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 a defendant, among many others, general contractor Devcon Construction Incorporated (“Devcon”). Plaintiff asserts the first cause of action for negligence against Devcon and seeks an award of punitive damages in connection therewith.

Devcon demurs to the first cause of action and moves to strike allegations in the pleading, including Plaintiff’s punitive damages allegations. Both parties filed requests for judicial notice in connection with these matters.

II. Requests for Judicial Notice

Devcon filed two separate requests for judicial notice of the SAC, one in support of its demurrer and one in support of its motion to strike. A court may take judicial notice of a pleading because it is a court record. (Evid. Code, § 452, subd. (d).) With that said, it is unnecessary to take judicial notice of the complaint 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.)

Plaintiff filed a request for judicial notice of Devcon’s demurrer “[p]ursuant to Evidence Code [sections] 451 and 452.” (Req. for Jud. Not. at p. 1:20-23.) Presumably, Plaintiff intended to request judicial notice of the demurrer as a court record pursuant to Evidence Code section 452, subdivision (d). Even so, it is fundamentally unclear why Plaintiff requests judicial notice of the demurrer. 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.)

The Court clarifies for both Plaintiff and Devcon that 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 of a matter, it accepts the matter as true instead of admitting evidence as proof of its truth. (Ibid.) Judicial notice does not function “literally as a command[:] ‘Hey! Judge! Look!’” (Hsu v. Puma Biotechnology, Inc. (C.D.Cal. 2016) 213 F.Supp.3d 1275, 1277.) It is improper to “use judicial notice to get a court’s attention like a businessman who’s running late and trying to whistle down a taxi on a crowded downtown street.” (Ibid.)

For these reasons, the requests for judicial notice filed by Devcon and Plaintiff are DENIED.

III. Demurrer

In Devcon’s demurrer, it cites Code of Civil Procedure section 430.10, subdivision (e) and states Plaintiff’s first cause of action “fails to [ ] state facts sufficient to constitute a cause of action and is uncertain because it fails to identify any specific intentional tort.” (Dem. at p. 1:24-28.) Although that particular subdivision authorizes a demurrer on the ground of failure to state facts sufficient to constitute a cause of action, it does not authorize a demurrer on the ground of uncertainty. Uncertainty is a distinct ground for demurrer set forth in subdivision (f) of Code of Civil Procedure section 430.10. Because it appears Devcon may be conflating these distinct statutory grounds, the Court first provides some clarification before considering whether Devcon substantiates a demurrer on either ground.

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 “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 allegations in the pleading are uncertain, ambiguous, or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).)

With this legal framework in mind, the Court next considers the arguments advanced by Devcon. Devcon argues the first cause of action is uncertain because Plaintiff has repackaged her previous claim for an unspecified intentional tort in a manner that obfuscates whether she is asserting a claim for negligence or an intentional tort. Devcon thereafter argues Plaintiff fails to state a cause of action for intentional infliction of emotional distress.

Devcon’s observation that Plaintiff has simply repackaged allegations is apt. In the previous form pleading, namely the sixth amended complaint, Plaintiff asserted a fourth cause of action for an unspecified intentional tort. Plaintiff purported to set forth the factual basis for her intentional tort claim in an attachment containing several nearly identical paragraphs following a set formula. Each paragraph began with a list of the defendants and a conclusory characterization of their conduct as intentional, despicable, and in conscious disregard for the rights and safety of others, which characterization was followed by a single allegation, such as that she was allowed to walk through an unsafe gate. Many of these paragraphs were essentially identical, differing in wording but not substance.
A different defendant, A & D Automatic Gate Company, demurred to Plaintiff’s intentional tort claim. In ruling on the previous demurrer, the Court observed Plaintiff’s allegations actually appeared to be allegations of negligence, such as premises liability (see, e.g., Alcarez v. Vece (1997) 14 Cal.4th 1149, 1158-59), which she simply characterized as intentional. “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.) The Court explained that Plaintiff, thus, could not convert a negligence claim into some form of intentional tort by merely characterizing conduct as intentional. Plaintiff did not otherwise allege facts sufficient to state some recognized intentional tort claim, such as intentional infliction of emotional distress. Consequently, the Court sustained the demurrer with leave to amend.

