Judge Bruce G. Iwasaki, Case 20STCV09722 2022-12-15 Tentative Ruling

This case arises out of a hotel stay at the Sheraton Grand Los Angeles (hotel). Anne Gavzer (Plaintiff) alleges that she stayed at the hotel for one night and awoke with numerous bite marks all over her body. Despite seeking medical care, she alleges that the injuries worsened, causing physical pain and emotional distress.

Plaintiff sued Marriott International, Inc. (Defendant), Sheraton Grand Los Angeles, and Jonathan Litvack for battery, negligence, intentional infliction of emotional distress, fraudulent concealment, private nuisance, and public nuisance. On August 10, 2022, Plaintiff dismissed Defendants Sheraton Grand Los Angeles and Jonathan Litvack.

The Court previously sustained Defendant’s demurrer as to the first (battery), third (intentional infliction of emotional distress), and fourth (fraudulent concealment) causes of action, granting leave to amend only on the third and fourth claims. Plaintiff subsequently filed her First Amended Complaint.

Defendant again demurs to the intentional infliction of emotional distress and fraudulent concealment causes of action for insufficient facts. Plaintiff opposes the demurrer, and Defendant replied. The declaration of counsel, Paul W. Burke, satisfies the meet-and-confer requirement. (Burke Decl., ¶¶ 3-4.)

Defendant’s request for judicial notice of special interrogatories and the corresponding responses is denied. It is unnecessary to reach the issue of whether the Complaint is a sham pleading because the allegations are insufficient on their face.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) 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.)

Defendant argues that the amended Complaint merely that Defendant “should have known” of a bedbug infestation and that this amounts to negligence, not intentional infliction of emotional distress.

The elements of intentional infliction of emotional distress requires “(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 suffered severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.)

“Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) “Moreover, to support the cause of action, ‘[i]t 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.’ [Citation.] ‘The requirement that the defendant’s conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury.’ ” (Ess v. Eskaton Properties (2002) 97 Cal.App.4th 120, 130, italics added.)

Here, the First Amended Complaint repeats the original Complaint: Defendants willfully disregarded the known bedbug infestation in Plaintiff’s room. (Complaint, ¶ 62.) Despite having knowledge of the infestation, avers the pleading, Defendant made a “deliberate and reckless choice not to require housekeeping staff to change the bed skirts regularly or not to inspect and ensure that the bed skirts are free from a [bedbug] infestation immediately prior to Plaintiff’s stay.” This allegedly demonstrated an “extreme indifference to the danger of bedbug infestations.” (Ibid.)

Plaintiff adds in the allegation that Defendant “deliberately chose not to eradicate a bedbug infestation at the subject premises” and that such conduct “exceeds all bounds of that usually tolerated in a civilized community.” (Id. at ¶ 61.) In addition, she specifies that “Front desk personnel, management, and housekeeping staff” were aware of the infestation but “intentionally did not disclose the material fact” during check-in.” (Id. at ¶¶ 63-65.)

Plaintiff does not allege that the bedbugs were intentionally placed in her room, nor does she claim that the conduct occurred in her presence or was directed specifically at her. The closest she gets is claiming that Defendant knew of the infestation and withheld the information from her.[1] (Ibid.) But these allegations amount to negligence in failing to properly manage a hotel rather than intentional conduct directed at Plaintiff to inflict injury. For example, Plaintiff does not claim the hotel failed to treat the infestation despite receiving notice or otherwise acted in a way that targeted her specifically.[2]

In her opposition, Plaintiff argues that Defendant’s conduct was outrageous because it directed employees not to clean or inspect for bedbugs, failed to eradicate the pests, and did not take any action despite knowing of an infestation. None of this conduct was alleged to have occurred in Plaintiff’s presence. Because the Complaint still does not allege that the conduct was directed at Plaintiff specifically or occurred in her presence, the demurrer is sustained. (Coldwell Banker Residential Brokerage Co. v. Superior Court (2004) 117 Cal.App.4th 158, 169.)

