Judge Deirdre Hill, Case BC695445 2022-09-20 Tentative Ruling

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The motion for summary judgment is DENIED. The motion for summary adjudication is GRANTED as to the claim for punitive damages.

On February 26, 2018, plaintiffs Rosina Llamas, Izaiah Gonzalez, and Aiden Gonzalez filed a complaint against Economy Inn and Pravin M Bhakta for (1) battery, (2) negligence, (3) negligence per se, (4) NIED, (5) IIED, (6) fraudulent concealment, and (7) public nuisance.

On December 8, 2020, Judge Goorvitch (Personal Injury Hub) ruled on defendants’ demurrer as follows: sustained with leave to amend as to the 1^st cause of action, 6^th cause of action, and 7^th cause of action. The court overruled the demurrer as to the 5^th cause of action for IIED. The court denied the motion to strike as to punitive damages and granted it as to attorney’s fees.

On January 4, 2021, plaintiffs filed a FAC for (1) battery, (2) negligence, (3) negligence per se, (4) NIED, (5) IIED, (6) fraudulent concealment, and (7) public nuisance.

On March 16, 2021, the court sustained defendants’ demurrer to the 1^st, 6^th, and 7^th causes of action in the FAC without leave to amend.

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

Defendants Economy Inn and Pravin M. Bhakta request summary judgment as to the FAC and the 2^nd, 3^rd, 4^th, and 5^th causes of action on the ground that no triable issue of material fact exists and defendants are entitled to judgment as a matter of law.

In the alternative, defendants request summary adjudication as to the claim for punitive damages.

In the FAC, plaintiffs allege that on February 26, 2016, plaintiffs checked in at the motel and were assigned Room 2013. FAC, ¶13. On February 27, 2016, plaintiffs began to feel a bit of discomfort and itchiness. They did not think much of it and simply went to sleep for another night. Id., ¶14. Upon waking up on February 28, 2016, plaintiff noticed that she had been bitten many times on both her arms, lower back, and legs. She later realized they must have been from bedbugs. Id., ¶15. After complaining to the motel on February 28, 2016, members of the motel staff denied that there was any bedbug problem. Id., ¶16. On February 29, 2016, plaintiffs presented themselves to Valle Verde Medical Group, where they were examined. The assessment confirmed bites from bugs during their stay at the motel. They were prescribed medications to treat the bites and now have physical scarring on their body. Id., ¶18.

Plaintiffs allege that defendants deliberately and recklessly chose not to inspect or otherwise ensure that plaintiffs’ room was free of bedbugs immediately before plaintiffs’ stay at the motel, willfully disregarding knowledge of a prior bedbug infestation known to defendants. Id., ¶20. Defendants failed to eradicate a prior bedbug infestation of plaintiffs’ room, despite knowledge of a prior infestation in that room. Id., ¶21. Front desk personnel, motel management, and housekeeping staff at the motel were all aware of the bedbug infestation in the motel and in plaintiffs’ room. Id., ¶25. Motel management did not implement adequate policies and procedures to sufficiently train employees of the motel to inspect rooms for bedbug infestations and to protect motel guests from exposure prior to plaintiffs’ stay. Management have not been replaced by defendants. Id., ¶34.

Defendants argue that there is no evidence that defendants breached any legal duty owed to plaintiffs. Defendants cite to Request for Admissions Nos. 1, 3, and 7 where plaintiffs responded with “Deny.” No. 1 states “[a]dmit that defendants did not have prior knowledge of an alleged bedbug infestation in the motel prior to your residence there. . . .” No. 3 states “[a]dmit that defendants did not have any knowledge of an alleged bedbug infestation in Room 203 of their premises prior to when plaintiffs stayed there. . . .” No. 7 states “[a]dmit that you have no facts to support your cause of action for negligence.” Defendants contend that in response to Form Interrogatory No. 17.1, plaintiffs responded with objections and no facts.

Defendants further argue that the actions or inactions of defendants was not the substantial factor in causing plaintiffs’ alleged injuries and that plaintiffs have not provided any evidence that there is a causal connection.

The court notes that defendants provided the deposition testimony of plaintiff Rosina Llamas who testified that they complained about the first room—209—the first night because of nails exposed at the end of the carpet and a dead insect by the window. On the second night, they were switched to room 203 and when they got to the room, they did not notice anything wrong. Plaintiffs left the next day to drive home around 9:00, 10:00 in the morning. On the way home “I started noticing my hands red. Then there was some itchiness . . . everywhere, coming from everywhere. I didn’t pay attention to it a lot. . . . But then the itchiness became more frequent. It started . . . really hurting, my hands were really turning sore. And that’s when I lift my shirt up and I had a lot of dots.” She noticed bites on her back when her husband checked her when they arrived home. Her son started complaining about the itchiness that night. She also testified that she had slept in one bed with her sons and her husband and daughter had slept in the other bed and that her husband and daughter did not complain of any itchiness or bug bites. She also testified that the doctor diagnosed the bites from bedbugs. When asked “why is it that you believe that the insect bites occurred at the hotel?” she responded, “It was the same bed me, my sons were sleeping on.” She also testified that no one got any bug bites after she got home.

