Judge: Nathan Vu, Case: 2021-01216223, Date: 2023-05-15 Tentative Ruling

Demurrer

Defendant Marriott Resorts Hospitality Corporation’s demurrer is OVERRULED as to the first and seventh causes of action, and SUSTAINED as to the third, fourth, fifth, and sixth causes of action, with 15 days leave to amend.

Defendant Marriott Resorts Hospitality Corporation (Defendant Marriott Resorts) demurs to the first, third, fourth, fifth, sixth, and seventh causes of action of the Complaint filed by Plaintiffs Stewart Fisher, Lori Smelts, and Ava Fisher.

Standard for Demurrer

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)

Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

Although courts should take a liberal view of inartfully drawn complaints, (see Code Civ. Proc., § 452), it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought, (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413). Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Code Civ. Proc., § 425.10, subd. (a).)

1st Cause of Action (Battery)

“The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant's conduct; and (4) a reasonable person in the plaintiff's position would have been offended by the touching.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890, citation omitted.)

The element of intent requires that the defendant intended to commit a battery or was substantially certain that battery would result from the defendant’s conduct. (See Ashcraft v. King (1991) 228 Cal.App.3d 604, 613 [where medical consent conditioned on using family-donated blood, battery claim stated where other blood used in surgery, intent adequately alleged by claimed willful disregard of condition regarding blood source].)

“As a general rule, California law recognizes that ‘. . . every person is presumed to intend the natural and probable consequences of his acts. Thus, a person who acts willfully may be said to intend ‘those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire).” (Gomez v. Acquistapace (1996) 50 Cal.App.4th 740, 746, citations omitted, quoting Lopez v. Surchia (1952) 112 Cal.App.2d 314, 318.) Accordingly, “[i]n an action for civil battery the element of intent is satisfied if the evidence shows defendant acted with a ‘willful disregard’ of the plaintiff's rights” (Ashcraft v. King, supra, 228 Cal.App.3d at p. 613.)

Defendant Marriott Resorts argues that Plaintiffs have not sufficiently alleged the intent to harm Plaintiffs. In fact, Defendant Marriott Resorts points out that Defendants had no reason to intentionally subject their patrons to bedbug bites.

Plaintiffs allege as follows with respect to the intent of the Defendants:

38. Defendants’ failure to take the necessary steps and precautions to either (1) ensure proper sanitary, safe, and clean conditions of the hotel rooms, (2) eliminate unsanitary conditions such as bed bugs, and (3) warn the hotel guests of the possible infestation while disregarding knowledge of prior infestations amounts to deliberately choosing not to inspect and complete reckless disregard to the health and safety of the Plaintiffs. Defendant’s failures to take proper precautions and act in accordance with the Department of Health’s rules and regulations amounts to an inaction.

51. Defendants’, and DOES 1 through 20, intentional, deliberate, and reckless actions and failures to eradicate the infestation of bedbugs, and the like, occurring at the Subject Hotel, and specifically in Plaintiffs’ room at the Subject Hotel, is clearly evidenced by Defendants’ (1) deliberate actions in failing to properly and thoroughly inspect and clean the room assigned to Plaintiffs, and to ensure the room was free from infestations of bedbugs, and the like, prior to renting and assigning the room to Plaintiffs; (2) intentional and deliberate failures to treat and eliminate infestation of bedbugs, and the like, occurring in the rooms of the Subject Hotel; (3) intentional, deliberate, and reckless choice not to inspect for bedbugs and the spread of bedbug infestations at the Subject Hotel; (4) intentional, deliberate, and reckless choice in requiring Plaintiffs to be assigned and isolated in the room of the Subject Hotel despite having prior knowledge of the bedbug infestation from the Plaintiffs; (5) intentional, deliberate, and reckless choice not to properly train housekeeping staff to thoroughly clean and maintain the rooms in a sanitary and habitable condition; (6) willful disregard of knowledge of Cimex lectularius (bedbugs) infestation and other uninhabitable conditions in Plaintiffs’ room; and (7) intentional, deliberate, and reckless choice in failing to give notice to Plaintiffs of the presence of the said uninhabitable conditions occurring in Plaintiffs’ room at the Subject Hotel.

(FAC, ¶¶ 38 & 51).

