Estate of Rosa Pleitez v. Zep Inc.

Pursuant to a Stipulation and Order, on 4/14/25, Plaintiff filed a Second Amended Complaint alleging causes of action for: (1) Wrongful Death against Miles Chemical, Macdermid and Does 11-200; (2) Survival Action against Miles Chemical, Macdermid and Does 1-200 and (3) Negligence against Prologis and Does 1-10. (See 4/14/25 Revised Stipulation & Order and Second Amended Complaint).

After the Court sustained the demurrer of Defendants Prologis Targeted U.S. Logistics Fund, L.P. (Doe 1) and Prologis, L.P (Doe 2) (collectively, the Prologis), on 8/21/25, Plaintiff filed a Third Amended Complaint alleging causes of action for: (1) Wrongful Death against all Defendants including Does 1-200; (2) Strict Products Liability against Miles Chemical Company, Inc., Macdermid Enthone including Does 1-200; and (3) Survival Action "Against Defendants and Does 1 through 200, Inclusive."

On 9/10/25, Prologis filed and served a motion to strike the Third Amended Complaint on the ground that it was untimely filed and a demurrer to the Third Amended Complaint which were scheduled for hearing on 12/12/25.

On 10/9/25, pursuant to a stipulation between Plaintiff and Defendants Macdermid Enthone, Inc. and Miles Chemical Company, the Court ordered that Macdermid Enthone, Inc. and Miles Chemical Company had until 11/7/25 to file a response to the Third Amended Complaint and Plaintiff had until 11/7/25 to file a further amended complaint. (See 10/9/25 Stipulation and Order).

On 11/12/25, Plaintiff filed the subject Fourth Amended Complaint (4AC). The Fourth Amended Complaint alleges the following causes of action: (1) Negligence for Wrongful Death against "all defendants including Does 1 through 200, inclusive"; (2) Strict Products Liability against "all Chemical Defendants including Does 1 through 200, inclusive" (Chemical Defendants are defined as Miles Chemical Company, Inc. and Macdermid Enthone, Inc. and Does 10-200) (4AC P.P.1, 6) and (3) Survival Action "against Defendants and Does 1 through 200, inclusive."

On 12/19/25, the Court sustained Prologis' demurrer to the Fourth Amended Complaint without leave to amend. On 1/5/26, the Court entered a judgment of dismissal of Prologis with prejudice. On 1/6/26, filed Doe amendments naming Zep Inc. (Zep) in place of Doe 21. On 1/26/26, Plaintiff served Zep. After meet and confer efforts failed to resolve the issues Zep had with the Fourth Amended Complaint, on 3/12/26, Zep filed and served the instant demurrer to the entire Fourth Amended Complaint. Plaintiff has opposed the demurrer and Zep has filed a reply to the opposition.

ANALYSIS Zep's Request for Judicial Notice is granted.

***The opposition indicates that Plaintiff is only pursuing the wrongful death cause of action (1 st cause of action) against Zep. (See Opposition, p.2:3-4). Therefore the analysis only addresses that cause of action.

Statute of Limitations An action for injury to, or for the death or, an individual caused by the wrongful act or neglect of another must be filed within two years of the injury. CCP 335.1. The statute of limitations usually begins when a cause of action accrues meaning when all elements are completed. See Norgart (1999) 21 C4th 383, 389, 397. A demurrer may be sustained on the basis that the untimeliness of a lawsuit appears on the face of the complaint and matters judicially noticed. Hamilton (2023) 98 CA5th 417, 423.

The statute of limitations for the 1 st cause of action for wrongful death began to run on 3/26/22, the date of Decedent's death. (See FAC P.22); Kincaid (2011) 197 CA4th 75, 80. Plaintiff did not name Zep as a defendant until 1/6/26, more than 2 years after the cause of action accrued. Generally, an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint was filed. Woo (1999) 75 CA4th 169, 176.

