       Filed 4/9/14 Chu v. Glenborough 300 ECR CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                    DIVISION FIVE


LI CHING CHU et al.,
         Plaintiffs and Appellants,
                                                                     A139167
v.
GLENBOROUGH 400 ECR, LLC,                                            (San Mateo County
                                                                     Super. Ct. No. CIV508888)
         Defendant and Respondent.


         The daughter of Li Ching Chu and Robert Ching Liang Hung (Plaintiffs) died after
a fall from an upper floor of the office building where she worked. The coroner ruled the
death a suicide, but Plaintiffs believe their daughter was murdered by coworkers.
Plaintiffs also alleged that dangerous conditions in the office building contributed to her
death, and that the building owner suppressed evidence of the murder. The trial court
sustained demurrers to the causes of action against the building owner and Plaintiffs
appeal. We affirm.
                                               I.       BACKGROUND
         Plaintiffs filed this action individually and as successors in interest to their
deceased daughter, Cindy K. Hung (Hung). In their first amended complaint they alleged
that, from January 2010 until her death, Hung worked for Tribal Technologies (Tribal), a
software development company located in a building at 400 South El Camino Real, San
Mateo (the Building). At approximately 4:45 p.m. on October 21, 2010, Hung’s body
was found on the rooftop of a Building breezeway. Although the deputy coroner deemed
the death a suicide, Plaintiffs alleged that Hung was murdered by Tribal employees who


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beat Hung unconscious, dumped her body in the breezeway, and covered up their role in
the crime by giving false information to the coroner’s office and police investigators.
They sued Tribal and 50 Doe Tribal employees for, inter alia, assault, battery, intentional
infliction of emotional distress, and negligence.
       Respondent Glenborough 400 ECR, LLC (Glenborough) owned and managed the
Building. Plaintiffs sued Glenborough for premises liability based on allegations that it
allowed the breezeway area to become an area attractive to criminal activity, failed to
warn Building invitees of this danger, and failed to use its surveillance capability to
observe the assault of Hung and call for assistance before she died. In addition to
premises liability, Plaintiffs asserted causes of action against Glenborough for wrongful
death and a survival action.
       Plaintiffs made similar allegations in their original complaint, and Glenborough
demurred on the ground Plaintiffs failed to allege facts showing the criminal attack on
Hung was foreseeable to Glenborough. Plaintiffs filed no written opposition, and the trial
court sustained the demurrer with leave to amend. Plaintiffs then filed the first amended
complaint summarized above, and Glenborough demurred on the same ground. Plaintiffs
again failed to file an opposition to the demurrer. Moreover, at the hearing on the
demurrer, Plaintiffs’ counsel conceded “that the building owner does not have the duty to
warn . . . and the harm is not foreseeable.” Plaintiffs’ counsel, however, argued she had
new evidence that Glenborough conspired with Tribal to cover up the murder of Hung.
She said, “They have video tapes. They have security personnel who know what—,” at
which point she was interrupted. The court sustained Glenborough’s demurrer without
leave to amend, but also granted Plaintiffs leave to assert an obstruction of justice claim
against Glenborough in a further amended complaint.
       Ultimately, in a verified third amended complaint, Plaintiffs alleged
Glenborough’s security guards observed the attack on Hung, failed to summon
assistance, falsely claimed to investigators that they knew nothing about what had
happened to Hung, and intentionally shielded the perpetrators from justice. They further
alleged that Glenborough possessed surveillance videotapes of the attack on Hung, but


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refused to provide them to Plaintiffs and falsely denied their existence. Thus, they
alleged, Glenborough had either destroyed or intentionally withheld evidence.
Glenborough demurred, arguing that neither state nor federal law recognized a cause of
action for obstruction of justice or spoliation of evidence. The trial court agreed and
sustained the demurrer without leave to amend. The court then entered a judgment
dismissing the case against Glenborough with prejudice.
                                    II.    DISCUSSION
       Plaintiffs argue the court erred in sustaining demurrers of their causes of action for
premises liability and obstruction of justice and erred in dismissing their case against
Glenborough with prejudice.
       “We review [orders sustaining demurrers] de novo, exercising our independent
judgment as to whether, as a matter of law, the complaint states a cause of action on any
available legal theory. [Citation.] In doing so, we assume the truth of all material factual
allegations together with those matters subject to judicial notice. [Citation.] ‘If the court
sustained the demurrer without leave to amend, as here, we must decide whether there is
a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.]
If we find that an amendment could cure the defect, we conclude that the trial court
abused its discretion and we reverse; if not, no abuse of discretion has occurred.
[Citation.] The plaintiff has the burden of proving that an amendment would cure the
defect. [Citation.]’ [Citation.]” (Ortega v. Contra Costa Community College Dist.
(2007) 156 Cal.App.4th 1073, 1080.)
A.     Dismissal of Premises Liability Claim
       Glenborough argues Plaintiffs forfeited their challenge to the court’s dismissal of
their premises liability claim by failing to file a timely appeal from the November 2012
order that sustained Glenborough’s demurrer to that cause of action. “The sole Order
from which [Plaintiffs] have taken their appeal is that of May 20, 2013, [which]
dismissed the one remaining cause of action against Glenborough for obstruction of
justice.” In fact, Plaintiffs appealed from the “[j]udgment of dismissal after an order
sustaining a demurrer.” Although their July 3, 2013 notice of appeal was premature, as