While Plaintiffs’ allegations do not contain much factual specificity, battery need not be plead with specificity. At this stage, “[t]he plaintiff is required to plead only ultimate facts, not evidentiary facts.” (C.W. Johnson & Sons, Inc. v. Carpenter (2020) 53 Cal.App.5th 165, 169.) In addition, the court is required to liberally construe Plaintiffs’ allegations in a light most favorable to Plaintiffs. (See Childs v. State (1983) 144 Cal.App.3d 155, 160.)

By pleading that Defendant Marriott Resorts had actual knowledge of a bedbug infestation for some time and did nothing to address or give notice of the infestation, Plaintiffs have sufficiently alleged “willful disregard” that meets the intent element of battery. (See e.g., Mathias v. Accor Economy Lodging, Inc. (7th Cir. 2003) 347 F.3d 672, 675 [where defendant was aware of bed bug infestation for years and continued to rent rooms it knew had bed bugs, defendant’s “failure either to warn guests or to take effective measures to eliminate the bedbugs amounted to fraud and probably to battery as well.”].)

Additional details regarding the extent of Defendant’s knowledge and intent may be sought through discovery. (See Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.) However, the demurrer must be overruled as to the first cause of action.

3rd Cause of Action (Intentional Infliction of Emotional Distress)

The elements of a cause of action for Intentional Infliction of Emotional Distress (IIED) are: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant's extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007, citation omitted.)

“A defendant's conduct is considered to be outrageous if it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Ibid., citations omitted.)

An IIED cause of action based on reckless disregard of the probability of causing emotional distress requires an intent to injure the plaintiff. (See Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210; Christensen v. Superior Court (1991) 54 Cal.3d 868, 903-906.) Absent such intent, inaction by a defendant does not constitute extreme and outrageous conduct. (Davidson v. City of Westminster, supra, 32 Cal.3d at p. 210 [trial court properly sustained demurrer to IIED cause of action where plaintiff alleged that police officers failed to intervene when, during surveillance of public laundromat, officers observed suspect enter and stab plaintiff].)

Defendant Marriott Resorts argues that this cause of action fails because Plaintiffs’ allegations of “reckless disregard” and intention are based on contentions, deductions, and conclusions, and Plaintiffs failed to allege the nature, extent, and duration of the alleged emotional distress.

Plaintiffs respond that they alleged that the Defendants’ actions were outrageous by directing employees not to clean or inspect for bedbugs, which heightened Plaintiffs’ anxiety and concern.

However, Plaintiffs have failed to allege conduct that would be considered so extreme as to exceed all bounds of that usually tolerated in a civilized community. Plaintiffs’ allegations also do not sufficiently show that Defendants’ intention of causing or reckless disregard of the probability of causing the requisite emotional distress. While Plaintiffs have alleged sufficiently willful disregard of Plaintiffs’ rights, that is not the same as alleging willful disregard of the probability of causing severe emotional distress.

Further, there are insufficient allegations regarding the exact nature, duration, and extent of each Plaintiffs’ alleged severe emotional distress. (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 [“Only emotional distress of ‘such substantial quantity or enduring quality’ that an individual in civilized society should not be expected to endure it constitutes severe emotional distress” and IIED claim failed where plaintiff “pleaded no facts demonstrating the nature, extent or duration of her alleged emotional distress.”], citation omitted.) The court must sustain the demurrer to the third cause of action.

4th Cause of Action (Fraudulent Concealment)

The elements of an action for fraud and deceit based on a concealment are: “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been 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 must have sustained damage.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748.)

“Concealment is a species of fraud, and ‘[f]raud must be pleaded with specificity.’” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 878.) General and conclusory allegations will not suffice. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 645). The particularity requirement “necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Ibid.) “A plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’” (Ibid., quoting Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Defendant Marriott Resorts point out that Plaintiffs acknowledge that Defendants’ employees inspected the room and were unable to find bedbugs during that inspection. (FAC, ¶ 15.) As such, Defendant Marriott Resorts argues that Plaintiffs cannot plead that Defendant had actual knowledge of the infestation, at least not with the requisite specificity.

