Judge: Ronald F. Frank, Case: 19STCV28087, Date: 2023-05-02 Tentative Ruling
Case Number: 19STCV28087 Hearing Date: May 2, 2023 Dept: 8
Tentative Ruling¿
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HEARING DATE: May 2, 2023¿¿
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CASE NUMBER: 19STCV28087
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CASE NAME: Jessica
Zazueta v. Wyndham Worldwide Corporation, et al
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MOVING PARTY: Defendants, LAX Hotel Investment Company, Inc. dba Wingate
by Wyndham LAX
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RESPONDING PARTY: Plaintiff,
Jessica Zazueta
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TRIAL DATE: None set.¿
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MOTION:¿ (1) Demurrer¿
(2)
Motion to Strike
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Tentative Rulings: (1) Defendant’s Demurrer is
OVERRULED as to the fourth cause of actions for fraudulent concealment and
SUSTAINED without leave to amend as to the first cause of action for battery
and the third cause of action for IIED.
(2)
Defendant’s Motion to Strike is DENIED.
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I. BACKGROUND¿¿
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A. Factual¿¿
On August 7, 2019, Plaintiff first
filed a complaint in this case. On June 7, 2022, Plaintiff, Jessica Zazueta (“Plaintiff”) filed her First Amended Complaint (“FAC”)
against Defendants, Wyndham Worldwide Corporation; Wyndham Destinations, Inc.;
Wingate by Wyndham LAX; LAX Hotel Investment Company, Inc.; Linda Oh; Korey
Small, and DOES 1 through 20 (collectively “Defendants”). On July 20, 2022,
Plaintiff filed a First Amended Complaint (“FAC”). Defendant demurred to the FAC and several of
its causes of action as well as moving to strike the punitive damages
allegations and prayer. The Court
sustained the Demurrer in part with 30-days leave to amend, giving counsel
guidance as to what type of additional allegations were needed, and overruled
the demurrer in part after a hearing on February 2, 2023. On March 3, 2023, Plaintiff filed a Second
Amended Complaint (“SAC”) alleging causes of action for: (1) Battery; (2)
Negligence; (3) Intentional Infliction of Emotional Distress; (4) Fraudulent
Concealment; and (5) Public Nuisance.
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B. Procedural¿¿
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On April 5, 2023, Defendant, LAX Hotel Investment Company, Inc. dba
Wingate by Wyndham LAX filed a Demurrer to the battery, IIED and fraudulent
concealment causes of action and a Motion to Strike to punitive damages
allegations and prayer. On April 19, 2023, Plaintiff filed an opposition. To
date, no reply brief has been filed.
¿II. MOVING PARTY’S GROUNDS
FOR THE DEMURRER¿& MOTION TO STRIKE¿
¿
¿¿Defendant
demurs to Plaintiff’s FAC on the following grounds: (1) The First, Third, and Fourth
Causes of action alleging Plaintiff has failed to state facts sufficient to
constitute a cause of action against Defendant. Defendant further demurs to the
Fourth cause of action because Defendant alleges it fails to meet the
heightened specificity standard for maintaining a fraud cause of action. Defendant’s
Motion to Strike is based on striking any language alluding to or referencing
punitive damages, which in turn rests on Plaintiff’s ability to survive
demurrer on any of the intentional tort causes of action.
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¿III. ANALYSIS¿¿
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A. Demurrer
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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 (1985) 39
Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts
sufficient to state a cause of action; each evidentiary fact that might
eventually form part of the plaintiff’s proof need not be
alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53
Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of
action, the demurrer admits the truth of all material facts properly pleaded. (Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does
not admit contentions, deductions or conclusions of fact or law.” (Daar v.
Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿¿
¿¿¿
A pleading is uncertain if it is ambiguous or
unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for
uncertainty may lie if the failure to label the parties and claims renders the
complaint so confusing defendant cannot tell what he or she is supposed to
respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d
135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed,
even where a complaint is in some respects uncertain, because ambiguities can
be clarified under modern discovery procedures.” (Khoury v. Maly's of
California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿¿
Battery
Defendant first demurs to
the first cause of action for battery. The elements of civil battery are (1) defendant
intentionally performed an act that resulted in a harmful or offensive contact
with the plaintiff’s person; (2) plaintiff did not consent to the contact; and
(3) the harmful or offensive contact caused injury, damage, loss or harm to
plaintiff. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 526.)
