Judge: Ronald F. Frank, Case: 22TRCV00625, Date: 2023-03-09 Tentative Ruling
Case Number: 22TRCV00625 Hearing Date: March 9, 2023 Dept: 8
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HEARING DATE: March 9, 2023¿¿
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CASE NUMBER: 22TRCV00625
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CASE NAME: Carlton Turner v. Gardena Terrace Inn, et al .¿¿¿
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MOVING PARTY: Defendants, Kaylee & Haley Hospitality, LLC dba Gardena
Terrace Inn, and Gardena Terrace Inn, LLC
RESPONDING PARTY: Plaintiff, Carlton Turner
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TRIAL DATE: None
Set.
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MOTION:¿ (1) Demurrer¿
(2) Motion to Strike
¿
Tentative Rulings: (1) Defendant’s Demurrer is overruled
in part and sustained in part
(2) Defendant’s Motion to Strike is granted, with leave to
amend
¿
I. BACKGROUND¿¿
¿¿
A. Factual¿¿
¿
On July 26,
2022, Plaintiff, Carlton Turner (“Plaintiff”) filed a complaint against
Defendants, Gardena Terrace Inn, Gardena Terrace Inn, LLC, Anand Desai, and
DOES 1 through 20. The complaint alleges causes of action for: (1) Battery; (2)
Negligence; (3) Intentional Infliction of Emotional Distress; (4) Fraudulent
Concealment; (5) Private Nuisance; (6) Public Nuisance; and (7) Breach of
Contract.
B. Procedural¿¿
On February 7, 2023, Defendants,
Kaylee & Haley Hospitality, LLC dba Gardena Terrace Inn, and Gardena
Terrace Inn, LLC filed a Demurrer and Motion to Strike. On February 24, 2023,
Plaintiff filed an opposition to both motions. On March 2, 2023, Defendants
filed a reply brief to both.
¿II. MOVING PARTY’S GROUNDS
¿
Defendants filed their demurrer
on the grounds that the First, Third, Fourth, Fifth, Sixth, and Seventh causes
of action fail as a matter of law because the causes of action are uncertain,
and fail to state facts sufficient to constitute a cause of action against the
demurring party.
¿III. ANALYSIS¿
¿
A. Demurrer
¿
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
“The essential elements of a cause of action
for battery are: (1) defendant touched plaintiff, or caused plaintiff to be
touched, with the intent to harm or offend plaintiff; (2) plaintiff did not
consent to the touching; (3) plaintiff was harmed or offended by defendant’s
conduct; and (4) a reasonable person in plaintiff’s position would have been
offended by the touching.” (So v. Shin
(2013) 212 Cal.App.4th 652, 668-669.)
Here, Plaintiff’s complaint alleges that during
his stay, Defendants, and DOES 1 thorough 20, intentionally and recklessly did
acts that were unconsented to by Plaintiff and therefore resulted in offensive
contact with his person, including but not limited to: (1) Defendants’, and
DOES 1 through 20, deliberate choice not to eradicate a Cimex lectularius (bed
bug) infestation in the hotel; (2) Defendants’, and DOES 1 through 20,
deliberate choice not to inspect or ensure that Plaintiff’s room, was free of
Cimex lectularius immediately before Plaintiff’s stay at the hotel; (3)
Defendants’, and DOES 1 through 20, deliberate and reckless choice not to
inspect the bed skirts in Plaintiff’s room to protect against and prevent a Cimex
lectularius infestation; (4) Defendants’, and DOES 1 through 20, willful
disregard of a Cimex lectularius infestation that was either known or should
have been known from prior infestations in Plaintiff’s room; (5) Defendants’
deliberate and reckless choice not to notify Plaintiff of the presence of Cimex
lectularius in the hotel and, specifically, Plaintiff’s room. (Complaint, ¶
35.)
Plaintiff further claims that said acts were
done with the intent to cause a harmful or offensive contact with him, or with
a reckless disregard of the probability of causing such offensive contact.
