Filed 8/28/23 Jimenez v. Mrs. Gooch’s Natural Food Markets CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has 

not been certified for publication or ordered published for purposes of rule 8.1115(a). 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

MARTHA EVE JIMENEZ et al.,

Plaintiffs and Appellants,

v.

MRS. GOOCH’S NATURAL 

FOOD MARKETS, INC.

Defendant and Respondent.

B322732

Los Angeles County

Super. Ct. No.

20STCV45863

APPEAL from a judgment of the Superior Court of Los

Angeles County, Mark A. Young, Judge. Affirmed.

Law Office of David M. Feldman and David M. Feldman for 

Plaintiffs and Appellants.

Brockman Quayle Bennett, Matthew E. Bennett, and 

Rachel B. Kushner for Defendant and Respondent.

_______________________________________
2

INTRODUCTION

This case arises out of a tragic accident in which Timoteo 

Alejandro Martinez Ildefonso (the decedent) was hit by a pickup 

truck in a crosswalk at a major intersection. After the accident, 

the decedent, who was on a 15-minute work break, walked back 

to the Whole Foods market (the store) where he worked. There, 

store employees gave him an ice pack, a form to fill out relating to 

his injury, and a ride home. He died several hours later.

The decedent is survived by his wife and three children 

(plaintiffs) who filed this wrongful death action against several 

parties including Mrs. Gooch’s Natural Food Markets, Inc. (Mrs. 

Gooch’s), the parent company of the store and the decedent’s 

employer. Mrs. Gooch’s demurred to the operative first amended 

complaint because an administrative law judge and the Workers’ 

Compensation Appeals Board had found the decedent’s injury 

and death to be employment related and therefore within the 

scope of workers’ compensation. And because workers’ 

compensation is generally the exclusive remedy for such injuries, 

Mrs. Gooch’s argued that the wrongful death suit is barred.

Plaintiffs argued that two exceptions to the exclusive remedy rule 

apply: dual capacity and fraudulent concealment. The court found 

neither exception applied and sustained the demurrer without 

leave to amend. Finding no error, we affirm.
3

FACTS1 AND PROCEDURAL BACKGROUND

1. The Accident

The decedent worked at a Whole Foods store in Venice, 

California. While on a 15-minute break, the decedent left the 

store and was hit by a pickup truck while using a crosswalk at a 

nearby intersection. The driver stopped, spoke with the decedent, 

then returned to the car and drove away. The decedent walked 

back to the store where he told his supervisors that he was 

injured and wanted to go home. A store employee later drove him 

home. The decedent died a few hours later.

An administrative law judge and the California Workers’ 

Compensation Appeals Board determined that the decedent’s 

injuries arose out of his employment and occurred in the course of 

that employment.

2. Complaint

Plaintiffs filed this wrongful death action against several 

parties including the decedent’s employer, Mrs. Gooch’s.

Plaintiffs rely on two narrow exceptions to the general principle 

that workers’ compensation is the exclusive remedy for workplace 

injury: dual capacity and fraudulent concealment (Lab. Code, 

§ 3602, subd. (b)(2)).

2

As to the dual capacity exception, plaintiffs allege that in 

addition to its role as the decedent’s employer, Mrs. Gooch’s acted 

as an emergency first aid responder after the decedent was 

1 In accordance with the standard of review, we accept as true all 

factual allegations contained in the operative complaint. (Ivanoff v. 

Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.)

2 All undesignated statutory references are to the Labor Code.
4

injured in the crosswalk. In that capacity, Mrs. Gooch’s caused a 

second injury for which it is liable.

3 Plaintiffs allege that when 

the decedent told store employees that he was injured and 

wanted to go home, they gave him an icepack and requested that 

he wait while they prepared forms for him to sign. After the 

decedent signed one form, another store employee drove him 

home. The store employees did not call 9-1-1, did not call the 

decedent’s wife, did not allow the decedent to leave and obtain 

medical care, and did not drive him to a nearby emergency room.

As a result, plaintiffs allege, the store employees failed to 

exercise reasonable care in rendering services to the decedent, 

and that failure was a substantial factor in causing harm to the 

decedent.

