Judge: Stephen Morgan, Case: 21AVCV00876, Date: 2023-03-28 Tentative Ruling

Case Number: 21AVCV00876    Hearing Date: March 28, 2023    Dept: A14

Background

This is a premises liability action. Plaintiff Isabelle Hill (“Plaintiff”) brings this action against Defendants Best Western International, Inc. (“Best Western”) and Bains Hospitality, LLC – erroneously sued and served as Best Western Plus Desert Poppy Inn – (“Bains” and collectively “Defendants”) alleging personal injury and monetary damages resulting from alleged Cimex lectularius (commonly known asbedbug) bites during Plaintiff’s stay at Defendants’ hotel on November 3, 2019.

Plaintiff checked in to the hotel on November 2, 2019. On November 3, 2019, Plaintiff states that she awoke at 2 a.m. with an “intense itching sensation.” (Compl., ¶ 15.) She alleges that when she pulled back the covers, she discovered bedbugs which she reported to hotel staff. Plaintiff contends that cleaning staff then came to inspect the room at which time she presented a dead bedbug to them. Plaintiff checked out early – on or about November 3, 2019 – due to her alleged injuries from the bedbugs. She states that she called the manager to inform them of the issue and they apologized and refunded her stay. When searching online, Plaintiff states that she found that there had been a previous a bedbug problem.

On November 4, 2019, Plaintiff sought treatment at Antelope Valley Hospital Emergency Room due to worsening of symptoms. There, she was diagnosed as having “bedbug bites and was prescribed medication for her injuries.” (Compl., ¶ 19.) Plaintiff later sought further medical attention due to the persistent itching and pain. Plaintiff alleges that she suffered emotional scarring and incurred costs associated with medical treatment, the hotel room, and replacing her belongings that had been exposed to infestation at the hotel.

On November 2, 2021, Plaintiff filed their Complaint against Defendants alleging the following causes of action: (1) Battery, (2) Negligence, (3) Intentional Infliction of Emotional Distress (“IIED”), (4) Fraudulent Concealment, (5) Private Nuisance, (6) Public Nuisance, and (7) Breach of Contract.

On January 10, 2023, Plaintiff filed an Amendment to Complaint changing the fictitious/incorrect name of Doe 1 to Bains.

On February 15, 2023, Defendants filed a Demurrer and Motion to Strike.

On March 15, 2023, Plaintiff filed her Oppositions.

On March 21, 2023, Defendants filed their Replies.

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Legal Standard

Standard for Demurrer – A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v.¿Mirda¿(2007) 147 Cal. App. 4th 740, 747.) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal. App. 4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.¿ (CCP § 430.30(a).)¿A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ (SKF Farms v. Superior Court¿(1984) 153 Cal. App. 3d 902, 905.)¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.¿¿(Id.)¿¿The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.¿ (Hahn,¿supra,¿147 Cal.App.4th at 747.)¿¿¿¿¿¿¿ 

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A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿ Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer.¿¿(Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)¿ Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.¿¿(Vance v. Villa Park¿Mobilehome¿Estates¿(1995) 36 Cal.App.4th 698, 709.)¿ A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿¿¿¿¿¿¿¿ 

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Pursuant to¿Code Civ. Proc.¿§430.10(e), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action.¿ It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003) 31 Cal.4th 1074, 1082,¿as modified (Dec. 23, 2003).)¿¿¿¿¿¿¿¿ 

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Standard for 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 or 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.) 

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Meet and Confer Requirement – Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer.  (CCP §§ 430.41 and 435.5.)  The Court notes that the Moving Party has complied with the meet and confer requirement.  (Decl. of Tiffanie Q. Spivey.)

