Judge: Ashfaq G. Chowdhury, Case: 21STCV14715, Date: 2024-05-03 Tentative Ruling
Case Number: 21STCV14715 Hearing Date: May 3, 2024 Dept: E
Case No: 21STCV14715
Hearing Date: 05/03/2024 – 8:30am
Trial Date: 11/18/2024
Case Name: EVELYN PREZA; KASANDRA SALAS-PREZA; JACOB
SALAS-PREZA, a minor, by Evelyn Preza as his guardian ad litem; v. WYNDHAM
WORLDWIDE CORPORATION; WYNDHAM DESTINATIONS, INC.,; J.P. ALLEN, INC.; DAYS INN
BY WYNDHAM GLENDALE LOS ANGELES; MARK J. CRIGLER; and DOES 1-20 inclusive
[TENTATIVE RULING
DEMURRER AND MOTION TO STRIKE]
RELIEF REQUESTED
Defendant, The Glendale Hotel, LLC, demurs to the First, Third, Fourth, Fifth
and Sixth causes of action in Plaintiffs’ Complaint.
Defendant
demurs to such Causes of Action, pursuant to California Code of Civil Procedure
§ 430.10, on the grounds that the Complaint fails to state sufficient facts to constitute
a cause of action against Defendants.
BACKGROUND
Plaintiffs’ Complaint
arises out of personal injury and monetary damages sustained by Plaintiffs as a
result of bedbug bites during their stay at a hotel owned and operated by
Defendants. (Compl. ¶ 1.)
Plaintiffs
allege seven causes of action against all Defendants for: (1) Battery; (2)
Negligence; (3) Intentional Infliction of Emotional Distress; (4) Fraudulent
Concealment; (5) Private Nuisance; (6) Public Nuisance; and (7) Breach of
Contract.
The
demurring Defendant, The Glendale Hotel LLC, was substituted for Doe 2 on
8/15/2023.
PROCEDURAL ANALYSIS
Moving Party:
Defendant, The Glendale Hotel, LLC
Responding Party: Plaintiffs,
Evelyn Preza; Kasandra Salas-Preza; and Jacob Salas-Preza
Moving Papers: Demurrer
Opposition Papers: Opposition
Reply Papers: Untimely
Reply submitted
[The Replies to the
demurrer and the motion to strike indicate that the Oppositions to the demurrer
and motions to strike were untimely. The Court will utilize its discretion and
consider both the alleged untimely oppositions and the untimely reply.
Proof of
Service Timely Filed (CRC Rule 3.1300):Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Yes/No – The email
address that Defendant served Plaintiffs’ counsel at is not the email address
listed for Plaintiffs’ counsel on eCourt; however, Plaintiffs submitted an
Opposition. Thus, Plaintiffs clearly received the demurrer.
Meet and Confer
A party filing a
demurrer “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
parties shall meet and confer at least five days before the date the responsive
pleading is due. If the parties are not able to meet and confer at least five
days prior to the date the responsive pleading is due, the demurring party
shall be granted an automatic 30-day extension of time within which to file a
responsive pleading, by filing and serving, on or before the date on which a
demurrer would be due, a declaration stating under penalty of perjury that a
good faith attempt to meet and confer was made and explaining the reasons why
the parties could not meet and confer.”
(Code Civ. Proc., § 430.41, subd. (a)(2).)
Failure
to sufficiently meet and confer is not grounds to overrule or sustain a demurrer.
(Code Civ. Proc., § 430.41(a)(4).)
Here,
Defendant’s counsel met and conferred. (Stoker III Decl. ¶¶ 2-4.)
LEGAL STANDARDS FOR DEMURRERS
Demurrer
– Sufficiency
A demurrer for
sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th
740, 747.) When considering demurrers,
courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of
Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s]
the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152
Cal.App.4th 518, 525.) 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 pleadings alone and
not the evidence or other extrinsic matters; therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing
is whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action. (Hahn, supra, 147 Cal.App.4th at
747.)
The
general rule is that the plaintiff need only allege ultimate facts, not
evidentiary facts. (Doe v. City of
Los Angeles (2007) 42 Cal.4th 531, 550.)
“All that is required of a plaintiff, as a matter of pleading … is that
his complaint set forth the essential facts of the case with reasonable
precision and with sufficient particularity to acquaint the defendant with the
nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp.
(1945) 26 Cal.2d 149, 156-157.)
