Judge Deirdre Hill, Case 21STCV08050 2023-01-13 Tentative Ruling

ALERT

Due to Coronavirus, please consider appearing by phone for Department M cases.

Department M strongly encourages the use of LA CourtConnect* for ALL hearings, without need for prior approval, unless live testimony by a witness is required.

The contact information for LA CourtConnect* is:

https://lacourt.portalscloud.com/VCourt/

*Parties with a fee waiver on file may be eligible to appear at no/reduced cost

Moving Parties: (1), (3) Defendant Marriott International, Inc.; (2), (4) Rai Gao, Inc. and Kym Myers

The demurrers are SUSTAINED WITHOUT LEAVE TO AMEND as to the 1^st, 3^rd, 5^th, and 6^th causes of action, SUSTAINED WITH 20 DAYS LEAVE TO AMEND as to the 4^th cause of action, and OVERRULED as to the 7^th cause of action.

The motions to strike are MOOT as to paras. 40 and 64, GRANTED WITHOUT LEAVE TO AMEND as to para. 57 and prayer for attorney’s fees, and GRANTED WITH 20 DAYS LEAVE TO AMEND as to para. 78 and prayer for punitive damages.

On March 1, 2021, plaintiff Duane Conner filed a complaint against Marriott International, Inc., Four Points by Sheraton Los Angeles International Airport, and Kym Myers for (1) battery, (2) negligence, (3) IIED, (4) fraudulent concealment, (5) private nuisance, (6) public nuisance, and (7) breach of contract.

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. “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.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “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 v. Mirda (2007) 147 Cal. App. 4th 740, 747.

“The court may, upon a motion . . . , or at any time in its discretion, and upon terms it deems proper: (a) Strike 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.” CCP §436(b).

CCP §431.10 states: “(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.”

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP §437.

Defendants Marriott International, Inc. and Rai Gao, Inc. (erroneously sued and served as Four Points by Sheraton Los Angeles International Airport) and Kym Myers demur to the 1^st cause of action for battery, 3^rd cause of action for IIED, 4^th cause of action for fraudulent concealment, 5^th cause of action for private nuisance, 6^th cause of action for public nuisance, and 7^th cause of action for breach of contract on the ground that the allegations are insufficient to constitute a cause of action.

In the complaint, plaintiff alleges that on March 2, 2019, he checked in at the hotel and was assigned Room 660. Complaint, ¶14. Plaintiff discovered that he had been bitten all over his body. Over time, these bites continued to worsen into painful, itchy, and swollen bites. Id., ¶15. On March 3, 2019, plaintiff checked out of the hotel. Id., ¶16. On March 4, 2019, plaintiff notified the hotel management regarding the incident. However, they denied the existence of the bedbugs, and plaintiff did not receive compensation for his injuries. Id., ¶17. On March 7, 2019, due to the worsening of his injuries, plaintiff sought medical care at Dignity Health Medical Group—Inland Empire where he was diagnosed with bedbug bites sustained at the hotel and prescribed medication for his injuries. Id., ¶18. Due to the extensiveness of the bedbug bites and the constant itching and pain she was experiencing from them, plaintiff decided to seek further medical attention. Plaintiff still has physical scarring on his body and emotional scarring as a result of the bedbug bites. Id., ¶19.

Plaintiffs allege that defendants deliberately and recklessly chose not to inspect or otherwise ensure that plaintiff’s room was free of bedbugs immediately before plaintiff’s stay at the motel, willfully disregarding knowledge of a prior bedbug infestation known to defendants. Id., ¶21. Defendants failed to eradicate a prior bedbug infestation of plaintiff’s room and did not ensure that the bed in plaintiff’s room was free from bedbugs before renting it to plaintiff, despite knowledge of a prior infestation in that room. Id., ¶22. Defendants deliberately chose not to notify, or otherwise failed to notify plaintiff, of the presence of bedbugs in plaintiff’s room. Id., ¶24. Management did not place adequate safeguards to protect clients from an ongoing bedbug exposure. Instead of making a change to management to protect clients from inadequate oversight, defendants have kept management in place. Id., ¶25. Defendants authorized or ratified housekeeping staff at the hotel to either not change bed skirts on a regular basis or to no inspect and ensure that bed skirts are free from bedbug infestation in plaintiff’s room prior to plaintiff’s arrival. Id., ¶26.