(Complaint, ¶ 36.)
In Defendants’ demurrer, they argue that
Plaintiff has not alleged any facts of an intent to harm or offend him.
Defendants contend that the phrases “should have known” is negligence, and “did
know” is intentional, but there are no facts that Defendant knew of the alleged
bed bugs. The Court believes Defendant has misread the Complaint, but there are
other pleading deficiencies discussed below.
In opposition, Plaintiff argues that an
awareness of a condition that is known to cause harm in such a manner, absent
any effort to stop such contact from occurring, constitutes battery. Plaintiffs
points to an appellate court case from the Seventh Circuit, 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. The facts in that case
were alleged with much greater detail and specificity than what is alleged
here, 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.”
As
noted in Defendants’ Reply, Mathias is arguably distinguishable from the
case here, but not sufficiently to justify sustaining the demurrer. While there is a vast difference between making
extensive allegations in an unverified complaint and actually proving those
allegations, the essential elements of a battery cause of action are alleged in
plaintiff’s Complaint except, in the Court’s view, with respect to the time
period alleged as to the litany of allegedly intentional or reckless acts in ¶35. Specifically, how long before Plaintiff’s
occupancy did Defendants know there was an infestation elsewhere in the hotel
or in plaintiff’s room that they failed to eradicate, i.e., was it hours or
days earlier, or was it a year earlier with no intervening reports or
complaints from staff or other guests? What
facts were known to the front desk personnel at the time of Plaintiff’s
check-in regarding the alleged earlier infestations, i.e., did they know there
was a single report of an infestation in Plaintiff’s room a year earlier that
has been the subject of an eradication program, or was it a more current state
of knowledge. The Court requires more
detailed specificity as to intentional or conscious disregard tort allegations,
especially when there are punitive damages allegations, than with respect to mere
negligence allegations. Accordingly, the demurrer as to the battery
cause of action is SUSTAINED, with leave to amend.
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.)
Here, Plaintiff’s Complaint asserts that “the
actions of Defendants, and DOES 1 through 20, were intentional, extreme, and outrageous.”
(Complaint, ¶ 59.) Plaintiff alleges that such actions were done with the
intent to cause serious emotional distress or with reckless disregard of the
probability of causing Plaintiff serious emotional distress. (Complaint, ¶ 60.)
Plaintiff contends that Defendants, and DOES 1 through 20, authorized or
ratified the conduct of hotel employees. (Complaint, ¶ 61.) Additionally,
Plaintiff argues that as a direct, legal, and proximate result of the action of
Defendants, and DOES 1 through 20, Plaintiff suffered severe emotional distress
that has caused him to sustain severe, serious, and permanent injuries, to his
person. (Complaint, ¶ 62.) Lastly, Plaintiff alleges that the conduct of
Defendants and DOES 1 through 20, was carried out with a willful and conscious
disregard of Plaintiff’s right to be free from such tortious behavior, such as
to constitute oppression, fraud, or 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 of Defendants, and DOES 1 through 20, entitling Plaintiff to punitive
damages. (Complaint, ¶ 64.)
Defendants’ demurrer argues that Plaintiff has
not alleged any facts of an intention of causing, or reckless disregard of the
probability of causing emotional distress. In opposition, Plaintiff argues that
he has alleged numerous actions and conduct by Defendants that were outrageous
– namely directing employees not to clean or inspect for bedbugs, needlessly
heightening Plaintiff’s anxiety and concern, as well as, the fact that “[a]lthough
Defendants, and DOES 1 through 20, had prior knowledge of bedbug infestations
in their hotel, Defendants, and DOES 1 through 20, failed to eradicate such
infestations, including an infestation in the room that Plaintiff was provided”
and that “Defendants, and DOES 1 through 20, knew that their hotel had a prior
bedbug infestation. Defendants, and DOES 1 through 20, deliberately and
recklessly chose to turn a blind eye to this infestation and previous guest
complaints” (Complaint, ¶¶ 23, 25.)
