Judge: John J. Kralik, Case: 22BBCV00605, Date: 2023-04-21 Tentative Ruling
Case Number: 22BBCV00605 Hearing Date: April 21, 2023 Dept: NCB
North Central District
|
denika edwards, Plaintiff, v. hilton worldwide holdings,
inc., et
al., Defendants. |
Case
No.: 22BBCV00605 Hearing Date: April 21, 2023 [TENTATIVE]
order RE: demurrer; motion to strike |
BACKGROUND
A.
Allegations
of the Complaint
Plaintiff Denika Edwards (“Plaintiff”) alleges
that she sustained personal injury and monetary damages as a result of a bed
bug and/or flea bites during her stay at a hotel owned and operated by
Defendants Hilton Worldwide Holdings, Inc., Hilton Los Angeles/Universal City, and
Israel Vazquez. The hotel where
Plaintiff stayed is located at 555 Universal Hollywood Dr., Universal City, CA
91608. Plaintiff alleges she checked
into the hotel on August 27, 2020. She
states that she noticed intense itching the next morning and discovered fleas
and/or bedbugs on her body and feet and reported the incident to
management. Plaintiff alleges the hotel
staff seemed apathetic, but offered a room change. Plaintiff alleges that she was supposed to
stay at the hotel until August 30, 2020, but checked out on August 28, 2020 to
avoid being bitten further.
The complaint, filed August 23, 2022, alleges
causes of action for: (1) battery; (2) negligence; (3) IIED; (4) fraudulent concealment;
(5) private nuisance; (6) public nuisance; and (7) breach of contract.
B. Motions on Calendar
On February 16, 2023, Defendants
Hilton Worldwide Holdings, Inc., Sun Hill Properties, Inc. dba Hilton Los
Angeles/Universal City (erroneously sued as Hilton Los Angeles/University City),
and Israel Vazquez (“Defendants”) filed a demurrer and a motion to strike
portions of the complaint.
On April 10, 2023, Plaintiff
filed opposition briefs.
On April 14, 2023, Defendants
filed reply briefs.
DISCUSSION RE DEMURRER
Defendants demur to the
1st, 3rd, 4th, 5th, 6th,
and 7th causes of action in the complaint.
A. Battery (1st 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.)
In the 1st cause of
action, Plaintiff alleges that Defendants deliberately chose not to eradicate
bed bugs/fleas and failed to take necessary steps to eliminate them from the
hotel rooms, causing Plaintiff to be bitten by bed bugs. (Compl., ¶37.) Plaintiff alleges that Defendant failed to
take proper precautions and act in accordance with the Department of Health’s
rules and regulations, which amounted to inaction, and that Defendants’ actions
were done with an intent to cause a harmful and offensive contact with
Plaintiff’s body. (Id.,
¶¶38-39.) Plaintiff alleges that
Defendants did not warn Plaintiff on the room conditions, but instead chose
profit over the health and safety of their guests and that Defendants
deliberately chose to rent a room to Plaintiff knowing she would sustain
bites. (Id., ¶40.)
Defendants argue that Plaintiff’s
allegations for battery are conclusory statements and recitations of the law
without factual support. In opposition,
Plaintiff argues that her allegations are sufficient, citing to Mathias v.
Accor Econ. Lodging, Inc. (7th Cir. 2003) 347 F.3d 672, 675, wherein the
Seventh Circuit found that an unabated bedbug infestation could “probably” constitute
battery.
Here, the allegations regarding
Defendants’ intent to touch Plaintiff with an intent to harm or offend
Plaintiff is lacking in supporting facts.
At most, the allegations are conclusory regarding the element of
intent. There are no allegations that Defendants
placed the bedbugs in Plaintiff’s assigned hotel room so that
Plaintiff would be touched and harmed. At
most, Plaintiff’s allegations are that Defendants failed to act (i.e., failed
to remedy the issue after being informed about the bedbugs, failed to clean,
failed to properly inspect and warn, etc.).
However, such allegations are better asserted as a negligence claim,
such as in the 2nd cause of action for negligence. The
intentionality element for a claim of battery is lacking in the complaint.
