Judge: Andrew E. Cooper, Case: 23CHCV00146, Date: 2024-11-05 Tentative Ruling

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Case Number: 23CHCV00146    Hearing Date: November 5, 2024    Dept: F51

DEMURRER WITH MOTION TO STRIKE

Demurrer and Motion to Strike Filed: 8/29/24

MOVING PARTY: Defendant Apple Nine Hospitality Management, Inc. (“Moving Defendant”)

RESPONDING PARTY: Plaintiff Monica Fryer (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: Moving Defendant demurs to the first, third, fourth, and sixth causes of action in Plaintiff’s complaint. Moving Defendant also moves to strike references to punitive damages and attorney fees from Plaintiff’s complaint.

TENTATIVE RULING: The unopposed demurrer is overruled as to Plaintiff’s first, fourth, and sixth causes of action, and sustained as to Plaintiff’s third cause of action, with 20 days leave to amend. The motion to strike is denied as to Plaintiff’s references to punitive damages and granted as to Plaintiff’s prayer for attorney fees with 20 days leave to amend.

ANALYSIS

This is a habitability action in which Plaintiff alleges that that on 1/18/21, she checked in to the Courtyard by Marriott Santa Clarita Valencia, located at 28523 Westinghouse Place, Santa Clarita, California 91355. (Compl. ¶¶ 5–6, 14.) “On or about January 27, 2021, Plaintiff Fryer woke up to discover she had received numerous bug bites across her body,” from a bedbug infestation at the subject hotel. (Id. at ¶¶ 15–19.) Plaintiff checked out of the hotel on 1/17/21. (Id. at ¶ 20.) Plaintiff alleges that Moving Defendant “is in some manner responsible for the acts and conduct of other Defendants, and were and are, responsible for the injuries, damages and harm incurred by Plaintiff.” (Id. at ¶ 7.)

On 1/18/23, Plaintiff filed her complaint against three named defendants, alleging the following causes of action: (1) Battery; (2) Negligence; (3) Intentional Infliction of Emotional Distress; (4) Fraudulent Concealment; (5) Private Nuisance; and (6) Public Nuisance. On 7/25/24, Plaintiff amended her complaint to name Moving Defendant as previously unnamed Doe defendant 1.

On 8/29/24, Moving Defendant filed the instant demurrer and motion to strike. No opposition has been filed to date.

ANALYSIS

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action,” and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e), (f).) 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 the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

Here, Moving Defendant demurs to the first, third, fourth, and sixth causes of action in Plaintiff’s complaint on the bases that Plaintiff fails¿to allege facts sufficient to state those causes of action, rendering them fatally uncertain.

A.    Meet and Confer

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, Moving Defendant’s counsel declares that on 8/29/24, she telephonically met and conferred with Plaintiff’s counsel discussing the issues raised in the instant demurrer and motion to strike, but the parties were unable to come to a resolution. (Decl. of Anne S. Cruz ¶ 2.) Accordingly, the Court finds that counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

B.     Battery

Plaintiff’s first cause of action alleges Battery against Defendants. “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.)

Here, Moving Defendant argues that Plaintiff’s “factual allegations simply do not support the conclusion that Apple Nine Hospitality Management, Inc. touched Plaintiff ‘with intent to harm or offend.’ Rather, at most, Plaintiff's allegations assert that Apple Nine Hospitality Management, Inc. negligently permitted bedbugs on its premises.” (Dem. 3:3–6.) Moving Defendant further argues that “the Complaint is simply barren of any facts establishing how or why Apple Nine Hospitality Management, Inc. (or its employees or agents) supposedly intended to harm Plaintiff and/or how Apple Nine Hospitality Management, Inc. (or its employees or agents) intentionally touched or otherwise harmed Plaintiff.” (Id. at 3:11–14.)

The Court finds that here, at the demurrer stage, plaintiff has sufficiently alleged that Defendants’ intent to harm Plaintiff is “evident from Defendants recklessly failing to warn Plaintiff of the dangerous bedbug infestation in their room, given Defendants’ prior knowledge of an infestation.” (Compl. ¶ 51.) The Court further notes that Defendants’ intent is a question of fact improper for resolution at the demurrer stage. (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1061.)

Based on the foregoing, the Court finds that Plaintiff has alleged facts sufficient to constitute a cause of action for Battery against Moving Defendant. Accordingly, the demurrer is overruled as to Plaintiff’s first cause of action.

C.    Intentional Infliction of Emotional Distress

Plaintiff’s third cause of action alleges Intentional Infliction of Emotional Distress against Defendants. “The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (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. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) A mere allegation that a plaintiff suffered severe emotional distress, without facts indicating the nature or extent of any mental suffering incurred as a result of the defendant’s alleged outrageous conduct, does not state a cause of action for intentional infliction of emotional distress. (Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047–1048.)