CCP 474 provides an exception to the general rule when a new defendant is substituted for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. Id. The relation-back doctrine, under CCP 474, may save an otherwise time-barred amended complaint that substitutes a new defendant in place of a Doe defendant if the following requirements are met: (1) the amended complaint is based on the same general set of facts as the original; (2) the original complaint stated a valid cause of action against the now-identified defendant; and (3) the plaintiff was "genuinely ignorant" of the defendant's identity or the facts rendering defendant liable when the original complaint was filed. Eghtesad (2020) 51 CA5th 406, 417.

Here, Zep was substituted in this case as Doe 21 on 1/6/26, well after the two year statute of limitations expired on 3/26/24. Plaintiff fails to satisfy the second and third Eghtesad factors in order for the relation-back doctrine to apply. It is also noted that the Fourth Amended Complaint alleges that Decedent was injured based on exposure due to lack of ventilation whereas the complaint and First Amended Complaint were based merely on exposure to certain chemicals. (See 4AC P.P.19, 24; FAC P.20).

The First Amended Complaint, which is the first pleading to allege a wrongful death claim, fails to plead a valid cause of action against Zep. The wrongful death claim appears to be based on strict product liability theories which require that Plaintiff allege that Decedent was exposed to each of the toxic materials claimed to have caused a specific illness; identify each product that allegedly caused the injury; the toxins entered Decedent's body as a result of the exposure; Decedent suffered from a specific illness and that each toxin that entered Decedent's body was a substantial factor in bringing about, prolonging, or aggravating the illness; and each toxin Decedent absorbed was manufactured or supplied by a named Defendant.

See Bockrath (1999) 21 C4th 71, 80. A plaintiff cannot rely on speculation that a defendant's product may have caused harm and hope to later discover supporting facts. Id. at 81; See also Jones (2011) 198 CA4th 1187, 1195. Here, Plaintiff does not list or otherwise identify any specific toxic material to which Decedent may have been exposed that could have been sold by Zep. Id. at 1191.

Plaintiff has also failed to establish genuine ignorance of Zep's identity before it was named in place of Doe 21 on 1/6/26. The original complaint alleged that Decedent discovered in or around September 2020 that her injuries were caused by exposure to chemicals "while employed as a janitor for Carbonlite Industries in Riverside, California." (Complaint P.1). The original complaint was filed on 10/8/21. Plaintiff's delayed discovery argument is without merit. Plaintiff fails to explain why he and/or Decedent did not have the ability to obtain the information to identify Does 1-200 at that time the action was filed or soon thereafter by issuing a subpoena to Decedent's employer regarding the products used at the facility. Instead, Plaintiff waited more than four years to name Zep in place of a Doe defendant.

Failure to Allege Sufficient Facts to State a Cause of Action Against Zep. The Fourth Amended Complaint fails to clearly identify Zep's role in this case. The Fourth Amended Complaint merely alleges that Zep sold an "unknown chemical," "caustic product," or "dangerous substance[] and debris" to Carbonlite Industries that caused Decedent's injury, interstitial lung disease. (4AC P.P.6, 19, 24, 27). The vague references to "other unknown chemicals and caustic products" or "dangerous substances and debris" are insufficient under the standard articulated in Bockrath for a product liability claim based on exposure to toxic chemicals.

Plaintiff's reliance on the protective order to alleviate these pleading requirements is without merit. Plaintiff cites no authority for the proposition that he is not required to identify the at-issue product attributable to Zep based on a protective order. Plaintiff also fails to explain how the identity of the products allegedly sold to Decedent's employer by various defendants amounts to "proprietary information." Moreover, to the extent certain information identifying these products is encompassed by the Protective Order, the Protective Order permits disclosure when made for the purpose of advancing claims or defenses. (Protective Order at P. 18(i)).

Identifying the product for which Zep is allegedly liable is necessary to advance Plaintiff's causes of action. Bockrath, supra at 79-80. The Fourth Amended Complaint does not identify any specific allegedly defective product attributable to Zep as is required to assert a wrongful death cause of action based on products liability.