Further, the only support Plaintiff
has that a bedbug/flea infestation is sufficient for a battery claim is the
Seventh Circuit’s statement that such a claim could “probably” amount to
battery. There are no California cases
cited by the parties regarding a similar fact pattern. The Seventh Circuit’s assertion that this could
“probably” amount to a battery claim is not persuasive or binding authority on
this Court to find that the allegations of this claim are sufficient for a
battery cause of action.
Thus, the demurrer to the 1st
cause of action is sustained. As this is
Plaintiff’s first attempt at the pleading, the Court will allow leave to amend.
However, upon amendment, Plaintiff
should carefully consider whether a battery claim is the proper cause of action
against Defendants.
B. IIED (3rd cause of action)
The elements of intentional
infliction of emotional distress are: (1) outrageous conduct by the defendant;
(2) the defendant’s intention of causing or reckless disregard of the
probability of causing emotional distress; (3) the plaintiff suffered severe or
extreme emotional distress; and (4) the plaintiff’s injuries were actually and
proximately caused by the defendant’s outrageous conduct. (Vasquez
v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819,
832.) In order to avoid a demurrer, the
plaintiff must allege with great specificity, the acts which she believes are
so extreme as to exceed all bounds of behavior usually tolerated in a civilized
community. (Id.)
Conduct to be outrageous must be so
extreme as to exceed all bounds of behavior usually tolerated in a civilized
community. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) In addition, the outrageous conduct must be
of a nature which is especially calculated to cause, and does cause, mental
distress of a very serious kind. (Id.)
“[M]ere allegation that the plaintiffs suffered severe emotional
distress, without facts indicating the nature or extent of any mental suffering
incurred as a result of the defendant's alleged outrageous conduct, fail[s] to
state a cause of action for intentional infliction of emotional distress.” (Pitman
v. City of Oakland (1988) 197
Cal.App.3d 1037, 1047.) “The allegation that plaintiff suffered shame,
humiliation and embarrassment without further factual explanation does not meet
the requirement of specificity….” (Id.)
In the 3rd
cause of action, Plaintiff alleges that Defendants were intentional, extreme,
and outrageous because they willfully disregarded the flea infestation that
they knew or should have known about, they failed to notify Plaintiff of the
presence of bugs/fleas in Plaintiff’s room, deliberately chose not to eradicate
the infestation, deliberately chose not to require housekeeping staff to change
the bed skirts regularly or to inspect for bed bugs/fleas, deliberately failed
to inspect or ensure that the room was free of infestation, showed extreme
indifference to infestations, failed to have adequate policies to train
employees to inspect for infestations, and failed to implement policies and
procedures to prevent after further infestations. (Compl., ¶63.) Plaintiff alleges Defendants’
actions were done with the intent to cause severe emotional distress. (Id.,
¶64.) Plaintiff alleges that as a
result, Plaintiff suffered severe, serious, and permanent injuries and did employ
the services of hospital, physicians, and surgeons. (Id., ¶¶66-67.)
While
Plaintiff alleges that Defendants acted intentionally, the allegations of the
IIED cause of action essentially amount to inaction sounding in
negligence. An IIED cause of action
requires specific facts regarding Defendants’ alleged actions that were so
extreme and exceeded all bounds usually tolerated in a civilized
community. As currently alleged, the
allegations that Defendants’ actions were extreme and outrageous are also
lacking. Finally, Plaintiff’s claim for
severe emotional distress too lacks sufficient facts to support this element.
The
demurrer to the 3rd cause of action is sustained with leave to
amend.
C. Fraudulent concealment (4th cause of action)
The elements for fraudulent concealment are the
following: (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. (Lovejoy
v. AT&T Corp. (2004) 119 Cal. App. 4th 151, 157-158.) This cause of action is a tort of deceit and the facts
constituting each element must be alleged with particularity; the claim cannot
be saved by referring to the policy favoring liberal construction of
pleadings. (Committee on
Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197,
216.)
In the 4th
cause of action, Plaintiff alleges that Defendants, through their employees and
agents, were aware of the substandard health conditions of the hotel with the
existence of insects present in the room that Defendant assigned to
Plaintiff. (Compl., ¶71.) Plaintiff alleges that she placed her trust
in Defendants that they would not assign a room that posed a danger to health
and well-being and that Plaintiff thought she would be placed in a safe and
clean hotel room as reasonable people would expect in a hotel. (Id., ¶73.) Plaintiff alleges that Defendants
intentionally failed to disclose the material fact of an infestation, which was
known to Defendants. (Id.,
¶74.) Plaintiff alleges she did not know
about the concealed fact prior to renting the hotel room. (Id., ¶75.) Plaintiff alleges that Defendants intended to
deceive Plaintiff to take advantage of her lack of knowledge to turn a profit
and that Plaintiff reasonably relied on Defendants. (Id., ¶¶76-77.)
