BOCKRATH v. ALDRICH CHEMICAL COMPANY (1998)

I. INTRODUCTION

In this case, we confront a scenario where plaintiff, Thomas A. Bockrath, suffering from cancer, has sued 55 defendants ¹ which manufactured 222 products which he was exposed to in the workplace over a 21-year time period.   He alleged in his second amended complaint that he was often unaware of the identity of the products when he was exposed to them.   He expressly alleged in his second amended complaint he was not seeking to recover from any defendant on an alternative liability theory as articulated in Summers v. Tice (1948) 33 Cal.2d 80, 86, 199 P.2d 1 or under a market share analysis as set forth in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 597, 163 Cal.Rptr. 132, 607 P.2d 924.   In a judicially noticed interrogatory answer, he admitted he was unable to identify the chemicals that caused his illness.   Under the totality of these circumstances, we conclude the trial judge properly sustained the demurrer to the second amended complaint containing seven tort causes of action without leave to amend on causation grounds.

II. BACKGROUND

The original complaint, which was filed on March 9, 1995, named over 50 defendants who manufactured or supplied products which were used by plaintiff's employer, Hughes Aircraft Company (“Hughes”).   The original complaint alleged that, during the course of his employment from January 1973 to March 1994, he was injured by these products which caused or contributed to his condition of multiple myeloma, a rare form of cancer.   The initial complaint contained causes of action for:  negligence (first);  strict liability (second);  failure to warn and design defect (second and third);  ultrahazardous activity (fourth);  fraudulent concealment (fifth);  breach of warranty (sixth);  and battery (seventh).   On June 22, 1995, the trial court sustained defendants' demurrers to the complaint filed March 9, 1995, and granted plaintiff 60 days leave to amend.

On August 18, 1995, plaintiff filed a first amended complaint.   Plaintiff attached as exhibit “A” to the amended complaint a list of defendants and identified their products which he alleged had caused or contributed to his injury.   The trial court sustained defendants' demurrers to the first amended complaint with 60 days leave to amend.   In ruling on the matter, the trial court stated:  “․ This complaint is extremely vague, very broad and very global.   You have to be very specific as to each defendant and as to each chemical and causation issue.   It is not here.   It is a global claim.   Everybody is responsible for your client's medical problem, but we don't know which defendant and we don't know which chemical it is.   We have no idea in terms of causation.”   The court further explained:  “The problem is the entire complaint is based on conclusion.   No factual basis right now period.   A lot of comments that have been raised here in terms of specific products.  [¶] As I said, you can't globally bring everybody into a lawsuit.   You are going to have to specifically prove that each specific product caused your client's problem.”   In response to plaintiff's contention the matter would be addressed at trial, the court explained:  “You have to do it way before trial.   That is why we have the case management discussions here, because we have to define what the case is all about.   We have to define who the proper parties are, if there are proper parties.   That is what we are doing.” ²

 On January 9, 1996, plaintiff filed the second amended complaint which is the operative pleading.   The second amended complaint's factual allegations as well as judicially noticed material must be assumed to be true.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58;  Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.)   In support of the allegations defendants' products injured him, plaintiff incorporated exhibit “A” in the first amended complaint into the second amended complaint as paragraph 67.   Paragraph 67 of the second amended complaint was labeled as “Product Identification.”   The list named 51 defendants and identified at least 222 products which were used by Hughes during plaintiff's employment.   Plaintiff further alleged that, “Plaintiff was exposed to numerous chemicals and chemical products, some of which have been identified and others which have not yet been identified.”

The second amended complaint contained the additional allegations during his employment he personally used “most, and perhaps all, of the [222] products” or was in close proximity to co-workers who used them.   He claimed he was exposed to the products through direct and environmental inhalation.   Alternatively, it was alleged that the injury was caused by direct or environmental dermal exposure.   However, paragraph 68 alleged plaintiff “was often unaware of the identity of the chemicals and chemical products.”   (Emphasis added.)

With respect to the toxicity of the products, plaintiff alleged:  “The foregoing chemicals and chemical products are toxic (harmful to exposed humans and other life forms), hemotoxic (harmful to the elements of blood of humans and other life forms), hematotoxic (harmful to the blood forming organs of humans and other life forms), immunotoxic (harmful to the immune system of humans and other life forms), genotoxic (harmful to the genetic material (DNA) of humans and other life forms), and/or carcinogenic (cause, contribute to, and/or substantially increase the risk of, cancer in humans and other life forms).  [¶] ․ The toxicity of Defendants' chemical products is, in part, related to and dependent upon their chemical nature and function.   Defendants' chemical products are generally of the following types or functions, which are relevant to their toxicity․”  In addition to alleging the 222 products were toxic, plaintiff alleged “most cause multiple toxic effects on the human body.”   Without identifying any specific product or its toxicity, plaintiff continued:  “Among the more common toxic effects of the foregoing chemicals and chemical ingredients are contact irritation and sensitization, central nervous system depression, immunotoxicity, hemotoxic effects, hematopoietic effects, genotoxic effects, and carcinogenic effects.   In addition, many of the foregoing chemicals and chemical ingredients potentiate, initiate, promote, and exacerbate the toxic effects of others, and have additive and synergistic toxic effects.”   Without any specificity as to identity of a defendant, a product, or connection with his injury, plaintiff alleged the 222 products were carcinogenic.

Plaintiff alleged he either inhaled or came into contact with the products which were absorbed into his bloodstream and were circulated into his internal organs.   It was alleged that:  “Upon reaching the internal organs of Plaintiff's body, including but not limited to the liver and spleen, the foregoing chemicals and chemical products were transformed by metabolic processes, resulting in the formation of toxic metabolites, free radicals, and residual unmetabolized product, by various complex biological mechanisms beyond the understanding of Plaintiff.  [¶] ․ Upon being so metabolized, residual unreacted product, toxic metabolites, free radicals and other chemicals resulting from metabolic processes migrated to the bone marrow, where such products, byproducts, and toxic metabolites caused hemotoxic, hematotoxic, immunotoxic, genotoxic and carcinogenic injuries to the blood and blood forming organs with Plaintiff's bones, thereby initiating and/or promoting the development of Plaintiff's multiple myeloma and other related and consequential injuries, which will be further established and clarified according to proof at the time of trial.”

