Judge: Donald F. Gaffney, Case: Phillips v. Knott’s Berry Farm Hotel, Date: 2022-08-17 Tentative Ruling

TENTATIVE RULING: 

 

Demurrer to Complaint

 

The Demurrer to the Complaint brought by Defendants Cedar Fair, LP (erroneously sued as Knott’s Berry Farm Hotel), Don Prescott, Luz De La Rambulje and Ruby Murillo (erroneously sued as Ruby M) is SUSTAINED, without leave to amend, as to the First Cause of Action for Battery.  The Demurrer is SUSTAINED, with 15-days leave to amend, as to the Third and Fifth Causes of Action for Intentional Infliction of Emotional Distress and Nuisance.  The Demurrer is OVERRULED as to the Fourth Cause of Action for Fraud.

 

The First Cause of Action

 

With respect to the First Cause of Action, the elements of civil battery are: (1) Defendant intentionally performed an act that resulted in a harmful or offensive contact with the Plaintiff's person; (2) Plaintiff did not consent to the contact; and (3) the harmful or offensive contact caused injury, damage, loss or harm to Plaintiff. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 526–527.)

 

While it is true that “battery generally is not limited to direct body-to-body contact” and may be shown where one “throws a substance, such as water, upon the other...” (Mount Vernon Fire Ins. Co. v. Busby (2013) 219 Cal.App.4th 876, 881), it remains the case that “[b]attery is an intentional tort.” (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1498).

 

Here, the Complaint alleges Defendants caused an offensive contact with Plaintiff by: (1) choosing not to eradicate a bed bug infestation; (2) choosing not to inspect Plaintiff’s room to ensure it was free of bed bugs; (3) choosing not to inspect the bed skirts in Plaintiff’s room; (4) disregarding an infestation that was either known or should have been known from prior infestations in Plaintiff’s room; and (5) choosing not to notify Plaintiff of the presence of bed bugs in the hotel and Plaintiff’s room. (¶40 of FAC).  The Complaint thereafter concludes the above acts were performed “with the intent to cause a harmful or offensive contact with the body of Plaintiff.” (¶41 of FAC).

 

While the Complaint alleges Defendants had knowledge of a bedbug infestation in the hotel and, specifically, Plaintiff’s room (¶27, ¶28, ¶30 and ¶36 of the Complaint), the above allegations largely sound in negligence. Notably, the Complaint does not allege Defendants placed the bedbugs into Plaintiff’s room, with the intent that she be bitten.  Instead, Plaintiff relies solely on Defendants’ alleged failure to take affirmative action to prevent Plaintiff from being bitten; however, persuasive authority indicates that battery claims stemming from an omission fail as a matter of law. (Price v. County of San Diego (S.D. Cal. 1998) 990 F.Supp.1230, 1244).

 

Notably, Plaintiff cites no binding authority which supports the existence of a battery claim in this scenario, and no such California authority could be located.

 

At best, Plaintiff cites Mathias v. Accor Economy Lodging, Inc. (7th Cir. 2003) 347 F.3d 672, nonbinding federal authority issuing from the 7th Circuit; however, this authority is non-availing to Plaintiff. Although Mathias was a bed bug case, it was a negligence action and a post-judgment appeal of a punitive damages award, and therefore not informative on the issue of whether a battery cause of action is properly pled. Additionally, Plaintiff quotes a portion of the opinion in which the court noted that the Defendant’s “failure either to warn guests or to take effective measures to eliminate the bedbugs amounted to fraud and probably to battery as well.”  (Id. at p. 675.)  However, neither fraud nor battery causes of action were litigated in Mathias, making the 7th Circuit’s observation dicta.  (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1158).

 

Ultimately, as the Complaint does not allege any affirmative conduct by Defendant, which resulted in an offensive touching of Plaintiff and, as the authority cited by Plaintiff does not support her theory of liability, the Demurrer to this claim is SUSTAINED. Additionally, leave to amend, as to the First Cause of Action, is DENIED.

