Dye v. Caterpillar, Inc.

Filed 11/17/08 Dye v. Caterpillar, Inc. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In this products liability action, Donald W. Dye and his wife, Valarie, (hereafter Dye) appeal from judgments of dismissal entered after the superior court sustained without leave to amend demurrers to their third and fourth amended complaints. Dye contends on appeal that the trial court erred by failing to accept as true the allegations of his complaints and by accepting the defendants representations that they bear no liability because they are merely manufacturers or suppliers of generic, multi-use products or of component parts.[1]

Dye also appeals from the trial courts order striking his complaint as to Caterpillar, Inc. The trial court struck the complaint after finding that Dyes third amended complaint improperly named Caterpillar Equipment Company as a defendant, rather than Caterpillar, Inc. Dye contends that this was error, because prior to striking his complaint, the trial court had already permitted him to correct the misnomer.

We agree with Dye on both counts and accordingly reverse the judgments.

Factual and Procedural Background

The Initial Complaint

Donald and Valerie Dye filed their initial complaint in this action on November 5, 2004. Dye alleged that he had been diagnosed with silicosis, pulmonary fibrosis and allergic bronchopulmonary asperillosis on May 6, 2003. He further alleged that he had been exposed to respirable silica from 1961 until 1979 during his employment as a miner and equipment operator in underground tunnels and after 1979 as a heavy equipment operator, working at sand and gravel quarries. The complaint stated that Dye suffered illnesses, disabilities, and damages as a result of the defendants conduct. Specifically, Dyes complaint asserted that he was physically harmed by silica exposure caused by equipment manufactured by defendants. Dye alleged that his action was timely because he did not learn the cause of his injuries until he received his diagnosis on May 6, 2003.

Among the defendants named in the complaint were three Caterpillar entities, including Caterpillar Equipment Company, as well as a number of Doe defendants. A discussion with Caterpillars counsel revealed that the proper Caterpillar entity to name was Caterpillar, Inc., and Dye therefore amended the complaint to name Caterpillar, Inc., as Doe 1. The three erroneously named Caterpillar entities were then dismissed.

Two defendants filed demurrers to the initial complaint. At the hearing on the demurrers, the trial judge noted that the complaint identified the defendants only in the caption and did not explain who the various defendants were or what they were alleged to have done. The trial court therefore sustained the demurrer for failure to state facts sufficient to state a cause of action and uncertainty[.] It directed Dye to identify who the defendants are and what category they fall into and when the injuries were discovered with a degree of specificity for statute of limitations purposes[.]

The First Amended Complaint

On January 28, 2005, Dye timely filed a first amended complaint. The new complaint divided the defendants into four separate categories: equipment defendants, respiratory defendants, premises defendants, and sand defendants. Again, several defendants demurred to the complaint, asserting that it remained insufficiently specific and that it did not apprise the defendants of which of their products allegedly had caused Dyes exposure to harmful silica. The trial court agreed with defendants, and it sustained their demurrers with leave to amend. As it had in its prior order sustaining the demurrers to the initial complaint, the court explained that it was sustaining the second round of demurrers on the grounds of plaintiffs failure to state facts sufficient to constitute a cause of action and uncertainty[.] The trial court ordered Dye to file any amended complaint by May 20, 2005.

The Second Amended Complaint

Dye filed a second amended complaint on May 19, 2005. This time, the complaint divided the defendants into only two categories. The first category consisted of manufacturing/distributing defendants, who were alleged to have manufactured equipment or products either expressly made for, or commonly used in the extraction, handling, [and] movement of silica. Such products included quarry and mining equipment such as crushers and separators, as well as tractors, graders and other equipment to transport materials that exposed the Plaintiff to respirable silica. The second category of defendants were denominated respirator defendants, who were alleged to have manufactured or supplied respiratory safety equipment such as hoods or masks that were incapable of protecting the users of those masks from harmful levels of silica dust and that proximately cause[d] personal injuries to Plaintiff while being used in a manner reasonably foreseeable[.]

Once again, Caterpillar and a number of other defendants demurred to the complaint. Still other defendants simply joined in the demurrer filed by Caterpillar. Caterpillar contended that the second amended complaint was uncertain because it failed to satisfy the pleading requirements of Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71 (Bockrath) for cases involving exposure to toxins. Caterpillar argued that Dye was required to: (1) identify each product that allegedly caused his injuries, (2) specify the identity of the defendants who manufactured or distributed each such product, and (3) allege sufficient facts to establish that each defendants product was a substantial factor in causing the alleged injuries. (See id. at p. 80.) Caterpillar also argued that it was not liable to Dye as a matter of law because it manufactured only generic, multi-use products that could be used in a variety of applications and that it therefore could bear[] no liability for failing to incorporate safety features that are peculiar to a specific user.

At the hearing on the demurrers, the trial judge appeared concerned by what he perceived as a lack of specificity in Dyes complaint. The trial judge seemed receptive to the defendants argument that they manufactured multi-use equipment that could be used for any number of operations that might be unconnected to silica. The judge commented, What [Dye is] really alleging here is that here is a generic product that has potentially hundreds of uses. The trial judges view of the case law was that if there is a product that is made for one specific use and one specific use only and that specific use is dangerous, then liability can be on the manufacturer for failure to warn people who are going to use it for its only intended its only possible use. After Dyes counsel represented that silica is created in almost all mining and quarrying applications, the trial judge expressed the view that the complaint contained no such allegation.

