NATURE OF PROCEEDINGS: Hearing on Defendants’ Demurrer - with Motion to Strike (CCP 430.10)

 

Defendants’ demurrer is sustained. Defendants’ motion to strike is granted in part and denied in party.

 

BACKGROUND

Plaintiffs Afiria Miller and Dowan Bennet filed this action against Biltmore Los Anglese Millenium & Copthrone Hotels, Millenium & Hotels & Resorts, M&C Management Services (USA) INC, Jimmy WU, Encore Group (USA) LLC, WHB Biltmore LLC, and doe defendants 1 through 20, alleging that they suffered bedbug bites while staying at a hotel owned and operated by the defendants.

The causes of action are (1) Battery; (2) Negligence; (3) Intentional Infliction of Emotional Distress; (4) Fraudulent Concealment; (5) Private Nuisance; and (6) Public Nuisance.

 

Defendants WHB Biltmore, LLC and M&C Management Services (USA) INC. (Defendants) demur to the first, third, fourth, fifth, and sixth causes of action and move to strike the demand for punitive damages. Plaintiffs filed an opposition. 

 

LEGAL STANDARD

When considering demurrers, courts read the allegations liberally and in context. Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315. As such, courts assume the truth of the complaint’s properly pleaded or implied factual allegations. Ibid. However, it does not accept as true deductions, contentions, or conclusions of law or fact. Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.

Further, the court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. Code Civ. Proc., § 436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. Id., § 436(b). The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. Id. § 436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. Id. § 437.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”); Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 (“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”). The burden is on the complainant to show the Court that a pleading can be amended successfully. Blank v. Kirwan (1985) 39 Cal.3d 311, 318.

 

ANALYSIS

Demurrer

I. Battery

Defendants argue that Plaintiffs fail to allege facts sufficient to support a claim of battery.

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” So v. Shin (2013) 212 Cal.App.4th 652, 668-669.

First, Defendants argue that a battery requires a physical touching by one person with the person of another. While person-to-person contact can constitute a battery, it is not required. Mount Vernon Fire Ins. Co. v. Busby, 219 Cal. App. 4th 876, 881(“tort of battery generally is not limited to direct body-to-body contact.”).

Next, Defendants argue that battery requires the defendant accomplish the touching using physical force. Defendants cite Gunnel v. Metrocolor Labs (2001) 92 Cal.App.4th 710, 724-725 (Gunnel), which rejected a plaintiff’s battery claim based on his employer’s removal of warning labels from a cleaning solution and false assurance to the plaintiff that the solution was safe to use. Gunnel, supra, 92 Cal.App.4th at p. 723. However, Gunnel concerned criminal battery, which is defined as “‘any willful and unlawful use of force or violence upon the person of another.’” Id. at p. 725 (quoting Pen. Code § 242). There, the issue was “not whether a ‘touching occurred … [but] whether the touching occurred through [the defendant’s] ‘use of force or violence.’” Ibid.

Finally, Defendants argue that Plaintiffs’ allegations do not support the inference that Defendants knew of the presence of the bedbugs in Plaintiffs’ room and fail to allege facts showing that Defendants intended for them to be bitten by bedbugs. The Court agrees.

Plaintiffs fail to plead facts to support the element of intent to harm or offend. Plaintiffs merely stated conclusions. Plaintiffs rely upon conclusory statements such as allegations that Defendants acted intentionally, willfully, and recklessly without facts to support these conclusions. Plaintiffs rely upon conclusions that Defendants “deliberately and recklessly chose not to inspect or otherwise ensure that Plaintiffs’ room was free of Cimex lectularius (“bedbugs”) immediately before Plaintiffs’ stay at the hotel.” Complaint ¶ 26. However, Plaintiffs allege no facts to demonstrate that Defendants were aware of any bed bug infestation in Plaintiffs’ room immediately before Plaintiffs’ stay at the hotel and that despite this awareness, Defendants knowingly allowed Plaintiffs to stay in the bed bug-infested room with the intent to harm or offend the Plaintiffs.

Likewise, the Complaint alleges that “[t]he intent of Defendants, and DOES 1 through 20, inclusive, is satisfied and evident from Defendants, and DOES 1 through 20, inclusive, recklessly failing to warn Plaintiffs of the dangerous bedbug infestation in their room, given Defendants’, and DOES 1 through 20, inclusive, prior knowledge of an infestation. Plaintiffs did not receive any kind of warning or statement from Defendants, and DOES 1 through 20, inclusive, that the Subject Hotel had an infestation of bedbugs and did not regularly change the bedding, bed sheets, pillows, and skirts of the beds or thoroughly check and inspect them for infestations.” Complaint ¶ 54. Plaintiffs further allege that Defendants failed to inspect or clean their room for bedbugs properly, failed to train staff, and chose to assign Plaintiffs a room containing bedbugs. Id. ¶ 56. They also allege that Defendants failed to follow Department of Health rules to ensure sanitary conditions at the hotel. Id. ¶ 59-60. However, these facts support negligence rather than battery.

