United States District Court, E.D. California
NORA OUSHANA, an individual; and SCARLET KARAMIAN, an individual, Plaintiffs,
LOWE'S COMPANIES, INC.,, a North Carolina corporation; LOWE'S HIW, INC., a California corporation; ELECTROLUX NORTH AMERICA, INC., a North Carolina corporation Defendants.
ORDER GRANTING IN PART DEFENDANT'S MOTION TO
DISMISS ORDER DENYING DEFENDANT'S MOTION TO
Nora Oushana and Scarlet Karamian filed a second amended
complaint on June 15, 2017. Plaintiffs allege causes of
action for (1) general negligence, (2) products liability -
negligence, (3) products liability - strict liability, (4)
fraud - concealment, and (5) breach of implied warranty of
fitness.” Doc. 22 (“SAC”) at 1. Plaintiffs
seek “statutory, compensatory, and punitive
damages.” SAC at 13. Defendants Lowes and Electrolux
move to dismiss the fourth cause of action for fraud and
strike the demand for punitive damages.
following reasons, Defendants' motion to dismiss will be
granted in part and Defendants' motion to strike will be
Installation of the refrigerator and Plaintiffs' injuries
Nora Oushana lives in Turlock, California. SAC at ¶ 7.
Plaintiff Oushana's daughter, Sabrina Oushana, purchased
a refrigerator for her mother from Defendant Lowe's. SAC
at ¶ 8. On August 27, 2014, Plaintiff Scarlet Karamian
came to help Plaintiff Oushana empty her old refrigerator and
fill the new refrigerator upon its arrival. SAC at ¶ 9.
On the same date, two Lowe's employees arrived at
Plaintiff's house in the late morning or early afternoon
to deliver and install the new refrigerator. SAC at ¶
10. The installation took roughly twenty minutes. SAC at
Karamian left Plaintiff' Oushana's house to purchase
lunch for the two. SAC at ¶ 12. While Plaintiff Karamian
was out, Plaintiff Oushana heard a noise coming from the
kitchen “which she has described [as sounding] similar
to a teapot boiling over.” SAC at ¶ 13. Plaintiff
Oushana walked into the kitchen, using her walker, slipped on
water leaking from the refrigerator, and fell to the floor,
hitting her right side. SAC at ¶ 13. After the fall, she
could not get back to her feet. SAC at ¶ 13. While on
the floor, Plaintiff Oushana observed the refrigerator
continue to leak. SAC at ¶ 13.
shortly thereafter, Plaintiff Karamian returned to find
Plaintiff Oushana on the kitchen floor in a pool of water.
SAC at ¶ 14. Plaintiff Karamian was unable to help
Plaintiff Oushana back to her feet. SAC at ¶ 14.
Plaintiff Karamian instead attempted to move the refrigerator
out and unplug it in order to prevent any possible electric
shock to Plaintiff Oushana. In trying to do so, Plaintiff
Karamian injured her lower back. SAC at ¶ 14. Realizing
that she and Plaintiff Oushana needed assistance, Plaintiff
Karamian sought help from Plaintiff's Oushana's
neighbor, Jacob Evanoff. SAC at ¶¶ 14-15. Mr.
Evanoff helped Plaintiff Oushana off of the floor, moved the
refrigerator, and tended to Plaintiffs. SAC at ¶ 15.
same date, Plaintiff's daughter reported the fall and the
leaking refrigerator to Lowe's. SAC at ¶ 16. Several
hours later, Lowe's employees arrived at Plaintiff
Oushana's house, took the leaking refrigerator and
replaced it with a different refrigerator. SAC at ¶ 16.
Plaintiff Oushana indicates that the replacement refrigerator
looked like the same model as the leaking refrigerator. SAC
at ¶ 16.
day of her fall, Plaintiff Oushana was taken to an urgent
care facility in Turlock for treatment. SAC at ¶ 17. In
the weeks following her fall, Plaintiff Oushana continued to
experience pain and weakness on her right side. SAC at ¶
19. In fact, approximately one week after her fall, Plaintiff
Oushana fell again as a result of weakness in her right leg.
SAC at ¶ 19. In the second fall, Plaintiff Oushana
further injured her right arm and leg. SAC at ¶ 19. She
went to the hospital after her second fall. SAC at ¶ 20.
Plaintiff Oushana had a “significant fracture” in
her right arm. SAC at ¶ 21. Plaintiff Oushana's arm
was casted and she was held at the hospital for one week
before being released to a rehabilitation center for three
weeks. SAC at ¶ 21. After discharge from the
rehabilitation center, Plaintiff Oushana received six weeks
of in-home physical therapy. SAC at ¶ 21.
“Plaintiff Oushana's right arm is permanently
disfigured and disabled from the break.” SAC at ¶
Karamian began to suffer back pain after attempting to move
the refrigerator and help Plaintiff Oushana from the floor.
