Judge Bruce G. Iwasaki, Case 22STCV07387 2022-09-12 Tentative Ruling

Tentative Ruling: The Demurrer is sustained and Motion to Strike is granted. Leave to amend is granted only as to the third and fourth causes of action.

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 or Marriott), 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.

Defendant Marriott demurs to the first, third, and fourth causes of action for uncertainty and insufficient facts. Defendant separately moves to strike Paragraphs 22, 42, 59, 66, and 80 in the body of the Complaint and Paragraphs 2 and 3 in the Prayer for Relief. These paragraphs related to requests for punitive damages and attorney fees, and the corresponding allegations. Plaintiff opposes the demurrer and motion to strike, and Defendant replied. The declaration of Defendant’s counsel, Paul W. Burke, satisfies the meet-and-confer requirement.

The demurrer is sustained and the motion to strike is granted. Plaintiff is granted leave to amend within twenty days from the hearing on the demurrer solely as to the third and fourth causes of action.

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 first argues that the first, third, and fourth causes of action are uncertain. A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Here, the allegations are intelligibly expressed. The Complaint is not uncertain.

Marriott argues that the battery allegations are conclusory. It contends that Plaintiff cannot show causation because she does not allege that anyone personally saw the bedbugs in her room and that Plaintiff insufficiently alleges intent. Defendant also argues that there are no allegations that Defendant had actual knowledge of the bedbugs to act with conscious disregard.

“The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

Plaintiff fails to plead facts to support the element of intent to harm or offend and only alleges conclusions. The theory of liability appears to be that Defendant chose not to eradicate the bedbug infestation or failed to inspect the room, despite having knowledge of the pests. (Complaint, ¶ 37.) However, there are no alleged facts supporting Defendant’s awareness of any bedbug infestation in the room immediately prior to Plaintiff’s stay at the hotel, and that despite this awareness, Defendant knowingly allowed Plaintiff to stay in the bed bug infested room with the intent to harm or offend the Plaintiff. The only allegation is a vague reference to prior online complaints on the “Bedbug Registry.” Yet, this still fails to show that Defendant had actual or constructive notice of such an infestation, specifically as to Plaintiff’s room. These conclusory assertions are too attenuated to establish that Defendant intended these actions specifically to harm Plaintiff. At most, these allegations support a theory of negligence, not battery.

In opposition, Plaintiff relies on a Seventh Circuit case, Mathias v. Accor Economy Lodging, Inc. (7th Cir. 2003) 347 F.3d 672 (Mathias). That case is only persuasive authority, given that it was decided in another federal circuit and under Illinois law. Moreover, Plaintiff’s reliance on the language in Mathias that the defendant motel’s failure to warn the guests of bedbugs “amounted to fraud and probably to battery as well” is non-binding dictum. (Mathias, supra, 347 F.3d at p. 675, italics added.)

Additionally, the facts in Mathias are distinguishable. In Mathias, the defendant motel was aware of the infestation for several years prior to the plaintiffs’ stay. (Id. at p. 674.) The motel previously refused the extermination company’s request to spray the rooms and the infestation reached “farcical proportions” involving multiple instances of guests being bitten repeatedly. Staff were instructed to refer to the bedbugs as ticks so that guests would be less alarmed. And the motel designated certain rooms, including the plaintiffs’ room, as “ ‘Do not rent, bugs in room.’ ” While the motel manager was aware of the infestation, the district manager refused to spray the rooms. (Id. at pp. 674-675.) In affirming a jury’s award for punitive damages based on “willful and wanton conduct,” the appellate court noted that “Motel 6 could not have rented any rooms at the prices it charged had it informed guests that the risk of being bitten by bedbugs was appreciable. Its failure either to warn guests or to take effective measures to eliminate the bedbugs amounted to fraud and probably to battery as well.” (Id. at p. 675.) Thus, battery was not alleged, and the issue was not before that court.

Even if this Court were to rely on the Mathias opinion, Plaintiff has not alleged any specific prior incidents of bed bug infestations or actual knowledge possessed by Defendant. The general allegations in this case do not rise to the level found in Mathias. Plaintiff does not cite any California authority that would support a claim for battery based on bedbugs.

Plaintiff’s opposition also discusses the landlord’s legal duties of care. But a breach of such a duty is generally a negligence claim rather than an intentional tort.

Similarly, Plaintiff’s citation to City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754, fn. 4 is inapposite. She argues that willful conduct may be inferred even if the individual may have no intent to harm, “but who intentionally performs an act so unreasonable and dangerous that he or she knows or should know it is highly probable that harm will result.” However, that footnote describes wanton or reckless misconduct in the context of gross negligence, not battery. Accordingly, the demurrer is sustained as to the battery cause of action.

As for leave to amend, the burden is on the plaintiff to show in what manner the complaint can be amended and how the amendment would change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Instead of addressing how the specific cause of action for battery may be amended, Plaintiff merely argues for the liberality of permitting leave to amend. Since Plaintiff fails to provide any case law in which a battery cause of action may be pled under these facts and the Court has not found any, the demurrer as to battery is sustained without leave to amend.

Defendant argues that the allegations are merely characterizations of negligent conduct as deliberate, reckless, or willful.

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.) In addition, “ ‘[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.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1002, original italics.)