On
demurrer, a trial court has an independent duty to “determine whether or not
the … complaint alleges facts sufficient to state a cause of action under any
legal theory.” (Das v. Bank of
America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of
causes of action, where some valid claim is alleged but “must dispose of an
entire cause of action to be sustained.”
(Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,
119.) “Generally
it is an abuse of discretion to sustain a demurrer without leave to amend if
there is any reasonable possibility that the defect can be cured by
amendment.” (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 349.)
Demurrer – Uncertainty
A special demurrer for
uncertainty, CCP § 430.10(f), is disfavored and will only be sustained where
the pleading is so bad that defendant cannot reasonably respond—i.e., cannot
reasonably determine what issues must be admitted or denied, or
what counts or claims are directed against him/her. (Khoury
v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)
Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified
under modern discovery procedures.” (Ibid.)
ANALYSIS
First
Cause of Action – Battery
“The
elements of civil battery are: (1) defendant intentionally performed an act
that resulted in a harmful or offensive contact with the plaintiff’s person;
(2) plaintiff did not consent to the contact; and (3) the harmful or offensive
contact caused injury, damage, loss or harm to plaintiff.” (Brown v.
Ransweiler (2009) 171 Cal.App.4th 516, 526-527 citing Piedra v. Dugan (2004)
123 Cal.App.4th 1483, 1495.)
Element 1 – Battery
The
first element of battery is whether defendant intentionally performed an act
that resulted in a harmful or offensive contact with the plaintiff’s person.
Further
as stated in Mount Vernon Fire Insurance Corporation:
[T]he tort of battery generally is not limited to direct
body-to-body contact. In fact, the commentary to the Restatement Second of
Torts clearly states that the “[m]eaning of ‘contact with another's person’ ”
(italics omitted) does not require that one “should bring any part of his own
body in contact with another's person.... [One] is liable [for battery] in this
Section if [one] throws a substance, such as water, upon the other....”
(Rest.2d Torts § 18, **216 com. c, pp. 30–31.)
(Mount Vernon Fire Insurance Corporation v.
Oxnard Hospitality Enterprise, Inc. (2013)
219 Cal.App.4th 876, 881.)
In relevant part, the
Complaint alleges:
During Plaintiffs’ stay, Defendants,
and DOES 1 through 20, intentionally and recklessly did acts that were
unconsented to by Plaintiffs and therefore resulted in offensive contact with
their person, including but not limited to: (1) Defendants’, and DOES 1 through
20, deliberate choice not to eradicate a Cimex lectularius infestation in the
hotel; (2) Defendants’, and DOES 1 through 20, deliberate choice not to inspect
or ensure that Plaintiffs’ room, was free of Cimex lectularius immediately
before Plaintiffs’ stay at the hotel; (3) Defendants’, and DOES 1 through 20,
deliberate and reckless choice not to inspect the bed skirts in Plaintiffs’
room to protect against and prevent a Cimex lectularius infestation; (4)
Defendants’, and DOES 1 through 20, willful disregard of a Cimex lectularius
infestation that was either known or should have been known from prior
infestations in Plaintiffs’ room; (5) Defendants’ deliberate and reckless
choice not to notify Plaintiffs of the presence of Cimex lectularius in the hotel
and, specifically, Plaintiffs’ room.
(Compl. ¶ 37.)
Defendant argues that Plaintiffs’ allegations sound
in negligence and failure to warn, not in battery for intentionally performing
an act that resulted in contact.
In Opposition, Plaintiffs argue that an intentional
act was in fact performed, and Plaintiffs seem to point to deliberately
choosing not to eradicate the bedbug infestation as the intentional act.
Here, the Court finds Defendant’s argument availing
that Plaintiffs did not allege an intentional act that resulted in a harmful or
offensive contact to Plaintiffs’ persons.
Plaintiffs’ allegations pertain to Defendants
failing to act, not an intentional act performed by Defendants. While direct
body to body contact is not necessary, Plaintiffs’ allegations, when reading
the Complaint as a whole, sound in failing to respond or failing to act.
Defendant argues that Plaintiffs will not be able
to cite any authority establishing that for a battery cause of action under
California law, allegations of failure to warn satisfies this requirement for
battery.
Defendant appears to be correct.
Not only could the Court not find a single case
where battery was allowed to be alleged in an instance like the one in the
Complaint, but Plaintiffs don’t come forward with any binding authority either.
Plaintiffs cite to a non-binding, non-persuasive
case titled Mathias v. Accor Econ.