At the close of the hearing, the trial court said that it would give Dye one last shot at amending and asked Caterpillars counsel to prepare a form of order. In that written order, the trial court found the allegations of the second amended complaint to be legally uncertain as to all of the defendants, and it therefore sustained defendants demurrers with leave to amend. It instructed Dye to file any amended complaint by September 23, 2005.

The Third Amended Complaint

Dye timely filed a third amended complaint on September 23, 2005. The 63-page complaint named as defendants all of the respondents in this appeal. Unlike the two previous complaints, the Caterpillar entity named in the caption of the new complaint was Caterpillar Equipment Company rather than Caterpillar, Inc. Within the body of the complaint, however, there were allegations directed at both Caterpillar Equipment Company and Caterpillar, Inc.

The third amended complaint contained a Product Identification section that listed numerous products allegedly manufactured or supplied by the defendants. Dye alleged that he had used or was exposed to the listed products during his work career. The list divided the products into six functional categories tunneling equipment, drilling equipment, ventilation equipment, air compression equipment, mining and quarrying equipment, and respiratory protection/air filtration products. The list identified the manufacturer of the equipment and, in many instances, also provided particular model numbers.

Dyes new complaint also added allegations responding to concerns expressed by the trial court at the hearing on the demurrers to the second amended complaint. Thus, in paragraph 30 of the third amended complaint, Dye alleged: Silica is a naturally occurring mineral that is not typically hazardous in its natural, undisturbed state. The complaint further alleged that silica becomes hazardous when it is cut, blasted, drilled, excavated, or otherwise manipulated such that respirable dust and or particles of silica are generated and become airborne and . . . enter the breathing zone of workers . . . such as Plaintiff[.]

In apparent response to the defendants argument that they were manufacturers of multi-use equipment, Dye alleged that [d]efendant[s] products . . . were specificallydesigned, manufactured, marketed, and distributedfor the express purpose of disturbing, cutting, blasting, drilling, grinding, bolting, scaling, moving, excavating, scraping and/or otherwise manipulating silica such that respirable silica dust and particles are generated and which cause harm to unknowing individuals such as Plaintiff[.] (Italics added.) Further allegations described how the intended use of each type of equipment created toxic, respirable silica dust that Dye inhaled. For example, in paragraph 37 of the complaint, Dye alleged that the tunneling equipment manufactured or supplied by certain respondents was specifically designed for the intended purpose of cutting or boring holes through the earth, and that [a]s a direct result of such intended use of Defendants[] . . . tunneling equipment . . . toxic dust was generated by and released into the air as toxic respirable silica dust and particles which were inhaled by workers, such as Plaintiff[.] Similar allegations were made concerning the defendants drilling equipment, air compression equipment, and mining and quarrying equipment.

Dye alleged that the defendants tunneling, drilling, and mining and quarrying equipment was specifically designed for use in applications in which its normal, intended, and foreseeable use would necessarily and unavoidably create hazardous conditions by pulverizing silica and making it respirable, and [a]s a direct result of such intended use, toxic dust was generated by and released into the air as respirable silica dust, which were inhaled by workers such as plaintiff Dye. He also alleged that the specifically designed, intended and reasonably foreseeable use of this equipment resulted in . . . Dyes exposure to and inhalation of respirable toxic particles of silica dust . . . which thereby caused . . . Dye, to develop silicosis a typically fatal lung disease. Similar allegations were made about the air compression equipment that was allegedly used to power the machinery used in tunneling, mining, and quarrying. Specifically, Dye alleged that the air compression equipment was inherently hazardous and defectively designed because [it] lacked local exhaust ventilation and/or dust suppression devices necessary to prevent or minimize the release of and exposure to toxic silica containing dusts[.]

With respect to the respiratory protection and air filtration equipment, Dyes third amended complaint alleged that the equipment was specifically designed, marketed, manufactured, sold, and distributed for the intended purpose of providing respiratory protection to the user from harmful dusts and/or fumes or gases produced and/or generated in tunneling, mining, and/or quarrying activities[.] Dye asserted that the equipment failed to provide adequate and expected protection from toxic, respirable silica dust and particles. Dye claimed that the specifically designed, intended and reasonably foreseeable use of the respiratory protection and air filtration products resulted in his exposure to and inhalation of toxic silica that caused him to develop silicosis.

Dyes third amended complaint included causes of action for negligence, strict liability failure to warn, strict liability design defect and consumer expectation, and breach of implied warranties. In addition, in the complaints sixth cause of action, Valarie Dye sought damages for loss of consortium. The prayer for relief sought damages according to proof.

A number of defendants responded to the third amended complaint by filing demurrers.[2] In its demurrer, Caterpillar presented a number of arguments in support of dismissal of the complaint. First, Caterpillar again asserted that it was not liable as a matter of law because the company was merely a manufacturer or supplier of generic, multi-use products and thus bore no liability for failing to incorporate safety features that are peculiar to a specific user. Second, Caterpillar claimed that its multi-use argument was supported by cases applying the component parts doctrine.[3] Third, Caterpillar asserted that it owed no duty to warn users of its equipment to check the toxic content of soils because, Caterpillar claimed, Dye had previously alleged that silica is defective regardless of whether Caterpillar heavy equipment was used to extract, handle, or move it. Fourth, Caterpillar argued that Dyes claims against it were barred by the sophisticated user doctrine.[4] Fifth, Caterpillar reiterated its argument that Dyes complaint failed to satisfy Bockraths pleading requirements in that it failed to allege sufficient facts to establish that the defendants products were a substantial factor in causing Dyes alleged injuries. Finally, Caterpillar contended that Dye had failed to plead facts justifying delayed accrual of the statute of limitations.

