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Judge: Donald F. Gaffney, Case: "Khalepari v. Merry Star Hotel, LLC", Date: 2023-07-26 Tentative Ruling

TENTATIVE RULING:

For the reasons set forth below, Defendant Merry Star Hotel, LLC’s Demurrer to the First Amended Complaint is SUSTAINED in part, with leave to amend, and OVERRULED in part.

Demurrer

A. Legal Authority

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.) Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.)

B. Merits

1. Second Cause of Action for Nuisance

The second cause of action alleges the bed bug infestations at the Subject Property constitute a nuisance because they are injurious to the health and safety of Plaintiffs and the public at large, indecent and offensive to the senses of Plaintiffs and the public at large, and interfere substantially with Plaintiffs’ comfortable enjoyment of the Subject Property, and interfered substantially with Plaintiffs’ enjoyment of life. (FAC ¶ 66.) The second cause of action further alleges the “nuisance has a deleterious effect on the public while at the same time specially injuring Plaintiffs.” (FAC ¶ 67.)

“A nuisance is statutorily defined as anything ‘injurious to health’ or ‘indecent, or offensive to the senses, or an obstruction to the free use of property’ that interferes ‘with the comfortable enjoyment of life or property....’” (Civ. Code, § 3479.) “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.” (Civ. Code, § 3480.) “Every nuisance not included in the definition of the last section is private.” (Civ. Code § 3481.)

Private Nuisance

The elements of a cause of action for private nuisance are: (1) an interference with a plaintiff’s use and enjoyment of their property; (2) the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, that is, that it causes plaintiff to suffer substantial actual damage; and (3) the interference must be unreasonable, that is, 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.) “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.)

The FAC does not allege facts demonstrating Plaintiffs have a legal tenancy right at the Subject Property. “One who is merely stopping over at a place in a hotel, motel, rooming house, or who is vacationing is not a resident.” (Enter v. Crutcher (1958) 159 Cal.App.2d Supp. 841, 845.) “When premises are under the direct control and supervision of the owner and rooms are furnished and attended to by him, he or his servants retaining the keys to them, a person renting such a room is a lodger and not a tenant.” (Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416, 421.)

As such, Plaintiffs fail to adequately allege a cause of action for private nuisance.

Public Nuisance

To plead a cause of action for public nuisance, a plaintiff must allege the following: (1) that the defendants, by acting or failing to act, created a condition or permitted a condition to exist that was, among other things, either harmful to health; or 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 the defendants’ conduct; (5) that the plaintiff did not consent to the defendant’s conduct; (6) that the plaintiff suffered harm that was different from the type of harm suffered by the general public; and (7) that the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (See Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548.)

As the California Supreme Court has explained, ‘public nuisances are offenses against, or interferences with, the exercise of rights common to the public.’ [Citation.] The interference must be both substantial and unreasonable. [Citation.]” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542.) “A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.” (Civ. Code, § 3493.)

Here, Plaintiffs have alleged the existence of a bed bug infestation, which is injurious to health, at a hotel open to the public. “A public nuisance cause of action is established by proof that a defendant knowingly created or assisted in the creation of a substantial and unreasonable interference with a public right.” (People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 79.) Plaintiffs’ additional allegations are sufficient at the pleading stage to allege that Defendants had knowledge of an ongoing bed bug infestation, but failed to eradicate the infestation, which amounts to assisting in the creation of the nuisance. Plaintiffs have alleged facts sufficient to constitute a cause of action for public nuisance.

As such, the demurrer to the second cause of action is sustained in part. Plaintiffs are granted leave to amend to make clear that their nuisance cause of action is a public nuisance cause of action. To the extent that Plaintiffs intended to allege a private nuisance cause of action, the demurrer is sustained without leave to amend as to a private nuisance cause of action only.

2. Third Cause of Action for Intentional Infliction of Emotional Distress

The third cause of action alleges Defendant’s conduct in dealing with Plaintiffs was extreme and outrageous because Defendant was aware of the bed bug infestation at the Subject Property and failed to put Plaintiffs on notice, and because Defendant knowingly and willfully failed to eliminate and remediate all bed bug infestations. (FAC ¶¶ 98-113.) Plaintiffs allege Defendant’s failure to remedy the bed bug infestation caused Plaintiffs to endure and presently continue to endure “many sleepless nights and much ongoing emotional and mental distress, coupled with other physical conditions associated with severe presently ongoing mental and emotional distress.” (FAC, ¶¶ 112-113.)

To state a claim for intentional infliction of emotional distress (“IIED”), a plaintiff must allege: (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’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.) “A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” (Id.) The complaint must plead specific facts that establish severe emotional distress resulting from the defendant's conduct. (Michaelian v. State Comp. Ins. Fund (1996) 50 Cal. App. 4th 1093, 1114.)

An IIED cause of action based on reckless disregard of the probability of causing emotional distress requires an intent to injure the plaintiff. (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210; Christensen v. Superior Court (1991) 54 Cal.3d 868, 903-906.) Absent such intent, inaction by a defendant does not constitute extreme and outrageous conduct. (Davidson, 32 Cal.3d at 210 [affirming trial court’s sustaining of demurrer on IIED cause of action based on police officers’ failure to intervene when, during surveillance of a public laundromat, they observed an assault suspect enter and stab the plaintiff].)

