Case Name: Vargas, et al. v. Level 10 Construction, L.P., et al.
Case No.: 17-CV-314119

This is a wrongful death action brought by numerous family members of decedent Jose Luis Delgado Lopez (collectively “Plaintiffs”) against defendants Level 10 Construction, L.P., Level 10 Management, Inc., Level 10 Investments, LLC, Webcor Builders Inc. (“Webcor”), Central Wolfe LLC (“Wolfe”), and Alamillo Rebar, Inc. (“Alamillo”).

According to the first amended complaint (“FAC”), Jose Luis Delgado Lopez (“Decedent”) was employed by Alamillo as an ironworker at a construction site located at 222 North Wolfe Street, Sunnyvale, CA. (FAC, ¶¶ 3, 8.) On the morning of November 15, 2016, Decedent reported to work as usual and went to the top floor of the construction site to trim rebar cables. (Id. at ¶ 14.) To access the cables, Decedent was required to walk onto and stand on an inadequately constructed plywood platform. (Ibid.) The previous day, Level 10 Construction, L.P. and Webcor decided to remove support structures under the plywood platform to expedite construction and save costs, even though company and job site protocol required them to be removed only after Decedent cut the cables. (Id. at ¶ 18.) The platform was 31 inches at its widest width, only 9.5 inches at its narrowest width, and less than an inch thick. (Id. at ¶ 22.) The plywood was poorly maintained and significantly degraded. (Ibid.) Due to the removal of the support and poor condition of the platform, the platform instantly collapsed when Decedent first stepped on it on November 15, causing him to fall to his death. (Id. at ¶ 19.)

All named defendants were involved with the construction at the site. Wolfe owns the real property upon which the site was located. (FAC, ¶ 12.) Alamillo was hired to provide the construction and installation of all rebar and iron reinforcement materials for concrete structures at the site and was acting as a subcontractor. (Id. at ¶ 9.) Webcor designed, engineered, constructed, and secured the plywood platform on which Decedent was working when he died. (Id. at ¶ 10.) Level 10 Construction, L.P. was the general contractor, which had the responsibility to ensure all work performed adhered to relevant safety standards. (Id. at ¶ 11.) Level 10 Management, Inc. is the managing and general partner of Level 10 Construction, L.P. (Id. at ¶ 13.) Jay Paul owns and/or controls Wolfe, Level 10 Management, Inc. and Level 10 Construction, L.P. through the entity Level 10 Investments, LLC. (Ibid.)

The FAC asserts five causes of action for: (1) wrongful death; (2) negligence – survival action; (3) premises liability – wrongful death; (4) premises liability – survival action; and (5) negligent infliction of emotional distress.

Currently before the Court are the demurrer and motion to strike filed by Level 10 Construction, L.P., Level 10 Management, Inc., and Level 10 Investments (collectively “Level 10”) and the motion to strike filed by Wolfe.

I. Level 10’s Demurrer

Level 10 demurs to the fifth cause of action for negligent infliction of emotional distress (“NIED”) on the ground of failure to state sufficient facts to constitute a cause of action.