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Discussion 

i.        Demurrer 

Defendants demur to all causes of action, except the Second Cause of Action (Negligence). 

 a.  First Cause of Action (Battery) 

Defendants present that Plaintiff’s Complaint fails to (1) assert any factual allegations that Defendants touched or caused Plaintiff to be touched with the intent of Defendants to harm or offend Plaintiff, and (2) fails to allege facts that suggest that Defendants acted in any manner so as to intend to cause harmful or offensive contact 

Plaintiff cites to Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1099–1100 (“Ornelas”) which holds “t “[a]n owner of . . . real property owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give recreational users warning of hazards on the property, unless: (1) the landowner willfully or maliciously fails to guard or warn against a dangerous condition, use, structure or activity; (2) permission to enter for a recreational purpose is granted for a consideration; or (3) the landowner expressly invites rather than merely permits the user to come upon the premises.” Plaintiff presents that Defendants failed to satisfy their duty of care as (1) Defendants failed to warn against a bedbug infestation in their premises; (2) Plaintiff paid to stay at the Subject Hotel for the purpose of a visit; and (3) Defendants invited Plaintiff onto their Subject Hotel premises. Plaintiff believes that the following sections in her Complaint satisfy the intent requirement for a battery claim:

·         “Defendants, and DOES 1 through 20, 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” (Compl., ¶ 38.)

·         “During Plaintiff’s stay, Defendants, and DOES 1 through 20, intentionally and recklessly did acts that were unconsented to by Plaintiff and therefore resulted in offensive contact with her person, including but not limited to: (1) Defendants’, and DOES 1 through 20, deliberate choice not to eradicate a Cimex lectularius 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.” (Compl., ¶ 37.)

Plaintiff presents that Defendants conduct amounted to inaction. That is, Defendants deliberately chose to not eradicate the bedbug infestation or warn Plaintiff thereby amount to a willful disregard of Plaintiff’s health and safety. 

Defendants’ Reply rebuts Plaintiff’s arguments by highlighting that the Complaint alleges only that Plaintiff searched online that there was a bedbug problem, not that Defendants knew of a bedbug infestation. 

“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, 669 [citing CACI 1300].) As battery is an intentional tort, negligence is not involved in its perpetration. (Bartosh v. Banning (1967) 251 Cal.App.2d 378, 385.) “Contact with another’s person” does not require physical connection of one’s body with another and is, for example, sufficiently fulfilled by throwing a substance on another. (Mount Vernon Fire Ins. Co. v. Busby (2013) 219 Cal.App.4th 876, 881.) 

Defendants’ failure to identify an infestation of bedbugs does not raise to the level of intentionally causing harm to the Plaintiff as negligence is not involved in this intentional tort. Plaintiff offers no evidence Defendants knew of the alleged infestation but rather that (1) she found evidence online after the fact of alleged previous infestations, and (2) a cleaning staff member knew that there were bedbugs previously. (Compl., ¶¶ 16, 20.) The Court notes that though it is alleged that a cleaning staff member knew there were bedbugs previously, there are no allegations that a previous bedbug infestation had occurred other than what Plaintiff found online while reading reviews on an unknown site or that the cleaning staff member ever informed anyone of the previous bedbug issue. The statement that “Defendants, and DOES 1 through 20, 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” alone and with the evidence provided is conclusory.

Plaintiff cites Mathias v. Accor Econ. Lodging Inc. (2003) 347 F.3d 672 (“Mathias”), where the court opined actions of hotel staff “amounted to fraud and probably battery as well” because they were aware of a bedbug infestation but did not warn guests. First, this Court is not bound by the United States Court of Appeals Seventh Circuit case precedent. Next, the Mathias court did not definitively state battery elements had been met, though knowledge of an infestation was proven in that instance. Here, Mathias is inapplicable given Defendants are not shown as having awareness of an alleged infestation whereby they could have intentionally failed to warn as a result. 

Plaintiff’s next cited case, Ornelas, focuses on a private landowner’s liability for injuries sustained by another from recreational use of the land. (See Ornelas, supra, 4 Cal.4th 1095, 1099–1100 and Cal. Code Civ. Proc. § 846.) Ornelas is distinguished as there is no argument regarding recreational use of Defendants’ property. 

