Judge: George F. Bird, Jr., Case: 20STCV39963, Date: 2023-03-17 Tentative Ruling
“INSTRUCTIONS:
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Case Number: 20STCV39963 Hearing Date: March 17, 2023 Dept: B
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
FOR
THE COUNTY OF LOS ANGELES – SOUTH CENTRAL DISTRICT
|
Plaintiffs, vs. Defendants. |
) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) |
CASE NO: [TENTATIVE]
ORDER Dept. B DATE: TIME: COMPLAINT FILED: TRIAL DATE: |
Plaintiffs Sam Henson and Samantha Rivas (collectively
“Plaintiffs”) filed the Complaint in this action on October 16, 2020, alleging
causes of action for (1) battery, (2) negligence, (3) intentional infliction of
emotional distress, (4) fraudulent concealment, (5) private nuisance, and (6)
public nuisance against LA Crystal Hotel (the “Hotel”) and its alleged owner, American
Curvet Investment, LLC (Collectively “Defendants”). (Complaint (“Compl.”), ¶
5.) Attorney for American Curvet Investment, LLC states that American Curvet
Investment, LLC is doing business as LA Crystal Hotel and that Plaintiff
erroneously sued LA Crystal Hotel as a separate entity. (Demurrer p. 1:12-13.) Plaintiffs
allege they encountered Cimex Lectularius (“bedbugs”) while staying at the Hotel. (Compl., ¶ 14.) Plaintiffs allege
that they checked in on September 30, 2018, and on or about October 22, 2018,
Plaintiffs awoke to discover the bedbugs. (Compl., ¶¶ 13, 14.) Plaintiffs
allege that they spoke to the manager, were given a refund for the night stay,
and were transferred to another room. (Compl., ¶ 15.) Plaintiffs subsequently
checked out on October 23, 2018. (Compl., ¶ 16.) Plaintiffs allege that they
sought further medical attention for the pain from the bites and that they
suffer from physical and emotional scarring. (Compl., ¶¶ 19, 20.)
This action was originally on
calendar in the Personal Injury Court, but on December 8, 2022, it was
determined that the action was not a personal injury case and should be moved
to an independent calendar court. The hearings on this Demurrer and Motion to Strike
were vacated on December 9, 2022. The Honorable Judge George Bird rescheduled
the hearing on this Demurrer and Motion to Strike for March 17, 2023. (See
Minute Order on February 6, 2023.)
II. DEMURRER WITH MOTION TO STRIKE
A.
Demurrer and Motion to Strike filed September
28, 2022.
Defendants demur to the first,
third, fourth, fifth, and sixth causes of action for battery, intentional infliction
of emotional distress, fraudulent concealment, private nuisance, and public nuisance.
Defendants do not demur to the second cause of action for negligence.
Defendants demur under Code of Civil Procedure section 430.10, subdivision (e),
arguing that “[t]he pleading does not state facts sufficient to constitute a
cause of action.” Defendants
also seek to strike the allegations of punitive damages and the request for
attorney’s fees.
B.
Opposition filed November 28, 2022.
Plaintiffs’ Opposition argues that each cause of
action is supported by proper factual allegations in the Complaint.
Additionally, Plaintiffs argue they are entitled to an award of punitive
damages under precedent California tort law and Civil Code section 3294, subdivision
(a).
C. Reply filed December 2, 2022.
Defendants argue that the Opposition
simply reasserts the same defective allegations in the Complaint. Defendants
argue that none of the case law presented entitles Plaintiffs to an award of
punitive damages and request the Court grant the Motion to Strike as to
punitive damages. Defendants also argue that Plaintiffs’ Opposition violates
the 15-page limit set out in California Rules of Court, rule 3.1113,
subdivision (d). Defendants request that the Court exercise its discretion and
not consider any of Plaintiffs’ arguments beyond the 15-page limit.
California Rules of Court, rule
3.1113, subdivision (g), provides “A memorandum that exceeds the page limits of
these rules must be filed and considered in the same manner as a late-filed
paper.” As the Court has broad discretion under California Rules of Court rule
3.1300, subdivision (d), to consider late-filed papers, the Court also has
broad discretion to consider memos over the 15-page limit. Plaintiffs’
Opposition takes great care to quote extensively from the Complaint and
Defendants were able to submit a detailed, timely Reply to the Opposition. This
Court will consider the additional pages of Plaintiffs’ Opposition.
III. LEGAL STANDARDS
A demurrer tests the legal
sufficiency of the factual allegations in the complaint. (K.G. v. S.B.