As to the fraudulent concealment exception, plaintiffs 

allege that store employees knew the decedent was injured but 

failed to disclose to him that his injury was connected to his 

employment. Plaintiffs allege that if the other employees had 

both disclosed that the injury was work related and treated it as 

such, they would have called an ambulance and instructed the 

decedent to wait to receive an examination by a paramedic. 

Further, under those circumstances, the decedent would likely 

have followed those instructions, as he had a few weeks prior to 

the accident when he cut his finger at work and was instructed to 

(and did) go to urgent care to have it treated. Plaintiffs also allege 

that the store employees’ fraudulent concealment of the 

decedent’s injury and its connection to his employment 

aggravated his injury by delaying critical emergency medical 

care. Specifically, the accident occurred at 9:33 p.m., the decedent 

3 The complaint does not identify or describe a second injury.
5

arrived at home at 10:01 p.m., and the decedent’s wife arrived 

home at 11:13 p.m. and called 9-1-1. Approximately two hours 

passed between the accident and the decedent’s first medical 

examination.

3. Demurrer

3.1. Demurrer

Mrs. Gooch’s demurred to the operative first amended 

complaint, asserting the pleading failed to state facts sufficient to 

constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

Mrs. Gooch’s conceded that the decedent’s injury was 

employment related and suggested that workers’ compensation 

benefits had already been paid. But plaintiffs sought to avoid the 

workers’ compensation exclusive remedy rule by citing two 

exceptions: employer’s dual capacity and employer’s fraudulent 

concealment.

Mrs. Gooch’s noted that the dual capacity exception 

generally allows employees to obtain relief in tort when work 

related injuries are aggravated by an employer that steps into a 

non-employer role, as when a physician or hospital employer 

treats the employee’s injury. But Mrs. Gooch’s argued that where, 

as here, an employer simply provides medical treatment 

incidental to the employment relationship, such as basic first aid

administered by coworkers, the exception does not apply.

Additionally, and as to the fraudulent concealment 

exception, Mrs. Gooch’s observed that the exception only applies 

where the employer conceals from the employee both the injury 

and the connection between the injury and employment. In the 

present case, the decedent was fully aware of his injury from the 
6

time of the accident, thereby rendering the exception 

inapplicable.

3.2. Opposition

In opposition, plaintiffs submitted a declaration by their

attorney attaching a number of documents and purporting to 

attest to certain relevant facts. Specifically, the attorney 

described the content of video footage from the store taken on the 

night of the accident which had been produced during discovery 

and relayed several statements purportedly made by percipient 

witnesses during the discovery process.

Regarding the dual capacity exception, plaintiffs argued 

that the allegations of the complaint, if true, establish that the 

exception applies. Specifically, after the decedent sustained his 

first injury (being hit by the pickup truck), Mrs. Gooch’s acted as 

both his employer and as an emergency first aid responder. And 

in providing first aid, Mrs. Gooch’s caused a second injury to the 

decedent. Accordingly, plaintiffs asserted they were entitled to 

recover for injuries sustained as a result of Mrs. Gooch’s 

negligent undertaking of the decedent’s emergency care.

As to the fraudulent concealment exception, plaintiffs

conceded that the decedent was aware of his injury after the 

accident. But, the complaint alleges, the decedent was not aware 

that the injury was caused by a work-related event. As a result, 

plaintiffs claimed, the decedent was prevented from obtaining 

immediate emergency medical care and the consequent two-hour 

delay in treatment aggravated his injuries and resulted in his 

death.
7

3.3. Reply

In reply, Mrs. Gooch’s objected to plaintiffs’ attorney’s 

declaration and the attached documents. Further, Mrs. Gooch’s 

asserted that the provision of ice to an injured employee by his 

coworkers was not sufficient to render an employer an emergency 

first aid responder, as plaintiffs claimed. And as to the fraudulent 

concealment issue, Mrs. Gooch’s noted that the decedent was 

fully aware of his injury and must have been aware that the 

injury was related to employment because the store employees 

requested that he sign employment related forms immediately 

after his injury.

4. Ruling

The court sustained the demurrer without leave to amend

based on the principle that the workers’ compensation system 

provides the exclusive remedy for employment-related injury.