Based
on the foregoing, this Court finds that Plaintiff’s Complaint does not allege
extreme and/or outrageous conduct on behalf of Defendants. The Complaint alleges in ¶ 11
that the presence of bed bugs is not determined by the cleanliness of
the living conditions where they are
found. The Complaint does not allege in ¶22 or ¶23 the
time periods of alleged prior knowledge of a claimed bedbug infestation in
Plaintiff’s room or elsewhere in the hotel, i.e., was it ten months earlier or 10
minutes earlier. Given the number of
defendants and the pleading requirements for an IIED cause of action, the Court
finds that Plaintiff’s Complaint fails to allege sufficient facts to support an
IIED claim against the Demurring Defendants and thus the Demurrer is sustained.
The Court will grant 20 days leave to amend to include specific facts as
against Defendant Kaylee & Haley Hospitality, LLC dba Gardena Terrance Inn,
and Gardena Terrace Inn, LLC, and specific alleged time periods of alleged
notice of prior infestations, if Plaintiff intends to pursue an IIED cause of
action against the demurring defendants.
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.)
Here, Plaintiff’s complaint alleges that
Defendants and DOES 1 through 20, through their employees and agents, were
aware of substandard health conditions in the hotel with the existence of
insects, specifically a Cimex lectularius infestation present in the room
Defendants assigned to Plaintiff, and which therefore posed a danger to
Plaintiff’s physical health and well-being. (Complaint, ¶ 66.) Plaintiff claims
that Defendants, and DOES 1 through 20, and their employees and agents
intentionally failed to disclose the material fact of the Cimex lectularius
infestation, a fact known to the Defendants, and DOES 1 through 20, and which
Defendants, and DOES 1 through 20, knew Plaintiff would not discover on her own
prior to renting the hotel room. (Complaint, ¶ 69.) Plaintiff also notes that
Plaintiff did not know, or have any way of knowing of the concealed fact of the
bedbug infestation prior to renting the hotel room. (Complaint, ¶ 70.)
Plaintiff’s complaint alleges that Defendants and DOES 1 through 20, intended
to deceive Plaintiff and take advantage of Plaintiff’s lack of knowledge in
order to profit on a night’s stay at their hotel. (Complaint, ¶ 71.) Lastly,
the complaint argues that Plaintiff reasonably relied on Defendants’ and DOES 1
through 20 deception, and was harmed in the form of severe physical and
emotional injuries, noting the concealment was a substantial factor in causing
such harm. (Complaint, ¶¶ 72-74.)
The Court notes that what this claim is dealing
with is an allegation of negligent concealment. 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 fraud on a 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. The specificity requirements for fraud are more
strictly applicable to cases where affirmative fraudulent actions or
representations are being alleged. On the contrary, what is at issue here are
facts that were fraudulently never revealed.
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 Plaintiff cannot
reasonably be required to comply with the specificity rule for pleading fraud
in the strictest sense of the rule.
Defendants’ demurrer asserts that Plaintiff has
not alleged facts that defendants intentionally concealed or suppressed the
presence of bedbugs in the Plaintiff’s room. Plaintiff’s complaint – namely in
paragraphs 69 and 71, makes such an allegation but is lacking in specificity of
time period. Would it be a fraudulent
concealment if Defendant was aware of a bed bug report in plaintiff’s room a
year earlier with no reports by any guest after Defendants thoroughly
exterminated that very room? Of course
not. If Defendant was aware of a current
and uncorrected or untreated infestation but rented the same room to Plaintiff
anyway, that would be a very different circumstance. With respect to the allegation of an
“intentional failure to disclose,” Plaintiff should allege 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 his room, etc. The failure to do so subjects
the fraudulent concealment cause of action to demurrer. Accordingly, Defendants’
demurrer to the cause of action for fraudulent concealment is SUSTAINED, with
20 days leave to amend.