(2020) 46 Cal.App.5th 625, 630.) “The purpose of a demurrer is to test whether,
as a matter of law, the properly pleaded facts in the complaint state a cause
of action under any legal theory.” (Olson v. Hornbrook Community Services
Dist. (2019) 33 Cal.App.5th 502, 516.) In ruling on a demurrer, the court
must “liberally construe[]” the allegations in the complaint. (Code Civ. Proc.,
§ 452; See Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th
1228, 1238.)
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; McBride v. Smith (2018) 18
Cal.App.5th 1160, 1173.) “We treat the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions, or conclusions of fact or
law.” (Savea v. YRC Inc. (2019) 34 Cal.App.5th 173, 178; See also Moore
v. Conliffe (1994) 7 Cal.App.4th 634, 638.) For a statutory violation, “facts
in support of each of the requirements of a statute” must be “specifically pled,”
and simply “parroting the language” of a statute is insufficient to survive a
demurrer. (Hawkins v. TACA Internat. Airlines, S.A. (2014) 223
Cal.App.4th 466, 477-478.)
Because a demurrer tests the legal
sufficiency of a pleading, the plaintiff must show that the pleading alleges
facts sufficient to establish every element of each cause of action. (Rakestraw
v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) 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.) Where the pleading fails to state facts
sufficient to constitute a cause of action, courts should sustain the demurrer.
(Code Civ. Proc., § 430.10, subd. (e); Zelig v. County of Los Angeles
(2002) 27 Cal.App.4th 1112, 1126.)
“Any 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….” (Code Civ. Proc., § 435, subd. (b)(1).) Upon a
motion to strike, the court may “(a) Strike out any irrelevant, false, or
improper matter inserted in any pleading” and “(b) Strike 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.” (Code Civ. Proc., § 436, subd. (a)-(b).)
A motion to strike “must quote in full the portions sought to be stricken
except where the motion is to strike an entire paragraph, cause of action,
count, or defense. Specifications in a notice must be numbered consecutively.”
(Cal. Rules of Court, Rule 3.1322.)
A party may not demurrer to a portion of a cause of
action, so “a substantive defect which appears on the face of a complaint, but
involves only a portion of a cause of action, may be the subject of a motion to
strike.” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680,
1681.)
IV. DISCUSSION
A.
Battery.
The essential elements of a cause of
action for battery are: (1) defendant touched plaintiff, or caused plaintiff to
be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not
consent to the touching; (3) plaintiff was harmed or offended by defendant's
conduct; and (4) a reasonable person in plaintiff's position would have been
offended by the touching. (So v. Shin (2013) 212 Cal.App.4th 652, 669, as
modified on denial of reh'g (Jan. 28, 2013); CACI 1300.)
The Complaint alleges that Defendants caused Plaintiffs
to be touched by
“(1) Defendants’, and DOES 1
through 20, deliberate choice not to eradicate a Cimex lectularius
infestation in the hotel; (2) Defendants’, and DOES 1 through 20, deliberate
choice not to inspect or ensure that Plaintiffs’ room, was free of Cimex
lectularius immediately before Plaintiffs’ stay at the hotel; (3)
Defendants’, and DOES 1 through 20, deliberate and reckless choice not to
inspect the bed skirts in Plaintiffs’ room to protect against and prevent a Cimex
lectularius infestation; (4) Defendants’, and DOES 1 through 20, willful
disregard of a Cimex lectularius infestation that was either known or
should have been known from prior infestations in Plaintiffs’ room; (5)
Defendants’ deliberate and reckless choice not to notify Plaintiffs of the
presence of Cimex lectularius in the hotel and, specifically,
Plaintiffs’ room.” (Compl., ¶ 35.)
Plaintiffs directly allege that the
conduct by Defendants was done “with the intent to
cause a
harmful or offensive contact with the body of Plaintiffs, or with a reckless
disregard of the probability of causing such offensive contact.” (Compl., ¶ 36.)
Construing the allegations in favor of Plaintiffs, as is required in evaluating
a demurrer, the Complaint alleges that Defendants deliberate inaction in
eradicating the known bedbug infestation in Plaintiffs’ room caused Plaintiffs
to be touched and was done with the intent to harm or offend Plaintiffs. These
allegations are sufficient to plead a cause of action for battery.
The allegations are not factual or legal conclusions,
as Defendants argue. Plaintiffs specifically allege each choice and action by
Defendants which led to the alleged battery.
