Judge: Michael Shultz, Case: 22CMCV00197, Date: 2023-05-18 Tentative Ruling
Case Number: 22CMCV00197 Hearing Date: May 18, 2023 Dept: A
22CMCV00197 Maya Griffith, et al. v. Motel 6, Inc., et
al.
[TENTATIVE] ORDER SUSTAINING IN
PART AND OVERRULING IN PART DEFENDANTS’ DEMURRER TO THE COMPLAINT WITHOUT LEAVE
TO AMEND
[TENTATIVE] ORDER DENYING DEFENDANTS’
MOTION TO STRIKE
I.
BACKGROUND
The complaint
alleges that Plaintiffs checked into Defendants’ hotel on July 1, 2020, and
sustained injury from bed bugs. Plaintiffs alleges seven causes of action for
battery, negligence, emotional distress, fraudulent concealment, nuisance, and
breach of contract.
Defendants,
Carson Hospitality Group, Inc., dba Motel 6 Los Angeles-Carson, G7 Hospitality,
LLC, and Tim Lamb (collectively “Defendants”) demurs to the claims for battery,
intentional infliction of emotional distress, and private nuisance on grounds
they are barred by the applicable statutes of limitations or otherwise fail to
state sufficient facts. Defendants contend the remaining claims for fraudulent
concealment, public nuisance, and for breach of contract fail to state a claim.
II.
ARGUMENTS
Defendants’
counsel sent a meet and confer letter to Plaintiffs’ counsel on March 3, 2023.
(Decl of Ravi R. Mehta, ¶ 2, Ex. A.) However, Plaintiffs' counsel did not
respond. Defendants initially filed a
demurrer and motion to strike with a hearing scheduled for May 4, 2023, which
Plaintiffs opposed. However, the hearing did not go forward. Defendants filed
this amended demurrer and motion to strike set for hearing on May 18, 2023.
Defendants also
move to strike the claim for punitive damages on grounds the complaint does not
allege “despicable conduct.” Defendants move to strike the request for
attorney’s fees and prejudgment interest as they are improper. Although
Defendants timely served the demurrer and motion to strike on April 24, 2023,
Plaintiffs did not file an opposition.
III.
DEMURRER TO COMPLAINT
A.
Legal Standards
The bases for demurrer are limited
by statute and may be sustained for reasons including failure to state facts
sufficient to state a cause of action and uncertainty. (Code Civ. Proc., § 430.10.) A demurrer “tests the
sufficiency of a complaint as a matter of law and raises only questions of
law.” (Schmidt v. Foundation Health
(1995) 35 Cal.App.4th 1702, 1706.) The court must assume the truth of (1) the
properly pleaded factual allegations; (2) facts that can be reasonably inferred
from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.) The court may not consider contentions, deductions, or
conclusions of fact or law. (Moore v. Conliffe (1994) 7
Cal.4th 634, 638.)
B.
DISCUSSION
1)
Defendants have not established that the claims for battery and
intentional infliction of emotional distress are barred by the applicable
statute of limitations.
In order for the court
to sustain demurrer to the complaint based on the statute of limitations, “the
defect must clearly and affirmatively appear on the face of the complaint… A demurrer will not lie where the action may
be but is not necessarily barred.” (Citizens for
a Responsible Caltrans Decision v. Department of Transportation (2020) 46
Cal.App.5th 1103, 1117.) The claims for battery and intentional infliction of emotional
distress are subject to a two-year statute of limitations. (Code Civ.
Proc., § 335.1.) Plaintiffs allege they discovered the bed bug infestation on
July 2, 2020. (Complaint, ¶ 16.) The general rule for computing the time an act
must be done as required by law is governed by Code of Civil Procedure section
12a. If the time for the required act falls on a holiday (including Saturdays),
the date is extended to the next day that is not a holiday. (Code Civ.
Proc., § 12a; Deleon v. Bay
Area Rapid Transit Dist. (1983) 33 Cal.3d 456, 460.)
Two years after the
date of accrual was July 2, 2022, a Saturday. Plaintiffs had until the next
business day to file their complaint which was July 5, 2022, since July 4, 2022,
was a holiday. Therefore, Plaintiffs timely filed the complaint with respect to
these claims on July 5, 2022.
2)
Demurrer to the first cause of
action for battery is SUSTAINED.
A claim for battery
requires facts showing that a defendant intentionally committed an act
resulting in a harmful or offensive contact with the plaintiff’s body without
plaintiff’s consent, and the contact caused injury, damage, loss or harm to
plaintiff. (Brown v.
Ransweiler (2009) 171 Cal.App.4th 516, 526–527.)
Plaintiffs alleged
that Defendants deliberately chose not to inspect or ensure that Plaintiffs’
room was free of bed bugs, resulting in contact with bed bugs. (Complaint, ¶
41.) The tort requires “a harmful contact by one person with the person of
another.” (Piedra v.