 Defendants demurred to the second amended complaint.³  In connection with the demurrers, defendants requested the trial court to judicially notice plaintiff's interrogatory responses and the reporter's transcripts from the June 22, 1995, hearing and the October 13, 1995, hearing.   The requests for judicial notice consisted of interrogatory responses by plaintiff that he was unable to identify which products caused his illness.   Trial courts may judicially notice discovery responses in passing upon a demurrer.  (City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1718, 29 Cal.Rptr.2d 89;  Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604, 176 Cal.Rptr. 824.)

After granting defendants' judicial notice request, the trial court sustained the demurrers of two defendants, Columbia Aluminum Products and Smooth-On, without leave to amend.   The trial court took the other defendants' demurrers off-calendar concluding that they were moot pursuant to the ruling on the Columbia and Smooth-On demurrers.   All motions to strike were ordered off-calendar.   The trial court noted plaintiff had failed to comply with the court order of October 13, 1995, directing him to plead the essential element of causation and had continued to “globally” plead without “specifically prov [ing]” that each specific product caused the injury.   As a result, the trial court concluded it could be presumed plaintiff had stated as strong a case as he can and sustained the remaining demurrers without leave to amend.

On September 18, 1996, plaintiff filed a reconsideration motion which was denied.   On October 18, 1996, the trial court entered judgment on the second amended complaint.   Notice of entry of judgment was served on October 25, 1996.   Plaintiff filed a motion for relief from the judgment and the order denying leave to file an amended complaint on November 18, 1996.   After the motion was denied, plaintiff filed a timely appeal from the judgment dismissing the complaint.

III. DISCUSSION

A. Standard of Review

 An appellate court's “ ‘only task in ruling on a demurrer is to determine whether the complaint states a cause of action.’ ”   (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300, 58 Cal.Rptr.2d 855, 926 P.2d 1042;  Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125, 271 Cal.Rptr. 146, 793 P.2d 479;  Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 433 P.2d 732.)   The reviewing court assumes the truth of allegations in the complaint which have been properly pleaded and gives the complaint a reasonable interpretation by reading it as a whole and with all its parts in their context.  (People ex. rel. Lungren v. Superior Court, supra, 14 Cal.4th at p. 300, 58 Cal.Rptr.2d 855, 926 P.2d 1042;  Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, 9 Cal.Rptr.2d 92, 831 P.2d 317.)   However, the assumption of truth does not apply to contentions, deductions, or conclusions of law and fact.   (Moore v. Regents of University of California, supra, 51 Cal.3d at p. 125, 271 Cal.Rptr. 146, 793 P.2d 479;  Daar v. Yellow Cab Co., supra, 67 Cal.2d at p. 713, 63 Cal.Rptr. 724, 433 P.2d 732.)   The Supreme Court has noted:  “On appeal from a judgment of dismissal entered after a demurrer has been sustained without leave to amend, unless failure to grant leave to amend was an abuse of discretion, the appellate court must affirm the judgment if it is correct on any theory.  [Citations.]  If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend.  [Citation.]  The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended.  [Citation.]”  (Hendy v. Losse (1991) 54 Cal.3d 723, 742, 1 Cal.Rptr.2d 543, 819 P.2d 1;  accord, Blank v. Kirwan, supra, 39 Cal.3d at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

B. The Demurrers Were Properly Sustained Without Leave to Amend

Plaintiff contends the trial court erred in sustaining the demurrers to the second amended complaint without leave to amend because he sufficiently alleged all the elements of the seven causes of action including causation.   According to plaintiff, it was error to sustain the demurrers “simply because the [trial court] doubt[ed] whether causation can be proved.”   As will be noted, we conclude that it was proper to sustain the demurrer without leave to amend because plaintiff cannot identify what chemical was a substantial factor in causing his illness and he is not proceeding on an alternative liability (Summers v. Tice, supra, 33 Cal.2d at p. 86, 199 P.2d 1) or market share theory.  (Sindell v. Abbott Laboratories, supra, 26 Cal.3d at p. 597, 163 Cal.Rptr. 132, 607 P.2d 924.)   We determine he may not simply name defendants and then conduct discovery in an effort to identify the responsible tortfeasor in the future.

1. The Element of Causation

 Our colleague Associate Justice Patricia Bamattre-Manoukian of the Court of Appeal for the Sixth Appellate District has articulated the following black letter statement of California law concerning causation in the tort context as follows:  “It is axiomatic that a defendant cannot be held liable in tort for an injury he or she did not cause.”  (Brookhouser v. State of California (1992) 10 Cal.App.4th 1665, 1677, 13 Cal.Rptr.2d 658.)   Thus, under any tort theory, a plaintiff must allege that there is a logical connection between injuries and a defendant's conduct.  (Murphy v. E.R. Squibb & Sons, Inc. (1985) 40 Cal.3d 672, 682, 221 Cal.Rptr. 447, 710 P.2d 247;  Sindell v. Abbott Laboratories, supra, 26 Cal.3d at p. 597, 163 Cal.Rptr. 132, 607 P.2d 924;  Setliff v. E.I. Du Pont de Nemours & Co. (1995) 32 Cal.App.4th 1525, 1533, 38 Cal.Rptr.2d 763;  Prosser & Keeton, Torts (5th ed.   1984) § 41, p. 263.)   The connection is dealt with by the courts through the concept of “legal” causation which is an essential element for not only plaintiff's negligence and products liability claims but also for the remaining tort theories.  (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673, 25 Cal.Rptr.2d 137, 863 P.2d 207 [legal causation is essential element of negligence claim];  Sindell v. Abbott Laboratories, supra, 26 Cal.3d at p. 597, 163 Cal.Rptr. 132, 607 P.2d 924 [causation is necessary for both negligence and strict products liability action];  Setliff v. E.I. Du Pont de Nemours & Co., supra, 32 Cal.App.4th at p. 1533, 38 Cal.Rptr.2d 763 [causation is essential element in all tort theories including negligence and products liability cases];  Powell v. Standard Brands Paint Co. (1985) 166 Cal.App.3d 357, 363, 212 Cal.Rptr. 395 [causation is necessary for both negligence and strict products liability].)