This Demurrer to the first cause of
action for battery is OVERRULED.
B.
Intentional
infliction of emotional distress.
A cause of action for intentional
infliction of emotional distress exists when there is “(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.”
(Internal quotations omitted.) (Hughes v. Pair (2009) 46 Cal.4th 1035,
1050.)
Defendants argue that Plaintiffs do not allege that
Defendants acted with the intention of causing, or reckless disregard of the
probability of causing, emotional distress. Defendants conclude that any
allegation of intent is simply a factual conclusion.
Defendants provide a litany of
allegations which they argue are factual conclusions:
“59. The actions of Defendants, and
DOES 1 through 20, were intentional, extreme, and outrageous- namely, because
of the following egregious and reckless conduct: (1) Defendants’, and DOES 1
through 20, willful disregard of a Cimex lectularius infestation that
was either known or should have been known from prior infestations in the hotel
and Plaintiffs’ room; (2) Defendants’, and DOES 1 through 20, deliberate and
reckless choice to abstain from notifying Plaintiffs of a known presence of Cimex
lectularius in Plaintiffs’ room, prior to Plaintiffs’ arrival; (3)
Defendants, and DOES 1 through 20, deliberate choice not to eradicate a bedbug
infestation in Plaintiffs’ room, which was already known to Defendants, and
DOES 1 through 20; (4) Defendants, and DOES 1 through 20, deliberate and
reckless choice not to require housekeeping staff to change the bed skirts regularly
or not to inspect and ensure that the bed skirts are free from a Cimex
lectularius infestation immediately prior to Plaintiffs’ stay; (5)
Defendants, and DOES 1 through 20, deliberate and reckless choice not to
inspect or ensure that Plaintiffs’ room was free of Cimex lectularius
immediately prior to Plaintiffs’ stay, willfully disregarding knowledge of the
prior bedbug infestation in Plaintiffs’ room; (6) Defendants, and DOES 1
through 20, routine practice of showing extreme indifference to the danger of
bedbug infestations; (7) Defendants, and DOES 1 through 20, failure to have
adequate policies and procedures to properly train employees of the hotel room
to inspect rooms for bedbug infestations and to adequately protect hotel guests
from exposure to bedbug infestations; and (8) Defendants, and DOES 1 through
20, failure to implement any new policies and procedures after Plaintiffs’
injuries to prevent any further Cimex lectularius infestations in their
hotel, which again exemplifies their extreme indifference to the rights of
their guests and the value of
human life.
60.
Defendants’, and DOES 1 through 20, actions were done with
the intent to cause serious emotional distress or with reckless disregard of
the probability of causing Plaintiffs serious emotional distress.” (Compl.,
¶¶ 59, 60.)
The above allegations are not conclusions of fact.
Plaintiffs are not required to plead the evidentiary support for each of the
factual allegations in the Complaint. The supporting evidence for these
allegations will be revealed during discovery. Plaintiffs need only plead facts
“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.)
Paragraph 59 of the Complaint directly lists the
conduct which Plaintiffs allege is extreme and outrageous. Paragraph 60 of the
Complaint clearly alleges that the Defendants acted “with the intent to cause
serious emotional distress or with reckless disregard of the probability of
causing Plaintiffs serious emotional distress.” The statement is supported by
the numerous allegations that Defendants acts were intentional or reckless in paragraph
59 of the Complaint.
Finally, Defendants argue that for the conduct to be considered
intentional, there must be allegations that the conduct was directed at Plaintiffs.
Plaintiffs allege that Defendants failed to inform Plaintiffs of the bedbug
infestation, which is an allegation of an action directed at Plaintiffs. (Compl.,
¶ 31.) Additionally, Plaintiffs allege that Defendants were aware of the bedbug
infestation in the room which they then assigned to Plaintiffs. (Compl., ¶ 66.)
This conduct can be construed as directed at Plaintiffs.
The Demurrer to the second cause of
action for intentional infliction of emotional distress is OVERRULED.
C. Fraudulent
concealment.
“[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 had 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.” (CACI 1901 Citing Boschma v. Home Loan Center,
Inc. (2011) 198 Cal.App.4th 230, 248.) “Fraud must be pleaded with
specificity, to provide the defendants with the fullest possible details of the
charge so they are able to prepare a defense to this serious attack. To
withstand a demurrer, the facts constituting every element of the fraud must be
alleged with particularity, and the claim cannot be salvaged by references to
the general policy favoring the liberal construction of pleadings.” (Goldrich
v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 781, as
modified (June 15, 1994).)
