Judge: H. Jay Ford, III, Case: 24SMCV04039, Date: 2025-05-22 Tentative Ruling

Case Number: 24SMCV04039    Hearing Date: May 22, 2025    Dept: O

  Case Name:  Tar, et al. v. Pacifica Century West L.P.  

SUBJECT:                 DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:   Defendant Pacifica Century City, L.P.

RESP. PARTY:         Plaintiffs Imtiaz Tar, Nazmira Tar, Deen Tar, and Muhammad Tar

TENTATIVE RULING

            Defendant Pacifica Century City, L.P.’s Demurrer against the 2^nd, 3^rd, 4^th and 5^th causes of action in Plaintiffs Imtiaz Tar, Nazmira Tar, Deen Tar, and Muhammad Tars’ Complaint is OVERRULED. Plaintiffs state all necessary facts to properly allege the 2^nd–5^th causes of action.

            Defendants Motion to Strike is DENIED.

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.” (E428.50Fab, 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. (Id.; 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”].)

"Demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond . . . . We strictly construe such demurrers because ambiguities can reasonably be clarified under modern rules of discovery." (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135. ["demurrers for uncertainty are disfavored"].)

I.                Demurrer to second cause of action for Nuisance—OVERRULED

The elements of a private nuisance claim are as follows: “First, the plaintiff must prove an interference with his use and enjoyment of its property. Second, the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, i.e., it caused the plaintiff to suffer substantial actual damage. Third, the interference with the protected interest must not only be substantial, 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.” (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1176. reh'g denied (Oct. 25, 2022), review denied (Jan. 18, 2023).)

A nuisance includes: “Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, 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, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (Civ. Code, § 3479.)

“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.) Plaintiff must allege facts to show that “the operation of defendant's business constitutes a public nuisance.” (Brown v. Petrolane, Inc. (1980) 102 Cal.App.3d 720, 724.) A nuisance is defined as:

Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, 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, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.

(Civ. Code, § 3479.)

Additionally, If the plaintiff is a private person, as the case here, they must also allege that the public nuisance caused them special injury different in kind from that suffered by the general public. (See Hacala v. Bird Rides, Inc. (2023) 90 Cal.App.5th 292, 324; see also Civ. Code, § 3493 [“A private person may maintain an action for a public nuisance, if it is specially injurious to himself, but not otherwise”].) “The public nuisance doctrine is aimed at the protection and redress of community interests.” (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103.)

First, Defendant Pacifica Century City, L.P. (“Defendant”) argues that the first cause of action for nuisance is uncertain because it is unclear if the Plaintiffs Imtiaz Tar, Nazmira Tar, Deen Tar, and Muhammad Tar (“Plaintiffs”) are alleging a cause of action for public or private nuisance. A public and private nuisance both can be alleged within the same cause of action. (See Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124 [“the nuisance is a private as well as a public one, there is no requirement that the plaintiff suffer damage different in kind from that suffered by the general public.”] Additionally, Defendants argue that Plaintiffs do not properly allege a claim for public nuisance.  The Court disagrees. Plaintiff alleges all the necessary facts to plead a public nuisance cause of action. (See Compl., ¶¶ 3, 4, 5, 37, 39, 43, 73, 74.)

Second, Defendant argues Plaintiffs lack standing to assert a public nuisance claim because Plaintiff’s do not allege they suffered a harm different from that of the public. Because Plaintiffs allege both a private and public nuisance “there is no requirement that the plaintiff suffer damage different in kind from that suffered by the general public.” (Ibid.)

Third, Defendant argues that Plaintiff has not sufficiently alleged a cause of action for private nuisance because Plaintiffs “have not pled that they sustained injury to use or enjoyment of their land,” Plaintiffs only allege personal injury. (Demurrer, p. 11:1–11.) Again, this argument is not persuasive or supported by authority.   Civ. Code, § 3479 provides a list of what constitutes a nuisance and sustaining injury to enjoyment of land is only one of many issues that could be considered a nuisance. Plaintiffs allege they were bitten by bed bugs at Defendant’s Hotel which can constitute a nuisance under Civ. Code § 3479.

Fourth, Defendant argues the nuisance claim is duplicative of the negligence cause of action and therefore should be sustained without leave to amend. Again, the Court disagrees. The nuisance action is based on different facts, and seeks a separate remedy from the negligence claim in attorneys’ fees pursuant to CCP § 1021.5.

Defendant’s Demurrer to the 2^nd cause of action for public and private nuisance is OVERRULED.

II.             Demurrer to third cause of action for IIED—OVERRULED

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.)

The California Supreme Court has held that a defendant’s actions could be characterized as "outrageous" for purposes of tort liability for intentional infliction of emotional distress, if he “(1) abuses a relation or position which gives him power to damage the plaintiff's interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.”(Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 [overruled on other grounds].)

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.)

Defendant argues Plaintiffs fail to allege Defendant intended to injure Plaintiffs, nor that the Defendant’s conduct was “outrageous”.  Plaintiffs plead that Defendant’s were “aware of the dangerous bed bug infestations,” at Defendant’s Hotel, and “knowingly, intentionally and willfully failed to abate the bed bug infestations, so that the problems persisted,” and failed to “completely eradicate the bed bug infestations at the Subject Property, and as a result, Plaintiffs suffered bed bugs bites during their stay at the Hotel Room sometime on or about September 03, 2024.” (Compl., ¶¶ 86, 92–93.) Additionally, Plaintiffs allegations cannot be said as a matter of law that Defendant’s actions were not outrageous, (See Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920 “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest; . . . or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.”] Thus, Plaintiff’s successfully plead intention to injure and outrageous conduct.

