Judge: Gary I. Micon, Case: 23CHCV02816, Date: 2024-11-08 Tentative Ruling


Case Number: 23CHCV02816    Hearing Date: November 8, 2024    Dept: F43

Dept. F43

Date: 11-8-24

Case #23CHCV02816, Cheyenne Chelsea Oconnor, et al. vs. Apple Nine Hospitality Ownership, Inc.

Trial Date: N/A

 

DEMURRER TO SECOND AMENDED COMPLAINT WITH MOTION TO STRIKE

 

MOVING PARTY: Defendant Apple Nine Hospitality Ownership, Inc.

RESPONDING PARTY: Plaintiffs Cheyenne Chelsea Oconnor, et al.

 

RELIEF REQUESTED

Demurrer to SAC

·         3rd Cause of Action for Intentional Infliction of Emotional Distress

 

Motion to Strike

·         Attorney Fees Request and related allegations

·         Punitive Damages and related allegations

 

RULING: Demurrer is overruled. Motion to strike is granted in part and denied in part.

 

SUMMARY OF ACTION

Plaintiffs Cheyenne Chelsea Oconner, et al., (Plaintiffs) allege that due to a bed bug infestation at a hotel property owned by Defendant Apple Nine Hospitality Ownership, Inc. (Defendant), Plaintiffs suffered emotional and physical injuries. Plaintiffs allege that Defendant was aware of the infestation because of reviews on websites such as Google and Yelp that mentioned the bed bugs, but Defendant did not inform Plaintiffs of the infestation. Plaintiffs further allege that Defendants should be liable because they were aware of the infestation but did not do anything about it.

 

Plaintiffs’ Second Amended Complaint (SAC) alleges five causes of action for (1) Negligence – Premises Liability/Failure to Warn/Negligence Per Se; (2) Nuisance; (3) Intentional Infliction of Emotional Distress; (4) Breach of Contract; and (5) Fraudulent Concealment.

 

Defendant filed its demurrer with motion to strike for Plaintiffs’ SAC on October 7, 2024. Plaintiffs oppose Defendant’s motion.

 

ANALYSIS

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (CCP § 430.30(a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (CCP § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law…” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

 

            Third Cause of Action for Intentional Infliction of Emotion Distress

Defendant demurs to the Third Cause of Action on the basis that it fails to allege facts sufficient to constitute a cause of action and is uncertain.

 

The elements of a cause of action for intentional infliction of emotional distress (IIED) are the following: (1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) Additionally, “‘[i]t must be conduct directed at the plaintiff, or occur in the presence of the plaintiff of whom the defendant is aware.’ [Citation.] ‘The requirement that the defendant’s conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury.’” (Id. at 1002, italics in original; see also, So v. Shin (2013) 212 Cal.App.4th 652, 671 [conduct must be directed to the plaintiff, but malicious or evil purpose is not required].)

 

“Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) For conduct to be outrageous, there must be (1) a specific intent to injure, or (2) a reckless disregard of the substantial certainty of a severe emotional injury. (Id. at 210 [“Absent an intent to injure, such inaction is not the kind of ‘extreme and outrageous conduct’ that gives rise to liability under the ‘intentional infliction of emotional distress’ tort”]; Christensen v. Sup. Crt. (1991) 54 Cal.3d 868, 903 [“substantially certain to cause extreme emotional distress”].)

 

Plaintiffs have alleged that Defendant engaged in extreme and outrageous conduct by failing to remedy the bed bug problem at its hotel and that Defendant acted with reckless disregard for the probability of causing emotional distress. (SAC, ¶¶ 94, 197.) Plaintiffs have also alleged that they suffered severe emotional distress as a result. (SAC, ¶¶ 108-114.) Plaintiffs have alleged that “Defendants were aware of the rampant bed bug infestation which existed at the Subject Property, yet they failed to check, find, clean and remove the bed bugs from Room 202 prior to renting it to the Plaintiffs. This conduct was directed at the Plaintiffs.” (SAC, ¶ 105.) However, while Plaintiffs have made this conclusory allegation that the conduct was directed at them, Plaintiffs have not alleged that Defendant was aware of Plaintiffs when Defendant failed to remedy the bed bug problem prior to Plaintiffs staying at the hotel. Instead, Defendant’s alleged failure to remedy the problem would be directed at the pool of possible guests for that hotel room.

 

Plaintiffs also allege that the hotel knew of the infestation based on Google and Yelp reviews that prior guests had left. (SAC, ¶ 34.) Plaintiffs allege that “based on pest control records,” there were bed bugs at least a year before Plaintiffs’ stay in adjoining rooms and there were bed bugs in Plaintiffs’ room even after their stay. (SAC, ¶¶ 36-37.) However, these allegations are purely conclusory because Plaintiffs do not indicate what pest control records they are referring to, nor do they attach any pest control records to their complaint.