 Although it has been said proximate or legal causation has “ ‘defied precise definition’ ” (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1050, 1 Cal.Rptr.2d 913, 819 P.2d 872;  Maupin v. Widling (1987) 192 Cal.App.3d 568, 573, 237 Cal.Rptr. 521;  accord, Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co. (1993) 5 Cal.4th 854, 871, 21 Cal.Rptr.2d 691, 855 P.2d 1263), it is well settled that it consists of facts which show the defendant's conduct was the cause in fact of the injury.   Once this showing is made, then it must be determined whether social policy requires that a defendant should be held legally responsible for the injury.  (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 252, 7 Cal.Rptr.2d 101;  Maupin v. Widling, supra, 192 Cal.App.3d at p. 574, 237 Cal.Rptr. 521;  Rest.2d Torts, § 431.)   There are two tests for determining whether a defendant's conduct was the cause in fact of plaintiff's injury.   The first test is whether the injury would not have occurred but for the defendant's conduct.  (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969, 67 Cal.Rptr.2d 16, 941 P.2d 1203;  Mitchell v. Gonzales, supra, 54 Cal.3d at pp. 1049, fn. 4, 1054, fn. 10, 1 Cal.Rptr.2d 913, 819 P.2d 872.)   The second test is whether the defendant's conduct was a substantial factor in bringing about the injury.  (Mitchell v. Gonzales, supra, 54 Cal.3d at p. 1052, 1 Cal.Rptr.2d 913, 819 P.2d 872;  Brookhouser v. State of California, supra, 10 Cal.App.4th at p. 1677, 13 Cal.Rptr.2d 658;  Maupin v. Widling, supra, 192 Cal.App.3d at p. 574, 237 Cal.Rptr. 521.)

Recently, in Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at pages 968-969, 67 Cal.Rptr.2d 16, 941 P.2d 1203, an instructional error case, the Supreme Court reiterated its holding in Mitchell v. Gonzales, supra, 54 Cal.3d at page 1044, footnote 2, 1 Cal.Rptr.2d 913, 819 P.2d 872, that California applies the substantial factor test to make cause-in-fact determinations.   The Supreme Court in Rutherford explained:  “California has definitively adopted the substantial factor test of the Restatement Second of Torts for cause-in-fact determinations.  [Citations.]  Under that standard, a cause in fact is something that is a substantial factor in bringing about the injury.  [Citations.]  The substantial factor standard generally produces the same results as does the ‘but for’ rule of causation which states that a defendant's conduct is a cause of the injury if the injury would not have occurred ‘but for’ that conduct.  [Citations.]  The substantial factor standard, however, has been embraced as a clearer rule of causation-one which subsumes the ‘but for’ test while reaching beyond it to satisfactorily address other situations, such as those involving independent and concurrent causes in fact.  [Citations.]  [¶] The term ‘substantial factor’ has not been judicially defined with specificity, and indeed it has been observed that it is ‘neither possible nor desirable to reduce it to any lower terms.’  [Citation.]  This court has suggested that a force which plays only an ‘infinitesimal’ or ‘theoretical’ part in bringing about injury, damage, or loss is not a substantial factor.  [Citation.]  Undue emphasis should not be placed on the term ‘substantial.’   For example, the substantial factor standard, formulated to aid plaintiffs as a broader rule of causality than the ‘but for’ test, has been invoked by defendants whose conduct is clearly a ‘but for’ cause of plaintiff's injury but is nevertheless urged as an insubstantial contribution to the injury.  [Citation.]  Misused in this way, the substantial factor test ‘undermines the principles of comparative negligence, under which a party is responsible for his or her share of negligence and the harm caused thereby.’  [Citation.]”  (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at pp. 968-969, 67 Cal.Rptr.2d 16, 941 P.2d 1203.)

2. Plaintiff Did Not and Cannot Allege Sufficient Facts Regarding Causation

 This case is very similar to Setliff v. E.I. Du Pont de Nemours & Co., supra, 32 Cal.App.4th at page 1533, 38 Cal.Rptr.2d 763 wherein the Court of Appeal affirmed the dismissal of an amended complaint brought by the former employee of a paint store who sued 40 named defendants which manufactured paints, solvents, strippers, and glue products.   The amended complaint alleged plaintiff was injured by the products and sought damages under traditional negligence and products liability theories.   Our colleagues in the Court of Appeal for the Third Appellate District held that as a general rule in a products liability action based on either of the two aforementioned causation theories, the but for or substantial factor tests, a plaintiff must establish the injury was caused by an act of or instrumentality under a defendant's control.  (Ibid.) Because the allegations of the amended complaint in Setliff established the plaintiff was unable to identify which product had separately or jointly injured him, our Third District colleagues held no valid cause of action was stated under traditional tort theories of liability.   (Ibid.)

