Judge: H. Jay Ford, III, Case: 22STCV01062, Date: 2024-07-09 Tentative Ruling

Case Number: 22STCV01062    Hearing Date: July 9, 2024    Dept: O

  Case Name:  Booersma, et al. v. Choice Hotels International, Inc, et al.

SUBJECT:                 DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:   Defendant Choice Hotels International, Inc.

RESP. PARTY:         Plaintiffs Amy Carol Boersma, Jonathan David Harber, Lucky Bud Jonathan Harber, and Tanyon Jagger David Harber

TENTATIVE RULING

            Defendant Choice Hotels International, Inc Demurrer is OVERRULED as to the 1^st cause of action for Battery and the 3^rd cause of action for IIED. Defendant Choice Hotels International Inc.’s Demurrer is SUSTAINED with 20 days leave to amend as to the 4^th cause of action for Fraudulent Concealment.

            Defendant’s Motion to Strike is DENIED. Plaintiffs plead enough facts to reach a possible finding of malice upon proof.         

REASONING

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245.)

Plaintiff is only required to allege ultimate facts, not evidentiary facts. (See Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212 [“the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts”); 1 Cal. Affirmative Def. § 10:2 (2d ed.) [allegations of agency, course and scope of employment, etc. qualify as ultimate facts].) Plaintiff’s allegations must be accepted as true on demurrer. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 [“For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint”].)

I.                Demurrer to the 1^st cause of action for Battery – OVERRULED

“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); see also CACI 1300.)

“The elements of a civil battery are: 1. Defendant intentionally did an act which resulted in a harmful or offensive contact with the plaintiff's person; [¶] 2. Plaintiff did not consent to the contact; [and][¶] 3. The harmful or offensive contact caused injury, damage, loss or harm to the plaintiff.” (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495.)

            As explained in Witkin Summary of California Law: “If the striking takes place in the performance of an unlawful act, the intent to injure is immaterial; the actor is answerable for all consequences that directly and naturally result, though unintended. (Rest.2d, Torts § 16(1); see 38 Pepperdine L. Rev. 623 [Restatement's definition of intent for battery].) However, if the touching is lawful, the defendant must intend to harm or offend the victim to be liable for battery. (Austin B. v. Escondido Union School Dist. (2007) 149 C.A.4th 860, 872, 57 C.R.3d 454.)”  5 Witkin, Summary 11th Torts § 455 (2024)

Plaintiffs Amy Carol Boersma, Jonathan David Harber, Lucky Bud Jonathan Harber, and Tanyon Jagger David Harber (collectively the “Plaintiffs”) successfully plead a cause of action for battery as to Defendant Choice Hotels International, Inc. (“Choice Hotels”). Plaintiffs plead that Choice Hotel intentionally chose to not “eradicate a Cimex lectularius infestation in the hotel.” (Complaint, ¶¶ 32, 46.) Plaintiffs plead Choice Hotels intentional choice not to eradicate the infestation led harmful bed bug bites, thus harmful or offensive contact. (See Complaint, ¶¶ 30, 46, Plaintiffs allege they did not consent to the contact. (Complaint, ¶ 46.) Plaintiffs allege Choice Hotels actions led to “serious injures” including “bedbug bites, itching and permanent scaring” from the bedbug bites. (Complaint, ¶¶ 31, 44, 49.)

Choice Hotel argues that Plaintiffs did not plead the requisite intent to harm in order to successfully plead a cause of action for battery. However, this argument is unpersuasive, as the intent is plead by stating facts to show an intentional act which resulted in offensive contact, as Plaintiffs have plead in the Complaint.

            Demurrer to the 1^st cause of action for battery is OVERRULED.

II.             Demurrer to the 3^rd cause of action for IIED

The elements of a cause of action for intentional infliction of emotional distress are (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering, and (4) actual and proximate causation of the emotional distress. “Conduct is extreme and outrageous when it exceeds all bounds of decency usually tolerated by a decent society, and is of a nature which is especially calculated to cause, and does cause, mental distress. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618.)