The Trial Courts Ruling

After hearing argument, on May 15, 2006, the trial court issued an order and statement of decision in which it sustained the demurrers of defendants Gardner Denver, Lippman-Milwaukee, Deister, Telsmith, Bucyrus, Terex, Cedarapids, Portec, and Ingersoll-Rand without leave to amend. The court treated Caterpillars demurrer as a motion to strike and sustained without leave to amend the demurrer of defendant Caterpillar, Inc. It sustained the demurrers of Moldex-Metric, Vallen, and 3M, but granted Dye leave to amend the complaint with respect to those defendants.

On July 14, 2006, Dye filed a timely appeal from the trial courts order sustaining the demurrers to the third amended complaint and striking the complaint as to Caterpillar. (See Code Civ. Proc.,  581d [written order of dismissal signed by the court constitutes a judgment and is effective for all purposes].)[5] That appeal was docketed in this court as No. A114948.

The Second Appeal

After the trial courts May 15, 2006 order dismissing Dyes claims against the demurring defendants, Dye filed a fourth amended complaint against 12 remaining named defendants and a number of Doe defendants. The fourth amended complaint

alleged that certain remaining defendants manufactured defective tunneling and drilling equipment that exposed Dye to harmful silica.[6] Defendants Eimco/Sandvik and Atlas Copco then filed demurrers to the new complaint. Both demurring defendants arguments relied on the trial courts earlier order sustaining the demurrers to the third amended complaint. These demurrers were heard by a different trial judge. Although noting that it was not bound by the earlier order, the trial court stated that it found the analysis of the May 15, 2006 order persuasive and sustained the demurrers of both defendants to the fourth amended complaint. Judgments were then entered in their favor.

Defendant Robbins also filed a demurrer, citing the trial courts orders sustaining the demurrers of the other defendants. In light of the prior orders sustaining the other defendants demurrers, Dye entered into a stipulation with Robbins recognizing that the trial court would likewise sustain Robbinss demurrer without leave to amend. Dye and Robbins therefore stipulated that the trial court could enter an order sustaining Robbinss demurrer without leave to amend and enter judgment in favor of Robbins. The stipulation expressly preserved Dyes right to appeal from the stipulated order and judgment. On November 1, 2006, the trial court sustained Robbinss demurrer without leave to amend, and the following day, it entered judgment in favor of Robbins.

On November 3, 2006, Dye filed a timely appeal from the judgments entered in favor of Eimco/Sandvik, Atlas Copco, and Robbins. That appeal was docketed in this court as No. A116022.

Discussion

In these appeals, Dye seeks reversal of two rulings by the trial court. He first challenges the trial courts order dismissing the third amended complaint after sustaining the respondents demurrers without leave to amend. Dye also attacks the trial courts order striking the third amended complaint as to Caterpillar. We will begin by addressing the order sustaining respondents demurrers before turning to the issues specific to Caterpillar.

I. The Order Sustaining the Demurrers

Dyes central contention on appeal is that the trial courts order sustaining the defendants demurrers must be reversed because the trial court failed to assume the truth of the allegations in the third amended complaint. Dye argues that the trial court erred by going beyond the face of the complaint and improperly resting its ruling on the courts own assumptions about the defendants equipment. As we explain below, we agree with Dye.

A. Standard of Review

A demurrer tests only the legal sufficiency of the complaint. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Therefore, in reviewing an order sustaining a demurrer without leave to amend, we assume the complaints properly pleaded or implied factual allegations are true, and we give the complaint a reasonable interpretation, reading it in context. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320.) We deem true the facts alleged in the pleading,  however improbable they may be. [Citation.] (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1397, quoting Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Nevertheless, we do not assume the truth of contentions, deductions, or conclusions of fact or law. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.)

In analyzing the demurrer, we look only to the face of the pleadings and to matters judicially noticeable and not to the evidence or other extrinsic matter. [Citation.] (Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 5 (Milligan), original italics.) Consequently, we may not consider facts asserted in a memorandum in support of a demurrer. (Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) In conducting our review, we are not bound by the trial courts construction of the complaint. (Milligan, supra, 120 Cal.App.4th at p. 5.) Instead, we determine de novo whether the factual allegations of the complaint are adequate to state a viable cause of action. (Cobb v. OConnell (2005) 134 Cal.App.4th 91, 95.) [O]ur inquiry ends and reversal is required once we determine a complaint has stated a cause of action under any legal theory. (Genesis Environmental Services v. San JoaquinValley Unified Air Pollution Control Dist. (2003) 113 Cal.App.4th 597, 603.)

B. The Trial Court Disregarded the Allegations of the Third Amended Complaint.

In its statement of decision, the trial court articulated a number of reasons for ruling that the product liability claims failed to state a cause of action and are fatally uncertain. First, it concluded that the defendants were manufacturers or suppliers of generic, multi-use products who could not be held liable for failing to incorporate in their products safety features peculiar to a specific end user. The trial court then reasoned that because plaintiffs had alleged that silica is defective regardless of whether defendants equipment was used to extract, handle, or move it, defendants were under no duty to warn of the possibility that the use of their products might create toxic silica dust. Third, the trial court ruled that these same principles applied to insulate from liability the defendants who had manufactured component parts needed to run the heavy equipment, particularly the air compression equipment manufacturers. Finally, the trial court distinguished the case of Tellez-Cordova, upon which Dye placed heavy reliance, because it concluded that Dye had failed to allege facts indicating that the products manufactured by the heavy equipment and air compression defendants could only be used in a way that would bring about foreseeable injury to Dye. As we explain, none of these rationales is persuasive.

