Judge Kerry Bensinger, Case Number: 22STCV32121, Date: 2025-03-06 Tentative Ruling

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On September 30, 2022, plaintiff Erik Smalls (Plaintiff) filed this action against defendants Weena Lezette (Lezette) and Lafayette Hotel (the Hotel) 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.[1] According to the Complaint, Plaintiff rented a room at the Hotel through the Airbnb platform. Lezette owns, manages, and operates the Airbnb at the Hotel. Plaintiff stayed in the room intermittently between October 2020 and December 2020. In October 2020, Plaintiff discovered bed bug bites across his body. Plaintiff informed the incident to Lezette who in turn stated that someone would inspect Plaintiff’s room. However, no one visited the room to inspect it. In November 2020, Plaintiff slept in the room and awoke with bed bugs on his body and additional bites. Plaintiff reported the bed bug infestation to Lezette who denied the infestations, denied Plaintiff a refund upon request, and refused to reimburse Plaintiff’s request for reimbursement for having to purchase new clothing.

On October 18, 2024, Lezette filed a Demurrer to the First, Third, Fourth, Fifth and Sixth Causes of Action and concurrently filed a Motion to Strike punitive damages from the complaint.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.) “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.” (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)

Lezette demurs to the First, Third, Fourth, Fifth, and Sixth Causes of Action. The court addresses the demurrers in turn.

The elements of a claim for battery are: (1) the defendant touched plaintiff or caused plaintiff to be touched with the intent to harm or offend him or her; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s situation would have been offended by the touching. (CACI No. 1300; So v. Shin (2013) 212 Cal.App.4th 652, 669.)

Plaintiff alleges that Defendants acted recklessly by “failing to warn Plaintiff of the dangerous bedbug infestation in their room, given Defendants' prior knowledge of an infestation. Plaintiff did not receive any kind of warning or statement from Defendants that the Subject Hotel had an infestation of bedbugs and did not regularly change the bedding, bed sheets, pillows, and skirts of the beds or thoroughly check and inspect them for infestations.” (Complaint, ¶ 54.) Plaintiff also alleges that Defendants failed to implement adequate policies to prevent Plaintiff’s alleged injury. (Complaint, ¶ 45.)

Lezette argues the battery claim fails because the first element of intent is not alleged. The court agrees. Plaintiff alleges only that Defendants recklessly failed to warn of the bed bug infestation in their room despite having prior knowledge of the infestation. Absent from the allegations are any facts to show Lezette caused Plaintiff to be touched with the intent to harm.

Citing City of Santa Barbara v. Superior Ct. (2007) 41 Cal. 4th 747, Plaintiff argues the intent element is satisfied because the act (or inaction) complained of here was so unreasonable and dangerous that Lezette should have known it was highly probable that harm would result even if she did not intend to cause harm. The argument lacks merit for two reasons. First, Plaintiff improperly adds an alternative element into a battery cause of action. “Reckless disregard” does not appear anywhere in the CACI instructions, nor is there any California authority which supports the proposition that reckless disregard is sufficient to satisfy the intent element of a battery claim.[2] Second, City of Santa Barbara considered a question not presented here: whether a signed release purporting to release liability for future gross negligence was unenforceable in a case where disabled child drowned while participating in a public program. Moreover, a cause of action for battery was not at issue in City of Santa Barbara.

Based on the foregoing, the demurrer to the First Cause of Action is SUSTAINED. Leave to amend is DENIED.

The elements of an intentional infliction of emotional distress (IIED) claim are: (1) that defendant’s conduct was outrageous; (2) that defendant intended to cause plaintiff emotional distress, or that defendant acted with reckless disregard of the probability that plaintiff would suffer emotional distress, knowing that plaintiff was present when the conduct occurred; (3) that plaintiff suffered severe emotional distress, and (4) that defendant’s conduct was a substantial factor in causing plaintiff’s severe emotional distress.¿ (CACI No. 1600; Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.) “Although emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry, to make out a claim, the plaintiff must prove that emotional distress was severe and not trivial or transient.” (Wong v. Jing (2010) 189 Cal. App. 4th 1354, 1376, citations and quotations omitted.)

