Regarding the allegations contained in the IIED claim, the FAC provides: 

“41. Defendants engaged in extreme and outrageous conduct in letting a metal gate in the front of ELADC’s premises fall into, and remain in, disrepair, especially given repeated actual notice from Plaintiff, of the defect, risk and danger to invitees and/or licensees like Plaintiff.  

42. Defendants intended to cause Plaintiff severe emotional distress in that they had actual 

knowledge from Plaintiff of the likelihood of injury to Plaintiff and that emotional distress may result, and consciously disregarded that likelihood. 

43. Plaintiff suffered and continues to suffer severe emotional distress. 

44. Defendants’ reckless, willful, and malicious conduct was a substantial factor in causing Plaintiff’s severe emotional distress.” 

(FAC at ¶¶ 41-44.)   

The allegations that defendants, which includes UWW, knew the metal gate was defective or in a state of disrepair, such that it eventually fell upon Plaintiff, does not constitute outrageous conduct.  Moreover, there are no allegations showing UWW, whose role is alleged to be the owner of the premises, intended to cause any emotional distress to Plaintiff. The FAC merely alleges in a conclusory manner that Plaintiff suffered severe emotional distress, which is insufficient to meet the high bar to allege severe emotional distress.  (See e.g., Pittman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047 [mere allegation that plaintiff suffered shame, humiliation and embarrassment without further factual explanation fails to state claim for intentional infliction of emotional distress].) Further, Plaintiff’s allegation that defendants, which includes UWW, exhibited a reckless disregard for Plaintiff’s safety by failing to repair the gate is both conclusory and insufficient. Reckless conduct does not eliminate the requirement of conduct directed toward Plaintiff with the calculated cause to induce distress. (Christensen v. Superior Ct. (1991) 54 Cal. 3d 868, 904 [“The requirement that the defendant's conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury.”] There are no allegations that UWW allowed the gate to remain in disrepair with the aim of it falling upon Plaintiff, and that UWW deliberately calculated for the gate to remain dysfunctional for the purposes of inducing distress upon Plaintiff. The conduct must exceed “all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.” (Christensen, supra, 54 Cal. 3d 868 at 905.) Based on the factual allegations of the FAC and Plaintiff’s opposition to the motion, this is clearly an action premised on negligence for failure to timely fix the gate, and not on any express goal by UWW, as the alleged property owner, to deliberately harm Plaintiff with a gate.  

Accordingly, UWW’s demurrer to the third cause of action for IIED is SUSTAINED.   

III. Motion To Strike  

UWW moves to strike allegations of malicious, oppressive, and despicable conduct, and punitive damages. Because the Court sustained the demurrer to the third cause of action without leave to amend, UWW seeking to strike Paragraphs 41-42 and 45 of the FAC are moot. Thus, the remaining portions that UWW moves to strike are the following: 

1. Page 5, ¶ 26, General Allegations; 

2. Pages 6-7, ¶ 33, First Cause of Action Negligence; 

3. Page 8, ¶ 39, Second Cause of Action Premise Liability; 

4. Page 10, number 2, Prayer For Relief. 

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper.  (CCP §§ 435; 436(a).)  Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders.  (CCP § 436(b).)  A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer.  (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).)  In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers.  (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.)  The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.”  (CCP § 436.)    

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . .” “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.  “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.  Finally, “fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.  (Civil Code §3294.) 

Malice has long been interpreted to mean that malice in fact, as opposed to malice implied by law, is required.  Malice in fact may be proved under § 3294 either expressly (by direct evidence probative on the existence of hatred or ill will) or by implication (by indirect evidence from which the jury may draw inferences).  Thus, it has been held that the “malice” required by §3294 implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others.  Where the defendant’s wrongdoing has been intentional and deliberate and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action “punitive” or “exemplary” damages.  Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.  (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)  Moreover, conclusory allegations are not sufficient to support a claim for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)    

Here, the third cause of action for IIED has been sustained without leave to amend. Consequently, the Court will evaluate whether the remaining allegations and causes of action against UWW are sufficient to support a request for punitive damages against them.  The remaining causes of action for negligence and premises liability against UWW is premised on a failure to inspect and maintain the metal gate on the premises, such that it fell into a state of disrepair and harmed Plaintiff. (FAC ¶¶ 29-31, 35-37.) The FAC’s allegations do not rise to the level of malice, fraud, or oppression, as defined by the Code. In order to plead punitive damages, Plaintiff must plead allegations of fraud, malice, or oppression with sufficient particularity.  (Hilliard v. AH Robbins Co. (1983) 148 Cal.App.3d 374, 392.)  This requires Plaintiff to allege sufficient facts to support conclusory allegations, which Plaintiff has not done.  (Brousseau, 73 Cal.App.3d at 872 [“the second count's conclusory characterization of defendant's conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ ...”].) Where a claim sounds in negligence, a plaintiff must demonstrate conduct that goes beyond gross negligence for punitive damages. Under California law, conduct which may be described as unreasonable or negligent generally does not satisfy the highly culpable state of mind warranting punitive damages. (In re Yahoo! Inc. Customer Data Sec. Breach Litig. (2018) 313 F. Supp. 3d 1113.) 

Accordingly, UWW’s motion to strike is GRANTED.    

IV. Conclusion 

UWW’s motion to strike portions of the FAC and punitive damages is GRANTED and the demurrer to the third cause of action for IIED is SUSTAINED. Plaintiff is given 20 days leave to amend.  

PLEASE TAKE NOTICE: 

Dated this 5th day of March 2024