Here, the issue is the bed bugs that bit Plaintiff. Plaintiff, of course, did not consent to be bitten by bed bugs, but her injuries were not caused by Defendant's intentional act. Rather, Defendant allegedly failed to act. The failure to act does not constitute a battery under California law. 

b.                   Third Cause of Action (“IIED”)  

Defendants present that the Complaint shows that they attempted to remedy the situation by providing Plaintiff with a refund (Compl. ¶ 18). Thus, the Complaint shows that their behavior was not extreme, outrageous, went beyond all possible bounds of decency, atrocious, intolerable in a civilized community, and/or would arouse the resentment of an average member of the community. Defendants believe that the Complaint fails to allege any allegations of severe emotional distress. Further, Defendants present that the Complaint fails to show intent for an IIED claim. 

Plaintiff presents that her allegations include Defendants’ directing employees not to clean or inspect for bed bugs, disregarding Plaintiff’s wellbeing due to knowledge of the alleged bedbug infestation, and ratifying the conduct of hotel employees. (See Compl. ¶¶ 25, 27, and 39.) Plaintiff argues that Defendants deliberately chose not to eradicate a bedbug infestation and have a routine practice of showing indifference to the danger of bedbug infestations, thus, Defendants conduct Defendants’ conduct exceeds all bounds of that usually tolerated in a civilized community and should be deemed extreme and outrageous. 

Defendants’ Reply articulates that the allegations support a claim for Negligence, not IIED. 

“A cause of action for intentional infliction of emotional distress exists when there is ‘(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.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035,1050-1051.) 

The conduct of Defendants is not shown to be outrageous or exceeding that of what is tolerated in a civilized community. There is no evidence proffered that they were aware of any alleged infestation or demonstrated any conscious disregard for Plaintiff’s well-being. (See analysis of awareness of Defendants, ante) 

Defendants rely upon various cases in order to argue that Plaintiff’s alleged emotional injuries are not enough for an IIED claim. Defendants quote: “In order to establish that element [“severe” distress], California law requires that plaintiff prove that he suffered objective symptoms of distress. ‘Headaches, insomnia, anxiety, irritability [are] not ‘severe’ under California law.’ ” (Paulson v. State Farm Mutual Auto. Ins. Co. (1994) 867 F. Supp. 911, 920 [discussing California law and citing Standard Wire & Cable Co. v. Ameritrust Corp. (1988) 697 F. Supp. 368, 372] (“Paulson”). However, Paulson’s validity has now been questioned:

Paulson cited as lone authority for its erroneous declaration of California law another district court case, Standard Wire & Cable Co. v. AmeriTrust Corp. (C.D.Cal. 1988) 697 F. Supp. 368, 372 (Standard Wire). Standard Wire, however, made no mention of the “objective symptoms” standard, and our own review of California law reveals no authority requiring a plaintiff to demonstrate “objective symptoms” to recover for intentional infliction  of emotional distress. Moreover, Standard Wire did not determine that headaches, insomnia, anxiety, and irritability could never be “severe” under California law, but ruled that “[t]he plaintiffs' distress—headaches, insomnia, anxiety, irritability—is not ‘severe’ under California law.” (Id. at p. 372, italics added.) In other words, Standard Wire should be read as simply making a factual finding that the plaintiffs' symptoms in that case were insufficiently severe to support their emotional distress claim. Indeed, Standard Wire cites Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 909 [215 Cal. Rptr. 679, 701 P.2d 826], in which the California Supreme Court held that evidence of “alcoholism, severe headaches, insomnia, tension and anxiety” constituted substantial evidence supporting a verdict in favor of plaintiffs' claim for intentional infliction of emotional distress. (Id. at p. 909, italics added.) In sum, neither Paulson nor Standard Wire correctly states California law concerning the extent of emotional distress sufficient to support a claim for intentional infliction of emotional distress. 

(Hailey v. California Physicians' Service (2007) 158 Cal.App.4th 452, 477.) 