Defendant cites to Pittman v. City of Oakland for the argument that allegations of “shame, humiliation, and embarrassment,” in the absence of additional information does not meet the level of specificity required for IIED. (See Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047.) However, the issue here differs drastically from Pittman. Pittman dealt with an IIED claim based on a job dismissal where the Court stated “[b]eing dismissed from a job is not an uncommon occurrence in modern society, ” and thus conclusory allegations of shame, humiliation and embarrassment without more detail do not indicate distress inflicted that “is so severe that no reasonable man could be expected to endure it.” (Ibid.) Here, allegations of bed bug bites and the enduring effects is an uncommon occurrence and a reasonable juror could find that it so severe that no reasonable person could be expected to endure it .

Defendant’s Demurrer to the Second cause of action is OVERRULED.

III.           Demurrer to the fourth cause of action for breach of contract—OVERRULED

Establishing a breach of contract claim "requires a showing of (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (D'Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.)

Defendant argues that Plaintiffs’ attached “contract” to the complaint as Exhibit A is merely a receipt or invoice from the hotel stay which cannot be used to estimate the total cost of the room and therefore does not provide any terms of an agreement, nor does the Complaint define or describe Exhibit A. Defendants further argue that due to Plaintiffs failure to sufficiently plead an existence of a contract, Plaintiffs cannot plead that Defendant breached the covenant of good faith and fair dealing by failing to provide a habitable hotel room.

Plaintiff’s sufficiently plead the existence of three different types of contracts entered into between the parties (written, oral and implied), Plaintiffs describe each contract in detail and also include a receipt attached as Exhibit A to show payment in exchange for a hotel room, Plaintiffs plead breach by failing to provide a habitable premises causing beg bug infestation and bites, and damages. (Compl., ¶¶ 101, 105–108, 110.)

Defendant’s Demurrer to the fourth cause of action is OVERRULED.

IV.           Demurrer to fifth  cause of action for fraudulent concealment—OVERRULED

“[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)

“There are “four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.” (Los Angeles Memorial Coliseum Com. v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 831.)

Plaintiffs plead the existence of bed bugs in the Defendant’s hotel rooms with Defendant’s actual and constructive notice of bed infestation (including the Plaintiffs hotel room—room 204), sometime prior to 9-3-23, due to numerous written guest complaints. (Compl., ¶ 119.) Plaintiffs plead Defendants intended to deceive by concealing the bed bug infestation from Plaintiffs, Plaintiffs relied on Defendants deception and Plaintiffs were harmed by the alleged deception. (Compl., ¶¶ 120–126.) Plaintiffs further allege that Defendants through their employees, “specifically ‘Surjeet’” were aware of the existence of the bed bugs. (Compl., ¶ 116.) Thus, Plaintiffs meet the pleading requirements for fraudulent concealment under Los Angeles memorial Coliseum Commission and Tarmann v. State Farm Mut. Auto. Ins. Co. (See (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158 [the specificity requirement for fraud pleading is “relaxed when the allegations indicate that the defendant must necessarily possess full information concerning the facts of the controversy or when the facts lie more in the knowledge of the opposite party”].)

Thus, Defendants demurrer to the 5^th cause of action is OVERRULED.

V.              Motion to Strike—DENIED

“In order to survive the motion to strike, appellant must establish “the ultimate facts showing an entitlement” to the relief she has requested in her petition.” (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1163.) “The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.” (Ibid.)

“[A] motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer.” (Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342.) A motion to strike may be directed to all or a portion of a complaint, cross-complaint, answer, or demurrer. (See Code Civ Proc., § 435, subdiv., (a).) On a motion to strike, a judge must read the complaint as a whole, considering all parts in their context, and must assume the truth of all well-pleaded allegations. (See Atwell Island Water Dist. v. Atwell Island Water Dist. (2020) 45 Cal.App.5th 624, 628, as modified (Feb. 27, 2020).)

A plaintiff may recover punitive damages in an action for the breach of an obligation not arising out of contract where the defendant has been guilty of oppression, fraud, or malice. (Cal. Civ. Code §3294 (a).)

“(a) In an action for breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant had 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.” (Civ.Code, § 3294, subd. (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.)

“In addition to the requirement that the operative complaint set forth the elements as stated in section 3294, it must include specific factual allegations showing that defendant's conduct was oppressive, fraudulent, or malicious to support a claim for punitive damages. [citation]. Punitive damages may not be pleaded generally.” Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193 [300 Cal.Rptr.3d 61, 105], reh'g denied (Oct. 25, 2022), review denied (Jan. 18, 2023), citing Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.

Plaintiffs sufficiently plead a claim for recovery of punitive damages under Civ. Code § 3294 under their claims for fraudulent concealment and IIED.

            Defendant moves to strike Plaintiffs’ prayer for attorney fees however, attorneys fees may be awarded for successful public nuisance claims under CCP §. 1021.5. (See Compl., ¶¶ 65–85; Code Civ. Proc., § 1021.5 [“a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, . . .”].)

            Defendant’s Motion to Strike is DENIED.