Defendants argue that
the 4th cause of action fails to allege how, when, where, and by
what means the concealment allegedly occurred and who made certain
representations, etc. A cause of action
based on misrepresentations must allege facts showing how, when, where, to
whom, and by what means the misrepresentations were tendered. (Stansfield v. Starkey (1990) 220
Cal.App.3d 59, 73.) However, this is not
a claim based on fraudulent misrepresentation, but rather this is a fraudulent concealment
claim. The allegations are lacking regarding
who Plaintiff spoke with who made concealments of fact and in what capacity
they were an agent for the corporation/Defendants. Further facts should be provided to support
the 4th cause of action.
The Court sustains
the demurrer to the 4th cause of action with leave to
amend.
D. Private Nuisance (5th cause of action) and Public Nuisance (6th
cause of action)
“A nuisance is considered a ‘public
nuisance’ when it ‘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.’” (Mendez v. Rancho Valencia Resort
Partners, LLC (2016)
3 Cal.App.5th 248, 261 [citing Civ. Code,
§3480].) “A ‘private nuisance’ is
defined to include any nuisance not covered by the definition of a
public nuisance (Civ. Code, § 3481), and also includes some public
nuisances. (Id. at 261-262.) Thus, “it is possible for a nuisance to
be public and, from the perspective of individuals who suffer an interference
with their use and enjoyment of land, to be private as well.” (Id.
at 262.)
Defendants argue that the nuisance causes of action do not
allege any different facts from the 2nd cause of action for negligence,
as both are based on claims that there was a bed bug/flea infestation in the
hotel room and that Defendants allegedly failed to ensure that the hotel room
was clean.
In the 2nd cause of action for negligence,
Plaintiffs allege that Defendants had a duty to exercise reasonable care in the
operation and maintenance of the hotel, which included keeping the hotel rooms in
a safe and habitable condition and free of insect infestations. (Compl., ¶46.) Plaintiff alleges that Defendants breached
this duty by allowing the infestation, failing to eradicate the infestation,
choosing not to inspect the hotel room to verify it was free of bedbugs, etc. (Id., ¶47.) Plaintiff alleges that as a proximate cause
of Defendants’ breach of duty, Plaintiff suffered bed bug and flea bites and
physical/psychological injury. (Id.,
¶50.)
In the 5th and 6th causes of action
for private and public nuisance, Plaintiff alleges that Defendants negligently
and intentionally caused a bed bug infestation to exist at the hotel and in
Plaintiff’s room, constituting a nuisance which was injurious to Plaintiff’s
health and safety. (Compl., ¶¶87, 92.) Plaintiff alleges that the nuisance caused Plaintiff
to suffer harm. (Id., ¶¶88, 95.) In the 6th cause of action for
public nuisance, Plaintiff additionally alleges that the infestation affected
the community at large for patrons of the hotel and that her use and enjoyment
of the room was greatly affected. (Id.,
¶¶93-94.)
Defendants argue that Plaintiffs
essentially seek to recover damages under the same set of facts under different
theories of recovery. They cite to Van Zyl
v. Spiegelberg (1969) 2 Cal.App.3d 367. The Court of Appeal in Van Zyl stated:
We also observe,
initially, that although the complaint in the instant action purports to state
two causes of action, that is, one based on nuisance and the other on
negligence, it actually states one cause of action in two counts. The gist of
each count is that defendants “constructed and/or maintained” the subject
driveway in such a manner as to obstruct the channel and divert the water from
said channel onto plaintiff's property to plaintiff's damage. In the first
count it is alleged that conduct constituted a private nuisance; in the second,
that such conduct constituted negligence in the construction, design and
maintenance of said driveway. The complaint thus alleges only one cause of
action because it alleges one primary right, that is, plaintiff's right to the
unimpaired ownership and undisturbed enjoyment of his premises; a corresponding
duty, that is, an obligation on the part of defendants not to interfere with
that right; and a breach of that duty by defendants. (See Frost
v. Witter, 132 Cal. 421, 426 [64
P. 705, 84 Am.St.Rep. 53]84 Am.St.Rep. 53]; Smith
v. Minnesota Mut. Life Ins. Co., 86
Cal.App.2d 581, 590 [195 P.2d 457]; Work v. County Nat.