 Likewise, in this case, the allegations of the second amended complaint and the judicially noticed material established plaintiff cannot identify which defendant or product caused or contributed to his injury.   In paragraph 68, plaintiff alleges he “was often unaware of the identity of the chemicals and chemical products ” he was either using or being exposed to during his course of employment from January 1973 to March 1994.  (Emphasis added.)   Furthermore, in accord with established authority, the trial court judicially noticed plaintiff's discovery admission that he was unable to identify which product had caused his injury.   Discovery responses, including interrogatory answers, may be judicially noticed.   It is well established that a complaint's allegations are to be disregarded when they are in conflict with judicially noticed discovery responses such as interrogatory answers.  (City of Chula Vista v. County of San Diego, supra, 23 Cal.App.4th at p. 1719, 29 Cal.Rptr.2d 89 [“Accordingly, judicially noticeable facts may supersede any inconsistent factual allegations contained in a complaint.  [Citation.]”];  Del E. Webb Corp. v. Structural Materials Co., supra, 123 Cal.App.3d at p. 604, 176 Cal.Rptr. 824 [“In this regard the court passing upon the question of the demurrer may look to affidavits filed on behalf of plaintiff, and the plaintiff's answers to interrogatories [citation]․”];  Dwan v. Dixon (1963) 216 Cal.App.2d 260, 265, 30 Cal.Rptr. 749 [“ ‘The theory is that the pleader should not be allowed to bypass a demurrer by suppressing facts which the court will judicially notice.   The principle is that of truthful pleading, and is applied for the same reason as in the similar situation of pleaded exhibits which contradict allegations.’ ”  (Italics omitted.) ];   see Weil & Brown, Cal. Practice Guide:  Civil Procedure Before Trial (Rutter 1997) § 7:47, rev. # 1 1995.)

These allegations and judicially noticed interrogatory answers establish plaintiff cannot identify the product or products he was exposed to and the circumstances of the exposure.   Plaintiff is unable to identify any significant factual relationship exists between his cancer and any of defendants' products and, a fortiori, their conduct.  (Sindell v. Abbott Laboratories, supra, 26 Cal.3d at p. 602, 163 Cal.Rptr. 132, 607 P.2d 924;  Setliff v. E.I. Du Pont de Nemours & Co., supra, 32 Cal.App.4th at pp. 1535-1536, 38 Cal.Rptr.2d 763.)   Hence, plaintiff's second amended complaint must be held to be insufficient as a matter of law under traditional causation principles articulated on Mitchell v. Gonzales, supra, 54 Cal.3d at page 1052, 1 Cal.Rptr.2d 913, 819 P.2d 872 and amplified in Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at pages 968-969, 67 Cal.Rptr.2d 16, 941 P.2d 1203.   Simply stated, his own pleadings and judicially noticed discovery admissions establish that he is unable to identify the product, if any, which caused his injury during a course of 21 years of employment.   As a result, plaintiff cannot nor will he be able to prove the essential element of causation under any “ ‘traditional’ tort theory.”   (Setliff v. E.I. Du Pont de Nemours & Co., supra, 32 Cal.App.4th at pp. 1533-1534, 38 Cal.Rptr.2d 763.)

3. There Is No Basis to Shift the Burden of Proving Causation

 The question then is whether plaintiff has correctly asserted that he nevertheless should be allowed to proceed against 55 defendants who are alleged to have manufactured approximately 222 different products without knowledge of either the identity of the product which injured him or the defendant which manufactured it.   As noted above, the Supreme Court has held:  “Generally, the burden falls on the plaintiff to establish causation.  [Citation.]  ․ In the context of products liability actions, the plaintiff must prove that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.  [Citations.]”  (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 968, 67 Cal.Rptr.2d 16, 941 P.2d 1203;  Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 127, 104 Cal.Rptr. 433, 501 P.2d 1153.)   In order to prevail, therefore, plaintiff must allege that his injuries were caused by an instrumentality in a defendant's control, i.e. that there is a logical connection between plaintiff's injury and a defendant's conduct.  (Murphy v. E.R. Squibb & Sons, Inc., supra, 40 Cal.3d at p. 682, 221 Cal.Rptr. 447, 710 P.2d 247;  Sindell v. Abbott Laboratories, supra, 26 Cal.3d at p. 597, 163 Cal.Rptr. 132, 607 P.2d 924;  Setliff v. E.I. Du Pont de Nemours & Co., supra, 32 Cal.App.4th at p. 1534, 38 Cal.Rptr.2d 763.)   However, there are exceptions to this rule requiring plaintiff to identify the defendant whose instrumentality caused his injury.  (Murphy v. E.R. Squibb & Sons, Inc., supra, 40 Cal.3d at p. 682, 221 Cal.Rptr. 447, 710 P.2d 247;  Sindell v. Abbott Laboratories, supra, 26 Cal.3d at p. 598, 163 Cal.Rptr. 132, 607 P.2d 924.)   Those exceptions are the theories of “alternative liability” which was applied in Summers v. Tice, supra, 33 Cal.2d at page 86, 199 P.2d 1, and “market share liability” which was applied in Sindell v. Abbott Laboratories, supra, 26 Cal.3d at page 598, 163 Cal.Rptr. 132, 607 P.2d 924.

 Before proceeding further, we note that plaintiff indicates in his opening brief that he is not attempting to assert a claim under Summers or Sindell.   Further, in his second amended complaint he alleged he was not proceeding under the theories articulated in Summers or Sindell.   However, because plaintiff is implicitly advocating adaptation of Summers, we summarize the respective theories of liability.   In Summers, the plaintiff was unable to identify which of two hunters was responsible for injuring his eye.   The two hunters had each shot a gun in the plaintiff's direction.   The Supreme Court determined the inability to identify the responsible defendant was not a bar to an action for damages because both defendants were wrongdoers and acted negligently towards the plaintiff.   The Supreme Court held it would be unfair to require the plaintiff to identify the responsible party.   This was because both could escape liability if the plaintiff were forced to choose which was liable and was unable to do so.   As a result, rather than placing the burden of the plaintiff to identify the defendant who had injured him, the burden was shifted to the defendants to exonerate themselves.  (Summers v. Tice, supra, 33 Cal.2d at p. 86, 199 P.2d 1.)   Under this theory, therefore, it is appropriate to shift the burden to defendants when:  (1) plaintiff has sued all the defendants who may have caused her injury;  (2) defendants all acted tortiously;  and (3) one of the defendants actually caused the injury.  (Ibid.;  Sindell v. Abbott Laboratories, supra, 26 Cal.3d at pp. 600-603, 163 Cal.Rptr. 132, 607 P.2d 924.)