Here, Moving Defendant argues that this cause of action is deficient because “Plaintiff has failed to set forth any facts which indicates the nature or extent of any mental suffering incurred as a result of Apple Nine Hospitality Management, Inc.’s purported conduct. Furthermore, Plaintiff has failed to provide any facts evidencing that Apple Nine Hospitality Management, Inc.’s actions or omissions were directed specifically at Plaintiff.” (Dem. 6:18–22.) The Court agrees and finds that Plaintiff has failed to allege the nature or extent of the severe emotional distress caused by Defendant’s conduct.

Based on the foregoing, the Court finds that Plaintiff has failed to allege facts sufficient to constitute a cause of action for Intentional Infliction of Emotional Distress against Moving Defendant. Accordingly, the demurrer is sustained as to Plaintiff’s third cause of action.

D.    Fraudulent Concealment

Plaintiff’s fourth cause of action alleges Fraudulent Concealment against Defendant. “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.” (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.) Fairness requires that allegations of fraud be pled “with particularity” so that the court can weed out nonmeritorious actions before a defendant is required to answer. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The particularity requirement typically necessitates pleading facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Here, Moving Defendant argues that “the fraud allegations made in the Complaint rely on non-specific, general and conclusory allegations pertaining to awareness and knowledge of a purported bedbug infestation at the subject hotel, including the room Plaintiff stayed in. … Plaintiff lacks the requisite specificity to maintain this cause of action as Plaintiff has not, and will not be able to, state the names of the persons who purportedly made the allegedly fraudulent representations, what their authority is to speak, to whom they spoke, what they said or wrote, and when it was said or written. Moreover, the Complaint fails to allege any relationship between Plaintiff and Apple Nine Hospitality Management, Inc. and any transaction between said parties.” (Dem. 8:23–9:6.)

However, the Court notes that Moving Defendant’s argument is inapposite here, where Plaintiff alleges fraudulent ­­concealment rather than fraudulent misrepresentation. Here, the Court finds that Plaintiff has sufficiently alleged that Defendants, by and through their employees/agents, were aware of the bedbug infestation in the hotel and in Plaintiff’s room, owed guests a duty to disclose that fact, intentionally concealed it, thereby causing Plaintiff’s injuries. (Compl. ¶¶ 92–110.)

Based on the foregoing, the Court finds that Plaintiff has alleged facts sufficient to constitute a cause of action for Fraudulent Concealment against Moving Defendant. Accordingly, the demurrer is overruled as to Plaintiff’s fourth cause of action.

E.     Public Nuisance

Plaintiff’s sixth cause of action alleges Public Nuisance against Defendants. Public nuisances are “substantial and unreasonable” “offenses against, or interferences with, the exercise of rights common to the public.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 305.) Private citizens may maintain an action for a public nuisance only if it is “specially injurious” to them—i.e., an injury different in kind, not merely degree, from that inflicted on the general public. (Civ. Code § 3493.)

Here, Moving Defendant argues that “Plaintiff has failed to allege that the bedbugs affected a substantial number of people at the same time, and because there are no facts showing a special injury to Plaintiff herself in person or property of a character that is different in kind from that suffered by the general public.” (Dem. 10:14–17.)

In her complaint, Plaintiff alleges that “this bedbug infestation affects the community at large as this type of infestation is easily spread from (1) one hotel room to another, (2) personal property of those occupying the hotel rooms, including Plaintiff’s luggage, clothing, shoes, and other tangible personal property that can be transported from the Subject Hotel room to Plaintiff’s residence thereby creating a risk of bed bug infestation in Plaintiff’s residence, (3) spread of bed bug infestation from the Subject Hotel room to the public and into their residence which can affect the community at large.” (Compl. ¶ 125.) Plaintiff further alleges that the nuisance is specially injurious to her because “Plaintiff’s use and enjoyment of his [sic] room was greatly affected, which is separate from the harm suffered by the general public.” (Id. at ¶ 126.)

Based on the foregoing allegations, the Court finds that Plaintiff has alleged facts sufficient to constitute a cause of action for Public Nuisance against Moving Defendant. Accordingly, the demurrer is overruled as to Plaintiff’s sixth cause of action.

MOTION TO STRIKE

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, subd. (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, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

A.    Punitive Damages

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression by clear and convincing evidence. (Civ. Code § 3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Id. at subd. (c); Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.)

1.      Malice, Fraud, Oppression

Punitive damages must be supported by factual allegations. Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.)