1. The Third Amended Complaint Does Not Allege That Defendants Are Manufacturers or Suppliers of Generic, Multi-Use Equipment or of Component Parts.

Addressing Dyes claims against the heavy equipment and air compression equipment defendants,[7] the trial court reasoned that [d]efendants can bear no liability as a matter of law if the incidental use of their multi-purpose equipment or products creates some form of dust that ultimately causes injury. The trial court explained that manufacturers or suppliers of multi-use products that can be used in a variety of activities outside the manufacturers control are not liable for failing to incorporate safety features that might be peculiar to a specific end user. In the trial courts view, the manufacturer of a generic or off-the-shelf product that has many uses and can be used to extract, handle and move all types of materials bears no liability because [a] safety feature important for one adaptation may be wholly unnecessary or inappropriate for a different adaptation. [Citation.] The trial court sought to draw support for its view from cases involving the component parts doctrine, such as Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541 (Springmeyer) and Garman v. Magic Chef, Inc. (1981) 117 Cal.App.3d 634 (Garman).

The fundamental flaw in the trial courts analysis is that the Dyes third amended complaint does not allege that the defendants are the manufacturers of multi-use equipment. To the contrary, as set forth above, the operative complaint alleges that the defendants products were specifically designed and manufactured for the express purpose of cutting, blasting, drilling, and otherwise manipulating silica such that respirable silica dust and particles are generated. The complaint further alleges that the generation of such dust was the direct result of the intended use of defendants equipment. It also alleges that Dye was exposed to the respirable silica dust and particles and that this exposure caused him harm. Fairly construed, these allegations do not support the trial courts factual premise that the defendants are the manufacturers or suppliers of generic, multi-use products. To the contrary, the allegations assert that use

of defendants equipment for the purpose for which it was specifically designed resulted in the release of the toxin that caused Dyes injuries.

We also find nothing in the operative complaint to suggest that the heavy equipment defendants are manufacturers or suppliers of component parts. Thus, we fail to see the relevance of the component parts doctrine to Dyes claims against the heavy equipment defendants. Those defendants are not alleged to have supplied either raw materials or components that were later incorporated into other products that then caused injury to Dye. (See, e.g., Lee v. Electric Motor Division (1985) 169 Cal.App.3d 375, 385 [component part manufacturer who had no role in designing the finished product and who supplied a nondefective component part not liable for the defective design of the finished product].) Instead, Dye has asserted that the allegedly defective heavy equipment itself caused his exposure to silica. Dye has claimed that the equipment was specifically designed for the purpose of manipulating silica such that respirable silica dust is created. He has also alleged that his exposure to toxic silica dust was the unavoidable result of the foreseeable and intended use of defendants products. Thus, according to the third amended complaint, it was defendants equipment not some other instrumentality incorporating defendants equipment that was responsible for his exposure to harmful silica dust. In light of these allegations, the component parts doctrine is inapplicable.

The two cases the trial court cited in support of its ruling Springmeyer and Garman are inapposite. First, neither of those cases involved an appeal from an order sustaining a demurrer, and both courts thus had the benefit of a developed factual record. (See Springmeyer, supra, 60 Cal.App.4th at p. 1547 [appeal from jury verdict]; Garman, supra, 117 Cal.App.3d at p. 636 [appeals from summary judgments].) Springmeyer was a products liability action that arose out of injuries sustained by a mechanic who, while working on a Ford truck, was struck by a blade that broke off from a fan installed in the trucks engine. (Springmeyer, supra, 60 Cal.App.4th at pp. 1546-1547.) While Springmeyer did address the component parts doctrine, it held the doctrine inapplicable, finding that the evidence presented a jury question as to whether the injury-causing fan was a  generic or off-the-shelf component[] or   really a separate product with a specific purpose and use. (Id. at p. 1554.) Dyes complaint alleges that the defendants various types of equipment constitute separate products with a specific purpose and use.

Nor does Garman support the trial courts ruling. In Garman, plaintiffs sued for injuries caused when a cooking stove installed in their motor home exploded. (Garman, supra, 117 Cal.App.3d at p. 636.) The Garman court prefaced its discussion by stating, The physical circumstances that resulted in the explosion are not in dispute. (Ibid.) The explosion occurred because a copper tube that carried propane gas from a tank to the stove had separated from its attachment, permitting propane gas to leak out and form a pool of flammable vapor. (Ibid.) When appellants wife lit the stove, the escaped gas ignited and caused an explosion and fire. (Id. at pp. 636-637.) Based on these undisputed facts, the Garman court held that the manufacturer of the stove was under no duty to warn of the possible defect in the product of another, and therefore could not be held liable for a gas leak that resulted from a defect in the tubing. (Id. at p. 639.) Here, Dye is not seeking to hold respondents liable for failing to warn of a possible defect in the product of another[.] (Ibid.) Instead, he claims that respondents are liable because they failed to warn of alleged defects in their own products. The rule of Garman therefore has no application to the question of the sufficiency of appellants pleadings.

