Roberts, et al. v. Orange Glo, et al.
Filing
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MEMORANDUM and ORDER granting in part and denying in part 13 Motion to Dismiss signed by Senior Judge William B. Shubb on 11/4/14. (Kaminski, H)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOELLEN ROBERTS, WAYNE
ROBERTS, JOSEPH ROBERTS and
JAMES ROBERTS,
Plaintiffs,
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CIV. NO. 2:14-000421 WBS DAD
MEMORANDUM AND ORDER RE: MOTION
TO DISMISS
v.
ORANGE GLO, ORANGE GLO
INTERNATIONAL INC., APPEL
CO., CHURCH & DWIGHT, CHURCH
& DWIGHT CO., INC., and DOES
1 through 50, inclusive,
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Defendants.
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I.
Factual and Procedural History
Plaintiffs Joellen, Wayne, Joseph, and James Roberts
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reside in their home outside the Marysville area in the Eastern
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District of California.
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No. 8); Pls.’ Opp’n at 2 (Docket No. 19).)
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Orange Glo, a product manufactured by defendant Church & Dwight
(First Am. Compl. (“FAC”) ¶ 9 (Docket
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Joellen purchased
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Co., Inc., (FAC ¶ 11), for the purpose of polishing and
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conditioning a family piano and organ, (id. ¶ 9).
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allege the Orange Glo bottle specifically stated that it could be
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used on floors.
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to the hardwood floor in the entryway of her home with a mop.
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(Id.)
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through the entryway.
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sons Joseph and James were home at the time and allegedly heard
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her crash to the ground.
(Id.)
Plaintiffs
Accordingly, Joellen applied the product
The next morning, she slipped and fell while walking
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(Id. ¶ 10.)
Her husband Wayne and two
(Id. ¶ 37.)
Plaintiffs’ FAC alleges state law claims against
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defendant Church & Dwight Co., Inc., for strict products
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liability, failure to warn, breach of implied warranty,
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negligence, and negligent misrepresentation.1
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bring claims for loss of consortium on behalf of Wayne and for
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negligent infliction of emotional distress for harm suffered by
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Wayne, Joseph, and James as result of contemporaneously
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perceiving the incident.
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improper venue pursuant to Federal Rule of Civil Procedure
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12(b)(3).
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second claim for failure to warn, third claim for breach of
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implied warranty, fifth claim for negligent misrepresentation,
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and seventh claim for negligent infliction of emotional distress
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pursuant to Rule 12(b)(6) for failure to state a claim upon which
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relief can be granted.
Plaintiffs also
Defendant now moves to dismiss for
In the alternative, defendant moves to dismiss the
(Def.’s Mot. (Docket No. 13).)
The court
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Plaintiffs originally brought this action against
multiple defendants. However, plaintiffs voluntarily dismissed
defendants Orange Glo, Orange Glo International, Inc., Appel Co.,
and Church & Dwight. (Docket No. 9.) The only remaining
defendant is Church & Dwight Co., Inc.
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will not address plaintiffs’ breach of warranty claim, which
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plaintiffs agree to abandon, (see Pl.’s Opp’n at 2).
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II.
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Venue
Rule 12(b)(3) authorizes a court to dismiss an action
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for improper venue.
Fed. R. Civ. P. 12(b)(3); see also 28 U.S.C.
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§ 1406(a) (“The district court of a district in which is filed a
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case laying venue in the wrong division or district shall
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dismiss, or if it be in the interest of justice, transfer such
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case to any district or division in which it could have been
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brought.”).
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proper in the district in which the suit was initiated.
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Clinton, 822 F. Supp. 2d 1048, 1079 (E.D. Cal. 2011) (England,
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J.) (citing Piedmont Label Co. v. Sun Garden Packing Co., 598
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F.2d 491, 496 (9th Cir. 1979)).
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Plaintiffs have the burden of proving that venue is
Munns v.
Venue is proper in “a judicial district in which a
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substantial part of the events or omissions giving rise to the
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claim occurred.”
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not require that a majority of the events have occurred in the
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district where suit is filed, nor does it require that the events
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in that district predominate.”
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89 F. Supp. 2d 1131, 1136 (N.D. Cal. 2000).
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28 U.S.C. § 1391(b)(2).
This provision “does
Rodriguez v. Cal. Highway Patrol,
While plaintiffs did not assert a statutory basis for
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venue in the FAC, plaintiffs do allege that a substantial part of
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the events giving rise to their tort claims occurred in the
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Eastern District of California.