Here, the Complaint alleges that Defendants willfully disregarded the known bedbug infestation in Plaintiff’s room. (Complaint, ¶ 61.) Despite having knowledge of the infestation, Defendants 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 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 claim is based on willful or reckless disregard of alleged knowledge. Reckless disregard may sometimes be enough where “ ‘the defendant is aware, but acts with reckless disregard, of the plaintiff and the probability that his or her conduct will cause severe emotional distress to that Plaintiff. [Citations.] Where reckless disregard of the plaintiff’s interests is the theory of recovery, the presence of the plaintiff at the time the outrageous conduct occurs is recognized as the element establishing a higher degree of culpability which, in turn, justifies recovery of greater damages by a broader group of plaintiffs than allowed on a negligent infliction of emotional distress theory.’ ” (Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at pp. 1001-1002.) Because Plaintiff does not allege that the conduct occurred in her presence, the demurrer is sustained.

Furthermore, Plaintiff does not allege any facts to support her allegation that Defendant engaged in such conduct “with the intention of causing” emotional distress. There is simply a conclusory, one-sentence statement that the actions were committed “with the intent to cause serious emotional distress” with no supporting facts or details. (Complaint, ¶ 62.)

Accordingly, the demurrer to the third cause of action is sustained with leave to amend.

Defendant argues that the Complaint does not contain specific details for fraud allegations. It asserts that the Plaintiff only alleges facts that Defendant “did not look and thus did not know that the bugs were present.” Consequently, Defendant contends, there was no concealment because it had no knowledge of the presence of the pests.

The elements of intentional misrepresentation, or fraud in the inducement, are “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631.)

“ ‘ [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.”)

Here, Plaintiff alleges that Defendant and “DOES 1 through 20” had knowledge of the hotel’s infestation problem, which included Plaintiff’s room. (Complaint, ¶ 69.) Defendants “intentionally failed to disclose the material fact” of the bedbug infestation, with the intent to defraud plaintiff and “turn a profit on a night’s stay.” (Id. at ¶¶ 71, 73.) Plaintiff was unaware of the fact and was physically and emotionally harmed. (Id. at ¶¶ 72, 75.)

The allegations lack specificity. There are no details as to how Defendants had notice of these conditions, and whether Defendants 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. Therefore, the demurrer to the fourth cause of action is sustained with leave to amend.

Marriott requests that Paragraphs 22, 42, 59, 66, 80 in the Body of the Complaint, and Paragraphs 2 and 3 in the Prayer for Relief, be stricken. It argues that Paragraph 22 in the Complaint relating to the “Bedbug Registry” is inadmissible hearsay because the site contains anonymous complaints. The other paragraphs relate to allegations of Defendant’s “willful and conscious disregard of Plaintiff’s right to be free” from tortious behavior for purposes of alleging punitive damages.

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.”¿ (Code Civ. Proc., § 436.)

The basis for punitive damages must be pled with specificity. Plaintiff must allege specific facts showing that Defendant's conduct was oppressive, fraudulent, or malicious. (Civ. Code, § 3294, subd. (a).) A¿plaintiff’s “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud,¿or malice, express or implied,¿within the meaning of section 3294.”¿ (Brousseau v. Jarrett¿(1977) 73 Cal.App.3d 864, 872.)

In her opposition, Plaintiff does not address Paragraph 22 as to the “Bedbug Registry.” The Court finds that the paragraph is irrelevant, and therefore, Paragraph 22 is stricken.

Given the Court's rulings above, the motion to strike the paragraphs in the battery, intentional infliction of emotional distress, and fraud causes of action (¶¶ 42, 66, 80) is granted.

Paragraph 59 is under the cause of action for negligence, to which Defendant did not demur. While punitive damages may be available in claims for negligence, “the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.) For nonintentional torts, punitive damages are authorized “where defendant's conduct which causes injury is of such severity or shocking character that it warrants the same treatment as that accorded to willful misconduct—conduct in which the defendant intends to cause harm.” (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286.) Thus, in general, “[i]t has long been the rule that conduct classified only as unintentional carelessness, while it may constitute negligence or even gross negligence, will not support an award of punitive damages.” (Id. at pp. 285-286.)

The Complaint does not allege that Defendant “was aware of the probable dangerous consequences of [its] conduct, and that [it] willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court, supra, 24 Cal.3d at pp. 895-896.) Nor does Plaintiff allege that Defendant’s conduct was of such “severity or shocking character that it warrants the same treatment as that accorded to willful misconduct—conduct in which Defendant intends to cause harm.” (Nolin v. National Convenience Stores, Inc., supra, 95 Cal.App.3d at p. 286.) Thus, these allegations do not establish an exception for punitive damages in a negligence cause of action. There is no specific showing as to malice, oppression, or fraud. (See Taylor v. Superior Court, supra, 24 Cal.3d at pp. 894-895 [“ ‘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’ ” ] quoting Prosser, Law of Torts, italics added.)

Plaintiff’s cited cases in opposition are all factually distinguishable. For example, in Penner v. Falk (1984) 153 Cal.App.3d 858, the tenant was robbed and assaulted in his apartment building. In reversing the trial court’s sustaining a demurrer as to punitive damages, the appellate court noted the “long existing physical conditions of the premises” caused danger to the tenants and, despite having the power to make changes, the landowners failed to take correction action. (Penner v. Falk, supra, 153 Cal.App.3d at p. 867.) No such allegations are made here.

As to Paragraph 3 in the Complaint’s Prayer for Relief for attorneys’ fees, such fees are not recoverable unless provided for by contract or statute. (Code Civ. Proc., §§ 1021.) The Complaint does not allege a basis for attorney’s fees and Plaintiff does not argue this point in his Opposition. Therefore, the paragraph is ordered stricken.

The demurrer is sustained as to the first, third, and fourth causes of action. The motion to strike is granted in its entirety. Plaintiff is granted leave to amend within 20 days from the hearing as to the third and fourth causes of action. Leave to amend is denied as to the first cause of action.