In Sindell, the plaintiff alleged injury from the drug diethylstilbestrol (DES) which her mother took during pregnancy.   The complaint, which named only 11 of approximately 200 manufacturers of DES, also alleged that she was unable to identify the particular manufacturer of the DES her mother took.  Sindell expressly rejected the alternative liability theory under those circumstances because there was no rational basis to infer that any one of the named defendants was actually responsible for harming the plaintiff nor was there even a “reasonable possibility that they were responsible.”  (Sindell v. Abbott Laboratories, supra, 26 Cal.3d at pp. 602-603, 163 Cal.Rptr. 132, 607 P.2d 924.)   The Supreme Court in Sindell explained:  “There is an important difference between the situation involved in Summers and the present case.   There, all the parties who were or could have been responsible for the harm to the plaintiff were joined as defendants.   Here, by contrast, there are approximately 200 drug companies which made DES, any of which might have manufactured the injury-producing drug.”  (Id. at p. 602, 163 Cal.Rptr. 132, 607 P.2d 924, fn. omitted.)   There is no rational basis under such circumstances because the chance that any one of the defendants supplied the injury-causing drug decreases by the number of potential tortfeasors.  (Id. at p. 603, 163 Cal.Rptr. 132, 607 P.2d 924.)   The Supreme Court held:  “In such a context, the possibility that any of the [named] defendants supplied the DES to plaintiff's mother is so remote that it would be unfair to require each defendant to exonerate itself.   There may be a substantial likelihood that none of the [named] defendants joined in the action made the DES which caused the injury, and that the offending producer not named would escape liability altogether.”  (Ibid.)

 Sindell then concluded that Summers should be limited to apply to cases where a consumer has been injured by a specific product and is unable to identify its particular manufacturer.   Under those circumstances, liability would be imposed on the manufacturers in proportion to the individual defendant's “market share” rather than on the basis of joint and several liability as in Summers.  (Sindell v. Abbott Laboratories, supra, 26 Cal.3d at pp. 611-612, 163 Cal.Rptr. 132, 607 P.2d 924.)   The Court of Appeal has described the Sindell rule as follows, “Under the market share theory of liability, a plaintiff harmed by a fungible product that cannot be traced to a specific producer may sue various makers of the product if the plaintiff joins a substantial share of those makers as defendants.”  (Richie v. Bridgestone/Firestone, Inc. (1994) 22 Cal.App.4th 335, 338, 27 Cal.Rptr.2d 418.)   Thus, under Sindell a plaintiff who identifies a fungible product which has caused injury may sue various makers of the product by joining a substantial share of them without identifying the specific manufacturer.   (Sindell v. Abbott Laboratories, supra, 26 Cal.3d at pp. 611-612, 163 Cal.Rptr. 132, 607 P.2d 924.)

Plaintiff concedes that neither Summers nor Sindell is applicable to this case.   Plaintiff further asserts his intent to prove that “all the defendants” were a “substantial factor” in causing his injury distinguishes this case from Setliff.   It is argued the plaintiff in Setliff made no such allegation but attempted to rely on Summers and Sindell to shift the burden of proof on causation.   He argues that he is not attempting to shift the burden of proof on the causation but is alleging and should be allowed to prove the following, “[H]e was exposed to each and every chemical product that is at issue in this action, and that said exposure to each and every said chemical product was a substantial factor in causing [his] cancer.”   Thus, it is argued the second amended complaint is sufficient to withstand a general demurrer because he has identified 55 manufacturers and suppliers of 222 products and alleged the “ultimate fact” that he was exposed to the products which caused and or contributed to his cancer.   We disagree for the following reasons.

First, despite plaintiff's protestations to the contrary, his pleadings and arguments show that he is indeed, albeit surreptitiously, attempting to shift the burden of proving the issue of causation onto the 55 named defendants who have collectively manufactured or supplied 222 products.   By allowing plaintiff to proceed under such circumstances, this court would be required to expand the doctrine of alternative liability to permit him to proceed against defendants he admittedly cannot identify as causing his injury but also with products that he cannot connect to his cancer.   Some support for the modification of the alternative liability theory of Summers v. Tice, supra, 33 Cal.2d at page 86, 199 P.2d 1 is set forth in section 433B of the Restatement Second of Torts:  “(1) Except as stated in Subsections (2) and (3), the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff.  [¶] (2) Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.  [¶] (3) Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.”   Comment h provides:  “The cases thus far decided in which the rule stated in Subsection (3) has been applied all have been cases in which all of the actors involved have been joined as defendants.   All of these cases have involved conduct simultaneous in time, or substantially so, and all of them have involved conduct of substantially the same character, creating substantially the same risk of harm, on the part of each actor.   It is possible that cases may arise in which some modification of the rule stated may be necessary because of complications arising from the fact that one of the actors involved is not or cannot be joined as a defendant, or because of the effect of lapse of time, or because of substantial differences in the character of the conduct of the actors or the risks which they have created.   Since such cases have not arisen, and the situations which might arise are difficult to forecast, no attempt is made to deal with such problems in this Section.   The rule stated in Subsection (3) is not intended to preclude possible modification if such situations call for it.”  (Rest.2d Torts, § 433B, com. h, p. 446.)