The fifth cause of action is predicated on the alleged delay in notifying Decedent’s wife, plaintiff Irma Vargas (“Vargas”), of his death. Vargas alleges she first discovered her husband was in an accident after receiving phone calls from relatives the morning of November 15, 2016. (FAC, ¶ 73.) Vargas alleges that after hearing Decedent was in an accident, she called numerous individuals associated with the construction project to find out what happened, and was avoided, put on hold, and not told of his death. (Id. at ¶ 75.) She allegedly had to search for the construction site on her own, and once she discovered it over four hours after first hearing of the accident, she was only then informed her husband had died. (Id. at ¶ 77.) Vargas alleges Level 10 was under a duty to promptly notify family members of worker injuries, and it failed to do so. (Id. at ¶¶ 73, 78.) Vargas pleads that as a result of Level 10’s concealment of Decedent’s death, she suffered fear, extreme hysteria, sadness, and horror due to wondering what happened to him during that period. (Id. at ¶ 79.)
Level 10 contends Vargas fails to state a claim because she did not plead the element of duty. An essential element to a NIED claim is the existence of a duty. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072 (“Burgess”).) “The law of negligent infliction of emotional distress in California is typically analyzed . . . by reference to two ‘theories’ of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.” (Id. at p. 1071.) This distinction is based in the source of the duty owed to the plaintiff. (Id. at p. 1072.) Under the bystander theory, the source of the defendant’s duty arises from the fact he or she was a percipient witness to the injury of another. (Ibid.) In those cases, the plaintiff has no preexisting relationship with the defendant and is not owed a duty of care other than one owed to the general public. (Ibid.) “In other words, bystander liability is premised upon a defendant’s violation of a duty not to negligently cause emotional distress to people who observe conduct which causes harm to another.” (Id. at p. 1073.) A bystander plaintiff may only recover if he or she is closely related to the injured victim, is present at the scene of the injury at the time it occurred, and, as a result, suffers emotional distress in excess of that which a disinterested witness would suffer. (Ibid.) In contrast, the direct victim theory is predicated on an actual relationship existing between the defendant and the plaintiff. (Ibid.) The defendant may be liable based on a direct victim theory if he or she assumes a duty, a duty is imposed on him or her as a matter of law, or a duty arises out of a special relationship between the defendant and the plaintiff. (Ibid.) In that instance, the requirements to assert the existence of a duty based on the bystander theory have no application. (Ibid.)

Level 10 argues Vargas fails to plead a duty under either theory. Level 10 aptly asserts the pleading does not reflect Vargas was a bystander because she admittedly did not witness the injury. (See FAC, ¶¶ 73-78.) Vargas apparently concedes as much as she does not address the bystander theory in opposition and instead focuses on the direct victim theory. As such, Vargas must allege a duty based on the direct victim theory to state a viable NIED claim.

Level 10 insists no duty under a direct victim theory appears on the face of the pleading as Vargas does not allege any existing special relationship between the parties, any facts suggesting it assumed a duty to notify, or that there is a duty to notify arising from a contract, a statute, or common law. Level 10 maintains there is simply no duty to promptly notify an individual of his or her spouse’s death. In support, Level 10 relies on Fluharty v. Fluharty (1997) 59 Cal.App.4th 484 (“Fluharty”).

In Fluharty, the defendant murdered his wife and immediately called his son—the plaintiff—to inform him of what he had done and tell him he was planning on committing suicide. (Fluharty, supra, 59 Cal.App.4th at p. 488.) Accompanied by his wife, the plaintiff drove to the defendant’s home where he saw his deceased mother and his father, who once again threatened suicide. (Id. at p. 489.) The plaintiff was able to prevent his father from committing suicide by distracting him and lunging for the gun, which accidentally fired, slightly injuring his wife. (Ibid.) The plaintiff initiated an action against his father, alleging a claim for NIED on the theory he was a direct victim based on the “defendant’s conduct, including killing [the] plaintiff’s mother, inviting [the] plaintiff to view the scene, attempting to kill himself in [the] plaintiff’s presence, struggling over the shotgun, and discharging it.” (Id. at p. 494.) The trial court rejected these arguments at trial, finding the defendant could not be liable on this theory, and the plaintiff subsequently appealed the judgment. (Id. at p. 489.)