“Battery is an offensive and intentional touching without the victim’s consent.” Kaplan v. Mamelak (2008) 162 Cal. App. 4th 637, 645. “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.” Yun Hee So v. Sook Ja Shin (2013) 212 Cal. App. 4th 652, 669. “In an action for civil battery the element of intent is satisfied if the evidence shows defendant acted with a ‘willful disregard’ of the plaintiff's rights.” Ashcraft v. King (1991) 228 Cal. App. 3d 604, 613

Plaintiff alleges that during plaintiff’s stay, defendants intentionally and recklessly did acts that were unconsented to by plaintiff and therefore resulted in offensive contact with his person, including (1) defendants’ deliberate choice not to eradicate a bedbug infestation in the hotel; (2) defendants’ deliberate choice not to inspect or ensure that plaintiffs’ room was free of bedbugs immediately before plaintiff’s stay at the hotel; (3) deliberate and reckless choice not to inspect the bed skirts in plaintiff’s room to protect against and prevent a bedbug infestation; (4) defendants’ willful disregard of a bedbug infestation that was either known or should have been known from prior infestations in plaintiff’s room; and (5) defendants’ deliberate and reckless choice not to notify plaintiff of the presence of bedbugs in the hotel and, specifically, plaintiff’s room. Complaint, ¶35. Defendants did the aforementioned acts with the intent to cause a harmful or offensive contact with the body of plaintiff, or with a reckless disregard of the probability of causing such offensive contact. Id., ¶36.

The court finds that the allegations are insufficient to meet the elements. Plaintiff fails to allege sufficient facts to show the requisite intent to cause harmful contact. The allegations are conclusory. Plaintiff also alleges omissions rather than affirmative conduct. Further, plaintiff cite to no California cases addressing a cause of action for battery in a bedbug case.

The elements of an intentional infliction of emotional distress cause of action are: (1) extreme and outrageous conduct by the defendant; (2) intention to cause or reckless disregard of the probability of causing emotional distress; (3) severe emotional suffering; and (4) actual and proximate causation of the emotional distress. See Moncada v. West Coast Quartz Corp. (2013) 221 Cal. App. 4th 768, 780; Wilson v. Hynek (2012) 207 Cal. App. 4th 999, 1009. To satisfy the element of extreme and outrageous conduct, defendant’s conduct “‘must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’” Moncada, supra, at 780 (citation omitted).

“Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” McDaniel v. Gile (1991) 230 Cal. App. 3d 363, 372.

“[I]t is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496. “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. While there is no bright-line as to what constitutes outrageous conduct and thus this involves a case-by-case analysis, courts can determine whether conduct was sufficiently outrageous at the demurrer stage. Id. at 494. However, when reasonable persons may differ, it is for the jury, subject to the control of the Court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.¿ Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.

The complaint alleges that defendants’ actions were intentional, extreme, and outrageous—namely, because of the following egregious and reckless conduct: (1) defendants’ willful disregard of a bed bug infestation that was either know or should have been known from prior infestations in the hotel and plaintiff’s room; (2) defendants’ deliberate and reckless choice to abstain from notifying plaintiff of a known presence of bed bugs in plaintiff’s room, prior to plaintiff’s arrival; (3) defendants’ deliberate choice not to eradicate a bedbug infestation in plaintiff’s room, which was already known to defendants; (4) defendants’ 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 bed bug infestation immediately prior to plaintiff’s stay; (5) defendants’ deliberate and reckless choice not to inspect or ensure that plaintiff’s room was free of bedbugs immediately prior to plaintiff’s stay; (6) defendants’ routine practice of showing extreme indifference to the danger of bedbug infestations; (7) defendants’ failure to have adequate policies and procedures to properly train employees of the hotel to inspect rooms for bedbug infestations and to adequately protect hotel guests from an exposure to bedbug infestations; and (8) defendants’ failure to implement any new policies and procedures after plaintiff’s injuries to prevent further bedbug infestations in his hotel. Id., ¶59. Defendants’ actions were done with the intent to cause serious emotional distress or with reckless disregard of the probability of causing plaintiff serious emotional distress. Id., ¶60.

The court finds that the allegations are insufficient. Plaintiff does not allege facts to show extreme or outrageous conduct.

The elements of a fraud claim are (1) misrepresentation; (2) knowledge of falsity; (3) intent to deceive; and (4) reliance and resulting damage. Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal. App. 4th 282, 290. “To withstand demurrer, the facts constituting every element of fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal. App. 4th 772, 782. 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.

“[T]o establish fraud through nondisclosure or concealment of facts, it is necessary to show the defendant ‘was under a legal duty to disclose them.’” OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal. App. 4th 835, 845. Nondisclosure or concealment may constitute actionable fraud when: (1) there is a fiduciary relationship between the parties; (2) the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) the defendant actively conceals a material fact from the plaintiff; and (4) the defendant makes partial representations but also suppresses some material facts. Los Angeles Memorial Coliseum Commission v. Insomniac, Inc. (2015) 233 Cal. App. 4th 803, 831.

Plaintiff alleges that defendants, through their employees and agents, intentionally failed to disclose the material fact of the bedbug infestation, a fact known to defendants, and which defendants knew plaintiff would not discover on his own prior to renting the hotel room. Id., ¶69. Plaintiff did not know, and did not have any way of knowing, of the concealed fact of the bedbug infestation prior to renting the hotel room. Id., ¶70. Defendants intended to deceive plaintiff and take advantage of plaintiff’s lack of knowledge of the infestation in order to turn a profit on a night’s stay at his hotel, and intended to deceive plaintiff by concealing the fact of the bedbug infestation. Id., ¶71. Plaintiff reasonably relied on defendants’ deception. Id., ¶72. Plaintiff was harmed. Id., ¶73.