As expressed in the Restatement Second of Torts, the theory of alternative liability assumes that it is applicable only where two or more defendants have been identified as tortfeasors and the conduct of only one caused the harm;  and the plaintiff cannot identify the product that was the legal cause of his injury.  (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at pp. 971-972, 67 Cal.Rptr.2d 16, 941 P.2d 1203;  Sindell v. Abbott Laboratories, supra, 26 Cal.3d at pp. 600-603, 163 Cal.Rptr. 132, 607 P.2d 924.)   However, the situation in this case does not “call for” a modification of the alternative liability theory because, not only can plaintiff not identify a tortfeasor, his second amended complaint and judicially noticed discovery admissions show he cannot identify the instrumentality of harm.   (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at pp. 971-972, 67 Cal.Rptr.2d 16, 941 P.2d 1203;  Setliff v. E.I. Du Pont de Nemours & Co., supra, 32 Cal.App.4th at pp. 1535-1536, 38 Cal.Rptr.2d 763.)   Plaintiff must allege a causal connection between his injury and a tortfeasor's conduct or product.  (Murphy v. E.R. Squibb & Sons, Inc., supra, 40 Cal.3d at p. 682, 221 Cal.Rptr. 447, 710 P.2d 247;  Sindell v. Abbott Laboratories, supra, 26 Cal.3d at p. 597, 163 Cal.Rptr. 132, 607 P.2d 924;  Setliff v. E.I. Du Pont de Nemours & Co., supra, 32 Cal.App.4th at pp. 1533-1534, 38 Cal.Rptr.2d 763.)   His failure to do so after three attempts despite explicit instructions from the trial court as well as his judicially noticed discovery admissions is fatal to the second amended complaint.  (Setliff v. E.I. Du Pont de Nemours & Co., supra, 32 Cal.App.4th at pp. 1535-1536, 38 Cal.Rptr.2d 763.)

 Second, plaintiff erroneously assumes that under liberal pleading standards the trial court cannot assess the issue of legal causation on a demurrer even if the allegations establish as a matter of law his inability to state a cause of action.  (See Setliff v. E.I. Du Pont de Nemours & Co., supra, 32 Cal.App.4th at pp. 1531-1534, 38 Cal.Rptr.2d 763 [absence of causation determined on demurrer by allegations of the complaint showing plaintiff's inability to identify product causing injury or identity of manufacturer].)   Generally causation is a question of fact for the jury.   However, it may be determined as a matter of law when reasonable persons could not dispute the absence of causation.  (Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 289, 54 Cal.Rptr.2d 655;  Thai v. Stang (1989) 214 Cal.App.3d 1264, 1273-1274, 263 Cal.Rptr. 202;  Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207, 223 Cal.Rptr. 645.)

In this case, plaintiff is asserting that he should be allowed to make the ultimate factual allegation that 222 products which he may have been exposed to over a 21-year period caused his cancer.   The record shows, however, plaintiff cannot in good faith assert that all the products injured him (Klein v. Council of Chemical Associations (E.D.Pa.1984) 587 F.Supp. 213, 221), because he alleged he “was often unaware of the identity of the chemicals and chemical products ” and admitted in judicially noticed discovery admissions he was unable to identify which manufacturer or product has caused his injury.  (Emphasis added.)   Plaintiff's concession that he is unable to identify the instrumentality of his injury and the circumstances of his exposure leads to the inescapable conclusion that he cannot establish the essential element of legal causation.

Thus, the issue here is whether the trial court properly determined, as a matter of law, plaintiff was not entitled to rely on his “ultimate fact” allegation that 222 products were a substantial factor in injuring him with no specific facts to establish a connection between the injury and the products given the allegations in the second amended complaint and the judicially noticed discovery admission.   In Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at pages 968-969, 67 Cal.Rptr.2d 16, 941 P.2d 1203, the California Supreme Court explained:  “In the context of products liability actions, the plaintiff must prove that the defective products supplied by the defendant were a substantial factor in bringing about his or her injury.  [Citations.]  ․ [¶] The term ‘substantial factor’ has not been judicially defined with specificity, and indeed it has been observed that it is ‘neither possible nor desirable to reduce it to any lower terms.’  [Citation.]  This court has suggested that a force which plays only an ‘infinitesimal’ or ‘theoretical’ part in bringing about injury, damage, or loss is not a substantial factor.   [Citation.]  Undue emphasis should not be placed on the term ‘substantial.’   For example, the substantial factor standard, formulated to aid plaintiffs as a broader rule of causality than the ‘but for’ test, has been invoked by defendants whose conduct is clearly a ‘but for’ cause of plaintiff's injury but is nevertheless urged as an insubstantial contribution to the injury.  [Citation.]  Misused in this way, the substantial factor test ‘undermines the principles of comparative negligence, under which a party is responsible for his or her share of negligence and the harm caused thereby.’   [Citation.]”  (Ibid.;  People v. Caldwell (1984) 36 Cal.3d 210, 220, 203 Cal.Rptr. 433, 681 P.2d 274.)

Application of this standard shows that plaintiff has erroneously concluded that under liberal standards of pleading, he is simply entitled to plead the “ultimate fact” that during a 21-year period 222 different products were a “substantial factor” in causing his cancer even though he cannot identify who or what caused his injury.   In discussing the concept of “substantial factor”, in an asbestos exposure case, the Supreme Court stated:  “[A]t the level of abstraction somewhere between the historical question of exposure and the unknown biology of carcinogenesis, the question arises whether the risk of cancer created by a plaintiff's exposure to a particular asbestos-containing product was significant enough to be considered a legal cause of the disease.   Taking into account the length, frequency, proximity and intensity of exposure, the peculiar properties of the individual product, any other potential causes to which the disease could be attributed (e.g., other asbestos products, cigarette smoking), and perhaps other factors affecting the assessment of comparative risk, should inhalation of fibers from the particular product be deemed a ‘substantial factor’ in causing the cancer?   [Citations.]”  (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 975, 67 Cal.Rptr.2d 16, 941 P.2d 1203.)   The Supreme Court later concluded, “The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical.”  (Id. at p. 978, 67 Cal.Rptr.2d 16, 941 P.2d 1203.)   In Sindell v. Abbott Laboratories, supra, 26 Cal.3d at pages 602-603, 163 Cal.Rptr. 132, 607 P.2d 924, the Supreme Court noted the probability that any one defendant is responsible for plaintiff's injuries decreases as the number of possible tortfeasors increases.   At some point, the probability “is so remote that it would be unfair to require each defendant to exonerate itself.”  (Id. at p. 603, 163 Cal.Rptr. 132, 607 P.2d 924.)