The trial court also reasoned that the component parts doctrine operated to relieve the air compression defendants of liability as a matter of law. The trial court opined that the third amended complaint alleged only that the air compressors supplied a power source for use on the heavy equipment. The trial court went on to state that [t]here is no allegation that the air compressors were defective, that they malfunctioned, or that they did anything other than power heavy equipment. Once again, we disagree.

Although there may be a credible factual argument that the air compressors were merely component parts of the heavy equipment, such an argument cannot be based upon the language of the third amended complaint. The operative complaint stated: During the process of compressing and/or releasing air, the air compression equipment . . . necessarily removed and/or disturbed silica particles which were pulverized as a result of the intended and natural force of the air compression process[.] The complaint specifically alleged that the air compression equipment was inherently hazardous and defectively designed because [it] lacked local exhaust ventilation and/or dust suppression devices necessary to prevent or minimize the release of and exposure to toxic silica containing dusts[.] It also alleged that the air compression equipment was inherently hazardous and defective for lack of adequate warnings and use instructions.

In light of these allegations, which we must accept as true, there is no basis for the trial courts conclusion that the third amended complaint failed to allege that the air compression equipment was defective. As was true of the heavy equipment defendants, it necessarily follows that the component parts doctrine is inapplicable to the air compression defendants, because the doctrine exempts from liability only entities that supply a nondefective component part that is later incorporated into a final product over which the component part supplier had no control. (See Tellez-Cordova, supra, 129 Cal.App.4th at p. 581.) Because the third amended complaint plainly alleges defects in the air compression equipment itself, the component parts doctrine does not support dismissal of Dyes complaint against the air compression defendants.

2. Plaintiffs Do Not Allege That Silica Is Defective.

The trial court also based its ruling on its view that the Dyes had candidly alleged, [that] silica is defective regardless of whether defendants heavy equipment was used to extract, handle, or move it (FAC,  27, 6:14-17), or whether some other implements such as a broom, a boot, a shovel, a pick ax, or a wheelbarrow could have raised the dust and caused the alleged exposure. From this, the trial court reasoned that the manufacturers of products that might be used on a mining site had no duty to warn of the possible dangers of toxic silica dust because of the mere fact that silica dust might exist in an area where Mr. Dyes employer ha[d] assigned him to work[.]

Once again, the trial courts conclusion is inconsistent with the language of the operative third amended complaint. The complaint does not allege that silica is defective regardless of whether defendants equipment was used to manipulate it.[8] Indeed, the complaint alleges precisely the opposite. It states, Silica is a naturally occurring mineral that is not typically hazardous in its natural, undisturbed state. (Italics added.) It goes on to allege that silica becomes hazardous when disturbed, cut, blasted, drilled, ground, bolted, scaled, moved, excavated, scraped, and/or otherwise manipulated such that respirable dust and or particles of silica are generated and become airborne and which enter the breathing zone of workers . . . such as Plaintiff[.] Thus, far from admitting that silica is hazardous even absent the use of the defendants equipment, the Dyes have alleged that it is not hazardous unless it is disturbed. The courts hypothetical factual scenario of a broom or boot raising silica dust does not render insufficient the allegation appellants do set forth in the third amended complaint.

3. Tellez-Cordova

Both in the trial court and in this court, Dye has relied on the Second Districts opinion in Tellez-Cordova for support. The trial court discussed Tellez-Cordova at some length in its statement of decision but distinguished the case from Dyes, finding that it did not support Dyes argument. We believe that the trial court misapplied the case.

In Tellez-Cordova, the plaintiff, a lamp maker, alleged that he had developed a pulmonary illness because he cut, sanded, and ground metal parts, working with and around grinders, sanders, and saws manufactured by the defendants. (Tellez-Cordova, supra, 129 Cal.App.4th at p. 579.) According to his complaint, plaintiffs illness was the result of exposure to airborne toxic substances produced and released from the metal parts and from the discs, belts, and wheels used on the grinders, sanders, and saws. (Ibid.) He brought a products liability action, alleging that the defendants tools were specifically designed to be used with abrasive wheels or discs for the intended purpose of grinding and sanding metals and that when the tools were used for their intended purpose, respirable metallic dust from the metal being ground and from the abrasive wheels and discs was generated and released into the air, causing the injury[.] (Id. at p. 580.)

The defendants demurred, arguing that any harm to plaintiff was caused not by their tools, but by the wheels, discs, and belts. (Tellez-Cordova, supra, 129 Cal.App.4th at p. 581.) Defendants contended that plaintiff failed to state a cause of action because there was no allegation that their tools disintegrated into toxic dust, only the abrasives and materials being ground did that. (Ibid.) Defendants relied on several legal theories, including causation under Bockrath, the component parts doctrine, and the claim that a manufacturers duty to warn is restricted to its own products. (Ibid.) The trial court sustained the demurrer and plaintiff appealed. (Id. at p. 579 & fn. 2.)

The Second District rejected all of defendants legal theories. (Tellez-Cordova, supra, 129 Cal.App.4th at pp. 581-587.) Of particular relevance here, the Court of Appeal disagreed with defendants claim that they were suppliers of generic, multi-use parts which could be used with  a universe of grindable products.  (Id. at p. 582.) The court concluded that this argument contradicted the allegations of the complaint, which did not allege that defendants manufactured component parts to be used in a range of finished products, but instead that defendants manufactured tools which were specifically designed to be used with the abrasive wheels or grinding discs and that when the tools were used as intended, harmful respirable metallic dust was released into the air. (Ibid.) The court noted that, according to the complaint, the tools were used for their sole intended purpose and that there was only one use for the products at issue. (Id. at p. 582.)

