Judge: Gary Y. Tanaka, Case: 21STCV27240, Date: 2022-08-09 Tentative Ruling
Case Number: 21STCV27240 Hearing Date: August 9, 2022 Dept: B
LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Tuesday, August 9, 2022
Department B Calendar No. 6
PROCEEDINGS
Omar Shaheed, et al. v. Travelodge Hotels, Inc., et al.
21STCV27240
LAX Hotel Venture, Inc., et al.’s Demurrer to Second Amended Complaint
LAX Hotel Venture, Inc., et al.’s Motion to Strike Portions of Second Amended Complaint
TENTATIVE RULING
LAX Hotel Venture, Inc., et al.’s Demurrer to Second Amended Complaint is overruled, in part, and sustained without leave to amend, in part.
LAX Hotel Venture, Inc., et al.’s Motion to Strike Portions of Second Amended Complaint is moot.
Background
Plaintiffs filed their Complaint on July 23, 2021. Plaintiffs’ operative Second Amended Complaint was filed on May 18, 2022. Plaintiffs allege the following facts. On January 22, 2021, Plaintiffs were guests at the Travelodge Lax South motel, located at 1804 E. Sycamore Ave., El Segundo, CA 90245. After Plaintiffs had exited their room on the second floor, they lost their footing on a broken piece of concrete while preparing to walk down the stairs. Plaintiffs tumbled down the stairs to the first floor. Plaintiffs alleges the following causes of action: 1. Negligence; 2. Premises Liability; 3. Intentional Infliction of Emotional Distress; 4. Concealment.
Meet and Confer
Defendant set forth meet and confer declarations in sufficient compliance with CCP § 430.41 and CCP § 435.5. (Decl., Napoleon G. Tercero, ¶ 5; Decl., Napoleon G. Tercero, ¶3.)
Demurrer
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 entire Second Amended Complaint on the grounds that the Second Amended Complaint fail to state facts sufficient to constitute a cause of action and that the Second Amended Complaint is uncertain.
First Cause of Action for Negligence
Second Cause of Action for Premises Liability
Defendants’ demurrer to the first and second causes of action is overruled. While Defendants’ demurrer was directed to the entire Second Amended Complaint, Defendants submitted no argument challenging the first and second causes of action.
Third Cause of Action for Intentional Infliction of Emotional Distress
Defendants’ 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.
“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.
Plaintiffs fail to plead facts to meet the element of extreme and outrageous conduct with the intent to cause or with the reckless disregard of the probability of causing emotional distress. Plaintiffs fail to plead facts to meet the element actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Plaintiffs have only pled conclusions. Plaintiffs have alleged that there was a dangerous condition on the concrete where Plaintiffs fell, and that Defendants placed a rubber mat over the condition, thus, concealing the condition. These facts merely support a cause of action for Negligence. The factual allegations do not arise to the level of extreme and outrageous conduct required to support a cause of action for IIED. Plaintiffs have only set forth conclusions that Defendants acted with intent or with reckless disregard for the probability of causing emotional distress.
In the First Amended Complaint, the conclusory allegations of outrageous conduct with intent to cause emotional distress are set forth only upon information and belief. (FAC, ¶ 8.) “[P]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true and thus a pleading made on information and belief is insufficient if it merely assert[s] the facts so alleged without alleging such information that lead[s] [the plaintiff] to believe that the allegations are true.” Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1158–1159 (internal citations and quotations are omitted; emphasis in original). In the First Amended Complaint, Plaintiffs failed to plead facts to demonstrate why they believe that the matters set forth under information and belief are true.
Now, with the Second Amended Complaint, Plaintiffs simply decided to omit the allegation of information and belief without adding any facts to support their belief, or to support the conclusory matters set forth in the Second Amended Complaint. Now, the allegations of knowledge of the dangerous condition, and intent to cause emotional distress or reckless disregard for the probability of causing emotional distress are even more conclusory than the allegations of the First Amended Complaint. These accusations are now simply mere bald conclusions unsupported with any facts nor even an indication that Plaintiffs may have discovered facts through information and belief.
Thus, the demurrer to the third cause of action is sustained without leave to amend.
Fourth Cause of Action for Concealment
The demurrer to the fourth cause of action is sustained without 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 support the elements of the existence of a duty to disclose a material fact to Plaintiffs, and intentional concealment or suppression of the fact with intent to defraud Plaintiffs. Plaintiffs merely allege conclusions. In addition, Plaintiffs have failed to plead the requisite specific facts as to the elements of concealment such as who concealed the material fact, their authority to act on behalf of demurring Defendants, and when the concealment occurred.
In addition, similar to the defects of the third cause of action, the conclusory allegations of concealment are now simply bald conclusions rather than set forth upon information and belief. Plaintiffs have not cured the defect of the First Amended Complaint by adding the substantive facts to support this information and belief. Simply omitting the “information and belief” allegation renders the pleading even more conclusory than the First Amended Complaint.
Therefore, the demurrer to the fourth cause of action is sustained without leave to amend.
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.
Defendant’s motion to strike is moot upon the sustaining of the demurrer to the third and fourth causes of action.
Defendant is ordered to file and serve an Answer to the Second Amended Complaint within 10 days of this date.
Defendant is ordered to give notice of this ruling.