Case Name: Karen Frugoli O’Hare v. LinkedIn Corp., et al.
Case No.: 16CV291808

I. Background

This is a personal injury lawsuit. According to the allegations in the seventh amended complaint (“SAC”), 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. Plaintiff names as defendants, among many others, architectural firm ARC TEC, Inc. (“ARC TEC”), property manager Cushman & Wakefield of California, Inc. (“CWCI”), maintenance provider Crown Energy Services, Inc. (doing business as Able Engineering Services) (“Able”), and A&D Automatic Gate Company (“Gate Company”).

Plaintiff asserts causes of action against ARC TEC, CWCI, Able, and Gate Company for: (1) general negligence (against ARC TEC, CWCI, Able, and Gate Company); (2) premises liability (against CWCI, Able, and Gate Company); and (3) products liability (against Gate Company). Plaintiff seeks an award of punitive damages in connection therewith.

ARC TEC, CWCI, Able, and Gate Company challenge the sufficiency of the allegations in the SAC. First, ARC TEC filed a demurrer and motion to strike allegations in the pleading, including Plaintiff’s punitive damages allegations. ARC TEC and Plaintiff filed requests for judicial notice in connection with these matters. Second, CWCI and Able jointly filed a demurrer and motion to strike allegations in the pleading. Finally, Gate Company filed a motion to strike allegations in the pleading, which is accompanied by a request for judicial notice. The Court first addresses the parties’ requests for judicial notice before turning to each demurrer and motion to strike in turn.

II. Requests for Judicial Notice

Judicial notice is a substitute for formal proof. (Sosinky v. Grant (1992) 6 Cal.App.4th 1548, 1563-64.) When a court takes judicial notice, it accepts the truth of a matter instead of admitting evidence as proof of its truth. (Ibid.) The matters of law and fact that are proper subjects of judicial notice are set forth in Evidence Code sections 451 and 452. (Ibid.) Even if a matter comes within Evidence Code section 451 or 452, a court need not take judicial notice of it if it is not “necessary, helpful, or relevant.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6.)

A. ARC TEC’s Requests for Judicial Notice

ARC TEC separately filed two identical requests for judicial notice, one in support of its demurrer and one in support of its motion to strike. ARC TEC requests judicial notice of court records including: (1) the doe amendment identifying it as Doe 10; (2) the sixth amended complaint; (3) the seventh amended complaint; and (4) the Court’s previous order on Gate Company’s demurrer to and motion to strike portions of the sixth amended complaint.
A court may take judicial notice of court records. (Evid. Code, § 452, subd. (d).) With that said, not all of the requested records are necessary, helpful, or relevant to the matters before the Court. It is unnecessary to take judicial notice of the operative SAC because it is the pleading under review and, as such, must necessarily be considered by the Court. (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.) It is also unnecessary to take judicial notice of the doe amendment because Plaintiff has since filed amended pleadings identifying ARC TEC by name and specifically acknowledging it was previously named as Doe 10. Additionally, the sixth amended complaint is not necessary, relevant, or helpful because it has since been superseded and is not material to the arguments presented by ARC TEC.

The Court does take judicial notice of its order on the demurrer to and motion to strike portions of the sixth amended complaint because it is material to whether Plaintiff has cured the pleading deficiencies identified therein.

For these reasons, ARC TEC’s requests for judicial notice are GRANTED with respect to the Court’s previous order and DENIED with respect to the operative SAC, sixth amended complaint, and doe amendment.

B. Plaintiff’s Request for Judicial Notice in Opposition

Plaintiff filed a request for judicial notice of ARC TEC’s demurrer. Although the demurrer is a court record (Evid. Code, § 452, subd. (d)), it is fundamentally unclear why Plaintiff requests judicial notice of it. It is unnecessary to take judicial notice of the demurrer because it is the matter before the Court and, as such, must necessarily be considered. (See Paul, supra, 235 Cal.App.4th at p. 1091, fn. 1.) Plaintiff’s request for judicial notice is therefore DENIED.

C. Gate Company’s Request for Judicial Notice

Gate Company requests judicial notice of the SAC and the Court’s previous order on the demurrer to and motion to strike portions of the sixth amended complaint. For the same reasons articulated above with respect to ARC TEC’s request, Gate Company’s request for judicial notice is GRANTED in part and DENIED in part.

III. ARC TEC’s Demurrer

ARC TEC demurs to the first cause of action for negligence on the purported grounds “it does not state facts sufficient to support a claim for punitive/exemplary damages. . . and [ ] is uncertain to support a claim for punitive/exemplary damages.” (Mem. of Pts. & Auth. at p. iii.) In light of ARC TEC’s statement of the grounds for its demurrer, it is necessary to clarify several concepts and principles before addressing the merits.

