Souders v. Philip Morris Inc.
| Decision Date | 07 March 2001 |
| Docket Number | No. B141519.,B141519. |
| Citation | 104 Cal.Rptr.2d 821,87 Cal.App.4th 756 |
| Parties | Donald SOUDERS, et al., Plaintiffs and Appellants, v. PHILIP MORRIS INCORPORATED, etc., et al., Defendants and Respondents. |
| Court | California Court of Appeals Court of Appeals |
Weinreb, Weinreb & Mandell, Robert J. Mandell, Northridge, and Mara E.J. Burnett, for Plaintiffs and Appellants.
Arnold & Porter, Maurice A. Leiter, James D. Layden, Navid Yadegar, Ronald C. Redcay; Sedgwick, Detert, Moran & Arnold, Los Angeles, Kevin Robert Costello, Santa Monica, and Ralph Campillo, Los Angeles, for Defendants and Respondents.
Carrie-Lee Coke, for California Manufacturers and Technology Association as Amicus Curiae on behalf of Defendants and Respondents.
Plaintiffs and appellants Donald Souders, individually and as guardian ad litem for Sandra Souders, Barbara Souders, Ben Souders, Elizabeth Souders and Jessica Souders; Donald Souders, Jr.; David Souders; Ann Souders; and the Estate of Mary Schuler (the Souderses) appeal from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrer of defendants and respondents Philip Morris Incorporated (Philip Morris) and Brown & Williamson Tobacco Corporation (B & W) to the personal injury and wrongful death causes of action in the complaint.
The sole question presented is whether the Souders' claims for injuries and wrongful death allegedly caused by smoking, which accrued in 1999, are barred by Civil Code section 1714.451 in light of the 1997 amendment to that section eliminating the statutory immunity from products liability actions previously accorded tobacco manufacturers.2
The Legislature clearly expressed its intent that amended section 1714.45 is to be applied to personal injury, wrongful death and other tort causes of action against tobacco manufacturers accruing on or after January 1, 1998. There is no constitutional impediment to application of amended section 1714.45 to causes of action accruing after its effective date. Accordingly, we reverse the judgment of dismissal.
Donald Souders and his wife Mary Schuler smoked cigarettes manufactured by Philip Morris and B & W for more than 30 years, beginning when they were both minors. On July 12, 1999 Donald Souders was diagnosed with emphysema and terminal heart disease attributable to his smoking. Mary Schuler died on July 20, 1999 as a result of damage to her heart caused by smoking.
Sandra, Barbara, Ben, Elizabeth, Jessica, Donald, Jr., David and Ann Souders are the children of Donald Souders and Mary Schuler and the surviving heirs of Mary Schuler.
The Souders filed this action against Philip Morris and B & W, as well as several other tobacco manufacturers and retailers on November 18, 1999.4 The complaint contains causes of action for negligence, strict products liability and other torts, as well as claims for breach of express warranty and for violation of Business and Professions Code sections 17200 and 17500. The complaint alleges that Mary Schuler's death and Donald Souders's injuries were caused by smoking cigarettes manufactured by Philip Morris and B & W and that Philip Morris and B & W had engaged in wrongful conduct in connection with the manufacture and marketing of cigarettes dating from the 1950's.
Philip Morris and B & W demurred to the product liability causes of action on the ground that they were barred in their entirety by the provisions of former section 1714.45. The trial court sustained the demurrer, ruling that the 1997 amendment did not apply retroactively to conduct that occurred prior to its January 1, 1998 effective date. In its ruling the trial court noted that retroactive application of amended section 1714.45 would raise significant constitutional questions "which should generally be avoided if not necessary."
Although the trial court's tentative ruling had been to sustain the demurrer without leave to amend, at the request of the Souders' counsel, the Souders were granted leave to amend for the purpose of alleging wrongful conduct by Philip Morris and B & W occurring after January 1, 1998.
The Souders subsequently determined not to amend the complaint. The parties stipulated that the trial court's tentative ruling to sustain the demurrer to the first, second, third, fourth, fifth, eighth, ninth and tenth causes of action without leave to amend could be entered as the order of the court.5 The parties additionally stipulated that the only two remaining causes of action (the sixth and seventh) were dismissed with prejudice.
The order of dismissal was entered on May 3, 2000. The Souders filed a timely notice of appeal.
The Souders contend that amended section 1714.45 applies to causes of action accruing on or after its effective date, January 1,1998.
A demurrer tests the legal sufficiency of factual allegations in a complaint. (Title Ins. Co. v. Comerica Bank-California (1994) 27 Cal.App.4th 800, 807, 32 Cal. Rptr.2d 735.) In reviewing the sufficiency of a complaint against a general demurrer, this court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. This court also considers matters that may be judicially noticed. When a demurrer is sustained, this court determines whether the complaint states facts sufficient to constitute a cause of action. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)
A trial court's ruling sustaining a demurrer is erroneous if the facts alleged by the plaintiff state a cause of action under any possible legal theory. (Cantu v. Resolution Trust Corp. (1992) 4 Cal. App.4th 857, 879, 6 Cal.Rptr.2d 151; Pollack v. Lytle (1981) 120 Cal.App.3d 931, 939, 175 Cal.Rptr. 81.) To determine whether sufficient facts have been alleged to state a cause of action, we review the complaint de novo. (Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at p. 879, 6 Cal.Rptr.2d 151.)
The addition of section 1714.45 to the Civil Code in 1987 was part of a comprehensive agreement between opposing forces concerned with a wide range of tort reform issues in California. (See Assem. Com. on Judiciary, Rep. on Sen. Bill No. 67 (1997-1998 Reg. Sess.) as amended Apr. 16, 1997; American Tobacco Co. v. Superior Court (1989) 208 Cal.App.3d 480, 486, 255 Cal.Rptr. 280.)
The Senate Judiciary Report on Senate Bill No. 241 (1987-1988 Reg. Sess.), the Willie L. Brown, Jr.—Bill Lockyer Civil Liability Reform Act of 1987,6 which included section 1714.45, states, "`The purpose of this bill is to enact a compromise agreement on procedural and substantive civil liability reforms which has been reached between competing interests such as the plaintiffs' trial lawyers, insurers, doctors, and manufacturing and business groups.'" (American Tobacco Co. v. Superior Court, supra, 208 Cal.App.3d at pp. 487-88, fn. 3, 255 Cal.Rptr. 280.)
As originally enacted in 1987, effective January 1, 1988, section 1714.45 provided:
In its original form section 1714.45 provided "automatic immunity for manufacturers of the enumerated consumer products," including tobacco. (American Tobacco Co. v. Superior Court, supra, 208 Cal.App.3d at p. 489, 255 Cal.Rptr. 280.) "It was commonly understood that the measure embodying section 1714.45, which enjoyed the active or at least tacit support of [the Association of California Insurance Companies, the Association for California Tort Reform, the California Medical Association, the California Trial Lawyers Association and the California Chamber of Commerce], would provide nearly complete immunity for manufacturers of the five enumerated products." (Id. at p. 487, 255 Cal.Rptr. 280.)
Effective June 12, 1997, the Legislature amended the original version of section 1714.45 by adding to the statute as an urgency measure new subdivision "(d)," relating to the application of section 1714.45 to actions brought by public entities against tobacco companies:
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