Defendants argue that the Complaint does not offer
specific factual allegations which satisfy the heightened pleading standard for
fraud. In the Complaint, Plaintiffs allege that Defendants were aware of the bedbug
infestation in the Hotel, and specifically in the room rented to Plaintiffs,
through the employees and through 12 online complaints of bedbugs at the Hotel.
(Compl., ¶¶ 18, 66.) Defendants allegedly knew there was a bedbug infestation
in Plaintiffs’ room as of September 29, 2018. (Compl., ¶ 31.) Even with such knowledge, Defendants
allegedly deliberately turned a blind eye to the infestation and guest
complaints. (Compl., ¶ 25.) Defendants allegedly authorized housekeeping to not
change bed skirts and not to inspect for bedbugs. (Compl., ¶ 26.) Plaintiffs
allege that Defendants deliberately ignored the bedbug problem and chose not to
notify the Plaintiffs of the bedbug infestation upon Plaintiffs’ arrival at the
Hotel. (Compl., ¶ 24.) Additionally, Plaintiffs allege that Defendants failed
to implement policies and procedures, training, and proper cleaning processes
to keep the rooms sanitary. (Compl., ¶ 75.)
Plaintiffs allege that Defendants
were in a position of power and Plaintiffs reasonably trusted Defendants to
provide a safe and clean environment. (Compl., ¶ 68.) Plaintiffs allege they
had no way of knowing of the fact that bedbugs existed prior to renting the
room. (Compl., ¶ 70.) Plaintiffs allege that Defendants intended to deceive
Plaintiffs about the bedbugs to turn a profit. (Compl., ¶ 71.) The allegations
are particular and satisfy the heightened pleading standard.
The Demurrer to the third cause of
action for fraudulent concealment is OVERRULED.
D. Private nuisance.
“A nuisance is an interference with the interest in
the private use and enjoyment of the land and does not require interference
with the possession.” (McBride v. Smith (2018) 18 Cal.App.5th 1160,
1178.) A private nuisance requires allegations that (1) Plaintiffs owned/leased/occupied/controlled
the property; (2) Defendants, by acting or failing to act, created a condition
or permitted a condition to exist that was harmful to health or was an
obstruction to the free use of property, so as to interfere with the
comfortable enjoyment of life or property; (3) Defendants’ conduct in acting or
failing to act was intentional and unreasonable or unintentional, but negligent
or reckless; (4) The condition
substantially interfered with Plaintiffs’ use or enjoyment of land; (5) That an
ordinary person would reasonably be annoyed or disturbed by Defendants’
conduct; (6) That Plaintiffs did not consent to Defendants’ conduct; (7) That Plaintiffs’
were harmed; (8) That Defendants’ conduct was a substantial factor in causing Plaintiffs’
harm; and (9) That the seriousness of the harm outweighs the public benefit of
Defendants’ conduct. (CACI 2021.)
Defendants argue that Plaintiffs lack standing.
Defendants point to Venuto v. Owens-Corning Fiberglass Corp. (1971) 22
Cal.App.3d 116 for the contention that guests in a hotel room are licensees and
seen as separate from tenants. Such a determination was not before the court in
Venuto because plaintiffs brought a claim for a public nuisance, not
private nuisance, and injunction against a fiberglass manufacturing plant, not
a hotel, for operating the plant in a way that was allegedly injurious to the
residents of Santa Clara County. The Court of Appeal determined that a private
citizen may only bring a claim for a public nuisance “if it is specially injurious to himself” under
Civil Code section 3493. The Court
of Appeal evaluated if the action could also be a
private nuisance to help in “determining how the statute is to be applied.” (Venuto
v. Owens-Corning Fiberglas Corp., supra, 22 Cal.App.3d at pp. 123-124.) The
Court of Appeal determined that the plaintiffs had not
alleged an interference with a property right by only stating they were
residents of Santa Clara County. (Id. at 125.) The determination was not
based on plaintiffs' status as a licensee, bedbugs, or even a private nuisance
claim.