Defendant
argues that there are no material facts to allege that Defendant caused
Plaintiff to be touched. Further, Plaintiff asserts that the SAC does
not state any specific facts that allege that Defendant intended to cause
Plaintiff any harm. As correctly noted by Defendant, in this Court’s ruling on
the demurrer to Plaintiff’s FAC, it sustained the demurrer as to the cause of
action for battery and allowed Plaintiff leave to amend to add specific facts.
The Court also referenced the Seventh Circuit ruling in Mathias v. Accor
Econ. Lodging, Inc. (7th Cir. Ill. 2003) 347 F.3d 6721, which also involved
allegations of a bedbug infestation at a hotel or motel. However, the facts in
that case were alleged which much greater detail and specificity than what Plaintiff
alleged in the FAC, where the traveler was relocated from a first room to a
second room to a third one, and where it was alleged that the motel
acknowledged that it had a “major problem with bed bugs” and that all that was
being done about it was “chasing them from room to room.”
In
her opposition, Plaintiff argues that she has satisfied the intent requirement
for battery by alleging that Defendants, and DOES 1 through 20, inclusive, did
the aforementioned acts with the intent to cause a harmful or offensive contact
with the body of Plaintiff, or with a reckless disregard of the probability of
causing such offensive contact” (SAC, ¶ 58) The crux of Plaintiff’s allegations
for battery hinge on inaction, however the Court does not find that the
specificity alleged in Mathias is present here. What is missing from Plaintiff’s SAC is any specific
allegation that the hotel was actually aware of the bugs in plaintiff’s very
room from previous guests, or from a previous interaction with the hotel staff.
Instead, Plaintiff’s claim alleges that on August 8, 2017, she checked into the
hotel (SAC, ¶ 17); on August 9, 2017, Plaintiff woke up feeling itchy, and
noticing bite marks (SAC, ¶ 18); and on August 9, 2017, she checked out of the
hotel. (SAC, ¶ 19.) Plaintiff does not allege that she asked about bed bugs in
advance and was affirmatively lied to, nor does she allege that told hotel
staff after her claimed discovery of the issue and that they moved her into another
infected room, knowing that had a severe bed bug infestation. This case’s allegations are not even close to
what was alleged in Mathias. Battery
is an intentional tort, not a negligence claim nor one that can be predicated
on alleged indifference.
As
such, the demurrer to the cause of action for battery is SUSTAINED. The Court denies leave to amend, without
prejudice to a motion for leave to amend if discovery and investigation reveal
sufficient additional facts to fit within Mathias or other details of
the sort the Court identified at the hearing on the prior Demurrer.
Intentional
Infliction of Emotional Distress.
Defendant
also argues that Plaintiff has not stated sufficient facts for a claim of
Intentional Infliction of Emotional Distress. “The
elements of a prima facie case for the tort of intentional infliction of
emotional distress 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’s suffering severe or extreme
emotional distress; and (3) actual and proximate causation of the emotional
distress by the defendant’s outrageous conduct. Conduct to be outrageous must
be so extreme as to exceed all bounds of that usually tolerated in a civilized
community.” (Wilson v. Hynek (2012)
207 Cal.App.4th 999, 1009, citation and ellipses omitted.)
To
meet the reckless disregard standard, plaintiff must allege and show that the
reckless conduct ignored the possibility that Plaintiff would suffer emotional
distress, not merely an injury. (Cervantes
v. J.C. Penny Co. (1979) 24 Cal.3d 579, 593 [private security guard arrested
plaintiff with knowledge that plaintiff had not committed any criminal offence];
Little v. Stuyvesant Life Insur. Co. (1977) 67 Cal.App.3d 451, 462
[terminating total disability benefits without gathering or considering many treating
physician records].) Behavior may be
considered outrageous is the defendant abuses a close relationship (such as employer-employee,
lawyer-client, hospital-patient, or insurer-insured), or know the plaintiff is
particularly susceptible to emotional distress, or acts when recognizing that
the conduct is likely to result in mental or emotional injury. (Molko v. Holy Spirit Ass’n (1988) 46
Cal.3d 1092, 1122.)
Here,
Defendant argues that Plaintiff’s SAC does not state a cause of action for
intentional infliction of emotional distress. Defendant further contends that
there are no specific facts in the SAC that show Defendant intended to cause
Plaintiff any harm, or acted with conscious disregard, nor stated sufficient
facts to indicate that Defendant’s action were directed at Plaintiff or
occurred in Plaintiff’s presence, of which presence Defendant was aware.
