Judge: John J. Kralik, Case: 22BBCV00605, Date: 2023-09-29 Tentative Ruling
Case Number: 22BBCV00605 Hearing Date: September 29, 2023 Dept: NCB
North Central District
|
denika edwards, Plaintiff, v. hilton worldwide holdings,
inc., et
al., Defendants. |
Case
No.: 22BBCV00605 Hearing Date: September 29, 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 first amended complaint (“FAC”), filed May
22, 2023, 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 June 23, 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 FAC.
The Court is not in receipt
of an opposition brief.
DISCUSSION RE DEMURRER
Defendants demur to the
1st, 3rd, 4th, 5th, 6th,
and 7th causes of action in the FAC.
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. (FAC, ¶44.)
Plaintiff alleges that Defendants 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., ¶¶45-46.) Plaintiff alleges that Defendants did not
warn Plaintiff about the bedbugs, change the bedding, or thoroughly check for
infestation and that they caused Plaintiff to be touched by the bedbugs. (Id., ¶¶47-48.) 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., ¶49.)
Defendants argue that the
allegations essentially allege that Defendants failed to undertake actions and
measures to ensure the cleanliness of the hotel room, but Plaintiff has not
alleged facts that they intended to cause an offensive contact with Plaintiff’s
body.
The Court previously found that the
battery cause of action was not adequately pled. Upon review of the amended pleading, the
Court finds that the same defects persist.
The facts 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 was
lacking in the initial complaint and is still lacking in the FAC.
Thus, the demurrer to the 1st
cause of action is sustained. The Court
previously allowed Plaintiff to amend the cause of action as it was the first
iteration of the complaint, but the court also noted in its prior demurrer
ruling that Plaintiff should carefully consider whether a battery claim was
proper. The Court finds that this cause
of action cannot be amended. As such,
the demurrer to the 1st cause of action is sustained without leave
to amend.
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’ actions 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. (FAC, ¶76.) Plaintiff alleges that the front
desk personnel, management, and housekeeping were aware of the bedbug
infestation and they failed to disclose the material fact at check-in. (Id., ¶¶77-79.) Plaintiff alleges Defendants’ actions were
done with the intent to cause severe emotional distress. (Id., ¶80.) Plaintiff alleges that Defendants knew or
should have known that their failure to exercise due care would cause Plaintiff
severe emotional distress. (Id.,
¶82.) Plaintiff alleges that Defendants breached
their duty by failing to put Plaintiff on notice of the bed bug infestation and
failing to remediate the issue. (Id.,
¶83.) Plaintiff alleges that as a
result, Plaintiff suffered severe, serious, and permanent injuries and did employ
the services of hospital, physicians, and surgeons. (Id., ¶¶84-85.)
Previously the Court sustained the
demurrer to the initial complaint as to the IIED cause of action finding that
while Plaintiff alleges that Defendants acted intentionally, the allegations of
the IIED cause of action essentially amount to inaction sounding in
negligence. Since then, Plaintiff has
alleged additional paragraphs with her IIED cause of action. However, the allegations essentially state
the same facts in a repetitive fashion that Defendants failed to clean the beds
and failed to warn Plaintiff about an infestation. However, 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 well as
facts supporting Defendants’ intent to cause Plaintiff severe emotional
distress. As currently alleged, the
allegations that Defendants’ actions were extreme and outrageous are
lacking. Again, the allegations appear
to sound from negligence as opposed to an intentional tort.
Thus, the demurrer to the 3rd
cause of action is sustained without 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
and they were on notice of the unsanitary conditions of the hotel and room. (FAC, ¶¶89-90.) 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., ¶¶92, 100.) Plaintiff alleges that Defendants
intentionally failed to disclose the material fact of an infestation, which was
known to Defendants. (Id., ¶¶93,
101.) Plaintiff alleges she did not know
about the concealed fact prior to renting the hotel room. (Id., ¶102.) 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., ¶¶76-103.)
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.
Plaintiff alleges
that front desk personnel intentionally failed to disclose the material facts
of the bed bug infestation prior to her renting the hotel room. (FAC, ¶98.)
While Plaintiff has not specifically named an individual, the position
has been named. Further facts as to who checked Plaintiff in on August 27, 2020
may be ascertained during the discovery process. “We acknowledge that the requirement of specificity is
relaxed when the allegations indicate that ‘the defendant must necessarily
possess full information concerning the facts of the controversy’ [citations]
or ‘when the facts lie more in the knowledge of the opposite party[.]’
[Citation.]” (Tarmann
v. State Farm Mut. Auto. Ins. Co. (1991) 2
Cal.App.4th 153, 158.)
Thus, the demurrer to the 4th
cause of action is overruled.
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. (FAC, ¶57.)
