Judge Gary Y. Tanaka, Case 19STCV35801 2022-12-21 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Wednesday, December 21, 2022

Department B Calendar No. 8

2. 401 South Hoover Property, Inc., et al.’s Motion to Strike Portions of Complaint

401 South Hoover Property, Inc., et al. and Jimmy Kim, et al.’s Demurrers to Complaint are sustained with 20 days leave to amend.

401 South Hoover Property, Inc., et al. and Jimmy Kim, et al.’s Motions to Strike Portions of Complaint are moot, in part, and granted with 20 days leave to amend.

Plaintiffs’ Complaint was filed on October 1, 2019. Plaintiffs allege the following facts. Plaintiffs suffered bed bug bites after staying at Defendants’ hotel. Plaintiffs allege the following causes of action: 1. Battery; 2. Negligence; 3. Intentional Infliction of Emotional Distress; 4. Fraudulent Concealment; 5. Private Nuisance; 6. Public Nuisance.

Defendants set forth meet and confer declarations in sufficient compliance with CCP § 430.41 and CCP § 435.5. (Decls., Allison K. Howard.)

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.) Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Defendants demur to the first, and third through sixth causes of the Complaint for failure to state sufficient facts.

Defendants’ demurrers to the first cause of action are sustained with 20 days leave to amend. Plaintiffs fail to state facts sufficient 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.

Plaintiffs fail to plead facts to support the element of intent to harm or offend. Plaintiffs merely stated conclusions. Plaintiffs rely upon conclusory statements such as allegations that Defendants acted intentionally, willfully, and recklessly without facts to support these conclusions. Plaintiffs rely upon conclusions that Defendant “deliberately and recklessly chose not to inspect or otherwise ensure that Plaintiff’s room was free of Cimex lectularius (“bedbugs”) immediately before Plaintiffs’ stay at the hotel.” (Complaint, ¶ 21.) However, Plaintiffs allege no facts to demonstrate that Defendants were aware of any bed bug infestation in Plaintiff’s room immediately prior to Plaintiffs’ stay at the hotel, and that despite this awareness, Defendants knowingly allowed Plaintiffs to stay in the bed bug infested room with the intent to harm or offend the Plaintiffs. Plaintiffs allege that they notified hotel management of the infestation after being bitten, but then Plaintiffs allege that “management stated that they would inspect the rooms; however, the management denied any findings.” (Complaint, ¶ 18.) Therefore, apparently, according to Plaintiffs, after inspecting the rooms, Defendants did not find any bed bugs in the rooms.

Thus, the factual element of intent to harm or offend Plaintiffs remains conclusory and lacking in facts.

Therefore, Defendants’ demurrers to the first cause of action are sustained with 20 days leave to amend.

Defendants’ demurrers are sustained with 20 days leave to amend. Plaintiffs fail to state facts sufficient to state a cause of action.

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (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.” Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 228–29.

For the same reasons noted above in the ruling to the demurrers to the first cause of action, Plaintiffs fail to plead facts demonstrating extreme and outrageous conduct on the part of Defendants with the intent of causing or with reckless disregard of causing emotional distress as well as causation of emotional distress by any outrageous conduct. Plaintiffs have merely set forth conclusions.

Thus, the demurrers to the third cause of action are sustained with 20 days leave to amend.

Defendants’ demurrers to the fourth cause of action are sustained with 20 days leave to amend. Plaintiffs fail to state facts sufficient to state a cause of action.

“A complaint for fraud must allege the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages.” Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816. “[T]he elements of an action for fraud and deceit based on a 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 has 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.

“Every element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.” Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. Plaintiffs must state facts which “show how, when, where, to whom, and by what means the representations were tendered.” Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.

Plaintiffs fail to plead specific facts to state a cause of action for Fraudulent Concealment, including specific facts as to the alleged intentional concealment of a material fact with the intention to deceive Plaintiffs. As noted above, Plaintiffs have only pleaded conclusions that Defendants had knowledge of a bedbug infestation in Plaintiffs’ room and intentionally concealed this information from Plaintiffs.

Thus, Defendants’ demurrers to the fourth cause of action are sustained with 20 days leave to amend.

Defendants’ demurrers to the fifth and sixth causes of action are sustained with 20 days leave to amend. Plaintiffs fail to state sufficient facts to state the causes of action.

“Civil Code section 3479 defines a nuisance as ‘[a]nything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.’” Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 919.

“The elements of an action for private nuisance are: First, the plaintiff must prove an interference with his use and enjoyment of his property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land [must be] substantial, i.e., that it cause[s] the plaintiff to suffer ‘substantial actual damage. Third, [t]he interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., 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, 262-63 (internal citations and quotations omitted).

“[I]n determining whether a particular activity constitutes a public nuisance, a court considers three elements: (1) the proscribed act, (2) whether the result of the act interferes with the comfortable enjoyment of life or property, and (3) whether the act affects a sufficient number of persons.” People v. McDonald (2006) 137 Cal.App.4th 521, 535.

“A private nuisance cause of action requires the plaintiff to prove an injury specifically referable to the use and enjoyment of his or her land. Pursuant to Civil Code section 3501, a plaintiff seeking to remedy a private nuisance is limited to a civil action or abatement.Unlike public nuisance, which is an interference with the rights of the community at large, private nuisance is a civil wrong based on disturbance of rights in land.... [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. The injury, however, need not be different in kind from that suffered by the general public.” Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262 (internal citations and quotations omitted).

First, Plaintiffs failed to provide any authority to support the contention that a guest at a hotel has the type of property interest in the subject property necessary to state and maintain a cause of action for nuisance. As noted above, Mendez refers to an interference in the use and enjoyment of “his or her” land. Second, Plaintiffs fail to plead facts necessary to state a cause of action for public nuisance. Plaintiffs have not pled facts to show that the alleged offensive act affected a sufficient number of persons in order to qualify as a public nuisance.

Thus, the demurrers to the fifth and sixth causes of action are sustained with 20 days leave to amend.

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.

As to the motions to strike paragraphs 40, 64, and 78, the motions are moot upon the sustaining of the demurrers to the first, third, and fourth causes of action.

As to the motion to strike paragraph 57 and page 18, line 28, the motions are granted with 20 days leave to amend.

“(a) 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.

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Plaintiffs set forth conclusory allegations that Defendants acted willfully, maliciously, intentionally, and/or recklessly in an attempt to support Plaintiffs’ allegations and prayer for punitive damages. A Complaint’s “conclusory characterization of defendant's conduct as intentional, wilful and fraudulent is a patently insufficient statement of oppression, fraud, or malice, express or implied, within the meaning of section 3294.” Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872. In addition, Plaintiffs failed to set forth facts to meet the requirements of Civ. Code section 3294(b). Here, in addition to the conclusory allegations of malice, oppression, and fraud, Plaintiffs’ allegations to support Section 3294(b) are also conclusory.

Therefore, the motions to strike are moot, in part, and granted, in part, with 20 days leave to amend.