With respect to the attorney declaration and attachments 

submitted by plaintiffs, the court noted those items were 

improper and did not consider them.4

Regarding the dual capacity exception, the court noted that 

the exception is extremely narrow. The court described the 

leading case, Duprey v. Shane (1952) 39 Cal.2d 781 (Duprey), a 

case in which an employee nurse was injured on the job. The 

employer doctors treated the nurse and aggravated her initial 

injury. (Id. at pp. 785–790.) The court held, under the dual 

capacity doctrine, that workers’ compensation barred an action 

against the employer relating to the initial injury, but the nurse 

4 Because plaintiffs do not challenge the court’s evidentiary ruling, we 

do not describe the evidence or the ruling in detail.
8

retained the ability to sue her employer for negligence with 

respect to the treatment of the injury, i.e., the injury sustained 

when her employer acted in a second or dual capacity as her 

treating doctor. By contrast, the court noted, other courts have 

held that the dual capacity exception does not apply when an 

employee receives medical services incidental to employment, i.e., 

because of the injured person’s status as an employee. The court 

found that in the present case, the dual capacity exception does 

not apply because the operative complaint does not identify 

either a second injury or any negligent medical treatment

provided by the store employees. Further, the court found that 

“[f]ailing to render aid does not equate to aggravating injury with 

such aid.”

As to the fraudulent concealment exception, the court noted 

that an employer may be liable for aggravating an employee’s 

injury where it conceals from the employee both the injury and 

the injury’s connection with employment. The court found that

the complaint does not allege that Mrs. Gooch’s concealed the 

injury and, in fact, alleges that the decedent reported his injury 

to his employer in the first instance. Because the complaint does 

not allege that Mrs. Gooch’s concealed any information relating 

to the decedent’s injury, the fraudulent concealment exception 

cannot apply.

5. Judgment and Appeal

The court entered a judgment of dismissal on July 5, 2022.

Plaintiffs timely appeal.
9

DISCUSSION

1. Standard of Review

We independently review a trial court’s order sustaining a 

demurrer to determine whether the operative complaint alleges 

facts sufficient to state a cause of action. (Ivanoff v. Bank of 

America, N.A., supra, 9 Cal.App.5th at p. 725.) We assume the 

truth of all properly pled factual allegations and matters that are 

judicially noticeable. (Ibid.) We also liberally construe the 

complaint’s allegations with a view toward substantial justice. 

(Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 

26, 43, fn. 7.) But where facts appearing in attached exhibits or 

judicially noticed documents contradict, or are inconsistent with, 

the complaint’s allegations, we must rely on the facts in the 

exhibits and judicially noticed documents. (Ivanoff, at p. 726.)

When a demurrer is sustained without leave to amend, we 

decide whether there is a reasonable possibility that the plaintiff 

can amend the pleading to cure the defect. (Blank v. Kirwan 

(1985) 39 Cal.3d 311, 318.) If the defect can be cured, the trial 

court has abused its discretion and we reverse; if not, there has 

been no abuse of discretion and we affirm. (Ibid.) The burden of 

proving such reasonable possibility is squarely on the plaintiff. 

(Ibid.) Such a showing may be made for the first time on appeal. 

(Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 

Cal.App.4th 700, 711; City of Torrance v. Southern California 

Edison Co. (2021) 61 Cal.App.5th 1071, 1083–1084.)

Finally, “ ‘we do not review the validity of the trial court’s 

reasoning but only the propriety of the ruling itself. [Citations.]’ 

[Citation.]” (Align Technology, Inc. v. Tran (2009) 179 

Cal.App.4th 949, 958.) Accordingly, we will affirm the “ ‘trial 
10

court’s decision to sustain the demurrer [if it] was correct on any 

theory. [Citation.]’ [Citation.]” (Ibid.)

2. The court properly sustained the demurrer without 

leave to amend.

2.1. Background: Workers’ Compensation

“First created more than a century ago, California’s 

workers’ compensation system is now governed by the Workers’

Compensation Act (WCA; Lab. Code, § 3200 et seq.), ‘a 

comprehensive statutory scheme governing compensation given 

to California employees for injuries incurred in the course and 

scope of their employment.’ [Citations.] At the core of the WCA is 

what we have called the ‘ “ ‘compensation bargain.’ ” ’ ([Charles J. 

Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 

800, 811].) Under this bargain, ‘ “the employer assumes liability 

for industrial personal injury or death without regard to fault in 

exchange for limitations on the amount of that liability.” ’ (Ibid.) 

The employee, for his or her part, ‘ “is afforded relatively swift 

and certain payment of benefits to cure or relieve the effects of 

industrial injury without having to prove fault but, in exchange, 

gives up the wider range of damages potentially available in 

tort.” ’ (Ibid.)” (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 

1046–1047 (King).)

“To give effect to the compensation bargain underlying the 

system, the WCA generally limits an employee’s remedies against 

an employer for work-related injuries to those remedies provided 

by the statute itself. Labor Code section 3600, subdivision (a) 

provides that workers’ compensation liability ‘shall, without 

regard to negligence, exist against an employer for any injury 

sustained by his or her employees arising out of and in the course 
11

of the employment ... in those cases where the ... conditions of 

compensation concur.’ Subject to certain enumerated exceptions 

not relevant here, this liability is ‘in lieu of any other liability 

whatsoever.’ (Lab. Code, § 3600, subd. (a).)” (King, supra, 

5 Cal.5th at p. 1051, fn. omitted.)

As noted, ante, the Workers’ Compensation Appeals Board 

confirmed the decedent’s injury arose out of and occurred in the

course of his employment. Typically, workers’ compensation is 

“the sole and exclusive remedy of the employee or his or her 

dependents against the employer.” (§ 3602, subd. (a); King, supra, 

5 Cal.5th at p. 1051.) The exclusive remedy rule generally bars

wrongful death actions arising out of an industrial injury. (See

Melendrez v. Ameron Internat. Corp. (2015) 240 Cal.App.4th 632, 

642; Seide v. Bethlehem Steel Corp. (1985) 169 Cal.App.3d 985, 

991.) Plaintiffs argue, however, that two exceptions to the 

exclusive remedy rule apply here. We address those exceptions in 

turn.

2.2. Dual Capacity

Plaintiffs first argue that Mrs. Gooch’s, through its 

employees, acted in a dual capacity following the accident. 

Specifically, in addition to acting as the decedent’s employer, 

plaintiffs urge that Mrs. Gooch’s also acted as a “provider of 

emergency first aid services” subject to liability for negligence 

outside the workers’ compensation scheme. We reject this 

argument.

As explained, if an employee’s injury “aris[es] out of and in 

the course of the employment” (§ 3600, subd. (a)), and is 

“proximately caused by the employment, either with or without 

negligence,” (id., subd. (a)(3)), the employee’s remedy is confined 

to workers’ compensation benefits from the employer. 
12

(D’Angona v. County of Los Angeles (1980) 27 Cal.3d 661, 664.) 

There is a judicially recognized exception to the exclusive remedy 

rule known as the “ ‘dual capacity doctrine.’ ” (Hendy v. Losse

(1991) 54 Cal.3d 723, 730; see King, supra, 5 Cal.5th at p. 1054.) 

This doctrine “posits that an employer may have or assume a 

relationship with an employee other than that of employeremployee, and that when an employee seeks damages for injuries 

arising out of the secondary relationship the employee’s claim is 

not subject to the exclusive remedy provisions of the Workers’

Compensation Act.” (Hendy, at p. 730; King, at p. 1054 [same];

see also Gund v. County of Trinity (2020) 10 Cal.5th 503, 525 [“A 

plaintiff may pursue tort claims for intentional misconduct that 

has only a questionable relationship to the employment, an 

injury that did not occur while the employee was performing a 

service incidental to and a risk of the employment, or where the 

employer stepped out of its proper role. [Citation.] These types of 

injuries are beyond the [workers’] compensation bargain.”].)

For example, in the leading case of Duprey, supra, 39 

Cal.2d 781, the employee of a chiropractic partnership received 

workers’ compensation benefits for an injury she suffered in the 

course of her employment. Nevertheless, the court held the 

employee could bring an action at law against her employer for 

the aggravation of the injury caused by the employer’s negligent 

medical treatment. The court reasoned that the employer had no 

obligation to treat the employee himself but, once he undertook to 

do so, there was no logical reason that he should not be held 

responsible in a civil action for professional negligence. The 

employer did not treat the injury because of the employeremployee relationship, but, rather, treated the employee as an 

attending doctor. Thus, with respect to the aggravated injury, the 
13

court held, their relationship was that of doctor and patient. (Id.

at p. 793.)