 

Plaintiffs have added allegations concerning the nature and extent of their emotional damages since the previous version of their complaint. Plaintiffs have alleged feelings of helplessness, hopelessness, anger, shame, sadness, and embarrassment; social anxiety due to the discoloration and scarring of the bug bites; ongoing paranoia and fear of bugs, traveling, and hotels; and depression, among other things. (SAC, ¶¶ 108, 110, 111, 113, 114.)

 

Plaintiffs also allege that “Defendants were aware of the dangerous bed bug infestations, which existed at the Hotel Room both prior to and during Plaintiffs’ stay at the Hotel Room, and knowingly, intentionally and willfully failed to abate the bed bug infestations, so that the problems persisted.” (SAC, ¶ 107.) In their opposition, Plaintiffs cite Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1069 to support their argument that their allegations that Defendant’s knowing, intentional, and willful failure to correct the bed bug condition is extreme and outrageous conduct. Burnett involved a landlord/tenant relationship wherein the landlord failed to remedy a mold problem at the premises that the Plaintiffs were renting, despite Plaintiffs immediate and repeated notifications to the landlord about the mold problem. (Id. at 1061-1062.) Plaintiffs in that case sustained severe physical injury and discomfort from inhaling the mold fumes and their business inventory and belongings became contaminated by toxic mold and airborne mold spores over the course of several months. (Id. at 1062.) The Court of Appeal found that Plaintiffs’ allegations were sufficient to maintain a cause of action for intentional infliction of emotional distress because the Plaintiffs alleged that the landlord failed to correct the defective conditions of the premises and that failure to act was extreme and outrageous. (Id. at 1069.)

 

Plaintiffs were originally supposed to stay at the hotel from July 28 to August 5, though the receipt attached to their SAC shows that they only stayed for six nights because they checked out on August 3. (SAC, ¶ 30; SAC, Ex. A.) Plaintiffs allege that they informed a manager about the hotel of the infestation. (SAC, ¶ 33.)

 

Like the landlords’ failure to address the mold problem in Burnett, Plaintiffs have alleged that Defendant failed to address the bed bug infestation during Plaintiffs’ stay once Plaintiffs complained to the manager. (See SAC, ¶¶ 95-98, 107.) Defendant does not address these allegations in its demurrer, which is perfunctory at best. Because of the liberal pleading standards on demurrer, the Court will overrule the demurrer to this cause of action on the basis that Plaintiffs have pled that Defendant failed to remedy the bed bug infestation after Plaintiffs complained.

 

While Plaintiffs have not sufficiently alleged that Defendant was specifically aware of Plaintiffs prior to their stay, they have alleged that Defendant failed to remedy the situation for Plaintiffs after being informed of the presence of the bed bugs by Plaintiffs. Accordingly, the allegations in Plaintiffs’ SAC are sufficient to maintain a cause of action for intentional infliction of emotional distress. Defendant’s demurrer is overruled.

 

Motion to Strike

A court may strike from the complaint any irrelevant, false, or improper matter. Under CCP § 435, “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” Under CCP § 436(a), “[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper . . . [s]trike out any irrelevant, false, or improper matter inserted in any pleading.” Under CCP § 436(b), the court may “[s]trike 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.”

 

Attorney Fees

Through their nuisance cause of action (SAC, ¶¶ 72-91), Plaintiffs have requested attorney fees pursuant to CCP § 1021.5, which reads, in pertinent part, as follows:

“Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement…are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.”

 

Like Defendant’s previous motion to strike, Defendant argues in its motion that Plaintiffs’ request for attorney fees should be stricken because only Plaintiffs would benefit from the result of this litigation. Plaintiffs argue in their opposition and represent in their SAC (¶¶ 83-88), that the public at large would benefit from Plaintiffs’ nuisance suit against Defendant because of the alleged bed bug infestation in Defendant’s hotel. It is unclear, because Plaintiffs’ suit only requests damages on behalf of Plaintiffs, how it would benefit the public at large. Perhaps the monetary consequences would encourage Defendant to ensure that there is no infestation in its hotel, but beyond that, it appears that only Plaintiffs would benefit from this suit.

 

Because it would only benefit Plaintiffs, Plaintiffs’ request for attorney fees pursuant to CCP § 1021.5 should be stricken.

 

Defendant also argues that Plaintiffs’ request for attorney fees based on CCP § 1717 should be stricken. CCP § 1717 provides that on an action for a contract, where the contract specifically provides for attorney fees which are incurred to enforce the contract, the prevailing party shall be awarded attorney fees. Plaintiffs allege that they entered into a valid hotel rental agreement. (SAC, ¶ 124.) However, the only thing that Plaintiffs attached in support of this is a receipt from the hotel. (SAC, ¶ 124, Ex. A.) The receipt is not an agreement, nor does the receipt mention any terms for attorney fees. Therefore, Plaintiffs cannot recover attorney fees based on this receipt.

