Judge Gary Y. Tanaka, Case 21STCV16686 2023-01-31 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Tuesday, January 31, 2023

Department B Calendar No. 4

2. Amen Pest Control, Inc.’s Motion to Strike Portions of Second Amended Complaint

Amen Pest Control, Inc.’s Demurrer to Second Amended Complaint is sustained without leave to amend.

Amen Pest Control, Inc.’s Motion to Strike Portions of Second Amended Complaint is moot, in part, and granted without leave to amend, in part.

Plaintiffs’ Complaint was filed on May 3, 2021. Plaintiffs’ Second Amended Complaint was filed on June 10, 2022. Plaintiffs allege the following facts. Plaintiffs suffered bed bug bits in their apartment. The apartment was sprayed by Amen Pest Control, Inc. Plaintiffs allege the following causes of action: 1. Battery 2. Negligence 3. Intentional Infliction of Emotional Distress 4. Private Nuisance 5. Public Nuisance.

Defendant filed one meet and confer declaration in support of the Motion to Strike. Defendant did not file a meet and confer declaration in connection with the Demurrer. However, the one meet and confer declaration attached exhibits which appear to demonstrate sufficient compliance with both CCP § 430.41 and CCP § 435.5. (Decl., Jason K. Cheung, Exs. 2-3.)

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.)

Defendant’s demurrer to the first cause of action is sustained without 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 sufficient facts to support the elements of Battery including facts of Defendant’s touching Plaintiffs or causing Plaintiffs to be touched, and intent to harm or offend. Plaintiffs have again set forth a series of conclusions. Plaintiffs rely upon conclusory statements such as allegations that Defendants acted intentionally, willfully, and with a conscious disregard for the rights of Plaintiffs without sufficient facts to support these conclusions. (SAC, ¶ 22, 25-27, 30, 39.) Similar to the prior reiterations of the operative Complaint, almost all of the allegations appear directed toward co-Defendants, with numerous references to “management,” such as allegations that Defendants chose not to eradicate or inspect the property and did not properly manage its staff. (SAC, ¶ 22-41.) The opposition also repeats these numerous allegations and arguments, almost as if Plaintiffs are opposing a Demurrer brought by co-Defendants rather than the demurring Defendant, herein.

As to demurring Defendant, the only substantive factual allegation stated against it is that this Defendant actually did spray the property on three separate occasions. (SAC, ¶ 17). Plaintiffs allege that they continued to be bit after these treatments. However, there are no allegations that demurring Defendant caused the touching or acted with intent to harm or offend Plaintiff. Thus, these factual elements remain conclusory and lacking in facts.

Therefore, Defendant’s demurrer to the first cause of action is sustained without leave to amend. Plaintiffs have failed to articulate a potential for amendment against this Defendant.

The demurrer to the third cause of action is sustained without leave to amend. Plaintiffs fail to state facts sufficient to state a cause of action.

“A cause of action for IIED requires proof of: (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 suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.

Plaintiffs have failed to set forth facts sufficient to support the elements of extreme and outrageous conduct, intent or reckless disregard, and proximate causation. Plaintiffs have simply set forth conclusions. This cause of action suffers from the same defects as the first cause of action. There are no factual allegations to show that Defendants acted extremely and outrageously with intent to cause emotional distress or reckless disregard that Defendant may cause emotional distress.

Therefore, the demurrer to the third cause of action is sustained without leave to amend. Plaintiffs have failed to articulate a potential for amendment against this Defendant.

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 motion to strike paragraphs 51 and 83, the motion to strike is moot upon the sustaining of the demurrer to the first and third causes of action.

“(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 Defendant 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. As detailed above, in the Court’s ruling upon the demurrer to the first and third causes of action, Plaintiffs conclude, without providing the requisite specific facts, that Defendant willfully, maliciously, and/or recklessly decided not to eradicate the alleged bed bug problem and not to notify Plaintiffs of the problem to cause Plaintiffs’ injuries. No specific facts were provided to support these conclusions. Similarly, Plaintiffs’ allegations of authorization and ratification rely on a litany of conclusions, but Plaintiffs do not provide the factual support for these conclusory accusations. In fact, as noted above, even these conclusions appear directed toward co-Defendants rather than moving Defendant.

Therefore, the motion to strike is moot, in part, and granted without leave to amend, in part.