Bank etc. Co., 4 Cal.2d 532, 540 [51
P.2d 90].) Accordingly, what plaintiff seeks is to
recover in damages under the same state of facts but under different theories
of recovery, that is, private nuisance and negligence. In such a case there is
but one cause of action. (See Shell
v. Schmidt, 126 Cal.App.2d 279, 291
[272 P.2d 82].)
(Van Zyl
v. Spiegelberg (1969) 2 Cal.App.3d 367, 372 [emphasis added];
see also
El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th
1337, 1349 [“Where negligence and nuisance
causes of action rely on the same facts about lack of due care, the nuisance
claim is a negligence claim.”].)
The
allegations of the negligence and nuisance causes of action appear to be based
on the same facts. The allegations are
based on the same grounds upon which the negligence cause of action is
based. (On a separate note, in
opposition, Plaintiff argues that “it is only reasonable for the County of
Riverside to consider its invited guests, whom the State offers protection to
under the California Health and Safety Code for nuisances, to be part of the
relevant community for the time they are visiting.” [Opp. at p.17.] However, this action is not brought against
the County of Riverside.)
As such, the
demurrer to the 7th cause of action is sustained. The Court is inclined to sustain this cause
of action without leave to amend, but as this is Plaintiff’s first attempt at
the pleading, the Court will allow an opportunity to amend this cause of
action.
E. Breach of Contract (7th cause of action)
The essential elements of a cause
of action for breach of contract are: “(1) the
existence of the contract, (2) plaintiff's performance or excuse for
nonperformance, (3) defendant's breach, and (4) the resulting damages to
plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) “A
written contract may be pleaded either by
its terms—set out verbatim in the complaint or a copy of
the contract attached to the complaint and incorporated therein
by reference—or by its legal effect.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)
In the 7th
cause of action, Plaintiff alleges that Plaintiff and Defendants entered into a
written contract for the rental of Plaintiff’s hotel room. (Compl., ¶98.) Plaintiff alleges that she paid for the hotel
room such that all conditions required by the contract for Defendant’s
performance occurred. (Id.,
¶¶99-100.) Plaintiff alleges that
Defendants breached the contract by failing to provide Plaintiff a habitable
room for lodging, based on the infestation in the room. (Id., ¶101.)
Defendants
demur to the 7th cause of action, arguing that Plaintiff has failed
to allege any of the terms of the written agreement.
The
complaint does not include a copy of the written agreement. In the alternative, the complaint does not
allege the material terms of the agreement.
While Plaintiff alleges that Defendants breached the written contract by
failing to provide a clean room free of infestation, Plaintiff has not alleged
that this was a term of the contract or provided a copy of the agreement
showing that this was a term of the contract.
The
demurrer to the 7th cause of action is sustained with leave to
amend.
DISCUSSION RE MOTION TO STRIKE
Defendants move to
strike paragraphs 23-31, 33-34, 37-41, 44, 46 (lines 14-17), 47(3), 48, 57-58,
61, 63-65, 68-69, 71-72, 74-77, 79-80, 83-84, 86-87, and 92 from the complaint. Defendants also move to strike the Prayer for
Relief at items 2 (punitive damages) and 3 (attorney’s fees).
A.
Punitive Damages
A complaint including a request for punitive damages must include
allegations showing that the plaintiff is entitled to an award of punitive
damages. (Clauson v. Superior
Court (1998) 67 Cal.App.4th 1253, 1255.) A claim for
punitive damages cannot be pleaded generally and allegations that a defendant
acted "with oppression, fraud and malice" toward plaintiff are
insufficient legal conclusions to show that the plaintiff is entitled to an
award of punitive damages. (Brousseau
v. Jarrett (1977) 73 Cal.App.3d 864, 872.) Specific factual
allegations are required to support a claim for punitive damages. (Id.)
Civil Code § 3294 authorizes a plaintiff to
obtain an award of punitive damages when there is clear and convincing evidence
that the defendant engaged in malice, oppression, or fraud. Section
3294(c) defines the terms in the following manner:
(1) "Malice" means 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.