                                              3
the judgment was not entered until August 2013, we subsequently construed the appeal as
taken from the judgment and denied Glenborough’s motion to dismiss. Because orders
sustaining demurrers are not appealable until a judgment of dismissal is entered,
Plaintiffs’ appeal from the judgment was timely as to both of the court’s orders sustaining
demurrers, i.e., both the November 2012 and May 2013 orders. (See Los Altos Golf &
Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 202; Code Civ.
Proc., § 904.1, subd. (a)(1).)
       We nevertheless agree that Plaintiffs have forfeited their challenge to the dismissal
of the premises liability cause of action for other reasons. Plaintiffs filed no opposition to
either of Glenborough’s two demurrers to that cause of action. At the hearing on the
second demurrer, they expressly conceded that the cause of action was properly
dismissed because a property owner has no duty to warn and the criminal activity that
befell Hung was not foreseeable to Glenborough. They did not argue that they could
allege new facts to support a valid premises liability claim or seek leave to do so.
       On appeal, Plaintiffs argue the premises liability claim should have been sustained
on allegations that Glenborough guards actually observed Hung’s fall but failed to
summon help and then falsely told investigators they had seen nothing.1 Plaintiffs,
however, did not make similar allegations in their original or first amended complaints
and they did not ask the court for leave to amend their complaint to make such allegations
in support of a premises liability claim. Although Plaintiffs made the allegations in their


       1
         Plaintiffs allege on appeal: “When [Hung’s] body fell onto the breezeway of the
Building in broad daylight . . . , several occupants of the Building observed her fall
through the windows of their offices. . . . [T]he Building has a transparent all-glass
exterior. Glenborough’s security personnel stated to investigators that they saw and
heard nothing. As a result, no one called for help and [Hung] was left to die on the
breezeway of the Building.” While the argument is not logical as written—the guards’
statements to investigators (after authorities had responded to the incident) could not
have resulted in the failure of anyone in the Building to call for help—we infer that
Plaintiffs intend to argue that the guards must have observed Hung’s fall yet failed to call
for help and that they later falsely denied to investigators that they had observed the fall.
Plaintiffs made similar allegations in their third amended complaint.


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third amended complaint, by that time the trial court had already sustained the demurrer
to their premises liability claim without leave to amend. Plaintiffs asserted only an
obstruction of justice claim against Glenborough in their third amended complaint, and
they never asked the court to reconsider its dismissal of the premises liability claim. We
ordinarily will not consider an argument first raised on appeal. (Ward v. Taggart (1959)
51 Cal.2d 736, 742.) Plaintiffs’ argument that the premises liability claim should have
been allowed to proceed on the allegations they make on appeal has been forfeited.
       In any event, the court’s ruling on the issue is legally correct. (See Ann M. v.
Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674–675 [commercial landlords
have a duty to tenants and tenants’ employees to “take reasonable steps to secure
common areas [of their property] against foreseeable criminal acts of third parties that are
likely to occur in the absence of such precautionary measures” (italics added)],
disapproved on another ground by Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5;
Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 244, 248 [commercial landlords’
duty to take reasonable action during ongoing criminal activity depends in part on
foreseeability of the harm]; see also id. at p. 249 [because a business “ ‘chooses to have a
security program,’ ” including a roving security guard, does not signify assumption of “a
duty to protect invitees from third party violence”]; Margaret W. v. Kelley R. (2006)
139 Cal.App.4th 141, 158 [“foreseeability . . . is tested by what the defendant knows, not
what the defendant could have or should have learned”].)
B.     Dismissal of Obstruction of Justice Claim
       Plaintiffs also argue the trial court erred in sustaining Glenborough’s demurrer to
their obstruction of justice claim. We again affirm.
       As stated ante, Plaintiffs alleged in their third amended complaint that
Glenborough either destroyed or intentionally withheld surveillance videotapes of the
attack on Hung. Moreover, they alleged that Glenborough’s security guards observed the
attack on Hung but failed to summon assistance and—pursuant to a Glenborough “gag
order” to its employees—falsely claimed to investigators that they knew nothing about
what had happened to Hung, intentionally shielding the perpetrators from justice.


