TIMOTHY ROGERS v. AIRGAS USA LLC (2026)

ORDER GRANTING MOTION TO DISMISS

This case arises from a “catastrophic loss of a multi-million [dollar] investment into a state-of-the-art cannabis cultivation business.” Compl. ¶ 1, ECF No. 1-2. The loss occurred when a “14-ton CO2 tank dislodged from the platform on which it was installed, and fell into/onto the [cannabis] facility destroying mechanical equipment, the facility's CO2 delivery system and other systems.” Id. ¶ 4. Plaintiffs, owners of the cannabis business, claim that Defendant Airgas USA, LLC is responsible for their loss because it designed and installed the tank. Id. ¶¶ 3, 11-12. Plaintiffs assert six causes of action for breach of express and implied warranty, breach of contract, negligence, gross negligence, and negligent interference with prospective economic advantage. Id. ¶¶ 18-57. Airgas moves to dismiss all causes of action, except for negligence, for failure to state a claim. Mot. to Dismiss, ECF No. 41. Having reviewed the papers and relevant authority, the Court finds this matter suitable for disposition without oral argument. Civil L.R. 7-1(b). For the following reasons, the motion is GRANTED.¹

First, Plaintiffs' breach of express warranty claim requires that “(1) the seller made an affirmation of fact or promise or provided a description of its goods; (2) the promise or description formed part of the basis of the bargain; (3) the express warranty was breached; and (4) the breach caused injury to the plaintiff.” Nacarino v. KSF Acquisition Corp., 642 F. Supp. 3d 1074, 1085-86 (N.D. Cal. 2022) (citation modified). Plaintiffs assert a variety of purported warranties, but they fail to plausibly allege that any one of them was breached. For example, Plaintiffs allege that the tank would “be maintained by Airgas's local Field Service,” Compl. ¶ 21, but they do not allege that Airgas failed to maintain the tank. Plaintiffs also allege that “Airgas set forth written specifications for the installation of” the tank, id. ¶ 23, but again they do not allege that Airgas failed to meet the specifications. Finally, Plaintiffs allege that Airgas “warranted that material and workmanship shall conform with applicable building codes,” but they do not allege how Airgas supposedly deviated from the “applicable building codes.” Id. ¶¶ 24-25. This claim is dismissed.

Second, Plaintiffs' breach of implied warranty claim requires that the tank was not “fit for the ordinary purposes for which” it is used. Cal. Com. Code § 2314. Plaintiffs fail to plausibly allege this element.² The complaint offers a barebones assertion that Airgas failed “to design and properly install the bulk CO2 tank system in a professional and workmanlike manner” without identifying any manner in which the tank was unfit. Compl. ¶ 31. In their opposition, Plaintiffs essentially argue that the mere fact that the tank toppled over implies unfitness. Opp. at 14-15. But “[t]he doctrine of res ipsa loquitur relates to cases involving negligence and has no[ ] application to an alleged breach of warranty.” Trust v. Arden Farms Co., 50 Cal. 2d 217, 223 (1958). This claim is dismissed.

Third, Plaintiffs' breach of contract claim requires “(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” Oasis W. Realty LLC v. Goldman, 51 Cal. 4th 811, 821 (2011). Here, Plaintiffs fail to plausibly allege a breach. Plaintiffs assert broadly that Airgas failed “to properly install and maintain the CO2 tank in a professional and workmanlike manner in accordance with the contract documents and prevailing industry practice” without identifying a contractual term that was breached. Compl. ¶ 37. This claim is dismissed.

Fourth, the parties seem to agree that “gross negligence” is not a separate cause of action, but rather a “degree” of negligence. Mot. at 8-9; Opp. at 17. Gross negligence requires “the want of even scant care or an extreme departure from the ordinary standard of conduct.” Eastburn v. Reg'l Prot. Auth., 31 Cal. 4th 1175, 1185-86 (2003) (citation modified). In this regard, the complaint offers only labels and conclusions, asserting that Airgas's conduct “lacked any standard of care and represented an extreme departure from what a reasonably careful entity would do in the same situation.” Compl. ¶ 48. To the extent Plaintiffs wish to allege gross negligence as a theory of negligence, more is required.

Fifth, Plaintiffs' negligent interference with prospective economic advantage claim requires, among other elements, that “(1) an economic relationship existed between the plaintiff and a third party which contained a reasonably probable future economic benefit or advantage to plaintiff,” and that “(2) the defendant knew of the existence of the relationship and was aware or should have been aware that if it did not act with due care its actions would interfere with this relationship.” Damabeh v. 7-Eleven, Inc., No. 12-CV-1739-LHK, 2013 WL 1915867, at *8 (N.D. Cal. May 8, 2013). Plaintiffs fail to plausibly allege either element. First, Plaintiffs allege generically that “the facts alleged [in the complaint] created a relationship containing a probable future economic benefit.” Compl. ¶ 51. This is plainly insufficient. In their opposition, Plaintiffs ask the Court to infer the required economic relationship from the mere fact that they operated a “large-scale cannabis cultivation facility.” Opp. at 20, ECF No. 42. But courts consistently reject generic assertions of “lost opportunity,” and instead require an “existing relationship with an identifiable” third party. Westside Ctr. Assocs. v. Safeway Stores 23, Inc., 42 Cal. App. 4th 507, 523, 527 (1996). Second, because Plaintiffs fail to plausibly allege the requisite economic relationship, they necessarily fail to allege that Airgas knew of the relationship. This claim is dismissed.

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Because this is the Court's first ruling on the legal sufficiency of Plaintiffs' allegations, dismissal is with leave to amend. However, the Court may dismiss Plaintiffs' claims with prejudice if the amended complaint fails to plausibly state a claim. See Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (holding that failure to correct pleading deficiencies after dismissal is a “strong indication” that further amendment would be futile); see also Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (“A district court's discretion to deny leave to amend is ‘particularly broad’ where the plaintiff has previously amended.” (quoting Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996))).

Plaintiffs may file an amended complaint within fourteen days of this Order, which shall be accompanied by a redline comparing it to the original complaint. Assuming that Plaintiffs amend the complaint, Airgas is reminded that it must meet and confer with Plaintiffs at least seven days before filing any motion to dismiss. See Civil Standing Order § 8(A).

The parties shall file an updated joint case management statement within fourteen days of this Order, which shall include a full proposed case schedule consistent with the Court's Civil Standing Order.

IT IS SO ORDERED.

FOOTNOTES

1.   This Order assumes the reader is familiar with the facts, applicable legal standard, and arguments made by the parties.

2.   By contrast, the Court finds that Plaintiffs plausibly allege privity as required for an implied warranty claim based on an assignment of claims. Compl. ¶ 13.

Eumi K. Lee United States District Judge