Roberts, et al. v. Orange Glo, et al.

Filing 22

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 JOELLEN ROBERTS, WAYNE ROBERTS, JOSEPH ROBERTS and JAMES ROBERTS, Plaintiffs, 14 15 16 17 18 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, 19 Defendants. 20 ----oo0oo---- 21 22 23 I. Factual and Procedural History Plaintiffs Joellen, Wayne, Joseph, and James Roberts 24 reside in their home outside the Marysville area in the Eastern 25 District of California. 26 No. 8); Pls.’ Opp’n at 2 (Docket No. 19).) 27 Orange Glo, a product manufactured by defendant Church & Dwight (First Am. Compl. (“FAC”) ¶ 9 (Docket 28 1 Joellen purchased 1 Co., Inc., (FAC ¶ 11), for the purpose of polishing and 2 conditioning a family piano and organ, (id. ¶ 9). 3 allege the Orange Glo bottle specifically stated that it could be 4 used on floors. 5 to the hardwood floor in the entryway of her home with a mop. 6 (Id.) 7 through the entryway. 8 sons Joseph and James were home at the time and allegedly heard 9 her crash to the ground. (Id.) Plaintiffs Accordingly, Joellen applied the product The next morning, she slipped and fell while walking 10 (Id. ¶ 10.) Her husband Wayne and two (Id. ¶ 37.) Plaintiffs’ FAC alleges state law claims against 11 defendant Church & Dwight Co., Inc., for strict products 12 liability, failure to warn, breach of implied warranty, 13 negligence, and negligent misrepresentation.1 14 bring claims for loss of consortium on behalf of Wayne and for 15 negligent infliction of emotional distress for harm suffered by 16 Wayne, Joseph, and James as result of contemporaneously 17 perceiving the incident. 18 improper venue pursuant to Federal Rule of Civil Procedure 19 12(b)(3). 20 second claim for failure to warn, third claim for breach of 21 implied warranty, fifth claim for negligent misrepresentation, 22 and seventh claim for negligent infliction of emotional distress 23 pursuant to Rule 12(b)(6) for failure to state a claim upon which 24 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 25 26 27 28 1 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. 2 1 will not address plaintiffs’ breach of warranty claim, which 2 plaintiffs agree to abandon, (see Pl.’s Opp’n at 2). 3 II. 4 Venue Rule 12(b)(3) authorizes a court to dismiss an action 5 for improper venue. Fed. R. Civ. P. 12(b)(3); see also 28 U.S.C. 6 § 1406(a) (“The district court of a district in which is filed a 7 case laying venue in the wrong division or district shall 8 dismiss, or if it be in the interest of justice, transfer such 9 case to any district or division in which it could have been 10 brought.”). 11 proper in the district in which the suit was initiated. 12 Clinton, 822 F. Supp. 2d 1048, 1079 (E.D. Cal. 2011) (England, 13 J.) (citing Piedmont Label Co. v. Sun Garden Packing Co., 598 14 F.2d 491, 496 (9th Cir. 1979)). 15 Plaintiffs have the burden of proving that venue is Munns v. Venue is proper in “a judicial district in which a 16 substantial part of the events or omissions giving rise to the 17 claim occurred.” 18 not require that a majority of the events have occurred in the 19 district where suit is filed, nor does it require that the events 20 in that district predominate.” 21 89 F. Supp. 2d 1131, 1136 (N.D. Cal. 2000). 22 28 U.S.C. § 1391(b)(2). This provision “does Rodriguez v. Cal. Highway Patrol, While plaintiffs did not assert a statutory basis for 23 venue in the FAC, plaintiffs do allege that a substantial part of 24 the events giving rise to their tort claims occurred in the 25 Eastern District of California. 26 retail establishment where Joellen Roberts purchased Orange Glo 27 and the Roberts family home where the alleged slip-and-fall and 28 subsequent injuries occurred are located within this district. According to the FAC, both the 3 1 (FAC ¶¶ 9, 11.) 2 court will deny defendant’s motion to dismiss for improper venue. 3 II. 4 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 5 accept the allegations in the complaint as true and draw all 6 reasonable inferences in favor of the plaintiff. 7 Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by 8 Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 9 319, 322 (1972). See Scheuer v. To survive a motion to dismiss, a plaintiff 10 must plead “only enough facts to state a claim to relief that is 11 plausible on its face.” 12 544, 570 (2007). 13 for more than a sheer possibility that a defendant has acted 14 unlawfully,” and where a plaintiff pleads facts that are “merely 15 consistent with a defendant’s liability,” it “stops short of the 16 line between possibility and plausibility.” 17 556 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, 18 A. Negligent Misrepresentation 19 Rule 9(b) requires that “[i]n alleging fraud or 20 mistake, a party must state with particularity the circumstances 21 constituting fraud or mistake.” 22 heightened pleading standard applies to a claim for negligent 23 misrepresentation under California tort law has divided the 24 federal circuits as well as district courts in California. 25 Cutler v. Rancher Energy Corp., Civ. No. 8:13-906 DOC JPR, 2014 26 WL 1153054, at *3 (C.D. Cal. Mar. 11, 2014) (citing cases). 27 While it has not decided the issue, the Ninth Circuit has held 28 that “only allegations . . . of fraudulent conduct must satisfy The issue of whether Rule 9(b)’s 4 1 the heightened pleading requirements of Rule 9(b).” 2 Ciba-Geigy Corp. USA, 317 F.3d 1097, 1105 (9th Cir. 2003).2 3 “Because the California tort of ‘negligent misrepresentation’ has 4 a critically different element from the tort of ‘fraud,’ 5 analyzing negligent misrepresentation under Rule 9(b) is contrary 6 to both the express language and policy of the statute.” 