In its statement of decision, the trial court seized on this language in the Second Districts opinion stating that the complaint in Tellez-Cordova alleged that the products at issue were being used for their sole intended purpose.[9] (Tellez-Cordova, supra, 129 Cal.App.4th at p. 582.) From this, the trial court reasoned that Dyes third amended complaint failed to state a cause of action, because [u]nlike the defective wheels and discs that shed toxic dusts in Tellez-Cordova, plaintiffs [third amended complaint] fails to allege any facts indicating that some component or finished product manufactured by any of the heavy equipment or air compression defendants could only be used in a way that would bring about foreseeable silica injury to Donald Dye. (Original emphasis.)

The trial court appears to have interpreted Tellez-Cordova as holding that to state a claim in products liability, a plaintiff must allege that defendants products could be used only in a way that would cause injury to the plaintiff, and that the absence of such an allegation renders the product liability cause of action defective. Even if this were a fair reading of Tellez-Cordova (a question we do not reach), Dye has alleged that defendants equipment was specifically designed, manufactured, marketed, and distributed for the express purpose of disturbing, cutting, blasting, drilling, grinding, bolting, scaling, moving, excavating, scraping, and/or otherwise manipulating silica such that respirable silica dust and particles are generated and which cause harm to unknowing individuals such as Plaintiff. (Italics added.) Such allegations are at least as specific as those found sufficient to survive demurrer in Tellez-Cordova.[10]

4. Caterpillar as an Air Filtration Defendant

The trial court struck Dyes third amended complaint as to Caterpillar because it concluded that Dye had failed to name Caterpillar as a defendant in the third amended complaint. (See part II, post.) It noted, however, that it would have sustained Caterpillars demurrer to the allegations made against Caterpillar as an air filtration defendant because [t]he [third amended complaint] does not allege that Donald Dye actually operated any Caterpillar equipment, that is, that he was ever in a Caterpillar cab. Because our reversal of the judgments will result in further proceedings below, we will address this issue now in the interests of judicial economy.

We believe that the trial courts conclusion on this point was the product of an improperly narrow reading of the third amended complaint. The operative complaint alleged that Caterpillar designed, manufactured, and marketed an enclosed operator cab for the heavy mining and/or quarrying equipment Dye used. The complaint also alleged that the enclosed cab air filtration system failed to protect Dye. It further alleged that [a]s a direct result of such intended use of Defendant[] Caterpillar[s] . . . air filtration products, workers, such as Plaintiff, Donald Wade Dye, were exposed to dangerous levels of toxic dust[.] (Italics added.) Unlike the trial court, we conclude that this sufficiently alleges that Dye used Caterpillars air filtration equipment.

C. The Same Analysis Requires Reversal of the Judgments in No. A116022.

The foregoing analysis likewise compels reversal of the judgments entered in favor of Atlas Copco, Eimco/Sandvik, and Robbins. Both their demurrers and the trial courts orders sustaining them were based on the reasoning of the trial courts May 15, 2006 order. We have explained in Part I.B., ante, why that reasoning is erroneous.

Our analysis applies equally to the allegations against these defendants in Dyes fourth amended complaint. Atlas Copco, Eimco/Sandvik, and Robbins were all alleged to be manufacturers or suppliers of tunneling equipment. Dye alleged that through expressly intended and reasonably foreseeable use, their tunneling equipment generated and caused the release of respirable silica dusts that Dye inhaled and that caused him injury. As set out above, these allegations are sufficient to survive a demurrer.

D. Defendants Additional Arguments

In urging us to affirm the rulings below, defendants do not rely solely on the reasons adopted by the trial court. Instead, they advance a number of additional arguments and invoke the rule that we must affirm the trial courts ruling if it is correct on any ground. (See, e.g., Kemp Bros. Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th 1474, 1477 [when the [trial] court gives an incorrect legal reason for its ruling, we look for any other correct legal basis on which to sustain the order].) Having examined these additional arguments, we conclude that they have either been forfeited or are unpersuasive.

1. Knowledge of the Danger Posed by Silica

Defendants make two arguments premised upon Dyes alleged knowledge of the dangers posed by silica dust. They contend that they bear no liability because (1) the dangers posed by silica are generally known and obvious, and (2) the sophisticated user doctrine bars Dyes claims for failure to warn. They point to allegations in the third amended complaint stating that Dye worked with respiratory protection equipment and air filtration equipment from which he expected respiratory protection from toxic respirable silica dusts and particles.

From these allegations defendants first infer that the purported dust hazard of Dyes chosen profession was apparently obvious. (Original italics.) And because the danger was generally known and recognized, defendants argue they cannot be liable for having failed to warn Dye about it. (Cf. Rest.2d Torts (1964)  402A, com. j, p. 353 [seller has no duty to warn when the danger, or potentiality of danger, is generally known and recognized].) Initially, we observe that this argument falls wide of its mark. The focus of Dyes complaint against defendants is not that they failed to warn him of the danger posed by silica dust itself, but rather that they failed to warn him that the reasonably foreseeable and intended use of their equipment would lead to his exposure to this toxic agent. In any event, defendants argument fails to explain how appellants pleadings demonstrate Dye had access to, let alone superior access to, knowledge of the toxicity of respired silica or the hazards of silica dust. Additionally, defendants argument again ignores the language of the third amended complaint. The operative complaint alleges repeatedly that Dye did not expect that the intended and foreseeable use of Defendants . . . equipment would result in the release of and exposure to toxic silica containing dusts which would cause him to develop silicosis[.] And defendants can point to no allegations suggesting that the dangers posed by their equipment were obvious.[11]