Plaintiff’s IIED claim is based on similar allegations as his battery claim. Lezette attacks the second and third elements. Lezette argues the allegations amount to only transient harm (third element) and that there are no factual allegations showing Lezette engaged in conduct with the intention of causing Plaintiff harm (second element). The arguments are not well taken. As to the third element, Plaintiff alleges that he “has suffered and continue [sic] to suffer physical injuries (including, but not limited to, bedbug bites, itching, and permanent scarring) and emotional injuries (including, but not limited to, severe embarrassment, annoyance, discomfort, pain, apprehension, tension, anxiety, and emotional distress) as a direct result of their stay at the Subject Hotel.” (Complaint, ¶ 49, emphasis added.) As alleged, Plaintiff’s physical and emotional injuries are ongoing rather than transient.

As to the second element, Plaintiff alleges that Defendants knew or should have known that (1) allowing an infestation in Plaintiff’s room and renting it to Plaintiff, (2) failing to eradicate the infestation, (3) choosing not to inspect Plaintiff’s room before renting it to Plaintiff despite having prior knowledge, and (4) failing to notify Plaintiff of pests, among other things, would have resulted in the high probability and likelihood that Plaintiff would be bitten by bedbugs. (Complaint, ¶¶ 69-71.) The second and third elements of the IIED claim are supported by sufficient allegations.

Fraud based on concealment requires that “(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 (Bigler-Engler); CACI No. 1901.)¿ An essential element of intentional concealment includes the duty to disclose, which must be based upon a transaction, or a special relationship, between plaintiff and defendant.¿ (Id.¿at p. 314.) “[T]o establish fraud through nondisclosure or concealment of facts, it is necessary to show the defendant ‘was under a legal duty to disclose them.’”¿ (OCM Principal Opportunities Fund v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 845 (OCM Principal).)¿

Plaintiff alleges Lezette knew and was on notice of the bedbug infestation as evidenced by online reviews by other prior guests which indicated the presence of the infestation yet failed to inform Plaintiff of the conditions in the room. (Complaint, ¶ 97.)

Lezette argues the allegations regarding Lezette’s legal duty to disclose are conclusory and there are no specific facts to show Lezette intentionally concealed the alleged pest infestation with the intent to defraud Plaintiff. The court agrees in considerable part with Lezette’s second argument.[3] There are no allegations showing Lezette intended to defraud Plaintiff by concealing the pest infestation. Plaintiff’s opposition fails to address this argument.

Accordingly, the demurrer to the Fourth Cause of Action is SUSTAINED. Leave to amend is GRANTED.

The elements of an action for private nuisance are: “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 Cnty. Metro. Transportation Auth. (2022) 83 Cal.App.5th 1137, citing San Diego Gas & Electric Co. v. Sup. Ct. (1996) 13 Cal.4th 893, 938; CACI No. 2021.)

Lezette argues the private nuisance claim fails that (1) because Plaintiff visited the property for a short period of time, the interference of Plaintiff’s interest in the use and enjoyment of the room was not substantial; and (2) because there are no facts alleged showing that Lezette interfered with Plaintiff’s use and enjoyment of the property. The court agrees the private nuisance claim fails, but for a different reason. “Although any interest sufficient to be dignified as a property right will support an action based on a private nuisance, and this includes within its purview a tenancy for a term, such right does not inure in favor of a licensee, lodger or employee.” (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 125.) A “lodger” means a person contracting with the owner of a dwelling unit for a room or room and board within the dwelling unit personally occupied by the owner, where the owner retains a right of access to all areas of the dwelling unit occupied by the lodger and has overall control of the dwelling unit. (Civ. Code § 1946.5.)

Here, Plaintiff’s allegations show that he was a lodger. Plaintiff “rented a room” owned by Defendants and “intermittently stayed in the Subject Hotel while keeping his belongings within the Subject Hotel.” (Complaint, ¶¶ 15, 47.) A claim for private nuisance is not available to Plaintiff.

Accordingly, the demurrer to the Fifth Cause of Action is SUSTAINED. Leave to amend is DENIED.

Civil Code section 3479 defines “nuisance” as “[a]nything which is injurious to health, including, but not limited to … 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.” 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.)” (Citizens for Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350, 358–59.)