Private Nuisance
To
establish an action for private nuisance, (1) “the plaintiff must prove an
interference with his use and enjoyment of his property”; (2) “the invasion of
the plaintiff’s interest in the use and enjoyment of the land must be
substantial, that is, that it causes the plaintiff to suffer substantial actual
damage”; (3) “the interference with the protected interest must not only be
substantial, but it must also be unreasonable, i.e., 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,
citations, italics, brackets, and quotation marks omitted.)
Here,
Plaintiff’s complaint alleges that the Cimex lectularius infestation that
Defendants, and DOES 1 through 20, negligently and intentionally caused to
exist in Defendant, and DOES 1 through 20, hotel, and specifically Plaintiffs’
room, constitutes a nuisance within, but not limited to the meaning of Civil
Code Section 3479 and California Health & Safety Code Section 17920.3, in
that said infestation was injurious to the health and safety of Plaintiff,
indecent and offensive to the senses of Plaintiff, and interfered substantially
with Plaintiff’s use and comfortable enjoyment of Plaintiff’s hotel room. (Complaint,
¶ 81.) Further, Plaintiff alleges that such nuisance has caused, and will
continue to cause in the future, Plaintiff to suffer general and special
damages. (Complaint, ¶ 82.) Lastly, Plaintiff asserts Defendants, and DOES 1
through 20, failed to adequately abate the nuisance as required by law. As a
direct and proximate result thereof, Plaintiff sustained general damages,
special damages, and property damage in amounts to be determined at trial. (Complaint,
¶ 83.)
This
Court notes that a private nuisance claim requires a plaintiff to show
inference with the use or enjoyment of a property interest. ‘‘[A]ny interest
sufficient to be dignified as a property right’ will support an action based on
a private nuisance…’” (Orange County Water Dist. v. Sabic Innovative
Plastics US, LLC (2017) 14 Cal.App.5th 343, 416, citing Venuto v.
Owens–Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 125.) However,
“‘Guests in a hotel, boarders in a boarding house, and roomers or lodgers, so
called, are generally mere licensees and not tenants. They have only a personal
contract, and acquire no interest in the realty.’” (Sloan v. Court Hotel
(1945) 72 Cal.App.2d 308, 314.) A property right sufficient to bring a claim
based on private nuisance “does not inure in favor of a licensee, lodger or
employee.” (Venuto, supra, 22 Cal.App.3d at p. 125.) As such, Plaintiff,
as a “lodger” has not alleged a sufficient property interest to bring a claim
for private nuisance. Accordingly, the demurrer is SUSTAINED as to the cause of
action for private nuisance without leave to amend.
Public Nuisance
A nuisance is
statutorily defined as anything “injurious to health” or “indecent, or
offensive to the senses, or an obstruction to the free use of property” that
interferes “with the comfortable enjoyment of life or property…” (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.”
(Civ. Code, § 3480.) “[P]ublic nuisances are offenses against, or interferences
with, the exercise of rights common to the public.” (People ex rel. Gallo v.
Acuna (1997) 14 Cal.4th 1090, 1103) “Of course, not every interference with
collective social interests constitutes a public nuisance. To qualify, and thus
be enjoinable [or abatable], the interference must be both substantial and
unreasonable.” (Id. at p. 1105.) It is substantial if it causes significant
harm and unreasonable if its social utility is outweighed by the gravity of the
harm inflicted. (Ibid.)
The elements
“of a cause of action for public nuisance include the existence of a duty and
causation.” (In re Firearm Cases (2005) 126 Cal.App.4th 959, 988.)
Public nuisance liability “does not hinge on whether the defendant owns,
possesses or controls the property, nor on whether he is in a position to abate
the nuisance; the critical question is whether the defendant created or
assisted in the creation of the nuisance.” (City of Modesto Redevelopment
Agency v. Superior Court (2004) 119 Cal.App.4th 28, 38.)