In general, “a complaint must contain ‘[a] statement of the facts constituting the cause of action, in ordinary and concise language.’” (Davaloo v. State Farm Insurance Co. (2005) 135 Cal.App.4th 409, 415, quoting Code Civ. Proc., § 425.10, subd. (a)(1).) “This fact-pleading requirement obligates the plaintiff to allege ultimate facts that as a whole apprise[ ] the adversary of the factual basis of the claim.” (Davaloo, supra, 135 Cal.App.4th at p. 415 [internal quotation marks and citations omitted].) 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 demurrer on the ground of uncertainty tests whether the allegations in the pleading are uncertain, ambiguous, or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer on the ground of 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.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Reg. Authority (2012) 208 Cal.App.4th 1125, 1135.)

Finally, there is no cause of action for punitive damages; they are a remedy. (Grieves v. Super. Ct. (1984) 157 Cal.App.3d 159, 163.) Consequently, a demurrer (irrespective of the ground) is not the proper procedural vehicle for challenging the sufficiency of punitive damages allegations. (Ibid.; see also Caliber Bodyworks, Inc. v. Super. Ct. (2005) 134 Cal.App.4th 365, 385.) “The adequacy of [ ] punitive damage allegations [may be] tested by motion to strike.” (Grieves, supra, 157 Cal.App.3d at p. 164.)

With these clarifications in mind, the Court turns to the merits of the demurrer.

With respect to ARC TEC in particular, Plaintiff alleges it was hired in February 2013 to design and build an area of the campus known as Building D, “which included an automatic gate designed for vehicular use only.” (SAC, ¶ 43.) Plaintiff claims ARC TEC “intentionally, recklessly, in conscious disregard for the rights and safety of [others] and/or negligently designed, installed, managed and/or built the subject gate.” (SAC, ¶ 44.) Plaintiff alleges ARC TEC should have known “installing a 3-button access control system [ ] within arm’s length of the opening of the subject gate” and “installing UL 325 compliant warning signs on or near [the] subject gate was a safety issue for pedestrians. . . .” (SAC, ¶¶ 45-46.)

ARC TEC argues “the first cause of action for negligence fails to state a claim for punitive damages.” (Mem. of Pts. & Auth. at pp. 6:28-7:1.) This argument is perplexing. As ARC TEC acknowledges, the first cause of action is for negligence. But ARC TEC does not argue Plaintiff fails to allege the essential elements of a negligence claim. Instead, it addresses whether Plaintiff’s punitive damages allegations are sufficient. As stated above, the sufficiency of the punitive damages allegations may be tested by motion to strike, not demurrer. For these reasons, ARC TEC does not substantiate its demurrer on the ground of failure to state facts sufficient to constitute a cause of action.

Next, ARC TEC argues the first cause of action is uncertain because Plaintiff’s allegations obfuscate whether she is asserting a claim for negligence or an intentional tort. This is essentially the same argument previously advanced by Devcon Construction Incorporated and rejected by the Court in the order issued on August 21, 2018. As explained in that order, Plaintiff is clearly asserting a claim for negligence and has added conclusory characterizations of conduct as intentional solely for the purpose of seeking punitive damages. While the first cause of action may be pleaded in a disorganized or inartful manner, ARC TEC does not argue the allegations are so incomprehensible it cannot reasonably respond. Instead, ARC TEC repeats the points advanced with respect to whether Plaintiff adequately pleads facts to support her request for punitive damages. Thus, the pleading is not uncertain.

Based on the foregoing, ARC TEC’s demurrer to the first cause of action on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action is OVERRULED.

IV. ARC TEC’s Motion to Strike

Plaintiff seeks punitive damages and includes an exemplary damages attachment, Judicial Council Form No. PLD-PI-001(6), in the SAC. In this attachment, Plaintiff refers to another attachment, namely Attachment A. (SAC at p. 41.) Attachment A to the SAC contains a list of the doe defendants that have now been identified by name. Thus, it appears Plaintiff’s reference to Attachment A is a clerical error and she intended to refer to Attachment B containing the factual allegations upon which the first cause of action is based. ARC TEC moves to strike the reference to punitive damages in paragraph 14 of the form complaint, the exemplary damages attachment in its entirety, and the related conclusory characterizations of its conduct in paragraphs 11-13 and 44-47 of Attachment B.

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, supra, 157 Cal.App.3d at p. 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; see also Mahoney v. Corralejo (1974) 36 Cal.App.3d 966, 973.)

