Judge: Mark H. Epstein, Case: 21STCV00198, Date: 2023-03-08 Tentative Ruling

Case Number: 21STCV00198    Hearing Date: March 8, 2023    Dept: R

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

Plaintiff Ann Becker (“plaintiff”) filed this action against various defendants for issues arising out of bed bugs and black mold in her apartment.  According to the operative Second Amended Complaint (“SAC”), on or about March 23, 2000, plaintiff signed a lease at the Westerly for apartment D302.  (SAC, ¶28.)  Plaintiff asserts that in 2015, she began to suffer from bites of an unknown origin, and further noted the existence of mold in her apartment.  (Id. at ¶30.)  Plaintiff contacted management, which sprayed the apartment for treatment and this temporarily alleviated the issue.  (Id. at ¶31.)  Plaintiff asserts that from 2016 to 2022, she was bitten again and asked management to fumigate again.  (Id. at ¶¶32-38.)  Management allegedly did not comply with this request.  (Ibid.)  Plaintiff claims she received a tetanus shot for these bites and the doctor confirmed she was bitten by bed bugs.  (Id. at ¶39.)  Though the doctor wrote a note stating the apartment should be fumigated, management purportedly did not comply.  (Ibid.)  Management allegedly came to inspect the unit but told her there were no bed bugs.  (Id. at ¶40.)  Plaintiff later called the health department regarding the black mold and bed bugs, causing the apartment to be cited for health code violations.  (Id. at ¶¶41, 46.)

Currently before the court is UDR Marina Pointe LLC dba The Westerly on Lincoln’s (“defendant”) demurrer to the SAC.  Plaintiff opposes.

The court previously ruled on a demurrer to plaintiff’s FAC.  It sustained the demurrer as applies to the battery and nuisance claims.  (11/15/22 MO.)

Defendants demur to the first, eighth, ninth, and sixteenth causes of action on the grounds of failure to state sufficient facts and uncertainty.  (See Code Civ. Proc., § 430.10, subds. (e)-(f).)  In ruling on the November 2022 demurrer, the court overruled defendants’ demurrers on the basis of uncertainty as unsubstantiated.  The same arguments, or lack thereof, are raised again here. Defendants do not argue that the pleading is ambiguous and unintelligible, and it is not.  Because the demurrers on uncertainty are again unsubstantiated, the court cannot sustain the demurrer on that ground.

The demurrers to the battery claims are SUSTAINED.  “The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant's conduct; (4) plaintiff was harmed; and (5) defendant's conduct was a substantial factor in causing plaintiff's harm.”  (So v. Shin (2013) 212 Cal.App.4th 652, 668–669, citing CACI No. 1300.)  “A battery is any intentional, unlawful and harmful contact by one person with the person of another.  (Delia S. v. Torres (1982) 134 Cal.App.3d 471, 480; and see Rest.2d Torts, § 18.)  A harmful contact, intentionally done is the essence of a battery.”  (Ashcraft v. King (1991) 228 Cal.App.3d 604, 611.)

In both the first and ninth causes of action, plaintiff alleges that defendants acted with the intent to cause a harmful or offensive touching to plaintiff via the bed bugs or black mold.  But defendants did not touch plaintiff.  It is the bed bugs or black mold that did.  That is not enough.  True, battery can be alleged where the defendant directs the touching, but the point is that the defendant has to take an affirmative action to cause the touching; refraining from taking action is not sufficient for this particular tort.  “[T]he tort of battery generally is not limited to direct body-to-body contact.  In fact, the commentary to the Restatement Second of Torts clearly states that the ‘[m]eaning of “contact with another's person” ’ (italics omitted) does not require that one ‘should bring any part of his own body in contact with another's person. . . . [One] is liable [for battery] in this Section if [one] throws a substance, such as water, upon the other. . . .’ (Rest.2d Torts § 18, com. c, pp. 30–31.)”  (Mount Vernon Fire Ins. Corp. v. Oxnard Hospitality Enterprise, Inc. (2013) 219 Cal.App.4th 876, 881, parallel citations omitted.)  Applying that standard here, plaintiff’s new allegations regarding “intentional inaction” are insufficient.  (SAC, ¶¶64, 171.)  She only alleges that defendant intentionally, willfully, and recklessly failed to remediate the mold and the bed bug infestation that caused plaintiff to sustain harmful contact from the bed begs.  However, battery consists of some affirmative act, not a mere failure to remediate.  This logic applies with equal force to both the bedbugs and the mold.  Plaintiff’s citation to Mathias v. Accord Econ Lodging, Inc. (7th Cir. 2003) 347 F.3d 672 is not binding as that is a federal case not decided under California law.  More importantly, though, that case does not stand for plaintiff’s cited proposition.  The Seventh Circuit opined that a hotel’s willful failure to remediate a known bed bug infestation of “farcical proportions” and failure to warn guests of the problem “amounted to fraud and probably to battery as well” because the hotel likely knew with substantial certainty that the guests would be injured.  (Mathias, supra, 347 F.3d at p. 675.)  The court there held that the facts supported a finding of punitive damages under Illinois law, which was the question before it.  (Ibid.)  The Seventh Circuit did not affirmatively hold it was battery but merely stated (as an aside) that it might be.  That is far too slender a reed upon which to rely for this court to rewrite battery law in California.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.  Plaintiff has not indicated how she will amend her claim.  She states discovery is ongoing, but this is not an evidentiary issue that additional evidence will fix.  For example, there is no credible indication that defendants put the bedbugs in the unit.  Further, this is the third attempt to plead a viable cause of action; the court assumes that this is the best plaintiff can do.

The demurrers to the public nuisance claims are also SUSTAINED WITHOUT LEAVE TO AMEND.  “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.’ (§ 3480.)  A private party can maintain an action based on a public nuisance only ‘if it is specially injurious to himself, but not otherwise.’  (§ 3493.)  The damage suffered must be different in kind and not merely in degree from that suffered by other members of the public.  (Institoris v. City of Los Angeles (1989) 210 Cal.App.3d 10, 21; Brown v. Petrolane, Inc. (1980) 102 Cal.App.3d 720, 725–726; Venuto v. Owens–Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124–125.)”  (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1040.)

Plaintiff still has not alleged that her damage is different in kind from that suffered by others.  She argues in opposition that the community at large and other guests have suffered from this issue.  That is the problem with plaintiff’s claim.  She alleges the same injuries anyone else in the apartment complex would have.  Leave to amend is DENIED.  Again, plaintiff has not indicated how she will amend this defect and this is the third attempt to allege a viable nuisance cause of action.

Defendant has 15 days to answer.