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retail establishment where Joellen Roberts purchased Orange Glo
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and the Roberts family home where the alleged slip-and-fall and
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subsequent injuries occurred are located within this district.
According to the FAC, both the
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(FAC ¶¶ 9, 11.)
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court will deny defendant’s motion to dismiss for improper venue.
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II.
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Because venue is proper under § 1391(b)(2), the
Failure to State a Claim
On a Rule 12(b)(6) motion to dismiss, the court must
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accept the allegations in the complaint as true and draw all
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reasonable inferences in favor of the plaintiff.
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Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by
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Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S.
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319, 322 (1972).
See Scheuer v.
To survive a motion to dismiss, a plaintiff
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must plead “only enough facts to state a claim to relief that is
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plausible on its face.”
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544, 570 (2007).
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for more than a sheer possibility that a defendant has acted
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unlawfully,” and where a plaintiff pleads facts that are “merely
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consistent with a defendant’s liability,” it “stops short of the
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line between possibility and plausibility.”
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556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557).
Bell Atl. Corp. v. Twombly, 550 U.S.
This “plausibility standard,” however, “asks
Ashcroft v. Iqbal,
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A. Negligent Misrepresentation
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Rule 9(b) requires that “[i]n alleging fraud or
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mistake, a party must state with particularity the circumstances
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constituting fraud or mistake.”
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heightened pleading standard applies to a claim for negligent
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misrepresentation under California tort law has divided the
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federal circuits as well as district courts in California.
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Cutler v. Rancher Energy Corp., Civ. No. 8:13-906 DOC JPR, 2014
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WL 1153054, at *3 (C.D. Cal. Mar. 11, 2014) (citing cases).
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While it has not decided the issue, the Ninth Circuit has held
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that “only allegations . . . of fraudulent conduct must satisfy
The issue of whether Rule 9(b)’s
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the heightened pleading requirements of Rule 9(b).”
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Ciba-Geigy Corp. USA, 317 F.3d 1097, 1105 (9th Cir. 2003).2
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“Because the California tort of ‘negligent misrepresentation’ has
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a critically different element from the tort of ‘fraud,’
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analyzing negligent misrepresentation under Rule 9(b) is contrary
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to both the express language and policy of the statute.”
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Petersen v. Allstate Indem. Co., 281 F.R.D. 413, 417 (C.D. Cal.
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2012).
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pleading standard to plaintiffs’ claim for negligent
Vess v.
Accordingly, the court will not apply a heightened
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misrepresentation and will instead inquire whether plaintiffs
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state a plausible claim for relief under Iqbal.
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To state a claim for negligent misrepresentation, a
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plaintiff must allege: (1) a misrepresentation of a past or
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existing material fact; (2) without reasonable ground for
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believing it to be true; (3) intent to induce reliance; (4)
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justifiable reliance; and (5) resulting damage.
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Inc. v. Roe, 273 F.3d 1192, 1201 n.2 (9th Cir. 2001); Apollo
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Capital Fund, LLC v. Roth Capital Partners, LLC, 158 Cal. App.
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4th 226, 243 (2d Dist. 2007).
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Glenn K. Jackson
Plaintiffs’ allegations, taken as true, support all
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five elements.
Plaintiffs allege defendant misrepresented on the
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product’s bottle that Orange Glo was appropriate for use on
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The cases cited by defendant in support of applying
9(b) to negligent misrepresentation claims pre-date Vess. See
Glen Holly Entm’t, Inc. v. Tektronix, Inc., 100 F. Supp. 2d 1086
(C.D. Cal. 1999); U.S. Concord, Inc., v. Harris Graphics Corp.,
757 F. Supp. 1053 (N.D. Cal. 1991). Several more recent cases
cite both Glen Holly and U.S. Concord, see, e.g., Neilson v.
Union Bank of Cal., 290 F. Supp. 2d 1101, 1141 (C.D. Cal. 2003),
but without considering Vess.
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hardwood floors, (FAC ¶ 9), because in fact the product allegedly
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caused an unsafe and slippery condition when applied as
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instructed, (id. ¶ 30).
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be slippery as indicated by plaintiffs, then it can be inferred
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defendant lacked a reasonable ground for believing Orange Glo was
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safe for use on that surface.