In the complaint, Plaintiff alleges, inter alia, that despite their knowledge of prior bedbug infestations at the subject hotel, Defendants deliberately failed to eradicate the infestations, inspect Plaintiff’s room for bedbugs, or notify Plaintiff of the infestations. (Compl. ¶¶ 23–44.) Moving Defendant argues that “Plaintiff fails to allege any facts indicating that Apple in fact intended to harm Plaintiff or acted in conscious disregard of Plaintiff’s safety.” (MTS 6:24–26.)

Based on a review of Plaintiff’s factual allegations, the Court finds that the complaint, as pled, sufficiently pleads a basis for punitive damages against Defendants. As Plaintiff contends, the complaint sufficiently alleges that Defendants, through their agents/employees, had actual knowledge about the bedbug infestation at the subject property, yet failed to remediate the issue and concealed the infestation from Plaintiff and other guests. This alleged conduct sufficiently supports a prayer for punitive damages as a “conscious disregard for the rights or safety of others.” (Civ. Code § 3294, subd. (c).)

Accordingly, the Court finds that at this stage, Defendants’ alleged conduct as pled may be considered malicious, oppressive, or fraudulent as defined by Civil Code section 3294. As earlier noted, further investigation of the merits of Plaintiff’s allegations may be resolved through the discovery process.

2.      Employer Liability

“An employer shall not be liable for [punitive] damages … based upon acts of an employee of the employer, unless 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 or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, 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.” (Civ. Code § 3294, subd. (b).)

In the complaint, Plaintiff names one individual defendant who owns, operates, and manages the subject hotel. (Compl. ¶ 6.) Plaintiff further alleges that Defendants:

“authorized and/or ratified the conduct of their Subject Hotel employees, corporate, and management by: (1) failing to terminate such employees, management and maintenance personnel responsible for Plaintiff’s injuries; (2) failing to properly train and educate said employees on inspection, sanitation, cleanliness, and other uninhabitable conditions in the Subject Hotel and rooms at the Subject Hotel; (3) failing to protect guests and business invitees such as Plaintiff by their failures in the maintenance of the Subject Hotel, and to continuously inspect and check for insects (i.e. bedbugs), infestations and other uninhabitable conditions despite having knowledge of said conditions; (4) permitting and tolerating a common practice and culture of extreme indifference by the employees who failed to promptly and properly address said conditions occurring at the Subject Hotel; (5) permitting and allowing a common practice and culture of extreme indifference by failing to properly inspect and ensure the rooms at the Subject Hotel, including Plaintiff’s assigned room, to be free from bedbug infestations and other said uninhabitable conditions; (6) failing to implement adequate policies and procedures to prevent Cimex lectularius (bedbug) infestations and other uninhabitable conditions to protect hotel guests and business invitees from injuries such as those Plaintiff sustained; and (7) failing to implement and update new policies, procedures, and training of the employees prior and subsequent to Plaintiff sustaining injuries.” (Id. at ¶ 42.)

Moving Defendant argues that “Plaintiff fails to identify any Apple employees, managing agents, officers and/or directors. Moreover, Plaintiff does not identify who at Apple is alleged to have authorized or ratified any specific bad conduct, what the offending conduct was and why such authorization or ratification gives rise to punitive and exemplary damages.” (MTS 3:28–4:3.)

Upon review of the Plaintiff’s factual allegations in the Complaint, the Court finds that Plaintiff has sufficiently alleged that all Defendants, including Moving Defendant, ratified/approved of the allegedly wrongful conduct of their agents and/or employees. The Court again notes that further investigation of the merits of Plaintiff’s allegations may be resolved through the discovery process. Accordingly, the Court denies Moving Defendant’s motion to strike portions of Plaintiff’s complaint referencing punitive damages.

B.     Attorney Fees

An award of attorney fees is proper when authorized by contract, statute, or law. (Code Civ. Proc. §§ 1032, subd. (b); 1033.5, subd. (a)(10).) Here, Plaintiff prays for the recovery of attorney fees in connection with this action. (Compl. p. 26, l. 23, ¶ 3.) However, as Moving Defendant argues, “Plaintiff has failed to provide in the Complaint the basis for said fees.” (MTS 10:13–14.) Accordingly, the Court grants Moving Defendant’s motion to strike Plaintiff’s prayer for attorney fees.

LEAVE TO AMEND

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Here, while the demurrer and motion to strike are unopposed, the Court notes that this is the first challenge brought against Plaintiff’s original complaint. Therefore, under the Court’s liberal policy of granting leave to amend, Plaintiff is granted 20 days leave to amend the complaint to cure the defects set forth above.

CONCLUSION

The unopposed demurrer is overruled as to Plaintiff’s first, fourth, and sixth causes of action, and sustained as to Plaintiff’s third cause of action, with 20 days leave to amend. The motion to strike is denied as to Plaintiff’s references to punitive damages and granted as to Plaintiff’s prayer for attorney fees with 20 days leave to amend.