Lodging, Inc., 347 F.3d 672 (7th Cir. Ill. 2003) to
argue that battery can be alleged for a bedbug infestation. However, this case dealt
with a negligence cause of action. Battery was briefly mentioned when the
Seventh Circuit stated, “ Its failure either to warn guests or to take
effective measures to eliminate the bedbugs amounted to fraud and probably to
battery as well.” Of particular importance, that case said “probably,” and it
is non-binding, non-persuasive authority.
Plaintiffs also attempt to argue that battery can
be alleged by citing to Ornelas v. Randolph,
4 Cal.4th 1095, 1099–1100 (1993). This case is not on point as it does not deal
with battery. It deals with duty, and duty is not an element of battery.
TENTATIVE RULING – First Cause of
Action – Battery
Defendant’s
demurrer to the first cause of action for battery is SUSTAINED.
As stated in Dalton
v. East Bay Mun. Utility Dist. (1993) 18 Cal.App.4th 1566, 1570-71:
If the complaint, liberally construed, can state
a cause of action, or if it is reasonably possible that the plaintiffs can cure
the complaint by amendment, the trial court should not sustain a demurrer
without leave to amend. (Heckendorn v. City of San Marino (1986) 42
Cal.3d 481, 486 [229 Cal.Rptr. 324, 723 P.2d 64].) The burden is on
the plaintiffs to establish the reasonable possibility that the defect is
curable. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) A
demurrer is properly sustained without leave to amend if it appears that under
applicable substantive law there is no reasonable possibility that *1571 an
amendment could remedy the defects. (Heckendorn v. City of San Marino, supra,
42 Cal.3d at p. 486.)
(Dalton v. East Bay Mun. Utility Dist. (1993)
18 Cal.App.4th 1566, 1570-71.)
Plaintiffs argue that :
In this case, discovery
and investigation into this incident are still ongoing. Plaintiffs respectfully
request the opportunity to conduct sufficient discovery to bring to light
statements and alleged omissions and inactions of Defendants’ housekeeping and
management employees, and the authorization and ratification by Defendants’
employees and staff with regards to turning a blind eye to bedbug infestations
occurring at the Subject Hotel and specifically, in Plaintiffs’ room. Any
further such evidence would offer more than a reasonable possibility to cure.
(Oppo.
p. 17.)
Here, the Court fails
to see how Plaintiffs have met their burden in establishing that there is a
reasonable possibility that the defect is curable. In Plaintiffs’ Opposition,
their arguments continue to rely on omissions and inactions and turning a blind
eye, i.e. a failure to act.
Leave to amend is NOT
GRANTED.
Third Cause of Action – Intentional Infliction of Emotional
Distress (IIED)
A
cause of action for intentional infliction of emotional distress exists when
there is (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. (Hughes v. Pair (2009) 46 Cal.4th 1035,
1050.)
Element 1
The
first element of IIED is “extreme and outrageous conduct by the defendant with
the intention of causing, or reckless disregard of the probability of causing,
emotional distress.”
A
defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all
bounds of that usually tolerated in a civilized community.’ And the defendant’s
conduct must be ‘intended to inflict injury or engaged in with the realization
that injury will result.’ ” (Hughes v. Pair (2009) 46 Cal.4th
1035,1050-1051.)
“Regarding
emotional distress, the trial court initially determines whether a defendant's
conduct may reasonably be regarded as so extreme and outrageous as to permit
recovery. Where reasonable men can differ, the jury determines whether the
conduct has been extreme and outrageous to result in liability. Otherwise
stated, the court determines whether severe emotional distress can be found;
the jury determines whether on the evidence it has, in fact, existed.” (Plotnik
v. Meihaus (2012) 208 Cal.App.4th 1590, 1614 citing Godfrey v.
Steinpress (1982) 128 Cal.App.3d 154, 173.)
Here,
Plaintiffs alleged this element at ¶¶ 61-62 of the Complaint.
Elements 2 and 3
As to the second and
third elements of an IIED claim, Plaintiffs don’t allege that they suffered
severe or extreme emotional distress. Plaintiffs allege that they sustained
“serious injuries” in ¶ 64, but the IIED cause of action doesn’t allege
suffering severe or extreme emotional distress.
Tentative Ruling – Third Cause of Action IIED
Defendant’s demurrer to
the third cause of action is SUSTAINED.
The
Court will hear from the parties as to whether leave to amend should be
granted.
Fourth Cause of Action – Fraudulent Concealment
Defendant
argues that Plaintiffs: failed to allege the intent element of a fraudulent
concealment cause of action, the allegations in the Complaint are conclusory,
and nothing stopped Plaintiffs from searching the room for bed bugs.