The elements
of public nuisance are: (1) a nuisance that served as an obstruction of the
free use of property so as to interfere with the comfortable enjoyment of life
or property; (2) the nuisance affected a substantial number of people; (3) an
ordinary person would be unreasonably annoyed or disturbed by the nuisance; (4)
the seriousness of the harm occasioned by the nuisance outweighed its social
utility; (5) plaintiffs did not consent to the nuisance; (6) plaintiffs
suffered harm as a result of the nuisance that was different from the type of
harm suffered by the general public; and (7) the nuisance was a substantial
factor in causing the plaintiffs’ harm. (Department of Fish & Game v.
Superior Court (2011) 17 Cal.App.4th 1323, 1352.) On a claim for public
nuisance, the plaintiffs must “prove a substantial number of people were harmed
and the plaintiffs suffered harm that was different from that suffered by the
general public.” (Ibid.)
Here,
Plaintiff argues that this Cimex lectularius (bed bug) infestation affects the
community at large as this type of infestation is easily spread from (1) one
hotel room to another, (2) personal property of those occupying the hotel
rooms, including Plaintiff’s luggage, clothing, shoes, and other tangible
personal property that can be transported from the hotel room to Plaintiff’s
residence thereby creating a risk of bed bug infestation in Plaintiff’s
residence, (3) spread of bed bug infestation from the hotel room to the public
and into their residence which can affect the community at large. (Complaint, ¶
87.) Plaintiff further alleges that their use and enjoyment of their room was
greatly affected, which is separate from the harm suffered by the general
public. (Complaint, ¶ 88.) Additionally, Plaintiff contends that such nuisance
has caused, and will continue to cause in the future, Plaintiff to suffer
general and special damages. (Complaint, ¶ 89.)
In
Defendants’ demurrer, they argue that Plaintiff has not alleged any facts that
Defendant knowingly created or assisted in causing the bedbug infestation. Additionally,
Defendants argue that Plaintiff has failed to allege any facts that would
support any intent, let alone an intent to violate a public interest or right.
In
opposition, Plaintiff argues that the community at large may be affected by
bedbugs as they are likely to spread into the community amongst other hotel
guests. This Court notes the case of Birke v. Oakwood Worldwide (2009)
169 Cal.App.4th 1540, 1548, where the Court found that allegations were
sufficient where it plaintiff alleged that “the condition impacts all guests of
the apartment complex” in a secondhand tobacco smoke case. The Complaint also
alleges migration patterns in ¶13, i.e., the movement of bedbugs between rooms
in hotels. This Court finds that the
Complaint alleges that the bedbug infestation affected the community at large
and the general public. Accordingly, the demurrer to the cause of action for
public nuisance is OVERRULED.
Breach of Contract
“The elements of a defamation claim are (1) a
publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a
natural tendency to injure or causes special damage. The defamatory statement
must specifically refer to, or be of and concerning, the plaintiff.” (John Doe 2 v. Superior Court (2016) 1
Cal.App.5th 1300, 1312, quotation marks and citation omitted.)
Here, Plaintiff alleges that he and Defendants,
and DOES 1 through 20, entered into a written contract for the rent of Plaintiff’s
room in compliance with California Health & Safety Code at the hotel.
(Complaint, ¶ 92.) Plaintiff asserts that he did all of the significant things
that the contract required him to do, most notably, payment for Plaintiff’s
hotel room to Defendants and DOES 1 through 20, in consideration for the use of
the hotel room owned and controlled by Defendants and DOES 1 through 20.
(Complaint, ¶ 93.) Plaintiff contends that all conditions required by the
contract for Defendants’ and DOES 1 through 20 performance had occurred.