In this case, there are 55 possible tortfeasors among the manufacturers and suppliers who allegedly supplied 222 different products over a 21-year period.   Moreover, plaintiff has admitted in his judicially noticed discovery admissions, he cannot identify which product caused his illness.   Although there are also no facts to establish that any of the defendants acted tortiously towards plaintiff, under his analysis they should all be treated as tortfeasors simply on plaintiff's vague and conclusory allegations:  he has cancer;  he worked for 21 years at Hughes;  and the manufacturers supplied products which are toxic.   In addition, plaintiff has failed to allege any facts that show he was exposed to any product, much less 222 products, which were manufactured or supplied by 55 possible tortfeasors over a 21-year period and include such common products such as rubber cement, solvents, thinners, and WD-40. When coupled with his judicially noticed discovery admission, there is simply nothing in the allegations of the second amended complaint to show any of the defendants were wrongdoers and that any one or a combination of them caused plaintiff's cancer.

Thus, the allegations of the second amended complaint and the judicially noticed discovery admission do nothing more than show a “theoretical” claim that defendants contributed to plaintiff's cancer.  (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 978, 67 Cal.Rptr.2d 16, 941 P.2d 1203.)   It would be unfair under those circumstances to require 55 manufacturers of 222 different products to answer the second amended complaint on the remote possibility that any one or more of the defendants caused plaintiff's injury.  (Sindell v. Abbott Laboratories, supra, 26 Cal.3d at p. 603, 163 Cal.Rptr. 132, 607 P.2d 924;  Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1418-1419, 37 Cal.Rptr.2d 902.)   Both the remoteness of possibility of causation and common sense compel the conclusion that plaintiff cannot establish legal cause because he is unable to allege any significant factual relationship exists between his cancer and any 1, much less 222, of the products manufactured or supplied by 55 defendants over a 21-year period.  (Sindell v. Abbott Laboratories, supra, 26 Cal.3d at p. 602, 163 Cal.Rptr. 132, 607 P.2d 924;  Setliff v. E.I. Du Pont de Nemours & Co., supra, 32 Cal.App.4th at pp. 1535-1536, 38 Cal.Rptr.2d 763.)

 Finally, we briefly address plaintiff's argument that we cannot affirm the demurrer dismissal in this case because of the holding of Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 204-223, 197 Cal.Rptr. 783, 673 P.2d 660.   Plaintiff argues that defendants are attempting to litigate evidentiary matters which are reserved for a trial or summary judgment motion.   He relies on the following language from Committee on Children's Television, Inc. v. General Foods Corp., supra, 35 Cal.3d at pages 211-212, 197 Cal.Rptr. 783, 673 P.2d 660:  “The complaint in a civil action serves a variety of purposes (see 3 Witkin, Cal. Procedure (2d ed.1971) p. 1690), of which two are relevant here:  it serves to frame and limit the issues (see Fuentes v. Tucker (1947) 31 Cal.2d 1, 4, 187 P.2d 752 [ ] ) and to apprise the defendant of the basis upon which the plaintiff is seeking recovery (see Leet v. Union Pac. R.R. Co. (1944) 25 Cal.2d 605, 618-619, 155 P.2d 42[ ];  Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6, 172 Cal.Rptr. 427[ ] ).  In fulfilling this function, the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts.  (See Green v. Palmer (1860) 15 Cal. 411, 415.)”  (Fn.omitted.)  While some of defendants' arguments in the present case ring of a demand that the second amended complaint consist of the evidentiary showing reserved for a trial, Committee on Children's Television, Inc. does not warrant us in reversing the demurrer dismissal at bench.   The present case is completely unlike Committee on Children's Television, Inc. In Committee on Children's Television, Inc., where the issues involved the sufficiency of allegations concerning fraudulent advertising conduct by three corporations and their officers and directors.   (Id. at p. 204, 197 Cal.Rptr. 783, 673 P.2d 660.)   In Committee on Children's Television, Inc., there were:  no causation issues;  no judicially noticed discovery admissions;  not allegations of 222 potential causative agents utilized over a 21-year period;  and not 55 named defendants.   There was no judicially noticed admission that the plaintiffs were unable to identify who was at fault.   The factual aspects of Committee on Children's Television, Inc. are entirely different from those in the present case and it is not authority for the proposition that the demurrer dismissal must be reversed.

4. The Trial Court Properly Refused to Allow Another Amendment**

IV. DISPOSITION

The judgment is affirmed.   Defendants are to recover their costs on appeals from plaintiff, Thomas A. Bockrath.

I concur in the majority's result, but only part of its reasoning.   Under Setliff v. E.I. Du Pont de Nemours & Co. (1995) 32 Cal.App.4th 1525, 38 Cal.Rptr.2d 763 (hereafter Setliff ), a plaintiff in a products liability action must allege the identity of both the products which caused his injuries and the manufacturer of those products.  (Id. at pp. 1533-1534, 38 Cal.Rptr.2d 763.)   In Setliff, the plaintiff's allegation that he could not identify which of the products, either jointly or separately, caused his injuries, was fatal to his products liability claim.  (Ibid.)