“’[T]he
elements of an action for fraud and deceit based on concealment are: (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.’” (Boschma v. Home Loan
Center, Inc. (2011) 198 Cal.App.4th 230, 248 citing Hahn v. Mirda (2007)
147 Cal.App.4th 740,748.) “Fraud must be pleaded with specificity rather than
with “’general and conclusory’” allegations.” (Boschma, supra, at 248
citing Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.)
Element 1
Element 1 is that the
defendant must have concealed or suppressed a material fact.
Here,
Plaintiffs allege this element at ¶ 71 of the Complaint.
Element 2
Element 2 is that the
defendant must have been under a duty to disclose the fact to the plaintiff.
As
a preliminary matter, the Defendant did not argue that this element was not
alleged.
“A
duty to speak may arise in four ways: it may be directly imposed by statute or
other prescriptive law; it may be voluntarily assumed by contractual
undertaking; it may arise as an incident of a relationship between the
defendant and the plaintiff; and it may arise as a result of other conduct by
the defendant that makes it wrongful for him to remain silent.” (SCC
Acquisitions Inc. v. Central Pacific Bank (2012) 207 Cal.App.4th 859, 864.)
Here, Plaintiffs didn’t explicitly allege that Defendants
were under a duty to disclose the bedbug infestation, but Plaintiffs alleged
facts sufficient to form a basis that a duty arose based on the alleged
knowledge of Defendants that there was a bedbug infestation in the present room
and that Plaintiffs notified management about the bites they withstood after
their first night. (See Compl. ¶¶ 68-70 & 18.)
Therefore, this element was alleged.
Element 3
The third element is
that “the defendant must have intentionally concealed or suppressed the fact
with the intent to defraud the plaintiff.”
Here,
Plaintiffs appear to allege this element at ¶¶ 71 and 73 of the Complaint.
Element 4
The fourth element is “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.”
Here,
Plaintiffs alleged this element at ¶ 72.
Element 5
Element 5 is “as a
result of the concealment or suppression of the fact, the plaintiff must have
sustained damage.”
Here,
Plaintiffs allege this element at ¶¶ 76, 78, and 79.
Tentative Ruling – Fourth Cause of Action – Fraudulent Concealment
Defendant’s demurrer to
the Fourth Cause of Action for Fraudulent Concealment is OVERRULED.
Fifth Cause of Action – Private Nuisance
“Anything
which is injurious to health, including, but not limited to, the illegal sale
of controlled substances, or is indecent or offensive to the senses, or an
obstruction to the free use of property, so as to interfere with the
comfortable enjoyment of life or property, or unlawfully obstructs the free
passage or use, in the customary manner, of any navigable lake, or river, bay,
stream, canal, or basin, or any public park, square, street, or highway, is a
nuisance.” (Civil Code §3479.)
“A
public nuisance is one which affects at the same time an entire community or
neighborhood, or any considerable number of persons, although the extent of the
annoyance or damage inflicted upon individuals may be unequal.” (Civil Code
§3480.)
“Every
nuisance not included in the definition of the last section is private.” (Civil
Code §3481.)
“A
private nuisance claim is a claim for ‘a nontrespassory interference with the
private use and enjoyment of land.’” (Wilson v. Southern California Edison
Co. (2018) 21 Cal.App.5th 786, 802 citing San Diego Gas & Electric
Co. v. Superior Court (1996) 13 Cal.4th 893, 937 (Covalt).) First,
the plaintiff must prove an interference with the plaintiff’s use and enjoyment
of that property. (Id.) Second, the plaintiff must prove that the
invasion of the plaintiff’s interest in the use and enjoyment of the land was
substantial. (Id.) Third, the interference with the protected interest
must not only be substantial, but it must also be unreasonable. (Id.)
Defendant argues that Plaintiffs cannot maintain a
private nuisance cause of action because Plaintiffs were hotel guests, not
tenants, and thus Plaintiffs don’t have rights of possession.
Defendant cites to Venuto which
states, “Although ‘any interest sufficient to be dignified as a property right’
will support an action based on a private nuisance, and this includes within
its purview a tenancy for a term, such
right does not inure in favor of a licensee, lodger or employee.” (Venuto v. Owens-Corning Fiberglass Corp. (1971)
22 Cal.App.3d 116, 125.)
In Opposition, Plaintiffs do not address
Defendant’s argument.