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misrepresentation on the product’s label, it is plausible that
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defendant intended to induce the consumer’s reliance on the
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information and that Joellen’s reliance was justified.
If Orange Glo causes hardwood floors to
By placing such a
Lastly,
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in satisfaction of the fifth element, plaintiffs allege Joellen
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slipped and fell as a result of her reliance on this
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representation. (Id. ¶¶ 14-16).
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five elements, plaintiffs assert a plausible claim for negligent
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misrepresentation.
Having sufficiently alleged all
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B. Failure to Warn
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Defendant argues plaintiffs’ second claim for “failure
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to warn” should be dismissed because it is not distinguishable
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from plaintiffs’ strict products liability and negligence claims.
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(Def’s Mot. at 5.)
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“duplicative.”
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for “failure to warn” articulates a theory of strict liability
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and “specifically pleads that defendant failed to warn that the
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product, when properly used, could create a slippery condition
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and cause serious injury.”
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Consequently, it argues, the claim is
(Id.)
Plaintiffs clarify that their second claim
(Pls.’ Opp’n at 3.)
Although “failure to warn” is a murky subject in
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California law, it appears defendant is correct that there is no
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“failure to warn” claim apart from one in negligence or strict
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products liability.
See Oxford v. Foster Wheeler LLC, 177 Cal.
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App. 4th 700, 717 (1st Dist. 2009) (noting “the two types of
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failure to warn claims” in negligence and strict products
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liability are not mutually exclusive).
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aware of no authority for the proposition that where a plaintiff
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pleads as separate “claims” what are in fact two legal theories
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supporting a single claim, one of those theories is subject to
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dismissal.
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plaintiffs’ supporting allegations, the court will deny
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defendant’s motion with respect plaintiffs’ claim for “failure to
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However, the court is
Because defendant does not attack the sufficiency of
warn” in strict products liability.
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C. Negligent Infliction of Emotional Distress
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Similarly, defendant argues plaintiffs’ seventh claim
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fails as a matter of law because it is not distinguishable from
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plaintiffs’ fourth claim for negligence.
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Dillon v. Legg, 68 Cal.2d 728 (1968).
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(Def.’s Mot. at 8); see
Dillon provides a basis for holding a defendant liable
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for the injuries sustained by a bystander to an accident caused
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by that defendant’s negligence.
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41.
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which a plaintiff seeks to recover damages as a percipient
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witness to the theory of another.”
Christensen v. Superior
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Court, 54 Cal. 3d 868, 884 (1991).
Plaintiff asserts a claim for
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negligence based on Dillon, alleging Wayne, Joseph, and James
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were percipient witnesses to Joellen’s accident.
See Dillon, 68 Cal. 2d at 740-
Dillon “addressed the question of duty in circumstances in
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(Compl. ¶ 37.)
Recovering for emotional distress as a bystander
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requires proving elements that are different from a negligence
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claim.
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plaintiff must show she was closely related to the victim;
In addition to proving a defendant was negligent, a
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present at the time of injury; aware of the injury; and as a
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result suffered emotional distress.
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12.83 (“Bystander Recovery of Emotional Distress”).
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Additionally, “negligent infliction of emotional distress,” or
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“NIED,” is often alluded to as a stand-alone claim in negligence.
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See, e.g., Thomas-Lazear v. F.B.I., 851 F.2d 1202, 1206 (9th Cir.
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1988) (“Thomas-Lazear attempts to fashion the slander and libel
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claims into a claim for negligent infliction of emotional
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distress . . . .”); Moon v. Guardian Postacute Servs., Inc., 95
See Cal. Jury Instr. Civ.
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Cal. App. 4th 1005, 1011 (1st Dist. 2002) (noting it is uncertain
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which persons may be considered ‘closely related’ “for the
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purposes of an NIED claim”).
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claim in tort.
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claim unsustainable as a matter of law.
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not argue that plaintiffs’ allegations are insufficient to
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sustain a claim for negligence on a Dillon-based theory, the
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court will deny defendant’s motion to dismiss that claim.
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NIED is thus properly pled as a
Accordingly, the court does not find plaintiffs’
Because defendant does
IT IS THEREFORE ORDERED that defendant’s motion to
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dismiss be, and the same hereby is, DENIED with respect to claims
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two (“failure to warn”), five (“negligent misrepresentation”),
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and seven (“negligent infliction of emotional distress”), and
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GRANTED with respect to claim three (“implied warranty”).
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Dated:
November 4, 2014
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