Defendants also claim that Dye was a sophisticated user who had superior access to knowledge about the hazards posed by silica dust at Dyes worksites. As a consequence, defendants claim that they bore no liability to prevent Dyes silica-related injuries as a matter of law. Here again, the flaw in defendants argument is that Dyes complaint does not allege that he is a sophisticated user. To the contrary, Dye alleges that neither he nor any other ordinary user of defendants equipment would have expected that the use of the equipment would lead to exposure to toxic silica dust. (Italics added.) Moreover, while the California Supreme Court recently confirmed that the sophisticated user defense applies in California, its opinion serves to emphasize the fact-based nature of this defense. (See Johnson v. American Standard, Inc., supra, 43 Cal.4th at p. 74 (Johnson).) In Johnson, the court reviewed the trial courts grant of summary judgment, and held that the defense applied to bar the claims of a heating, ventilation, and air conditioning (HVAC) technician for injuries arising from exposure to a hydrochlorofluorocarbon refrigerant. (Ibid.) But it based this holding on the fact that defendant presented undisputed evidence that HVAC technicians could reasonably be expected to know of the hazards at issue. (Ibid., italics added.) In contrast to Johnson, the case before us remains at the pleading stage, and the operative complaints allegations that Dye was an ordinary user provide no basis for application of the sophisticated user defense.

2. Employers Duty to Warn

In a brief filed on behalf of all defendants, Deister and Portec argue that both federal and California law place the duty to warn of the dangers of silica exposure on Dyes employers, rather than on defendants. Citing the Mine Safety and Health Act of 1977, 30 United States Code section 801 et seq. and its accompanying regulations, Deister and Portec argue that under federal law, the duty to warn rests with mine owners and operators. As a result, Deister and Portec contend that we should refuse to impose a duty to warn on defendants.

We cannot accept this argument for a number of reasons. First, as Dye points out, defendants did not make this argument below, and we will not consider new theories of defense for the first time on appeal. (Bardis v. Oates (2004) 119 Cal.App.4th 1, 13-14, fn. 6.) Second, even if this argument were properly before us, it rests on a number of factual assumptions that would render it inappropriate for consideration at the pleading stage. For example, the argument assumes the applicability of the Mine Safety and Health Act because, defendants claim, Dyes workplaces all fall within the federal laws definition of a mine. (See 30 U.S.C.  802(h)(1) [defining coal or other mine]; 803 [mines subject to coverage of act].) But in the absence of more detailed factual allegations in the operative complaint, we cannot determine whether this statute applies without the benefit of further factual development. Finally, defendants do not make clear to us how they believe the federal statute and regulations would affect Dyes case. Although Deister and Portec refer to a comprehensive scheme of statutes and regulations and to the pervasive nature of the state and federal laws and regulations designed to ensure the safety of miners, they do not explicitly argue that this legislative and regulatory scheme preempts the duties otherwise imposed by California tort law. (See, e.g., Frastaci v. Vapor Corp. (2007) 158 Cal.App.4th 1389, 1394 [Federal statutes that occupy a field serve to preempt . . . common law torts remedies].) We therefore could not consider this argument in any event, because we must confine our review to matters adequately raised and supported in the parties briefs. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)

3. Statute of Limitations

Defendants also argue that we should affirm the dismissal of Dyes complaint on the alternative ground of the statute of limitations. The trial court rejected the statute of limitations argument below, noting that Dyes third amended complaint had pleaded that  [t]he pathological effect of [silicosis] occurred without perceptible trauma and . . . until May 6, 2003, at the very earliest, Plaintiff . . . could not have discovered that he was even injured or suffering from silicosis. The trial court concluded that these allegations, if accepted as true, were sufficient to defeat defendants demurrers on statute of limitations grounds. We agree.

In the court below, the defendants argued that Dye failed to allege sufficient facts explaining why he could not have discovered the cause of his injuries any sooner than he did.[12] To survive a demurrer on this ground, Dye was required to  specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. [Citation.] (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808, original italics.) Here, Dye alleged that he was first diagnosed with silicosis on May 6, 2003. He further alleged that silicosis is a latent occupational disease, the symptoms of which do not physically manifest for years or decades after exposure. Dyes complaint asserted that the pathological effect of the disease occurred without perceptible trauma, that it was not until his May 6, 2003 diagnosis that one of his physicians first suggested that exposure to dust at work might be the cause of his injuries, and that he could not have ascertained the toxic cause of his injuries through the exercise of reasonable diligence. Dye has therefore alleged facts showing the time and manner of his discovery of his injuries and his inability to have made the discovery earlier despite reasonable diligence. (Ibid.)

4. Bockrath

Finally, citing Bockrath, defendants suggest that demurrer is proper in this case because, [t]he law cannot tolerate lawsuits by prospecting plaintiffs who sue multiple defendants on speculation that their products may have caused harm . . . and who thereafter try to learn through discovery whether their speculation was well-founded. (Bockrath, supra, 21 Cal.4th at p. 81.) Even assuming that the rule of Bockrath applies to this products liability case, however, Dyes complaint appears largely to satisfy Bockraths pleading requirements. Dye has alleged that he was exposed to silica, a substance which he alleges caused a specific illness, i.e., silicosis. (Id. at p. 80.) He has identif[ied] each product that allegedly caused the injury. (Ibid.) He has also alleged that as a result of the exposure, the toxin[] entered his body. (Ibid.) Dye has further alleged that he suffers from a specific illness silicosis and that the silica to which he was exposed through defendants allegedly wrongful conduct was a substantial factor in bringing about that illness.[13] (Ibid.)