Dugan (2004) 123 Cal.App.4th 1483, 1495.) Therefore,
the first cause of action for battery fails to state a cause of action.
3) Demurrer
to the third cause of action for intentional infliction of emotional distress
is OVERRULED.
To prevail on this
claim, plaintiff must allege facts showing (1) extreme and outrageous conduct
with the intention of causing, or reckless disregard of the probability of
causing emotional distress, and (2) plaintiff suffered severe or extreme
emotional distress as a proximate result. (Christensen
v. Superior Court (1991) 54 Cal.3d 868, 903.) Conduct is
“extreme and outrageous” where a defendant (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.) If the
court concludes that reasonable minds may differ as to whether the conduct
rises to the level of “extreme and outrageous conduct,” then “it is for the
jury, subject to the control for the court, to determine whether, in the
particular case, the conduct has been sufficiently extreme and outrageous to
result in liability.” (Alcorn v.
Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 499.)
Plaintiffs allege
Defendants knew or should have known of prior infestations in the Plaintiffs’
room and deliberately did not notify Plaintiffs, chose not to inspect and eradicate
the infestation, and engaged in other specific acts showing extreme
indifference including turning a “blind eye” to previous complaints. (Complaint,
¶¶ 65-67.) The allegations are sufficient to support extreme or outrageous
conduct by Defendants.
4)
Demurrer to the fourth cause of
action for fraudulent concealment is OVERRULED.
A claim for fraudulent
concealment must be supported by facts showing “(1) the defendant concealed or
suppressed a material fact, (2) the defendant was under a duty to disclose the
fact to the plaintiff, (3) the defendant intentionally concealed or suppressed
the fact with the intent to defraud the plaintiff, (4) the plaintiff was
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 sustained damage.” (Bigler-Engler
v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310–311.)
There are four
circumstances that give rise to a duty to disclose: “(1) when the defendant is
in a fiduciary relationship with the plaintiff; (2) when the defendant had
exclusive knowledge of material facts not known to the plaintiff; (3) when the
defendant actively conceals a material fact from the plaintiff; and (4) when
the defendant makes partial representations but also suppresses some material
facts.’” (Id. at 311.) A duty to
disclose may arise as a result of a transaction between the parties such that facts
are known or accessible only to defendant, and defendant knows the facts are
not known or reasonably discoverable by the plaintiff. (Id.) at 312.
Plaintiffs have
alleged sufficient facts to show the circumstances giving rise to Defendants’
duty to disclose given that Plaintiffs patronized Defendants’ hotel. A special relationship exists between hotel
proprietors and their patrons that give rise to a duty to protect them against
unreasonable risk of physical harm. (Howard v.
Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 431–432 [“Hotel guests
can reasonably expect that the hotel owner will be reasonably diligent in
inspecting its rooms for defects, and correcting them upon discovery.”].) Defendants
cite no authority for the proposition that hotels “can reasonably be expected
to have some degree of common vermin or pest at a given time.” (Demurrer 13:10-14.)
However, Plaintiffs allege concealment of facts known to Defendants, which
Plaintiffs could not have known. Accordingly, this claim is adequately alleged.
5) Demurrer
is OVERRULED as to the fifth cause of action for private nuisance as it is not
time-barred and is adequately alleged.
Generally,
a “nuisance” is defined as “anything injurious to health” that obstructs the
free use of property so as to interfere with the comfortable enjoyment of life
or property. (Civ. Code, §
3479.) Defendants contend
without authority that the two-year statute of limitations applies to a private
nuisance claim. However, where liability is created by statute as it is here,
the statute of limitations is three years. (Code Civ.
Proc., § 338; Beck
Development Co. v. Southern Pacific Transportation Co. (1996) 44
Cal.App.4th 1160, 1216 ["there is a three-year statute of limitations in a nuisance
action brought by a private party.”])
A claim
for private nuisance requires the plaintiff to “prove an injury specifically
referable to the use and enjoyment of his or her land. The injury, however,
need not be different in kind from that suffered by the general public." (Mendez v.
Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262 [plaintiff
must show proof of interference with the plaintiff’s use and enjoyment of
plaintiff’s property].) It is a “non-trespassory interference with a known property
right.” (Birke v.
Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1549.) Defendants argue without any authority that the
claim fails because Plaintiffs do not seek to vindicate land ownership
interests. (Demurrer 14:5-7). However, a nuisance claim involves interference
with a known property right. Defendants also argue that the facts asserted here
are the same as those asserted in Plaintiffs’ negligence claim. Plaintiffs can
properly assert “alternative
theories in varied and inconsistent counts." (Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 29.) Moreover, the remedies available in a
private nuisance includes abatement, which is not available in a negligence
claim. (Civ. Code, § 3501.) Therefore, it is not duplicative of
the claim for negligence.
