Case Number: BC530184 Hearing Date: February 13, 2015 Dept: A
Conroy v Otis Elevator Co.

PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES
DEFENDANTS’ MOTIONS TO ATTACK PLEADINGS

Calendar: 1
Case No: BC530184
Date: 2/17/15

RELIEF REQUESTED:
1. Plaintiff’s Discovery Motion
Order compelling Defendant to serve further responses to form interrogatories, special interrogatories, requests for production, and requests for admission.

2. Defendant, CBRE, Inc.
Demurrer to Fifth Cause of Action
Strike portions seeking punitive damages

3. Motion of Defendant, Otis Elevator
Strike portions seeking punitive damages

DISCUSSION:
This case arises from the Plaintiff’s claim that she suffered personal injuries when she tripped and fell while exiting an elevator that the Defendants negligently owned or maintained. The Plaintiff claims that the elevator contains a defect because it had a “dangerous propensity” in that it would fail to ensure that the elevator’s floor was level with the destination floor when the doors opened.

This hearing concerns the following matters:

1) the Plaintiff’s unitary motion in which she seeks orders compelling the Defendant to serve further responses to her 1) form interrogatories, 2) special interrogatories, 3) requests for production, and 4) requests for admissions;
2) the demurrer and motion to strike of Defendant, CBRE, Inc.; and
3) the motion to strike of Defendant, Otis Elevator.

1. Plaintiff’s Motion to Compel Further Responses
Plaintiff’s motion should be denied because it has improperly seeks several types of relief into a single motion, i.e., it seeks discovery orders regarding interrogatories, requests for production, and requests for admission in a single motion. This is the first ground to deny the motion.

Further, the Plaintiff’s motion is untimely. The Plaintiff seeks relief under CCP sections 2030.300, 2031.310, and 2033.290. Under sections 2030.300, 2031.310, and 2033.290, a propounding party waives any right to compel a further response unless the party seeks relief within 45 days after the response or supplemental response was served, or on or before any specific later date to which the propounding party and the responding party have agreed in writing. Failure to timely move to compel within the specified period constitutes a waiver of any right to compel a further response. Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410. The time period is mandatory and jurisdictional in the sense that it renders the Court without authority to rule on motions to compel other than to deny them. Id.
The Plaintiff did not address this jurisdictional issue in her papers. The Plaintiff’s motion includes the responses that the Defendant served by mail on May 27, 2014 in untabbed exhibits F, G, H, and I. The service by mail extended to the time for the Plaintiff to seek an order compelling further responses by five days. Accordingly, the Plaintiff had until Wednesday, July 16, 2014, to file and serve a motion to compel further responses. The Plaintiff did not file a motion within this time period.
Instead, the Plaintiff filed her motion on August 12, 2014, which was 77 days after the Defendant served its responses. The Plaintiff’s motion does not address the time requirement, does not offer any basis to find that her motion is timely, and does not demonstrate that the Court has jurisdiction to grant the requested relief. The declaration of the Plaintiff’s attorney, Maggie Simoneaux-Cuaso, does not include any facts that demonstrate that the motion is timely. A review of the exhibits reveals no evidence that the parties agreed in writing to extend the time to file the motion to a specific date. Since the Plaintiff’s motion was filed outside of the specific time period, the Plaintiff waived the right to seek further responses and the Court is without authority to rule on the motion other than to deny it.

Therefore, the Court will deny the Plaintiff’s discovery motion because it improperly seeks several types of relief in a single motion and it is untimely.

2. Motions of Defendant, CBRE, Inc.
The Defendant has filed a demurrer to the fifth cause of action and a motion to strike the claim for punitive damages.

a. Demurrer to Fifth Cause of Action for Fraudulent Concealment
The Defendant argues that there are no allegations that indicate that the Defendant concealed any information from the Plaintiff. The elements of the second cause of action for fraudulent concealment are the following:

1) the defendant must have concealed or suppressed a material fact,
2) the defendant must have been under a duty to disclose the fact to the plaintiff,
3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff,
4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and
5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.
Lovejoy v. AT&T Corp. (2004) 119 Cal. App. 4th 151, 157-158.

