Judge: Olivia Rosales, Case: 19STCV28159, Date: 2022-09-20 Tentative Ruling

DEPARTMENT SE-C LAW & MOTION PROCEDURES ARE AS FOLLOWS: APPEARANCES: The Court will hear oral arguments on all matters at the scheduled time of hearing. If all counsel intend to submit on the Tentative Order and do not want oral argument, please advise the clerk, in Department “C”, by calling (562-345-3702). If all sides submit on the Tentative Order and the clerk is so advised, the Tentative Order will become the final order of the court and the prevailing party shall give written Notice of Ruling per CRC 3.1312. If the Moving and Responding parties do not agree to submit on the Tentative Order, the motion will be called as calendared for hearing. There is no need to contact Department “C”, as the matter will remain on calendar for hearing. If the Moving party does not call Department “C” to submit on the Tentative Order and there is no appearance by any party, then the motion(s), at the Court’s discretion, may be taken off calendar without ruling on the motion(s). ORDERS: The minute order reflecting the Court’s Order will constitute the final Order. No additional orders should be submitted to the Court for signature unless required by law or by the Court. Prevailing party shall give written Notice of Ruling per CRC 3.1312. Minute orders, which constitute the final Order of the Court, will only be sent to the parties via U.S. mail  for the following: OSC re: sanctions, OSC re: contempt or matters taken under submission after oral arguments or briefing. Counsel or parties may request copies of all other minute orders/final orders either at the clerk’s office or in writing. If a request is in writing, a self-addressed stamped envelope and the appropriate fee for copies shall be submitted.

Case Number: 19STCV28159    Hearing Date: September 20, 2022    Dept: SEC

KRAFT v. RANDOLPH HOTEL, et al.

CASE NO.:  19STCV28159

HEARING:  9/20/22 @ 1:30 PM

 

#5

TENTATIVE RULING

 

I.             Defendants NK Properties, Inc., Mike Patel, and Ninette Patel’s demurrer to Plaintiff’s SAC is SUSTAINED without leave to amend.

 

II.            Defendants NK Properties, Inc., Mike Patel, and Ninette Patel’s motion to strike portions of Plaintiff’s Complaint is GRANTED without leave to amend.

 

Defendants are ORDERED to file and serve their Answers within 10 days.

 

Moving Parties to give Notice.

 

 

I.             DEMURRER

 

Defendants NK Properties, Inc., Mike Patel, and Ninette Patel demur to the 3rd – 5th causes of action on the ground that they fail to state facts sufficint to constitute a cause of action.

 

This personal injury action was filed by Plaintiff Sadie Kraft on August 12, 2019. The operative Second Amended Complaint (“SAC”) alleges that “[o]n or about August 12, 2017, Plaintiff… checked in at the hotel…. On or about August 16, 2017, [Plaintiff] discovered multiple bite marks on her body, but was unsure of the cause.”  (SAC, ¶¶ 17-18.)  “On or about August 20, 2017, [Plaintiff] sought medical care… where she was diagnosed with bedbug bites.”  (SAC, ¶ 20.)  Based thereon, the SAC asserts causes of action for:

 

1.    Negligence

2.    Intentional Infliction of Emotional Distress

3.    Fraudulent Concealment

4.    Private Nuisance

5.    Public Nuisance

 

3rd CAUSE OF ACTION

 

FRAUDULENT CONCEALMENT:

 

“[T]he elements of a cause of action for fraud and deceit based on 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, (f) 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.” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 612-613.) “Fraud must be pleaded with specificity… [t]o withstand a demurrer, the facts constituting every element of the fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.

(Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.) “This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) “The requirement of specific in a fraud action against a corporation requires the plaintiff to 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.” (Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

 

Here, Plaintiff alleges that defendants, through their employees and agents, were aware of the substandard health conditions in the hotel with respect to the bedbug infestation in Plaintiff’s room, and that front desk personnel intentionally did not disclose this material fact during check-in.  (SAC, ¶¶ 78-81.)

 

Plaintiff’s conclusory allegations are insufficient. Legal conclusions or mere recitations of law do not suffice. The allegations are insufficient as to knowledge and intent to deceive. Plaintiff fails to allege specific facts establishing both actual knowledge of the knowledge and affirmative conduct constituting concealment. The contentions and deductions of law alleged are not proper factual allegations to the heightened degree required for pleading fraud.

 

Plaintiff was given a prior opportunity to amend, but failed to allege any facts supporting fraudulent concealment.  Accordingly, the demurrer to the 3rd cause of action is SUSTAINED without leave to amend.  If discovery reveals facts supporting fraudulent concealment, Plaintiff may later seek leave to amend.  At this juncture, Plaintiff failed to identify any facts supporting prior knowledge of infestations.

 

4TH – 5TH CAUSES OF ACTION

 

NUISANCE:

 

A nuisance is statutorily defined as anything “injurious to health” or “indecent, or offensive to the senses, or an obstruction of the free use of property” that interferes “with the comfortable enjoyment of life or property…” (Cal. Civ. 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.” (Cal. Civ. Code §3480.) “A private nuisance is a civil wrong based on disturbance of rights in land.” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal. App. 4th 1036, 1041.) In general, “to proceed on a private nuisance theory the plaintiff must 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.” (Id.) “So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance.” (Id.)

 

Plaintiff fails to allege facts to support a claim for public nuisance.  Specifically, Plaintiff does not allege that a “considerable number of persons” were affected at the same time, so as to interfere with the comfortable enjoyment of life or

property that affects at the same time an entire community or neighborhood. With respect to Plaintiff’s claim for private nuisance, the Court finds that Plaintiff lacks standing.  As alleged, Plaintiff was merely a transient “lodger” and lacks a property interest.  (See Venuto v. Owens-Corning Fiberglass Corp. (1971) 22 Cal.App.3d 116, 125.)  

 

Plaintiff was given a prior opportunity to amend, but failed to cure the defects.  Accordingly, the demurrer to the 4th and 5th causes of action is SUSTAINED without leave to amend.

 

MOTION TO STRIKE

 

A motion to strike lies either when (1) there is “irrelevant, false or improper matter inserted in any pleading”; or (2) to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” (CCP §436.)

 

The basis for punitive damages must be pled with specificity.  Plaintiff must allege specific facts showing that Defendant’s conduct was oppressive, fraudulent, or malicious. (Smith v. Superior Court (1992) Cal.App.4th 1033, 1041-1042.). Given the Court’s findings above, the motion to strike punitive damages is GRANTED. As alleged, Plaintiff has failed to plead specific facts to maintain a claim for punitive damages.  Plaintiff does not identify facts supporting the assertion that Defendant had prior knowledge of the infestation.

 

Attorney’s fees are not recoverable unless provided for by contract or statute. (CCP §1021; 1033.5(a)(1); City of Industry v. Gordon (1972) 29 Cal.App.3d 90, 93.) Currently, Plaintiff’s SAC does not allege a basis for attorney’s fees.

 

Motion to Strike is GRANTED without leave to amend.