Ultimately, as pled, Defendants’ conduct may not reasonably be regarded as so extreme and outrageous as to permit recovery.  

c. Fourth Cause of Action (Fraudulent Concealment)  

Defendants present that the Complaint fails to plead allegations regarding Fraudulent Concealment with required particularity and specificity for fraud. Specifically, Defendants argue that the Fraudulent Concealment claim is based on general allegations. 

Plaintiff reiterates that her Complaint established that Defendants had prior knowledge of the bedbug infestation in their hotel, that they concealed the bed bug infestation, and ratified the conduct of hotel employees. Plaintiff argues that, as such, her Complaint alleges sufficient facts to state a cause of action for Fraudulent Concealment. 

Defendant’s Reply argues that the allegations in the Complaint regarding awareness are conclusory, not specific. Specifically, the only argument regarding knowledge is the statement of an employee and Plaintiff’s search of reviews. Thus, Plaintiff’s Complaint fails to allege with particularity that Defendants had knowledge of the bedbug issues, either before or during Plaintiff’s stay, and refused to address the issue. 

“[T]he 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.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.) 

As has been established, ante, evidence has not been proffered that Defendants knew of any alleged infestation and as such there cannot be intent to defraud Plaintiff through concealment. 

d. Fifth and Sixth Causes of Action (Private and Public Nuisance) 

Regarding Private Nuisance, Defendants present that case law holds that there can be no separate claim for nuisance when the claim relies on the same facts to support a negligence claim. (See Melton v. Boustred (2010) 183 Cal.App.4th 521, 542; El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349 (“El Escorial Owners’ Assn.”) Defendants argue that the Negligence and Private Nuisance claim are based on the same conduct and, thus, the claim for Private Nuisance is redundant. 

Regarding Public Nuisance, Defendant presents that the Complaint fails to plead any instances of the alleged bedbug issue affecting others and thus fails to state a claim for Public Nuisance. 

Plaintiff cites to Cal. Civ. Code § 3479, which has been included in the pleadings, to show that bedbugs are considered a nuisance. Plaintiff argues that an infestation of bed bugs can spread to the community at large, constitute a public nuisance and that such a nuisance is described by Cal. Health & Saf. Code § 17920.3, which has also been included in her pleadings. Plaintiff presents that she has alleged “this [bedbug] infestation affects the community at large” (Compl. ¶ 89) and that Defendants actions constitute a nuisance within the meaning of Cal. Civ. Code § 3479 and substantially interfered with Plaintiff’s use and comfortable enjoyment of her hotel room (see Compl. ¶ 83). Plaintiff believes these allegations are sufficient to support both her Private and Public Nuisance claims. 

Defendants present that the Complaint is unclear regarding whether the alleged bedbugs affected the community at large and reiterates that the underlying claims are the same as that of the Negligence claim and, as such, the Private nuisance claim is redundant. 

- “A nuisance is considered a ‘public nuisance’ when it ‘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 maybe unequal.’ A ‘private nuisance’ is defined to include any nuisance not covered by the definition of a public nuisance, and also includes some public nuisances. ‘In other words, it is possible for a nuisance to be public and, from the perspective of individuals who suffer an interference with their use and enjoyment of land, to be private as well.’” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 261-262 

Private nuisance is primarily concerned with a plaintiff’s use and enjoyment of their real property and the interference of such being unreasonable and to such a substantial degree to cause actual damage. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal. 4th 893, 937-38. See also KFC Western, Inc. v. Meghrig (1994) 23 Cal.App.4th 1167, 1179 [“ ‘[A] private nuisance is a civil wrong based on disturbance of rights in land while a public nuisance is not dependent upon a disturbance of rights in land but upon an interference with the rights of the community at large.’ [Citation.]”]) First, Plaintiff was a lodger at Defendants’ premises. Plaintiff has failed to cite any legal authority giving rise to a right of action for private nuisance by a hotel lodger. Under California case precedent there cannot be separate claims for negligence and private nuisance when they rely on the same facts; where both causes of action are brought in reliance on the same facts, the nuisance is a negligence is a negligence claim. (El Escorial Owners’ Assn., supra,154 Cal. App. 4^th 1337, 1349.) Here, the underlying facts for both the Negligence and Private Nuisance claims are the same. Further, Defendants cited to El Escorial Owners’ Assn. in their moving papers and Plaintiff has failed to provide any case law that refutes this case precedent in her Opposition. 

