Judge: Douglas W. Stern, Case: 22STCV22858, Date: 2023-02-23 Tentative Ruling
Case Number: 22STCV22858 Hearing Date: February 23, 2023 Dept: 68
Marieli Zayas vs. Marriott International, Inc., et al., Case No. 20STCV22858
Demurrer to First Amended Complaint with Motion to Strike
I. BACKGROUND
A. Factual
“This action arises out of personal injury and monetary damages sustained by Plaintiff as a result of bedbug bites during her stay at a hotel owned and operated by Defendants in Los Angeles, California.” (FAC ¶ 1.)
Plaintiff filed this complaint against demurring Defendants for six causes of action, including (1) battery; (2) negligence; (3) intentional infliction of emotional distress; (4) fraudulent concealment; (5) private nuisance; and (6) public nuisance. The causes of action arise out Plaintiff’s stay at Defendants’ hotel, when Plaintiff was allegedly bitten by bedbugs and suffered severe discomfort as a result.
B. Procedural
This action was originally filed by Plaintiff on June 17, 2020. On November 21, 2022, this Court sustained a demurrer to Plaintiff’s original complaint. On December 21, 2022, Plaintiff filed her First Amended Complaint (FAC) alleging the same causes of action as above. Defendants filed their demurrer to Plaintiff’s FAC with motion to strike on January 20, 2023. Plaintiff filed her opposition on February 8, 2023. Defendants filed their reply on February 14, 2023.
II. MOVING PARTIES’ GROUNDS FOR THE DEMURRER
Defendants demur to the causes of action for battery, intentional infliction of emotional distress, fraudulent concealment, private nuisance, and public nuisance on the basis that they fail to state facts sufficient to constitute a cause of action. Additionally, Defendants demur to the intentional infliction of emotional distress claim on the basis that it is uncertain. Defendants also demur to the public nuisance claim on the basis that Plaintiff lacks standing to maintain that cause of action.
III. ANALYSIS
A. The Demurrer
As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).
1. First Cause of Action for Battery
Defendants demur to the cause of action for battery on the basis that Plaintiff does not plead sufficient facts to constitute a cause of action.
“The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff’s position would have been offended by the touching.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)
Plaintiff has not pleaded facts sufficient to show that Defendants intended to harm or offend Plaintiff. Simply failing to disclose that there had been prior incidents of bedbugs in the hotel, as Plaintiff claims, is not enough to demonstrate that Defendants intended to harm or offend Plaintiff in particular. Nor does Plaintiff plead any facts demonstrating that Defendants knew that bedbugs were in Plaintiff’s specific hotel room. Plaintiff claims that simply failing to thoroughly inspect her room amounts to battery. However, the facts pleaded by Plaintiff fail to show that the intent element was present.
As this was Plaintiff’s second attempt at this cause of action and Plaintiff has still failed to plead sufficient facts to maintain the cause of action, Defendants’ demurrer as to the cause of action for battery is SUSTAINED without leave to amend.
2. Third Cause of Action for Intentional Infliction of Emotional Distress
Defendants demur to the cause of action for intentional infliction of emotional distress on the basis that Plaintiff does not plead sufficient facts to constitute a cause of action, and the cause of action is uncertain.
California law imposes strict standards for pleading a cause of action for intentional infliction of emotional distress (“IIED”). Whether the conduct alleged rises to the level of “extreme and outrageous” under California law is a question of law for the court, and courts routinely dispose of improper IIED claims at the pleading stage. (Fowler v. Varian Assoc., Inc. (1987) 196 Cal.App.3d 34 (“It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous to permit recovery.”); Godfrey v. Steinpress (1982) 128 Cal.App.3d 154, 173; Cochran v. Cochran (1998) 65 Cal.App.4th 491, 496 (demurrer sustained as to IIED claim); Sclauch v. Hartford Ace. & Indem. Co. (1983) 146 Cal.App.3d 926, 936 (demurrer sustained as to IIED claim).)