The Court finds Defendant’s argument availing
considering that Plaintiffs allege they were staying at a hotel owned and
operated by Defendants (Compl. ¶ 1) and that Plaintiffs checked into the hotel
and were assigned Room 504 (Compl. ¶ 16.)
Further, Plaintiffs’ Opposition on page 16 admits
that Plaintiffs were a guest of the Subject Hotel. Therefore, Plaintiffs appear
to be hotel lodgers and under Venuto Plaintiffs
to not allege an interest sufficient to be dignified as a property right.
Plaintiffs’ Complaint also alleges that the bed-bug
infestation was a nuisance under California Health & Safety Code §17920.3. Plaintiffs’
Opposition doesn’t explain in any understandable manner as to why § 17920.3 is
applicable. Under the Court’s reading, § 17920.3 simply defines what a
substandard building is, and that a nuisance qualifies as substandard building.
This does not explain what a nuisance is, it explains what is considered a
substandard building.
TENTATIVE RULING - Fifth Cause of
Action – Private Nuisance
Defendant’s
demurrer to the fifth cause of action for private nuisance is SUSTAINED without
leave to amend as it does not appear as if Plaintiffs can remedy this defect.
Sixth Cause of Action – Public Nuisance
“Anything which is
injurious to health, including, but not limited to, the illegal sale of
controlled substances, or is indecent or offensive to the senses, or an
obstruction to the free use of property, so as to interfere with the
comfortable enjoyment of life or property, or unlawfully obstructs the free
passage or use, in the customary manner, of any navigable lake, or river, bay,
stream, canal, or basin, or any public park, square, street, or highway, is a
nuisance.” (Civil Code §3479.)
“A
public nuisance is one which affects at the same time an entire community or
neighborhood, or any considerable number of persons, although the extent of the
annoyance or damage inflicted upon individuals may be unequal.” (Civil Code § 3480.)
As
to the sixth cause of action, the case law is not entirely clear as to what
must be alleged at the pleading stage.
Defendant
argues that Plaintiffs have not alleged and will not be able to prove that
Defendant knew or should have known about the condition. As to Defendant’s
argument, Defendant cites no legal authority that knowledge is a required
element, further, the ability to prove certain allegations is not before this
Court.
Defendant
also argues that Plaintiffs have not alleged and cannot show that the condition
affected anyone other than themselves during the relevant time period. Again,
Defendant cites no support for what must be alleged at the pleading stage, and
what can be proven is not before the Court. In ¶ 89, Plaintiffs allege that
this bedbug infestation affects the community at large.
“Where
the nuisance alleged is not also a private nuisance as to a private individual
he does not have a cause of action on account of a public nuisance unless he
alleges facts showing special injury to himself in person or property of a
character different in kind from that suffered by the general
public.” (Venuto v. Owens-Corning
Fiberglass Corp. (1971) 22
Cal.App.3d 116, 124.) Under this rule the requirement is that the plaintiff's
damage be different in kind, rather than in degree, from that shared by the
general public. (Id.)
Here, Plaintiffs did not successfully allege a
private nuisance claim. Further, Plaintiffs simply alleged that “Plaintiffs’
use and enjoyment of their room was greatly affected, which is separate from
the harm suffered by the general public.” (Comp. ¶ 90.)
Notably absent, Plaintiffs fail to allege what harm
the general public suffered. Therefore, the Court cannot tell if the alleged
facts show special injury to Plaintiffs that are of a character different in
kind than that suffered by the general public.
TENTATIVE RULING – Sixth Cause of
Action – Public Nuisance
Defendant’s
demurrer to the sixth cause of action for public nuisance is SUSTAINED. The
Court will hear from the parties as to whether leave to amend should be
granted.
MOTION TO STRIKE
Moving Party: Defendant, The Glendale Hotel LLC
Responding Party: Plaintiffs,
Evelyn Preza; Kasandra Salas-Preza; Jacob Salas-Preza, a minor, by Evelyn
Preza, as his guardian ad litem
Moving Papers: Motion to
Strike
Opposition Papers: Opposition
Reply Papers: Untimely
Reply Submitted
Proof of Service
Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address: Yes/No – The email address that Defendant served Plaintiffs’
counsel at is not the email address listed for Plaintiffs’ counsel on eCourt;
however, Plaintiffs submitted an Opposition. Thus, Plaintiffs clearly received
the motion to strike.
RELIEF REQUESTED
Defendant, The Glendale Hotel LLC, moves to
strike Plaintiffs’ Complaint for Damages pursuant to CCP § 430.10, et seq.
