Judge: Deborah C. Servino, Case: 30-2019-01086366, Date: 2022-12-02 Tentative Ruling
DEMURRER
Defendants TWDC Enterprises 18 Corp. formerly known as The Walt Disney Company and Walt Disney Parks and Resorts U.S., Inc.’s demurrer to the first, third, fourth, fifth, and sixth causes of action in Plaintiffs Wayne Russell, Carri McClain, Joan Snell, Ashley Willey, Penelope Willey, and Annalise Willey’s Second Amended Complaint (SAC) is sustained without leave to amend.
Request for Judicial Notice
Defendants’ request for judicial notice of the June 15, 2022 minute order is unnecessary. It is not necessary to ask the court to take judicial notice of materials previously filed in the case. All that is necessary is to call the court's attention to such papers. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 9.53.1a.)
Battery (First Cause of Action)
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, 669; CACI no. 1300.)
The court previously sustained the demurrer to the First Amended Complaint (“FAC”) as to this cause of action ruling that the allegations amounted to negligence and not reckless disregard. (ROA 116.) The FAC alleged that Defendants “deliberately and recklessly” chose not to inspect and willfully disregarded a prior bedbug infestation. (FAC, at ¶ 17.) The FAC also alleged that Defendants “failed to eradicate a prior bedbug infestation of Plaintiffs’ room and did not ensure that the bed in Plaintiffs’ room was free from bedbugs before renting it to Plaintiffs, despite knowledge of the prior infestation in that room.” (FAC, at ¶ 18.) The allegations of a failure to change bed skirts, negligent inspection of the rooms, and negligent training of employees to detect bedbugs, sound in negligence. (See FAC, at ¶ 33.)
These allegations remain unchanged in the SAC. Plaintiffs add the following allegation in the SAC: “Front desk personnel, hotel management, and housekeeping staff at the hotel were all aware of the bedbug infestation in the hotel and, specifically, Plaintiffs’ room.” (SAC, at ¶ 22; see ¶ 24.) The SAC clarifies that Defendants had knowledge as of July 25, 2017, the day before Plaintiffs checked in, “that there was a bedbug infestation present in the hotel and specifically, Plaintiffs’ Room”. (SAC, at ¶ 38.)
The court must assume the complaint's properly pleaded or implied factual allegations are true, and give the complaint a reasonable interpretation, reading it in context. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) A plain reading shows that Defendant knew about a prior bedbug infestation, as close as the day before Plaintiffs checked in, and “Management did not place adequate safeguards to protect clients from an ongoing bedbug exposure”. (SAC, at ¶ 21.) The allegations also fail to meet the requirement of willful disregard required for intent. (See Ashcraft v. King (1991) 228 Cal.App.3d 604, 613.) The demurrer to the first cause of action for battery is sustained.
Intentional Infliction of Emotional Distress (IIED) (Third Cause of Action)
The elements of an intentional infliction of emotional distress claim are “(1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” The “outrageous” conduct “must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” Thus, “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.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160–161, internal citations omitted.) Our high court has set a similarly “high bar” for “severe emotional distress,” which means “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051, citation omitted.)
The court previously sustained the demurrer to the FAC as to this cause of action on the ground that knowledge of a prior infestation does not amount to reckless disregard and Plaintiffs had not alleged that they suffered severe emotional distress. (ROA 116.) The SAC does not remedy these infirmities. The court sustains the demurrer to the third cause of action for IIED.
Fraudulent Concealment (Fourth Cause of Action)
“[T]he elements of an action for fraud and deceit based on a 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.)
There are four circumstances in which concealment/omission may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. (Limandri v. Judkins (1997) 52 Cal.App.4th 326, 336-337; CACI no. 1901.) The particularity requirement necessitates pleadings 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.)
The court previously sustained the demurrer to the FAC as to this cause of action finding that the claim lacked specificity. (ROA 116.) Here, the SAC still lacks sufficient specificity. (See SAC, at ¶¶ 78-96.) Thus, the demurrer to the fourth cause of action for fraudulent concealment is sustained.