The elements of a prima facie cause of action for IIED exist when there is: (i) outrageous conduct by defendant; (ii) an intention by defendant to cause, or reckless disregard of the probability of causing, emotional distress; (iii) severe emotional distress; and (iv) an actual and proximate causal link between the tortious conduct and the emotional distress. (Nally v. Grace Community Church (1998) 47 Cal.3d 278, 300.) 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.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.) An intentional infliction of emotional distress claim requires that a claimant suffer severe emotional injury caused by the defendant’s outrageous conduct, with the intent to cause emotional distress. (Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty USA (2005) 129 Cal.App.4th 1228.)
Further, it is not simply enough that the conduct be intentional and outrageous. It must be directed at the plaintiff or occur in the presence of a plaintiff of whom the defendant is aware. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903-904.)
Once again, Plaintiff has not pleaded facts sufficient to show that Defendants, regardless of whether their conduct was outrageous, acted with intent or reckless disregard of the probability of causing emotional distress by allegedly failing to disclose prior instances of bed bugs. Nor are there facts showing that Defendants directed their alleged conduct at Plaintiff specifically. Simply including allegations that Defendants failed to properly inspect Plaintiff’s room is not enough to amount to intentional infliction of emotional distress.
As this was Plaintiff’s second attempt at this cause of action and it remains uncertain, Defendants’ demurrer as to the cause of action for intentional infliction of emotion distress is SUSTAINED without leave to amend.
3. Fourth Cause of Action for Fraudulent Concealment
Defendants demur to the cause of action for fraudulent concealment on the basis that Plaintiff does not plead sufficient facts to constitute a cause of action.
To properly set forth a cause of action for the tort of Fraud or Fraudulent Deceit, a plaintiff must plead facts demonstrating "(1) a misrepresentation (false representation, concealment or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage." (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974, quoting Lazar v. Sup. Ct. (1996) 12 Cal.4th 631, 638; see also Melican v. Regents of University of California, (2007) 151 Cal.App.4th 168, 182.) Furthermore, per the statutory definition, fraudulent deceit occurs where "one . . . willfully deceives another with intent to induce him to alter his position to his injury or risk." (Civ. Code § 1709.)
"[A]llegations of fraud involve a serious attack on character, and fairness to the defendant demands that he should receive the fullest possible details of the charge in order to prepare his defense. Accordingly, the rule is everywhere followed that fraud must be specifically pleaded." (Committee on Children's Television v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) "Every element of a cause of action for fraud must be alleged both factually and specifically, and the policy of liberal construction of pleadings will not be invoked to sustain a defective complaint." (Cooper v. Equity General Insurance (1990) 219 Cal.App.3d 1252, 1256.)
The particularity requirement mandates pleading facts that show "how, when, where, to whom, and by what means the [false] representations were tendered." (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645; Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) Conclusory allegations of fraud do "not come close" to the required specificity for a fraud complaint where it cannot be determined what was said or by whom or in what manner (orally or in writing). (Goldrich v. Natural Y Surgical Specialties (1994) 25 Cal.App.4th 772, 783.)
Plaintiff only makes conclusory allegations as to the fraud. Plaintiff does not plead sufficient facts to show that Defendants intended to defraud Plaintiff, nor does the FAC indicate when or how the false representations were tendered to Plaintiff.
Defendants’ demurrer as to the cause of action for fraudulent concealment is SUSTAINED without leave to amend.
4. Fifth Cause of Action for Private Nuisance
Defendants demur to the cause of action for private nuisance on the basis that Plaintiff did not plead sufficient facts to constitute a cause of action.
To maintain a cause of action for private nuisance, a Plaintiff must suffer an injury to private property. A guest of a hotel does not have a private property interest in the room in which they are staying. “Guests in a hotel, boarders in a boarding house, and roomers or lodgers, so called, are generally mere licensees and not tenants. They have only a personal contract, and acquire no interest in the realty.” (Sloan v. Court Hotel (1945) 72 Cal.App.2d 308, 314.)
Plaintiff was a guest staying in a hotel room. She has not pleaded any facts that would show that she had a private property interest in the hotel room. Therefore, she cannot maintain her cause of action for private nuisance.
Defendants’ demurrer as to the cause of action for private nuisance is SUSTAINED without leave to amend.
5. Sixth Cause of Action for Public Nuisance
Defendants demur to the cause of action for public nuisance on the basis that Plaintiff did not plead sufficient facts to constitute a cause of action and Plaintiff lacks standing to maintain the cause of action.
