Judge Deirdre Hill, Case 21STCV08050 2023-04-28 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: Defendant Marriott International, Inc., Rai Gao, Inc. and Kym Myers

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the 2^ndcause of action. The motion to strike is GRANTED WITHOUT LEAVE TO AMEND in its entirety. Defendants are ordered to file answers within 20 days.

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.

On January 13, 2023, the court sustained defendants’ demurrers without leave to amend as to the 1^st, 3^rd, 5^th, and 6^th causes of action, sustained with leave to amend as to the 4^th cause of action, and overruled as to the 7^th cause of action. The court deemed the motions to strike 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 leave to amend as to para. 78 and prayer for punitive damages.

On February 10, 2023, plaintiff filed a FAC for (1) negligence, (2) fraudulent concealment, and (3) 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 2^nd cause of action for fraudulent concealment on the ground that the allegations are insufficient to constitute a cause of action.

In the FAC, plaintiff alleges that on March 2, 2019, he checked in at the hotel and was assigned Room 660. FAC, ¶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. He did not leave his hotel room that day, so he knew the bites occurred within the hotel. 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 he 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 the subject hotel has a prior and/or ongoing history of bedbug infestations and guests complaining of such infestations. As of the date of the complaint, at least six prior complaints of bedbugs are listed online on the Bedbug Registry; at least five complaints in reviewed discussing experiences of bedbugs at the hotel are listed on the website, www.yelp.com prior and subsequent to plaintiff’s stay; and at least one prior complaint in reviews discussing experiences of bedbugs at the hotel are listed on the website, www.tripadvisor.com. Id., ¶21. 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., ¶22. 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., ¶23. Defendants deliberately chose not to notify, or otherwise failed to notify plaintiff, of the presence of bedbugs in plaintiff’s room. Id., ¶25. 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., ¶26. Front desk personnel, hotel management, and housekeeping staff at the hotel were aware of the bedbug infestation in the hotel, and specifically, plaintiff’s room. Id., ¶27. Front desk personnel intentionally did not disclose the material fact of the bedbug infestation during check-in and knew plaintiff would not discover on his own prior to checking-in to his room. Id., ¶29. After plaintiff’s check-in discussion with front desk personnel, plaintiff felt comfortable with his choice of this hotel and did not think there would be anything wrong with the assigned room. He thought he would be placed in a safe, sanitary, and clean room. Id., ¶30. 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., ¶34.

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 as evidenced by prior similar incidents and reviews posted on various online platforms by prior guests and invitees, defendants were aware of the presence of the infestation of bedbugs, and the like, to be present in the rooms at their hotel. FAC, ¶62. Defendants were aware of the unsanitary and uninhabitable conditions in the rooms of the hotel. Specifically, defendants were on notice of the bedbug infestation present in plaintiff’s room and other rooms at the hotel and defendants were aware of said conditions’ danger to plaintiff’s and other guests’ health and well-being. Id., ¶63. Defendants were aware of the presence of insects, bed bugs, and the like, to be present in the rooms of their hotel as they were on notice of prior similar incidents. Defendants’ failure to implement policies and procedures, training, and proper cleaning processes of each and every room at the hotel to prevent an incident such as this and the spread of insects, bed bugs, and the like amounts to suppression and concealment of existing unsanitary and uninhabitable conditions occurring in the rooms at the hotel. Id., ¶64. Given the existing knowledge of the unsanitary conditions and infestation, defendants failed to inform plaintiff of said conditions existing in the room to which he was assigned. Defendants failed to make any representations to plaintiff regarding this infestation. Id., ¶65. Defendants had a duty to disclose existence of the unsanitary and unhealthy conditions but failed to do so with the intent to rent the rooms at the hotel to guests such as plaintiff without burdening themselves with the necessary processes and procedures for maintaining the hotel in clean, habitable, and sanitary conditions. Id., ¶66.

Defendants argue that the allegations are conclusory and that plaintiff has failed to plead with the requisite particularity. 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 alleged prior complaints (through bedbug registry and online reviews) of bed bugs lack specificity. As defendants argue, plaintiff does not allege “who had this knowledge, how it was obtained, or when it was obtained.” The allegations are at best contentions and deductions and not proper factual allegations to the heightened degree required for pleading fraud.

Defendants request that the court strike all portions of the complaint seeking punitive damage at para. 82 and prayer at line 7.

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.”

The court finds that the allegations are insufficient to support a claim for punitive damages. They do not support malice, oppression, or fraud.