The Court of Appeal affirmed the trial court’s decision, finding the defendant owed no duty to the plaintiff. (Fluharty, supra, 59 Cal.App.4th at p. 494.) The Court of Appeal reasoned that “[i]n the absence of a contractual obligation, the determination whether in a specific case a defendant will be held liable to a third person ‘is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.’” (Ibid., quoting Biakanja v. Irving (1958) 49 Cal.2d 647, 650-651.) Applying those factors to the case before it, the court concluded the defendant did not owe the plaintiff a duty. (Ibid.) In particular, while the court found it is foreseeable that shooting a gun in proximity to someone could result in being shot, it found none of the other factors supported the existence of a duty. (Id. at p. 495.) The court observed the connection between the defendant’s conduct and the injury was suspect because “[h]eartache and emotional pain are an inherent staple of the parent-child relationship” and “emotional trauma . . . . is often the price to be paid for being a member of a close family unit.” (Ibid.) As to the closeness factor, the court stated the closeness could not be inferred solely from the fact the defendant and the plaintiff were family members because, given the facts of the case, one would expect the closeness in the family would be diminished. (Ibid.)

In opposition, Vargas does not discuss Fluharty, but instead maintains that the facts here are analogous to those in Christensen v. Superior Court (1991) 54 Cal.3d 868 (“Christensen”), Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 922 (“Molien”), and Burgess. In Christensen, a class of plaintiffs consisting of family members of deceased individuals initiated an action against mortuary and crematory defendants for the alleged mishandling of the bodies of their deceased relatives. (Christensen, supra, 54 Cal.3d at p. 876.) The plaintiffs asserted a NIED claim, and, at a coordination proceeding, the trial court asked the parties to brief the question of standing based on the allegations in the complaint. (Ibid.) Though the case does not indicate the trial court’s ruling, one party was apparently dissatisfied and appealed it. (Ibid.) The appellate court treated the matter as a demurrer because the briefs addressed the sufficiency of the allegations of the pleading, considered whether the complaint stated a cause of action as to all plaintiffs, and found the plaintiffs had standing to assert a NIED claim. (Ibid.) On review, the Supreme Court held family members of the decedents had standing to sue because the defendants owed them a duty to perform crematory and mortuary services in a dignified manner. (Ibid.) The court stated that the duty was not founded upon them being bystanders, but on the direct relationship between the defendants and the members themselves. (Id. at pp. 886-887.) The court reasoned the defendants existed to relieve bereaved families of the obligation to personally prepare a person’s remains for burial or cremation, and as such, assumed a duty to all those family members. (Ibid.) That assumption of duty created a special relationship obligating the defendants to perform those services in a dignified and respectful manner. (Id. at p. 891.)

In Molien, the hospital and physician defendants improperly diagnosed the plaintiff’s wife with syphilis, which caused his wife to initiate marriage dissolution proceedings because she suspected he had not been faithful. (Molien, supra, 27 Cal.3d at pp. 919-920.) The plaintiff then initiated an action against the defendants, asserting a NIED claim based on the erroneous diagnosis. (Ibid.) The defendants demurred to the complaint, which the trial court sustained. (Id. at p. 920.) The Court of Appeal overturned the trial court’s ruling, holding the plaintiff was a direct victim of the allegedly negligent act because it was reasonably foreseeable that he, in addition to his wife, would suffer the consequences of the misdiagnosis. (Id. at p. 923.) This was largely because the physician had told the wife to inform the plaintiff of the diagnosis as it affected them both. (Ibid.) The court found the connection between the physician and the plaintiff sufficient to plead a preexisting relationship between them. (Ibid.) The lasting principles derived from Molien are that: “(1) damages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact, and (2) a cause of action to recover damages for negligently inflicted emotional distress will lie, notwithstanding the criteria imposed upon recovery by bystanders, in cases where a duty arising from a preexisting relationship is negligently breached.” (Burgess, supra, 2 Cal.4th at p. 1074.)