Plaintiff alleges that Defendants failed to provide proper pest control
services, take proper precautions with rules and regulations, implement
policies/procedures to ensure sanitary and safe conditions, take proper
measures to eliminate unsanitary conditions, etc. (Id., ¶58.) 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., ¶59.) Plaintiff alleges that as a proximate cause
of Defendants’ breach of duty, Plaintiff suffered bed bug and flea bites and
physical/psychological injury. (Id.,
¶71.)
In the 5th and 6th causes of action for private and
public nuisance, Plaintiff alleges that the presence of bedbugs constituted a
nuisance. (FAC, ¶113, 123.)
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. (FAC, ¶¶116, 126.) Plaintiff alleges that the nuisance caused Plaintiff
to suffer harm. (Id., ¶¶120, 131.) Plaintiff alleges that her use and enjoyment
of the room was greatly affected, which is separate from the harm suffered by
the general public. (Id., ¶¶117,
130.) 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 as the infestation
could spread from one room to another and to the public, and that her use and
enjoyment of the room was greatly affected.
(Id., ¶¶127-129.)
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.”].)
Previously,
the Court found in its order on the demurrer to the initial complaint that the allegations
of the negligence and nuisance causes of action were based on the same facts
and was inclined to sustain the demurrer without leave to amend, but allowed a
single opportunity for Plaintiff to amend the nuisance causes of action. Here, the nuisance allegations are still based
on the same grounds upon which the negligence cause of action is based. Essentially, in the negligence and nuisance
causes of action, Plaintiff alleges that Defendants failed to thoroughly clean
the hotel rooms and keep them free from bedbugs. The Court notes that an opposition has not
been filed and Plaintiff has not shown how, upon amendment, she can distinguish
the private and public nuisance causes of action from her negligence cause of
action.
As
such, the demurrer to the 5th and 6th causes of action is
sustained without leave to amend.
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. (FAC, ¶134.)
Plaintiff alleges that she paid for the hotel room such that all
conditions required by the contract for Defendants’ performance occurred. (Id., ¶¶135-136.) 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.,
¶137.)
Defendants demur to the 7th
cause of action, arguing that Plaintiff has failed to allege any of the terms
of the written agreement.
In the Court’s prior order on the
demurrer to the 7th cause of action in the initial complaint, the
Court found that the complaint did not include a copy of the written agreement. In the alternative, the complaint did not
allege the material terms of the agreement.
The same issue persists.
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. This issue was previously
raised in the Court’s prior order, but Plaintiff has not amended this cause of
action to include additional facts addressing the prior issues.
The demurrer to the 7th
cause of action is sustained without leave to amend.
DISCUSSION RE MOTION TO STRIKE
Defendants move to
strike allegations for punitive damages from the FAC.
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 FAC
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, had
a culture of extreme indifference, ratified the conduct of hotel employees, etc. (FAC, ¶¶23-38.) 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., ¶¶40-41.)
In light
of the ruling on the demurrer to the 1st, 3rd, 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 sustained
the demurrer to these causes of action without leave to amend.
With respect to the general allegations up to paragraph
42, 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 57, 60, and 73 alleged in
the 2nd cause of action, Plaintiff alleges that Defendants’ actions
amounted to reckless disregard, were an extreme departure from the ordinary
standard amounting to gross negligence, and 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 the paragraphs
pertaining to punitive damages in the 2nd cause of action for
negligence is granted with leave to amend.
With
respect to paragraphs 91, 99, and 110 alleged in the 4th cause of
action, Plaintiff alleges that Defendants’ knowledge of the infestation problem
was reflective of the pattern and culture of extreme indifference and reckless
disregard for human life and that Defendants acted in willful and conscious
disregard of Plaintiff’s rights. As
currently alleged, these facts are conclusory, but are not supported by
specific and particular facts for a claim for punitive damages. Thus, the Court will grant the motion to
strike with leave to amend as to these allegations.
As such,
the motion to strike the allegations for punitive damages is granted with leave
to amend as to paragraphs 57, 60, 73, 91, 99, and 110. The motion is denied as to the general
allegations up to paragraph 42 in the FAC.
The remainder of the motion is moot in light of the Court’s ruling on
the demurrer to the 1st, 3rd, 5th, 6th,
and 7th causes of action.
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,
5th, 6th, and 7th causes of action is
sustained without leave to amend. The
demurrer to the 4th cause of action is overruled.
Defendants’
motion to strike the allegations for punitive damages is granted with 20 days
leave to amend as to paragraphs 57, 60,
73, 91, 99,
and 110. The motion is denied as to the
general allegations up to paragraph 42 in the FAC. The remainder of the motion is moot in light
of the Court’s ruling on the demurrer to the 1st, 3rd, 5th,
6th, and 7th causes of action.
Defendants shall provide notice of this order.