Defendant argues that the Complaint does not contain specific allegations necessary for a fraud cause of action.

“ ‘ [T]he elements of an action for fraud and deceit based on concealment [or nondisclosure] 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.’ ” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748.)

Fraud must be pled specifically, not with “general and conclusory allegations.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184; Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 [“This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.”) “The effect of this rule is two-fold: (a) General pleading of the legal conclusion of ‘fraud’ is insufficient; the facts constituting the fraud must be alleged. (2) Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings [citation] will not ordinarily be invoked to sustain a pleading defective in any material respect.” (Lesperance v. North American Aviation, Inc. (1963) 217 Cal.App.2d 336, 344.) The test is “ ‘whether the pleading as a whole apprises the adversary of the factual basis of the claim.’ ” ((Lim v. The.TV Corp. Internat. (2002) 99 Cal.App.4th 684, 690.)

Here, the allegations still lack specificity. Plaintiff did not add details as to how Defendant had notice of these conditions, and whether Defendant had knowledge of the infestation at the time or before Plaintiff rented the room. There are no facts as to how, when, or by whom such discovery of the infestation was made. As pled, the allegations are conclusory. Even if Plaintiff’s theory is that Defendant had exclusive knowledge of the facts, she fails to allege how and when such knowledge was acquired. (See, e.g., Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 844 [Nissan had exclusive knowledge because of the defective transmissions installed in numerous other vehicles, including the one purchased by plaintiffs].)

Plaintiff’s argument that the “magnitude of the infestation” and “extensive online reviews by other prior guests” falls short. There are no facts supporting those allegations, apart from a website describing online complaints from over 10 years ago.

Plaintiffs’ citation of numerous cases for the proposition that it is unnecessary for the “maker of the concealment [to] have a particular person in mind” is perplexing. Those line of cases recognize that the “defendant cannot escape liability if he or she makes a representation to one person while intending or having reason to expect that it will be repeated to and acted upon by the plaintiff (or someone in the class of persons of which plaintiff is a member).” (Shapiro v. Sutherland (1998) 64 Cal.App.4th 1534; see also Geernaert v. Mitchell (1995) 31 Cal.App.4th 601, 605.) Defendant here is not arguing that Plaintiff lacks standing to sue or that Plaintiff was an unforeseeable third party. It argues that there is a lack of specificity on who was the individual that purportedly concealed the infestation from Plaintiff. Her general allegation of “front desk personnel, management, and housekeeping” is too vague and fails to apprise Defendant of the factual basis of the claim.

The legal conclusions and mere recitations of law in the Complaint are insufficient as to Defendant’s knowledge and intent to deceive. Accordingly, the demurrer to the third cause of action is sustained without leave to amend.

The demurrer is sustained on the Amended Complaint’s second and third causes of action. As Plaintiff was given a prior opportunity to amend and she has since failed to allege any additional facts supporting intentional of emotional distress or fraudulent concealment, the demurrer is sustained without leave to amend.

[1] The only supporting allegation that Defendant knew of the infestation is a reference to “bedbugplanet.com.” (Complaint, ¶ 22, Ex. A.) But that exhibit, assuming it is even considered, indicates that the last report was from June 2012. This does not support any recent knowledge of bedbugs.

[2] The Court is aware of the difficulties of proving a negative – that is, Defendant’s alleged conduct is the withholding of knowledge of bedbugs at check-in. However, without facts supporting an intent to harm, this allegation is insufficient. For example, it is enough if a plaintiff repeatedly informed the landlord of a defect but who refuses to act despite having knowledge. (See Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1062, 1069.) There is no allegation here as to how Defendant would have known of the infestation. There is only a conclusory, one-sentence statement that the actions were committed “with the intent to cause serious emotional distress.” (Complaint, ¶ 66.)