                                             5
Plaintiffs asserted that Glenborough engaged in obstruction of justice in violation of title
18 United States Code sections 1503 and 1510 by “destroying evidence, wrongful
withholding of evidence and information in its possession and disseminating untrue, false
and misleading written and oral statements concerning [Hung’s] murder by Tribal
defendants.”
       Glenborough demurred, arguing: “both a plain reading of the text and also case
law interpreting 18 U.S.C. §§ 1503 and 1510 demonstrate that there is neither an express
nor implied right of private action in either of these sections of Title 18. Further,
California does not recognize any private right of action for obstruction of justice under
state law or under common law.” In opposition, Plaintiffs cited Smith v. Superior Court
(1984) 151 Cal.App.3d 491 (Smith), but Glenborough noted in its reply papers that Smith
had been overruled in Cedars-Sinai Medical Center v. Superior Court (1998)
18 Cal.4th 1 (Cedars-Sinai). Glenborough also wrote that Plaintiffs’ obstruction claim
was based solely on Glenborough’s discovery response stating it was not aware of any
surveillance video of the incident that led to Hung’s death.
       The trial court sustained the demurrer without leave to amend, explaining: “No
private right of action exists that is based on the federal statutes cited . . . . Plaintiff cites
no authority holding that a civil cause of action exists based on interference with a law
enforcement investigation, or that Defendants owed any legally recognized duty of care
to Plaintiffs to allow a criminal prosecution to occur. [Citation.] Finally, no civil cause
of action exists based on incomplete or false responses to interrogatories.”
       On appeal, Plaintiffs premise their obstruction of justice claim solely on
“Glenborough’s refusal to produce evidence in its sole possession,” specifically
referencing surveillance videotapes. That is, Plaintiffs have abandoned their allegations
of destruction of the video recordings and of suppression of information that could be
provided by Glenborough guards who purportedly observed the attack on Hung. As to
their legal theory, Plaintiffs have abandoned reliance on the federal statutes on appeal.
They rely solely on Smith, supra, 151 Cal.App.3d 491 and related cases. In Smith, the
Second District Court of Appeal first recognized a tort cause of action for intentional


                                                 6
spoliation of evidence. (Id. at p. 496.) Unfortunately, they continue to ignore the fact
that Smith was disapproved by the California Supreme Court in Cedars-Sinai, supra,
18 Cal.4th at page 18, footnote 4.
       The Cedars-Sinai court held that “intentional spoliation—that is, intentional
destruction or suppression—of evidence” is not a cognizable tort when it is “committed
by a party to the underlying cause of action to which the evidence is relevant and when
the spoliation is or reasonably should have been discovered before the conclusion of the
underlying litigation.” (Cedars-Sinai, supra, 18 Cal.4th at p. 4.) More pertinent here, the
Supreme Court later held that “no tort cause of action will lie for intentional third party
spoliation of evidence,” that is, “spoliation of evidence relevant to plaintiff’s causes of
action against . . . other defendants.” (Temple Community Hospital v. Superior Court
(1999) 20 Cal.4th 464, 466, 469 (Temple).) Plaintiffs seek to hold Glenborough civilly
liable for withholding surveillance videotapes that Plaintiffs insist are relevant evidence
on their tort claims against other defendants, Tribal and Tribal employees. Temple
clearly establishes that no such cause of action is cognizable in California.
       As Temple explains, Plaintiffs have other remedies if their allegations are true.
“[I]f the third party spoliator is acting at the behest of a party, a negative inference may
be drawn against that party [citations],[2] and the full panoply of discovery sanctions may
apply against the party under certain circumstances. [Citation.] . . . [W]hen spoliation is
committed by a nonparty acting independently, . . . a plaintiff could bring before the jury
the fact that relevant evidence intentionally was destroyed by another, in order to rebut
any contention that the plaintiff’s failure to produce the evidence would support an
inference that the evidence was adverse to plaintiff’s cause. (See Evid. Code, § 412 [“If
weaker and less satisfactory evidence is offered when it was within the power of the party
to produce stronger and more satisfactory evidence, the evidence offered should be
viewed with distrust.”].)” (Temple, supra, 20 Cal.4th at p. 474.) At the time obstruction

       2
         See Evidence Code, section 413 (to determine “what inferences to draw from the
evidence or facts in the case against a party, the trier of fact may consider, among other
things, the party’s . . . willful suppression of evidence relating thereto”).


                                              7
of justice by Glenborough was alleged, Plaintiffs had not even attempted to obtain the
videotapes by way of a motion to compel discovery. The tort claim was neither the
proper nor the only means of seeking redress against Glenborough for alleged
suppression of evidence. The trial court did not err in dismissing the claim.
C.     Dismissal of Claims Against Glenborough with Prejudice
       Finally, Plaintiffs argue the trial court erred by dismissing their claims against
Glenborough with prejudice. They cite Code of Civil Procedure sections 583.410 and
583.420 and California Rules of Court, rule 3.1342, but these statutes and the court rule
apply to dismissals for delay in prosecution. Plaintiffs’ claims against Glenborough were
dismissed for failure to state claims for which relief may be granted. In such a
circumstance, dismissal with prejudice is appropriate. (See Code Civ. Proc., § 581,
subd. (f)(1); Cano v. Glover (2006) 143 Cal.App.4th 326, 329–330.)
                                    III.   DISPOSITION
       The judgment is affirmed. Plaintiffs shall bear Glenborough’s costs on appeal.




                                                  _________________________
                                                  Bruiniers, J.


We concur:


_________________________
Jones, P. J.


_________________________
Simons, J.




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