Appellant's second amended complaint here suffers from a similar defect.   At paragraph 68, in describing his exposure to certain chemicals by inhalation, appellant states that he “is informed and believes and thereon alleges that he personally used most, and perhaps all” of the various respondents' chemicals.   He also alleges at paragraph 73 that his coworkers used “most and perhaps all” of those chemicals.   These allegations raise the possibility that appellant has named defendants without knowing whether he was exposed to their products and that he therefore does not know to which products he was exposed.   Under Setliff, if appellant cannot identify which chemicals he was exposed to and which defendant manufactured those chemicals, he has failed to plead that any of the named defendants caused his injuries.

Had appellant ever stated that he could plead the identities of specific defendants whose products he knew he came in contact with, then leave to amend would have been proper.   He has never done so, either below or on appeal, and the denial of leave to amend was proper.

I disagree, however, with the majority's decision to judicially notice some of appellant's interrogatory responses.   Judicial notice may not be taken of matters subject to factual dispute (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569, fn. 9, 8 Cal.Rptr.2d 552) or which are ambiguous.  (Warfield v. Peninsula Golf & Country Club (1989) 214 Cal.App.3d 646, 653, fn. 4, 262 Cal.Rptr. 890.) I believe appellant's discovery responses fall into these categories.   For instance, appellant answered special interrogatory No. 10 from respondent Sanford Corporation by stating in part that he “has no personal knowledge regarding how this or any defendants' products caused his multiple myeloma.”

Viewed in isolation, this response could be read as an admission that appellant does not know how or whether he was harmed by any of respondents' products.   Placed in context, its meaning becomes less clear.   Before answering interrogatory No. 10, appellant was asked by interrogatory No. 8 to identify every ingredient of each Sanford Corporation product which he contended contributed to his medical condition.   Appellant replied by identifying rubber cement, which contained hexane.   Interrogatory No. 9 asked appellant to identify each contaminant in each Sanford Corporation product which appellant contended contributed to his medical condition.   Appellant identified benzene in response.   Interrogatory No. 10 asked appellant to “describe the MECHANISM (meaning the physical or chemical process through which a certain effect is obtained) by which” his medical condition was caused by exposure to Sanford Corporation products.   It was in response to this interrogatory that appellant stated he had “no personal knowledge how this or any defendants' product caused his multiple myeloma.”   He went on to state that the only responsive information he had came from scientific and medical research done on his behalf, which was protected as attorney work product.   Even so, appellant launched into a lengthy explanation of how the chemicals moved through his system upon being inhaled, proceeding through his bloodstream, liver and spleen, where they were eventually metabolized as toxins which migrated to his bone marrow, “thereby initiating and/or promoting the development of [his] multiple myeloma.”

Appellant's interrogatory responses therefore contended that exposure to benzene in Sanford's rubber cement was a cause of his myeloma.   Read in this context, and considering that expert medical and scientific evidence would be required to prove appellant's case, his lack of personal knowledge regarding the precise mechanism by which this occurred should not be viewed as an admission that he cannot identify which specific products caused his injuries.

Because I believe that the order sustaining the demurrer without leave to amend was proper based on the defects within appellant's complaint, as set forth above, and because of the ambiguities in appellant's discovery responses, I would not take judicial notice of those responses.

FOOTNOTES

1.   Plaintiff named in the complaint or by doe amendment the following defendants:  Ablestik Laboratories;  Al-Lu Products;  Aldrich Chemical Company, Inc.;   Allied Products Corp.;   American Cyanamid Co.;   Blue Tee Corp.;   Chemical Technology Laboratories, Inc.;   Chem-Trend, Inc.;   Chemtronics Inc.;   Ciba-Geigy Corp.;   Columbia Aluminum Products, Inc.;   Crest Products Corp.;   Cytec Industries, Inc.;   Dexter Corp.;   Dow Corning Corp.;   Duplicolor Products Co.;   Eli Lilly and Co.;   Ferro Corp.;   Fisher Scientific Co.;   Fisher Scientific International, Inc.;   Gallade Chemical, Inc.;   General Electric Co.;   H.B. Fuller Co.;   Hercules, Inc.;   Hysan Corp.;   ICI Composites, Inc.;   IIT Research Institute;  Indal Aluminum Products;  Insulating Materials, Inc.;   Illinois Tool Works, Inc.;   J.T. Baker, Inc.;   Lilly Industries, Inc.;   Loctite Corp.;   Mallinckrodt Chemical Co.;   Mallinckrodt Chemical, Inc.;   Miller-Stephenson Chemical Co., Inc.;   Minnesota Mining and Manufacturing Co.;   Monomer-Polymer & Dajac Laboratories, Inc.;   MTM Research Chemicals, Inc.;   PCZ, Inc.;   Polysciences, Inc.;   Radiator Specialty Co.;   Roly International;  Sanford Corp.;   Shell Oil Co.;   Sigma-Aldrich Corp.;   Smooth-On, Inc.;   Spectrum Chemical Manufacturing Corp.;   Steco Corp.;   Structural Polymer Systems, Inc.;   Tapmatic Corp.;   Texwipe Corp.;   Turco Products, Inc.;   Union Rubber, Inc.;   WD-40 Company;  Whittaker Corp.;   W.R. Grace & Co.;   and W.R. Grace & Co. -Conn.

2.   We do not address the correctness of all aspects of the trial court's analysis made at the time of the hearing on the demurrer to the first amended complaint was sustained.

3.   At least 50 defendants either filed demurrers to the second amended complaint or joined in those of the other parties.   There is nothing in the record to show whether defendants, Hysan Corporation, Indal Aluminum Products, PCZ, Inc. or Al-Lu Products, demurred to the second amended complaint or joined in the demurrers.   There are also no briefs on appeal by any of these defendants.   Although Minnesota Mining and Manufacturing filed a demurrer to the complaint, it has not filed a respondent's brief on appeal.

FOOTNOTE.   See footnote *, ante.

TURNER, Presiding Justice.

ARMSTRONG, J., concurs.