Judge: Mark C. Kim, Case: 20STCV03758, Date: 2023-02-02 Tentative Ruling
Case Number: 20STCV03758 Hearing Date: February 2, 2023 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 bedbugs bites, and contacted the Long Beach Health
Department regarding the incident.
Plaintiff’s complaint included
causes of action for:
·
Battery;
·
Negligence;
·
IIED;
·
Fraudulent Concealment;
·
Private Nuisance;
·
Public Nuisance.
On 7/28/22, the Court heard and
ruled on Defendants’ demurrer and motion to strike portions of the original complaint. The Court sustained the demurrer in part and
overruled it in part, and ordered Plaintiff to file an amended complaint. On 8/16/22, Plaintiff filed her operative
FAC, which includes cause of action for negligence and fraudulent
concealment.
a.
Meet and Confer
Defendants submit the Declaration
of Maral Gasparian, 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. Initial
Note
Opposition to the demurrer was due
on or before 1/20/23. The Court has not
received opposition to the demurrer. The
Court’s research attorney contacted Defense Counsel to ask whether opposition
had been served and was informed that Defendants did receive opposition to the demurrer. The Court has had ongoing problems with its
e-filing system. The Court did not have
the benefit of the opposition in ruling on this demurrer, but was sufficiently
able to analyze and address the pleading challenge without written
opposition.
d. Second
Cause of Action, Fraudulent Concealment
In connection with the demurrer to
the fraudulent concealment cause of action in the original complaint, the Court
ruled as follows:
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.
Plaintiff, in her amended
complaint, alleges Defendants had knowledge of the bedbug infestation on their
property and failed to disclose the problem to Plaintiff. She attaches, as Exhibit A, Defendant’s
google and yelp reviews. The reviews
show that Defendant has a one-star rating on Yelp with 41 reviews, including at
least seven reviews mentioning bed bugs between 2014 and 2022. Google reviews shows an unclear number of
reviews with 3.2 stars, including approximately thirteen that mention bed bugs
in the past three years.
Defendants demur to the cause of
action, arguing it is not pled with the requisite specificity. First, Defendants argue Plaintiff failed to
allege who, what, when, where, and to whom representations were made, as well
as authority to speak on behalf of the entity defendant. This is, however, a concealment cause of
action; by its very nature, the allegation is a failure to speak, not
affirmative speech. While specificity is
required, Defendants have clearly not articulated the correct standard.
The Court finds the FAC alleges
concealment of a bedbug problem with the requisite specificity at the pleading
stage. Plaintiff alleges facts showing Defendants
knew or should have known about the ongoing problem, failed to disclose the
problem to her, her reliance on the unknown fact, and her damages as a
result. The demurrer is therefore overruled.
Defendants move to strike Plaintiff’s
prayer for punitive damages and all related allegations. The motion to strike is denied. A well-pleaded cause of action for fraud supports
a claim for punitive damages as a matter of law, as Civil Code §3294 requires
malice, fraud, or oppression.
The demurrer is overruled. The motion to strike is denied. Defendants are ordered to file an answer
within ten days.
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.