 

“[T]he burden is on the Plaintiff to show the manner in which she may amend, and how the amendment will change the legal effect of the pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349). Additionally, a court should sustain a demurrer without leave to amend where there is no “reasonable possibility that the defect can be cured by amendment.” (Chiatello v. City and County of San Francisco (2010) 189 Cal.App.4th 472, 480-481). Similarly, leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law. (Lawrence v. Bank of Am. (1985) 163 Cal.App.3d 431, 436).

 

Here, Plaintiff has not shown any ability to amend to allege a claim and, as indicated above, the claim is not supported by California authority.

 

The Third Cause of Action

 

With respect to the Third Cause of Action for Intentional Infliction of Emotional Distress, the Demurrer is SUSTAINED, with 15-days leave to amend.

 

“[T]o state a cause of action for intentional infliction of emotional distress the plaintiff is required to show severe emotional distress resulting from outrageous conduct on the part of the defendant.” (Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal.App.3d 222, 231). “[S]evere emotional distress,” for purposes of establishing a claim for intentional infliction of emotional distress, means “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1246).

 

Here, Plaintiff did not respond to the portion of the Demurrer which challenges the sufficiency of Plaintiff’s allegations of emotional distress.  Additionally, a review of the Complaint indicates that Plaintiff alleged, only, that “Plaintiff suffered severe emotional distress that has caused Plaintiff to sustain severe serious and permanent injuries to her person.” (¶66 of Complaint).  The Court finds the above to be conclusory and insufficient to support the claim; however, as this defect is potentially capable of correction, leave to amend is granted.

 

The Fourth Cause of Action

 

With respect to the Fourth Cause of Action for Fraud, the Demurrer is OVERRULED.

 

“The 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.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248).

 

“There are four circumstances in which nondisclosure or concealment 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.” (Bank of America Corp. v. Superior Court (2011) 198 Cal.App.4th 862, 870-871.)

 

Here, the Court is inclined to find the presence of bedbugs is a “material fact” and notes that, per the Complaint, Defendants had exclusive knowledge of the same. (¶70 and ¶73-¶74 of Complaint).  Per the above authority, this is sufficient to support the existence of a duty.

 

Additionally, the Court finds sufficient allegations of knowledge.

 

“[T]the requirement that ‘[f]raud must be pleaded with specificity’ applies equally to a cause of action for fraud and deceit based on concealment.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1472.)  Indeed, “[f]raud must be pleaded with specificity rather than with ‘general and conclusory’ allegations.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248).

 

However, as one court noted, “it is harder to apply [the requirement of specificity] to a case of simple nondisclosure. ‘How does one show ‘how’ and ‘by what means’ something didn’t happen, or ‘when’ it never happened, or ‘where’ it never happened?” (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1199).

 

In this instance, Defendants assert that the repeated references to Defendants’ knowledge of a bedbug infestation in the Complaint are conclusory. (See ¶26-¶28, ¶30, ¶36, ¶40, ¶48, ¶63 and ¶73 of the Complaint).  Additionally, Defendants assert that ¶25 of the Complaint fails to sufficiently allege knowledge.  This allegation states: “The hotel also has a prior and/or ongoing history of bedbug infestations and guests complaining of such infestations.  As of the date of this Complaint, at least six prior complaints of bedbugs are listed online on the Bedbug Registry (www.bedbugregistry.com).”

 

Defendant is correct in asserting the above does not expressly allege the stated complaints pre-date Plaintiff’s visit.  Nor does the above allegation allege Defendant was aware of the complaints posted on www.bedbugregistry.com; however, the Complaint proceeds to allege: “Defendants…rented the room to Plaintiff despite having knowledge, as of March 7, 2017, that there was a bedbug infestation present in the hotel and specifically, Plaintiff’s Room.” (¶36 of Complaint).  Additionally, the complaint alleges Defendant “chose to turn a blind eye to this infestation and previous guest complaints.” (¶30 of Complaint).

 

Reading these allegations together, the Complaint alleges Defendants were aware, at the time they rented the room to Plaintiff and due to prior complaints, that the room was infested with bedbugs.  These allegations sufficiently place Defendants on notice of the material facts allegedly concealed and are sufficient to survive demurrer. (Jones v. ConocoPhillips Co. (2011) 198 Cal.App.4th 1187, 1200).

