Case Name: Karen Frugoli O’Hare v. LinkedIn Corp., et al.
Case No.: 16-CV-291808

I. Background

This is a personal injury lawsuit. A defective electronic gate closed on plaintiff Karen Frugoli O’Hare (“Plaintiff”) at the Sunnyvale campus of defendant LinkedIn Corporation causing injury to her left arm and side. (Sixth Amended Complaint (“SAC”) at p. 5.) Plaintiff asserts causes of action against defendant LinkedIn Corporation and, among others, defendant A & D Automatic Gate Company for: (1) negligence; (2) premises liability; (3) products liability; and (4) “intentional tort.” (SAC at p. 8.) Plaintiff seeks punitive damages in connection with the fourth cause of action.

A & D Automatic Gate Company (“Defendant”) demurs to the fourth cause of action and moves to strike Plaintiff’s claim for punitive damages and related allegations.

II. Demurrer

The fourth cause of action is for an unspecified intentional tort. Defendant demurs to this claim on the grounds of uncertainty and failure to state sufficient facts, arguing Plaintiff does not adequately identify what cause of action she is asserting or otherwise state a cause of action.

In general, “a complaint must contain a statement of the facts constituting the cause of action in ordinary and concise language.” (Scholes v. Lambirth Trucking Co. (2017) 10 Cal.App.5th 590, 598, citing Code Civ. Proc., § 425.10, subd. (a)(1).) “This requirement obligates the plaintiff to allege ultimate facts that, taken as a whole, apprise the defendant of the factual basis of the claim.” (Scholes, supra, 10 Cal.App.5th at p. 598; accord Davaloo v. State Farm Insurance Co. (2005) 135 Cal.App.4th 409, 415.) Thus, a demurrer on the ground of failure to state facts sufficient to constitute a cause of action tests whether the plaintiff alleges each ultimate fact essential to his or her cause of action. (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872, citing Code Civ. Proc., § 430.10, subd. (e).)

In contrast, “[a] special demurer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-46.) A demurrer on the ground of uncertainty is sustainable if the pleading is uncertain, ambiguous, or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).)

Plaintiff identifies the fourth cause of action as “intentional tort.” (SAC at p. 8.) “A tort is any wrong, not consisting in mere breach of contract, for which the law undertakes to give the injured party some appropriate remedy against the wrongdoer.” (Barrett v. Super. Ct. (1990) 222 Cal.App.3d 1176, 1187-88 [internal quotation marks and citations omitted].) “An intentional tort is one in which the actor ‘desires to cause consequences of his [or her] act’ or ‘believes that the consequences are substantially certain to result from it.’” (Arendell v. Auto Parts Club, Inc. (1994) 29 Cal.App.4th 1261, 1265, quoting Rest.2d Torts, § 8A.) And so an intentional tort is a type of tortious conduct. (See Lackner v. North (2006) 135 Cal.App.4th 1188, 1212.) The term “intentional tort” is inclusive of many different tort-based theories of liability and does not denote any specific, individual cause of action. (Ibid.) Thus, it is not particularly clear from Plaintiff’s label what cause of action she is asserting and that it is legally cognizable.

To this point, Defendant argues Plaintiff’s labeling of the fourth cause of action violates rule 2.112 of the California Rules of Court, which requires a plaintiff to separately state each cause of action or count and identify “[i]ts nature (e.g., ‘for fraud’).” But while Defendant is correct that a plaintiff must clearly label each cause of action in accordance with rule 2.112, a court is not bound by that label for purposes of evaluating a demurrer. (Quelimane Co. v. Steward Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.) Rather, “[i]f the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Id. at p. 38.) Consequently, the Court considers whether Plaintiff alleges facts sufficient to state some recognized cause of action irrespective of the label on the fourth cause of action.

In the fourth cause of action, Plaintiff states “see Attachment A for description of reasons for liability.” (SAC at p. 8.) Attachment A contains eight nearly identical paragraphs that follow a set formula. Each paragraph begins with a list of the defendants and a statement that they acted “intentionally, despicably, and/or in conscious disregard for the rights and safety of others,” which is thereafter followed by a single allegation that, for example, “they allowed Plaintiff and other pedestrians to operate and/or walk through an automatic gate which [they] knew prior to [the] August 10, 2015 incident was for vehicular use only.” (SAC at p. 9.) Plaintiff repeats this allegation, although with some slight variations in wording, in each of the eight paragraphs. Thus, in all, Plaintiff essentially alleges the defendants are liable because the pathway and vehicle gate were not safe for pedestrians who should have had a separate walkway to use.

