Case Number: NC060708 Hearing Date: January 15, 2019 Dept: S27

INTRODUCTION

In this consolidated action, Defendant Linik Corp. (“Linik”) demurs to the 3rd, 4th and 5th causes of action in Plaintiff Margaret Williams’ 3rd Amended Complaint:

1. Breach of Contract

2. Breach of Covenant of Good Faith

3. Negligence – Premises Liability

4. Retaliation (FEHA)

5. Strict Liability – Ultra-Hazardous Activity

6. Assault

7. Battery

8. Public Nuisance

9. Intentional Infliction of Emotional Distress (“IIED”)

6. Negligent Infliction of Emotional Distress (“NIED”)

Linik also moves to strike the prayer for punitive damages and associated allegations of fraud, malice and oppression.

Although the notice indicates the demurrer is to the 3rd, 4th and 5th causes of action, in substance the demurrer challenges the claims for assault, battery, and IIED which are causes of action 6, 7, and 9 (See 3rd

Amended Complaint filed on July 11, 2018). Plaintiff uses the same numbering in her opposition for reasons the court doesn’t understand. The court overlooks the discrepancy pursuant to CCP §475. Plaintiff is not prejudiced

because the opposition reflects she understands which causes are subject to demurrer.

ALLEGATIONS

In 2006 Plaintiff Margaret Williams contracted with the Long Beach Unified School District (“LBUSD”) to serve as “Facilities Consultant in charge of overseeing environmental compliance with LBUSD construction sites.” In 2013 she entered a second contract with LBUSD to provide “project management and planning consulting services for the facilities development and planning branch.”

One project was the site of the Newcomb Academy. Linik was engaged by LBUSD as Construction Supervisor.

In the lead case, Plaintiff sues LBUSD.

In this consolidated complaint she brings suit against Linik as well as the general contractor, Pinner Construction Co., and a sub-contractor, Howard Contracting, Inc.

Plaintiff regularly visited the Newcomb site during construction to perform her services.

Plaintiff alleges Pinner and Howard (not Linik) “brought unapproved contaminated CAB on the site.” CAB stands for “crushed aggregate base.” The complaint alleges that the presence of CAB violated “environmental import policy and contract specifications, as well as governing environmental safety laws and regulations.”

Plaintiff contends Linik was more than just a sub-contractor. She alleges that Linik was charged “with representing and protecting LBUSD’s interest at the site and with supervising Pinner and Howard.”

Plaintiff in her role as manager of environmental compliance issued a directive to Linik to have the CAB removed. Linik allegedly ignored this directive and the CAB remained on site for two years.

Throughout 2013 and 2014 Plaintiff attempted to resolve “the situation” through discussions with Linik and LBUSD. The “issue” was not resolved.

In March, 2015 convinced Pinner to remove the CAB, but there “was a lack of proper environmental controls and a lack of fugitive dust control at the site.”

Paragraph 19 discloses that the CAB was “arsenic impacted.”

Plaintiff “attempted to mandate” the defendants to “create site conditions that were going to be protective of human health.”

On May 4, 2015, Plaintiff’s assistant visited the Newcomb site and was surprised to observe that arsenic contaminated material had already been excavated and dumped on a stockpile.” This allegedly was in violation of LBUSD environmental import/export and other contractual specifications. On May 5, 2015 a second excavation was brought onto the site by Howard and stockpiled.

On June 1, 2015 the second stockpile was scheduled “for loading.” Plaintiff was present and discovered there “were no dust control provisions in place.”

On June 1 – 4, 2015 Plaintiff came into contact with the CAB, arsenic contaminated soil and dust particles containing arsenic.

Plaintiff suffered arsenic poisoning.

ARGUMENT

6th Cause of Action – Assault

Linik contends Plaintiff cannot satisfy the element on intent to cause harmful or offensive contact necessary for a claim of assault. Plaintiff alleges the conduct was willful and malicious, but not that it intended to cause a harmful or offensive contact.

Plaintiff responds that she has used the exact language set forth in the court’s prior ruling. That is not a persuasive argument. Only one ground is necessary to sustain a demurrer. It does not mean that other grounds are not well-taken. In any event, a court is not bound by its own interim orders.

Plaintiff further contends that pleading the conclusion of “willful disregard” satisfies the element of intent. It does not. Plaintiff distinguishes between general and specific intent arguing that there need only be intent to “do the act.” The act of leaving CAB on the premises is only assaultive if the contents are known to be dangerous. Linik did not bring the CAB onto the premises. Failure to remove it is not an assault.

Plaintiff may have been apprehensive of a contact with the dust, but that does not mean Linik intended to cause a harmful or offensive contact.

The demurrer to the 6th cause of action is sustained without leave to amend.

7th Cause of Action – Battery

Linik did not cause the harmful contact. Unless Plaintiff can persuade the court otherwise, the demurrer will be sustained without leave to amend.

9th Cause of Action – IIED

To satisfy the elements of this tort a Plaintiff must plead extreme and outrageous conduct, sometimes defined as conduct so extreme so as not to be tolerated in a civilized society. It is not Plaintiff’s characterization of the conduct, but the conduct itself which is material. The court does not believe the conduct alleged rises to this level because Linik did not bring CAB onto the premises and the failure to have it removed at the speed Plaintiff would have liked does not reach the level of extreme and outrageous.

The court will sustain the demurrer without leave to amend.

Punitive Damages

Linik is correct that “malice” as defined in CC §3295 requires “despicable” conduct as well as a conscious disregard of Plaintiff’s rights and safety. For the same reason the demurrer to IIED is sustained, the court will grant the motion to strike without leave to amend. The facts as against Linik do not rise to “despicable.”

Linik will be ordered to file an answer within 20 days unless Plaintiff persuades the court to allow amendment of the battery claim.