The legal conclusion that Defendants “did the aforementioned acts with the intent to cause a harmful or offensive contact” does not match the facts alleged in the prior paragraph. See Complaint ¶ 57. Although Plaintiffs are entitled to allege ultimate facts, here, Plaintiffs have alleged specific facts that do not support the conclusion that Defendants acted with intent to cause a harmful contact with Plaintiffs. Accordingly, the demurrer is sustained with leave to amend.

II. Intentional Infliction of Emotional Distress

Next, Defendants demur to the third cause of action for Intentional Infliction of Emotional Distress (IIED). To state an IIED claim, a plaintiff must allege facts showing: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 (citations omitted) (internal quotation marks omitted). “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” Ibid. “In order to avoid a demurrer, the plaintiff must allege with great specificity the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832 (cleaned up).

“Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Id. at p. 903. “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” Smith v. BP Lubricants USA Inc. (2021) 64 Cal.App.5th 138, 147 (citations omitted) (internal quotation marks omitted). “[W]hether conduct is outrageous is ‘“usually” a question of fact.’” Id. at p.148. (quoting Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 356.)

Defendants’ demurrer argues that Plaintiffs have not alleged any facts of an intention of causing, or reckless disregard of the probability of causing emotional distress. In opposition, Plaintiffs argue that they have alleged numerous actions and conduct by Defendants that were outrageous - namely directing employees not to clean or inspect for bedbugs, needlessly heightening Plaintiff’s anxiety and concern, as well as, the fact that “[a]lthough Defendants, and DOES 1 through 20, had prior knowledge of bedbug infestations in their hotel, Defendants, and DOES 1 through 20, failed to eradicate such infestations, including an infestation in the room that Plaintiff was provided” and that “Defendants, and DOES 1 through 20, knew that their hotel had a prior bedbug infestation. Defendants, and DOES 1 through 20, deliberately and recklessly chose to turn a blind eye to this infestation and previous guest complaints” (Complaint, ¶¶ 28, 32.)

These allegations do not constitute extreme and/or outrageous conduct on behalf of Defendants. Plaintiffs allege that the presence of bed bugs is not determined by the cleanliness of the living conditions where they are found. Complaint ¶ 13. Plaintiffs fail to allege the time periods of the earlier bedbug infestation, which Defendants allegedly knew about. Given the heightened pleading requirements for an IIED cause of action, the Court finds that Plaintiffs’ Complaint fails to allege sufficient facts to support an IIED claim. Accordingly, the demurrer is sustained with leave to amend.

III. Fraudulent Concealment

“The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606. The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. As concealment is a species of fraud, it must also be pled with specificity. Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878. However, less specificity is required where the defendant necessarily possesses the information. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Moreover, it is not practical to allege facts showing how, when and by what means something did not happen. Alfaro v. Community Housing Improvement Sys. Planning Assn. (2009) 171 Cal.App.4th 1356, 1384, However, if the concealment is based on providing false or incomplete statements, the pleading must at least set forth the substance of the statements at issue. Ibid.

A complaint alleging fraudulent concealment must allege “(1) the content of the omitted facts, (2) the defendant’s awareness of the materiality of those facts, (3) the inaccessibility of the facts to the plaintiff, (4) the general point at which the omitted facts should or could have been revealed, and (5) justifiable and actual reliance, either through action or forbearance, based on the defendant’s omission.” Rattagan v. Uber Technologies, Inc., 17 Cal. 5th 1, 43-44

Here, Plaintiffs’ claim fails because, as noted above, no facts support Defendant’s prior knowledge of a bedbug infestation. Plaintiffs allege that there are websites where guests can leave reviews. However, they do not include any specific reviews alleging earlier bedbug incidents or alleging that Defendants had read those reviews. Complaint ¶ 30. Because the Compliant only includes an allegation of an unspecified prior infestation, it does not sufficiently meet the heightened pleading standard of a fraud claim. Accordingly, the demurrer to the fraudulent concealment claim is sustained with leave to amend.

IV. Private Nuisance

Defendants argue that Plaintiffs private nuisance claim fails because, as a guest at a hotel, he lacked any interest in land, which would give him standing to bring a private nuisance claim.

Private “[n]uisance liability arises from violation of a duty to another that interferes with the free use and enjoyment of his or her property.” Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1373.) The elements of a private nuisance are: (1) the plaintiff must prove an interference with his use and enjoyment of his property; (2) the invasion of the plaintiff’s interest in the use and enjoyment of the land caused the plaintiff to suffer “substantial actual damage”; and (3) the interference with the protected interest is unreasonable. Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-63. The test for whether the conduct is unreasonable, is “whether reasonable persons generally, looking at the whole situation impartially and objectively would consider [the interference] to be unreasonable.” San Diego Gas & Elec. Co. v. Sup. Ct (1996) 13 Cal.4th 893, 938. The degree of harm is also an objective standard that asks, “what effect would the invasion have on persons of normal health and sensibilities living in the same community?” Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 303.