Private Nuisance (Fifth Cause of Action)
“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 . . . is a nuisance.” (Code Civ. Proc., § 3479.)
“The essence of a private nuisance is an interference with the use and enjoyment of land.” (Friends of H Street v. City of Sacramento (1993) 20 Cal. App. 4th 152, 160.) Thus, to allege a cause of action for private nuisance, the plaintiff must allege injury specific to the use and enjoyment of his land. (See Adams v. MHC Colony Park Limited Partnership (2014) 224 Cal. App. 4th 601, 610.) A property owner who has notice of a nuisance created by another may be liable if he or she fails to take reasonable measures to abate the nuisance. (Dennis v. City of Orange (1930) 110 Cal. App. 16, 22–23; Lew v. Superior Court (1993) 20 Cal. App. 4th 866, 871.)
The court previously sustained the demurrer to the FAC as to this cause of action ruling that the essence of a private nuisance is an interference with the use and enjoyment of land, and without it, the fact of personal injury, or of interference with some purely personal right is not enough for such a nuisance. (ROA 116; Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal. App. 3d 116, 124-125; see Avedon v. State (2010) 186 Cal. App. 4th 1336, 1345; El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.) Plaintiffs allege no new facts that would properly allege this claim. The court sustains the demurer to Plaintiffs’ fifth cause of action for private nuisance.
Public Nuisance (Sixth Cause of Action)
“A nuisance is considered a ‘public nuisance’ when it ‘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.’ A ‘private nuisance’ is defined to include any nuisance not covered by the definition of a public nuisance, and also includes some public nuisances. ‘In other words, it is possible for a nuisance to be public and, from the perspective of individuals who suffer an interference with their use and enjoyment of land, to be private as well.’ ” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 261-262.) Although a public nuisance can support recovery for either personal harm or property damage, a plaintiff suing on this basis must show special injury to himself of a character different in kind, not merely in degree, from that suffered by the general public. (Institoris v. City of Los Angeles (1989) 210 Cal.App.3d 10, 20.)
The essential factual elements of a public nuisance claim are that (1) defendant created a condition or permitted a condition to exist that was harmful to health, was indecent or offensive to the senses, or was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; (2) that the condition affected a substantial number of people at the same time; (3) that an ordinary person would be reasonably annoyed or disturbed by the condition; (4) that the seriousness of the harm outweighs the social utility of defendant’s conduct; (5) that plaintiff did not consent to defendant’s conduct; and (6) that defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI no. 2020.)
The court previously sustained the demurrer to the FAC as to this cause of action because the facts did not show an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property that affects at the same time an entire community or neighborhood. The allegations also did not support that the purported interference is substantial and unreasonable. (ROA 116.)
Nothing new in alleged in the SAC to remedy these issues. Thus, the demurrer is sustained. The court sustains the demurer to Plaintiffs’ sixth cause of action for public nuisance.
Plaintiffs request leave to amend. As the court previously noted, it was uncertain whether Plaintiffs would be able to cure the deficiencies. (6/15/2022 Minute Order.) They have been given fair and ample opportunity to amend and have not cured the deficiencies. Accordingly, the demurrer is sustained without leave to amend.
MOTION TO STRIKE
Defendant’s motion to strike is moot except for the allegation contained in the background facts in paragraph 39 of the SAC. As to that paragraph, the motion is granted.
Paragraph 39 is in the factual background before the causes of action are alleged. It reads: “An officer, director, or managing agent of Defendants, and DOES 1 through 20, authorized or ratified the fraudulent conduct of the hotel employees by failing to remedy prior bedbug infestations and deliberately concealing the fact of their presence in the hotel.” Since Plaintiffs have not properly alleged a fraud claim, this allegation is improperly contained in the SAC. Furthermore, the only remaining cause of action at this time is negligence. The court already ruled that punitive damages cannot be alleged in the negligence claim. (See ROA 116.)
No later than December 19, 2022, Defendants shall answer what remains of the SAC.
Defendants shall give notice of the ruling.
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