his employment with LeFiell, Maxton worked with and around various metal products, which generated and released toxic dust and fumes. (Ibid.} Maxton inhaled that dust and those fumesand,as a result, | developedinterstitial pulmonary fibrosis. (Ibid.) Maxton sued the suppliers of the various metal products, alleging causes of action for negligence andstrict liability, among others. (/d. at p. 87.) Some ofthe defendants demurred, while others moved for judgment on the pleadings, asserting that the componentparts doctrine barred Maxton’scauses of action. (Id. at p. 86.) The trial court sustained the demurrers and granted the motions. (/bid.) On appeal, Division Three of the Second Appellate District affirmed. (Maxton, supra, 203 Cal.App.4that p. 96.) After reciting the component parts doctrineas articulated by Artiglio, the court explained thatthe doctrine applies where, as in Maxton’s case, the componentparts were | supplied to a manufacturer and the manufacturer’s employee was allegedly ‘injured while using the componentparts to make another product. (/d. at pp. 88-89 & fn. 3.) And applying Artiglio’s four-factor test to the facts of Maxton’s case, Division Three of the Second Appellate District concluded that Maxton could not maintain his various causes of action against the suppliers of the metal products. (/d. at pp. 92-94.) 2. The Court of Appeal here expressly disagreed with Maxton and,instead, held that the component parts doctrine is applicable on/y when the alleged injury is caused by some“finished product” into which the supplier’s parts have been integrated. Thefacts of the present case are remarkably similar to those in Maxton. Like Maxton, Ramosalleges that he developedinterstitial pulmonary fibrosis as a result of being exposed to toxic dust and fumes while working with and aroundvarious sand and plaster products supplied by petitioners to Ramos’s employer (Supreme). (AA 2280-2281, 2296- 2297, 2331-2332, 2356-2357.) Notwithstanding these similarities, the Court of Appeal here explicitly refused to follow Maxton and apply the componentparts doctrine. (Opn.at p. 20 [“to the extent Maxton can be read to conclude that the componentparts doctrine, asset forth in Artiglio, is ordinarily applicable to the type of claim asserted in the [fourth amended complaint], we disagree .. .”].) Instead, the Court ofAppealsignificantly limited the scope of the componentparts doctrine, holdingthatit is applicable only whenthealleged injury is caused by some“finished product” into which the supplier’s parts have been integrated. (Opn.at p. 20.) Thus, this Court’s intervention is now necessary to resolvethe intra- district split created by the Court of Appeal’s decision. Reviewis particularly warranted here because, by limiting the applicability of the componentparts doctrine to situations in which the injury is causedby a “finished product,” the Court ofAppealhascutthe doctrine loose from oneofits original moorings—the sophisticated user * Notably, although the Court ofAppeal here refused to follow Maxton,it recognized that Ramos’s and his wife’s claims would fail under Maxton’s view of the componentparts doctrine. (See Opn.at p. 20.) -8- doctrine.’ (See Artiglio, supra, 61 Cal.App.4th at p. 837 [explaining that the componentparts doctrine developed, in part, from the sophisticated user doctrine].) Underthat doctrine, suppliers have no duty to warn sophisticated users of the hazards inherent in their products. (Johnson v. American Standard (2008) 43 Cal.4th 56, 65.) The rationale supporting this doctrineis that “the failure to provide warnings aboutrisks already knownto a sophisticated purchaser usually is not a proximate cause of harm resulting from those risks suffered by the buyer’s employees or downstream purchasers.” (Ibid.) As the rationale supporting the sophisticated user doctrine suggests, the doctrine may be invoked to relieve suppliers of the duty to warn the sophisticated purchaser’s employees about product-related risks. (Johnson, supra, 43 Cal.4th at p. 66, citing Strong v. E. I. Du Pont de Nemours Co., Inc. (8th Cir. 1981) 667 F.2d 682, 686-687 [natural gas pipe manufacturer had no duty to warn a naturalgasutility, or the utility’s employee, ofwell- knowngasline dangers]; see also Johnson, supra, 43 Cal.4th at p. 69, citing Inre RelatedAsbestos Cases (N.D.Cal. 1982) 543 F.Supp. 1142, 1151 [where Navy was“sophisticated user” of asbestos products,the defendants were absolvedofliability for