6) Demurrer
to the sixth cause of action for public nuisance is OVERRULED.
Defendants
argue that a public nuisance theory cannot apply in this action since the interests
of the community (a considerable number of persons) are not implicated. (Demurrer, 14:22-28.) 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.) It is based on an interference with
the rights of the “community at large.” (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 124.) Plaintiffs allege that Defendants
own, operate, and manage a hotel, which the Court accepts as true for purposes
of the demurrer. (Complaint, ¶ 48.) This allegation reasonably infers that the
rights of hotel patrons as a community are implicated.
7) Demurrer
to the seventh cause of action for breach of contract is OVERRULED.
The elements of a claim for
breach of contract are (1) the existence of a valid and existing contract
between the parties, (2) plaintiff’s performance or excuse for non-performance,
(3) defendant’s breach; and (4) resulting damage. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) A written contract may be pleaded
either by its terms, set out verbatim in the complaint, or the plaintiff may
attach a copy of the contract to the complaint and incorporate it by reference.
(Heritage Pacific Financial, LLC v.
Monroy (2013) 215 Cal.App.4th 972, 993.) The
plaintiff may also allege the contract according to its legal effect by
alleging the substance of its relevant terms. (Id.) at 993.
Plaintiffs have elected to
allege the contract according to its legal effect, namely that Plaintiffs
entered a written contract to rent a room from Defendants, for which Plaintiffs
paid. (Complaint ¶ 98). Defendants breached the contract by failing to provide
a habitable room for lodging, causing damage to Plaintiffs. (Complaint ¶¶
99-101.) The claim is adequately alleged.
C. CONCLUSION
If there is a
reasonable possibility that the defect in a complaint can be cured by
amendment, it is an abuse of discretion to sustain a demurrer without leave to
amend.
(Association
of Community Organizations for Reform Now v. Department of Industrial Relations (1995)
41 Cal.App.4th 298, 302.) However, the alleged contact with bed bugs does not appear to be
a curable defect to support the battery claim. Accordingly, demurrer is
SUSTAINED in part as to the first cause of action for battery only without
leave to amend. Demurrer to all other
causes of action is OVERRULED. Defendants are ordered to answer within 10 days.
IV.
DEFENDANTS MOTION TO STRIKE
The court may, upon motion or at any
time in its discretion and upon terms it deems proper: (1) strike out any
irrelevant, false, or improper matter inserted in any pleading; or (2) strike
out all or any part of the pleading not drawn or filed in conformity with the
laws of California, a court rule, or an order of the court. (Code Civ. Procedure §436 subd. (a)-(b); Stafford v.
Schultz (1954) 42 Cal.2d 767, 782 [“matter in
a pleading which is not essential to the claim is surplusage; probative facts
are surplusage and may be stricken out or disregarded.”])¿
In considering a motion to strike
punitive damages, the court considers the complaint as a whole and assumes the
allegations are true. (Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255.) Plaintiffs must allege
circumstances of oppression, fraud, or malice as those terms are defined by
statute. (Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 166.) The predicate acts that will
support a claim for punitive damages must be intended to cause injury or must
constitute “malicious conduct,” defined as “despicable conduct” carried on by Defendant
with a willful and conscious disregard of the rights of others. (Civ. Code, §3294 subd. (a).) Oppressive conduct is defined as
“despicable conduct” that subjects a person to cruel and unjust hardship in
conscious disregard of a person’s rights. (Civ. Code, §3294 subd. (c).)
Plaintiffs have sufficiently alleged
the claim for fraudulent concealment which can serve as a predicate act in
support of a punitive damages claim. Liability against a corporate employer may
be imposed if an officer, director, or managing agent of the corporation ratified the tortious behavior. Plaintiffs
have sufficiently alleged ultimate facts to support corporate ratification.
(Complaint, ¶ 84; (Clauson
v. Superior Court (1998) 67 Cal.
App. 4th 1253, 1255 [“In order to survive a motion to strike an allegation of
punitive damages, the ultimate facts showing an entitlement to such relief must
be pled by a plaintiff [citations omitted]. In passing on the correctness of a
ruling on a motion to strike, judges read allegations of a pleading subject to
a motion to strike as a whole, all parts in their context, and assume their
truth [citations omitted].”
With respect to the prayer for attorney’s
fees, it is not an abuse of discretion to refuse to strike a claim for attorney
fees where Plaintiffs have not had a full opportunity to determine the basis
for such fees. (Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1699.)
Defendants have not established that
the prayer for prejudgment interest is improper. Plaintiffs may recover prejudgment
interest on an unliquidated claim at the discretion of the jury for the breach
of an obligation not arising from contract and “in every case of oppression,
fraud, or malice. (Civ. Code, § 3288; Greater
Westchester Homeowners Asso v. L.A., (1979) 26 Cal. 3d 86, 102.)
Accordingly, the Motion to Strike is
DENIED.