 

The Fifth Cause of Action

 

Lastly, the Demurrer to the Fifth Cause of Action is SUSTAINED with leave to amend.

 

“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....’”  (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542, citing Civil 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.’” (Melton, supra, 183 Cal.App.4th at 542, citing Civil Code §3480).

 

Within this Demurrer, Defendants assert that Plaintiff has failed to sufficiently allege the bedbug infestation “affected an entire community or neighborhood, or any considerable number of persons…” (Demurrer: 11:23-26). While Defendants acknowledge that the Complaint alleges, generally, that the infestation “affects the community at large,” they correctly assert that this allegation is conclusory. (¶86 of Complaint). 

 

As the Complaint pleads only the conclusion that the community at large was affected, without alleging any facts which demonstrate the same, the Demurrer to this claim is SUSTAINED, with leave to amend.

 

Similarly, to any extent Plaintiff intended to allege a claim for private nuisance, the same is not properly alleged.

 

“[T]o proceed on a private nuisance theory the plaintiff must prove an injury specifically referable to the use and enjoyment of his or her land.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262).  “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 she was a lodger at Defendants’ hotel, and she has failed to cite any legal authority giving rise to a right of action for private nuisance by a hotel lodger.

 

Moving party to give notice.

 

Motion to Strike

 

The Motion to Strike brought by Defendants Cedar Fair, LP (erroneously sued as Knott’s Berry Farm Hotel), Don Prescott, Luz De La Rambulje and Ruby Murillo (erroneously sued as Ruby M) is MOOT in part and DENIED in part.

 

Given the accompanying ruling, sustaining the Demurrer to the First and Third Causes of Action, the request to strike ¶45 and ¶68 of the Complaint are now MOOT. Only the request to strike ¶61 (Second Cause of Action), ¶82 (Fourth Cause of Action) and ¶2 of the Prayer remain.

 

With respect to the request to strike ¶82 included in the Fourth Cause of Action for Fraud, the Motion is DENIED. In challenging this specific request for punitive damages, Defendants merely repeat the arguments included in their Demurrer and assert: “[T]he Complaint fails to state a cognizable cause of action for fraudulent concealment; thus, the fraudulent concealment claim cannot support a demand for punitive damages.” (Motion: 9:27-10:1).

 

For the reasons stated above, in connection with the Demurrer, Plaintiff has sufficiently alleged Defendants knowingly concealed a material fact, known only to Defendants.  Similarly, Plaintiff has alleged a “concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civil Code §3294(c)(3); See ¶30, ¶36, ¶70 and ¶73-¶75 of Complaint).

 

Given the Complaint adequately alleges fraud for purposes of Civil Code §3294, the request to strike the prayer for punitive damages is likewise DENIED.

 

The sole remaining request in the motion, is Defendant’s request to strike ¶61, included within the Second Cause of Action for Negligence. In support of the motion, Defendants cite Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, for the proposition that “[m]ere negligence, even gross negligence, is not sufficient to justify such an award.” (Id. at 828).

 

However, authority nonetheless indicates that “a nonintentional tort can have the characteristics of an intentional tort to the extent of embracing the concept of malice as used in Civil Code section 3294.” (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286).  “A tort having some of the characteristics of both negligence and willfulness occurs when a person with no intent to cause harm intentionally performs an act so unreasonable and dangerous that he knows, or should know, it is highly probable that harm will result. (Citation).  Such a tort…is most accurately designated as [w]anton and reckless misconduct.” (Id.) Such a claim justifies an award of punitive damages. (Id.).

 

Based on the above, although labelled a claim for “negligence,” punitive damages may be recoverable, where a claim demonstrates it is akin to “wanton and reckless misconduct” and meets the requirements of malice, pursuant to Civil Code §3294.

 

Here, the Complaint alleges that Defendants assigned Plaintiff to a room known to be infested with bedbugs, without informing Plaintiff of the same. (¶36 and ¶48 of the Complaint).  The Court finds the same support a finding of “malice,” as the allegations permit an inference Defendants intended to injure Plaintiff.  Alternatively, the allegations arguably qualify as “despicable conduct” carried on “with a willful and conscious disregard of the rights or safety of others.” (Civil Code §3294(c)(1)).

 

Moving party to give notice.