 

All references to attorney fees are ordered stricken from the FAC. Specifically, Paragraphs 42, 55, 83-90, and 149 should be stricken. Plaintiffs are given leave to amend.

 

Punitive Damages

Punitive damages are governed by Civ. Code § 3294: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code § 3294(a).)

 

Plaintiffs’ SAC alleges that Defendant acted in a malicious manner and intentionally, knowingly, and willfully caused Plaintiffs harm. Plaintiffs allege that Defendant acted in a malicious manner by failing to rid its hotel of the bed bugs and by failing to disclose the bed bug infestation to Plaintiffs. Plaintiffs have made their request for punitive damages in connection with their nuisance, intentional infliction of emotional distress, and fraud causes of action.

 

Defendant argues that Plaintiffs’ allegations related to the punitive damages are conclusory rather than specific. Therefore, Defendant requests that the punitive damages request be stricken due to this insufficiency.

 

To state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in Civ. Code § 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) “Malice is defined in the statute as conduct 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.” (Id. at 725.) Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code § 3294(c)(2).) Fraud is defined as “an intentional misrepresentation, deceit, or 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.” (Civ. Code § 3294(c)(3).)

 

Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004 explained that “punitive damages sometimes may be assessed in unintentional tort actions.” Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-895 noted that “something 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.” Indeed, “punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210 (internal quotation omitted).)

 

The “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of oppression, fraud or malice…within the meaning of section 3294.” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

 

“It is not sufficient to allege merely that defendant ‘acted with oppression, fraud or malice.’ Rather, plaintiff must allege specific facts showing that defendant’s conduct was oppressive, fraudulent or malicious (e.g., that defendant acted with the intent to inflict great bodily harm on plaintiff or to destroy plaintiff's property or reputation).” (Croskey, et al., Cal. Prac. Guide: Insurance Litigation Ch. 13-C (Thomson Reuters, 2016) ¶ 13:197.2; and see, Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [allegations that defendant’s conduct was “intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights” did not satisfy specific pleading requirements].)

 

Throughout Plaintiffs’ SAC, Plaintiffs make mere conclusory statements that Defendant acted “knowingly, intentionally, and willfully.” Plaintiffs do not include specific facts showing that Defendant’s conduct qualified as such or was otherwise malicious or oppressive in a way that intended harm to Plaintiffs. However, Plaintiffs do allege that Defendant acted with reckless disregard for Plaintiffs’ safety (See, e.g., SAC, ¶ 82), but Plaintiffs have not pled any allegations indicating that Defendant knew that Plaintiffs specifically were at risk from the alleged infestation and disregarded Plaintiffs’ safety. Accordingly, Plaintiffs cannot maintain a claim for punitive damages under their nuisance cause of action. For Plaintiffs to maintain their claim for punitive damages under the nuisance cause of action, Plaintiffs must provide specific allegations for how Defendant’s actions go beyond normal negligence such that Plaintiffs would be able to recover punitive damages for this cause of action.

 

However, Plaintiffs have now also made claims for punitive damages under their intentional infliction of emotional distress and fraudulent concealment causes of action. Because the Court has overruled Defendant’s demurrer to Plaintiffs’ intentional infliction of emotional distress cause of action, the Court will allow Plaintiffs to maintain their claim for punitive damages under that cause of action. By alleging that Defendant engaged in outrageous conduct by failing to remedy the bed bug infestation after Plaintiffs informed Defendant of the infestation, Plaintiffs have sufficiently alleged that Defendant engaged in malicious and oppressive conduct for purposes of a claim for punitive damages. Defendant’s alleged conduct demonstrates a willful disregard for Plaintiffs’ safety and demonstrates that Defendant subjected Plaintiffs to unjust hardship in conscious disregard of Plaintiffs’ rights.

 

As for the fraudulent concealment cause of action, the Court previously overruled Defendant’s demurrer to this cause of action. To the extent that Plaintiffs have alleged that Defendant acted fraudulently, Plaintiffs may maintain a claim for punitive damages under this cause of action.

 

Plaintiffs have not satisfied the pleading standard for punitive damages for two of the three causes of action. Defendant’s motion to strike the requests for punitive damages and related allegations is granted in part and denied in part. Allegations related to Defendant acting knowingly or intentionally are stricken from Paragraphs 74, 76, 81, and 128. Paragraph 82 in its entirety is ordered stricken in their entirety. Plaintiffs are given leave to amend. The motion is denied for Paragraphs 47, 54, 55, 94, 96, 97, 98, 106, 107, 114, 118, 120, 121, 137, 144, and 150.

 

CONCLUSION

Defendant’s demurrer to Plaintiff’s Third Cause of Action is overruled. Defendant’s motion to strike is granted in part and denied in part, and Plaintiffs are given leave to amend.

 

Plaintiffs are given 30 days leave to amend their complaint.

 

Moving party to give notice to all parties.