California Judge: Premises Defendants Properly Joined
April 23, 2004
LexisNexis, Division of Reed Elsevier Inc

SAN FRANCISCO - Premises liability defendants in a California welding rod personal injury and loss of consortium suit were not fraudulently joined, a federal judge concluded April 21. She returned the suit to the Alameda County Superior Court (Edmund Janke, et uxor v. BOC Financial Corp., No. 04-0491, N.D. Calif.).

"The allegations of the complaint that the welding defendants failed to warn of the dangers of using their manganese-containing welding products, and that the premises defendants nonetheless knew of those dangers, are not inconsistent, as the complaint itself alleges other means by which the premises defendants might have learned of the dangers of welding defendants' products," said U.S. Judge Maxine M. Chesney of the Northern District of California.

Judge Chesney reasoned Edmund Janke had met the burden to state a premises liability cause of action against Chevron USA Inc., Southern California Gas Co. and the Regents of the University of California based on a hidden condition of the defendants' premises.

Merrill v. Buck (58 Cal.2d 552 [1962]) instructs that "a plaintiff must allege that the condition created an unreasonable risk of harm and that the owner/lessee/occupier of the property knew or should have known about it and failed to take reasonable precautions to protect against the risk of harm," Judge Chesney said.

Judge Chesney set the stage for considering the remand motion with an April 13 order denying a stay pending consideration by the Judicial Panel for Multidistrict Litigation of a motion to transfer Janke's suit into MDL 1535 in the U.S. District Court for the Northern District of Ohio.

"Although the court agrees it would be appropriate to stay any proceedings on the merit of the claim pending the JPML's decision on the question of transfer, a procedural issue has arisen which the court deems appropriate for prompt decision," she said.

"Even if similar remand motions are currently pending before the MDL court, as defendants attest on information and belief, this court sees no reason to delay a decision as to whether the action has been properly removed to federal court, particularly where, to date, the JPML has not issued even a conditional transfer order."

Judge Chesney was not persuaded by the removing defendants' argument that the premises defendants were fraudulently joined.

"[T]he Jankes allege that the welding defendants represented to members of the general public, including the purchasers and users of the welding defendants' products, that the manganese-containing welding products were safe for their intended use, at the same time that the welding defendants knew that those products were not safe because their use can cause progressive, disabling neurologic damage," Judge Chesney said.

"The alleged fact that the welding defendants misrepresented the safety of their products is not inconsistent with the allegation that the premises defendants knew that the products were unsafe," she said. "The premises defendants may have learned of the alleged dangers from another source, for example, despite the welding defendants misrepresentations."

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