To the extent that defendants express concern about the perceived dubiousness of [Dyes] lawsuit (Bockrath, supra, 21 Cal.4th at p. 81), Bockrath itself explains that the law provides ample remedies. These include disciplinary action against the lawyer filing such a suit, an order striking out irrelevant, false, or improper matter inserted in any pleading, and a suit for the malicious institution of a civil proceeding. (Id. at pp. 82-83.) But without proof of dishonest, reckless, or negligent pleading practice on Dyes part, [w]e presume that plaintiff here was aware of his duty to pursue his suit in good faith, and, in the absence of contrary evidence, that he did so. (Id. at p. 83.)

II. The Order Striking the Complaint as to Caterpillar

On September 14, 2005, the trial court sustained the demurrers to the second amended complaint filed by Caterpillar and other defendants but granted Dye leave to amend by September 23, 2005. Dye timely filed a third amended complaint on September 23, but the caption of the complaint incorrectly named Caterpillar Equipment Company as a defendant, rather than Caterpillar, Inc., and most of the allegations of the complaint were directed at Caterpillar Equipment Company. The body of the complaint, however, did contain allegations directed at Caterpillar, Inc.

On October 17, 2005, Caterpillar filed an ex parte application for an order dismissing Caterpillar from the action because of the failure of the third amended complaint to name Caterpillar, Inc., as a defendant. Caterpillar relied on section 581, subdivision (f)(2) (hereafter section 581(f)(2)), which permits the superior court to dismiss an acation as to any defendant when: [] . . . after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal. Dyes counsel appeared at the ex parte hearing and submitted (but did not file) written opposition.[14] In a declaration attached to the unfiled opposition, one of Dyes attorneys claimed that the incorrect naming of Caterpillar Equipment Company was a clerical error. Although the trial court did not hear Caterpillars motion on the record and entered no ruling, it is clear that it declined to grant Caterpillars request for dismissal.

Caterpillar filed its demurrer to Dyes third amended complaint on October 25, 2005, and two days later Dye filed an incorrect name amendment noting that Caterpillar Equipment Company had been incorrectly named and seeking to amend the complaint by inserting the name Caterpillar, Inc., in place of Caterpillar Equipment Company. The trial judge signed the incorrect name amendment on the day it was filed. For reasons not apparent from the record, Dye then submitted a second incorrect name amendment to the trial court. This amendment again sought to correct the erroneous naming of Caterpillar Equipment Company and to name instead Caterpillar, Inc. The trial judge signed this second amendment on November 28, and it was filed on December 2, 2005.[15]

Caterpillar again raised the incorrect name issue in its demurrer to Dyes third amended complaint. Caterpillar acknowledged that Dye had filed the complaint by September 23, 2005, but claimed that plaintiffs had not sued Caterpillar. Caterpillar claimed that due process prevented Dye from filing an amendment naming Caterpillar, Inc., because the statute of limitations on plaintiffs claims against Caterpillar had run, and the amendment could not relate back to the original complaint. Although Dye filed a written opposition to Caterpillars demurrer, it did not address the incorrect name issue. At the hearing on the demurrers to the third amended complaint, however, counsel argued the incorrect name issue, and Caterpillars counsel read the text of Dyes incorrect name amendment into the record.

In its statement of decision on the demurrers filed by the defendants, the trial court specifically addressed the contentions regarding the naming of Caterpillar Equipment Company. Claiming that it was bound by the record before it, the trial court ruled that neither Caterpillar, Inc., nor Caterpillar Equipment Company was properly a current party to the case. In the trial courts view, Dye had failed to file a timely complaint against Caterpillar, Inc., and Caterpillar Equipment Company had never properly been made a party to the proceeding. The trial court therefore treated Caterpillars demurrer as a motion to strike the third amended complaint, and granted the motion without leave to amend. The trial courts statement of decision did not mention that the court had signed the two incorrect name amendments Dye submitted.

A. Standard of Review

The trial court treated Caterpillars demurrer as a motion to strike the [third amended complaint] as to this defendant. (See  436, subd. (b) [granting superior court discretion to strike any pleading not drawn or filed in conformity with . . . an order of the court].) We review the trial courts order striking the Dyes pleading for abuse of discretion.[16] (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) The burden is on the Dyes to demonstrate that such an abuse has occurred. (Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 1081.)

Generally, we may not substitute our decision for that of the trial court if two or more inferences can reasonably be drawn from the facts. (E.g., Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) Thus, an appellant cannot show that the trial court has abused its discretion if the record presents a state of facts that merely affords an opportunity for a difference of opinion. (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.) But the abuse of discretion standard also measures whether, given the established evidence, the act of the lower tribunal falls within the permissible range of options set by the legal criteria. (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831, italics added.) To constitute a proper exercise of discretion, therefore,  all the material facts must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision. [Citation.] (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 990.)

B. The Trial Court Abused its Discretion by Striking the Complaint as to Caterpillar After Having Twice Permitted the Misnomer Amendment.

The record before us demonstrates that when the trial court struck Dyes third amended complaint as to Caterpillar because of t