Judge: Mark C. Kim, Case: 20STCV03758, Date: 2022-07-28 Tentative Ruling
Case Number: 20STCV03758 Hearing Date: July 28, 2022 Dept: S27
Plaintiff, Gerina Hill filed this
action against Defendants, Shree Ganesh, Inc. dba Colonial Motel and Yogesh
Patel for damages arising out of exposure to bedbugs. Plaintiff alleges she stayed at a hotel owned
by Defendants for one night on 1/30/18. She
alleges she woke up with bites in the morning, sought treatment at the emergency
room and was diagnosed with bed bites, and contacted the Long Beach Health
Department regarding the incident.
Plaintiff’s complaint includes
causes of action for:
·
Battery;
·
Negligence;
·
IIED;
·
Fraudulent Concealment;
·
Private Nuisance;
·
Public Nuisance.
a.
Meet and Confer
Defendant submits the Declaration
of Danielle Ebel, which adequately shows Counsel attempted to meet and confer
prior to bringing this demurrer.
b. Legal
Standard on Demurrer
A demurrer is a pleading used to test
the legal sufficiency of other pleadings. It raises issues of law, not fact,
regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to
challenge the truthfulness of the complaint; and for purpose of the ruling on
the demurrer, all facts pleaded in the complaint are assumed to be true,
however improbable they may be.
A demurrer can be used only to
challenge defects that appear on the face of the pleading under attack; or from
matters outside the pleading that are judicially noticeable. Blank v. Kirwan 39
Cal.3d 311 (1985). No other extrinsic evidence can be considered (i.e., no
“speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], §
430.30 [as to any matter on its face or from which judicial notice may be
taken], and § 430.50(a) [can be taken to the entire complaint or any cause of
action within]. Specifically, a demurrer
may be brought per CCP § 430.10(e) if insufficient facts are stated to support
the cause of action asserted. Per CCP
§430.10(a) a demurrer may be brought where the court has no jurisdiction of the
subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be
sustained only where the complaint is so bad that the defendant cannot
reasonably respond. CCP §
430.10(f).
However, in construing the
allegations, the court is to give effect to specific factual allegations that
may modify or limit inconsistent general or conclusory allegations. Financial
Corporation of America v. Wilburn, 189 Cal.App.3rd 764, 769 (1987). And, if the
facts pled in the complaint are inconsistent with facts which are incorporated
by reference from exhibits attached to the complaint, the facts in the
incorporated exhibits control. Further, irrespective of the name or label given
to a cause of action by the plaintiff, a general demurrer must be overruled if
the facts as pled in the body of the complaint state some valid claim for
relief. Special demurrers are not allowed in limited jurisdiction courts. (CCP
§ 92(c).)
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. Goodman v.
Kennedy, 18 Cal.3d 335, 348 (1976). The burden is on the complainant to show
the Court that a pleading can be amended successfully. (Id.)
Finally, CCP section 430.41
requires that “[b]efore filing a demurrer pursuant to this chapter, the
demurring party shall meet and confer in person or by telephone with the party
who filed the pleading that is subject to demurrer for the purpose of determining
whether an agreement can be reached that would resolve the objections to be
raised in the demurrer.” (CCP § 430.41(a).) The parties are to meet and confer
at least five days before the date the responsive pleading is due. (CCP §
430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration
detailing their meet and confer efforts. (CCP § 430.41(a)(3).)
c. First
Cause of Action, Battery
Defendants argue Plaintiff cannot
state a claim for battery because Plaintiff has not alleged Defendants intended
to harm her. Plaintiff, in opposition to
the demurrer, argues that a claim for battery based on bed bug infestation was
approved by the Seventh Circuit in Mathias v. Accord Econ. Lodging, Inc., 347
F.3d 672 (7th Cir. Ill. 2003). Mathias is unavailing for three reasons. First, as Plaintiff himself concedes, it is a
Seventh Circuit opinion and therefore not binding on this court. Second, the plaintiff in Mathias, at trial,
provided evidence of absolutely egregious conduct on the part of the defendant,
showing an absolutely insane infestation throughout the entire motel, knowledge
of the infestation, and an attempt to cover up the infestation (the desk clerks
were instructed to tell renters that the bugs were ticks, not bed bugs, by way of
example). Third, the plaintiff in
Mathias did not actually sue for battery, and the court’s discussion of whether
or not the infestation constituted battery was merely dicta in the opinion.
The Court finds Plaintiff did not allege
any facts to support a finding that Defendants intended to cause harmful
contact with Plaintiff. The demurrer is
therefore sustained. The Court is inclined
to deny leave to amend, as it does not appear Plaintiff could add additional
facts to his complaint to salvage the cause of action.
d. Third
Cause of Action, IIED
As Defendants correctly note in
their demurrer, 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.
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.
