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LEONARD JAMES MARTIN, IN PROPRIA PERSONA

California 

Telephone: 

Facsimile: 

Plaintiff, In Propria Persona

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

CENTRAL CIVIL WEST

PLAINTIFF LEONARD J. MARTIN submits the following Opposition to the Demurrer of INDUSRTIAL REALTY GROUP and DOWNEY STUDIOS, LLC as follows:

I. INTRODUCTION

Forty-two Plaintiffs have brought suit against twelve Defendants asserting the following ten causes of action: (1) negligence, (2) negligence per se, (3) strict liability-failure to warn, (4) strict liability for ultra-hazardous activities, (5) fraudulent concealment, (6) negligent misrepresentation, (7) premises liability, (8) intentional infliction of emotional distress, (9) dangerous condition of public property, and (10) fraudulent concealment per California Labor Code section 3602(b)(2). Plaintiff worked on the premises located at 12214 Lakewood Boulevard, Downey, California 90242. Defendants owned the subject premises at various periods of time during a time frame of sixty years. Plaintiff first time working on subject premises was on or about June 12, 2002, on DareDevil for DareDevil Production and Twentieth Century Fox. Plaintiff second time working on subject premises were on or about November 10, 2004, on The Island for DreamWorks Productions in the 1, and 290 Buildings. At all times, Plaintiff was exposed to toxic/hazardous materials, resulting in physical and emotional injuries.

II. DEFENDANT’S DEMURRER LACKS MERIT AND SHOULD BE OVERRULED

For the purpose of ruling on a demurrer, a judge must treat a demurrer as an admission for all material facts that are property pleaded in the challenged pleading or that reasonably arise by implication, however improbable those fact may be. (Gervase v. Superior Court (1995) 31 Cal.App.4th 1218; Yue v. City of Auburn (1992) 3 Cal.App.4th 751,756.)

A judge must overrule a demurrer if the allegations of the complaint adequately state a cause of action under any legal theory. (Cellular Plus v. Superior Court (1979) 14 Cal.App.4th

1224, 1231.) Thus, a complaint survives a demurrer if it states facts disclosing some right to relief. (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 22; Parada v. City of Colton (1994) 24 Cal.App.4th 356, 362.) This is in Accordance with the general rule that in ruling on a pleading, a judge must liberally construe the pleading’s allegations with a view to ensuring substantial justice for both parties. (California Code of Civil Procedure Section 452.)

Plaintiff operative Complaint alleges key facts that readily defeats this Demurrer.

III. DEFENDANTS’ DEMURRER BASED ON MISJOINER LACKS MERIT

Plaintiff is informed and believe that International Risk Assumption-Downey (hereinafter “IRAD”) was merely an indemnitor at the time of the subject incident. As such, an action for indemnity can be brought at any time, and therefore IRAD is not an indispensable party. An absent party need not be joined simply because it may be required to peovide indemnity for the loss. The focus is on complete relief between those already parties. INDUSTRIAL REALTY GROUP and DOWNEY STUDIOS, LLC, make no mention of this fact and that it can cross-complain against any other entity which may be responsible for plaintiffs’ injuries or to indemnify the defendants.

In that regard, the Demurrer should be overruled since INDUSTRIAL REALTY GROUP and DOWNEY STUDIOS, LLC, makes no showing of prejudice. A demurrer for misjoinder will be overruled if the defendant shows no prejudice suffered or interests impaired by the misjoinder. (Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 231.)

Additionally, since the demurrer challenges defects that appear on the face of the pleading, Defendants’ misjoinder argument cannot be considered since it is not a defect that appears on the face of the Complaint.

IV. THE FAC DOES NOT FAIL TO SPECIFY IN THE SECOND CAUSE OF ACTION THE STATUTORY BASES OF THE CLAIMS AGAINST IRG AND DS.

In the Second Cause of Action, Plaintiff incorporate paragraphs 1-43 which specifically outline the acts/omissions of the Defendants IRG and DS as to hazardous/toxic waste release, storage, disposal, and contamination of the surface and subsurface of the subject property, etc. The general averments of the complaint also spell out Defendants IRG and DS’s failure to warn Plaintiff about the contaminated subject property. These allegations are specific and unambiguous. Therefore, the code sections cited in the Second Cause of Action are keyed into the specific acts of the Defendants.

Demurrer for uncertainty will be sustained only where the compliant is so bad that the defendant cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

As to Civil Code section 1709, 1710, 3479, et seq through 3580, Plaintiff allege that Defendants IRG and DS “acts and omissions and failure to use reasonable diligence” violation the aforementioned code sections. Defendants cannot argue that the FAC is not a short, concise statement of the Plaintiffs’ claims, yet argue more facts are nessary to put them on the claim through the general averments and the allegations in the Second Cause of Action.

Moreover in paragraph 53, page 20 of the FAC, Plaintiff cite the specific statute Health & Safety Code section 5411, quoting the actual verbiage, and allege that Defendants IRG and DS “discharged industrial wastes in a manner which they knew or should have known would cause…contamination, pollution and nuisance” Said alleged act/omissions directly violated Health & Safety Code section 5411. These allegations are not ambiguous or vague.

In paragraph 54, page 20 of the FAC, Plaintiff cite Water Code section 13000, et seq., quoting from the actual statute. In said paragraph, Plaintiff allege that: “The Defendants caused and permitted hazardous substances…to be discharged onto bare ground where Defendants knew or should have known they would reach the groundwater…where it created a condition of pollution and nuisance.” Said alleged acts/omissions directly violated the aforementioned statutes.