The Court previously explained in connection with Gate Company’s challenge to Plaintiff’s punitive damages allegations as pleaded in the sixth amended complaint that she could not recover punitive damages based on a negligence claim without more. (See Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894; Lackner v. North (2006) 135 Cal.App.4th 1188, 1211-12.) The Court also stated Plaintiff’s punitive damages allegations were insufficient because she pleaded conclusory characterizations of conduct as being done “intentionally, despicably, and/or in conscious disregard for the rights and safety of others” without pleading facts to support those characterizations. (Sixth Am. Compl. at p. 16.) As ARC TEC articulates, Plaintiff does not cure this defect in the operative SAC. Plaintiff still relies on conclusory characterizations in the absence of supporting factual allegations, which characterizations are not sufficient standing alone.

Plaintiff’s opposition is not persuasive. She does not provide legal analysis or identify facts in the pleading to support the conclusion that her punitive damages allegations are sufficient. For example, Plaintiff cites SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, a case involving the ultrahazardous activity of aerial pesticide application. But Plaintiff does not clearly articulate and it is not otherwise obvious how SKF Farms is analogous to the case at bench or demonstrates her allegations are sufficient.

For these reasons, Plaintiff does not adequately plead facts to support her claim for punitive damages.

ARC TEC also moves to strike the phrase “severe emotional distress” from paragraph 47 of Attachment B. ARC TEC does not identify any legal basis for striking this phrase. It states in passing that Plaintiff stipulated to removing that phrase. Even so, Code of Civil Procedure section 436 does not authorize the Court to strike a portion of a pleading on the ground there is a stipulation between the parties. Moreover, it is unclear what purpose would be served by striking this allegation under these circumstances. (See generally Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 889-90 [discussing nature, function, and purpose of the procedure].) ARC TEC, thus, does not demonstrate this allegation may be stricken.

Based on the foregoing, Plaintiff’s claim for punitive damages and related allegations may be stricken. In ruling on a pleading challenge, a court may deny leave to amend if the plaintiff cannot demonstrate any reasonable possibility of curing the defect in the pleading through amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; accord Grieves, supra, 157 Cal.App.3d at p. 168.) The Court already gave Plaintiff an opportunity to plead facts to support her claim for punitive damages, but she failed to do so. She does not, now, state how she could amend the complaint to properly plead entitlement to punitive damages. ARC TEC’s motion to strike is therefore GRANTED WITHOUT LEAVE TO AMEND with respect to the claim for punitive damages and related allegations and DENIED with respect to the phrase “severe emotional distress” in paragraph 47. The Court hereby strikes the reference to punitive damages at paragraph 14, the exemplary damages attachment, and the conclusory characterizations in paragraphs 11-13 and 44-47 of Attachment B.

V. CWCI and Able’s Demurrer

CWCI and Able first demur to Plaintiff’s allegation that she “suffered severe emotional distress based upon the sham pleading doctrine.” (Dem. at p. 3:10-12.) A demurrer may be taken to a complaint as a whole or to a cause of action therein. (Code Civ. Proc., § 430.50, subd. (a).) A demurrer is not the proper procedural vehicle for challenging individual allegations in a pleading, which allegations may only be tested by motion to strike. (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.) Consequently, Plaintiff’s allegation that she suffered severe emotional distress is not a proper subject of a demurrer. Additionally, CWCI and Able’s demurrer to this individual allegation is improper because they do not identify a statutory ground for their demurrer. The statutory grounds for demurrer are set forth in Code of Civil Procedure section 430.10; the sham pleading doctrine is not one of the grounds for demurrer set forth therein. If a party fails to specify the statutory ground for his or her demurrer, the demurrer may be disregarded. (Code Civ. Proc., § 430.60; see also Cal. Rules of Court, rule 3.1320(a).) Because CWCI and Able do not specify a statutory ground for their demurrer and are improperly challenging an individual allegation and not a cause of action, the Court disregards their demurrer to the allegation of severe emotional distress.

Next, CWCI and Able demur to the entire pleading on the ground of uncertainty. In support, they advance the same argument previously advanced by Devcon Construction Incorporated and by ARC TEC above, namely that Plaintiff’s allegations obfuscate whether she is asserting claims for negligence or an intentional tort. This argument is not persuasive and does not justify sustaining a demurrer on the ground of uncertainty for the same reasons previously articulated and reiterated with respect to ARC TEC’s demurrer above. CWCI and Able’s demurrer to the entire SAC on the ground of uncertainty is therefore OVERRULED.