Specifically, Defendant
moves to strike the following portions of the Complaint on the following
grounds:
1.) Paragraph 42, Lines
7:28, 8:1-6;
Paragraph 59, Lines
13:2-8;
Paragraph 66, Lines
15:4-10;
Paragraph 80, Lines
17:12-18
– These paragraphs constitute plaintiff’s
requests for punitive damages.
2.) Prayer for Relief,
Paragraph 2, Line 19:28 – “For punitive damages in an amount to be determined
at trial;”
Meet and
Confer
Before filing a motion
to strike pursuant to this chapter, the moving party shall meet and confer in
person or by telephone with the party who filed the pleading that is subject to
the motion to strike for the purpose of determining if an agreement can be
reached that resolves the objections to be raised in the motion to strike. If
an amended pleading is filed, the responding party shall meet and confer again
with the party who filed the amended pleading before filing a motion to strike
the amended pleading. (CCP § 435.5(a).)
Here, Defendant’s counsel
alleged that a meet and confer occurred. (Decl. Stoker III, ¶¶ 2-4.)
The grounds for moving to strike must appear on
the face of the pleading or by way of judicial notice. (Code. Civ. Proc.
§ 437; Turman v. Turning Point of Central California, Inc. (2010)
191 Cal.App.4th 53, 63 [“judges read allegations of a pleading subject to a
motion to strike as a whole, all parts in their context, and assume their
truth”].)
Further, CCP § 431.10(a)-(c) states as follows:
(a) A material
allegation in a pleading is one essential to the claim or defense and which
could not be stricken from the pleading without leaving it insufficient as to
that claim or defense.
(b) An immaterial
allegation in a pleading is any of the following:
(1) An allegation
that is not essential to the statement of a claim or defense.
(2) An allegation
that is neither pertinent to nor supported by an otherwise sufficient claim or
defense.
(3) A demand for
judgment requesting relief not supported by the allegations of the complaint or
cross-complaint.
(c) An “immaterial
allegation” means “irrelevant matter” as that term is used in Section 436.
(CCP § 431.10(a)-(c).)
LEGAL STANDARD – Punitive Damages
In an action for the breach of an
obligation not arising from contract, where it is proven by clear and
convincing evidence that the defendant has been guilty of oppression, fraud, or
malice, the plaintiff, in addition to the actual damages, may recover damages
for the sake of example by way of punishing the defendant. (Cal. Civ. Code § 3294(a).)
“‘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.” (CCP § 3294(c)(1).)
“‘Oppression’ means despicable conduct
that subjects a person to cruel and unjust hardship in conscious disregard of
that person’s rights. (CCP § 3294(c)(2).)
“‘Fraud’ means an intentional
misrepresentation, deceit, or concealment of a material fact known to the
defendant with the intention on the part of the defendant of thereby depriving
a person of property or legal rights or otherwise causing injury. (CCP § 3294(c)(3).)
“In order to survive a motion to strike
an allegation of punitive damages, the ultimate facts showing an entitlement to
such relief must be pled by a plaintiff.” (Clauson v. Superior Court
(1998) 67 Cal. App. 4th 1253, 1255.) Conclusory allegations, devoid of any
factual assertions, are insufficient to support a conclusion that parties acted
with oppression, fraud or malice. (Smith v. Sup. Ct. (1992) 10 Cal. App.
4th 1033, 1042.)
Tentative Ruling Motion to Strike
As
a preliminary matter, Defendant’s arguments on Plaintiffs failing to allege
ratification is unavailing. Plaintiffs alleged ratification in ¶ 31 and 34 of
the Complaint.
As to striking ¶42 in the first cause of action for
battery, the motion to strike is GRANTED without leave to amend because the demurrer
to the battery cause of action was sustained without leave to amend.
As to striking ¶59 in the second cause of action for
negligence, the motion to strike is DENIED. Defendant did not demur to the
second cause of action. The negligence cause of action remains in the
Complaint. Further, Plaintiffs alleged sufficient facts for a jury to
potentially find malice or oppression.
As to striking ¶ 66 in the third cause of action for
IIED, the motion to strike is GRANTED with leave to amend because the demurrer
to the third cause of action was sustained.
As to striking ¶ 80 in the fourth cause of action for
fraudulent concealment, the motion to strike is DENIED because Defendant’s
demurrer to the fourth cause of action was overruled.
The motion to strike ¶ 2 in the Prayer for Relief is
DENIED because at least one cause of action remaining in the Complaint is
requesting punitive damages.