failure to warn the Navy’s employeesofthe > Petitioners note that an issue relating to the scopeofthe sophisticated user doctrine is currently pending before this Court in Webb v. Special Electric, Co. (this Court’s case number $209927). The question presented in Webb is whether the supplier of raw asbestos (Special Electric) to a manufacturer of asbestos products (Johns-Manville) had a duty to warn the plaintiff (Webb)—whose employer purchased asbestos products from Johns- Manville—ofthe dangers of asbestos, or whether that duty was excused by the sophisticated user doctrine. (See Webb v. Special Electric, Co. (2013) 214 Cal.App.4th 595, 610-612 [concluding that although Special Electric had no duty to warn Johns-Manville, a sophisticated user, of the dangers of asbestos,it still had the duty to warn Webb,an unsophisticated, downstream user].) Given its distinct factual setting, the outcome of Webb should have no bearing on the caseat bar. As ofMarch 24, 2014, Webb has been fully briefed. products’ dangers].) Specifically, the doctrine may be invoked to preclude liability where the sophisticated purchaser’s employee wasinjured while using the supplier’s product to manufacture an endproduct. (Beale v. Hardy (4th Cir. 1985) 769 F.2d 213, 215 [holding that suppliers ofsilica sand had no duty to warn foundry’s employees of dangers associated with inhaling silica dust where foundry had extensive knowledge ofthose hazards]; Smith v. Walter C. Best, Inc. (W.D. Penn. 1990) 756 F.Supp. 878, 889 [same], affd. (3d Cir. 1990) 919 F.2d 732; see also Ryntz v. Afrimet Indussa, Inc. (6th Cir. 1989) 887 F.2d 1087 {holding that defendant cobalt suppliers had no duty to warn a purchaser’s employee of dangers associated with exposure to cobalt dust where the employer wasa sophisticated user with full knowledge ofproduct’s dangerous propensities].) It follows logically that, as an extension ofthe sophisticated user doctrine, the componentparts doctrine is also applicable in situations where,as here, a purchaser’s employeeis injured while using the supplier’s product to manufacture an end product. But the Court ofAppeal in the present case ignored this doctrinal development and, instead, concluded that the componentparts doctrine applies only to harm caused by “finished products” into which the componentpart has been integrated (Opn.at p. 20), thereby untethering the componentparts doctrine from its sophisticated-user mooring. What’s more, the Court of Appeal’s decision in the present caseis entirely inconsistent with the rationale for limiting the liability of componentpart suppliers. The componentparts doctrine recognizes that between those who manufacture end products and those who supply componentparts to make those end products, the manufactureris typically in the best position to ensure that the end productis safe. (See Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1554; see also Taylorv. Elliot Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564, 584.) The -10-. sameis true of the process used to manufacture an end product—the manufacturer, and not the componentpart supplier, is typically in the best position to ensure that the manufacturing processis safe for its employees. The Maxton court recognizedthis fact, stating that “[i]mposing liability on suppliers of [componentparts] would force them to scrutinize the buyer- manufacturer’s manufacturing process and end products in order to reduce their exposure to lawsuits. ... Courts generally do not impose this onerous burden on suppliers of [component parts] because the buyer-manufacturers are in a better position to guarantee the safety of the manufacturing process and the end product. [Citations.]” (Maxton, supra, 203 Cal.App.4that p. 89, emphasis added,citing, inter alia, Springmeyer, supra, 60 Cal.App.4th at p. 1554 and Taylor, supra, 171 Cal.App.4th at p. 584.) But under the Court ofAppeal’s conclusion here, componentpart suppliers—suchas petitioners—will be forced to undertake the oneroustask of scrutinizing the manufacturing processoftheir buyers to ensure its safety, even though the buyer-manufacturers are in the better position to do so. Such an outcome undermines the very purpose behind the componentparts doctrine. In sum,this Court’s intervention isnecessary to determine whether the componentparts doctrine precludesliability where—as hereandasin. Maxton—componentparts are supplied to a manufacturer and the manufacturer’s employeesustains personal injury while using the componentpart to manufacture another product. Maxton said thatit does; the Court of Appealin the present case said that it does not. (Compare Maxton, supra, 203 Cal.App.4th at p. 89, fn. 3 with Opn. at p. 20.) The intra-district split regarding the scope of the componentparts doctrine created by the Court of Appeal’s decision in the present case warrants this Court’s review. -ll- V. CONCLUSION For the foregoing reasons, petitioners respectfully request that this Court grant the petition for review. Respectfully submitted, Dated: April 25, 2014 ARCHER NORRIS . 