Defendant Marriott Resorts is correct. Plaintiffs must plead their fraudulent concealment claim with a heightened level of specificity, unlike the case with the battery claim. Although Plaintiffs argue that they have alleged that Defendants intentionally concealed a bedbug infestation prior to Plaintiffs’ stay, these allegations are conclusory. The FAC’s allegations do not lay out with sufficient specificity how Defendants had prior knowledge of the bedbug infestation, how Defendants sought to conceal the infestation, or that Defendants intended to fraudulently conceal the infestation. The court must sustain the demurrer to the fourth cause of action.

5th Cause of Action (Private Nuisance) and 6th Cause of Action (Public Nuisance)

A nuisance is statutorily defined as “[a]nything which is injurious to health . . . or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property. . . .” (Civil Code, § 3479.) “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.” (Civil Code, § 3480.) “Every nuisance not included in the definition of the [Section 3480] is private.” (Civil Code § 3481.)

The elements of an action for private nuisance are: (1) plaintiff must prove an interference with his use and enjoyment of his property; (2) invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial, that is, that it causes plaintiff to suffer substantial actual damage; (3) interference with the protected interest must not only be substantial, but it must also be unreasonable, that is, it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land. (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263.)

“Although ‘any interest sufficient to be dignified as a property right’ will support an action based on a private nuisance, and this includes within its purview a tenancy for a term, such right does not inure in favor of a licensee, lodger or employee.” (Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 125.)

To plead a cause of action for public nuisance, a plaintiff must allege the following: (1) that the defendant, by acting or failing to act, created a condition or permitted a condition to exist that was, among other things, either harmful to health; or was indecent or offensive to the senses; or was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property; (2) that the condition affected a substantial number of people at the same time; (3) that an ordinary person would be reasonably annoyed or disturbed by the condition; (4) that the seriousness of the harm outweighs the social utility of the defendant’s conduct; (5) that the plaintiff did not consent to the defendant’s conduct; (6) that plaintiff suffered harm that was different from the type of harm suffered by the general public; and (7) that the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (See Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548.)

“As the California Supreme Court has explained, ‘public nuisances are offenses against, or interferences with, the exercise of rights common to the public.’ The interference must be both substantial and unreasonable.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542, quoting People ex rel. Gallo v. Acuna (1997) 15 Cal.4th 1090, 1103.)

Defendant Marriott Resorts argues that Plaintiffs cannot allege a private nuisance cause of action because Plaintiffs do not have a property right. Further, Defendant Marriott Resorts argues that Plaintiffs cannot allege a public cause of action because Plaintiffs fail to establish a nuisance that affects the community at large, rather than only Plaintiffs.

Plaintiffs cite to the Second Restatement of Torts for the proposition that the threat of smallpox communication to a single person may be enough to constitute a public nuisance because of the possibility of an epidemic. Plaintiffs likens the spread of smallpox to Plaintiffs’ exposure to a bed bug infestation, which poses a threat to the public.

The FAC alleges that Plaintiffs rented a hotel room from Defendants. Plaintiffs thus did not have a property right sufficient to support a private nuisance claim. (See Venuto v. Owens-Corning Fiberglas Corp., supra, 22 Cal. App. 3d at p. 125.)

In addition, Plaintiffs’ allegations are insufficient to establish that a bedbug infestation in their room would have an effect on an entire community, neighborhood, or a considerable number of persons. Here, Plaintiffs only make the allegation that a bed bug infestation “affects the community at large.” (FAC, ¶ 124.) This allegation is conclusory and devoid of facts.

Plaintiffs’ allegations are insufficient to constitute either a private or public nuisance, and the demurrer must be sustained as to the fifth and sixth causes of action.

7th Cause of Action (Breach of Contract)

“To state a cause of action for breach of contract, it is required that there be a pleading of the contract, plaintiffs’ performance (or excuse for nonperformance), defendant's breach, and damage to plaintiff therefrom.” (Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 305.) Furthermore, in an action founded upon a contract, a party must be able to ascertain from the pleading whether the contract was written, oral, or implied by conduct. (Code Civ. Proc., § 430.10, subd. (g).)

Defendant Marriott Resorts argues that while Plaintiffs have alleged that they entered into a written contract with Defendants, they fail to allege the contract by its terms, set out the terms verbatim, or attach a copy of the written contract.

The FAC alleges that there was a written contract between Plaintiffs and Defendants for the rental of a room habitable for lodging. (FAC, ¶ 129.) Plaintiffs also allege that they performed by paying for their room and that Defendants breached by failing to provide Plaintiffs with a habitable room. (FAC, ¶¶ 130, 132.)