In
her opposition, Plaintiff argues that she alleged numerous actions and conduct
by Defendant that were claimed to be outrageous – namely, directing employees not
to clean or inspect for bedbugs. Plaintiff claims that Defendants deliberately
chose not to eradicate a bedbug infestation at the hotel premises, which caused
Plaintiff harm. Plaintiff further alleges that such conduct exceeds all bounds
of civilized society because people (at least, presumably, in the United
States) expect hotels to be free from insect infestations. Directing employees
not to inspect for bedbugs, or turning a blind eye to the existence of bed bugs
in a hotel room as to a guest with no known susceptibility to a severe reaction
to bug bites does not, in the Court’s view, meet the high standard of extreme
and outrageous conduct required for an intentional infliction of emotional
distress cause of action. While
plaintiff’s SAC contains the “buzz words” from reported cases on the elements of
the cause of action, the Court holds that plaintiff will not be able to prove
outrageous conduct that no person in a civilized society could expect to endure,
on the facts alleged, to bear one night of bed bugs in a hotel room. Such allegations do state causes of action
for public nuisance or negligence, but not IIED.
The
Court has given Plaintiff ample opportunity to amend and the Court is satisfied
that Plaintiff lacks facts or even guesses as what she might be able to further
allege to satisfy the high standards for an IIED claim. As such, the Demurrer as to the cause of
action for IIED is SUSTAINED without leave to amend.
Fraudulent
Concealment
Lastly, Defendant argues that Plaintiff has not stated
sufficient facts for a claim of Fraudulent Concealment. “The elements of a
cause of action for fraudulent concealment are: (1) concealment of a material
fact; (2) by a defendant with a duty to disclose; (3) the defendant intended to
defraud by failing to disclose; (4) plaintiff was unaware of the fact and would
not have acted as it did had it known the fact; and (5) damages.” (Butler
America, LLC v. Aviation Assurance Company, LLC (2020) 55 Cal.App.5th 136,
144.) The facts constituting the alleged fraud must be alleged factually and
specifically as to every element of fraud, as the policy of “liberal
construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12
Cal.4th 631, 645.) To properly allege fraud against a corporation, the
plaintiffs must plead the names of the persons allegedly making the false
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.)
As previously noted in this Court’s ruling on the
Demurrer to the FAC, the rule of specifity is relaxed in an intentional concealment
cause of action as opposed to affirmative fraud or affirmative
misrepresentation claims. Indeed, “[h]ow
does one show ‘how’ and ‘by what means' something didn't happen, or ‘when’ it
never happened, or ‘where it never happened?” (Alfaro v. Community Housing
Improvement System & Planning Association (2009) 171 Cal.App.4th 1356,
1384.) A plaintiff asserting fraudulent concealment theory will “not be able to
specify the time, place, and specific content of an omission as precisely as
would a plaintiff in a false representation claim.” Such a claim “can succeed
without the same level of specificity required by a normal fraud claim.” (Falk
v. General Motors Corporation (N.D. Cal. 2007) 496 F.Supp.2d 1088,
1098-99.) It would be counterintuitive to require Plaintiff to name specific
people who failed to say something.
Moreover,
the case Tarmann v. State Farm Mutual Automobile Insurance Company (1991)
2 Cal.App.4th 153 makes clear the longstanding California rule that the
specificity requirement is relaxed when the allegations indicate that “the
defendant necessarily possess full information concerning the facts of the
controversy” or “where the facts lie more in the knowledge of the opposite
party.” (Id. at p. 157; see, also Turner v. Milstein (1951) 103 Cal.
App. 2d 651, 658 [“Even under the strict rules of common law pleading, one of
the canons was that less particularity is required when the facts lie more in
the knowledge of the opposite party than of the party pleading.”].) The facts
regarding the knowledge and concealment of the bedbug infestation are arguably
more within the knowledge of Defendant. In light of the above authorities, the
Court concludes that Plaintiffs cannot reasonable be required to comply with
the specificity rule for pleading fraud in the strictest sense of the rule.
Here, Defendant argues that Plaintiff fails to state
which representations she alleges were fraudulent; why and how those
representations were fraudulent; and how these representations were the
decisive motivating factor for Plaintiff to obtain services from defendants,
i.e., reliance.
In opposition, Plaintiff relies on the allegation that
Defendants were aware of the bedbug infestation, but failed to disclose this.