Lezette argues the public nuisance claim fails because the Complaint alleges the bedbug infestation harmed Plaintiff alone. The court agrees. Plaintiff alleges that “[t]his bedbug infestation affects the community at large as this type of infestation is easily spread from (1) one hotel room to another, (2) personal property of those occupying the hotel rooms, including Plaintiff’ luggage, clothing, shoes, and other tangible personal property that can be transported from the Subject Hotel room to Plaintiff’ residence thereby creating a risk of bed bug infestation in Plaintiff’ residence, (3) spread of bed bug infestation from the Subject Hotel room to the public and into their residence which can affect the community at large.” (Complaint, ¶ 126.) The public nuisance claim is based on the conjecture that the bedbugs had in fact spread to other parts of the property. There are no allegations showing the infestation affected Plaintiff and other persons in the hotel.

Accordingly, the demurrer to the Sixth Cause of Action is SUSTAINED. Leave to amend is GRANTED.

Lezette moves to strike punitive damages allegations and the request for attorney’s fees from the Complaint. The court begins by addressing punitive damages.

“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.”¿ (Civ. Code, § 3294, subd. (a).)¿

Plaintiff seeks punitive damages in connection to the First Second, Third, and Fourth Causes of Action. Because the court has sustained the demurrer to the First and Fourth Causes of Action, the motion to strike is moot as to those claims.

Lezette advances a global attack against punitive damages rather than attack any specific cause of action. Defendant maintains the punitive damages claim is supported only by conclusory allegations would do not rise to the level of malice, fraud, or oppression.

As to Plaintiff’s negligence claim, the argument is well taken. The claim is based on conduct allegedly constituting gross negligence. (See Complaint, ¶ 70.) But gross negligence cannot support a claim for punitive damages. “California does not recognize punitive damages for conduct that is grossly negligent or reckless.” (Colombo v. BRP US Inc. (2014) 230 Cal.App.4th 1442, 1456, fn.8 (emphasis in original).) Plaintiff cannot obtain punitive damages in connection to his negligence claim. However, as to Plaintiff’s IIED claim, there are more than sufficient allegations to show the conduct of Lizette (and the other defendants) rises to the level of malice. (See Complaint, ¶¶ 67-71.)

Accordingly, the motion to strike punitive damages is GRANTED as to the Third Cause of Action and DENIED as to the Second Cause of Action.¿ Leave to amend is DENIED.

Lezette seeks an order striking Plaintiff’s request for attorney fees in the Prayer of his Complaint. “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.”¿ (Code Civ. Proc., § 1021.)¿ Attorney’s fees are allowable costs under Code of Civil Procedure section 1032 when authorized by contract, statute, or law.¿ (Code Civ. Proc., § 1033.5, subd. (a)(10).)¿¿¿¿

Here, Lezette argues that the request for attorney fees is not supported by a statute or by contract.¿ The court agrees.¿ Plaintiff does not point to any statute that allows for the recovery of attorney’s fees. Plaintiff does not address this argument and therefore concedes the point. Accordingly, the motion to strike the request for attorney fees is GRANTED.

Based on the foregoing, the demurrers to the First, Fourth, Fifth, and Sixth Causes of Action are Sustained. With the exception of the First Cause of Action, leave to amended is Granted.

The Motion to Strike is Granted as the punitive damage allegations in the Second Cause of Action and the request for attorney fees. Leave to amend is Denied. The motion to strike is Denied as to the Third Cause of Action.

Plaintiff is to serve and file his First Amended Complaint within 20 days of this order.

Kerry Bensinger

Judge of the Superior Court

[1] Plaintiff also named AirBNB Inc. and AirBNB Payments, Inc. as defendants. These defendants were dismissed on March 3, 2025.

[2] Plaintiff cites Mathias v. Accor Econ. Lodging, Inc. (7th Cir. Ill. 2003) 347 F.3d 672 to support his contention that an unabated bedbug infestation may constitute battery. There, the court in Mathias opined “[Defendant’s] failure either to warn guests or to take effective measures to eliminate the bedbugs amounted to fraud and probably to battery as well.” (Mathias, 347 F.3d at p. 675, emphasis added.) The reference to battery is dicta and does not support Plaintiff’s contention.

[3] As to the facts showing Lezette has a legal duty to disclose, there are more than sufficient allegations to show Lezette had such a duty. Plaintiff alleges Lezette owns, manages, and operates the Hotel’s Airbnb rentals. Plaintiff sufficiently alleges a special relationship existed between the parties.