In paragraph 55, page 20 of the FAC, Plaintiff cite Health & Safety Code section 25100, et seq., which Plaintiff summarized as a comprehensive regulatory scheme requiring permits to dispose of hazardous waste, and prohibiting discharge of hazardous waste into the environment without permit. Plaintiff goes on to allege on page 21 that Defendants IRG and DS violated these regulations by discharging waste without a permit.

In paragraph 56, page 21 of the FAC, Plaintiff cite Health & Safety Code section 25249.6, quoting the statute in its entirety, which Defendants IRG and DS admit. Plaintiff goes on to allege that: “Defendants knew that Plaintiff was exposed to their chemicals that they released into the environment or allowed to remain upon the PREMISES that cause cancer and reproductive harm, yet failed to provide…reasonable warning…” This is yet another example of Defendants’ specious arguments concerning ambiguity or vagueness. Here, the statue and the acts/omissions are clearly set forth. Defendants seek specific facts, contrary to FRCP 8(a) and 8(e).

Finally, Defendants IRG and DS clearly wish to lead this Court astray. They cite Randi W. v. Muroc Joint Unified School District (1997) 14 Cal 4th 1066 in support of their theory that safety orders can only be violated in the employer-employee context. In a recent case of Kinsman v. Unocal (2005) 37 Cal.4th 659, the Court addressed whether or not the landowner would be held liable for injuries caused by discoverable dangerous conditions on its property, including dangerous conditions caused by other contractors working on the premises. The Court held in certain circumstances that the landowner would indeed be liable.

Defendants are arguing apples and oranges. A landowner is liable for dangerous conditions on its property even to invitees. This is black letter horn book law. It has nothing to do with an employer-employee relationship. Randi W. is inapplicable and clearly an attempt to mislead this Court.

V. THE THIED AND FOURTH CAUSE OF ACTION DO NOT REQUIRE CITATION TO STATUTORY AUTHORITY

As to the Third Cause of Action (Failure to Warn) and Fourth Cause of Action (Ultra-Hazardous Activity), Defendants are also claiming that these causes are statutorily regulated and apply only to an employer-emplotee context. Again, Defendants mislead this Court. These causes of action are common law torts.

As to the Fourth Cause of Action (Strict Liability for Ultra- Hazardous Activity), there is no need for the action to be based upon a statutory regulation. Again, this is based upon common law. Restatement 2d, Torts, section 520 sets forth the factors to be considered in determining whether an activity is abnormally dangerous or ultra-hazardous: “(a) existence of a high degree of risk of some harm to the person, land, or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.” SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 906, 200 C.R.497.

Given the wayward arguments of the Defendants IRG and DS as to the Third and Fourth Causes of Action in which they require statutory authority and an employer-employee relationship, Defendants are clearly wrong.

VI. THE FIFTH CAUSE OF ACTION FOR FRAUDULENT CONCEALMENT HAS BEEN PLED WITH PARTICULARITY

Defendants IRG and DS argue that the FAC states that the existence of contamination and its “open, widely disseminated remediation” was known to the world.” Defendants cite paragraph 21, and 22 of the FAC. No where in those paragraphs is the language that contamination and its open widely disseminated remediation was known to the world. Again, Defendants intend to over reach by misquoting from the FAC and misleading this Court. Defendants are merely drawing their own conclusions, which are better left for the trier of fact. Moreover, Defendants argue that the FAC admits the agreements between NASA, IRAD, the City of Downey, United States General Services Administration, United States Department of Interior, Bureau of Land Management were subject to wide public disclosure, citing page 7, lines 15-21. No where on page 7, lines 15-21 does the FAC mention that these agreements were of wide public disclosure. Again, Defendants over reach and mislead the Court. Defendants also mislead the Court in stating that Plaintiff allege that the use of all contaminants were over by the year 2000. Again, no where in the FAC is that verbiage to be found. Defendants conclude in their motion that “notices, plans, and promises many in official government documents and recorded City resolutions were public records” before the period Plaintiff stepped on the subject property. Defendants further conclude that the FAC admitted to a complete disclosure of contamination and remediation. No where in the FAC is there such an admission. The agreements between the above referenced parties for remediation were just that, private contractual agreements. Nonetheless, the issues of contamination, remediation, and notice to the public are issues for the trier of fact to determine, not the Defendants.

Plaintiff alleged in the Fifth Cause of Action that Defendants knew of the existence of hazardous contaminants on the subject property. Defendants intentionally withheld from Plaintiff that contaminants and toxic substance contaminated the subject property and never provided any warning. Defendants knew that Plaintiff was exposed to hazardous levels of contaminants as a result of the Defendants environmental test. And Defendants concealed material facts regarding contamination of surface, subsurface, and groundwater on the subject property. Plaintiff alleged that. Plaintiff alleged that Defendants advertised and represented that their activities were safe at the subject premises. Defendants had a duty to disclose by clear and reasonable warning prior to exposing them to hazardous contamination. Plaintiff alleged that this duty was imposed by Federal and State Statutes.

Given the above allegations in the FAC, the Defendants make the Plaintiffs’ case for “particularity in pleading.” Defendants fail to lay out any “particulars” as to what facts are missing in the Fifth Cause of Action required to establish fraudulent concealment.

VII. CONCLUSION

Based on the foregoing, Plaintiff respectfully request that Defendants’ Demurrer be overruled as herein prayed. In the alternative, should this Court sustain Defendants’ Demurrer, Plaintiff respectfully ask that it do so, with leave to amend.

Dated: October 11, 2007 Respectfully Submitted

LEONARD JAMES MARTIN, IN PROPRIA PERSONA

By: _________________________________________________

LEONARD JAMES MARTIN, IN PROPRIA PERSONA