2033 North Main Street, #800 Walnut Creek, CA 94596 \A W.Eric Blumhardt Attorneys for Petitioners P-G INDUSTRIES,INC. and THE PRYOR-GIGGEY COMPANY FFE242A/1799054-1 -12- CERTIFICATE OF WORD COUNT (Cal. Rules of Court, rule 8.504(d)(1)) The foregoing Petition for Review contains 3,218 words(including footnotes, but excluding tables and this Certificate). In preparing this certificate, I have relied on the word count feature generated by Microsoft Office Word 2003. Executed on April 25, “hseat Walnut- California. \kEricpesdx -13- Filed 3/21/14 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT DIVISION FOUR FLAVIO RAMOSetal., B248038 (Los Angeles County Plaintiffs and Appellants, Super. Ct. No. BC449958) Vv. BRENNTAGSPECIALTIES,INC., et al., Defendants and Respondents. APPEALfrom a judgment of the Superior Court of Los Angeles County, Amy D. 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 RespondentPorter Warner Industries. | . W.Eric Blumhardt, Tiffany J. Gates and Archer Norris; Kevin L. Place for Defendants and Respondents P-G Industries, 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 Yaron F. Dunkel for Defendant and RespondentScott Sales Co. , Chuck Birkett Tsoong, Stephen S. Chuck, Tiffany M. Birkett and Victoria J. 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 RespondentAlcoaInc. ~ McGuire Woods and Diane Flannery for Defendant and Respondent Century Kentucky,Inc. Koletsky, Mancini, Feldman & Morrow and Susan L. Caldwell for Defendant and Respondent TST,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 exposure to their products during his employment at a metal foundry caused his pulmonary fibrosis.! Respondents demurreredto 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 judgmentof dismissal. With the exception of appellants’ claim for negligence per se, we conclude that the complaintstates viable claims, and we respectfully disagree with the holding in Maxton. As we explain, the componentparts doctrine doesnot shield a productsupplier 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 directionsto the trial 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, negligenceperse, 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 metal parts through “a foundry and 1 Although both Flavio Ramosandhis 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 Alcoa Inc., 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 exposure to, inter alia, fumes from the molten metal and dust from the plaster, sand, limestone and marble. | Respondents sought judgment on 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 SACalsoalleged that from 1979 to 1980, Ramos performed similar duties while employed by a different metal parts manufacturer. 3 The SACalleges that those respondents providedthe following materials: United States GypsumCo.(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 andzircon 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 of the other respondents joined in the motion. . Cal.App.4th at pp. 85-86.) The operative complaint alleged that the plaintiff, while employed as laborer, “‘worked with and around’”those metal products, which werecut, ground, sandblasted, welded, and brazed during his employer’s manufacturing process. (Jd. at p. 86.) The complaint further alleged that the suppliers failed to disclose the hazardsoftheir productsto the plaintiff, who developedinterstitial pulmonary fibrosis due to his exposure to metallic fumes and dust from the products. (/bid.) The suppliers filed demurrers and a motion for judgmenton the pleadings, 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 judgmentof dismissal, 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 of their metal products in the manufacturing process. (Maxton, supra,at pp. 88-95 & fn. 3.) In the instant action, 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 of Maxton. The court