Last, in Burgess, the plaintiff initiated an action against the obstetrician defendant who delivered her son. (Burgess, supra, 2 Cal.4th at pp. 1069-1070.) During labor, the defendant diagnosed the plaintiff with a prolapsed cord and waited over twenty minutes after the diagnosis to perform emergency surgery. (Id. at p. 1070.) As a result of the delay, the child was deprived of oxygen prior to delivery and suffered permanent brain damage. (Ibid.) The plaintiff then asserted a claim against the defendant for NIED. (Ibid.) The defendant filed a motion for summary judgment on the basis the plaintiff was a bystander and not a direct victim of his negligence, which the trial court granted. (Id. at p. 1071.) The Court of Appeal reversed the ruling, holding the plaintiff was a direct victim rather than a bystander. (Ibid.) Thereafter, the California Supreme Court affirmed the appellate court’s ruling, holding the plaintiff was a direct victim because the defendant’s care was directed to her as well as her child. (Id. at p. 1076.) In support of its conclusion, the court emphasized the emotional connection between a mother and her unborn child and that “the mother’s emotional well-being and the health of the child are inextricably intertwined.” (Ibid.) As a result, the obstetrician’s care was not only directed to the child, but also the mother.

None of the facts in the cases relied upon by Vargas or Level 10 are analogous to the present situation. Fluharty is distinguishable as Level 10 and Vargas are not family members, and the court relied heavily upon the intricacies of familial relationships in its analysis. The cases cited by Vargas are also distinguishable. In Christensen, the defendants assumed a duty that family members would normally undertake, particularly one to handle a person’s remains in a dignified manner, and as such, had a special relationship with them. Vargas does not allege Level 10 assumed any such duty here. Next, in Molien, the connection creating the duty was the physician’s advice to the wife to inform the plaintiff of the diagnosis, thus establishing the element of foreseeability. In contrast, there are no allegations reflecting any connection between Vargas and Level 10. Last, in Burgess, the facts established a physician-patient relationship between the plaintiff and the defendant, which supported the existence of a duty. There are clearly no allegations here that Vargas and Level 10 are in a physician-patient relationship. As such, none of the cases cited by the parties directly establish a duty exists here as a matter of law.

With that said, these cases set forth a framework for determining whether a duty exists. As described above in the discussion of Fluharty, the factors to consider in that determination are “the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him [or her], the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.” (Fluharty, supra, 59 Cal.App.4th at p. 494, quoting Biakanja v. Irving (1958) 49 Cal.2d 647, 650-651; see also Christensen, supra, 54 Cal.3d at pp. 885-886 [discussing substantially same factors]; Burgess, supra, 2 Cal.4th at pp. 1079-1080 [same].)

Here, only one factor clearly weighs in Vargas’ favor, namely that she suffered an injury; she alleges Level 10’s withholding of information as to Decedent’s condition was the exact cause of her emotional distress. (FAC, ¶ 76.) On the other hand, the remaining factors do not necessarily support the existence of a duty to promptly notify. For example, it is not clear based on the pleading that the conduct at issue, i.e. failing to notify Vargas of Decedent’s death, was intended to actually affect her. As to moral blame, the FAC suggests there are reasonable explanations for Level 10’s delay in notifying Vargas of Decedent’s death. For instance, Vargas pleads defendants failed to notify her of the accident “despite calling 911, calling first responders, and notifying senior executives of [each defendant].” (Id. at ¶ 74.) However, it is reasonable that Level 10 would first call 911, first responders, and executives associated with the project before notifying family of Decedent. The pleading similarly does not reflect the remaining factors suggest Level 10 owes a duty to Vargas.

Consequently, Vargas fails to plead sufficient facts reflecting the existence of a duty to promptly notify her of Decedent’s death under either a bystander or direct victim theory. She pleads insufficient facts suggesting Level 10 assumed the duty or that a duty exists based on a special relationship or common law. This conclusion falls in line with other court holdings where there was no duty to notify a family member of an individual’s death. (See, e.g., Aguirre-Alvarez v. Regents of University of California (1998) 67 Cal.App.4th 1058, 1062 [hospital had no duty to notify family member of patient’s death as he was in police custody at time of death]; Jacobsen v. Marin General Hosp. (9th Cir. 1999) 192 F.3d 881, 886 [hospital and donor network had no duty to notify family member of patient’s death and subsequent transplant of organs as body was in coroner’s custody].)

