Judge: Donald F. Gaffney, Case: Phillips v. Kott’s Berry Farm Hotel, Date: 2022-12-07 Tentative Ruling
TENTATIVE RULING:
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) seek an order from the Court sustaining their Demurrer to the Second and Fourth Causes of Action of the First Amended Complaint (“FAC”) for failure to state sufficient facts. They also seek an order striking paragraph 67 of the FAC. For the reasons set forth below, the Demurrer is SUSTAINED, with leave to amend, and the Motion to Strike is DENIED as moot.
A. Second Cause of Action for Intentional Infliction of Emotional Distress
The elements for intentional infliction of emotional distress (“IIED”) are: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) “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] intended to inflict injury or engaged in with the realization that injury will result.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050–51.) Additionally, “the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051). “In order to avoid a demurrer, the plaintiff must allege with ‘great[] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160-161).
“[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). As such, a trial court correctly finds that a plaintiff failed to allege facts showing severe emotional distress when plaintiff had “pleaded no facts demonstrating the nature, extent or duration of her alleged emotional distress.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)
For example, allegations that a defendant’s conduct caused a plaintiff to suffer a heart attack were sufficient for an IIED cause of action. (Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal.App.3d 222, 231-232). Similarly, allegations that a plaintiff suffered depression, anxiety, and physical illness, including vomiting, stomach cramps, and diarrhea, were adequate for an IIED claim. (Hailey v. California Physicians' Service (2007) 158 Cal.App.4th 452, 476-477 as modified on denial of reh'g (Jan. 22, 2008). However, allegations that a plaintiff lost sleep, had symptoms of anxiety, and suffered from nervousness, but sought no medical treatment, are not adequate to state a claim for IIED. (Girard v. Ball (1981) 125 Cal.App.3d 772, 787-788).
Here, Defendants argue that the FAC still does not contain sufficient allegations that Plaintiff suffered severe emotional distress. The FAC alleges that "Plaintiff has suffered from anxiety, depression, post-traumatic stress disorder, sleeping disturbances, and social withdrawal" as a result of the bed bug bites, and "continues to relive the bed bug incident through flashback." (FAC, ¶ 58.) Defendants argue that these conclusory allegations do not meet the high standards set forth in Hughes and there are no specific allegations regarding the duration, nature, and extent of any of these symptoms, whether Plaintiff has received any treatment or diagnosis for them, etc. Defendants also argue that the FAC still does not allege any type of outrageous conduct. Plaintiff alleges inaction by Defendants (failure to prevent), not any affirmative conduct (e.g., that Defendants affirmatively placed bed bugs in Plaintiff’s room on purpose.)
Plaintiff argues that they have adequately pled that Defendants had knowledge of a bed bug infestation but deliberately chose not to eradicate the problem and directed their employees not to inspect or clean for bugs.
Whether allegations in a complaint rise to the level of extreme and outrageous is a determination that can be made as a matter of law. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494. [“the appellate courts have affirmed orders which sustained demurrers on the ground that the Defendant’s alleged conduct was not sufficiently outrageous.”]; See also Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883 [“While the outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by the trier of fact…the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery”]).
However, “[w]here reasonable men 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 court finds that Plaintiff has still failed to allege facts sufficient to support an IIED claim. The court agrees that Plaintiff has failed to allege with sufficient specificity the nature, extent, and duration of her alleged emotional distress, whether or not she received treatment for it, and/or how her emotional distress symptoms exceed the bounds of “garden-variety” emotional distress allegations. Further, Plaintiff has failed to allege the extent of Defendants’ knowledge, and each of them—i.e., what did each Defendant allegedly know about the extent of the infestation, the basis for that knowledge, and how each Defendant decided to act in reckless disregard despite that knowledge. The boiler-plate allegations that Plaintiff suffered severe emotional distress, without more, are conclusory and devoid of facts. The demurrer to the second cause of action for IIED is sustained with leave to amend.
B. Fourth Cause of Action for Public Nuisance
“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).
“As the California Supreme Court has explained, ‘public nuisances are offenses against, or interferences with, the exercise of rights common to the public.’” (Melton, supra, 183 Cal.App.4th at 542). “The interference must be both substantial and unreasonable.” (Id.). “A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise.” (Civil Code §3493).
To plead a cause of action for public nuisance, Plaintiff must allege the following: (1) that 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 Defendants’ conduct; (5) that Plaintiff did not consent to Defendants’ conduct; (6) that Plaintiff suffered harm that was different from the type of harm suffered by the general public; and (7) that Defendants; conduct was a substantial factor in causing Plaintiff’s harm. (CACI 2020; see Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548).
Defendants argue that Plaintiff has failed to sufficiently allege the bedbug infestation “affected an entire community or neighborhood, or any considerable number of persons…” While Defendants acknowledge that the Complaint alleges, generally, that the infestation “affects the community at large,” they argue that this allegation is conclusory.
In response, Plaintiff cites to Health & Safety Code §17920.3. She argues that “the community at large has the right to be free from substandard building conditions, as contemplated in California Health & Safety Code Section 17920.3 regarding hotels,”; however, this provision merely states that a building containing a nuisance is “substandard.” (Health & Safety Code §17920.3(c)). This provision does not establish that the condition alleged by Plaintiff affected a large number of people.
The court is unpersuaded by Plaintiff’s arguments. Like the complaint, the FAC only pleads the conclusion that a bed bug infestation may affect a community at large. Plaintiff fails to allege any facts that actually demonstrate the extent and nature of the bedbug infestation about which Plaintiff alleges—i.e., how long did the infestation last, how many rooms/guests were affected, were there any health code violation citations/corrections issued, etc. The court finds that Plaintiff has not sufficiently pled that the condition affected a substantial number of people at the same time. The demurrer to this cause of action is sustained with leave to amend.
C. Motion to Strike
The court may, upon a motion or at any time in its discretion, and upon terms it deems proper, strike out “...any irrelevant, false, or improper matter inserted in any pleading” or “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.” (Civ. Proc. Code §436(a) and (b); See also Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1281.) Irrelevant matters include allegations not essential to a claim or defense, allegations not pertinent to nor supported by a sufficient claim or defense, or relief not supported by the allegations of the complaint or cross-complaint. (Civ. Proc. Code §431.10(b) and (c)).
“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation.” (Id.)
As noted by the Court in Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, the “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ within the meaning of section 3294.” (Id. at 872). However, “even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 510.)
Given that the court sustained the demurrer to the second cause of action, Defendants’ motion to strike paragraph 67 of the FAC (which is subsumed in the second cause of action) is MOOT.
Should Plaintiff wish to amend the complaint to address the issues herein, Plaintiff shall file and serve the amended complaint within 15 days of service of the notice of ruling.
Defendants to give notice.