Severe emotional distress means “emotional
distress of such substantial quality or enduring quality that no reasonable
[person] in civilized society should be expected to endure it.” Girard v. Ball
(1981) 125 Cal.App.3d 772, 787 788.
The analysis in connection with this
cause of action turns on Plaintiff’s allegations at ¶20 of her complaint. Plaintiff alleges Defendants knew there was a
bed bug infestation because there were “multiple” prior complaints in reviews
on yelp and trip advisor. Plaintiff does
not attach the reviews to her complaint, and does not define “multiple.” Multiple could be anything from two to hundreds
or thousands. The Court does not know
how long Defendants have been in business.
It does not know how often these reviews were posted. If the most recent review mentioning bed bugs
was years ago, it would not be relevant to Defendants’ knowledge of an
infestation at the time of Plaintiff’s stay.
If, however, there are multiple reviews mentioning bed bugs around the
time of Plaintiff’s stay, an inference could be made that Defendants knew of
the infestation and failed to take steps to cure it, which would be extreme and
outrageous.
Notably, all of Plaintiff’s other
allegations in this regard are mere conclusions. She alleges, for example, that Defendants
instructed their employees not to check for signs of infestation, failed to
direct them concerning how to clean for bed bugs, permitted them not to change
bed skirts regularly, etc. Plaintiff
does not allege any facts supporting knowledge of these practices. Additionally, these practices would not be
relevant if Defendants had no idea there were bed bugs in the first place. If Defendants had no idea there were bed
bugs, then there would be nothing extreme and outrageous.
The demurrer is sustained. Leave to amend is granted to permit Plaintiff
to allege further facts concerning the recency and frequency of the subject
reviews.
e. Fourth
Cause of Action, Fraudulent Concealment
Any species of fraud must be pled
with heightened factual specificity and facile conclusions are insufficient. Plaintiff’s complaint lacks facts showing that
Defendants knew of the infestation and intentionally concealed it from
Plaintiff. Although the Court does not look behind the facts on demurrer, specific
facts establishing both actual knowledge prior to Plaintiff’s use of the room
and affirmative conduct constituting concealment are necessary. As to this
cause of action, the allegations are at best contentions and deductions and not
proper factual allegations to the heightened degree required for pleading
fraud. The demurrer is sustained with
leave to amend.
f. Fifth
Cause of Action, Public Nuisance
Defendants demur to the fifth cause
of action for public nuisance, contending Plaintiff has not alleged the existence
of a nuisance activity that affects “an entire community or neighborhood, or
any considerable number of persons,” as required by Venuto v. Owens-Corning
Fiberglass Corp. (1971) 22 Cal.App.3d 116, 125.
Plaintiff, in opposition, cites various code sections to establish what
constitutes a nuisance, including anything which is injurious to health. She fails, however, to cite anything contrary
to Venuto, and fails to show how the bed bugs at issue in this lawsuit affected
an entire community or neighborhood, or any considerable number of
persons. The demurrer is therefore sustained. Because this is a purely legal issue, leave
to amend is denied.
g.
Sixth Cause of Action, Private Nuisance
Defendants cite Lussier v. San
Lorenzo Valley Water Dist. (1988) 206 Cal.App.3d 92, 100 to establish that a private
nuisance must interfere with the plaintiff’s property. Defendants correctly note that Plaintiff, a
hotel guest, had no properly interest in her hotel room. Plaintiff does not meaningfully address this argument
in opposition to the demurrer, and it is therefore sustained without leave to
amend.
Defendants move to strike Plaintiff’s
prayer for punitive damages and all related allegations. The motion to strike is granted. The Court finds Plaintiff has not pled Defendants
acted with malice, fraud, or oppression, as contemplated by Civil Code §3294. Leave to amend is granted for the reasons
discussed above in connection with the demurrer to the IIED cause of
action.
Defendants also move to strike Plaintiff’s
prayer for attorneys’ fees. Plaintiff does
not oppose the motion to strike the prayer for attorneys’ fees, and it is
granted without leave to amend.
Defendants’ demurrer is sustained with
leave in part and without leave in part as set forth fully above. Defendants’ motion to strike is granted with
leave in part and without leave in part as set forth fully above.
Plaintiff must file an amended
complaint within twenty days. Defendants
must file a responsive pleading within the statutory time thereafter. If Defendants, upon receipt of the amended
complaint, perceive deficiencies in the amended complaint, the Court asks
Counsel to meet and confer in good faith to resolve the deficiencies without
further law and motion practice if at all possible.
Defendants are ordered to give
notice.
Parties who intend to submit
on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as
directed by the instructions provided on the court website at www.lacourt.org. If the department
does not receive an email indicating the parties are submitting on the
tentative and there are no appearances at the hearing, the motion may be placed
off calendar. If a party submits on
the tentative, the party’s email must include the case number and must identify
the party submitting on the tentative.