Facts constituting each element of fraud must be alleged with particularity; the claim cannot be saved by referring to the policy favoring liberal construction of pleadings. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.

The Plaintiff’s fifth cause of action includes no particular facts regarding the Defendant, CBRE, Inc., e.g., allegations showing that CBRE, Inc., concealed a material facts, that CBRE, Inc. had a duty to disclose the material fact to the Plaintiff, or that CBRE, Inc., intentionally concealed the facts with the intent to defraud the Plaintiff. Instead, the Plaintiff alleges legal conclusions about all the Defendants, e.g., that the Defendants fraudulently concealed the true defective nature of the elevator from the Plaintiff. This lack of particularity is grounds for a demurrer to the fraudulent concealment cause of action.

Therefore, the Court will sustain the demurrer to the fifth cause of action.

It is not apparent that the Plaintiff can correct these defects by amendment. The Plaintiff claims that the Defendants intentionally concealed the “true nature” of their elevator for the purpose of inducing the Plaintiff to act. The Plaintiff’s opposition offers no basis to find that she can add particular facts that indicate that CBRE, Inc., knew who the Plaintiff was, knew that she would be on the elevator, intended that she ride the elevator, had a duty to disclose any information to the Plaintiff, or that it concealed any information with the intent to defraud the Plaintiff. Further, there are no particular facts that identify any motive for the Defendant to engage in this alleged fraudulent conduct.
Accordingly, the Court will not grant leave to amend because it is not reasonably possible for the Plaintiff to correct the defects and plead that CBRE, Inc. had a fraudulent intent to conceal information to induce the Plaintiff into riding the elevator.

b. Motion to Strike
The Defendant requests that the Court strike the portions that seek punitive damages from the First Amended Complaint. A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255.
Civil Code section 3294 authorizes a plaintiff to obtain an award of punitive damages when there is clear and convincing evidence that the defendant engaged in malice, oppression, or fraud. Section 3294(c) defines the terms in the following manner:

1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

In addition, when the punitive damages are sought against an employer, Civil Code section 3294 requires the plaintiff to establish the following:

1) the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized;
2) the employer ratified the wrongful conduct for which the damages are awarded, or
3) the employer was personally guilty of oppression, fraud, or malice.

With respect to a corporate employer, section 3294 requires that the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

A claim for punitive damages cannot be pleaded generally and allegations that a defendant acted “with oppression, fraud and malice” toward plaintiff are insufficient legal conclusions. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.

The Plaintiff’s First Amended Complaint does not indicate which causes of action seek the remedy of punitive damages. A review of each cause of action reveals no claim for punitive damages in any of them.
Instead, the Plaintiff’s First Amended Complaint includes a separate section titled “Claim for Punitive Damages”. This is improper because punitive damages are a remedy and must be sought in a cause of action that includes the allegations showing that the Plaintiff is entitled to an award of punitive damages. Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 163-164 (finding that there is no cause of action for punitive damages, that punitive damages are remedies available to a party who can plead and prove the facts and circumstances set forth in Civil Code section 3294, and that punitive damages are merely incident to a cause of action, and can never constitute the basis thereof). Since punitive damages are incidental to a cause of action, the Plaintiff has not alleged facts that demonstrate she is entitled to punitive damages because she did not include the claim for punitive damages in any of her causes of action. This is the first ground to grant the Defendant’s motion to strike.
Further, the Defendant, CBRE, Inc., is a business entity which can act only through its employees. As noted above, in order to obtain punitive damages against these entities, Civil Code section 3294 requires that there be additional allegations, i.e., that an officer, director, or managing agent of the business entity 1) had advance knowledge of the unfitness of the employees who engaged in the conversion, 2) ratified the conversion, or 3) was personally guilty of the conversion. There are no allegations regarding CBRE, Inc. that satisfy this requirement, e.g., allegations that identify the officer, director, or managing agent involved in the conduct alleged by be grounds for an award of punitive damages. This is the second ground to grant the Defendant’s motion to strike.