Plaintiff chose not to amend the intentional tort claim, which was the fourth cause of action in the previous pleading. But it appears, as Devcon points out, she has essentially taken the very same attachment used for purposes of the fourth cause of action in the previous pleading and identified it as the factual basis for the first cause of action for negligence in the operative SAC.

With respect to Devcon in particular, Plaintiff alleges it was the general contractor hired to design and build the automatic gate system at the building where she was injured. (SAC, ¶ 36.) She claims Devcon “intentionally, recklessly, in conscious disregard for [her] rights and safety, and/or negligently designed, installed, managed[,] and/or built the subject gate. . . and failed to train on how to properly operate the subject gate.” (SAC, ¶¶ 37-38.) Plaintiff also alleges, after reiterating the same conclusory characterization, Devcon 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, ¶¶ 39-40.)

Although Devcon is correct that Plaintiff still combines allegations of negligence with conclusory characterizations of conduct as reckless and intentional, it does not demonstrate this justifies sustaining the demurrer on either the ground of uncertainty or failure to state facts sufficient to constitute a cause of action.

“[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.) Although Plaintiff’s style of pleading may be inartful and disorganized, Devcon does not actually argue and the Court does not find the pleading is so incomprehensible it cannot reasonably respond. In actuality, as Devcon observes, it appears Plaintiff is asserting a claim for negligence and adds conclusory characterizations about its conduct solely for the purpose of seeking punitive damages. Consequently, the pleading is not uncertain.

The remaining issue is whether a negligence claim has been stated. Devcon does not argue Plaintiff fails to allege facts sufficient to state a negligence claim. Instead, it argues Plaintiff does not state a claim for intentional infliction of emotional distress. It is not especially clear why Devcon addresses that particular theory of liability and not negligence. In ruling on the previous demurrer, the Court considered whether Plaintiff stated a claim for intentional infliction of emotional distress because she argued in her opposition that her unspecified intentional tort claim was actually an emotional distress claim. But here, although Plaintiff identifies emotional distress as one of the injuries she suffered, she does not purport to assert a claim for intentional infliction of emotional distress. The allegations about Devcon’s construction of the gate reflect that, as denominated, Plaintiff is asserting a negligence claim. Devcon even states Plaintiff confirmed during the meet and confer process that she was not asserting a claim for intentional infliction of emotional distress.

In light of all of these circumstances, it is abundantly clear Plaintiff is asserting a negligence claim, not a claim for intentional infliction of emotional distress or some other intentional tort. Because Devcon does not demonstrate or even argue Plaintiff fails to state a negligence claim, it does not substantiate its demurrer on the ground of failure to state sufficient facts.

In conclusion, Devcon’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. 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. Devcon moves to strike the exemplary damages attachment in its entirety as well as the related conclusory characterizations of its conduct in paragraphs 11, 12, and 37 through 40 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 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.)

The Court previously explained in connection with A & D Automatic Gate Company’s challenge to Plaintiff’s punitive damages allegations 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 Devcon articulates, Plaintiff does not cure this defect in the operative SAC. Plaintiff still relies on conclusory characterizations in the absence of supporting factual allegations. In opposition, Plaintiff states there are facts to support her claim for punitive damages. But Plaintiff does not actually identify any factual allegation to support her assertion and refers, instead, to the conclusory characterizations of Devcon’s conduct. Consequently, Plaintiff does not plead facts sufficient to support her claim for punitive damages.

Devcon also moves to strike the word “serious” from paragraph 41 of Attachment B on the basis the parties stipulated to striking that word. 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. Incidentally, although Plaintiff does not explicitly object to striking this word, it is not actually apparent she agreed to any such stipulation from the materials presented to the Court. Devcon, thus, does not demonstrate this word 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. Devcon’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 word “serious” in paragraph 41. The Court hereby strikes the exemplary damages attachment as well as the conclusory characterizations in paragraphs 11, 12, and 37 through 40 of Attachment B.