Judge: Mark C. Kim, Case: 20STCV35998, Date: 2022-08-18 Tentative Ruling
Case Number: 20STCV35998 Hearing Date: August 18, 2022 Dept: S27
Plaintiff, Twanda Glenn filed this
action against Defendants, Satish R. Bhagat, Parulata S. Bhagat, their Trust,
and Tower Motel, LLC for damages arising out of exposure to bedbugs. Plaintiff alleges she stayed at a hotel owned
by Defendants for two nights from 10/02/19 until 10/04/19 in room ten and then
three nights from 10/04/19 to 10/07/19 in room eleven. She alleges she suffered from a skin rash,
property damage, and ongoing emotional distress as a result of the bed bug
bites.
Plaintiff’s complaint includes
causes of action for:
·
Breach of the Implied Warranty of Habitability;
·
Battery;
·
Negligence (Premises Liability/Failure to Warn);
·
Nuisance;
·
IIED;
·
NIED;
·
Breach of Contract;
·
Breach of Covenant of Quiet Enjoyment;
·
Fraudulent Concealment.
a.
Initial Note
This case was originally assigned
to the personal injury hub court. Defendants
demurred and filed a motion to strike, and the matter was fully briefed; the
hub court found the matter complicated and transferred it to this IC department
for all further proceedings. Defendants
then re-noticed the hearing on the demurrer and motion to strike and re-filed
all moving documents. The Court
considered the previously filed opposition and reply papers in drafting this
ruling.
b.
Meet and Confer
Defendant submits the Declaration
of Bernadette Castillo Brouses, which adequately shows Counsel attempted to
meet and confer prior to bringing this demurrer.
c. 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).)
d. First
Cause of Action, Breach of Implied Warranty of Habitability
Defendants argue a claim for breach
of the implied warranty of habitability cannot be stated against a hotel
because Civil Code §1940, et seq. makes clear that the cause of action does not
apply to hotels. Title 5 of the Civil
Code is entitled “Hiring.” Chapter 2 is entitled
“Hiring of Real Property.” §1940, found
in Chapter 2, provides that the chapter applies to persons who hire dwelling
units located in CA. §1940(b)(1) makes
clear that the term “persons who hire” does not include hotels, motels,
etc. §1940(c) clarifies that “dwelling
unit” means a structure used as a home, residence, etc. §1040(d), however, provides, “Nothing in this
section shall be construed to limit the application of any provision of this
chapter to tenancy in a dwelling unit unless the provision is so limited by its
specific terms.” §1941.1 provides that a
”dwelling” shall be deemed untenantable for purposes of §1941 under certain enumerated
circumstances. §1941 requires the “lessor
of a building intended for the occupation of human beings” to be in a condition
fit for such occupation.
Plaintiff, in opposition to the demurrer,
argues that the elements of a cause of action for breach of the implied warranty
of habitability are set out in case law, and are all met here. She argues §1941.1 is not the only code
section that can create such a breach, and the breach can be a result of
violation of HSC §§17950 and 17920.3.
Defendants, in reply, argue Plaintiff
failed to show anything contrary to the language in §1941.1.
The parties failed to meaningfully
brief the issue of whether a cause of action for violation of the warranty of habitability
can be claimed absent a landlord-tenant relationship. The Court reviewed the Rutter Guide on Landlord-Tenant
issues, specifically the chapter concerning the warranty of habitability, and
motels, hotels, and transient occupancy dwellings are never mentioned in the chapter. If Plaintiff is relying on common law to support
the claim, she should provide a case decided in the hotel/motel/transient
occupancy context that permits recovery under this theory. She failed to do so, and therefore the demurrer
is sustained without leave to amend.
e. Second
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.
f. Fifth
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 ¶112 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.