The Duprey rationale was followed in a number of cases 

including D’Angona v. County of Los Angeles, supra, 27 Cal.3d 

661, Sturtevant v. County of Monterey (1991) 228 Cal.App.3d 758, 

and Weinstein v. St. Mary’s Medical Center (1997) 58 Cal.App.4th 

1223. In each of these cases, an employee suffered an initial 

injury on the job and thereafter sought treatment for that 

industrial injury from a medical provider who also happened to 

be the employee’s employer. Because the medical provider had no 

obligation to treat the employee, the courts permitted a medical 

malpractice action against the employer to proceed when the 

employer’s professional negligence aggravated the injury. (E.g., 

Weinstein, at pp. 1232–1235.)

By contrast, workers’ compensation is an employee’s 

exclusive remedy when the employee obtains medical treatment 

from the employer under circumstances incidental to the 

employment relationship. For example, in Bell v. Macy’s

California (1989) 212 Cal.App.3d 1442 (disapproved on a 

separate ground in Snyder v. Michael’s Stores, Inc. (1997) 16 

Cal.4th 991, 1000), the employer provided a first-aid dispensary 

and clinic for its employees. A pregnant employee became ill at 

work and sought treatment at the in-house clinic. Because of the 

attending nurse’s negligence, the employee’s then-unborn baby 

eventually died. The court held that in providing a medical clinic 

for its employees, the employer never stepped out of its role as an 

employer and into that of a medical care provider. (Bell, at 

pp. 1450–1451.) The employee attended the clinic as an employee, 

not as a member of the public, and therefore the dual capacity 

exception did not apply. Rather, the court held, the employee’s 
14

injury arose out of the employment relationship and occurred in 

the course of employment. (Ibid.)

Similarly, in Alander v. VacaValley Hospital (1996) 49 

Cal.App.4th 1298, the hospital employer provided testing and 

treatment to any employee possibly exposed to tainted blood or 

bodily fluids. This treatment was provided as an employee health 

benefit. While voluntarily undergoing treatment pursuant to this 

benefit, an employee suffered nerve damage. The court held the 

employee was injured in the course of employment. In electing to 

receive the treatment at the employer hospital, the employee was 

asserting her right as an employee to one of the benefits of her 

employment. Further, the employer was fulfilling its obligation 

under the employment protocol as an employer, and not as a 

medical provider. (Id. at pp. 1306–1307.)

Plaintiffs attempt to analogize the present case to Duprey

and similar cases in which an injured employee was allowed to 

pursue a medical malpractice claim against an employer who was

also a treating medical professional. But this case is plainly 

distinguishable from those cases because plaintiffs do not allege 

that either Mrs. Gooch’s or the store employees who rendered 

first-aid assistance were medical professionals. Instead, plaintiffs 

apparently seek to expand the dual capacity doctrine to include a 

negligent undertaking theory. Plaintiffs cite no case holding that 

a negligent undertaking theory is viable in these circumstances

nor do they offer any legal support for their suggestion that we 

expand the scope of the dual capacity exception. Indeed, they do 

not even discuss the legal requirements of their negligent 

undertaking theory. On that basis, we may consider the 

argument forfeited. (See Hernandez v. First Student, Inc. (2019) 

37 Cal.App.5th 270, 277 [noting courts “may and do ‘disregard 
15

conclusory arguments that are not supported by pertinent legal 

authority or fail to disclose the reasoning by which the appellant 

reached the conclusions he wants us to adopt’ ”]; Keyes v. Bowen

(2010) 189 Cal.App.4th 647, 655–656 [noting that matters not 

properly raised or that lack adequate legal discussion will be 

deemed forfeited]; Dietz v. Meisenheimer & Herron (2009) 177 

Cal.App.4th 771, 799 [noting that if an appellant fails to support 

a claim with reasoned argument and citations to authority the 

court of appeal may treat that claim as waived].)