Accordingly, the demurrer to the fifth cause of action on the ground of failure to state sufficient facts to constitute a cause of action is SUSTAINED with 15 days leave to amend after notice of entry of the Court’s signed order on the last of the pleading motions to the FAC to be heard by the Court.

II. Level 10’s Motion to Strike

Level 10 moves to strike Plaintiffs’ allegations of malice and oppression in paragraphs 42 through 45 of the FAC and request for punitive damages in paragraph 4 of the prayer for relief. The allegations refer solely to the second cause of action for negligence.
On a motion to strike portions of a pleading under Code of Civil Procedure section 435, a court may strike out any irrelevant or improper matter inserted in the pleading. (Code Civ. Proc., § 436, subd. (a).) Irrelevant matter includes a demand for judgment requesting relief not supported by the allegations of the complaint. (Code of Civ. Proc., § 431.10, subds. (b), (c).)

Civil Code section 3294, subdivision (a) provides that punitive damages are recoverable where the defendant is guilty of malice, oppression or fraud. In order “[t]o support punitive damages, the complaint . . . must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Cyrus v. Havenson (1976) 65 Cal.App.3d 306, 316-317, internal citations omitted.) Simply pleading the terms malice, oppression or fraud alone is insufficient to support a claim for punitive damages; in other words, such damages cannot be pleaded generally. (Blengen v. Superior Court (1981) 125 Cal.App.3d 959, 963.)

Though Plaintiffs plead Level 10 acted with fraud, malice, and oppression, it is otherwise apparent from the pleading that the request for punitive damages is only predicated on Level 10’s malice and oppression. (See FAC, ¶¶ 42-45.) As stated above, simply pleading a party is entitled to punitive damages because a party acted fraudulently is insufficient. (See Blengen v. Superior Court, supra, 125 Cal.App.3d 959, 963.) Additionally, Plaintiffs do not raise fraud as a basis for their request in their opposition and instead only focus on malice and oppression.

Malice is conduct intended by a defendant to cause injury to the plaintiff or despicable conduct which is carried on by a defendant with a willful and conscious disregard of the rights and safety of others. (Civ. Code, § 3294, subd. (c)(1).) Oppression is despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ. Code, § 3294, subd. (c)(2).) Despicable conduct is defined as conduct so vile, base, or loathsome it would be looked down upon by ordinary people. (Mock v. Miller’s Mut. Ins. Co. (1992) 4 Cal.App.4th 306, 331.)

Level 10 contends the pleading reflects it only acted with mere negligence, which does not support an award for punitive damages, and that the allegations do not demonstrate it acted with either an intent to injure or a conscious disregard for Decedent’s safety.

This argument is well-taken as the pleading does not reflect Level 10 acted with conscious disregard for Decedent’s safety. To plead a defendant acted with conscious disregard for the safety of another for the purpose of malice, a plaintiff must allege the defendant: (1) was aware of the probable dangerous consequences of its conduct; and (2) willfully and deliberately failed to avoid those consequences. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.) The purported malicious act must be performed with knowledge that harm to others was substantially certain or at least highly probable. (Schroeder v. Auto Driveaway (1974) 11 Cal.3d 908, 922.) Plaintiffs fail to plead facts meeting this standard. They allege Level 10 decided to remove the plywood support the day before the accident to expedite construction and save costs, even though California law and company protocol dictate it should not have been removed until after Decedent performed his work. (FAC, ¶ 18.) Plaintiffs allege Level 10 knew Decedent would have to perform his work on the unsupported platform, and that an injury could occur. (Id. at ¶¶ 42-46.) These allegations do not suggest that Level 10 knew harm to Decedent was substantially certain based on the removal of the platform support; at most, they reveal gross negligence.