SAC at ¶ 18. She has sought treatment for that pain. SAC
at ¶ 18.
Defendants' prior knowledge regarding defects
allege that “Defendants Lowe's and Electrolux
… were aware of consumer complaints and lawsuits
involving Frigidaire refrigerators” in which it was
alleged that the refrigerators leaked. SAC at ¶ 23.
Plaintiffs further allege that “Defendants concealed
th[o]se facts.” SAC at ¶ 23. Specifically,
Plaintiffs allege that, rather than disclose the defect,
Defendant Electrolux “made claims that they are a
leader in kitchen appliances….” SAC at ¶
24. Further, Defendants Electrolux and Lowe's
“continued to advertise the products as good and
effective products.” SAC at ¶ 25. Finally,
Defendants “failed to recall the product” even
though “it was known to leak.” SAC at ¶ 26.
Proper procedural device for challenging a demand for
move to dismiss Plaintiffs' fraud claim. Plaintiffs'
punitive damages demand is premised upon their fraud claim.
Assuming that the Court will grant their motion to dismiss,
Defendants ask the Court to strike Plaintiff's demand for
punitive damages as “impertinent.” Doc. 27 at 12.
Assuming that there is no proper basis for punitive damages,
a motion to strike is not the proper vehicle to challenge the
sufficiency the demand.
court may strike from a pleading an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter.” Fed. Rule Civ. Proc. 12(f). The Ninth Circuit
has stated that “Rule 12(f) does not authorize district
courts to strike claims for damages on the ground that such
claims are precluded as a matter of law.”
Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970,
974-75 (9th Cir. 2010). Rule 12(f) may not be used to strike
a request for punitive damages. See, e.g. Estate of
Prasad ex rel. Prasad v. County of Sutter, 958 F.Supp.2d
1101, 1128 (E.D. Cal. 2013), Bakersfield Pipe &
Supply, Inc. v. Cornerstone Valve, LLC, 2015 U.S. Dist.
LEXIS 96331, *5, 2015 WL 4496349 (E.D. Cal. July 23, 2015).
The proper vehicle for challenging the sufficiency of a
punitive damages claim is a motion to dismiss under Rule
12(b)(6). However, “where a motion is in substance a
Rule 12(b)(6) motion, but is incorrectly denominated as a
Rule 12(f) motion, a court may convert the improperly
designated Rule 12(f) motion into a Rule 12(b)(6)
motion.” Consumer Solutions Reo, LLC v.
Hillery, 658 F.Supp.2d 1002, 1020-21 (N.D. Cal. 2009).
The motion to strike punitive damages will be considered as
though it was properly brought as a motion to dismiss for
failure to state a claim upon which relief can be granted.
Legal standard for a motion to dismiss for failure to state a
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Where the plaintiff
fails to allege “enough facts to state a claim to
relief that is plausible on its face, ” the complaint
may be dismissed for failure to allege facts sufficient to
state a claim upon which relief may be granted. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007);
see Fed.R.Civ.P. 12(b)(6). “A claim has facial
plausibility, ” and thus survives a motion to dismiss,
“when the pleaded factual content allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009). On a Rule 12(b)(6)
motion to dismiss, the court accepts all material facts
alleged in the complaint as true and construes them in the
light most favorable to the plaintiff. Knievel v.
ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). However, the
court need not accept conclusory allegations, allegations
contradicted by exhibits attached to the complaint or matters
properly subject to judicial notice, unwarranted deductions
of fact or unreasonable inferences. Daniels-Hall v.
National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir.
Plaintiff's Fraud Cause of Action
fourth cause of action alleges that Defendants Lowe's and
Electrolux both fraudulently concealed and/or failed to
disclose when there was a duty to disclose, that defects
existed in the line of Frigidaire brand refrigerators that
caused Plaintiffs damages. Defendants contend that Plaintiffs
have (1) inadequately identified the allegedly fraudulent
conduct attributable to each defendant, instead
inappropriately grouping the two together; (2) failed to
adequately allege facts to satisfy four of the five elements
of their cause of action; and (3) failed to state a claim
with particularity as required by Rule 9(b).
court set out in its prior order, “[t]o be liable for
fraudulent concealment under California law, (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.” Oushana
v. Lowe's Home Centers, LLC, 2017 WL 2417198, *4
(E.D. Cal. June 5, 2017) (quoting Alvarez v. MTC
Financial, Inc., 2017 WL 1861844, *4 (N.D. Cal. May 9,
2017)); Linear Technology Corp v. Applied Materials,
Inc., 152 Cal.App.4th 115, 131 (Cal.Ct.App. 2007). To
state a claim for fraudulent omission, a plaintiff need not
show purposeful suppression or concealment, however, he or
she “must allege the omission of ...