As mentioned, ante, public nuisance is primarily concerned with the affect to a community or to a substantial number of individuals. Within the Defendants’ hotel, Plaintiff states “at least one other guest” sustained injuries, which indicates the lack of extent of an alleged infestation. (Opp. 17:13-14.) While Plaintiff states that there is a potential to spread infestation from their room, throughout the hotel, and to the community at large, she fails to present any precedence of this occurring in her pleadings. (Id., at 16:19-22.) Moreover, as the nuisance must affect a community at large at the same point in time, opining as to potential effects of a bedbug infestation is irrelevant. 

d. Seventh Cause of Action (Breach of Contract) 

Defendants present that, to state a claim for Breach of Contract, a plaintiff usually attaches a copy of the contract to the complaint, incorporates a contract by reference or recite it verbatim in the complaint, or alleges g the making and the substance of the relevant terms of the contract. Defendant believes Plaintiff is attempting to plead the substance of the contract, but fails as her allegations are too general. Defendant also believes that Plaintiff has failed to show that she was damaged as the result of any breach of the alleged contract as she was refunded for her stay. 

Plaintiff argues that the nature of renting a hotel room in the modern age is not clear cut and that acceptance of a contract is done by implied conduct with the guest’s payment for the room and reservation, confirmed in writing through a receipt. Plaintiff states that, as pled, there is a bargained for exchange – payment for a clean and habitable room – which was not given. Plaintiff presents that further information about the contract would have to come by way of discovery. Thus, Plaintiff believes that she has sufficiently pled her Breach of Contract claim. 

Defendants argue in Reply that Plaintiff was refunded and, therefore, Plaintiff cannot state a cause of action for Breach of Contract.

 “To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)  

The Complaint alleges that there is a written contract. (Compl.¶ 94.) "[I]f the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference." (Otworth v. S. Oac. Transp. Co. (1985) 166 Cal.App.3d 452, 459.) No terms are provided. No contract is attached nor are terms provided. Plaintiff alleges only that the contract was entered into “for the rent of Plaintiff’s room in compliance with California Health & Safety Code at the hotel.” (Compl. ¶ 94.) Plaintiff has not sufficiently pled each element of a breach of contract claim. 

e. Leave to Amend

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy¿(1976), 18 Cal.3d 335, 348.) While under California law leave to amend is liberally granted, “leave to amend should not be granted where, in all probability, amendment would be futile.” (Vaillette v. Fireman's Fund Ins. Co. (1993), 18 Cal. App. 4th 680, 685).¿ “A trial court does not abuse its discretion when it sustains a demurrer without¿leave to amend¿if either (a) the facts and the nature of the claims are clear and no liability exists, or (b) it is probable from the nature of the defects and previous unsuccessful attempts to plead that the plaintiff cannot state a claim.” (Cantu v. Resolution Trust Corp.¿(1992)¿4 Cal.App.4th 857, 889.)¿¿  

Here, the claims are such that: 

·         The First Cause of Action (Battery) cannot be rectified as the failure to act does not constitute a battery under California law;

·         The Third Cause of Action for IIED may be rectified with an amendment as the issue in the current Complaint is that, as pled, Defendants’ conduct may not reasonably be regarded as so extreme and outrageous as to permit recovery;

·         The Fourth Cause of Action for Fraudulent Concealment may be rectified with an amendment as the issue surrounding the current pleadings is whether Defendants had awareness of the bedbug issue;

·         The Fifth Cause of Action for Nuisance cannot be rectified as (1) this case does not concern Plaintiff’s right to private enjoyment of her real property; and (2) California case precedent holds that where both causes of action are brought in reliance on the same facts, the nuisance is a negligence is a negligence claim;

·         The Sixth Cause of Action may be rectified by an amendment if Plaintiff can show that the bedbug issue affected the community or a substantial number of individuals; and

·         The Seventh Cause of action may be rectified by an amendment if Plainitff properly pleads each element of a breach of written contract claim. 