Plaintiffs’ arguments do not support a contrary conclusion. Plaintiffs insist significant evidence exists demonstrating Level 10 had knowledge of unsafe conditions and refused to act, pointing to numerous extrinsic facts described in their attorney’s declaration filed in opposition to this motion. However, extrinsic evidence cannot be examined in ruling on a motion to strike. (See Code Civ. Proc., § 437, subd. (a).) As such, the Court will not consider that evidence in ruling on this motion. Plaintiffs additionally maintain that punitive damages are permitted for negligent survival claims under Code of Civil Procedure section 377.34, which provides that a plaintiff in a survival action may recover punitive damages if the decedent would have been entitled to recover them. This argument is non-responsive to Level 10’s argument. Level 10 does not contend Plaintiffs are not entitled to punitive damages because the request is predicated on a survival claim; rather, they assert Plaintiffs fail to adequately plead malice and oppression. In addition, while this statute does entitle Plaintiffs to seek an award of punitive damages, it does not obviate the need to adequately plead entitlement thereto; it simply provides that they may be entitled to an award of punitive damages.

In light of the above, Level 10’s motion to strike is GRANTED with 15 days leave to amend after notice of entry of the Court’s signed order on the last of the pleading motions to the FAC to be heard by the Court. Paragraphs 42 to 45 of the FAC and paragraph 4 of the prayer for relief are hereby stricken.

III. Wolfe’s Motion to Strike

Wolfe moves to strike: (1) paragraph 70 of the FAC and paragraph 4 of the prayer for relief, wherein Plaintiffs request an award of punitive damages; and (2) paragraphs 53 and 62 of the FAC, wherein Plaintiffs allege recklessness supporting their request for punitive damages. Paragraphs 62 and 70 appear in the fourth cause of action, which is the only cause of action asserted against Wolfe that may entitle Plaintiffs to an award of punitive damages. Paragraph 53 appears in the third cause of action, which is not a basis for Plaintiffs’ request for punitive damages.

As stated above, a court may strike out any irrelevant or improper matter inserted in the pleading, including an unsupported demand for relief. (Code Civ. Proc., §§ 431.10, subds. (b), (c), 436, subd. (a).) To plead entitlement to an award of punitive damages, a plaintiff must allege ultimate facts of the defendant’s oppression, fraud, or malice. (Cyrus v. Havenson, supra, 65 Cal.App.3d 306, 316-317.) Plaintiffs allege Wolfe engaged in despicable conduct as it knew there were defective buildings on site, the construction was proceeding at a fast pace, and an accident was likely to occur. (FAC, ¶ 67.)

Wolfe advances the same argument as Level 10 did relative to its motion to strike, asserting Plaintiffs fail to adequately plead it acted with malice and oppression. For the same reasons stated above, Plaintiffs fail to allege they are entitled to an award of punitive damages. While this conclusion supports striking paragraphs 62 and 70 of the FAC and paragraph 4 of the prayer for relief, it does not support striking paragraph 53 of the FAC. Paragraph 53 alleges Wolfe acted recklessly and negligently as a property manager; it does not request an award of punitive damages. It otherwise does not allege Wolfe acted with malice or oppression. In addition, as stated above, paragraph 53 is alleged in the body of the third cause of action, which is not a basis for Plaintiffs’ request for punitive damages. As such, there is no basis for striking paragraph 53 of the FAC.

For the foregoing reasons, Wolfe’s motion to strike is GRANTED IN PART and DENIED IN PART. The motion is GRANTED with 15 days leave to amend after notice of entry of the Court’s signed order on the last of the pleading motions to the FAC to be heard by the Court, to the extent Wolfe seeks to strike paragraphs 62 and 70 of the FAC and paragraph 4 of the prayer for relief. The motion is DENIED to the extent Wolfe seeks to strike paragraph 53 of the FAC. Paragraphs 62 and 70 of the FAC and paragraph 4 of the prayer for relief are hereby stricken.

The Court will prepare the order.