(Complaint, ¶ 94.) Further, Plaintiff argues that Defendants, and DOES 1
through 20, breached the contract by failing to provide Plaintiff a habitable
room for lodging, as evidence by the presence of a bedbug infestation in
Plaintiff’s room. (Complaint, ¶ 95.) Plaintiff also contends that the contract
for the hotel room requires the room to be maintained in a sanitary, clean, and
habitable condition. (Complaint, ¶ 95.) Lastly, Plaintiff argues that as a
direct and proximate result of Defendants’ and DOES 1 through 20 breach of
contract, Plaintiff suffered general and special damages, and other damages to
be determined at trial. (Complaint, ¶ 96.)
In Defendants’ demurrer, they argue that
Plaintiff must allege the specific conditions of the contract that were
breached. Here, Defendants assert that Plaintiff has not attached a copy of the
contract or specific conditions of the contract that were breached.
In opposition, Plaintiff contends that the
nature of renting a hotel room in this modern age is not so clear-cut.
Plaintiff argues that a hotel may originally begin by being booked online,
which would feasibly be a written contract, or booked by telephone or
in-person, which would be an oral transaction. Plaintiff argues that acceptance
of the contract is ostensibly implied by conduct with the hotel guest’s payment
for the room reservation. Additionally, Plaintiff asserts that such
transactions are typically commemorated with a written confirmation, or receipt
from the hotel, either by email or on paper, making typical transactions for
rental of hotel rooms an amalgam of the types of contracts.
In Defendants’ reply brief, Defendants note
that while Plaintiff alleges the bare elements of a breach of contract claim,
he has not alleged the terms of the parties’ agreement, let alone provided the
court with a verbatim copy of those terms. The Court agrees that Plaintiff must
allege more sufficient facts to establish a breach of contract, i.e., what the
material terms were beyond the exchange of lodging for a specific price. Regardless of what Plaintiff refers to as the
realities of modern-day hotel bookings, the modern or traditional breach of
contract cause of action must either attach a copy of the terms of the contract
or allege the material terms in the body of the Complaint. For example, did the contract include a bed
bug term, as many modern-day rental agreements do? If so, what were the details of the parties’
agreement in that regard? As such, the
demurrer as to the breach of contract cause of action is SUSTAINED, with 20
days leave to amend.
B. Motion
to Strike
¿ Any party, within the time allowed to respond to a pleading
may serve and file a notice of motion to strike the whole or any part thereof.
(Code Civ. Proc., § 435, subd. (b)(1).) 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,
subd. (a); Stafford v. Shultz (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”].) The court may also strike
all or any part of any pleading not drawn or filed in conformity with
California law, a court rule, or an order of the court. (Code Civ. Proc., §
436, subd. (b).) An immaterial or irrelevant allegation is one that is not
essential to the statement of a claim or defense; is neither pertinent to nor
supported by an otherwise sufficient claim or defense; or a demand for judgment
requesting relief not supported by the allegations of the complaint. (Code Civ.
Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on
the face of the pleading or by way of judicial notice. (Code Civ. Proc., §
437.)¿¿
Here,
Defendants move to strike the following in Plaintiff’s complaint:
1. Page
4, line 24-26, "deliberately and recklessly" and "willfully
disregarding".
2. Page
5, line 6, "deliberately".
3. Page
5, line 9, "deliberately and recklessly".
4. Page
5, line 22, "extreme indifference and reckless disregard".
5. Page
6, line 24, "deliberately"
6. Page
6, lines 27-28, "fraudulent conduct" and "deliberately concealing".
7. Page
7, line 11-12, "intentionally and recklessly".
8. Page
7, lines 15-20, "deliberate" and "deliberate and reckless".
9. Page
7, lines 22-24, Paragraph 36 in its entirety, which states, "Defendants,
and Does 1 through 20, did the aforementioned acts with intent to cause a
harmful or offensive contact with the body of Plaintiff, or with reckless
disregard of the probability of causing such offensive contact"
10. Page
8, lines 24-Page 9, line 1, Paragraph 40 in its entirety, which states,
"Plaintiff is informed and
believes, and thereon alleges, that the aforesaid conduct of Defendants, and
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, or 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 employers of 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".