Whether a defendant's conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court. (See Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534 [affirming order sustaining demurrer to IIED cause of action without leave to amend based on failure to allege outrageous conduct].) If reasonable persons may differ, it is for the jury to determine whether the conduct was actually outrageous. (Ibid.)

Choice Hotel argues Plaintiffs do not allege any facts to show extreme and outrageous conduct by Choice Hotel, such that would exceed the bounds tolerated by society. However, as long as the facts are stated to allege the elements of the cause of action the demurrer will be overruled, and such is the case here. Plaintiffs allege Choice Hotels engaged in extreme and outrageous conduct by not eradicating the bed bug infestation when the infestation was known to Choice Hotels at the time the Plaintiffs checked into the hotel. (Complaint, ¶ 70.) Plaintiffs plead Choice Hotels committed acts with the requisite intent. (Id., ¶ 71.) Plaintiffs plead facts to show severe emotional suffering. (Id., ¶¶ 44 [“emotional injuries (including, but not limited to, severe embarrassment, annoyance, discomfort, pain, apprehension, tension, anxiety, and emotional distress”], 71.) Plaintiffs plead causation. (Id,, ¶¶ 49, 50.) Choice Hotels alleged conduct regarding the bedbug infestation can be considered outrageous conduct by a reasonable person, and thus a jury must determine whether the conduct was outrageous.

Choice Hotels Demurrer to the 3^rd cause of action is OVERRULED.

III.           Demurrer to the 4^th cause of action for Fraudulent Concealment – SUSTAINED with 20 days leave to amend

“[T]he elements of a cause of action for fraud based on 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.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310–311, citations omitted; see also CACI 1901)

“In California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 837.) “This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Id., at pp 837–838.) 

“In addition, a plaintiff is held to a higher standard in asserting a fraud claim against a corporate defendant . . . . [where] the plaintiff must allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Id. at p. 838.)

Plaintiffs plead all the requisite elements of a fraudulent concealment claim for a non-corporate defendant. (See Complaint, ¶¶ 18, 42, 53, 81, 82, 84.) However, Plaintiffs do not allege the names of the person(s) who made the fraudulent representations, what these person(s) said or wrote and when exactly the fraudulent statement(s) was said. The “less specificity” exception does not appear to apply in this instance, since Plaintiffs should be aware of the names of the people or Choice Hotel employees they were dealing with, and the alleged fraudulent statements made to the Plaintiffs prior to check-in or while staying at the hotel. (See Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469 [“Less specificity in pleading fraud is required when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy...”].)

            Choice Hotels Demurrer to the 4^th cause of action is SUSTAINED with 20 days leave to amend.

IV.           Motion to Strike Punitives

CC §3294(a) provides, “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.” (Cal Civ. Code § 3294, subdiv., (a).)

“Malice is ‘conduct which is 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.’ (Civ.Code, § 3294, subd. (c)(1).) Oppression is ‘despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.’ (Civ.Code, § 3294, subd. (c)(2).) Despicable conduct is conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as having the character of outrage frequently associated with crime.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.)

            “[E]ven though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants' conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (Monge v. Superior Ct., (1986)176 Cal. App. 3d 503, 510.) Furthermore, “[m]alice and oppression may be inferred from the circumstances of a defendant's conduct.” (Id., at p. 511.)

            “[A] conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895–896.)

            Plaintiffs plead enough facts to allege that Choice Hotels consciously disregarded the safety of the Plaintiffs by failing to mitigate the bed bug issue when Choice Hotels allegedly knew of the issue prior to, and during, the Plaintiffs stay at the hotel. (See Complaint, ¶¶ 32, 37, 38, 42, 46, 47, 70.) Plaintiffs alleged facts upon proof may lead a jury to find Choice Hotels acted with malice, thus warranting punitive damages pursuant to Civ. Code § 3294. (See Civ. Code § 3294, subd. (c)(1) [“Malice is ‘conduct which is 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.”].)

            Choice Hotels Motion to Strike Plaintiffs request for punitive damages is DENIED.