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.
g. Sixth
Cause of Action, Negligent Infliction of Emotional Distress
Defendants argue CA courts have
only allowed direct victim NIED claims in three types of factual situations:
negligent mishandling of corpses, negligent misdiagnosis of disease that could potentially
harm another, and negligence breach of a duty arising out of a preexisting
doctor/patient relationship. Defendants cite
cases allowing claims in each of those situations. Defendants fail, however, to point to any
portion of any cited case showing that these are the EXCLUSIVE factual
situations where such claims exist. The Court
knows of no such authority. If Defendants
can provide a pinpoint citation, at the time of the hearing, to a portion of one
of the cited opinions that holds these are the EXCLUSIVE situations where NIED
can be pled, then the Court will sustain the demurrer; absent any such express
authority, the demurrer is overruled.
h. Seventh
Cause of Action, Breach of Contract
Defendants correctly note that,
when pleading breach of a written contract, a plaintiff must either attach a
copy of the contract or plead the terms of the contract in haec verba. See Gilmore v. Lycoming Fire Ins. Co. (1880)
55 Cal. 123, 125.
Plaintiff, in opposition to the demurrer,
concedes this requirement. He argues the
element is met because the basic terms of the agreement are pled, and he
attaches portions of the agreement as Exhibit A to the complaint. Exhibit A to the complaint appears to be a check-out
statement of some sort. It contains no terms. Plaintiff also argues the obligation to
provide habitable premises was an implied term of the contract. Plaintiff cites no authority for the position
that terms not actually in a contract are part of a contract. If Plaintiff is claiming a breach of written
contract, Plaintiff must either provide a copy of an actual contract and/or
plead the terms of any such contract in haec verba. The demurrer is sustained with leave to
amend.
i. Eighth
Cause of Action, Breach of the Covenant of Quiet Enjoyment
Defendants demur to this cause of
action on two grounds. First, they contend
Plaintiff did not attach the parties’ contract or plead its terms, so there is
no express contractual promise pled. Second,
they argue a cause of action for breach of the covenant of quiet enjoyment
applies between a landlord and a tenant, but not between a hotel and a
guest.
Plaintiff argues, in opposition to the
demurrer, that the covenant of quiet enjoyment was implied in the parties’
contract. He also argues that he is
bringing the claim based on common law, not based on the Code of Civil
Procedure of Civil Code.
Neither party meaningfully briefs
the issue of whether there is an implied covenant of quiet enjoyment in a
hotel/guest contract. The Court has
reviewed the Rutter Guide on Landlord-Tenant issues, specifically the chapter
on the Implied Covenant of Quiet Enjoyment, and the words “hotel,” “transient,”
and “motel” are never mentioned in the chapter. If Plaintiff’s claim is that she is bringing
the claim based on common law, then she should provide examples of common law
permitting recovery in this context. The
demurrer is sustained without leave to amend.
j. Ninth
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.
Defendants move to strike Plaintiff’s
prayer for punitive damages and all related allegations, as well as Plaintiff’s
prayers for attorneys’ fees and injunctive relief.
a.
Punitive Damages
The motion to strike the prayer for
punitive damages and related allegations 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.
b.
Attorneys’ Fees
Defendants also move to strike Plaintiff’s
prayer for attorneys’ fees. Plaintiff argues
she is seeking a copy of the parties’ contract in discovery and the contract may
include an attorneys’ fees provision, and also that she can seek recovery of
her fees per the Private Attorney General statute.
As to the first argument, Plaintiff
has not currently pled a contract with an attorneys’ fees provision, and therefore
this argument does not support a prayer for attorneys’ fees. The ruling is without prejudice to her right
to seek leave to amend if and when she discovers the existence of such a contract.
As to the second argument, the
Court finds Plaintiff’s primary purpose in pursuing this litigation is her own
personal economic advantage, and the case, if successful, will not confer a
significant benefit on the general public or a large class of persons, as is
required by Civil Code §1021.5. This
argument therefore also does not support a prayer for attorneys’ fees.
c. Injunctive
Relief
Defendants move to strike the prayer
for injunctive relief, but their argument in this regard is limited to one line
on page 4 of their moving brief, wherein they argue there is no basis for this
relief because Plaintiff vacated the hotel in 2019. Plaintiff’s prayer for injunctive relief
seeks an order that Defendants “abate their nuisance.” Defendants cited no authority for the
position that the nuisance must affect Plaintiff personally in order for this
order to be issued. Notably, Plaintiff
failed entirely to address this issue in opposition; however, this could be because
it was not meaningfully addressed in the moving papers. The motion to strike is denied due to the failure
to brief the issue.
Defendants’ demurrer is overruled
in part, sustained with leave in part, and sustained without leave in part as
set forth fully above. Defendants’
motion to strike is granted without leave to amend in part and denied 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.