(2) "Oppression" means despicable conduct that subjects a
person to cruel and unjust hardship in conscious disregard of that person's
rights.
(3) "Fraud" means 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.
With
respect to a corporate employer,
section 3294(b) requires that 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.
Defendants
argue that this is not the type of action under which punitive damages would be
warranted because it sounds solely in negligence.
The
complaint alleges that Defendants failed to inspect and eradicate the bed
bugs/flea infestation from Plaintiff’s room, that they had prior knowledge of
the infestation, deliberately chose not to notify Plaintiff, knew that the
hotel had prior bed bug infestation from guest complaints, authorized/ratified
housekeeping staff to not change bed skirts or inspect rooms of infestation,
failed to implement adequate policies and procedures to properly train
employees to inspect rooms, and ratified the conduct of hotel employees. (Compl., ¶¶23-31.) Plaintiff alleges that Defendants rented the
room to Plaintiff despite having knowledge on August 26, 2020 that there was an
infestation present at the hotel in her room and that Defendants’ officers,
directors, or managing agents authorized/ratified the fraudulent conduct of
hotel employees by failing to remedy the infestation and deliberately
concealing the fact. (Id.,
¶¶33-34.)
In light
of the ruling on the demurrer to the 1st, 3rd, 4th,
5th, 6th, and 7th causes of action, the motion
to strike is moot as to the paragraphs alleged in these causes of action as the
Court has granted leave to amend. (See
Compl., ¶¶37-41, 44, 63-65, 68-69, 86-87,
and 92.)
With respect to the general allegations in
paragraphs 23-31 and 33-34, the Court will allow these facts to remain in the
complaint as they provide background facts on Plaintiff’s claims regarding the
alleged bedbug/flea infestation during her hotel stay.
With respect to paragraphs 46 (lines 14-17), 47(3),
48, and 57-58 alleged in the 2nd cause of action, the facts are
again background information that support Plaintiff’s negligence claim. Paragraph 61 alleges that Defendants’ conduct
was willful and in conscious disregard of Plaintiff’s rights to be free of
tortious behavior. As
stated in Egan v. Mutual of Omaha Ins.
Co. (1979) 24 Cal.3d 809, 832: “Mere negligence, even gross negligence, is not sufficient to justify an
award of punitive damages.” (Internal
quotation marks omitted.) While a
nonintentional tort that has the characteristic of an intentional tort may be
the basis of a punitive damages award, there must be a showing of malice or
intentionality under Civil Code, §3294 or that defendant’s conduct was of a
severe or shocking character that warrants the same treatment as that accorded
to willful/intentional misconduct. (Nolin
v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286.) More will be required of Plaintiff if she
intends to pursue a claim for punitive damages in connection with her
negligence cause of action. As such, the
motion to strike is granted as to paragraph 61.
As such,
the motion to strike the allegations for punitive damages is granted as to
paragraph 61 and the Prayer for Damages at item 2. The motion to strike the allegations for
punitive damages in moot in connection with the 1st, 3rd,
4th, 5th, 6th, and 7th causes of
action. The remainder of the motion to
strike punitive damages is denied.
B.
Attorney’s Fees
Defendants argue that Plaintiff has not
alleged any basis for an award of attorney’s fees.
In the opposition brief, Plaintiff does not
address the motion to strike the allegations for attorney’s fees.
As this argument appears to be uncontested,
the Court grants the motion to strike the allegations for attorney’s fees
without leave to amend.
CONCLUSION AND ORDER
Defendants Hilton Worldwide Holdings, Inc., Sun Hill Properties, Inc.
dba Hilton Los Angeles/Universal City (erroneously sued as Hilton Los
Angeles/University City), and Israel Vazquez’s demurrer to the 1st,
3rd, 4th, 5th, 6th, and 7th
causes of action is sustained with 20 days leave to amend.
Defendants’ motion to strike is granted without leave to amend as to
the allegations for attorney’s fees. The
motion to strike the allegations for punitive damages is granted as to
paragraph 61 and the Prayer for Damages at item 2. The motion to strike the allegations for
punitive damages in moot in connection with the 1st, 3rd,
4th, 5th, 6th, and 7th causes of
action. The remainder of the motion is
denied.
Plaintiff shall provide notice of this order.