Defendants
also cite to Edwards v. City of Los Angeles (1941) 48 Cal.App.2d 62, 66,
for the contention that “[g]uests in a hotel, boarders in a boarding house, and
roomers or lodgers, so called are generally mere licensees and not tenants.” (Id.
at 67.) In Edwards, plaintiff challenged the validity of Los Angeles Municipal Code, Art. 1, Ch. 2
(general ordinance No. 77,000), prescribing an occupational license tax. (Edwards
v. City of Los Angeles (1941) 48 Cal.App.2d 62.) The determination of the Court of Appeal was purely interpreting the ordinance. “To the extent that an identical
business is operated; that is, the renting of accommodations to lodgers,
whether in a structure called a hotel, apartment, rooming house, boarding
house, or lodging house, flat, bungalow court, duplex or single dwelling, is
immaterial under the terms of the ordinance, the purpose of which is to collect
license taxes in proportion to gross receipts.” (Italics added for
emphasis.) (Ibid.) Defendants have failed to demonstrate a lack of
standing by Plaintiffs to bring this private nuisance claim.
A
nuisance is defined as “Anything which is injurious to health … so as to
interfere with the comfortable enjoyment of life or property … is a nuisance.”
(Civ. Code, § 3479.) Plaintiffs allege that the bedbugs caused physical
injuries from bite marks and itching and interfered with the comfortable
enjoyment of the hotel room they rented. (Compl., ¶¶ 14, 19, 20, 80.) In
accordance with CACI 2021, Plaintiffs allege that they occupied the hotel room
which contained bedbugs, because of Defendants acts or failure to act, and
Plaintiff was subsequently harmed by the bedbugs. (Compl., ¶¶ 13, 19, 20, 21,
23, 80, 81, 82.)
This Demurrer to the fifth cause of action for private
nuisance is OVERRULED.
E. Public nuisance.
To state a claim for public
nuisance, a plaintiff must assert that: (1) the defendant created a harmful,
indecent, offensive, or obstructive condition; (2) the condition affected a
substantial number of people at the same time; (3) an ordinary person would be
reasonably annoyed or disturbed by the condition; (4) the seriousness of the
harm outweighs the social utility of the defendant’s conduct; (5) the plaintiff
did not consent to the defendant’s conduct; (6) the plaintiff suffered harm
that was different from the type of harm suffered by the general public; and
(7) the defendant’s conduct was a substantial factor in causing the plaintiff’s
harm. (See Dep’t of Fish & Game (2011) 197 Cal.App.4th 1323, 1352.)
Defendants argue that the facts
alleged cannot be a public nuisance because Plaintiffs do not allege that the
bedbugs affected a substantial number of people. “A public nuisance is one
which affects at the same time an entire community or neighborhood, or any
considerable number of persons, although the extent of the annoyance or damage
inflicted upon
individuals
may be unequal.” (Civ. Code § 3480.) To qualify, the interference must be both
substantial
and unreasonable. (See County of Santa Clara v. Atl. Richfield Co.
(2006) 137
Cal.App.4th
292, 305.) Plaintiffs have alleged that the hotel has a prior and/or ongoing
history of bedbug infestations and guests complaining of such infestations.
(Compl., ¶ 18.) Plaintiffs allege there are at least 12 complaints of bedbugs
at the Hotel. (Ibid.) If such allegations are enough to constitute a
‘substantial number’ of people is an issue of fact not suited for a demurrer.
The allegation is present in the Complaint and if true, it may be sufficient to
sustain a cause of action for public nuisance.
Defendants also argue that the interference alleged is
not substantial and unreasonable. Construing the allegations in favor of
Plaintiffs, the interference suffered from allegedly sleeping in a bed infested
with bedbugs was so substantial that Plaintiffs later sought out additional
medical treatment and had to replace several items including clothes, luggage,
and belongings exposed to the bedbugs. (Compl., ¶¶ 20, 21.) Plaintiffs also
allege that there are two other pending cases against Defendants related to
bedbug infestations at the Hotel which further demonstrates the considerable
number of people affected and the substantial nature of the interference.
(Compl., ¶ 18.)
Finally, Defendants allege that
Plaintiffs lack standing to bring a public nuisance claim as Plaintiffs are
only transient lodgers and lack an underlying interest in the property. “To
have standing to pursue a public nuisance as a private person, the plaintiff
must adequately allege the existence of a nuisance affecting the community at
large, and also that they sustained a special injury, distinct in some way from
the more general public harm.” (Rincon Band of Luiseno Mission Indians etc.
v. Flynt (2021) 70 Cal.App.5th 1059, 1102 [286 Cal.Rptr.3d 29, 60–61, 70
Cal.App.5th 1059, 1102], review denied (Feb. 16, 2022).)