Therefore, the Court will grant the motion to strike because the Plaintiff does not allege sufficient facts to support a claim for punitive damages against the Defendant, CBRE, Inc.

A review of the Plaintiff’s allegations reveal that they consist of legal conclusions. Further, the Plaintiff’s opposition makes no effort to demonstrate the manner by which she could correct these numerous defects by amendment. At the hearing, the Court will make an inquiry to determine if the Plaintiff can amend the defects. Ordinarily, in these circumstances, the court does not grant leave to amend; Plaintiff can file a motion for leave to amend when she obtains actual facts that support a claim for punitive damages.

3. Motion of Defendant, Otis Elevator Co.
The Defendant requests that the Court strike the portions that seek punitive damages from the First Amended Complaint. A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages. Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255.
Civil Code section 3294 authorizes a plaintiff to obtain an award of punitive damages when there is clear and convincing evidence that the defendant engaged in malice, oppression, or fraud. Section 3294(c) defines the terms in the following manner:

1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

In addition, when the punitive damages are sought against an employer, Civil Code section 3294 requires the plaintiff to establish the following:

1) the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized;
2) the employer ratified the wrongful conduct for which the damages are awarded, or
3) the employer was personally guilty of oppression, fraud, or malice.

With respect to a corporate employer, section 3294 requires that the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

A claim for punitive damages cannot be pleaded generally and allegations that a defendant acted “with oppression, fraud and malice” toward plaintiff are insufficient legal conclusions. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.

The Plaintiff’s First Amended Complaint does not indicate which causes of action seek the remedy of punitive damages. A review of each cause of action reveals no claim for punitive damages in any of them.
Instead, the Plaintiff’s First Amended Complaint includes a separate section titled “Claim for Punitive Damages”. This is improper because punitive damages are a remedy and must be sought in a cause of action that includes the allegations showing that the Plaintiff is entitled to an award of punitive damages. Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 163-164 (finding that there is no cause of action for punitive damages, that punitive damages are remedies available to a party who can plead and prove the facts and circumstances set forth in Civil Code section 3294, and that punitive damages are merely incident to a cause of action, and can never constitute the basis thereof). Since punitive damages are incidental to a cause of action, the Plaintiff has not alleged facts that demonstrate she is entitled to punitive damages because she did not include the claim for punitive damages in any of her causes of action. This is the first ground to grant the Defendant’s motion to strike.
Further, the Defendant, Otis Elevator Co., is a business entity which can act only through its employees. As noted above, in order to obtain punitive damages against these entities, Civil Code section 3294 requires that there be additional allegations, i.e., that an officer, director, or managing agent of the business entity 1) had advance knowledge of the unfitness of the employees who engaged in the conversion, 2) ratified the conversion, or 3) was personally guilty of the conversion. There are no allegations regarding Otis Elevator Co. that satisfy this requirement, e.g., allegations that identify the officer, director, or managing agent involved in the conduct alleged by be grounds for an award of punitive damages. This is the second ground to grant the Defendant’s motion to strike.

Therefore, the Court will the motion to strike because the Plaintiff does not allege sufficient facts to support a claim for punitive damages against the Defendant, Otis Elevator Co.

A review of the Plaintiff’s allegations reveal that they consist of legal conclusions. Further, the Plaintiff’s opposition makes no effort to demonstrate the manner by which she could correct these numerous defects by amendment. At the hearing, the Court will make an inquiry to determine if the Plaintiff can amend the defects. Ordinarily, the court will not grant leave to amend; Plaintiff can file a motion for leave to amend when she obtains actual facts that support a claim for punitive damages.

RULING:
1. Plaintiff’s Discovery Motion
Deny motion to compel further responses.

2. Pleading and motion of Defendant, CBRE, Inc.
Sustain demurrer to Fifth Cause of Action without leave to amend.
Grant motion to strike without leave to amend.

3. Motion of Defendant, Otis Elevator
Grant motion to strike without leave to amend.