In opposition, plaintiffs argue that the burden does not shift because plaintiff’s deposition testimony is sufficient evidence to show plaintiffs sustained bed bug injuries during their stay at the Economy Inn during their stay in February 2016.

The court finds that defendants have not met their burden to show that plaintiffs cannot establish the elements of negligence, including causation. Plaintiff’s deposition testimony provided by defendants raise a triable issue of material fact as to breach and causation.

“Evidence Code section 669 creates a presumption of negligence from the violation of a statute or ordinance. There are four ‘basic facts’ which must be shown for this presumption to apply: (1) the violation; (2) the violation as a proximate cause of the injury; (3) an injury resulting from an occurrence of the nature which the statute was designed to prevent; and (4) the injured party being a member of the class of persons for whose protection the statute was adopted. Salinero v. Pon (1981) 124 Cal. App. 3d 120, 134 (citation omitted).

“[T]o apply negligence per se is not to state an independent cause of action. The doctrine does not provide a private right of action for violation of a statute. Instead, it operates to establish a presumption of negligence for which the statute serves the subsidiary function of providing evidence of an element of a preexisting common law cause of action.” Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1285-1286 (citations omitted). “[T]he doctrine of negligence per se is an evidentiary presumption rather than an independent right of action . . . .” Id. at 1286.

Defendants argue that this claim is not a separate cause of action but the application of an evidentiary presumption. Defendants also argue that plaintiffs have failed to provide any evidence in support of such a claim.

The court finds that defendants have shown that plaintiffs cannot establish a cause of action for negligence per se because it is an evidentiary presumption and not a cause of action.

NIED is not a valid cause of action against defendants, but merely a form of damages subsumed within a negligence cause of action. See Lawson v. Management Activities, Inc. (1999) 69 Cal. App. 4th 652, 656. “[T]here is no independent tort of negligent infliction of emotional distress. Thus, since plaintiffs’ purported negligent infliction claim was merely ‘a species of negligence,’ the better question to ask in appraising plaintiffs’ so-called negligent infliction allegations is: ‘What are the circumstances under which a plaintiff can recover damages for emotional distress as a matter of the law of negligence?’” Delfino v. Agilent Technologies, Inc. (2006) 145 Cal. App. 4th 790, 818. See also Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1072, stating “We have repeatedly recognized that ‘the negligent causing of emotional distress is not an independent tort, but the tort of negligence.’”; Gu v. BM of North America, LLC (2005) 132 Cal. App. 4th 195, 204 (“[T]here is no independent tort of negligent infliction of emotional distress.”).

Defendants argue that this claim is not an independent tort and that plaintiffs have not provided defendants with any evidence of a breach that would warrant a cause of action separate and distinct from a claim for general negligence.

The court finds that defendants have met their burden that plaintiffs cannot establish a cause of action for NIED because it is not an independent tort. Plaintiffs have failed to present substantial evidence to raise a triable issue of material fact.

The tort of intentional infliction of emotional distress is comprised of three elements: (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 or extreme emotional distress; and (3) the plaintiff's injuries were actually and proximately caused by the defendant's outrageous conduct. McMahon v. Craig (2009) 176 Cal. App. 4th 222, 234. “In order to meet the first requirement of the tort, the alleged conduct . . . must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Id. at 234-35. Whether conduct is sufficiently extreme and outrageous so as to be actionable may be determined as a matter of law. Cochran v. Cochran (1998) 65 Cal. App. 4th 488, 494. To avoid demurrer, the plaintiff must allege such acts with great specificity. Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal. App. 4th 144, 160-61. Mere indignities, insults, threats, annoyances, petty oppressions and the like are not enough. Hughes v. Pair (2009) 46 Cal. 4th 1035, 1051.

Defendants argue that there is no evidence that defendants engaged in “extreme and outrageous conduct” with the intention of causing emotional distress.

The court finds that defendants have met their burden to show that plaintiffs cannot establish a cause of action for IIED. Plaintiffs have failed to provide substantial evidence to raise a triable issue of material fact.

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.”

“’Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Civil Code §3294(c)(1).

As the Court noted in College Hospital v. Superior Court (1994) 8 Cal. 4th 704, 713, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The Court in College Hospital held further that “despicable conduct refers to circumstances that are base, vile, or contemptible.” Id. at 725 (citation omitted).

Under Civil Code §3294(b), “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud or malice must be on the part of an officer, director or managing agent of the corporation.”

Defendants argue that this claim fails as a matter of law because defendants’ evidence demonstrates the opposite of malice, fraud, or oppression and that plaintiffs have no evidence that defendant somehow were engaged in despicable, vile behavior, or that any officer, director, or managing agent ratified such conduct. Further, defendants argue, plaintiffs have not shown any evidence of corporate liability.

Accordingly, the motion for summary judgment is DENIED. “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CCP §437c(c). As stated above, there are triable issues under the 2^nd cause of action for negligence. Defendants did not move for summary adjudication as to each of the causes of action. The motion for summary adjudication is GRANTED as to the claim for punitive damages.