Accordingly, the Demurrer is SUSTAINED. Leave to amend is given as to the Third Cause of Action (IIED), Fourth Cause of Action (Fraudulent Concealment), Sixth Cause of Action (Public Nuisance), and Seventh Cause of Action (Breach of Contract). 

ii. Motion to Strike 

Defendants request to strike all references to punitive damages on: 

·         Page 8, paragraph 42;

·         Page 12, paragraph 59;

·         Page 14, paragraph 66;

·         Page 16, paragraph 80; and

·         Page 19, prayer 2. 

Cal. Code Civ. Proc. § 3924 provides:  “… [W]here it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Cal. Civ. Code § 3294(a).) Fraud, oppression, and malice are defined as:

(1) “Malice” means 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. (Code Civ. Proc. § 3294(c)(1).)

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Code Civ. Proc. § 3294(c)(2).)

(3) “Fraud” means 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. 

(Code Civ. Proc. § 3294(c)(3).)  

The California Appellate Courts give a standard to distinguish negligence from malice:

“The standard applied is external, and the words malice, intent and negligence, as used in this connection, refer to an external standard. If the manifest probability of harm is very great, and the harm follows, we say that it is done maliciously or intentionally; if not so great, but still considerable, we say that the harm is done negligently; if there is no apparent danger, we call it mischance.” (Selected Essays on the Law of Torts, p. 162.)

(Pelletti v. Membrilia (1965) 234 Cal.App.2d 606, 611.) 

The Pelletti Court goes further to state that when conduct falls sufficiently below the acceptable norm to become grossly deficient, it is characterized as imbued with “wilful[sic] misconduct” and a malicious state of mind is attributed to the actor irrespective of any actual specific intent. (Id.) This idea has been reiterated in more recent cases where courts have found that, in order to be liable for punitive damages, a defendant’s harm to the plaintiff need not be intentional. (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 808.) However, to raise negligence to the level of “wilful[sic]” misconduct, the defendant must have: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. (New v. Consolidated Rock Products Co. (1985) 171 Cal.App.3d 681, 689-690.) The New court further clarified that willful misconduct may be inferred from the actor’s conduct: 

If conduct is sufficiently lacking in consideration for the rights of others, reckless, heedless to an extreme, and indifferent to the consequences it may impose, then, regardless of the actual state of mind of the actor and his actual concern for the rights of others, we call it wilful[sic] misconduct, and apply to it the consequences and legal rules which we use in the field of intended torts. 

(New v. Consolidated Rock Products Co., supra, 171 Cal.App.3d at p. 690.) 

Though both parties present further argument on the Motion to Strike, the Court has already addressed Defendants’ conduct in light of the awareness issue that exists in the Complaint. Based on the Court’s analysis, ante, there has not been willful disregard for Plaintiff, despicable conduct subjecting one to cruelty, or intentional deceit, opining for punitive damages on such grounds is not proper. 

Defendants’ Motion to Strike is, accordingly, GRANTED.

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Conclusion 

Defendants Best Western International, Inc. and Bains Hospitality, LLC (erroneously sued and served as Best Western Plus Desert Poppy Inn) Demurrer is SUSTAINED.  Leave to amend is given as to the Third Cause of Action for Intentional Infliction of Emotional Distress, Fourth Cause of Action for Fraudulent Concealment, Sixth Cause of Action for Public Nuisance, and Seventh Cause of Action for Breach of Contract.