In any event, the allegations of the complaint indicate that

the decedent received first aid assistance from Mrs. Gooch’s in its 

capacity as his employer. Plaintiffs allege that when the decedent 

returned to “the store and told his supervisors that he was 

injured and wanted to go home[,] [t]hey told him to wait, they 

examined his head[,] and gave him ice to apply to the injured 

area. Then, as Decedent waited in the seating area of the store 

bleeding from his head with an icepack, his supervisors were in 

the kitchen printing several forms and discussing which ones he 

needed to fill out. Eventually[,] the supervisors presented 

Decedent with a single form to sign, which he did. Then the 

supervisors had a co-worker drive Decedent home instead of to 

the hospital.” Nothing about these allegations suggests that the 

employees or Mrs. Gooch’s assumed a separate and independent 

role as purveyors of medical services unrelated to the 

employment relationship, as the employers did in Duprey and 

similar cases. Rather, this case is most similar to Bell v. Macy’s

California, supra, 212 Cal.App.3d 1442 in which the plaintiff 

employee was not allowed to sue her employer for negligent 

medical care she received in a company clinic for employees.
16

2.3. Fraudulent Concealment

Plaintiffs also argue that the fraudulent concealment 

exception to the exclusive remedy rule applies. We reject this 

argument as well.

The fraudulent concealment exception is found in section 

3602, subdivision (b)(2).

5 To withstand a demurrer, an employee 

must “in general terms” plead facts that if found true by the trier 

of fact, establish the existence of three essential elements: (1) the 

employer knew that the plaintiff had suffered a work-related 

injury; (2) the employer concealed that knowledge from the 

plaintiff; and (3) the injury was aggravated as a result of such 

concealment. (Foster v. Xerox Corp. (1985) 40 Cal.3d 306, 312; 

Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th 80, 

89–90.) “If any one of these conditions is lacking, the exception 

does not apply and the employer is entitled to judgment in its 

favor. [Citation.]” (Silas v. Arden (2012) 213 Cal.App.4th 75, 91.)

Critically for our purposes, “[t]he exception does not apply 

where the employee was aware of the injury at all times. 

[Citation.]” (Silas v. Arden, supra, 213 Cal.App.4th at p. 91.) This 

point is fatal to plaintiffs’ argument. The complaint does not 

allege that the decedent was unaware of his injury. Nor could it 

reasonably do so—the nature of the accident must have apprised 

5 That section provides, in pertinent part: “An employee, or his or her 

dependents in the event of his or her death, may bring an action at law 

for damages against the employer, as if this division did not apply, in 

the following instances: [¶] ... [¶] Where the employee’s injury is 

aggravated by the employer’s fraudulent concealment of the existence 

of the injury and its connection with the employment, in which case 

the employer’s liability shall be limited to those damages proximately 

caused by the aggravation.”
17

the decedent that he was injured. Moreover, according to the 

operative complaint, Mrs. Gooch’s was unaware of the decedent’s 

injury until he advised his supervisors that he had been in an 

accident. Thus, the allegations of the operative complaint 

establish that the fraudulent concealment exception to the

workers’ compensation exclusivity rule does not apply as a matter 

of law.

2.4. Amendment

As noted, ante, when a demurrer is sustained without leave 

to amend, we must decide whether there is a reasonable 

possibility that a plaintiff can amend the pleading to cure the 

defect. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) The burden 

of proving such reasonable possibility is squarely on the plaintiff. 

(Ibid.)

Plaintiffs did not argue below, and do not explicitly argue 

on appeal, that they should be granted leave to further amend 

their complaint. But because we have determined that the 

fraudulent concealment exception does not apply as a matter of 

law, any amendment relating to that theory would be fruitless. 

And as to the dual capacity exception, plaintiffs have not 

identified what additional facts, if any, they could allege to state 

a viable cause of action against Mrs. Gooch’s. They simply note, 

in passing, that the court should have granted leave to amend “to 

allow plaintiffs to gather more evidence.” We assume, then, that 

plaintiffs lack a reasonable basis to add or amend allegations in

the complaint. As such, it appears there is no reasonable 

possibility that plaintiffs can amend the pleading to cure the 

defect.
18

DISPOSITION

The judgment of dismissal is affirmed. Respondent Mrs. 

Gooch’s Natural Foods Markets shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, Acting P. J.

WE CONCUR:

EGERTON, J.

ADAMS, J.