It is not obvious Plaintiff’s allegations are sufficient to state a cause of action for some recognized intentional tort. Rather, the allegations appear to be based on negligence, such as premises liability, and simply characterized in a conclusory manner as intentional. (See, e.g., Alcarez v. Vece (1997) 14 Cal.4th 1149, 1158-59.) “No amount of descriptive adjectives or epithets may turn a negligence action into an action for intentional or willful misconduct.” (Mahoney v. Corralejo (1974) 36 Cal.App.3d 966, 973.) Thus, Plaintiff cannot convert a negligence claim into some form of intentional tort by simply characterizing Defendant’s conduct as intentional.

In opposition, Plaintiff states she adequately alleges a cause of action for intentional infliction of emotional distress. But she does not. To state a cause of action for intentional infliction of emotional distress, a plaintiff must allege: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ [Citations].” (Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 228-29.) “‘Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’” (Id. at p. 229, quoting Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) Plaintiff does not allege Defendant engaged in extreme or outrageous conduct or that she suffered severe emotional distress as a result. (See, e.g., Fuentes v. Perez (1977) 66 Cal.App.3d 163, 166, 172-73 [contractor’s carelessness was not extreme or outrageous conduct].) Thus, Plaintiff does not state a cause of action for intentional infliction of emotional distress.

For the reasons set forth above, the demurrer to the fourth cause of action is sustainable on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action. A court may deny leave to amend if there is no reasonable possibility a pleading defect can be cured by amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) It is not obvious and Plaintiff does not articulate how she could amend the pleading to state a viable claim. With that said, the Court cannot conclude there is no reasonable possibility she could do so, especially given it is not particularly clear what theory of liability she intended to assert. Consequently, the demurrer to the fourth cause of action for intentional tort is SUSTAINED with 10 days’ leave to amend.

The Court expects any amendment to be “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law” and based on factual allegations that “have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” (Code Civ. Proc., § 128.7.) It is not permissible to assert a cause of action solely as a predicate for seeking punitive damages when there is otherwise no factual or legal basis for asserting the cause of action. (See generally Peake v. Underwood (2014) 227 Cal.App.4th 428, 440; see also Goodstein v. Super. Ct. (1996) 42 Cal.App.4th 1635, 1641-42.)

III. Motion to Strike

The SAC is a form pleading that includes an “exemplary damages attachment.” (SAC at p. 16.) Defendants move to strike this entire attachment in which Plaintiff sets forth the allegations supporting her claim for punitive or “exemplary” damages, which allegations are identical to those in the fourth cause of action. (Ibid.)

A party may move to strike out improper allegations in a pleading. (Code Civ. Proc., §§ 435, subd. (b)(1), 436.) If a claim for punitive damages is not properly pleaded, it may be stricken. (Grieves v. Super. Ct. (1984) 157 Cal.App.3d 159, 164.) In order to plead a claim for punitive damages, a plaintiff must allege the defendant was guilty of malice, oppression, or fraud and the ultimate facts underlying such allegations. (Civ. Code, § 3294, subd. (a); Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.) Conclusory characterizations of conduct as malicious, oppressive, or fraudulent are insufficient standing alone. (Smith v. Super. Ct. (1992) 10 Cal.App.4th 1033, 1042.)

Plaintiff seeks punitive damages in connection with the fourth cause of action. But the Court sustained the demurrer to that claim, and Plaintiff cannot otherwise recover punitive damages in connection with the remaining three causes of action that sound in negligence only. (See Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894; Lackner, supra, 135 Cal.App.4th at pp. 1211-12.) Furthermore, the allegations consist of a conclusory characterization of particular acts as being done “intentionally, despicably, and/or in conscious disregard for the rights and safety of others. . . .” (SAC at p. 16.) But Plaintiff does not allege facts to support her characterizations, which are insufficient standing alone.

Plaintiff’s arguments in opposition are unavailing. Plaintiff first argues there are a “plethora of facts” to support her claim for punitive damages. (Opp. at p. 3:19.) But she simply refers to the conclusory characterizations quoted above and does not cite any legal authority to support her argument. Plaintiff otherwise insists that punitive damages are recoverable “based on negligence alone.” (Opp. at p. 7:18.) But she relies exclusively on cases that predate the requirement of despicable conduct for purposes of establishing both malice and oppression. (See Lackner, supra, 135 Cal.App.4th at p. 1212 [distinguishing earlier cases].) Furthermore, the cases she cites are distinguishable because, although they involved “unintentional torts,” the underlying circumstances and conduct amounted to more than negligence, which is not the case here. (Lackner, supra, 135 Cal.App.4th at pp. 1211-12, citing G.D. Searle & Co. v. Super. Ct. (1975) 49 Cal.App.3d 22 and Taylor v. Super. Ct. (1979) 135 Cal.3d 890, 894-95.)

In conclusion, Plaintiff’s claim for punitive damages and related allegations may be stricken because she cannot recover such damages based on negligent conduct alone and does not properly plead facts to support her conclusory characterizations of Defendant’s conduct. The motion to strike the exemplary damages attachment is therefore GRANTED with 10 days’ leave to amend.