Defendants argue that the allegations are conclusory. Defendants contend that plaintiff has not alleged facts to support the element of “knowledge of falsity” that the guest room was infested with bed bugs.

The court finds that plaintiff failed to plead with the requisite particularity. The allegations are also insufficient as to knowledge and intent to deceive. Plaintiff fails to allege specific facts establishing both actual knowledge prior to plaintiff’s use of the room and affirmative conduct constituting concealment. The allegations are at best contentions and deductions and not proper factual allegations to the heightened degree required for pleading fraud.

The elements of a claim for private nuisance are as follows: “First, the plaintiff must prove an interference with his use and enjoyment of his property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land [must be] substantial, i.e., that it cause[s] the plaintiff to suffer substantial actual damage. Third, [t]he interference with the protected interest must not only be substantial, but it must also be unreasonable [citation], i.e., it must be of such a nature, duration or amount as to constitute unreasonable interference with the use and enjoyment of the land.” Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal. App. 5th 248, 262-263 (citations omitted).

"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.

“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 Fiberglas Corp. (1971) 22 Cal. App. 3d 116, 125.

Here, plaintiff alleges he was a lodger at defendants’ hotel. He does not cite to any legal authority giving rise to a right of action for private nuisance by a hotel lodger. Further, plaintiff makes no allegation of property interference, only personal injury.

“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. “Of course, not every interference with collective social interest constitutes a public nuisance. To qualify, and thus be enjoinable, the interference must be both substantial and unreasonable.” People Ex Rel. Gallo v. Acuna (1997) 14 Cal. 4th 1090, 1105.

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 2020.

In the complaint, plaintiff alleges that the bedbug infestation affects the community at large. Complaint, ¶87. Plaintiff’s use and enjoyment of their room was greatly affected, which is separate from the harm suffered by the general public. Id., ¶88. Defendants failed to adequately abate the nuisance as required by law. Id., ¶90.

The court finds that the allegations are insufficient to support a cause of action based on general public nuisance. The allegations do 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 do not support that the purported interference is substantial and unreasonable. Plaintiff also lacks standing because he was merely a transient “lodger” and lacks a property interest. Plaintiff also does not allege sufficient facts that he is a member of a relevant community.

“To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant's breach and resulting damage. If the action is based on alleged breach of written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” Harris v. Rudin, Richman & Appel (1999) 74 Cal. App. 4th 299, 308 (citation omitted). Alternatively, “a plaintiff may plead the legal effect of the contract rather than its precise language.” Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199. “[A]ll essential elements of a breach of contract cause of action[] must be pleaded with specificity.” Levy v. State Farm Mutual Automobile Ins. Co. (2007) 150 Cal. App. 4th 1, 5.

The complaint alleges that the parties entered into a written contract for the rent of plaintiff’s room in compliance with Health and Safety Code at the hotel. Complaint, ¶92. Plaintiff did all the significant things that the contract required plaintiff to do, including payment of the rental price for plaintiff’s room. Complaint, ¶93. All conditions required by the contract for defendants’ performance had occurred. Id., ¶94. Defendants breached the contract by failing to provide plaintiff a habitable room for lodging, as evident by the presence of a bedbug infestation in plaintiff’s room. Id., ¶95.

The court finds that the allegations are sufficient. Plaintiff has alleged the legal effect of the written contract entered into with defendants, that plaintiff paid defendants for a safe hotel room, and defendants failed to furnish a safe hotel room.

Defendants request that the court strike all portions of the complaint seeking punitive damage at paras. 40 (under 1^st cause of action), 57 (under 2^nd cause of action), 64 (under 3^rd cause of action), and 78 (under 4^th cause of action) and prayer at paras. 2 (punitive damages) and 3 (attorney’s fees).

Civil Code §3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found that “[s]omething 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.”

As to paragraphs 40 and 64, the motions are MOOT in light of the ruling on the demurrers as to the 1^st and 3^rd causes of action.

As to paragraph 78, the motions are GRANTED WITH LEAVE TO AMEND in light of the ruling on the demurrers as to the 4^th cause of action.

As to paragraph 57 under the 2^nd cause of action for negligence, the allegations are insufficient to show oppression, fraud, or malice. “Inasmuch as Civil Code section 3294 requires as a prerequisite to the recovery of punitive damages that the defendant ‘has been guilty of oppression, fraud, or malice,’ the cases have uniformly recognized that proof of negligence, even gross negligence, or recklessness is insufficient to warrant an award of punitive damages.” Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87 (citations omitted). Thus, the motions are GRANTED WITHOUT LEAVE TO AMEND.

As to prayer for punitive damages, the motions are GRANTED WITH LEAVE TO AMEND in light of ruling on the demurrers as to the 4^th cause of action.

As to prayer for attorney’s fees, the motions are GRANTED WITHOUT LEAVE TO AMEND. The allegations are insufficient to support a claim for attorney’s fees as plaintiffs have not alleged any express statute or contractual provision allowing for attorney’s fees. See CCP §1021. Also, plaintiff did not address in the opposition.