7 Petersen v. Allstate Indem. Co., 281 F.R.D. 413, 417 (C.D. Cal. 8 2012). 9 pleading standard to plaintiffs’ claim for negligent Vess v. Accordingly, the court will not apply a heightened 10 misrepresentation and will instead inquire whether plaintiffs 11 state a plausible claim for relief under Iqbal. 12 To state a claim for negligent misrepresentation, a 13 plaintiff must allege: (1) a misrepresentation of a past or 14 existing material fact; (2) without reasonable ground for 15 believing it to be true; (3) intent to induce reliance; (4) 16 justifiable reliance; and (5) resulting damage. 17 Inc. v. Roe, 273 F.3d 1192, 1201 n.2 (9th Cir. 2001); Apollo 18 Capital Fund, LLC v. Roth Capital Partners, LLC, 158 Cal. App. 19 4th 226, 243 (2d Dist. 2007). 20 Glenn K. Jackson Plaintiffs’ allegations, taken as true, support all 21 five elements. Plaintiffs allege defendant misrepresented on the 22 product’s bottle that Orange Glo was appropriate for use on 23 24 25 26 27 28 2 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. 5 1 hardwood floors, (FAC ¶ 9), because in fact the product allegedly 2 caused an unsafe and slippery condition when applied as 3 instructed, (id. ¶ 30). 4 be slippery as indicated by plaintiffs, then it can be inferred 5 defendant lacked a reasonable ground for believing Orange Glo was 6 safe for use on that surface. 7 misrepresentation on the product’s label, it is plausible that 8 defendant intended to induce the consumer’s reliance on the 9 information and that Joellen’s reliance was justified. If Orange Glo causes hardwood floors to By placing such a Lastly, 10 in satisfaction of the fifth element, plaintiffs allege Joellen 11 slipped and fell as a result of her reliance on this 12 representation. (Id. ¶¶ 14-16). 13 five elements, plaintiffs assert a plausible claim for negligent 14 misrepresentation. Having sufficiently alleged all 15 B. Failure to Warn 16 Defendant argues plaintiffs’ second claim for “failure 17 to warn” should be dismissed because it is not distinguishable 18 from plaintiffs’ strict products liability and negligence claims. 19 (Def’s Mot. at 5.) 20 “duplicative.” 21 for “failure to warn” articulates a theory of strict liability 22 and “specifically pleads that defendant failed to warn that the 23 product, when properly used, could create a slippery condition 24 and cause serious injury.” 25 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 26 California law, it appears defendant is correct that there is no 27 “failure to warn” claim apart from one in negligence or strict 28 products liability. See Oxford v. Foster Wheeler LLC, 177 Cal. 6 1 App. 4th 700, 717 (1st Dist. 2009) (noting “the two types of 2 failure to warn claims” in negligence and strict products 3 liability are not mutually exclusive). 4 aware of no authority for the proposition that where a plaintiff 5 pleads as separate “claims” what are in fact two legal theories 6 supporting a single claim, one of those theories is subject to 7 dismissal. 8 plaintiffs’ supporting allegations, the court will deny 9 defendant’s motion with respect plaintiffs’ claim for “failure to 10 However, the court is Because defendant does not attack the sufficiency of warn” in strict products liability. 11 C. Negligent Infliction of Emotional Distress 12 Similarly, defendant argues plaintiffs’ seventh claim 13 fails as a matter of law because it is not distinguishable from 14 plaintiffs’ fourth claim for negligence. 15 Dillon v. Legg, 68 Cal.2d 728 (1968). 16 (Def.’s Mot. at 8); see Dillon provides a basis for holding a defendant liable 17 for the injuries sustained by a bystander to an accident caused 18 by that defendant’s negligence. 19 41. 20 which a plaintiff seeks to recover damages as a percipient 21 witness to the theory of another.” Christensen v. Superior 22 Court, 54 Cal. 3d 868, 884 (1991). Plaintiff asserts a claim for 23 negligence based on Dillon, alleging Wayne, Joseph, and James 24 were percipient witnesses to Joellen’s accident. See Dillon, 68 Cal. 2d at 740- Dillon “addressed the question of duty in circumstances in 25 (Compl. ¶ 37.) Recovering for emotional distress as a bystander 26 requires proving elements that are different from a negligence 27 claim. 28 plaintiff must show she was closely related to the victim; In addition to proving a defendant was negligent, a 7 1 present at the time of injury; aware of the injury; and as a 2 result suffered emotional distress. 3 12.83 (“Bystander Recovery of Emotional Distress”). 4 Additionally, “negligent infliction of emotional distress,” or 5 “NIED,” is often alluded to as a stand-alone claim in negligence. 6 See, e.g., Thomas-Lazear v. F.B.I., 851 F.2d 1202, 1206 (9th Cir. 7 1988) (“Thomas-Lazear attempts to fashion the slander and libel 8 claims into a claim for negligent infliction of emotional 9 distress . . . .”); Moon v. Guardian Postacute Servs., Inc., 95 See Cal. Jury Instr. Civ. 10 Cal. App. 4th 1005, 1011 (1st Dist. 2002) (noting it is uncertain 11 which persons may be considered ‘closely related’ “for the 12 purposes of an NIED claim”). 13 claim in tort. 14 claim unsustainable as a matter of law. 15 not argue that plaintiffs’ allegations are insufficient to 16 sustain a claim for negligence on a Dillon-based theory, the 17 court will deny defendant’s motion to dismiss that claim. 18 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 19 dismiss be, and the same hereby is, DENIED with respect to claims 20 two (“failure to warn”), five (“negligent misrepresentation”), 21 and seven (“negligent infliction of emotional distress”), and 22 GRANTED with respect to claim three (“implied warranty”). 23 Dated: November 4, 2014 24 25 26 27 28 8

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