11. Page 13, lines 1-7, Paragraph 57 in its
entirety, which states, "Plaintiff is informed and believes, and thereon
alleges, that the aforesaid conduct of Defendants, and 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, or
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 employers of 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"
12. Page
13, lines 13-14, "intentional, extreme, and outrageous"
13. Page
13, line 17, 19, 21 & 24, "deliberate and reckless".
14. Page
14, lines 6-8, Paragraph 60 in its entirety, which states "Defendants',
and DOES 1 through 20, actions were done with the intent to cause serious
emotional distress or with reckless disregard of the probability of causing
Plaintiff serious emotional distress".
15. Page
15, lines 8-14, Paragraph 64 in its entirety, which states, "Plaintiff is
informed and believes, and thereon alleges, that the aforesaid conduct of
Defendants, and DOES 1 through 20, was carried out with a willful and conscious
disregard of Plaintiff s right to be free from such tortious behavior, such as
to constitute oppression, fraud, or 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
employers of 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".
16. Page
15, lines 25-28, Paragraph 67 in its entirety, which states, "Defendants',
and DOES 1 through 20, knowledge of the hotel's infestation problem, which was
specifically in Plaintiffs room, is reflective of the pattern and culture of
extreme indifference and reckless disregard for the value of human life and
prevention of such infestation at the hotel".
17. Page
16, line 6, "intentionally"
18. Page
16, lines 12-15, Paragraph 71 in its entirety, which states, "Defendants,
and DOES 1 through 20, intended to deceive Plaintiff and take advantage of
Plaintiffs lack of knowledge of the infestation in order to turn a profit on a
night's stay at their hotel, and intended to deceive Plaintiff by concealing
the fact of the Cimex lectularius infestation".
19. Page
17, lines 20-26, Paragraph 78 in its entirety, which states, "Plaintiff is
informed and believes, and thereon alleges, that the aforesaid conduct of
Defendants, and 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, or 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
employers of 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".
20. Page
20, line 15, "For punitive damages in amount of to be determined at
trial".
21. Page
20, line 16, "For costs of this action, including attorneys' fees".
Punitive
Damages
Civil Code section 3294, subdivision (a)
authorizes punitive damages in non-contract cases “where the defendant has been
guilty of oppression, fraud, or malice.”
“Malice [is 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 for the rights and safety of others.” (Civ. Code, § 3294, subd.
(c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel
and unjust hardship in conscious disregard of that person's rights.” (Civ.
Code, § 3294, subd. (c)(2).) “Fraud” is “an intentional misrepresentation,
deceit, or concealment of a material fact known to the defendant with the
intention on the part of the defendant of thereby depriving a person of
property or legal rights or otherwise causing injury.” (Civ. Code, § 3294,
subd. (c)(3).) The Plaintiff has alleged sufficient facts which, if proven
could entitle Plaintiff to establish the malice prong of Civil Code section
3294.
The Court
is sustaining the Demurrer with respect to the three alleged intentional torts in
this 7-count Complaint, all with leave to amend. As noted above, the lack of specificity as to
the timing of Defendants’ alleged knowledge of a prior infestation in
Plaintiff’s room or in the hotel generally are a source of concern to the Court
but as to which the Court is granting Plaintiff leave to amend. Because of the Court’s rulings as to the
intentional torts claims, and the Court’s concerns as to the timing of
Defendant’s alleged knowledge or conscious disregard, the motion to strike all
of the allegations bearing on punitive damages is granted, with leave to amend.
IV.
CONCLUSION¿¿
¿¿¿
For the foregoing reasons, Defendant’s Demurrer is
OVERRULED in part and SUSTAINED in part as reflected above. Additionally,
Defendant’s Motion to Strike is DENIED.
¿¿¿
Moving party is ordered to give notice