In this Court’s previous ruling on the demurrer to the FAC, it noted that Plaintiff
should be able to provide facts regarding what was said during check-in,
whether Plaintiff inquired about the room’s condition, what the “front desk
personnel” allegedly knew at check in time, what was said and who they
interacted when Plaintiff first brought up the bedbug issue and checked out of
her room, etc. Although Plaintiff did not indicate that she inquired about the
room’s condition during check in, Plaintiff now notes in her SAC that she
checked in with Front Desk personnel and spoke with those staff members upon
check-in, and alleges that they were aware of the bedbug infestation but failed
to disclose the claimed infestation in her very hotel room. That allegation
moves plaintiff across the starting line.
While the Court is not optimistic that this cause of action will survive
summary judgment, it is sufficiently alleged to pass the pleading stage of this
litigation. The Demurrer to the
fraudulent concealment cause of action is thus OVERRULED.
¿¿¿
B. Motion to Strike¿¿
¿
The court may,
upon a motion, or at any time in its discretion, and upon terms it deems proper,
strike any irrelevant, false, or improper matter inserted in any pleading.¿
(Code Civ. Proc., § 436(a).)¿ The court may also strike 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.¿ (Id., § 436(b).)¿ The grounds for a
motion to strike are that the pleading has irrelevant, false improper matter,
or has not been drawn or filed in conformity with laws.¿ (Id., § 436.)¿
The grounds for moving to strike must appear on the face of the pleading or by
way of judicial notice.¿ (Id., § 437.)¿ “When the defect which justifies
striking a complaint is capable of cure, the court should allow leave to
amend.”¿ (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)¿ ¿
¿
Here, Defendant
moves to strike the following in Plaintiff’s SAC:
1. Paragraph
66 of Plaintiffs SAC, which states: "Plaintiff is informed and believes,
and thereon alleges, that the aforesaid conduct of Defendants, an DOES 1
through 20, was carried out with a willful and conscious disregard of
Plaintiffs right to be free from such tortious behavior, such as to constitute
oppression, fraud of malice pursuant to California Civil Code Section 3294, and
that an officer, director, or managing agent of Defendants, and DOES 1 through
20, authorized or ratified the wrongful acts of the employees and Defendants,
and DOES 1 through 20, entitling Plaintiff to punitive damages in an amount
appropriate to punish and set an example of Defendants, and DOES 1 through
20."
2. Paragraph
84 of Plaintiffs SAC, which states: "Plaintiff is informed and believes,
and thereon alleges, that the aforesaid conduct of Defendants, an DOES 1 through
20, was carried out with a willful and conscious disregard of Plaintiffs right
to be free from such tortious behavior, such as to constitute oppression, fraud
of malice pursuant to California Civil Code Section 3294, and that an officer,
director, or managing agent of Defendants, and DOES 1 through 20, authorized or
ratified the wrongful acts of the employees and Defendants, and DOES 1 through
20, entitling Plaintiff to punitive damages in an amount appropriate to punish
and set an example of Defendants, and DOES 1 through 20."
3. Paragraph
100 Plaintiffs SAC, which states: "Plaintiff is informed and believes, and
thereon alleges, that the aforesaid conduct of Defendants, an DOES 1 through
20, was carried out with a willful and conscious disregard of Plaintiffs right
to be free from such tortious behavior, such as to constitute oppression, fraud
of malice pursuant to California Civil Code Section 3294, and that an officer,
director, or managing agent of Defendants, and DOES 1 through 20, authorized or
ratified the wrongful acts of the employees and Defendants, and DOES 1 through
20, entitling Plaintiff to punitive damages in an amount appropriate to punish
and set an example of Defendants, and DOES 1 through 20."
4. Plaintiffs
Prayer for Relief on page 29, where it states: "For punitive damages in an
amount to be determined at trial. "
Punitive
Damages Discussion
Civil Code section 3294, subdivision (a) authorizes
punitive damages in non-contract cases “where the defendant has been guilty of oppression,
fraud, or malice.”
The Court detailed the standards for pleading malice, oppression or
fraud in its ruling on the motion to strike portions of the FAC.
Defendant
argues that the SAC fails to adequately plead a basis for exemplary damages. However,
as noted above, Plaintiff has alleged sufficient facts for her cause of action
for fraudulent concealment. If that cause of action is proven, Plaintiff may be entitled to
exemplary damages. For the foregoing reasons, the Court DENIES the motion to
strike as to punitive damages.