While the FAC does not contain all the details of the contract, it does not need to. Plaintiffs’ allegations are sufficient to make out the ultimate facts for the elements of a breach of contract cause of action. The demurrer to the seventh cause of action must be overruled.

Leave to Amend

“It is an abuse of the trial court's discretion to sustain a demurrer without leave to amend if there is a reasonable possibility the plaintiff can amend the complaint to allege any cause of action.” (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.) “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

It is generally the plaintiff's “burden to establish how the complaint can be amended to state a valid cause of action.” (Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1044.) In order to meet this burden, a plaintiff may submit a proposed amended complaint or enumerate facts and demonstrate how those facts establish a cause of action. (See Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.)

Plaintiffs request that the court grant leave to amend the complaint again, but do not establish how the complaint can be amended to survive another demurrer, except to argue that their claims are meritorious and that they may be able to obtain additional evidence.

In light of the liberal policy favoring leave to amend, the court will grant leave to amend. However, if Plaintiffs make essentially the same allegations and arguments, the court may sustain future demurrers without lave to amend.

Motion to Strike

Defendant Marriott Resorts Hospitality Corporation’s motion to strike is GRANTED, with 15 days leave to amend.

Defendant Marriott Resorts Hospitality Corporation (Defendant Marriott Resorts) moves to strike the punitive damages allegations and request and the attorney’s fees request of the Complaint filed by Plaintiffs Stewart Fisher, Lori Smelts, and Ava Fisher.

Standard for Motion to Strike

A court may strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule or an order of the court. (Code Civ. Proc., § 436.)

“Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim or a demand for judgment requesting relief not support by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).)

Punitive Damages

To obtain punitive damages, a plaintiff must plead and prove one of the following: malice, oppression, or fraud. (See Civil Code, § 3294, subd. (a).) “Malice” is specifically defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civil Code, § 3294, subd. (a)(1).)

Conduct carried on with a willful and conscious disregard of the rights or safety of others, but that is not “despicable,” will not support an award of punitive damages. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “Despicable conduct” refers to circumstances that are so vile, base, or contemptible that it would be looked down on and despised by reasonable people. (Ibid.; Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.) Such conduct has been described as “having the character of outrage frequently associated with crime.” (Scott v. Phoenix Schools, Inc., supra, 175 Cal.App.4th at p. 715.)

“Consequently, to establish malice, ‘it is not sufficient to show only that the defendant's conduct was negligent, grossly negligent or even reckless.’” (Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 1044, quoting Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.) “The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages. . . . Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens should not have to tolerate.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210, citations and quotation marks omitted.)

In addition, to plead a claim to recover punitive damages against an employer based on the acts of an employee, that plaintiff must plead facts showing the employer “had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or [wrongful] act must be on the part of an officer, director, or managing agent of the corporation.” (Civil Code, § 3294(b).)

Here, the FAC fails to plead malice, oppression, or fraud. Specifically, the FAC does not plead intention to cause injury and while it does plead willful disregard, it does not plead “despicable conduct” in connection with the willful disregard. Further, the court has sustained the demurrer with respect to the claim of fraudulent concealment. The court will grant the motion to strike as to paragraphs 60, 77, 89, and 109 and Prayer for Relief paragraph 2 of the FAC.

Attorney’s Fees

In this state, attorneys’ fees generally are not recoverable as costs unless expressly allowed by statute or by virtue of a contract. (See Code Civ. Proc., § 1021; City of Industry v. Gordon (1972) 29 Cal.App.3d 90, 93.)

Plaintiffs do not plead any basis in statute or contract in support of their request for attorney’s fees and make no real argument in the opposition to the motion to strike that such a basis exists. The court will grant the motion to strike as to Prayer for Relief paragraph 3 of the FAC.

Leave to Amend

In ruling on a motion to strike, the court employs the same liberality to amend as used for demurrers. As long as there is a reasonable possibility that plaintiffs can cure the defects, leave to amend is appropriate. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 168; Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 360.)

As with the demurrer, the court will grant leave to amend with respect to the motion to strike. However, if Plaintiffs make essentially the same allegations and arguments, the court may sustain future motions to strike without lave to amend.

Defendant Marriott Resort shall give notice of these rulings.