sustained the demurrers without leave to amend,and entered a joint judgment of dismissal in favor of respondents. This appeal followed. DISCUSSION Appellants maintain the trial court erred in sustaining the demurrersto the FAC.Their principal contentionis that the injuries alleged in the FACfall 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 beenintegrated. Because the FACalleges that Ramos’s injuries resulted from the direct and intended use of _ respondents’ products, and notfrom 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 demurrerboth tests the legal sufficiency of the complaint and involvesthetrial court’s discretion, an appellate court employs twoseparate standards of review on appeal. [Citation.]... Appellate courts first review the complaint de novo to determine whether . . . the complaintalleges facts sufficient to state a cause ofaction 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 underthe facts alleged in the FAC, the componentparts doctrine is inapplicableto the types of claims asserted in the FAC, andthus 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 whetherthey 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 conclusionsof fact or law [citation], and we may disregard any allegations that are contrary to the law orto 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 groundraisedin 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 second standard of review, the burdenfalls uponthe plaintiff 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. Our inquiry 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 “productsliability” 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 wasdue to the defendant’s negligence. (/bid.) Generally, recovery is permitted for three kinds of defects: manufacturing defects, design defects, and warning defects,thatis, inadequate warningsorfailures to warn. (Anderson v. 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 respondentsfailed to warn Ramosof “scientifically known and knowable”hazardsrelated to his use oftheir products. “Generally speaking, manufacturers have a duty to warn consumers | about the hazards inherentin their products. [Citation.] The requirement’s purposeis to inform consumers about a product’s hazards and faults of which they are unaware, so that they can refrain from using the product altogether or evade the danger bycareful use.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.) A productthat is otherwise flawless in its design and manufacture ““may nevertheless possess suchrisk to the user without a suitable warningthatit becomes“defective” simply by the absence of a warning.’” (Finn v. G. D. Searle & Co. (1984) 35 Cal.3d 691, 699.) | The “design defect” claim relies on the so-called “consumer expectation|[s]” test for defects. Underthat test, a product is defective in design ifit “fail[s] to perform as safely as an ordinary consumer would expect.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 562.) Because that test does not require the possibility of an alternative safer “design”for a product, raw asbestos has been determined to have a defective design underthe test. (Garza v. Asbestos Corp., Ltd. (2008) 161 Cal.App.4th 651, 658-662; Arena v. Owens Corning Fiberglas Corp. (1998) 63 Cal.App.4th 1178, 1185-1186 (Arena).)® The FACalso contains claims for negligence and negligence per se. In connection with the former, the FAC alleges primarily that respondents | negligentlyfailed to warn Ramosofthe “scientifically known and knowable hazards”of their products. Generally,“a manufacturer or a supplier of a product is required to give warnings of any dangerouspropensities in the product, orin its use, of which he knows,or should know,and whichthe user of the product would 6 Asexplained in Arena, “[t]o the extent that the term ‘design’ merely means a preconceived plan, even raw asbestos has a design, in that the miner’s subjective plan of blasting it out of the ground, pounding and separating the fibers, and marketing them for various uses, constitutes a design... . [W]hen that design violates minimum safety assumptions,it is defective. [Citation.] Whether or notthe defendantis able to design the productin a different wayis irrelevant... . [Citation.]” (Arena, supra, 63 Cal.App.4th at p. 1186, fn. deleted.) not ordinarily discover.” (Groll v. Shell Oil Co. (1983) 148 Cal.App.3d 444, 448 (Groll).)? | | Regardingthe claim for negligence per se, we observethatordinarily, “