Failure to Timely Serve Action Even if Plaintiff's wrongful death cause of action did not otherwise fail, it is subject to dismissal for failure to effectuate service on Zep within 3 years of inception of the action. See CCP 583.210(a); CCP 583.250. The deadline is not extended by the fact that Zep was named in place of a Doe defendant. See Higgins (2017) 15 CA5th 973, 975, 982. Here, Zep was served in January 2026 which is more than 4 years after this action was commenced on 10/8/21.

Plaintiff's contention that Zep cannot raise this argument by demurrer is without merit. CCP 430.30 provides that "[w]hen any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading." Moreover, the Court of Appeal recently held that the same issue can be resolved on demurrer. See Nichols (2026) 118 CA5th 726, 741.

Even if a demurrer was technically not the proper procedural vehicle to raise the issue, such would not preclude the mandatory dismissal required by CCP 583.250 which provides: "(a) If service is not made in an action within the time prescribed in this article: (1) The action shall not be further prosecuted and no further proceedings shall be held in the action. (2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties. (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute."

As noted above, the opposition concedes that Plaintiff is only pursuing the 1 st cause of action for wrongful death against Zep. (See Opposition, p.2:3-4). The Court has already determined that the 1 st cause of action for Negligence for Wrongful Death does not extend the 3-year deadline. As noted in the Court's 6/17/26 ruling: In Clark [(1987) 197 CA3d 50], the Court of Appeal upheld the dismissals of two defendants who had initially been named fictitiously in the complaint on the ground that plaintiffs failed to serve the complaint on defendants within the two-year period provided in CCP 583.420.

In Clark, on 8/20/82, the decedent filed a products liability action alleging injuries caused by exposure to asbestos. Clark, supra at 53. On 10/24/83, after the decedent's death, on 11/8/82, the decedent's wife was permitted to file an amended complaint to prosecute the decedent's claims and to add a wrongful death claim. Id. On 10/28/84, the plaintiff wife filed a new action alleging only wrongful death against the same defendants and added Does 1 to 1,000. Id. The allegations in the new action concerned the "same chemical substances named in the original action."

Id. at 53-54. In other words, the wife's new complaint for wrongful death was based on the same set of factual allegations. On 4/18/86, the wife's complaint was amended to name Stabond Corporation (Stabond) as one of the Doe defendants. Id. at 54. The court explained that the use of the CCP 474 'relation-back doctrine' was 'ultimately limited by [S]ection 583.210 which provides that, in any event, a defendant must be served within three years.' Id. at 56." (See 6/17/26 Minute Order, p.4).

Similarly, here, Decedent and Rigoberto Pleitez commenced an action on 10/8/21, alleging various claims against named defendants and Does 1-200. (See Complaint). As to Doe 21, the complaint alleged that "unknown chemicals and caustic products sold by DOES 1 through 200 contain recognized contaminants and caustic substances which are scientifically known to cause and/or contribute to the development of interstitial lung disease and directly caused and/or contributed to the development of Plaintiff's interstitial lung disease." (Complaint P.P. 5, 20, 42 43).

After Decedent's death on 3/26/22, the Estate of Rosa Pleitez, by and through her husband, Rigoberto Pleitez, converted the claims to wrongful death and negligence against Zep as Doe 21. However, the basis for the claims in the First Amended Complaint remained unchanged. (See FAC P.P.5, 20, 53). The basis of the allegations against Zep as Doe 21 also remain unchanged in the operative Fourth Amended Complaint. (Compare Complaint P.5 with 4AC P.P. 6, 24). Therefore, this action commenced against Zep as of the date of the filing of the Complaint on 10/8/21.

CONCLUSION The demurrer is sustained without leave to amend. The opposition indicates that Plaintiff is only pursuing the 1 st cause of action for wrongful death against Zep. (See Opposition, p.2:3-4). As such, the Court finds that Plaintiff has conceded that the demurrer by Zep as to the 2 nd and 3 rd causes of action is meritorious. For the reasons set forth above, Plaintiff's 1 st cause of action also fails. Plaintiff has now had multiple opportunities to plead his claims and has failed to adequately do so. More importantly, certain of the defects noted above are fatal to Plaintiff's claims against Zep and cannot be cured by amendment. | Home -->)" -->