“‘[A]ny interest sufficient to be dignified as a property right’ will support an action based on a private nuisance…’” Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 416 (quoting Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 125) (internal citations omitted) However, “‘Guests in a hotel, boarders in a boarding house, and roomers or lodgers, so called, are generally mere licensees and not tenants. They have only a personal contract, and acquire no interest in the realty.’” Sloan v. Court Hotel (1945) 72 Cal.App.2d 308, 314. A property right sufficient to bring a claim based on private nuisance “does not inure in favor of a licensee, lodger or employee.” Venuto, supra, 22 Cal.App.3d at p. 125. As such, Plaintiff, as a licensee has not alleged a sufficient property interest to bring a claim for private nuisance. Plaintiffs fail to offer any argument as to how they could correct this defect. Accordingly, the Court sustains the demurrer to the fifth cause of action without leave to amend.

V. Public Nuisance

A public nuisance is a nuisance that simultaneously affects some other larger group of individuals. Civ. Code, § 3480. The necessary elements for public nuisance are: (1) defendant created or permitted a condition to exist that was harmful to health, (2) that condition affected a substantial number of people at the same time, (3) an ordinary person would be reasonably annoyed or disturbed by the condition, (4) the seriousness of the harm outweighs the social utility of defendant’s conduct, (5) that plaintiff suffered harm that was different from the type of harm suffered by the general public, (6) that defendant’s conduct was a substantial factor in causing plaintiff’s harm. CACI 2020.

Here, Plaintiffs fail to allege that the conduction affected a substantial number of people at the same time. Plaintiffs only allege a risk of the bedbugs spreading, which could affect a substantial number of people. Complaint ¶128. As pleaded in the complaint, only Plaintiffs encountered bedbugs in the subject hotel. Accordingly, the demurrer to the sixth cause of action is sustained with leave to amend.

Motion to Strike

Defendants request that the court strike the prayer for punitive damages and portions of paragraphs 26 (in its entirety), 22, 29, 32, 35, 41, 42, 43, 44, 45, 47, 48, 50, 51 (in its entirety), 53 (in its entirety), 55, 56, 57 (in its entirety), 58, 59, 60, 61, 62, 65 (in its entirety), 70, 79, 82 (in its entirety), 84 (in its entirety), 85 (in its entirety), 88, 90, 93 (in its entirety), 98, 102, 104, 110 (in its entirety), 113 (in its entirety), 115, 118, 120, 124, 127.

The motion to strike is moot as to the paragraphs included in the causes of action (¶¶52-131) other than negligence (¶¶66-82).

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice ….” The court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95 held, “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.”

“Malice” is defined in Civil Code § 3294 to mean “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.” Civil Code § 3294(c)(1). As the court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The court further held that “despicable conduct refers to circumstances that are base, vile, or contemptible.” Id. at 725 (citation omitted). Such conduct has been described as “having the character of outrage frequently associated with crime.” Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287 (citation omitted) (internal quotation marks omitted). Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.

A claim for punitive damages may not be based on conclusory allegations of oppression, fraud, or malice but instead must be based on factual allegations that support such a conclusion. See Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1041-1042 (Court of Appeal issued peremptory writ directing trial court to issue order striking plaintiff’s prayer for punitive damages because “[t]he sole basis for seeking punitive damages are … conclusory allegations” which were “devoid of any factual assertions supporting a conclusion [defendants] acted with oppression, fraud or malice”).

A negligence claim generally will not support a claim for punitive damages, as negligence is an unintentional tort, and a negligent party has no desire to cause the harm that results from its conduct, differing from a party who has engaged in willful misconduct and intended to cause harm. Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166-167. Allegations of negligence where injuries might occur but are not probable do not support punitive damages claims. McDonell v American Trust Co. (1955) 130 Cal.App.2d 296, 300; see also Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 12 (evidence of negligence insufficient to show that defendant knew or must have known of the danger).

As pleaded, there are insufficient facts to conclude that Defendants were aware of a likelihood of harm but chose to ignore that risk. There are also no specific facts that would indicate Defendants fraudulently concealed the issue, made misrepresentations to Plaintiffs, or knowingly subjected Plaintiffs to a room with bedbugs. While knowledge of an ongoing issue, prior complaints, and a failure to remedy the issue despite such knowledge could constitute malicious or oppressive behavior, Plaintiffs have provided only speculative and conclusory statements without specific facts to support a finding on either basis. Based on the allegations in the Complaint, it is unclear whether Defendants were aware of any complaints or online reviews about bedbugs. Accordingly, Defendants’ motion to strike is granted, with leave to amend, as to the request for punitive damages concerning Plaintiffs’ negligence claim and denied, as moot, as to all other claims.

 

CONCLUSION

Defendants’ demurrer is sustained with leave to amend as to counts one, three, four, and six, and sustained without leave to amend as to count five. The motion to strike is granted with leave to amend, as to the request for punitive damages with respect to Plaintiffs’ negligence claim and denied, as moot, as to all other claims. Plaintiff has twenty days to amend.