As stated above, Plaintiffs properly
allege the existence of a public nuisance and Plaintiffs specifically allege
that the bedbugs affect the community at large. (Compl., ¶ 86.) Plaintiffs
argue in the Opposition that the transient nature of hotel guests adds a
greater impact on the community at large because guests coming and going
increase the spread of the bedbugs and risk the health of the community.
(Opposition, p. 16:19-23.) Plaintiffs also allege they suffered a separate harm
from the bedbugs from the loss of the use and enjoyment of the room Plaintiffs
were renting for almost three full weeks. (Compl., ¶¶ 13, 14, 87.) Plaintiffs have
sufficiently alleged facts that give Plaintiffs standing to bring a claim for
public nuisance.
Demurrer to the sixth cause of
action for public nuisance is OVERRULED.
F. Motion to
Strike.
Defendants
seek to strike any language in the Complaint which seeks punitive damages. “The
motion to strike is widely used to challenge portions of causes of action
seeking punitive damages. [Citation.] … We emphasize that such use of the
motion to strike should be cautious and sparing. We have no intention of creating
a procedural ‘line item veto’ for the civil defendant.” (PH II, Inc. v.
Superior Court, supra, 33 Cal.App.4th at p. 1683.)
Defendants
argue that the factual allegations in the Complaint do not support an award for
punitive damages. California Civil Code section 3294 allows a plaintiff to
recover damages “for the sake of example and by way of punishing the defendant”
if “it is proven by clear and convincing evidence that the defendant has been
guilty of oppression, fraud, or malice.” 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.” (Cal. Civil
Code § 3294.)
It has already been determined that there are ample
allegations in the Complaint to allow Plaintiffs to pursue a claim for
fraudulent concealment. Plaintiffs have alleged that Defendants intentionally
failed to eradicate the known bedbug infestation and allegedly engaged in
several intentional acts of concealment by telling housekeeping not to inspect
for bedbugs, not training staff to properly identify bedbug infestations, and
by intentionally failing to inform Plaintiffs of the bedbug infestation in the
room rented to Plaintiffs. (Compl., ¶ 75.) Plaintiffs alleged that Defendants
concealed the bedbug infestation to turn a profit. (Compl., ¶ 71.) These
allegations, if proven, are sufficient to sustain an award of exemplary or
punitive damages.
Defendants further argue that
Plaintiffs’ allegations amount to mere negligence by improper housekeeping and
that such allegations are insufficient to support an award of punitive damages.
We disagree. The Complaint lists numerous intentional acts of Defendants beyond
just poor housekeeping. Plaintiffs allege that, with knowledge of the bedbug
infestation, Defendants deliberately concealed the infestation, chose not to
eradicate the infestation, intentionally
rented Plaintiffs a room with bedbugs, and deliberately chose not to inspect
rooms or bed skirts for bedbugs. (Compl., ¶¶ 24, 32, 35.) Such conduct, if
true, “… rises to levels of extreme indifference to the plaintiff's rights, a
level which decent citizens should not have to tolerate.” (American
Airlines, Inc. v Sheppard, Mullin, Richter & Hampton, (2002) 96
Cal.App.4th 1017, 1051.) The Motion to Strike is DENIED as to punitive damages.
California Code of Civil Procedure section 1021 allows
for an award of attorney’s fees by statute or agreement by the parties. Here,
Plaintiffs have not provided a statute or agreement which entitles them to an
award of attorney’s fees. Accordingly, the Court will GRANT the Motion to Strike
Plaintiffs’ prayer for the recovery of attorney’s fees.
Plaintiffs do request leave to amend
if the court grants any portion of the Motion to Strike. “Where the defect
raised by a motion to strike or by demurrer is reasonably capable of cure,
‘leave to amend is routinely and liberally granted to give the plaintiff a
chance to cure the defect in question.’ [Citations.] A pleading may be stricken only upon terms the court deems
proper [citation], that is, terms that are just. [Citations.] It is generally
an abuse of discretion to deny leave to amend….” (Velez v. Smith (2006) 142 Cal.App.4th
1154, 1174–1175 [48 Cal.Rptr.3d 642, 658].) As Plaintiffs may reasonably be
able to amend the pleadings and present a statute or agreement which entitles
them to attorney’s fees, Plaintiffs will be granted leave to amend the
allegations to support a request for attorney’s fees.
V.
CONCLUSION
The Demurrer is OVERRULED in its
entirety.
The Motion to Strike is DENIED as to
punitive damages.
The
Motion to Strike is GRANTED, with leave to amend, as to the request for
attorney’s fees.
Dated:
Judge of the Superior Court