Finally, CWCI and Able demur to the second cause of action for premises liability on the ground of failure to state facts sufficient to constitute a cause of action.

Premises liability is simply a type of negligence. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529-30.) Thus, the essential elements of a claim for premises liability “are duty, breach, causation, and damages.” (Id. at p. 529.) The duty owed is “to exercise ordinary care in the management of [ ] premises in order to avoid exposing persons to an unreasonable risk of harm.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1629, citing Rowland v. Christian (1968) 69 Cal.2d 108, 119, citing Civ. Code, § 1714.)

CWCI and Able’s supporting analysis is not a model of clarity. First, they conclude Plaintiff does not adequately allege negligent ownership, maintenance, management, and/or operation of the electronic gate. But they do not provide any explanation and it is not otherwise obvious from the pleading how they reached that conclusion. They also argue with respect to Able in particular that Plaintiff’s allegation that it was a maintenance company is insufficient. They do not cite any legal authority to support this argument. Thus, CWCI and Able do not demonstrate Plaintiff fails to state a claim for premises liability. Their demurrer to the second cause of action on the ground of failure to state sufficient facts is therefore OVERRULED.
VI. CWCI and Able’s Motion to Strike

CWCI and Able also move to strike Plaintiff’s punitive damages allegations, particularly the entirety of the exemplary damages attachment and the conclusory characterizations of their conduct in paragraphs 73-74, 76-80, and 86-93 of Attachment B. Plaintiff relies on the same conclusory characterizations relative to CWCI and Able as she relies upon with respect to ARC TEC. These characterizations are insufficient for the same reasons set forth above. Plaintiff does not advance any new or additional points to support the conclusion that her allegations are sufficient in her opposition to this motion in particular. Consequently, Plaintiff’s punitive damages allegations with respect to CWCI and Able will be stricken.

Able and CWCI also move to strike Plaintiff’s allegation of severe emotional distress. (See SAC, Att. B, ¶¶ 81, 93.) Able and CWCI first argue the allegation is a sham allegation. This argument is not persuasive. A sham allegation that may be disregarded by a court exists when “a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings.” (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-84.) Able and CWCI do not identify any inconsistency or omission to support the conclusion that Plaintiff’s allegation is a sham. Instead, they point out that Plaintiff added the adjective “severe” to her existing allegation that she suffered emotional distress. Although additional, this adjective does not render the allegation inconsistent. Thus, Able and CWCI’s sham pleading argument is not persuasive.

CWCI and Able also assert Plaintiff agreed to omit this allegation but has yet to provide them with a proposed Eighth Amended Complaint. As stated above, there is no statutory basis for striking an allegation pursuant to a stipulation between the parties. Furthermore, as it appears the parties have decided and clarified amongst themselves that the phrase “severe emotional distress” may have been included inadvertently and is not the basis for a claim of intentional infliction of emotional distress, it is unclear why judicial intervention is necessary.

For these reasons, Able and CWCI do not demonstrate the allegation of severe emotional distress may be stricken.

Based on the foregoing, Able and CWCI’s motion to strike is GRANTED WITHOUT LEAVE TO AMEND with respect to the claim for punitive damages and related allegations and DENIED with respect to the allegation of severe emotional distress. The Court hereby strikes the exemplary damages attachment and the conclusory characterizations of their conduct in Attachment B, particularly in paragraphs 73-74, 76-80, and 86-93.

VII. Gate Company’s Motion to Strike

Gate Company also moves to strike Plaintiff’s punitive damages allegations, particularly the reference to punitive damages in paragraph 14 of the form complaint, the entirety of the exemplary damages attachment, and unspecified allegations in Attachment B. Plaintiff’s punitive damages allegations with respect to Gate Company are insufficient for the same reasons articulated above with respect to ARC TEC. (See SAC, Att. B, ¶¶ 29-34.) Plaintiff has not cured the deficiencies identified in the Court’s order on Gate Company’s previous motion to strike the punitive damages allegations as pleaded in the sixth amended complaint. In Plaintiff’s opposition to Gate Company’s motion, she does not advance any new or additional points to support the conclusion that she pleads facts sufficient to support a claim for punitive damages against it. For these reasons, Gate Company’s motion to strike the punitive damages allegations is GRANTED WITHOUT LEAVE TO AMEND in part and DENIED in part. The Court hereby strikes the reference to punitive damages at paragraph 14 and the exemplary damages attachment. The Court does not strike any portion of Attachment B because Gate Company does not specify what portion of Attachment B it seeks to strike sufficient for a ruling to be made. (See generally Cal. Rules of Court, rule 3.1322(a).