While Plaintiffs cite to cases that allow IIED claims in uninhabitable tenancy cases, the court does not find that the facts alleged here are sufficient to give rise to an IIED claim. Unlike an uninhabitability case, where uninhabitable conditions may persist for an extended period of time, where tenants have made multiple complaints, and still no repairs have been made, here, Plaintiffs allege that they stayed at Defendant’s hotel for four days from June 22, 2020, through June 26, 2020. (FAC, ¶ 29.) Plaintiffs allege that they noticed that their initial room, room 322, had bedbugs and notified Defendant’s managers on June 22, 2020. (FAC, ¶ 30.) Defendant moved them to a different room, room 409, which Plaintiffs alleged was still infected with bed bugs. (FAC, ¶ 31.) It is unclear what day Plaintiffs were moved to room 409 and what occurred after they were moved to room 409. As alleged, there are insufficient allegations to show that Defendant intended to injure Plaintiffs. Additionally, there are no specific facts that establish the extent, nature, and degree of severe emotional distress that Plaintiffs allegedly suffered. The boiler-plate allegation regarding Plaintiff’s ongoing mental and emotional distress, without more, is conclusory. The demurrer is sustained with leave to amend.

3. Fourth Cause of Action for Fraudulent Concealment

The fourth cause of action for fraudulent concealment alleges that prior to Plaintiffs’ stay, Defendant had actual and constructive notice that the Subject Property was contaminated with bed bug infestations and that Defendant failed to disclose the material facts or warn Plaintiffs of the presence of the infestations. (FAC ¶¶ 121-122.)

“[T]he elements of an action for fraud and deceit based on 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.” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 CA4th 603, 612-613, 7 CR2d 859, 864.)

Concealment is a species of fraud, and “[f]raud must be pleaded with specificity Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878; Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248. General and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645). However, the requirement of specificity is relaxed when the allegations indicate that ‘the defendant must necessarily possess full information concerning the facts of the controversy.’” (Tarmann v. State Farm (1991) 2 Cal.App.4th 153, 158.)

Further, “‘[a] plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” ’ ” (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614.)

The court finds that, at the pleading stage, Plaintiffs have sufficiently pled a cause of action for fraudulent concealment. Plaintiffs have identified Defendant’s managing agent. Further, Plaintiffs have alleged the factual basis on which they contend that Defendants had actual or constructive knowledge that their rooms allegedly already had bed bugs in them when Defendant allegedly rented the room to Plaintiffs. Given that Defendant has full information regarding Defendant’s knowledge of a bed bug infestation, under a more relaxed standard, the court finds Plaintiffs’ allegations sufficient. The demurrer is overruled as to this cause of action.

Should Plaintiff wish to file an amended complaint addressing the deficiencies addressed in this ruling, Plaintiff shall file and serve an amended complaint no later than 30-days from service of the notice of ruling.

Motion to Strike

Defendant Merry Star Hotel, LLC moves to strike any and all references to punitive or exemplary damages and attorneys’ fees in the first amended complaint. For the following reasons, Defendant’s motion is DENIED.

A court may strike out any irrelevant, false, or improper matter inserted in any pleading or 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. Cal. Civ. Proc. Code, § 436. “Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. (Code Civ. Proc., § 431.10(b).) Motions to strike are disfavored. Pleadings are to be construed liberally with a view to substantial justice. (Code Civ. Proc., § 452.) The allegations of the complaint are presumed true; they are read as a whole and in context. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

In light of the court’s ruling sustaining the third cause of action for IIED, the motion, as it relates to any paragraphs subsumed in the third cause of action, is denied as moot.

As for the remaining paragraphs relating to punitive/exemplary damages, the court has overruled Defendant’s demurrer to Plaintiffs’ fraudulent concealment cause of action. As such, Plaintiffs have sufficiently alleged the “fraud” for which punitive damages are available. The directive to construe pleadings liberally and the courts’ reluctance to use motions to strike a “a procedural ‘line item veto’ for the civil defendant” weighs in favor of a denial of Defendant’s motion to strike the specific allegations. (See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683 [motion to strike may challenge portions of causes of action or where a complaint fails to state particular facts, and its use “should be cautious and sparing” so as not to create a “procedural ‘line item veto’ for the civil defendant”].) The allegations are not clearly irrelevant or unduly prejudicial.

As to Plaintiffs’ rights to attorney fees, the parties dispute whether or not Plaintiffs’ claims only benefit plaintiff or the public at large for Plaintiffs to recover attorneys’ fees under a private attorney general theory. The court will not weigh the merits of whether or not Plaintiffs are actually entitled to these fees. However, Plaintiffs have sufficiently alleged a basis for which attorneys’ fees may be recoverable. As such, at the pleading stage, the motion is denied as to Plaintiffs’ request for attorneys’ fees.

Defendant to give notice.