The purpose of a public nuisance remedy such as a civil action is to provide “the redress for the wrong to the community.” (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 123.) Thus, “the law of this state [is] that such action is ordinarily properly left to the appointed representative of the community.” (Id.) With regard to private citizens who are not appointed community representatives, “The injury which may entitle a private person to maintain an action to abate a public nuisance must be an injury to plaintiff's private property, or to a private right incidental to such private property.” (Id. at 125.) Like private nuisances, to maintain a cause of action for a public nuisance, a plaintiff must show that there was injury to private property.
Plaintiff has not pleaded any facts that show that she has a private property interest in the affected property. She had no private property interest in the hotel room; therefore, she cannot maintain a cause of action for public nuisance.
Defendants’ demurrer as to the cause of action for public nuisance is SUSTAINED without leave to amend.
B. The Motion to Strike
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (CCP § 436(a).) The court may also strike 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).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (CCP § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (CCP § 437.)
1. Punitive Damages
Defendants request that the Court strike Plaintiff’s request for punitive damages from the FAC.
Punitive damages are only awarded in a narrow set of circumstances where a defendant intends to cause harm. (Woolstrum v. Mailoux (1983) 141 Cal.App.3d Supp. 1, 10 [quoting Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286].) Thus, a claim for punitive damages can be stricken if it fails to provide facts sufficient to support allegations of intent. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) Punitive damages claims are typically improper in a negligence claim because negligence is, by its very definition, unintentional. (Woolstrum, supra, 141 Cal.App.3d Supp. at p. 10 (quoting Prosser, Law of Torts (4th ed. 1971) p. 9).)
To sufficiently plead a claim for punitive damages pursuant to Civil Code §3294, a plaintiff must satisfy circumstances of "malice, oppression, or fraud," supported by facts alleged with sufficient particularity. (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) These allegations are held to a heightened pleading standard: a plaintiff may not state a mere conclusion of law to support a cause of action. (Perkins v. Sup. Ct. (1981) 117 Cal.App.3d 1, 6.) More importantly, the plaintiff may not simply "plead . . . a claim for damages in the language authorizing such damages." (Id.) While some conclusory statements may be permitted, they must make sense in the context of the Complaint taken as a whole. (Id.)
Plaintiff has not pleaded facts sufficient to show that Defendants intended to cause harm or alleged facts with sufficient particularity to show that there was malice, oppression, or fraud on the part of Defendants. Plaintiff simply makes conclusory statements without showing actual intent.
The references to punitive damages in Plaintiff’s FAC, specifically on Page 30, Prayer for Relief No. 2, of Plaintiff’s FAC shall be stricken from the FAC. Defendants’ motion to strike as to the references to punitive damages is GRANTED without leave to amend.
2. Conclusory Allegations of Knowledge, Intent, Malice, and Oppression
Defendants request that the Court strike all conclusory allegations of knowledge, intent, malice, and oppression from Plaintiff’s FAC on the basis that they are not supported by factual allegations. (See FAC, ¶¶ 31, 34, 37, 47, 52, 53, 55, 58, 61, 63, 64, 71, 89, 91, 93, 96, 97, 101, 109, 112, 113, 114, 121, 126, 128, and 138.)
A plaintiff may not state a mere conclusion of law to support a cause of action. (Perkins v. Sup. Ct., supra, (1981) 117 Cal.App.3d 1, 6.) A complaint must provide sufficient factual allegations to allow the defendants to prepare a defense: "When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him." (G.D. Searle & Co. v. Sup. Ct. (1975) 49 Cal.App.3d 22, 29.)
Defendants have requested that the Court grant their motion to strike several conclusory statements from Plaintiff’s FAC because the statements lack a factual foundation. The statements that Defendants wish to strike are outlined in Defendants’ moving papers. (Notice of Motion, p. 2-6, lines 1-39.) They include such allegations that Defendants acted deliberately or with intent, and the statements also make improper legal conclusions. The Court finds that these conclusory statements are not properly plead and lack a factual basis.
Defendants’ motion to strike these statements from Plaintiff’s FAC is GRANTED without leave to amend.